Negligence factual causation

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factual causation

To determine if the defendants act was 'a' cause of the defendants harm. The act has to be relevant. 

Have to ask the question- 'But for the negligence of the defendant, would the claimant have suffered teh loss they did in fact suffer?' Done on balance of probablities ie was it more likely than not that the Dr's negligence led to the onset of the condition. If the answer is no then that is the end of the inquiry. Loss of chances already at 50% or below are not relevant.

Should establish the relevant counter factual scenario- what would have happened if not for the breach. 

However multiple and different alternative cause of the event such as in Wilsher v Essex AHA 1988

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causal problem scenario 1

Causal problem scenario 1- Concurrent causes

A common sense approach. 

Concurrent negligent acts leading to the same damage will result in full liability for both or all the negligent parties. Has a reversed burden of proof. 

But for does not work in these situations.

Persuasive American and Canadian cases- Summers v Tice 1948 and Cook v Lewis 1951. Fitzgerald v Lane 1987- English.

Need to distinguish between i) divisible (dose related) and indivisible harm (not dose related). These are claims with multiple defendants. Indivisible harm is non progressive and you cant break it up eg mesothelioma where once you have it that is it. 

ii) several liability (proportionate liability) and joint and several liability (Civil Liability Contribution Act 1978). Several- can have a percentage of harm eg 20% so pay that much (dividisble harm). Joint and several- each defendant liable for overall amount, sue defendant with most money and you can choose which one. Great for claimants, not defendants. 

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causal problem scenario 2

Causal problem scenarios 2- a material contribution to harm. 

This is divisible harm. 

Bonnington Castings v Wardlaw 1956 and Bailey v MoD 2008.

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causal problem scenario 3

Causal problem scenario 3- A material increase in the risk of developing a condition.

1) indivisible harm 2) true evidential gap 3) multiple sources of exposure 4) but only has to be one single agent.  McGhee v NCB 1972

Single cause but multiple consecutive exposures-

All exposures tortious but impossible to identity the casual exposure. All defendants jointly and severally liable. A narrow exception. Fairchild v Glenhaven Funeral Services 2002

Not all exposures tortious. All defendants laible in proportion to their contribution to the material increase (severally liable).  Barker v Corus 2006.

Seinkiewicz v Grief 2011- recent application of the principles.

UoB v Williams 2011 and Jones v Sos for Dept of Energy and Climate Change

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causal problem scenario 4

Causal problem scenario 4- medical non disclosure and 'fairness and justice' approach-

Chappel v Hart 1998 (Austrailian) and Chester v Afshar 2005. 

Can only apply principle to where they have failed to warn of medical risk so have limited application.

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causal problem scenario 5

Causal problem scenario 5- loss of opportunity/ chance cases and proportionate liability. 

Hotson v East Berks AHA 1987- already less than 51% chance of recovery so not liable.

Gregg v Scott 2005- 42% chance went down to 25% chance so not liable. 

Allowing for loss of chance would open the flood gates as a lot easier to show.

Economic loss of chance-

Allied Maples Group v Simmons 1995 and Spring v Guardian Assurance 1995. Involved negligent omissions and third parties which allow this loss of chance.

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causal problem scenario 6

Causal problem scenario 6- multiple sucessive causes-

Baker v Willoughby 1970, Jobling v Associated Dairies 1982 and Gray v Thames Trains 2009.

Summary-

  • 'but for' is the basic test.
  • causal problem scenarios are-
  • concurrent cases
  • material contribution to the harm
  • medical non disclosures and fairness and justice
  • loss of chance
  • multiple sucessive causes

If factual causation is established move on to prove legal causation. 

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