Causation of Damage Cases

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Bailey v Ministry of Defence [2008] EWCA Civ 883

Facts: Bailey developed gallstones when holidaying abroad. She was treated at a hospital when she returned, but wasn't treated very well. She later developed pancreatitis (which was not related to the hospital’s poor treatment). She was then transferred to another hospital and was in critical condition.

She seemed to be getting better, but when she drank some lemonade she got nauseous and vomited. Because she was so weak she could not clear her air passage and she choked. By the time she was resuscitated she had gone into cardiac arrest and had hypoxic brain damage. So she sued. The question was whether this was a natural event or was it due to the negligent treatment of the hospital? THere were clearly two causes of her weakened state, which caused the issue: the natural one (her pancreatittis) and the hospital's negligence.

Held: The court did not know which was the main reason for the resulting vomiting and brain damage. However, they held that Bailey should be able to receive compensation on the basis that, on the balance of probabilities, the tortfeasor materially increased the risk to Bailey. So there was sufficient causal connection for the defendant to be liable in negligence

Baker v Willoughby [1970] AC 467

Facts: Baker was hit by a car driving negligently, which seriously damaged his leg. He had to give up a job and because of the accident had to take up a menial job he did not like. At the new job, but before the trial, the claimant was shot in the same leg by some burglars meaning he had to have his leg amputated.

Held: The House of Lords held that the first defendant remained liable for the losses caused, which included the loss of wages after the amputation of Baker’s leg. There reasoning behind this was that had Willoughby not been driving negligently then Baker would not have lost his leg

Lord Reid: the claimant “is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of the injury. His loss is not in having a stiff leg: it is his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement… in this case the second injury did not diminish any of these.”

Dissent from Lord Pearson: he argued that if there is an additional tort then the second defendant should be liable for that

Barker v Corus [2006] UKHL 20

Facts: Like in the case of Fairchild, the claimant ad contracted mesothelioma after having worked for a number of different employers, ll of whom had exposed the claimant to asbestos negligently

Held: The House of Lords held differently to Fairchild:

  1. Each defendant could be held liable for exposing the claimant to asbestos dust (as was the case in Fairchild, and
  2. Each defendant could be held liable only for his/her relative contribution to the chance of the claimant contracting cancer i.e. proportional liability
    • In other words, it was said that it is for the claimant to show the proportions of each defendant's liability i.e. the House of Lords took the view that employers who expose employees to asbestos should be treated as several, not joint, tortfeasors
    • This was a really unpopular decision because it meant claimants (who were probably very ill) and/or family (who are bereaved) have to go about suing each defendant, essentially, individually

Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428

Facts: Three workmen had been drinking tea and they all got very ill. One workman went to hospital vomiting. He was seen by a nurse who telephone the doctor on duty. The doctor told her to send him home and contact his GP in the morning. The workman died 5 hours later from arsenic poisining. So the doctor had a duty of care and breached it, but the question for the court was whether or not that breach caused the harm

Held: The court used the 'but for' test: but for the doctor not attending would they have suffered the damage they did? It was held that even if the doctor had attended he would have died anyway, so the hospital was not liable i.e. there was no causation.

Chester v Afshar [2005] 3 WLR 927

Facts: There was a 1-2% risk of cauda equina syndrome during a surgery, but the doctors did not warn her of the risk. THe risk materialised. The question was, did the doctor’s failure to inf

Held: The court of appeal said yes, because if she had known the risk she would have delayed the treatment to think about whether or not to go through with operation and may even have sought alternative action. The House of Lords upheld the claim (3:2), but disagreed with the court of appeal's reasoning. The court said, in effect, that the patient should be able to make an informed choice and consent to the surgery; so the doctor not telling the claimant of the risk was negligent, as it did not allow the claimant to make a decision.

So on this policy reason that the surgeon should have warned her of the risk, the House of Lords held the defendant caused the claimant's injury i.e. vindicating her rights was proof of the defendant's causation

Cook v Lewis [1951]; Summers v Tice (1948)

Facts: One case was Canadian and the other was American. Both cases involved a concurrent cause of injury to the claimant, but the cause of the injury was indeterminate (see the case notes on this here)

Held: The court reversed the burden of proof in this type of case. In other words, the defenndant had to prove it wasn't their fault and they did not cause the injury. So the defendants were held to be jointly liable in the absence of evidence they were not. There are occassions where this approach will be applicable in the English law

Fairchild v Glenhaven [2002] 3 WLR 89

Facts: The claimant contracted cancer due to exposure to asbestos. The claimant had worked for many companies over the years who had negligently exposed him to asbestos. The precise time he got the cancer, howeveer, was uncertain so the responsible employer could not be identified.

Held: The House of Lords reasserted the principle in McGhee and found for the claimant: they held that the defendants materially increased the risk so were "jointly liable" because the did not know who caused the cancer. It was then up to the defendants to decide the proportion of liability i.e. as they were all liable they had to decide between them what percentage of the claim they owed to the claimant. This did seem a little harsh on the defendants (as they may not all have been responsible), but it was fair on the claimant

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CONTENT

Fitzgerald v Lane [1989] 1 AC 328

Facts: The claimant was crossing the road and was struck by car 1 and then by car 2, causing the claimant to suffer a neck injury. It could not be determined which car was responsible/caused the damage because both incidents happened so soon after each other

Held: It was held that both defendants were jointly liable and the claimant was held contributory negligent: so they each paid 1/3 to the damage caused

Gregg v Scott [2005] UKHL 2

Facts: A GP delayed referring the claimant for treatment for 9 months (the claimant had a lump under his arm he was concerned about). It turned out that the lump was cancerous and the claimant's condition deteriorated over time. That delay reduced the claimant's chance of surviving the cancer for another 10 years from 42% to 25%.

Held: The House of Lords held (3:2) that as the oriignal chance of surviving 10 years was less than 50%, the claimant could not recover i.e. it failed the 'but for' test

Hotson v East Berkshire HA [1987] AC 750

Facts: This is one of the "all or nothing" cases i.e. where it is more likely than not that the defendant caused the injury to the claimant, then the claimant can recover in full from the defendant. In the case a child fell from a tree, where he suffered an injury and was rushed to hospital. The child only had a 25% chance of full recovery, but the hospital failed to diagnose the child and left the child untreated for 5 days which caused the child permanent disability.

Held: The trial judge awarded 25% damages to the claimant, which was affirmed by the court of appeal. The House of Lords reversed the decision: they said that the claimant had to proveon the balance of probabilities that the doctor caused the permanent disability of the child. In other words, if the claimant can show that leaving the child untreated was the more probably cause of the developed disability, he would have been able to recover in full. However, since it was the less likely cause, he could recover nothing.

Jobling v Associated Dairies [1982] AC 794

Facts: The claimant, a butcher, slipped on the floor at work. The claimant slipped a disk reducing his earning capacity by 50%. So the employers are liable for not providing safe working conditions (negligence). Four years later the claimant was diagnosed with an unrelated back condition that made him totally unable to work.

Held: The House of Lords held that the defendant was only liable for 4 years’ loss of earnings. In other words, as the second act is a natural event rather than tortious conduct, the original tortfeasor will only be liable for damages up to the second event.

McGhee v National Coal Board [1972] 3 All ER 1008

Facts: The defendant failed to provide adequate after-work wash facilities. So, the employees could not remove brick dust from their bodies which they were non-tortiously exposed to. The claimant got dermatitis as a result. It was unclear whether the dermatitis was due to the lack of washing facilities. So, the 'but for' test could not be applied.

Held: Even though the 'but for' test could not be applied, the House of Lords still found in favour of the claimant. The increased danger that the claimant would develop dermatitis due to prolonged exposure to brick dust could be treated, according to Lords, as though it had made a material contribution to the claimant's injury

Performance Cars v Abraham [1962] 1 QB 33

Facts: In this case there was someone who owned a Rolls Royce. The Rolls Royxe was hit by another car, damaging it and needed a respray which cost ÂŁ75. That person was found to be liable so had to pay the money. But, before that money had been paid and before it had been resprayed the Rolls Royce was invovled in another incident which damaged the paint work, which would have also cost about ÂŁ75 for a respray had the car been alright prior to the incident. The question was, are both defendants liable for the same amount (like in Fitzgerald v Lane [1989])? Would that be fair?

Held: The court looked at who really caused the damage that needs to be paid for. The court said only the first person should pay the damages of ÂŁ75 as it made no difference what the other person did (the job still only cost ÂŁ75). So, in other words, because the second tort did not have much of an impact on the first tort, the second person was not liable

Rothwell v Chemical Insulating [2007]

Facts: This case is also known as Grieves v Everard & Sons [2007]. The court said that the case of Fairchild and s3 of the compensation act should be taken into consideration. The claimants had been negligently exposed to asbestos. They had all developed pleural plaques and were at risk of developing one or more long-term asbestos related diseases, and were therefore anxious about their conditions.

Held: The House of Lords held that the claimants had not suffered any compensable physical harm and the mere risk of physical injury is not a compensable harm. Lord Scott made this clear: “nought plus nought equals nought”. However, many people in the medical profession find this an outrageous decision as, in their professional opinion, they would see pleural plaques as being damages; but, the law does not consider them to be so.

Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10

Facts: There was just one defendant in this case. The claimant's exposure to asbestos presented only an 18% risk in contracting mesothelioma

Held: The court confirmed Fairchild and the Compensation Act 2006 as applicable

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