• Created by: Nikki
  • Created on: 12-04-15 09:02

The basics

Must show that breached caused C to suffer an actionable loss

Basic starting point = but for test

Can produce paradoxical results -- saying no one caused x to happen

Can be overbroad -- indicating A caused x to happen when this seems counter-intuitive ('false positive)

Modified or supplemented by additional tests -->

Breach in chain of causation --> novus actus interveniens

Material increase in risk test --> did V's actions materially increase the risk of x?

Even these need to be modified and supplemented when threaten to produce undesirable conclusions --> e.g. by depriving duty of its substance

Possible for more than one person to cause something to happen

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'but for' test (1)

Barnett v Chelsea & Kensington Hospital Committee (1969) - nightwatchen arsenic poisoning case --> casualty officer did not cause death because C would have died anyway if treated

McWiliams v Sir William Arrol & Co (1962) - D's failure to provide C's husband with safety belt did not cause husband's death --> would not have worn it anyway

Jobling v Associated Dairies Ltd (1982) - C employed + fell in D's butcher shop - back injury - 1976 completely disabled due to condition (unconnected to accident) --? D's liable for C's disablement between 1973 and 1976 but their failure had not caused any of C's disablement after 1976 (would have developed condition anyway)

Calvert v William Hill Ltd (2003) - C lost lots of money gambling using telephone betting - asked D to close account to put break on gambling - instruction never acted on - continued to accept C's bets - D had 'assumed a responsibility' to C to close acount - owed duty of care not to accept bets --> BUT at first instance found D hadn't breached as C would still have suffered same loss but at slower rate

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'but for' test (2)

D not liable for losses caused by bare acts or omissions but for losses caused by their wrongs

The Empire Jamaica (1957) - collision of ships - at time of accident D's ship sailing in breach of regulations (only first mate certified) - could have complied in 2 ways (both certified or not sailed at all) which bring different but for results - should adopt approach in cae like this to characterise D's breach in way most favourable to D --> D's breach of regulations did not cause accident which damaged C's ship

Lumba v Sec of State for Home Dept (2011) - C falsely imprisoned - detained by Home Office pursuant to policy not entitled to follow because was secret and didn't accord with HO official policy - but conceded that even under official policy, C would have been eligible to be detained - characterise in most favourable way to HO --> C not entitled to sue for false imprisonment because wrong cause C not harm since would have been detained under official policy anyway

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Divisible and indivisible harm

Divisible --> harm that may be suffered to greater or less extent

Indivisible --> harm that does not vary in extent

Much easier to establish causal link between D's tort and divisible harm to C

Where causal link established, C usually entitled to full compensation (indivisible) or only partial compensation (divisible)

Bonnington Castings v Wardlaw (1956) - lung disease from inhaling silica dust at work - partially should have been protected by employer - employer's negligence made 'material contribution' to lung disease --> divisible harm allowed them to reach this conc --> C's employer should be liable for proportion of disease attributable to his negligence (but not in this case)

Holtby v Birgham & Cowan (Hull) Ltd (2000) - C developed asbestosis - 75% worse due to D's negligence - D liable to pay compensation for 75%

McGhee v National Coal Baord (1975) - dermatitis from brick dust and no showers - indivisible harm - had to argue would not have suffered but for D's negligence - impossible to show - despite this HL found in C's favour due to 'material increase' of risk due to D negligence 

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Evidential difficulties: standard approach

Physical injury cases --> standard approach is it more like than not that C would have suffered particular injury but for D's tort? --> if C can show probability would not have suffered greater than 50%, courts decide case on basis C would not have suffered injury but for D's tort

Chester v Afshar (2005) - operation C suffered nerve damage & partially paralysed; D had failed to tell C of small risk of this; breach of duty; causation? - if C knew of risks wouldn't (prob) have had it on that day - more likely than not (98-99%) that operation would have not caused nerve damage --> HL accepted but for test was satisfied

Hotson v East Berkshire HA (1997)

Wilsher v Essex AHA (1988)

'more likely than not' can be expressed as 'doubling the risk'

Cautino over use of such statistics as way of proving causation (Sienkiewicz) --> SC judges hostile to use of general stat info to establish particular event actually happened

Standard 'more likely than not' approach productive of injustice --> Two Hunters Problem

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Evidential difficulties: Fairchild exception

Fairness argument - would be easier for employees who worked for 1 bad employer to establish causation than those who work for 2 or more bad employers - waive normal rules to avoid unfairness so employee can sue employer eve though cannot establish which employer caused C's mesothelioma

Sanction argument  - to avoid making the duty empty and to ensure employers do not feel free to breach duty --> employer must pay compensation even if could have developed it from another exposure (so can't get away with it simply by showing another exposure)

2 questions left unanswered -

Extent of liability - compensate in full or in proportion for their liability

Single wrongful exposure - does Fairchild apply where 2nd exposure was innocent?

Answered in Barker v Corus UK Ltd (2006) - 

Extent of liability - compensate proportionately - assessed on how much they exposed C

Single wrongful exposure - Fairchild applies even if 2nd exposure innocent

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Evidential difficutlies: F exception (2)

Decision criticised by MPs and trade unions --> s3 of Compensation Act - if A liable under Fairchild then laible to compensate C in full for mesothelioma

Sienkiewicz - Fairchild applied in single wrongful exposure cases

New basis for Fairchild exception (Sienkiewicz) - 'rock of uncertainty' - impossible to determine porb that C developed disease because of given exposure

Sienkiewicz - SC placed limit on Fairchid - Brown suggested only applied in mesothelioma

May also apply to other 'rock of uncertainty' cases

s3 Compensation Act only applies to mesothelioma cases --> any other case where Fairchild applies, courts would follow decision in Barker to limit D's liabilities

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Evidential difficulties: loss of a chance

Loss of a chance functions in economic loss cases

Courts find out if there was a chance that A would be able to do x had B not committed his tort ----> if there was a chance, courts award A compensation for loss of chance of getting that job

Not an all-or-nothing approach as this would either overcompensate or undercompensate C

Two reasons why this approach isn't adopted in physical injury cases

  • Proof
    • much more difficult for C to show D's tort deprived her of genuine chance of avoiding that injury
  • Type of loss
    • loss of chance of avoiding injury is not to be equated with physical injury --> chances are economically valuable --> economic loss
    • pure loss of chance is economic in nature --> duty must be geared towards protecting from economic loss
    • if tort injures B and as a result B's chances of avoiding furhter injury are diminished, B may be able to recover; B can recover if A's tor tdamages B's property so property value is diminished
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If D's tort would have been sufficient to bring about that loss or event, but that loss or event would have happened anyway even if D had never committed his tort

Everyone agrees that in overdetermination caases wrongdoers should each be held liable in full for harm suffered by C

Causal link will be found between D's tort and C's loss, even though that loss would still have been suffered by C due to the actions of other wrongdoers

Cases where if D hadn't done what he did, same harm would've occurred a bit later than it did in real life --> Jobling v Associated Dairies Ltd (1982); Calvert v William Hill Ltd (2008)

Problems when third party's wrong would have eventually caused C to suffer same harm he suffered as a result of D's tort --> Baker v Willoughby (1970)

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Another solution to overdetermination?

Wright v Cambridge Medical Group (2011) --> CA endorsed idea that overdetermination problems could be solved by allowing C to sue D for depriving him of right to sue a third party for damages

Untenable as a legal principle

  • calim for losing right to sue someone for damages is claim for economic loss, and damages for this can't normally be made in cases where there is no special relationship between C and D
  • loss of right to sue someone will count as an unforeseeable consequence of D's negligence --> non-actionable as too remote
  • potential to create unsolvable paradoxes akin to paradox of Protagoras
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Healed victim problem example --> A negligently causes B an injury; B cured in hospital; upon leaving hopsital B run over by C --> did A cause C to be run over? --> NO --> coincidental result of A's tort --> A's tort did not materially increase risk that C would be hit again in leaving hospital

Carslogie Steamship Co Ltd v Royal Norwegian Government (1952) --> C ship damaged in collision with D's ship --> would have taken 10 days to repair but caught in storm on way to repairs --> 30 days to repair --> D's negligence did not cause the storm damage --> explained before as break in chain but is more like coincidence

Chester v Afshar --> found A's negligence caused C's paralysis --> but C's parlysis was just coincidence --> whilst A neglgienc ein failing to disclose risks to C, it did not materially increase risk that paralysis would occur --> policy consideration (so doctors' breaches in failing to warn patients wouldn't go unsanctioned)

Wright v Cambridge Medical Group 2011 --> illustrates difficulty in applying idea that tort does not cause a particular outcome that would not have happened but for that tort being committed if the tort did no materially increase the risk of that outcome occuring 

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Coincidental overdetermination

Disabled-blind footballer problem --> A's tort has resulted in coincidental event occurring that reinforced effect of A's tort --> before bitten by insect C couldn't play for one reason but after bit he was blind and couldn't play for 2 reasons --> should this make a difference to A's liability? --> hard to see why C's being made blind should have adverse effect on his right to sue A --> not suing for compensation for consequences of bad luck in being bitten but to be compensated for consequences of A's tort in injuring C

Gray v Thames Trains Ltd (2009) --> suggests that if C to blame for subsequent even that reinforced effects of A's tort, then damages that C can sue A for will be reduced even if that subsequent event would not have happened but for A's tort

But in cases where subsequent event was not C's fault, damages payable to C should remain unaffected

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Fact and policy

How far is causation a matter of fact or influenced by policy considerations?

Extreme policy consideration view --> conclusion always turns on policy considerations

  • could argue that public policy considerations account for why we are content to find that it was A's tort that caused harm to B, instead of focusing attention on A's upbringing, or his genetic make-up, or anything B might have done to provoke B into hitting him

Extreme matter of fact view --> always asking a question of fact

Inquiries into causation are neither exclusively a matter of fact nor exclusively a matter of policy --> at basic level inquiries into questions of fact, but courts will adjust outcome of inquiries where they threaten to work injustice or harm public interest

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