Causation and Remoteness

What does Lord Salmon argue about causation?

"What or who has caused an event to occur is essentially a practical question of fact which can be best answered by ordinary common sense."

But for test

A hypothetical counterfactual used to look at the situation and compare it to what might have happened if the defendant had acted in a way that was not negligent

Barnett v Chelsea & Kensington Hospital Management Committee

facts: hospital sent man away after he said he was sick after drinking tea, he died of arsenic poisoning

decision: the victim still would have died as too much time had passed and too much arsenic had been consumed, causation could not be established

McWilliams v Sir William Arroll Co Ltd

facts: C did not like to use safety equipment and D negligently failed to provide the equipment

decision: since C did not like to use safety equipment, the injury still would have occurred, causation cannot be established

Summers v Tice

facts: man was shot while hunting birds, the two potential Ds were using the same type of gun/bullet, so it was impossible to identify who shot

decision: burden of proof shifts to D. If D can show their bullet did not cause the injury, they would not be liable if they could not show that they would be jointly and severally liable

Fitzgerald v Lane

facts: C was hit by D1 when crossing the road and was flung and hit by D2, leaving him tetraplegic

decision: since it was impossible to determine which accident caused what harm, they were held jointly and severally liable

Sindell v Abbott Laboratories

facts: mother was taking a pill developed by multiple manufacturers which caused her baby to have cancer, too much time had passed so it was impossible to determine which manufacturer had developed the pill

decision: liability was made proportionate to market share rather than equal like in joint and several liability, manufacturer which makes 60% of the pills on the market would have a 60% liability

Baker v Willoughby

facts: C was in an accident injuring his leg and then was later shot in his leg and had to get amputated

decision: D should be liable to the full extent, as disability cannot have two causes

Jobling v Associated Dairies

facts: C developed a back injury at work and then later developed a disease he was predisposed to which also impacted his back

decision: HoL reduced the loss of earnings which could be received as there was another avenue for compensation (govt) compared to Baker

Bonnington Castings Ltd v Wardlaw

facts: employee exposed to silicon dust which was partially unavoidable but the employer did not clean the machinery leaving more dust that usual, it was impossible to determine which exposure caused the disease and the longer you are exposed to it, the worse it gets

decision: courts use material contribution to injury rather than but for test

what is the test for material contribution to injury

anything which isn't negligible is material

Holtby v Brigham & Cowan (Hull)

facts: C worked at many placed where he was exposed to asbestos and contracted asbestosis which worsens depending on how long you are exposed to it

decision: courts proportioned damages using material contribution to injury

Material contribution to risk

when a claimant is only exposed to one thing, which could trigger the disease, but it is not clear what exactly triggered the disease?

McGhee v National Coal Board

facts: C developed dermatitis due to dust that was not washed quickly enough as D did not provide shower facilities and C had to cycle home

decision: since dermatisis does not worsen the longer you are exposed to it, the courts used material contribution to risk If the claimant shows the defendant's negligence materially increased the risk of the harm being suffered (rather than materially contributed to the development of the disease), the defendant would be liable

Wilshire v Essex Area Authority

We should only turn to McGhee when there is a single plausible cause of injury and a non-progressive disease (does not worsen with exposure)

Fairchild v Glebhaben Funeral Services

facts: C developed mesothelioma which was non progressive and it was impossible to determine which employer's exposure caused the cancer

decision: all defendants materially contributed to the risk so they were held jointly and severally liable

When is material contribution to risk available

1. Science cannot establish but-for and

2. Risk arises from a single type of harm

Baker v Corus

facts: C developed mesothelioma from exposure to asbestos; he was employed by D and self-employed at one point

decision: courts reduced the amount of damages C could receive to be proportionate to the risk of developing mesothelioma based on the amount of time C was employed by the defendants

s3(2) Compensation Act 2006

In mesothelioma cases, liability is joint and several

In other cases, liability is proportionate

Sienkiewicz v Grief (UK) Ltd

Facts: C was exposed to asbestos at work and in the general atmosphere without fault of her employer

decision: Fairchild applies even when there is only one employer, and only one cause of the exposure is tortious, any material contribution to the risk is relevant, even when it is a small increase

Loss of chance medical negligence scenario

Medical negligence scenario:

A goes to the GP and says they have a weird rash

The GP sends them away

A discovers he has cancer; if it had been discovered earlier, there was a 90% chance of full recovery, but because of the GP sending him away, there is only a 45% chance of full recovery

Should A be able to claim damages for the 45% chance of recovery being lost

Liability is proportionate; rather than the GP being liable for the full damages, they are only liable for the 45% loss

Hoston v East Berks

facts: C was misdiagnosed by the hospital and later lost the abaility to move his hip, had he been diagnosed properly there was a 25% chance of making full recovery

decision: it was impossible to bring a claim for loss of chance, injury had to be proven on the balance of probabilities

Gregg v Scott

For loss of chances cases, you have to consider:

1. What are the chances of recovery? (has to be over 50%)

2. Have the damages materialised?

- If you have instances where before negligence the chances were over 50% and then dropped to below 50% and some of the damages have already been materialised, then you could have a claim

Chester v Afshar

facts: patient was not informed about the 1-2% chance of serious disability after surgery and said if she had been informed she would have gone ahead with the surgery anyway

decision: The claimant could recover due to the failure to be properly informed rather than due to a loss of chance

This would not apply where the procedure was negligent or if the patient would have gone ahead with the surgery if she were properly informed.

Remoteness

Defendants are liable for all of the direct consequences of their negligence — Polemis and Furness, Withy & Co Ltd [1921]

Wagon Mound No .1

facts: a crew carelessly allowed for furnace oil to spill onto water which caught on fire, following Polemis all Ds were liable

decision: The new test is: reasonable foresight of the type of damage

determine what a foreseeable type of damage is from the standpoint of a reasonable person in the position of the defendant at the time of the breach

The Privy Council held that damage caused by the furnace oil igniting was not foreseeable, as science at the time said that the oil would not catch fire on water

Smith v Leech Brain &Co

facts: C was burnt at work which led him to develop a cancer he was predisposed to

decision: eggshell skull rule, you take you rvictim as you find them

D was still liable.

- If, without this vulnerability, the negligence would not result in any harm, the type of harm is too remote

- Since we can predict there will be some type of bodily harm (whether it be a burn or cancer), the defendant will be held liable

Lagden v O'connor

facts: D caused C to get into a car accident and C had to use a credit scheme to insure a new car

decision: it is reasonably foreseeable that C would need a new car, and it is not too remote that C was financially vulnerable. D had to compensate for all losses

Hughes v Lord Advocate

facts: two boys climbed into a manhole and trip over a paraffin lamp, causing an explosion

decision: Liability is imposed where the type/kind of harm is foreseeable (burns) even if the exact mechanism (explosion) is unforeseeable, and even if the damage is more severe than expected, so long as it is the same type of damage

Jolley v Sutton LBC

Remoteness does not require the defendant to foresee the precise manner in which the injury could come about or its exact extent, just the type of damage

Foreseeability

the chance of a risk materialising → if the chance is too remote, it is not foreseeable

Scope of duty

whether a certain kind of conduct/risk falls within the need to act with care

Manchester Building Society v Grant Thornton

Establish the scope of the duty of care objectively, given the relationship between the parties

If someone is asking for advice/info from a professional, the purpose of the duty would be deduced

E.g. if you go to the GP to see them about your knee problems and you later injure your knee, this is within the scope of the duty of care. If you later develop an unrelated cancer, this is outside the scope of the duty of care

advice

providing all the relevant information for a decision

information

providing some of the relevant information to make a decision

Khan v Meadows

facts: pregnant women was misinformed about haemophilia and gave birth to a child with haemophilia and autism

decision: The scope of duty is related only to the nature of the service the defendant has undertaken to provide the claimant → providing information about haemophilia not all risks related to the pregnancy, there was compensation only for the haemophilia and not autism

Intervening Act

A set something in motion, but B swooped in and caused the injury

The effect of B coming in means there is a break in the chain of causation, and A is not held liable

Categories in which there is a break in the chain of causation

1. Natural phenomenon breaks the chain of causation

2. A third party intervenes

3. The claimant themselves does something to break the chain of causation

Carlsogie Steamship Co v Royal Norwegian Government

facts: D's ship collided with C's, but the ship remained seaworthy until he encountered a storm

decision: C would have encountered bad weather regardless of the initial damage, and it was the bad weather rather than the collision that led to the loss of the boat; the weather broke the CoC

Stansbie v Troman

facts: Stansbie was asked not to leave Troman's house alone, unlocked, but did so, and it was robbed

decision: D had assumed an obligation to protect the house and assumed a DoC not to leave the house in an insecure state so there is on break in the CoC

Dorset Yacht v Home Office

facts: young offenders damage some yachts

decision: there was a special relationship between D and the third part so there was no break in the chain of causation. For intervening acts an action must be very likely to happen to not break the CoC, it was very likely that the boys would try to escape and cause some damage

Perl (Exporters) Ltd v Camden LBC

LJ Goff lists several different grounds where, despite the actions of the third party, there is no break in the chain of causation:

1. Plaintiff assumed a duty of care

2. If there is a special relationship between the defendant and a third party, involving control

3. Special duties that come under the Occupiers Liability Act → the defendant contributed to the creation of a nuisance

4. Vicarious liability

5. The defendant presents the third party with the means of committing the wrong in circumstances where it is very likely they will do that

Rescuers and the chain of causation

Ordinarily, a rescuer's negligence is not an intervening act as risks which may be negligent must be taken in the process of rescue

However, if the rescuer acts recklessly rather than negligently in relation to their own safety this may breack the chain

When is the chain of causation broken?

If the sequence of events is not natural following from the first defendant's negligence → it is not reasonably foreseeable, → it is a break in the chain of causation

CORR v IBC Vehicles Ltd

facts: C committed suicide after developing clinical depression from a work accident and not being cared for by employers

decision: novus actus has a rationale of fairness; it is not fair to say the decision to commit suicide was a free, voluntary choice because it was a result of the depression/negligence of employers

Mckew v Holland & Hannen Cubittts

The defendant has to do something so unreasonable that their actions would be unforeseeable to break the chain of causation

Gray v Thames Trains Ltd

facts: C was in a train accident and suffered PTSD and killed a man, he sued the company for the psychological and physical injuries and loss of earnings while locked up

decision: C's actions were an intervening act, you cannot use tort law to exonerate yourself from murder

Stapleton

argues we should use the NESS test to assess causation

- asks whether each person's contribution was a necessary part of a sufficient set of causes.

Lahav

the law needs to stop pretending it can always find a definitive yes/no answer on causation when the reality is genuinely uncertain.

Gilboa

- there is a gap in tort law where a negligent defendant could have also acted in several lawful ways, making it impossible to know if their negligence actually changed anything.

- Courts lack proper tools for this and disguise value judgments as factual causal findings rather than being transparent about it.