Obligations, Tort - Negligence, Causation

Causation

Can either be in fact or legal, and must prove the injury to result from the negligent act.

(Non-)cumulative and (In)divisible claims

Cumulative - refers to events causing harm. Cumulative is an accumulation of actions over time, whereas non-cumulative is a singular event.

Divisible - refers to the injury, and whether the damage / harm can be divided, such as either having mesothelioma or not, or the degree of hearing loss experienced. In general, divisible injury brings several or proportionate damages, and indivisible brings joint and several liability from material contributions (excluding mesothelioma cases).

Causation in fact - The ‘but for’ test and Barnett v Kensington & Chelsea Hospital Management Committee (1969)

‘But for’ the negligence, would the injury have occurred? This may not be appropriate for every case, but is the most used. The burden of proof is on C on the balance of probabilities - but we cannot establish negligence if the injury would have occurred regardless. There are some issues with multiple potential causes, loss of chance, and successive causes here.

Barnett v Kensington & Chelsea Hospital Management Committee (1969) - three nightwatchmen drank tea laced with arsenic, but the hospital sent them all home without examination. One man died, but the medical professionals did not breach their duty in court, as the man would have died from the arsenic regardless.

Multiple potential causes in Wilsher v Essex Area Health Authority [1988]

After an premature baby was administered too much oxygen from a misplaced catheter, causing blindness - but the oxygen delivered was just one of 5 causes, and they could have contributed equally. Negligence could not be established in causation through probabilities (20%).

Material contribution to harm in Bonnington Castings v Wardlaw [1956] and Bailey v Ministry of Defence (2008)

Bonnington Castings v Wardlaw [1956] - Inhalation of silica dust led to pneumoconiosis in employee after employer failed to remove some of the dust. The disease is progressive, caused by a cumulative build up of dust. Some dust was innocent and part of the job, the rest was negligent and ‘guilty’ - on probabilities (50/50), though the but for test did not work = negligence.

Bailey v Ministry of Defence (2008) - C suffered brain damage from a cardiac arrest after aspirating her own vomit, from D’s failures in care. Their negligence was ruled a material contribution to the harm suffered.

Indivisible causes in McGhee v National Coal Board (1973)

Employee contracted dermatitis from a lack of adequate washing facilities for brick dust. The condition is not cumulative but prolonging exposure increases risk of harm - the innocent dust was that dust encountered at work, and the guilty dust was the same one after work. Causation was found, and negligence established.

This decision was rejected in Wilsher, with judges citing it as an exception to the rule of causation - this may have been for policy reasons or as there were other innocent causes in Wilsher.

Material contribution - Williams v Bermuda Hospitals Board (2016), Davies v Frimley Health NHS Foundation Trust [2021] and Michael Holmes v Poeton Holdings Ltd [2023]

Williams v Bermuda Hospitals Board (2016) - Delay in screening and diagnosis meant C developed sepsis and heart failure. There had been innocent and guilty sepsis - forming prior to scans and that attributed to negligence, so material contributions were found.

Davies v Frimley Health NHS Foundation Trust [2021] - an indivisible injury from one party’s negligence cannot amount to material contribution.

Michael Holmes v Poeton Holdings Ltd [2023] - employee exposed to unsafe levels of chemical led to Parkinson’s disease (indivisible - it is present or not), and material contribution can apply to this, but can be difficult to prove medically / scientifically.

Successive causes - Fairchild v Glenhaven Funeral Services [2002]

Employee developed mesothelioma from asbestos exposure under three employers - there was disagreement of whether this is divisible (where there be no claim, since it would be unfair for all three to pay full amount) or indivisible (where the negligent party needs to be found) under the single fibre theory.

Material contribution was found and each D paid in full (since otherwise hiring and exposing exposed employee’s would be unfair) - this was an exception, and did not overrule Wilsher.

This inspired s3 Compensation Act 2006 - Ds are held jointly and severally liable, even when one had gone bankrupt.

Proportionate damages for multiple causes in Barker v Corus UK Ltd [2006]

Four employers all exposed C to asbestos - one was a period of self-employment and another was insolvent, meaning only the percentage of damages from the other two employers could be recovered - at a cost to the claimant. This was controversial, and has been overruled by statute, since it was unfair to mesothelioma victims.

Unjust results in Sienkiewicz v Grief (UK) Ltd [2011] and Chester v Afshar [2005]

Sienkiewicz v Grief (UK) Ltd [2011] - Employer exposing employee to asbestos was a material contribution to harm suffered, though it was only 18% increase in risk.

Chester v Afshar [2005] - C developed a severe spinal condition following an operation which she was not warned of, and would have sought alternatives otherwise. The failure to disclose was a breach on policy grounds to protect patient autonomy, NOT causation.

Mesothelioma recovery of damages

‘But for’ test is unjust - we cannot identify the guilty fibre, so liability is based on material contribution to risk of the disease - each defendant is liable for the indivisible harm, so C can claim against one, and D can sort contribution between themselves.

Loss of chance, Hotson v Berkshire Area HE (1987) and Gregg v Scott (2005)

This is when negligence increases the likelihood of a poor outcome for C. There are some policy concerns for being too lenient, in that loss of chance claims are unfair.

Hotson v Berkshire Area HE (1987) - 13y/o boy fell from tree and injured his hip, and doctors failed to notice vascular necrosis until 5 days later. When we developed paralysis, the earlier diagnosis had a 25% of preventing this. On probabilities, the claim failed, as there was 75% it would’ve been paralysed anyway.

Gregg v Scott (2005) - C told lump under arm was benign, then cancerous a year later. Chances of 10-year survival was 25%, compared to 42% the year prior - the claim failed on probabilities, since the survival rate was never above 50% to begin with.

Supervening causes in Baker v Willoughby (1970) and Jobling v Associated Dairies Ltd [1982]

Baker v Willoughby (1970) - C was in a car accident, then shot in the injured leg, causing it to be amputated. D argued no liability, sine the leg no longer existed - but their damage contributed to the amputation. D was liable for the whole injury, partially because the robbers could not be found.

Jobling v Associated Dairies Ltd [1982] - C injured back at work, reducing earning capacity, then later developing a condition which forced C to give up work - no liability past the development of the disease, since it was a mere hardship of life. This differs form Baker, where the connection between the injuries was stronger, and an amputation is arguably worse than spinal disease.

Legal causation - Remoteness in Re Polemis [1921] and The Wagon Mound (No 1) [1961]

Re Polemis [1921] - No longer seen as good law, but D was liable for ships burning down after a serious of unlikely circumstances.

The Wagon Mound (No 1) [1961] - Ships burned down after oil leaked from a load, creating a film over the water, and they worked with tools that created sparks. Liability would have been unfair, so reasonable foreseeability was used instead - this refers to the kind of harm incurred (not the extent).

Reasonable foreseeability in Hughes v Lord Advocate (1963) and Tremain v Pike (1969)

Hughes v Lord Advocate (1963) - workmen left paraffin lamps by a manhole, which children played with, knocking into the manhole where a child fell in after an explosion. The burns experiences were foreseeable, although they came about in an unusual way, so there was liability.

Tremain v Pike (1969) - C worked on a farm infested with rats, was bitten and contracted a disease. D was not liable for the disease, only the bites, since it was not foreseeable as the disease is a rare complication of bites.

Reasonable foreseeability in Jolley v Sutton London Borough Council [2000] and Bhamra v Dubb (2010)

Jolley v Sutton London Borough Council [2000] - Two teenage boys explored an abandoned boat, with one becoming paraplegic after falling. The actions of children playing and messing with the boat were foreseeable, though the extent was not - D was liable.

Bhamra v Dubb (2010) - D provided food for a Sikh wedding, which prohibits eggs. C ate a dish which contained eggs and died from anaphylaxis - D was liable, since guests would assume the dishes to be egg-free.

‘Eggshell’ skulls and Smith v Leech Brain Co Ltd [1962]

This includes where luck helps to create worse outcomes, including for pre-existing conditions.

Smith v Leech Brain Co Ltd [1962] - C was burnt by molten metal from D’s negligence, then developed cancer due to a pre-cancerous condition, and died. D was liable for all consequences of the negligence.

Intervening acts - Knightly v Johns [1982] and The Oropesa [1943]

These can break the chain of reasoning, with a later act becoming the ‘real cause’.

Knightly v Johns [1982] - D caused an accident in a tunnel, and police forgot to stop traffic, so police motorcyclists were injured when sent by a police inspector - this was an intervening act, meaning liability for C’s injuries (police motorcyclist) could not be traced back to D.

The Oropesa [1943] - D’s ship collided with another, and a lifeboat sent to rescue passengers sank, killing some - the liability for this remained on D, since rescue attempts are foreseeable in the circumstances.

Chain of reasoning - Rouse v Squires [1973], Civil Liability (Contribution) Act 1978 and Wright v Lodge [1993]

Rouse v Squires [1973] - A car-lorry crash made a lorry pull over, causing two more crashes when passing due to negligence - liability remained on the original negligent driver.

Civil Liability (Contribution) Act 1978 - Courts may apport damages between responsible parties.

Wright v Lodge [1993] - Using the statute above, Cs sued D1 for 10% of damages and D2 for the rest after a D1’s car broke down and failed to make it to the hard shoulder, colliding with a lorry (D2), which then tipped and killed and injured other road users.

Intervening act in medicine - Wright v Cambridge Medical Group [2011]

D1 failed to refer C to hospital and D2 misdiagnosed C, both resulting in damage to C’s hip - no chain of causation was broken, so the practice was liable.

Acts of the claimant - McKew v Holland and Hannen and Cubitts [1969] and Wieland v Cyril lord Carpets [1969]

McKew v Holland and Hannen and Cubitts [1969] - Employee suffered a leg injury due to employer’s negligence, but threw themself down the stairs, breaking an ankle and the chain of causation, and worsening the injury. This was so careless liability was removed from D.

Wieland v Cyril lord Carpets [1969] - employee injured from employer’s negligence fell down stairs accidentally (neck brace impacted ability to wear glasses), but liability remained on employer.

Acts of claimant - Corr v IBC Vehicles Ltd [2008] and Clay v TUI [2018]

Corr v IBC Vehicles Ltd [2008] - injury at work led to psychiatric illness and suicide, but D did not have a duty to prevent suicide = break in chain of causation.

Clay v TUI [2018] - C and family became locked out on a balcony, and C tried to climb to another balcony, fell and was injured - the act was so unreasonable and unforeseeable that liability was removed from D.