causation and novus actus interveniens

Reilly v Merseyside Health Authority

damages must past the de minimis threshhold to be recoverable

Johnston v NEI International Combustion

symptomless pleural plaques caused by negligent asbestos exposure isn’t actionable claim for personal injury

includes mere heightened risk of future asbestos-related diseases, and anxiety about the future

Dryden v Johnson Matthey 

FACTS: ‘platinum salt sensation’ experienced by employees. future exposure would likely trigger a severe allergic reaction. However, the condition itself was symptomless at that stage. company prohibited further exposure, leading to the workers being dismissed or redeployed to lower-paying jobs

RULING: damages claimable

RATIO:

• though asymptomatic, the damage suffered actually impaired the claimants: removed prior biological capacity to tolerate platinum

• change impaired normal bodily function by stripping away their ability to work in their chosen environment

asymptomatic cellular change can constitute damage if it impairs a person's bodily function or capability in a more-than-negligible way

Barnett v Chelsea and Kensington Hospital Management Committee

‘but for’ causation origins

FACTS: man went to hospital with arsenic poisoning and was sent away negligently. But the antidote had to be given within about 75 minutes, so he would have died anyway. Causation failed.

Mallet v McMonagle

factual causation, balance of probabilities must be determined as part of causation before assessing whether damages are recoverable

anything more than 50% is considered certain, anything less is otherwise

probability need not be certain, only probable Bull v Devon, Barnett

Clough v First Choice Holidays and Flights

D need not be the sole cause of the damage suffered

CNZ v Royal Bath Hospitals NHS Foundation Trust

critiques the ‘but for’ test as imperfect

Hotson v East Berkshire Health Authority

cannot claim for fractional damages, all or nothing principle

FACTS: claimant was a child who fell from a tree and injured his hip. The hospital failed to diagnose a fracture and sent him home. Five days later, he returned with increased pain. The doctors then correctly diagnosed the injury and treated him. Despite treatment, he developed avascular necrosis of the hip joint, leading to long-term disability. If the claimant had been correctly diagnoses during the first visit, he had a 25% chance of avoiding the necrosis. The claimant sued the health authority in negligence

RULING: damages not recoverable

RATIO: claimant failed to prove on the balance of probabilities that the hospital’s negligence caused the disability, because there was a 75% chance the necrosis had already become inevitable by the time the boy arrived at hospital.

Hoyle v Hampshire

failure fo balance of probabilities

FACTS: 60-year-old wild cherry tree (Tree 572) collapsed onto his car on the A287 in Hampshire during severe weather and waterlogged ground conditions and killed driver. estate brought a claim under the Fatal Accidents Act 1976 alleging common law negligence and breach of the Highways Act 1980

RULING: causation failed, damages not recoverable. no one legally to blame for the accident

RATIO:

• collapse was caused by extreme weather and waterlogged soil leading to root heaving, rather than any failure or neglect by the landowners or surveyors

McGhee v National Coal Board

exemption from proving causation through balance of probabilities: material contribution to risk sometimes scientifically impossible to know whether D’s carelessness caused the harm, which would make C lose.

FACTS: worker got dermatitis from brick dust. His employer’s fault was no showers, so he cycled home still dusty. Nobody could prove the extra dust

RATIO:

• employers breached their duty by failing to provide washing facilities, which could have reduced exposure to brick dust. The evidence did not show conclusively that the absence of washing facilities caused the dermatitis, but it did show that the negligence materially increased the risk of it.

• In such circumstances, the law should not draw a fine distinction between increasing the risk and causing the injury. To require exact proof of causation would deny a remedy where negligence clearly played a role in the harm. A material increase in risk as enough to satisfy causation.

Fairchild v Glenhaven

exemption from proving causation using balance of probabilities, material contribution to risk

FACTS: Workers got mesothelioma after asbestos exposure from several careless employers. No one could say which employer’s fibres did it, but each increased the risk.

RULING: damages awarded

RATIO:

• claimant suffers a disease whose onset cannot be attributed to any particular or cumulative negligent event, the court will apply a different test of causation.

• All the claimant must prove is that the defendant materially increased the risk of the claimant suffering the injury.

• in McGhee, ruled that effect of the material contribution test was to reverse the burden of proof from claimant. in this case, judges disagreed because bringing such proof was already rendered impossible

Barker v Corus

apportionment in damages when multiple Ds liable for asbestos-related mesothelioma, usually separated in proportion to how much each D created to or increased the risk

Fairchild applies even when one of the exposures was self-inflicted or non-tortious

Section 3 of the Compensation Act 2006 reversed this decision for mesothelioma cases and restored full joint and several liability

Wilsher v Essex AHA

causation fails where there are too many causes to prove D’s liability

also one of requirements for McGhee/Fairchild exception: will only be established if only one agent caused an increase in the risk of harm

Chester v Afshar

exemption to causation test: doctor fails to warn about a risk and claimant would or might have had the operation anyway, but would have deferred it, taken advice, or used another surgeon

RATIO:

• legal duty to warn a patient of material risks exists specifically to protect a patient's right of informed choice

• exception applies strictly to the narrow scenario where a patient proves they would have deferred consent to weigh the risks, rather than rejecting the procedure outright

Corr v IBC Vehicles

psychiatric harm, not liable if duty falls outside of D’s scope, chain of causation isn’t broken if C acts on their own but it was D’s responsibility to prevent that act

FACTS: claimant’s husband was an engineer who suffered a workplace injury. The injury left him disfigured and caused him to suffer post-traumatic stress disorder and worsening depression. As a result, he committed suicide. The claimant sued under the Fatal Accidents Act 1976. The defendant, the man’s employer, accepted liability in negligence for the man’s initial injuries and the consequent psychiatric harm. However, they argued that any losses resulting from the man’s death should not be recoverable.

RULING: in favour of the widow. The defendant was liable for the man’s death in addition to his initial injuries, subject to an appropriate deduction for contributory negligenc

RATIO:

• Where the defendant owes a duty not to cause psychiatric harm, and the claimant commits suicide because of the defendant’s actions, this falls within the scope of the defendant’s duty

• D’s breach must lose its “causative potency”, and it must be fair and just to relieve D1.

• The act being unreasonable, reckless, deliberate or unforeseeable helps but none is required

Gregg v Scott

loss of chance in medical context

FACTS: GP missed a lump that was cancer. The delay cut Mr Gregg’s chance of cure from 42% to 25%, but he lost 3 to 2

RATIO:

• The majority said he was already more likely than not to lose anyway, so the law can’t compensate “possible” causation, and that would be for Parliament to change.

• The minority (Lord Nicholls) said treating chances under 50% as worth nothing would be absurd.

Kitchen v RAF Association

loss of chance, losing legal right is valued by the percentage change of winning the claim

FACTS: claimant consulted a solicitor, recommended by her husband’s employer, to file a case in relation to her husband’s death as a result of a local electricity company’s potentially negligent wiring. However, the solicitor failed to file the claim before the limitation period expired. The claimant sued the employers and the solicitor for damages from being unable to pursue the claim. The defendants admitted liability, but disputed damages: arguing that there was no guarantee that the claimant would have succeeded in her claim and won substantial damages.

RULING: held in favour of the claimant. Damages should be quantified based on the value of her lost right to su

RATIO:

• She did not need to prove on the balance of probabilities that she would have succeeded in negligence: it was sufficient that she had lost the chance to succeed.

Allied Maples v Simmons & Simmons

loss of chance, loss of economic opportunities must meet these conditions:

• C would probably have acted

• a real and substantial chance a third party would have conferred the benefit

• C would probably have accepted it
  
  

FACTS: Allied Maples, were a retail company seeking to purchase shops from another group of companies (Gillow Group). Simmons & Simmons acted as their solicitors in this matter. Simmons & Simmons wrote up a contract containing a warranty clause. This clause allowed Allied Maples to acquire part of Gillow Group without being bound by Gillow Group’s previous liabilities. However, during negotiations the warranty was deleted and replaced with a clause which did not provide this protection. This left the claimant open to substantial liability. Simmons & Simmons negligently failed to advise the claimant on the effect of the replacement clause. Simmons & Simmons argued that they should not be liable for their negligent advice, because it had not caused any loss. In particular, they argued that Allied Maples could not prove factual causation. This is because Allied Maples could not prove that if they had been properly advised, they would have successfully negotiated a better warranty clause (thereby avoided the loss). The trial judge disagreed, and held for the claimants.

RULING: dismissed the appeal. They held that causation was established. This was because there was a real and substantial chance that a better clause would have been negotiated

Wagon Mound (No 1)

test of legal causation: was some type of harm reasonably foreseeable?

FACTS: appellant’s vessel, the Wagon Mound, took on fuel oil at a wharf in Sydney Harbour. Through the engineers’ carelessness, a large quantity of oil overflowed onto the water and drifted towards a nearby wharf where two vessels were under repair. The owners of that wharf were conducting welding operations, which caused sparks and hot metal to fall into the water. Despite seeing the oil, the workers continued their repairs after being told it posed no danger. Two days later, floating debris in the oil ignited, spreading fire and causing extensive damage to the wharf and the vessels. The owners of the damaged vessels sued the appellant in both negligence and nuisance. The New South Wales Supreme Court held the defendant liable, arguing that the rule in Re Polemis made them liable for all damage flowing from the defendant’s tortious act, whether foreseeable or not. The defendant appealed to the Privy Council

RULING: overruled Re Polemis and held that the defendant was not liable.

RATIO:

• defendant is only liable for the reasonably foreseeable consequences of his tortious acts

• ‘to demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.’

Chaplin v Hicks

loss of chance, person can recover substantial (not nominal) damages for the loss of a chance due to a breach of contract, even if the final outcome depended on contingencies or third-party choices

FACTS: beauty competition, Chaplin missed the chance to compete and sued for breach of contract. Hicks contended that any damages were too remote and impossible to calculate because it was pure speculation whether Chaplin would have actually been chosen out of the final pool

RULING: damages recoverable

RATIO: difficulty in calculating a loss does not make it unassessable, and the loss of a genuine chance within a limited class is a direct, foreseeable result of the breach

Dayman v Lawrence

loss of chance

RATIO: Allied Maples Standard: The court evaluated whether the claimant proved on the balance of probabilities that she would have acted, and whether there was a "real or substantial chance" a third party (RBS) would have granted a beneficial outcome

appeal dismissed. causation was not established because the evidence failed to show Mrs. Fielding would have approached RBS or that RBS would have offered an acceptable settlement

Tindall v Chief Constable of Thames Valley

omissions must still pass ‘but for’ causation. they usually do because had the defendant acted differently, the harm wouldn’t have occurred.

Equitas v Municipal Mutual

duration of exposure to risk is the usual measure for asbestos-related claims and apportoinment where >1 D and reinsurance context

Clay v TUI UK

the more unforeseeable C’s act is, the more likely it will constitute a novus actus interveniens. must have ‘causative potency’

FACTS: was on a package holiday with TUI UK Ltd in Tenerife. After a defective sliding balcony door locked him out of his room for about 30 minutes, he attempted to climb across an outer ledge to reach an adjacent balcony (where his parents were staying) during a non-emergency situation. ledge made Clay fall 20 feet, suffering a fractured skull and serious injuries. sued TUI for breach of contract and negligence, arguing that TUI failed to maintain the balcony door properly under local safety standards

RULING: appeal dismissed

RATIO:

• TUI breached its duty by having a defective door lock; but Clay's own voluntary and dangerous attempt to scale a 20-foot ledge in a non-emergency was deemed utterly unreasonable and unforeseeable

Knightley v Johns

novus actus interveniens, multiple negligent defendants

FACTS: motorist overturned his car in the northbound Queensway tunnel and blocked one lane, with injured passengers partly obstructing the other. A bystander used an emergency telephone to report the accident. Police officers arrived, including an inspector and several constables. Confusion between police control offices meant that officers believed the accident might lie in the southbound tunnel. As a result, the police did not carry out any of the standard steps for dealing with an accident like this. This included a failure to close down the tunnel entrance. claimant entered the tunnel on his motorcycle, left to radio for ambulances, then re-entered by riding against the traffic based on an instruction from the inspector to return to the southern entrance and close the tunnel. The claimant was riding with another officer at 20 mph, lights and sirens on, adopting different positions within the lanes. Near the tunnel entrance, an oncoming car travelling at 35–40 mph swerved to avoid the leading officer and struck the claimant. The trial judge held that only the original motorist acted negligently and that the inspector and claimant acted reasonably. The motorist appealed.

RULING: motorist was not liable, and the inspector and chief officer were liable. polices’ acts broke chain of causation

RATIO:

• court accepted that riding against the traffic created serious danger. However, the claimant acted under an instruction and had little time to evaluate alternatives. His choice of position within the lane aimed to maximise visibility and followed a sensible rationale. The court agreed with the trial judge that the claimant should bear no responsibility.

• police had completely failed to follow standard procedure despite knowing these rules. The inspector forgot to close the tunnel and offered no explanation in evidence. His failure and his subsequent instruction placed officers in foreseeable danger and so were negligent

• inspector’s conduct introduced a new and independent source of danger. This broke the chain of causation: the injuries did not arise as a natural and probable result of the motorist’s negligence.

Horton v Evans

non criminal/negligible acts from third parties don’t break chain of causation

Carslogie Steamship Co Ltd v Royal Norwegian Government

FACTS: The complainant’s vessel, the Heimgar, was damaged in a collision caused by the admitted negligence of the defendant’s ship, the Carslogie. Temporary repairs were made in the UK, and the ship was certified to sail to New York for permanent repairs. During the Atlantic crossing, a heavy storm severely damaged the Heimgar. The shipowners claimed compensation for the 10 days of lost time/earnings attributed to the original collision damage

RULING: severe storm broke chain of causation

RATIO: extreme Acts of God can be novus actus interveniens, not regular storm

Sienkiewicz v Grief

exception to proving but for balance of probabilities within the McGhee/Fairchild material contribution to risk test

similar facts to Fairchild except that environmental exposure also caused material contribution to risk. test still established; causation won’t fail where environment contributes to the same agent

also authority for 5th requirement for material contribution to risk test: that claimant must prove that employer caused contribution to risk even if they can’t prove the balance of probabilities

King v King

one of the 5 requirements for the McGhee/Fairchild

must be proven that the employer didn’t take precautionary steps to reduce the risk of harm/damage suffered