Lecture 4 Causation PDF

LECTURE 4: CAUSATION Meryl Dickinson This session will be recorded for the purposes of this module. Please do NOT share materials or recordings with anyone outside of this module. Aims for today By the end of the session y...

LECTURE 4: CAUSATION Meryl Dickinson This session will be recorded for the purposes of this module. Please do NOT share materials or recordings with anyone outside of this module. Aims for today By the end of the session you should be able to: Understand the distinction between factual causation and legal causation Understand the importance of the ‘but for’ test Identify and understand the reasons why the courts have moved away from the ‘but for’ test Identify when something might be considered an intervening act Identify when damage may be considered too remote from the breach of duty Where does this fit in Distinction between factual and legal causation ‘Cause in fact’ ‘cause in law’ The What happened Even if the breach was Question factually in the the cause in fact of the s being situation as it harm suffered, what is asked occurred? the legal interpretation On the balance of of the facts – was the probabilities, did the harm too remote? breach cause the harm Are there any policy or alleged (‘but for’ the other reasons to justify negligence, would the denying liability? harm have been Was there a break in the suffered)? chain of causation? If not, have the courts Taken from: Horsey & Rackley Tort Law (6 th edn OUP created an exception 2019) 251 Factual Causation Causation is decided on the balance of probability, not beyond reasonable doubt. It should neither protect the claimant or the defendant It should be focused on whether the harm was a consequence of the act Common terms that are used to describe this – necessary/sufficient Must connection the breach of duty to the harm This Photo by Unknown Author is licensed under CC BY-SA Barnett v Chelsea & Kensington Hospital MC 1 QB 428 Failure to diagnose a patient who had been poisoned Conceded negligence but argued no causation Even if a correct diagnosis had been made, the man would have died anyway The ‘but for’ test: but for the defendant’s carelessness, would the claimant have escaped harm? See also: Nyang v G4S Care & Justice Services Ltd and others EWHC 3946 But for test - summation D liable only if his/her conduct was a necessary condition for C’s harm to occur Probability over 50% that C’s harm would not have occurred but for D’s conduct = D is fully liable for C’s damage Probability of 50% or below = D not liable for anything All or nothing test = no apportionment on the basis of probabilities (we don’t say that if there is a 20% chance I hit you, I am liable for 20% of your cost). However: Claimants actions McWilliams v Sir William Arrol& Co Ltd 1 WLR 295 C would not have worn protective gear even if it had been supplied  Questio n 1. If a person is shot in the leg, resulting in the loss of his leg, he will be potentially able to claim damages against the person who shot him. 2. There are two people who shot towards the injured party at the same moment in time. 3. Medical examiners are unable to identify which shooter hit the injured party. Who should be liable? ThePhoto by PhotoAuthor is licensed under CCYYSA.  The Legal Solution? Cook v Lewis 1 SCR 830 D1 and D2 shoot at C’s direction; each shot was sufficient to kill C; neither was necessary (each has probability of 50%). Should Ds be liable? ‘The unattractive consequence, that one of the hunters will be held liable for an injury he did not in fact inflict, is outweighed by the even less attractive alternative, that the innocent plaintiff should receive no recompense even though one of the negligent hunters injured him. It is this balance … which justifies a relaxation in the standard of causation required. Insistence on The the Solution: normal Joint liability standard basedwould of causation on thework involved of a joint an injustice’ venture....  Fitzgerald v Lane AC 328 The claimant was hit by two cars directly after each other whilst crossing the road using a pedestrian crossing. The impact from the cars caused significant injury but neither of could be directly attributed to the harm. Who should be liable for the ThePhoto by PhotoAuthor is licensed under CCYYSA. harm?  Fitzgerald v Lane AC 328 It was later discovered that the claimant themselves also contributed to the harm – he was crossing against the pedestrian crossing lights (which were red) Who should be liable now? ThePhoto by PhotoAuthor is licensed under CCYYSA.  Decision in Fitzgerald v Lane AC 328 The courts were unable to apply the ‘but for’ test They imposed liability equally between the drivers on the basis that the negligence from both drivers had contributed to the harm caused Furthermore, they also found there to be an element of contributory negligence (see defences) Apportionment was divided between the three parties: 25% Driver A 25% Driver B 50% Claimant (through contributory negligence) NESS Test and causal uncertainty Ittakes 2 grams of poison to kill X (less will have no effect). Acting alone, A, B and C each give X one gram of the poison. X dies. Who is responsible for killing X? The ‘but for’ answer: no agent is responsible The NESS answer: four possible sets of acts sufficient to kill X: AB; BC; AC; ABC Each of A, B and C is a necessary member of at least one set. Each set is sufficient to ensure the outcome. Conclusion: each of A, B, and C are all ThePhoto by responsible for X’s death. PhotoAuthor is licensed under CCYYSA.  Multiple Causes: Independent factors Wilsher v Essex Area HA 1 AC 1074 The courts held that as there were five competing causes, each with equal probability (20%), none could be directly attributed as the definite cause. Hotson v East Berkshire Area HA AC 750 The courts stated this was a ‘relatively simple case concerned with proof of causation, on which the plaintiff failed, because he was unable to prove, on the balance of probabilities, that his deformed hip was caused by the authority’s breach of duty in delaying over a period of five days a proper diagnosis and treatment’ (per Lord Ackner)  Material Contribution Bonnington Castings Ltd v Wardlaw 2 WLR 707 – a case about ‘innocent’ and ‘guilty’ dust The facts of this case meant that the employer had ultimately materially contributed to the risk of harm, and that this risk had become a reality. Holtby v Brigham & Cowan (Hull) Ltd 3 All ER 421 The courts held that each employer was negligent and should bear a percentage of the cost. They considered the harm to be ‘divisible’ in respect of the defendant’s negligence.  Material increase in risk McGhee v National Coal Board 1 WLR 1 The claimant in the case contracted skin disease after being exposed to brick dust. The claimant’s argument was that due to the employer’s failure to provide adequate washing facilities he had been exposed to brick dust for longer than necessary everyday and that this prolonged exposure had ultimately resulted in the contraction of the disease. The courts held that the employer in this case was liable due to the fact that they had increased the risk of foreseeable harm occurring through their failure to provide adequate washing facilities. The influence seen by material risk Bailey v Ministry of Defence EWCA Civ 883 Twopotential causes that led to cardiac arrest and brain damage One caused by negligence; one ‘natural’ Courtof Appeal considered these as cumulative causes in line with Bonnington Castings Ltd v Wardlaw Considered sufficiently similar as ‘innocent’ dust (natural cause), and ‘guilty’ dust (caused by negligence)  Affirmed in Williams v The Bermuda Hospitals Board (Bermuda) UKPC 4 The claimant attended A&E with severe abdominal pain. A CT scan was ordered in order to determine whether he was suffering from appendicitis, or whether the pain was due to a different condition. There was a 4-5 hour delay in performing the scan. His appendix ruptured and he developed sepsis as a result. This led to reduced blood flow around the heart and the need for life support to be implemented.  Decision in Williams v The Bermuda Hospitals Board (Bermuda) UKPC 4 The ‘but for’ test should not apply. Instead they applied the decision in Bonnington Castings Ltd v Wardlaw. Considered to be ‘innocent’ and ‘guilty attributes to the sepsis. Theinnocent contributing factors were those already beginning before the scan, and the ‘guilty’ attributes were those after the negligence. Theincreased blood flow to the heart was caused by both, and therefore the hospital’s negligence had materially contributed to the harm. See also: John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust – principle applied in the High Court But: Shembri v Marshall EWHC 595 – balance of probability…  Gregg v Scott UKHL 2 Facts: Gregg (claimant) consulted Scott (defendant) about a lump under his arm, which Scott failed to diagnose as a form of cancer. This delayed the beginning of his treatment by 9 months which expert evidence stated reduced his chances of surviving more than 10 years from 42% to 25%. Argument: The claimant argued that the doctors misdiagnoses had led to a loss of chance of survival. Outcome: 3:2 Against Baroness Hale: ‘If it is more likely than not that the defendant’s carelessness caused me to lose a leg. I do not want my damages reduced to the extent that it is less than 100% certain that it did so. On the other hand, if it is more likely than not that the defendant’s carelessness did not cause me to lose the leg, then the defendant does not want to have to pay damages for the 20% or 30% chance that it did. A “more likely than not” approach to causation suits both sides.’  Gregg v Scott UKHL 2 Lord Hoffman: ‘losing some chances to live longer is not the same as losing a longer life. Sometimes courts are justified in departing from the ‘but for’ principle, but this case was not one of them. ‘a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and the National Health Service.’ Dissenting: Lord Nicholls ‘It cannot be right to adopt a procedure having the effect that, in law, a patient’s prospects of recovery are treated as non-existent whenever they exist but fall short of 50%. If the law were to proceed in this way it would deserve to be likened to the proverbial ass. Where a patient’s condition is attended with such uncertainty that medical opinion assesses the patient’s recovery prospects in percentage terms, the law should do likewise.’ Gregg v Scott UKHL 2 Lord Hoffman: ‘losing some chances to live longer is not the same as losing a longer life. Sometimes courts are justified in departing from the ‘but for’ principle, but this case was not one of them. ‘a wholesale adoption of possible rather than probable causation as the criterion of liability would be so radical a change in our law as to amount to a legislative act. It would have enormous consequences for insurance companies and the National Health Service.’  Asbestos cases Fairchild v Glenhaven Funeral Services UKHL 22 The case involved multiple negligent exposures to asbestos by a number of employers which led to the claimant contracting mesothelioma. Medical evidence indicated the condition to be a result of a single exposure, but the timing of this exposure could not be identified. The courts decided the case on the ‘material increase of harm’. Barker v Corus UK Ltd UKHL 20 The House of Lords followed the decision in Fairchild but held the apportionment of costs was not to be joint and several but was to be proportionate to the increased risk posed by each employer. Note: The position has been restored to joint and several liability by the Compensation Act 2006 s.3  Usefulness of the NESS test Notice how NESS explains why all Ds should be liable in Fitzgerald, Fairchild etc. Another example: D’s negligence has a 20% chance to have caused C’s damage, the remaining 80% coming from natural causes. Should D be liable? See Wilsher v. Essex Health Authority QB 730; Hotson v East Berkshire HA 1 All ER 210. No liability in Wilsher and Hotson because causes operated independently, not as a set  Multiple sufficient causes Baker v Willoughby AC 467 Claimant suffered a leg injury that resulted in a change of career. Whilst at his new job he was shot in the same leg. The courts decided both harms where caused by the first defendant’s actions. Jobling v Associated Dairies Ltd AC 794 The defendant’s were only held liable for the harm caused up until an unrelated back disease was contracted which rendered the claimant unable to work. The courts held that the defendant would not be liable for harm caused by the ordinary ‘vicissitudes of life’. See also: Gray v Thames Trains UKHL 33 and Murrell v Healy EWCA Civ 486 ThePhoto by PhotoAuthor is licensed under CCYYSA.  Break: Something to consider…. David negligently causes a collision on a motorway. Pauline, who was driving one of the other vehicles, was dazed by the collision and went to sit on the hard shoulder. A police car, rushing to the scene of the accident, hit and seriously injured Pauline. Judy had pains in her chest and went to hospital. A doctor gave her a cursory examination and told her to stay in the waiting Taken from Horsey & Rackley room, where she later had a heart attack and died. Medical evidence suggested that even if the doctor had treated her properly, she would still have had Your thoughts…. David negligently causes a collision on a motorway. Pauline, who was driving one of the other vehicles, was dazed by the collision and went to sit on the hard shoulder. A police car, rushing to the scene of the Judy accident, had pains inhit herand seriously chest injured and went to Pauline. hospital. A doctor gave her a cursory examination and told her to stay in the waiting room, where she later had a heart attack and died. Medical evidence suggested that even if the doctor had Finding Causation Factual Causation Legal Causation Was the harm too remote a consequence of the defendant’s actions? Are there any subsequent events that could be said to have broken the chain of causation?  Remoteness of Damage Question: Was the harm so far removed from the action as to have ‘been unforeseeable by the defendant (judged by the standard of the ‘reasonable person’ at the time the action occurred?’ Horsey & Rackley Tort Law (5th edn OUP 2017) 274 Judged with the knowledge at the time ThePhoto by PhotoAuthor is licensed under of the breach – we judge foresight no CCYYSA. hindsight.  Wagon Mound (No 1) AC 388 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Facts: Involved an oil leaking into water from a ship that soon left Sydney harbour. A thin film of oil spread over the surface to a neighbouring wharf where the claimant was repairing another ship. A few days later sparks from wielding managed to ignite the oil which resulted in serious fire damage to the wharf and nearby ships. Decision: The Privy Council found a reasonable person would not have foreseen the extent of the fire damage as a possible consequence. Note: The Wagon Mound (No 2) 1 AC 617 (Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd General Rule Type of harm – not the extent (Hughes v Lord Advocate e.g. driving a car negligently, physical harm could result (Page v Smith) Doughty v Turner Manufacturing Co - Is a splash different from an eruption? Treiman v Pike – How the type of harm occurred? Vacwell Engineering Co Ltd v BDH Chemicals Ltd – A broad interpretation? ThePhoto by PhotoAuthor is licensed under CCYYSA.  ‘Egg shell skull’ Rule refresher ‘The defendant must take the victim as they find them’ Smith v Leech Brain & Co Ltd Robinson v Post Office (1974) – the need for subsequent medical treatment Reaney v University Hospital of North Staffordshire NHS Trust – the difference between ‘quantitatively’ and ‘qualitatively’ different needs Lagden v O’Connor – application to ThePhoto by PhotoAuthor is licensed under CCYYSA. economic harms Intervening Acts Acts by the claimant Natural events Acts from a 3rd party  Acts of the Claimant McKew v Holland 3 All ER 1621 Claimant suffered injury to his left leg at work Descended a steep flight of stairs with no handrail Leg gave way: jumped 10 steps to save himself falling Fractured leg Decision: A reasonable person would not have acted in this way. His actions were therefore considered unreasonable and where deemed to have broken the chain of causation.  Acts of the claimant Weilandv Cyril Lord Carpets 3 All ER 1006 – reasonable towealk down the stairs Sayers v Harlow Urban District Council 1 WLR 623 – escape from the toilet! Reevesv Commissioner of Police of the Metropolis 1 AC 360 - suicide in police custody Corr v IBC Vehicles UKHL 13 – ongoing physical and psychological problems led to suicide Gray v Thames Rail UKHL 33 – subsequent criminal damage  Natural Events Carslogie Steamship Co Ltd v Royal Norwegian Government AC 292 Two types of damage: Original damage estimated to take 10 days to repair. Additional damage incurred on their journey to America during severe storms to take an additional 30 days to repair Courts held the defendant was only liable for the loss of profits amounting from the estimated days required for repair  Acts by a 3rd Party TheOropesa P. 32 – the case of the subsequent capsizing lifeboat Knightley v Johns 1 WLR 349 – ordering officers to drive against the flow of traffic Wrightv Lodge 4 All ER 299 – Apportionment or break of causation between a mini driver and a lorry driver Stansbiev Trotman 2 KB 48 – leaving the door unlocked whilst picking up supplies  Acts by a 3rd party Rahman v Arearose Ltd QB 351 The claimant was violently assaulted at work and then operated on negligently resulting in the loss of sight in one eye. NHS Trust accepted liability for the loss of sight. Questions drawn as to liability for the ongoing psychological harm. The courts held this was not a traditional case of concurrent liability but that apportionment of costs should amount to a pragmatic division of costs on the basis of their failed responsibility. Note: The general rule in Robinson v Post Office still applies in cases where subsequent medical treatment is required.  Summatio n General rule follows the ‘but for’ test Exceptions are seen if the cause could be considered to materially contribute to the risk of harm or the causes culminated in the harm; but The standard ‘but for’ test will still apply if there are independent factors, each of which could have caused the harm independently Once factual causation has been found, consideration should made as to whether there are any legal reasons why liability should not be imposed (legal causation) Remoteness of damage Intervening acts