Lecture 8 Causation

8/10/2019 Lecture 8 Causation

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These causation notes have been updated! Questions to:

[email protected]

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Damage Causation:

Factual causation

But-for test Exceptions to but-for test

Concurrent causes

Separate causes

Successive sufficient causes

Scope of liability for consequences Novi actus intervenientes

Acts of C

Acts of third party PTO

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Remoteness of damage

Tested by foreseeability

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Actions on the case (incl. negligence) requireproof of damage.

Damage is loss or harm occurring in fact. Suchloss or harm will involve an interference with aninterest recognised as capable of protection bythe law. In negligence, the kinds of recognised damage are physical loss (to person or

property), mental harm and financial loss.

The law does not permit recovery beyond cases in which the initial damage

is one of these kinds.

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Even where the harm is recognised, it mustbe more than trivial: de minimis non curat

lex. In British Coal, recovery for excess mucus with

associated bouts of expectoration

In Hunter v Canary Wharf, recovery for excessive

amounts of dust trodden into fabric of carpet.

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In Rothwell v Chemical & Insulating Co, HoLaffirmed a number of important propositions: Cs had not suffered any form of compensablephysicalharm.

The mere riskof physical injury arising in the future was not a form ofcompensable harm.

There could be no recovery for meregrief or anxiety. These temporaryemotional states the law expects persons to endure withoutcompensation.

Court rejected the claim that it was permissible to aggregatethevarious hurts that Cs had suffered the pleural plaques and theanxiety derived from fear for the future because the sum wasgreater than its individual parts. Lord Scott put it most bluntly instating that nought plus nought equals nought.

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To prove negligence, C must show a causal link

between Ds failure & Cs damage.

Proof of causes is different from that in science:

Exercise has a normative dimension: the need to

attribute legal responsibility to persons A number of persons at various stages might be

responsible for the same damage.

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The first issue is one of factual causation Ordinarily, the court must find that Ds

breach was a necessary condition of theoccurrence of the harm: eg, but-for test.

This is a test of logical causation in fact. It is tested on the balance of probabilities.

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Concerned with counterfactuals

ie, hypothetical world in which Ds failure is taken

out of consideration to determine whether Cwould still have suffered harm

Ask whether, but-for Ds breach, damage would

have occurred.

If no, breach a cause (made a difference)

If yes, breach not a cause (made no difference)

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Unsatisfactory in a range of cases, eg:

evidential gap cases evidence not sufficient to

determine questions of factual causation over-determination cases eg two fires case

successive cause cases one event after another

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Two or more factors operating concurrently

where the court cannot tell exact contribution of

each to damage

Bonnington Castings v Wardlaw:

Two kinds of dust (guilty & innocent)

Could not tell proportion of each

Test: look for material contribution todevelopment of damage

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McGhee v Coal Board:

Two factors: dust & unavailability of showers Could not tell if latter material

Test: look for material addition to riskof injury

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Fairchild v Glenhaven Funeral: Court prepared to apply McGheeprinciple, looking for

material addition to risk of injury

There was a risk that this would involve an innocentemployer being found liable; but it was better toaccept that risk than to let an injured employee gouncompensated.

This is not treated as an inference of fact ofcausation; it is a pragmatic decision

Nothing said about whether defendant A should beliable for all damage

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Barker v Corus (UK) plc

This decision delimits the operation of Fairchildcase:

(1) It is not the case that Ds in breach must havebeen, between themselves, the cause of allof Csloss. Fairchildcan apply where C was exposed todisease either by a non-negligent party or by C

him/her-self acting negligently (2) However, in each case the agent to which C was

exposed by the parties must have been the same orvirtually the same.

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Sienkiewicz v Greif

C exposed to small amount of asbestos fibres

from Ds negligence and also to environmental(non-tortious) asbestos pollution

Fairchildexception applies in cases where only

one D is proved to have exposed the victim to

asbestos, but she was also at risk of developingthe disease from low-level exposure to asbestos inthe general atmosphere: [113].

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Sienkiewicz v Greif The possibility that mesothelioma may be caused [by]

the cumulative effect of exposure to asbestos dust

provides a justification ... For restricting theFairchild/Barkerrule to cases where the same agent, oran agent acting in the same causative way, has causedthe disease, for this possibility will not exist in respect

of rival causes that do not act in the same causativeway.

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At to liability, Explanatory Memo states: The Act reverses the effects of the Barkerjudgment to enable claimants,

or their estate or dependants, to recover full compensation from anyliable person. It will then be open to the person who has paidcompensation to seek contribution from other negligent persons.

As to contribution, the Act provides forapportionment between liable persons on the basis

of length of exposure unless the court determines

that an alternative basis should be adopted.

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Wilsher v Essex AHA:

It is one thing to treat an increase in risk as equivalent to themaking of a material contribution where a single noxious

agent is involved, but quite another where any number ofnoxious agents may equally probably have caused thedamage: Lord Bingham in Fairchildcase.

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Two+ factors in succession (one after other)both of which add to damage & are of

separate origin. Performance Cars v Abraham:

D1 bumps into car; needs re-spray

D2 bumps into car before re-spray

D2 not liable; no additional damage

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Performance Cars v Abraham:

Lord Evershed said that the necessity for re-

spraying was not the result of D2s wrongdoingbecause that necessity already existed. The Rolls

Royce, when D2 struck it, was in a condition which

already required that it should be re-sprayed.

Thus, the damage claimed did not flow from D2swrongdoing

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Baker v Willoughby: D1 negligently injures leg

D2 shoots C; leg amputated

Lord ReidIt would be unjust to make D2 liable for adegree of injury already subsisting. Following

Performance Cars, D1 must pay for all the damage

caused by him but no more. D2 is not liable for any

damage caused by D1 but must pay for any additional

damage caused by him.

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Baker v Willoughby: Lord Pearsonexplained why D1s liability would not be

reduced:

The subsequent event has not made C less lame or lessdisabled. It has made him more lame, more disabled andmore deprived of amenities.

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Jobling v Assoc Dairies D negligently injures

Onset of spinal condition

D argued that C was always going to suffer from

the spinal condition and was never going to have a

normal working life. The natural event was a

vicissitude of life, which couts normally take intoaccount, so as to reduce damages payable by atortfeasor acting prior to the onset of disease.

HOL agreed.

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Are Baker v WilloughbyandJobling v AssociatedDairiesboth good law or are they inconsistentwith each other?

InJobling, HOL was not prepared to overruleBaker. In fact, although the reasoning wascriticized, the result was held to have beencorrect. Lord Keith stated: In proceedings against the first tortfeasor alone, the

occurrence of the second tort cannot be successfullyrelied on by D as reducing the damages which hemust pay.

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The issue is whether there can be damages where thechance of avoiding the loss is less than 50%. In general, theanswer is no, although there is at least one category of

exceptions. In tort law, the burden of proof is the balance of

probabilities. In order to prove negligence, C must prove thepresence of the elements of negligence to the standard ofmore likely than not. To put a figure on it, C must prove the

50.1% probability that the elements exist. If C can do that, heor she wins the case and can obtain full damages. If he or shecannot reach the threshold, he or she obtains nothing.

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Loss of chance cases are concerned withwhether C can succeed despite not being ableto prove the presence of the elements of

negligence to the standard of more likelythan not. He or she can only prove causationof damage to a standard of less than 50%.

In general in such circumstances, the courtshave held that he or she loses the case anddoes not obtain an award which is apercentage less than 50%.

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Gregg v Scott: Almost any claim for loss of an outcome could be reformulated as a

claim for loss of a chance of that outcome. The implications of

retaining them both as alternatives would be substantial. That is, Cstill has the prospect of 100% recovery if he can show that it is morelikely than not that the doctors negligence caused the adverseoutcome. But if he cannot show that, he also has the prospect oflesser recovery for loss of chance. If... it would in practice always betempting to conclude that the doctors negligence had affected hischances to some extent, C would almost always get something. Itwould be a heads you lose everything, tails I win somethingsituation.

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The problem is also considered in Hotson vEast Berkshire AHA, where the outcome was

similar although various different types ofreasoning are evident. I think that Lady Halein Gregg v Scottprovides the best explanationfor why the claims are not permitted. L&O

have a long section of their chapter devotedto this issue.

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Gregg v Scottwas concerned with an event thathad occurred, although there was a questionabout whether there was any damage.

Other cases might arise. Where C has in fact proved that he or she has suffered

an injury caused by D, there may be a question ofquantification of future damage. The courts will have

to assess the effect of the injury on such things asearning prospects, costs of medical treatment etc.Although this is an uncertain process, there is nodifficulty in awarding those damages.

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Lecture 8 Causation

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