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Causation and Remoteness of Damage - Coggle Diagram
Causation and Remoteness of Damage
Causation = 3rd element that needs to be proved to establish negligence according to Donoghue. Claimant
must
show that the defendant's breach of duty caused their harm/loss.
Courts have devised 'but for' test to establish factual causation before considering remoteness of damage (causation in law).
FACTUAL CAUSATION
-
'but for' test
--> D's breach of duty must be the cause of the damage. 'But for' test described in
Cork v Kirby Maclean Ltd
. It is the test used to establish causation in fact. If the harm wouldn't have happened 'but for' the defendant's negligent behaviour, the negligence is the cause of that harm. Sometimes it isn't clear what would have happened 'but for' the D's negligence. The test is simple to use where there's 1 cause of harm + 1 defendant but it isn't always adequate -->where claimant has lost chance of full recovery --> there are several concurrent causes of harm --> there are consecutive causes of harm.
Barnett v Chelsea and Kensington Hospital Management Committee (1968)
- Claimant's husband went to hospital as he was ill after drinking some tea. He was sent home without being seen and told to call his own doctor. He died + it was later discovered he was poisoned. The claim failed as hospital was able to show that even if the claimant's husband had been examined with proper care, he would still have died as the poisoning was too advanced. Since death would have happened anyway, the d's breach of duty wasn't factual cause of death.
Chester v Afshar (2004)
- Court said in this case that it was difficult to prove causation using the 'but for' test. Policy considerations required a judge to decide whether justice demanded that the usual approach to causation should be modified. So, on policy grounds, the causation test was met + claimant won her claim. In the judgement, the Lords made it clear the case was unusual and decided on its own particular facts.
Problems with the 'but for' test
Loss of chance cases
- Usually involves medical negligence. Claimant will have % chance of being cured but that % is reduced by the doctor's delay in diagnosing or treating the illness. Court has to decide if delay can be said to have caused the patient to not be cured, or whether that would have been the situation even if the doctor hadn't acted negligently
Hotson v East Berkshire Area Health Authority (1987)
- Claimant rushed to hospital when he suffered a hip injury following a fall from a tree. Damage to his hip created a 75% hance that he'd develop a permanent disability. D's negligently failed to diagnose claimant's hip condition + it went untreated for 5 days. By the time the mistake was discovered, the claimant had a permanent disability. At trial, court held delayed treatment had deprived claimant of a 25% chance of recovery so he was awarded 25% of the full amount of compensation. On appeal to HoL, the decision was reversed. There was no basis for the judge's decision to award damages for loss of chance of complete recovery. If claimant had to prove on balance of probabilities that he would have recovered if given proper treatment, he was entitled to full compensation. If not, there's no payable compensation.
Above case reinforced in
Gregg v Scott (2005)
- Claimant visited doctor, complaining of lump under his left arm. Doctor said there was nothing to worry about. 9 months later, the lump was still there + claimant consulted another doctor who referred him to a surgeon + he was diagnosed with cancer. Claimant treated + went into remission but wasn't clear whether he was actually cured. At trial, court held misdiagnosis reduced claimant's chances of surviving more than 10 years from 42% to 25%. Judge dismissed claim as delay hadn't deprived him of prospect of cure. At time of diagnosis, the claimant had less than 50% chance of surviving more than 10 years anyway. Decision upheld in HoL with court stating that liability for loss of chance of a more favourable outcome shouldn't be introduced into personal injury claims.
Several concurrent causes of harm
- Where there's more than 1 possible cause of damage, courts have modified 'but for' test to find a fair way of deciding whether liability should be imposed on defendant. Initially courts looked at whether D's conduct led to material increase of harm. Shown in
Bonnington Castings Ltd v Wardlaw (1956)
. HoL didn't indicate what amounted to 'material contribution' in this case. This was addressed in
Sienkiewicz v Greif (UK) Ltd (2011)
which followed
McGhee V NCB (1973)
. 'Material Increase' approach used in
Bailey v Ministry of Defence (2008)
. Sometimes court uses a different approach from
Mcghee
where a claimant must prove on the balance of probabilities that the d's negligence was a material cause of their injury. It isn't sufficient to show the D merely increased the risk of damage. Shown in
Wilsher case
Bonnington Castings Ltd v Wardlaw (1956)
- Claimant was a steel worker who contracted a lung disease by inhaling silica particles. D had failed to provide an extractor fan + if he'd done so, the no. of silica particles the claimant would have been exposed to would have been reduced. There were 2 potential causes of claimant's illness --> the 'guilty' dust that shouldn't have been there + 'innocent' dust that would have been present anyway. At trial, D found LIABLE as he couldn't show 'guilty' dust didn't cause harm to D. On appeal, HoL held the claimant ONLY had to prove the 'guilty ' dust had made a material contribution to disease. Claimant DIDN'T have to demonstrate on balance of probabilities that the 'guilty' dust was cause of disease.
McGhee v NCB (1973)
- Claimant worked in brick kiln + developed skin disease. 1 possible cause of it was exposure to brick dust. Another possible cause was failure of D to provide washing facilities --> meant when claimant cycled home, dust rubbed his skin. Evidence unable to show that if washing facilities were provided, the claimant wouldn't have got dermatitis. Meant 'but for' test couldn't be used. Court devised modification of 'but for' test as there was more than 1 possible cause of harm. Stated that causation could be proved if claimant could show D's negligence had 'materially increased' the risk of injury. Claimant DOESN'T have to show the D's negligence was only cause of harm. In this case, claimant WON this action.
Bailey v Ministry of Defence (1973)
- Claimant suffered brain damage when in hospital run by D's. D's admitted negligence in early stages of her care. Brain damage caused after this, when claimant suffered heart attack after inhaling her own vomit --> something which could of happened due to her weakened state or the earlier negligence. CoA decided IN FAVOUR of claimant on grounds that 'but for' the D's negligence, she wouldn't have been in weakened state = D's negligence made material contribution to what happened.
Wilsher v Essex Area Health Authority (1988)
- Claimant's blindness could have been caused by any 1 of 5 separate medical conditions that he suffered from. HoL decided the claimant had to prove, on balance of probabilities, that the D's breach of duty was material cause of injury. Wasn't enough to prove the D had increased risk that harm may occur. On the facts, D's negligence was only 1 of possible causes + this wasn't enough to prove causation so claimant lost his claim.
Consecutive causes of harm
- Where 2 independent events cause the damage + the 2nd D's breach of duty causes the same damage as that caused by 1st defendant, the 1st event should be treated as the cause.
Baker v Willoughby (1970)
- Claimant suffered an injury to his left leg in an accident caused by the D's negligence. Before the trial for negligence claim, the claimant was victim of armed robbery at his place of work. He suffered gunshot wounds to his left leg + as a result of his injuries, his leg had to be amputated. D admitted negligence for 1st injury but argued his responsibility ended when claimant was shot. D argued claimant would be over-compensated for injury caused by D if all losses from date of shooting were included. HoL rejected this argument as it produced an injustice on claimant's part so D was liable for full extend of claimant's injury. If this decision hadn't been reached, the claimant would have been under-compensated as there was no one to sue for 2nd injury.
Jobling v Associated Dairies (1981)
- D was liable in negligence when claimant sustained a back injury at work. Injury led to 50% reduction in his earning capacity. 3 years later + before trial for negligence claim, claimant contracted a spinal disease, making him totally unfit for work. Relying on
Baker v Willoughby
, claimant claimed compensation for 1st injury + spinal disease. HOWEVER, HoL held the D was liable for reduced earning capacity up to date of onset of spinal disease as spinal disease was brought about by natural causes.
Fitzgerald v Lane (1989)
- Pedestrian hit by 2 negligently driven cars in very short space of time. Each driver held liable for all injuries as it couldn't be shown which impact caused claimant's harm.
Multiple tortfeasors (more than 1 defendant possible responsible for the harm)
- Sometimes an issue when claimant suffers a work-related illness that's taken years to develop + it isn't clear when the harm was done. This law set out in line of cases
Holtby v Bringham and Cowan (2000)
- Claimant suffered from asbestosis as a result of breathing in the fibres at work over a long period of time. He'd been employed by D's for about 1/2 the time + other companies doing similar work for the rest of the time. D's were liable as it was shown their negligence had made a material contribution to claimant's harm. If harm to claimant had been caused by negligence of others also, then D's would be liable for proportion of compensation payable. This was assessed as 75%.
^This principle can work harshly against claimant as they may not recover full compensation. This was partially corrected by
Fairchild v Glenhaven Funeral Services (2002)
- Claimant suffered from mesothelioma (form of cancer from asbestos). He'd been exposed to the fibres during employment with several employers. Some former employers had gone out of business + couldn't be sued. Unlike asbestosis, it's impossible to medically prove when the disease when contracted because of the way it develops, so it was impossible to prove which D was responsible for negligent exposure. Each D denied liability on basis the claimant couldn't prove 'their' asbestos made the critical contact. CoA used 'but for' test so claimant failed on balance of probabilities of which period of employment had caused/materially contributed to harm of claimant.
On appeal to HoL, McGhee was extended. On balance of probabilities, each D's breach of duty had materially increased risk of him contracting mesothelioma. It was enough to show the asbestos exposure for which any 1 D was responsible had contributed materially to risk of harm. Case is policy decision --> Law found the injustice caused by denying compensation to employees who'd suffered terminal harm outweighed potential unfairness in imposing liability on successive employers who couldn't be proved to have caused harm. Each D was under duty to protect claimant + they breached this. Policy decided EACH SHOULD BE HELD LIABLE as they'd increased risk of harm. Claimant entitled to compensation in full.
Courts amended the situation in in a similar case called
Barker v Corus UK Ltd (2006)
- Claimant contracted mesothelioma after worked for a no. of employers. He worked for D between 1960 +1968. Then worked for another employer for 6 weeks where he was also exposed to asbestos. After 1968, he was self-employed for 20 years. During this time, he was exposed to asbestos 3 times. D argued that claimant's exposure to asbestos while he was self-employed prevented him from being able to rely on the causation principle created in
Fairchild
. Held in CoA that
Fairchild
applied so claimant was successful. HOWEVER, damages were reduced by 20%for contributory negligence for periods where he exposed himself to asbestos.
Barker
had effect of partially overruling
Fairchild
. Although D could still be liable without proof of causation, liability was several rather than joint so D's contribution was limited to extent their negligence exposed claimant to risk of mesothelioma. Insurance companies paying the compensation saw this case as a victory as it would save them millions but trade unions + mesothelioma groups weren't happy. Adverse publicity about the case put pressure on Labour government to introduce emergency legislation to restore
Fairchild
principle in full in relation to mesothelioma cases only.
Section 3(1) was inserted into Compensation Act 2006 stating that where an employee has contracted mesothelioma as a result of exposure to asbestos, causation can be proved by showing that the exposure made a 'material contribution to the risk'. This was interpreted in
Sienkiewicz v Greif (UK) Ltd (2011)
Sienkiewicz v Greif (UK) Ltd (2011)
- Claimant died of mesothelioma. From 1966 to 1984, she was an office worker at D's factory that manufactured steel drums. During the process, asbestos fibres were released into the air. Although claimant didn't work on factory floor, her duties took her all over premises. As with other people, she would have been exposed to low level of asbestos in general atmosphere. D argued that--> any negligent exposure to asbestos while claimant was at work was minimal + far less than usual. -->
Fairchild
principle didn't apply as this was a single exposure to asbestos + exposure wasn't 'material' but minimal. --> appropriate causation test was 'doubles the risk' test (there's only liability if occupational exposure could be shown to have at least doubled the risk of claimant contracting mesothelioma.
Trial judge agreed with D, stating there was NO LIABILITY as exposure at work increased risk of harm by only 18%. CoA held on appeal that the proper test was whether the occupational exposure had materially increased the risk of contracting mesothelioma. It didn't matter whether 'the other exposure' was negligent or not. Claimant could prove causation by any available test, including a material increase in risk.
D appealed to Supreme Court which dismissed the case. Court held the 'doubles the risk' test was unsuitable as a test for causation in mesothelioma cases.
Fairchild
exception was developed for mesothelioma cases due to medical uncertainty about disease's biological cause. Principle applies regardless f whether it's a case of single or multiple exposures. Supreme Court considered what could be regarded as material increase in risk --> left to judges to decide. In this case, material contribution was considered to be 18%.
INTERVENING ACTS
- If D can show that an intervening act has caused the damage rather than the defendant, it may break the causal link between D's breach of duty + the harm. Means the D won't be liable. Intervening act arises in 2 main ways --> intervention by claimant --> intervention by 3rd party
Intervention by claimant
- Usually in tort, when claimant's actions are called into question, it's in relation to contributory negligence. If claimant is found to be contributorily negligent, their damages are reduced in proportion to their blame. However, D may sometimes allege that the claimant's behaviour breaks the chain of causation.
McKew v Holland and Hannen and Cubitts (1969)
- Claimant suffered an injury to his leg caused by D's negligence. For some time after the accident, his leg frequently gave way under him. Whilst he had this condition, he tried to walk down a steep flight of stair that had no handrail without assistance + whilst carrying his daughter. His leg gave way + he fell sustaining more injuries. He claimed D was liable for original injury + those sustained when he fell downstairs. Court held the D WASN'T LIABLE for additional injuries as claimant's action was an intervening act. He was fully aware of weakness in his leg + his behaviour was unreasonable.
Wieland v Cyril Lord Carpets (1969)
- D negligently injured by D + forced to wear a surgical collar --> this restricted her ability to focus her bifocal glasses + as a result she was further injured when she fell down some steps. D found LIABLE for all injuries as claimant HADN'T acted unreasonably + chain of causation wasn't broken.
Clear that not all irresponsible behaviour by claimant will be enough to break chain of causation. HOWEVER, it will break the chain if a fair result needs to be achieved.
Spencer v Wincanton Holdings (2009)
- Claimant had a false leg but fell over 1 day when he wasn't wearing it. CoA considered the fairness + unfairness to both parties when deciding if claimant's failure to wear his false leg broke the chain of causation. Court decided this was contributory negligence rather than an act that broke the chain of causation.
Intervention by 3rd party
- If D's breach of duty is followed by a 3rd party act that also causes the claimant damage, the court has to decide the extent to which the D is liable. If 3rd party action is an intervening act, the D WON'T be liable for any harm occurring after 2nd act. In order to break the chain of causation, the 3rd party action must be VOLUNTARY + INDEPENDENT of the breach of duty.
Knightley v Johns (1982)
- D's negligent driving blocked a busy road tunnel. Police inspector in charge sent claimant (police officer) to drive against the traffic flow to close the tunnel entrance. Claimant injured by a car being driven in the opposite direction as he was driving back into the tunnel. Claimant brought action against D + court found chain of causation was broken by police inspector's actions. --> Was probable + foreseeable that the police would deal with the accident + there may be more risk-taking. HOWEVER, there were so many errors before claimant was sent back into tunnel that inspector's negligent behaviour was the cause of claimant's injuries, not the D's negligent behaviour. Court held D WASN'T LIABLE.
TEST FOR REMOTENESS OF DAMAGE
- 1 test for remoteness of damage and this is found in
The Wagon Mound (No.1) (1961)
+ this overruled the test found in
Re Polemis (1921)
. Even if factual causation can be proved, the D may still avoid liabiity if it isn't possible to prove legal causation --> claimant has to prove the damage or harm caused isn't too remote.
Re Polemis (1921)
- Employees of D were loading cargo in Sydney Harbour into a ship + negligently dropped a large plank of wood. As it fell, the wood knocked against something else, creating a spark which ignited the surrounding petrol fumes, resulting in the destruction of the ship. The D's were held liable as the courts adopted a strict liability approach.
Wagon Mound (No.1) (1961)
- Due to carelessness of D's, a large quantity of fuel oil was discharged from their ship in Sydney Harbour. Oil was carried by wind + tide to claimants' wharf 600 feet away where welding was being carried out on another ship. 2 days later, the oil caught fire + wharf + ships being repaired were extensively damaged. Oil also congealed on slipways + interfered with claimants' use of ships. At trial, court found there WAS breach of duty + causation in fact + law was proved as decision in
Re Polemis
followed. Case appealed to Privy Council --> Reversed the decision, holding that the fact that some of the damage was foreseeable didn't make D's liable for fire damage which wasn't foreseeable. Privy Council stated the test for remoteness of damage was whether the kind of damage sustained was reasonably foreseeable. Court went on to state the test for remoteness in
Re Polemis
shouldn't be regarded as good law.
If the type if damage suffered is reasonably foreseeable, the precise way which occurred need not to have been foreseeable.
Doughty v Turner Manufacturing (1964)
- Asbestos cover was knocked into a cauldron of a molten chemical. 1 or 2 minutes later, due to a chemical reaction (that wasn't known at the time), the liquid erupted + D suffered burns as a result. CoA accepted that it was previously unknown that there would have been such a reaction.
Wagon Mound
case applied to the facts - chemical reaction was unforeseeable + damage too remote to impose liability on D. Claimant's CLAIM FAILED.
'Thin-skull rule' applies to rules for legal causation.
Smith v Leech Brain and Co. (1962)
- Claimant suffered a burn to his lip due to inadequate safety measures at D's factory. Claimant's lip was in a pre-malignant condition + burn caused him to develop cancer which led to his death. D argued it wasn't reasonably foreseeable that the claimant would suffer cancer from being burned. D WAS LIABLE, even though the only foreseeable injury was a burn caused by a splash. HOWEVER, thin-skull rule was applied so the only question was whether the burn was foreseeable, NOT whether the cancer was.