Causation and remoteness Stapleton argues that the causation inquiry consists of two strands the first hurdle

e is establishing factual causation (but for). If this is satisfied then claimant must show that defendant should be legally responsible for the loss. Note that it is important, as Stapleton points out, that the second stage is a normative inquiry, and that drawing the line between recoverable and irrecoverable damage inevitably requires, and reflects, a value judgement as to the proper limits to liability Factual Causation this is the most difficult area. Remoteness is not strictly speaking causation. We have two lines of caselaw: Loss of chance and Fairchild 1. The but-for test This is established on the balance of probabilities: if it is more likely than not that an event was the cause, it is treated as if it were the cause. Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 Facts: In this case there was a night watchman who went to the casualty department of hospital vomiting after drinking tea. Nurse on duty went to see dr on duty who told her to tell claimant to go home and visit own GP i.e. sent away without examining. He died later that day from arsonic poisoning. Did hospital breach duty of care to plaintiff? Yes. But on the evidence, by the time he got to the hospital he was going to die anyway, so the breach did not cause the death. The balance of probablities was simple here either the Dr killed him or the arsonic killed him. 2. Challenges to the orthodox but-for approach (a) Loss of a chance the question to bear in mind throughout is what is the difference between a loss of a chance and an increase of risk? Hotson v East Berkshire Area Health Authority [1987] AC 750 Facts: plaintiff was 13 year old boy who injured hip from a fall from a tree and was taken to hospital run by D health authority. His injury was not diagnosed and after suffering severe pain for 5 days he was taken back to the hospital, injuries later developed into a seripus deformity to his hip. Trial judge found that 25% chance that with proper medical treatment then he would have avoided the damage to his leg and awarded him 25% damages he would have received if he has should the damage was caused by Ds negligence. Why was this not a loss of chance case? Said that what had happened to him had occurred at the fall. The moment he fell out of the tree the dye was cast so to speak. 75% chance that nothing the hospital could do would make difference The point is does he have enough blood vessels in his leg to avoid necrosis? The answer to this is binary ether yes or no and moreover the answer is no as soon as he falls out of the tree. On balance of probabilities either he would or he wouldn't have blood vessels and hospitals actions would make no difference. It is if you like between Mr Hotson and the tree rather than Mr Hotson and the hospital. Gregg v Scott was different Facts: defendant misdiagnosed a lump under the claimants left arm as harmless; it was in fact cancerous, and the misdiagnosis lead to a delay of 9 months to treatment, during which time the disease had spread. Claimaint sued in loss of expectation of life. Claimants

prospects of recovery would have been 45% i.e. less than even if proper diagnosis took place. the delay reduced the likelihood of claimants survival to 25%. Lord Nicholls dissenting: when patient can recover damages if his initial prospects are over 50% he argues was unfair as in either case the doctor as negligent. the loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of 55% prospect of recovery. I would uphold that a patient has a right to a remedy as much as where his prospects of recovery were less than 50-50 . (his reasoning is below) Medical negligence: Mr Gregg must prove tat on the balance of probability his medical condition after the negligence was worse than it would have been in the absence of the negligence. He would have allowed the claim saying it is irrational to distinguish between a 45% and a 55% chance in a medical context. There is an important point, which Lord Nichols should have pressed i.e. in that in 45% cases the doctors duty would be hollow. He reveals a way of deciding Gregg v Scott in a satisfactory manner. Take the following example: If you are taken to casualty at 5 in the morning, the assumption of responsibility generates the duty of care in law. The doctors liability is therefore liable to the extent that he has not made you better off to the extent that he can to the best of his ability and skill. The whole point of assumption of responsibility is that conduct raises the standard of care. Ordinarily in tort only liable to the extent of making worse off however we have an assumption of responsibility, which generates a duty of care that is higher, that is owed to the population at large. Identifying a lost chance in medical negligence cases: cites Chaplin v Hicks. The cases which Lord Nichols relied upon are contract cases. In Chaplin, beauty contest, in breach of contract Miss Chaplin is denied of going ot the next round and she thus cannot win. She sues him for the loss of a chance of winning a beauty competition. Contracting parties are liable to the expectation- both contract and assumption of liability are based on consent which generate rights. baroness hales argument thus would have been beside the point; we are not carrying doctors and patients are an exception but the assumption of responsibility raises the standard of care. Baroness Hale: unwilling to transform the law of tort (concerned with outcomes) to a law concerned with risks. She gives an illustration with regards to the law of damages. Mr Greggs argument is that lets say we have 20% reduction in his chances then he should be able to claim 20% of damages. The law of damages means that if your chances are 51% you recover 100% of damages. Baroness hale says that a claimant who can prove balance of probabilities they must only be able to recover the damages they have been able to prove i.e. 51% thus successful claimants would recover less than 100%. Her policy argument is that what may seem like justice for the few will in fact be injustice for the many. This is a powerful policy argument. Lord Hoffman: the material issue in Gregg was no different from that in Houston; in both cases the relationship between the negligence of the defendant and the beneficial outcome the claimant hoped to achieve was shrouded in uncertainty, and the law dealt with uncertainty through the burden of proof. He disagreed with Lord Nicholls, who drew a distinction between the evidential uncertaint in Hotson and the scientific uncertainty in Gregg. Gregg was a case however where the adverse outsome to which the loss of chance related (i.e. death) had not occurred and thus the tossed coin was still in the air, not the back of the hand.

Lord Phillips also part of the majority, rejected the claim for a loss of chance on the basis that the adverse pucome was still prospective and he was influenced by the consideration that a pateints prognosis is likely to vary day by day. The very fact that the claiant had survivied until the date of the HoLs hearing demonstrated that hi chanced of surviving cancer-free from 10 years from the date of his onitial treatmemt were significantly higher than the 25% figure settled upon by the trial judge. Commentary: the attraction of the but-for test is its simplicity however it assumes that a definitive answer can be given to the question. The reasoning of the majority of Law Lords differed greatly. So this was the result: Hoffman could not distinguish the case form Hotson Hale saw rhe case as differet to hotson but rejected the award for damages for loss of chanc in the coin in the air scenario Phillips saw it distinguishable from Hotson, saw Hotson as a claim for the adverse outcome rather than the loss of a chance. He rejected the claim in Gregg as the coin was still in the air. Lord Hope who was also in the minority found an alternative ground - as the negligence was responsible for some physical growth the growth of the tumour this constituted damage so as to complete the action in negligence, and the lost chance of avoiding cancer could be claimed as damage consequential upon the physical injury Damages for loss of a chance after Gregg (finish reasing on 223/224) (b) Material contribution to injury Bonnington Castings Ltd v Wardlaw [1956] AC 613 Cumulative disease: the more the exposure the greater the chances. Pursuer complained that, after working in Ds workshop for 8 years, he contracted pneumoconiosis as a result of the inhalation of silicone dust. The dust came from 2 source: some from the operation on pneumatic hammer and as there was no known protection to this they were not negligent. The other way dust was caused was by the workings of the swing grinders whch had not been properly maintained. The issues for the HoLs was whether the defenders negligence and breach of statutory duty caused the pneumoconiosis. Held: where the claimant suffers a disease which is due to the cumulative exposure of substance, only part of which is attributable to Ds negligence, then only need to show that the breach made a material contribution which lord Reid defines as a contribution which falls outside de minimus i.e. more than a tiny bit. In this case damages were recovered in full i.e. for all the effects of pneumoconiosis. Now however CoA has held that damages will only be awarded reflecting the extent of the defednats wrongful contribution to the disease (Holtby v Bringham & Cowan (Hull) ltd). important to notes that proportionate damages may be awarded only where the claimants injury is divisible e.g. d1 breaks Cs arm and d2 breaks Cs leg

(c) Material Contribution to Risk

McGhee v National Coal Board Bonnington is entirely orthodox and not exactly problematic. The root of the difficulty is McGhee. Facts: pursuer sent by defender (employer) to clean brick kilns which meant that he was exposed to a brick dust. This exposure was not negligent. However the employer failed to provide adequate shower facilities so had to cycle home before the dust could be washed off. Dermatitis caused the medical evidence showed 1) dermatitis had been caused by working conditions in the kilns and 2) fact that the worker had to exert himself further by cycling home as brick dust adhering to his skin added materially to the risk that he might develop the disease.

Root of claim that employers lack of provision of shower facilities has contributed to dermatitis but he cannot show that the lack of shower facilities links to dermatitis but can show that the lack of facilities links to the RISK of getting dermatitis. Lord Reid: in a case like this we must take a broader view of causation. From a broad and practical viewpoint I can see no substantial difference between saying that what the respondents did materially increased the risk of injury to the appellant and saying that what the respondents did made a material contribution to his injury. This statement is effectively the root of the problem in the law he equates the two different things in the eyes of the law. This is at the heart of the matter. Fairchild v Glenhaven Funeral Services Ltd 2003 Facts: three claimants had eache worked for several employers for a substantial period during which time they were exposed to asbestos dust. x amount of asbestos fibres are in the air and there is no direct link between increasing the number of fibres in the air and getting mesothelioma: Non cumulative- can be caused by the inhalation of a single fibre. Some of the employers had long since gone insolvent especially as there is a long latency period with mesothelioma. Can only show that the employer materially contributed to the risk of getting mesothelioma Held: joint and several liability and so D would try and regain the amount coughed up from their tortfeasors however, as they had gone insolvent this did not occur they were paying more than strictly speaking than they could be liable for. It is important to note that the issue of proportion was not argued in Fairchild. The House just assumed that the rules of normal liability would be applicable. Lord Bingham: I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (not asbestos) claims by employing those who has previously been exposed o excessive quantities of asbestos dust. Lord Hoffman: affirms Lord Reid in McGhee treat material contribution to risk as if it were material contribution to the injury itself. Barker v Corus UK Ltd 2006 Facts: appeal concerned a number of cases where employees had died from mesothelioa as a result of exposure to asbestos dust in the workplace. In a nutshell the issue is about the proportion of damages and the house says that the appropriate measure of damages is

several liability. The defendants in all the cases appealed against the finding that liability imposed under Fairchild principle was joint and several, arguing that the liability should only be proportionate to the risk that was created by their negligence. Held: as causation was satsiied by the creation of a rsk of ijury rather than causing the injury itself a departure from orthodox rules od causation it was appropriate that the extend of Ds liability should be limited by the extend of that risk. Lord Scott: Fairchild is explained as a pragmatic judicial response to what would otherwise have been an unjust and unsatisfactory denial of a remedy to a mesothelioma sufferer whose disease has been caused by one or other of a number of wrongdoerseach of whose breach of duty may have caused the diseaseFirchild cannot be taken to have established an overarching principle in the law of tort.

(Lord Bingham) employers will be held liable to the extent they were negligible i.e. several liability. Lord Rodgers dissent: according to Lord Rodger awarding proportionate damages in a Fairchild- type case would in effect be allowing for recovery for loss of chance which was rejected in Gregg v Scott. Also shifted risk of whether or not D was insolvent onto the claimant i.e. if D1 and D2 each owed 50% and D2 had become insolvent, cliamantonly able to recover 50%. The approach accords with a trend towards proportionate liability in cases of causal uncertainty in other European jurisdictions. Commentary The decisions in both Fairchid and Barker confirm McGhee as a very radical decision which allows claimants to bridge that evidential gap and recover damages even though they cannot satisfy the orthodox requirements of causation. The decision in Barker was badly received by victims resulting in the Compensation Act 2006. This reversed the decision in barker so section 3 provides that if conditions for imposing liability in Fairchild are met, the responsible person who is found laible for the exposure is liable in respect of the whole damage irrespective of the existence of other sources of exposure. As a result of s3, the impact of Marker us greatly reduced and is only applicable where the Fairchild principle takes effect outside the context of asbestos-induced mesothelioma. The evidential gap issue In McGhee and Fairchild the issue that there was an evidential gap a reason which prevent the plaintiff from satisfying the orthodox requirements of causation how then do we distinguish this gap from mere inability to prove causation as seen in Hotson, Wilsher and Gregg? Lord Scott in Gregg v Scott said distinguish between aetiological uncertainty, where medical uncertainty of potential cause is in question general scientific speculation about the causes of the disease. Wilsher: the potential causes of the plaintiff;s blindness were known, but it was uncertain which one was operative on the facts. However in McGhee and Fairchild there was uncertainty as to whether was caused by a single fibre r cumulative exposure. CONTINUE THESE NOTES PAGE 248

Multiple sufficient causes Supervening event question arsies as to whether it would be fair to impose liability for an injury that the claimant would have sustained anyway. Baker v Willoughby Facts: plaintiff injured in care accident which hurt his leg. Before trial shot by two robbers which meant his leg had to be amputated. One of the issues for HoLs was whether the defendant responsible for the original car accident was liable for the damage caused by that accident after the date of the second tort (the shooting). The question here is how ar it is proper to take into account the effects of a second injury which was in no way connected with the first. Lord Reid: man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of the injuryin this case the second tort did not diminish the losses he would suffer as result of the first tort. D must take victim as he found him this may entail paying larger compensation than was foreseeable. Jobling v Associated Dairies Ltd query as to whether the same result would be reached if the supervening cause was non-tortious. Facts: plaintiff injured back due to defendants breach of duty and them suffered spinal disease unrelated to the accident before trial. The question for the HoLs was whether damages were payable for loss of earnings after the time he suffered from the spinal disease. The House distinguished Baker (above) and decided that where a victim is overtaken before trial by a wholly unconnected and disabling illness, the decision has no application. They were critical of the decision in Baker but stopped short of overruling it.

CONTINUE AND FINISH CAUSATION

Remoteness Represents the laws attempts to place limits on liability for damage for which the defendants negligence has factually been cause bbut for which, as a matter of legal policy, no liability should be imposed. scope of risk approach If claimants damage is of type that might foreseeably result from the defendants negligence, it might be seen as appropriate to make D liable for that damage on other hand if the damage suffered bears no relation to the risk created, why should D be liable? This are is clearly influenced by judicial policy. Wagon Mound (No 1) [1961] AC 388 fundamental principle of remoteness Smith v Leech Brain & Co [1962] 2 QB 405 Burn triggers cancer. Applying wagon mound strictly would have suggested no liability no one would have anticipated such a burn would have caused cancer and death. But basically Hols says that wagon mound did not have these sorts of cases in mind. Applied the thin skull rule in that the Wagon Mound does not affect the fact that D sould treat his victim as he finds them. Hughes v Lord Advocate [1963] AC 837 Sequence of events. Small boy went into workmans tent which D had left negligently unattended. Found paraffin lamp, went down the man-hole and as he climbed back up he dropped paraffin lamp which exploded and he fell back in and suffered burns. It was argued for the defenders that the damage was too remote. damage by paraffin burn was foreseeable but not by paraffin explosion. This was rejected by the HoLs. Harm was found to be reasonably foreseeable.. The question the HoLS says is whether the type of harm was different to the type which was reasonably foreseeable. The precise sequence was not foreseeable doesn't matter. Damage has resulted from a known source of nature. The two cases show that once that claimant has suffered a foreseeable type or kind of damage it matter not that the extent of the injury was more extensive than was foreseeable, or that the injury occurred in an unforeseeable way. Jolley v Sutton London Borough Council [2000] 1 WLR 1082 Confirming a broder approach is preffered: may be for purposes of remoteness that the relevant type of injury can be as wide as simply physical injury which was supported in the House of Lords decision. in this case a child of 13 was injured when a derelict boat they were trying to repair fell on top of him. CoA said the damage was too remote however HoLs said that the appropriate classification of the risk was that children would meddle wih the boat at the risk of some physical injury Policy based limitations on liability Banques Bruxelles v Eagle Star [1997] AC 191 HoLs had to decide the extent of a valuers liability in respect of a negligence valuation upon which commercial lenders had relied in making loans. The CoA held that, in a case in which the lenders would not have made the loan is there had not been non-negligent valuations, they were entitles to recover the difference between the sum which they lent, together with a reasonable interest rate, and the net sum which they actually recovered. There valuable would be liable for whole risk of a transaction which, but for his negligence, would not have happened, and was liable for all the loss attributable to the fall in the market. Appealed to the HoLs. The question was therefore: what is the extent of the liability of a valuer who has

provided a lender with a negligent overvaluation of the property offered as a loan for security? HoLs: he is responsible only for the consequences of the information being wrong. A duty of care which imposes upon the imformant respnsbiility losses which would have occurred even if the information which he gave had been correct is not fair and reasonable as between the parties. If his duty is only to supply information, he must take reasonable care to ensure that the information is correct and if he is negligent, will be responsible for all the foreseeable consequences of the information being wrong. FINISH PAGE 282 COMMENTARY ON THIS