Causation

Question 1

Barnett v Chelsea and Kensington Hospital

Answer 1

Factual Causation

• Hospital breached duty of care owed to a patient.
• Doctor failed to carry out proper examination.
• Patient died of arsenic poisoning after drinking poisoned tea.
• Evidence showed he would have died even if doctor HAD examined him.
• Little or no chance that necessary medicine would have been administered on time.
• No factual causation. ‘But for’ test could not be satisfied.

Question 2

Wilsher v Essex

Answer 2

Multiple Independent Causes

• Premature baby suffered condition that caused him to go blind.
• Evidence to suggest blindness could have been caused by 1 of 5 factors, including doctor’s negligence (therefore 1 tortious & 4 non-tortious factors).
• Applied ‘but for’ test.
• Could not prove on balance of probabilities (51%) that blindness caused by breach as opposed to other factors.

Question 3

Hotson v East Berkshire Health Authority

Answer 3

Loss of Chance (medical negligence)

• Child fell from tree and broke leg.
• Hospital was negligent in its treatment and child left paralysed.
• Medical evidence showed 75% risk of paralysis even if hospital treatment perfect.
• ‘But for’ failed - C could only prove 25% chance breach caused paralysis.
• Originally awarded 25% of value of the claim, but H of L rejected this. Claim failed.

Question 4

Gregg v Scott

Answer 4

• Rejection of claim for loss of life expectancy due to negligent failure to diagnose claimant’s cancer which reduced survival rate by half.
• Courts reluctant to apply ‘loss of chance’ argument to medical negligence situations.

Question 5

Allied Maples Group v Simmons & Simmons

Answer 5

• SS negligence meant that C lost chance to negotiate a better deal.
• Courts allowed claim. Causation successful as C able to prove real and substantial chance seller would have agreed to the clause.

Question 6

Bonnington Castings v Wardaw

Answer 6

Multiple Cumulative Causes

• C contracted respiratory disease from dust exposure at work.
• Claimed compensation in negligence from his employers.
• Some exposure deemed to be natural consequence of work being carried out (non-tortious).
• Some exposure due to D’s breach of duty.
• Non-tortious and tortious factors operated together.
• Apply ‘but for’ –> but for dust exposure, C would not have contracted the disease.
• Fails ‘but for’ though because can’t tell how much of the loss was caused by the tortious exposure.
• Material contribution test introduced.
• If D’s breach can be proved to have materially contributed to C developing the disease, D would be liable for the loss.
• Material contribution means ‘more than negligible’

Question 7

Bailey v Ministry of Defence

Answer 7

• Showed that material contribution test can be applied to more than just industrial cases.
• C suffered brain damage due to cardiac arrest.
• Cardiac arrest either caused by natural progression of C’s condition (non-tortious) or negligent lack of care by D (tortious).
• Medical experts could not say if negligent treatment was on B of P the cause.
• But able to prove the tortious/non-tortious factors worked together.
• Factual causation satisfied - the breach materially contributed to the brain damage.

Question 8

McGhee v National Coal Board

Answer 8

• What happens when you don’t know whether the multiple causes acted independently or cumulatively?
• C contracted dermatitis due to brick dust exposure.
• Worked with brick dust during working hours - no breach re: exposure (non-tortious cause).
• But D did not provide washing facilities to wash off at end of day, so time on skin extended (tortious).
• But for dust exposure, D would not have contracted dermatitis.
• Important difference to Bonnington.
• Medical evidence could not establish that dermatitis was a cumulative condition - could have been due to single exposure. Could have been caused by non-tortious dust or tortious dust.
• BUT could establish that longer dust on C’s skin, greater risk of contracting dermatitis.
• MATERIALLY INCREASED THE RISK.
• Distinguish from Wilsher in that there was more than one causal agent, whereas here there was one (dust).

Question 9

Fairchild v Glenhaven Funeral Services Ltd & Others

Answer 9

• D worked for numerous employers at different times in 1960s.
• 25 years later developed form of lung cancer associated with asbestos exposure.
• Science could not establish if disease caused by cumulative exposure to A or single asbestos fibre.
• C of A decided one fibre to blame.
• ‘But for’ failed - could not prove which employer exposed C to single fibre.
• C might have been exposed to single fibre before started working for D.
• Held that D materially increased the risk.

KEY POINT: Weigh fact that D might be held liable for damage he did not cause against fact that people who suffer harm due to employers’ breach need to be compensated for their loss.

Question 10

Apportionment

Bonnington Castings v Wardlaw; McGhee v National Coal Board

Answer 10

• In both Bonnington and McGhee, D was held 100% liable for loss despite non-tortious factor.

Question 11

Fitzgerald v Lane & Patel

Answer 11

• C crossing road when lights were red.
• First D driver collided with him, C thrown into road where run over by second D driver.
• Both drivers held negligent.
• But C also negligent.
• Each held one third to blame - C by 50%, two Ds 25% each.

Question 12

Humber Oil Terminal Trustee v Sivand

Answer 12

LEGAL CAUSATION
- Acts of God/Natural Events

• D’s tanker negligently collided with and damaged C’s dock - property damage.
• During repair further expenses occurred when seabed collapsed.
• Further expenses caused by sea bed collapse still recoverable - collapse not a NAI as it was in realms of foreseeability.

Question 13

Meah v McCreamer

Answer 13

• C suffered injury in road accident leading to personality disorder.
• Disorder led C to commit various criminal acts including rape.
• Disorder linked to original tort, could not break chain of causation.
  KEY POINT: if later act can be linked to D’s breach, no break.

Question 14

Knightley v Johns

Answer 14

ACTS OF 3RD PARTIES

• First D caused road traffic accident.
• Police inspector negligently handled traffic afterwards.
• Negligence led to claimant police officer being killed (ordered to drive down tunnel against traffic flow).
• First D argued negligent handling broke chain of causation. Police inspector’s actions unforeseeable.

Question 15

Scott v Shepherd

Answer 15

• If 3rd party acted instinctively i.e. heat of the moment, no break in chain of causation.

Question 16

Robinson v Post Office

Answer 16

• C injured through D’s negligence and given anti-tetanus injection which he was allergic too.
• Doctor should have carried out allergy test.
• Did not break chain of causation as not considered ‘palpably wrong’.
• Doctor’s actions foreseeable and connected to original breach.
• Could not break chain.
• D liable for initial injuries and extent to which they were made worse by doctor’s subsequent actions.

Question 17

Spencer v Wincanton

Answer 17

• Strike balance between allowing Cs to live lives free from criticism and imposing to onerous liability on Ds.
• Emphasised importance of fairness - taking into account if further injury is caused by the claimant not the tortfeasor (who caused original injury).

Question 18

McKew v Holland

Answer 18

• C’s leg sometimes gave way without notice due to injury caused by D’s negligence.
• Advised to be careful going down stairs etc.
• Carrying child down steep stairs, fell, further injuries.
• Test used - unreasonable and unforeseeable? Yes, not fair to hold D responsible for these additional injuries.

Question 19

Wieland v Cyril Lord Carpets

Answer 19

• C had neck brace due to D’s original negligence.
• Fell down some stairs.
• Should D be responsible? Yes, she was not doing something so unreasonable/taking extra risk. Would not have fallen down stairs if not for D’s original negligence.

Question 20

McFarlane v Tayside HA

Answer 20

• Wrongful life claims now restricted - unlikely claim will succeed resulting from birth of healthy baby due to failed sterilisation.
• But again here refusal to have abortion not a NAI.

Question 21

Reeves v MPC

Answer 21

• Actions of C will not be treated as NAI where duty of care on D requires them specifically to prevent C taking certain actions.
• Police under duty to ensure prisoner did not commit suicide (known suicide risk).
• Prisoner killed himself due to failings by custody officers.
• Prisoner’s actions did NOT count as NAI.

Question 22

Corr v IBC Vehicles

Answer 22

• C suffered head injury in accident at work.
• Physical injuries and also PTSD.
• Six years later killed himself.
• Employer held responsible, although no specific duty to prevent C’s suicide.
• Rare for courts to find acts of C breaks chain as C’s contribution to loss can be dealt with by contributory negligence defence.