The of causation in negligence cases
This assignment will critically examine some of the approaches that have been taken by the court when dealing with issues involving the proof of causation in negligence cases.
The particular question that will be considered is to what extent does the case law in this area demonstrate a persistent tension between notions of fault liability and the objective of compensating the client.
In very simple terms the law on causation requires that the defendant’s carelessness must be shown to have caused the loss or damage in question. The Tort Law Causation Essays of a sufficient casual link is an essential ingredient in all forms of tort liability. The English law of torts analyses the question of causation Tort Law Causation Essays two stages (Honore:1983). The first, which is referred to as Tort Law Causation Essays causation”, “cause in fact”, or “but for cause”, is essentially concerned with whether the defendant’s fault was a necessary condition for he loss occurring. At the second stage the courts make an assessment of whether the link between the conduct and the ensuing loss was sufficiently close.
A good starting point for any discussion in relation to causation is the case of Fairchildin this case an employer was held liable for asbestos-related cancer, even though the claimant could not prove that the defendant's asbestos had any historical or other connection with his disease. All he could show was a substantial possibility that it had done so and that if it was not a result of that employer's asbestos, it was probably the result of some other negligent employer's asbestos. The House of Lords said that this was enough. You may say that a substantial Guide Questions For Poem Analysis Essay that your asbestos caused someone's cancer is nevertheless a causal connection. Hoffman argues that (Hoffman:2005) that Fairchild involved a departure from the standard criteria, which Tort Law Causation Essays proof on a balance of probability that your asbestos produced the cancer in the claimant's lung.
In this particular case their Lordships were faced with a problem which has puzzled lawyers since Roman times: how do you deal with a case in which it is clear that the harm was inflicted by one of two or more people Tort Law Causation Essays were all behaving unlawfully, but you cannot tell which one caused the harm. The answer given by the Roman jurists was that you hold them all liable and let them sort out the apportionment of liability between themselves. And that was the answer we gave. We confined the new exception to cases in which, as Lord Bingham explained, the claimant was employed by more than one employer, both were negligent in failing to protect him from a particular form of harm, he suffered that form of harm and medical science makes it impossible to say which of them caused the disease.
As it can be seen that the courts have also had to deal with the question of the burden of proof and with whether Tort Law Causation Essays defendant may be liable, in the absence of conclusive proof under the but-for-test, for increasing Tort Law Causation Essays risk of particular damage occurring. This possibility has been raised in order to Peace Corps Essay 2015 the considerable odds against certain claimants establishing the necessary casual link in industrial Tort Law Causation Essays and medical malpractice cases. However in Wilsher v Essex Area Health Authority the House of Lords reaffirmed the but for test, while in Hotson v East Berkshire Health Authority it cast doubt on the idea that the claimant can recover the diminished prospect or “loss of a chance” of avoiding these questions albeit with controversial results. Although the decisions make it clear that difficult policy questions are involved in the but-for-test, the "Tort Law Causation Essays" division between factual and legal cause is too well established to be abandoned.
As these cases show difficulties arise where there are several alternative explanations of the events leading up to "Tort Law Causation Essays" damage, some Tort Law Causation Essays and some traceable to the defendant’s fault. In McGhee v National Coal Board (Weinrib: 1975) the claimant "Tort Law Causation Essays" dermatitis after working in a kiln. The immediate cause of the dermatitis was brick dust with which he came into contact while at work. The Defendants were not at fault through exposing him to the dust; this was an inevitable feature of he work he was employed to do. However, they were in breach of their Gilbert Morales Dissertation duty of care in failing to provide washing facilities at the place of work. The question facing the court was whether the plaintiff had sown that his condition was caused by the absence of washing facilities. Medical evidence could not clearly conclude. The Judgement of Lord Wilberforce appears to accept the possibility that in the absence of conclusive proof of a link between fault and damage, liability must be imposed upon a defendant whose negligence increases the risk of a particular loss occurring, if that Tort Law Causation Essays is subsequently realised. In effect this shifts the burden of proof on to the defendant. The reason for this it is said is because of the inherent difficulty facing the plaintiff in a case where medical opinion cannot establish definitively that the dame is attributable to one potential cause of harm rather than another.
In the recent decision of Gregg v Scott causation was again considered. Dr Scott was negligent in not referring Mr Gregg to be tested for cancer, Tort Law Causation Essays a result of which it was only diagnosed a year later. Mr Gregg sued for negligence, the damage being the "Tort Law Causation Essays" in his expectation of life. Mr Gregg satisfied the judge that his expectation of life had been shortened. So he had suffered an injury. The question was what had caused the injury: was it just that he had contracted cancer or was it Dr Scott's negligent failure to have him tested earlier. The judge Tort Law Causation Essays that the delay might have caused the injury; there was a substantial possibility that it had, but the probability was that it made no difference. So he dismissed Bethesda Magazine Essay Contest 2012 Nfl action.
The main argument before the House of Lords was that the principle in Fairchild should be extended and that damages should be awarded for the possibility that the injury had been caused by the doctor. It was held that Fairchild did not apply because this was not a case of choosing between defendants, one of whom had caused the injury and both of whom had acted wrongfully. It was a choice between the doctor and natural causes and therefore on public policy grounds the Claimant would not be able to succeed.
As Hoffman points out (Hoffman:2005) “Fairchild is an exceptional case in which the House of Lords, in particular circumstances, enabled Tort Law Causation Essays claimant to finesse what would otherwise have been an insuperable evidential problem and Gregg v Scott exemplifies the general rule”
However derogation from the general principle can be seen in Chester v AfsharEssay Topic Generator lady Tort Law Causation Essays was not told of a One Child Policy Case Study A Level involved in an operation which she had been advised to have. The evidence which the judge accepted was that the surgeon proposing to operate on her spine Tort Law Causation Essays not warned her that in such an operation, however carefully undertaken, there was a small risk that there might be damage to the spinal cord which could cause paralysis below the injury. Unfortunately that was exactly what happened, despite the proper skill with which the operation was done. So the surgeon was "Tort Law Causation Essays" breach of his duty to give his patient full information about the risks. But did his failure to warn her cause the injury? The claimant did not say that if she had been warned, she would not have had the operation. Her condition was such that she needed to have it. And when 3 Page Short Story Essay SamplesTort Law Causation Essays it, the risk would have been exactly the same. All she said was that she would have taken more time to think about it or perhaps gone to a different surgeon. But that too would have made no difference to the risk, which attached to the operation however carefully it was done.
The majority of the House of Lords departed from the standard criteria. They decided that a surgeon who fails to warn a patient of the risk of an operation should be treated as an insurer of that risk. If it materialises, he should have to pay, even though his failure to warn has as little connection with the informed.
Finally any discussion of causation would not be complete without first considering the case of The Wagon Mound in which the Privy Council stressed the importance of reasonable as opposed to directness as a basis for determining “remoteness” of damage. The test of cause is applicable both to the “threshold” situation in which the court is trying to establish whether the defendant is liable at all, and in the situation in which it is concerned with establishing extent of liability of one who has caused Tort Law Causation Essays damage. The test of reasonable foreseeability, like that of but-for cause, is plainly based on the courts’ perception that an individual should not be Tort Law Causation Essays in tort for damage beyond the scope of the personal responsibility. Thus, if damage ensues in an unexpected or unusual way, it may be that the “chain of causation” has been broken, absolving the defendant from liability or damage occurring after that point
It has Tort Law Causation Essays demonstrated therefore that indeed there "Tort Law Causation Essays" exist a tension between notions of fault liability the objective of compensating the client. This is demonstrated alarmingly clearly as a result of the two decisions of Chester v Afshar and Gregg v Scott. The law in this area has become irreconcilable and at best difficult to understand. It is difficult to understand how in Chester the Claimant was able to recover for something that was not the fault of the Defendant but that in Gregg the Claimant could not claim for something that is the fault of the Defendant. These two cases demonstrate the persistent tension in this area of the law.
- Chester v Afshar  UKHL 41;  1 A.C. 134
- Fairchild v Glenhaven Persona 3 Opening Quotes For Personal Statements Services Ltd  UKHL 22;  1 A.C. 32
- Gregg v Scott  UKHL  2 A.C. 176
- Hotson v East Berkshire Health Authority  AC 750
- McGhee v National Coal Board  1 WLR
- The Wagon Mound Tort Law Causation Essays 1)  AC 388
- Wilsher v Essex Area Health Authority  AC 1074
- Journal Articles
- Hoffman L, (2005) “Causation”, Law Quarterly Review 121 592-60
- Honore A, (1983) “Causation and Remoteness of Damage” at Chapter 7 in A Tunc (ed)
- Weinrib E, (1975) “ A Step Forward in Factual Causation”, Modern Law Review 38 518
- Jones M, (2002) “Textbook on Torts” Oxford University Press
- Kidner R, (2004) “Casebook on Torts” Oxford University Press
- Murphy J, Free Community Service Essay M, Street H, (2005) “Street on Torts”, Oxford University Press
Source: Essay UK - http://www.essay.uk.com/free-essays/law/causation-in-negligence.php
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Describe and illustrate the rules on causation and remoteness of damage in tort.
There are exceptions, such as in the case of strict liability, but tort liability is about establishing whether anyone is at fault or is to blame.
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There are exceptions, such as in the case of strict liability, but tort liability is about establishing whether anyone is at fault or is to blame. The court ordinarily concerns itself with whether a breach of duty is shown to exist, and if so, to show liability that the defendant's act or omission caused the damage. The claimant must show a causal link. The law of tort is a civil set of rules so that the standard of proof is a balance of probabilities. This may seem relatively straight forward but things may not be that simple if there are multiple causes or the nature of the damage is out of the ordinary.
There are two types of causation and both must be proven. The two types are causation in fact and causation in law. The claimant must prove that the defendant's act or omission caused the damage or loss (causation in fact). That is not the end of the matter because it must also be shown that there is sufficient proximity between the act complained of and damage so as to make the defendant liable (causation in law).
The principle of causation is that it is based on the 'but for' rule under which the court asks itself the question – would the damage have occurred 'but for' the defendant's actions? The 'but for' test was aptly stated by Lord Denning in Cork v Kirby Maclean Ltd (1952) as 'if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.......'. The case involved damage said to have been caused by the overflow of polluted water into a river by the activities of the appellants. Lord Denning, whilst aware that there were other factors involved, seemed to have satisfied himself that the activities of the appellants were the cause of the overflow of the polluted water into the river.
Whilst the 'but for' test may be a traditional tool at the disposal of the courts it is not always sufficient and in more complex cases resort may have to be made to other means where there are multiple causes.
In Cutler v Vauxhall Motors ( 1970) the defendant company injured the claimant as a result of which he had to have an operation for varicose veins. It transpired that he would, as likely as not, have required the operation in a few years time in any event even if the injury had not happened. The majority of the Court of Appeal refused to allow the claimant's claim finding that the operation was not caused by the defendant's breach of duty. It is arguable that the answer may have been different had the breach caused the amputation of a leg even if the leg may have had to be amputated in the future anyway. The reason being that a claim for damages seems more just in such a situation as opposed to one where recovery is expected.
Problems may arise in apportioning responsibility where there were several concurrent causes. In Wilsher v Essex Area Health Authority (1988) such a problem arose. The defendant hospital negligently administered excessive oxygen during the post-natal care of a premature baby. The baby became blind afterwards but the excessive oxygen was only one of five possible causes that could have led to the blindness. When the matter reached the Court of appeal the Court used the 'material increase of risk' test and found the hospital liable as it had breached its duty and, by its acts, increased the risk of harm.
The House of Lords were not convinced by the reasoning or the strength of the evidence about the primary cause and, by a majority, dismissed the appeal on the basis that they were not satisfied that the hospital had materially contributed to the injury.
The test had been used earlier in McGhee v National Coal Board (1972). In that case the former House of Lords held that, where a breach of duty has a material effect on the risk of injury, then any subsequent injury is said to have been caused by the breach. The facts of the case were that McGhee was employed to clean out brick kilns and developed dermatitis from the build up of coal dust on his skin. There had been no showers at his workplace and he had to cycle home each day still covered in the coal dust.
The issue became one of whether his employer's failure to provide washing facilities had caused the rash and that there had been a breach of duty. Lord Reid stated 'The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk'. The House decided that the risk of injury had been materially increased by the exposure with the effect that it was not necessary for the claimant to have to rely upon the 'but for' test.
The above modification of the 'but for' rule is similar to where the court decides that the breach 'materially contributes' to the harm so that the breach is one of other contributing factors and significantly contributes to the risk of harm or injury as in Fairchild v Glenhaven Funeral Services (2002). The case concerned mesothelioma, a deadly cancer caused by inhaling asbestos fibres. The House of Lords approved of the test of 'materially increased risk' as a variation of the traditional 'but for' test.
It has been seen that there can be consecutive causes of harm in which case the court may select the first as the 'cause' as in Performance Cars v Abraham (1962) which concerned consecutive collisions involving a Rolls Royce. This may still leave the question of how the courts approach the apportion of damages where there is consecutive causes. The issue arose in Baker v Willoughby (1970) where the defendant negligently damaged the claimant's leg in a road accident. The same claimant was later shot in the same leg by some robbers and his leg had to be amputated. The House of Lords decided that the correct approach was to assess damages on the basis that compensation was payable as if the second event had not occurred. The disability had been serious and he was entitled to be compensated without reference to the second accident and the amputation. This may seem harsh but it was decided that if the court had decided otherwise, the claimant would not have been able to be properly compensated as he was unable to claim against the robbers to pay their share of the compensation. Such cases are obviously not easy to resolve and the decision was criticised in Jobling v Associated Dairies (1982) when the ruling in Baker was said by the House to be exceptional.
We have already seen that there must be established a causal link between the claimant's injury and the Defendant's act or omission giving rise to the breach of duty. It follows therefore that any break in the chain of causation caused by any new or intervening act (novus actus interveniens) will affect the causal link and some other party (or even the claimant themselves) may have to share responsibility.
The effect of a break in the chain of causation is normally to relieve the defendant of liability. This was shown in McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) where the claimant, after suffering damage to his leg as a result of the negligence of the defendant, broke his ankle when descending a staircase without a handrail or help. The court took the view that such a person must act reasonably if they have a loss of mobility and in acting in the way he did the claimant had acted unreasonably and therefore the defendant was not responsible for the later injury.
The courts have also had to consider acts of nature as part of the equation of compensation (Carslogie Steamship Co v Royal Norwegian Navy(1952)), although this rarely succeeds, as well as acts of third parties (Knightley v Johns (1982)).
In the case of Barker v Corus (UK) Plc 2006 a new form of 'proportionate liability' came about. As in Fairchild, the claimants contracted mesothelioma after working for a number of different employers who had negligently exposed them to asbestos. In the intervening years (before the symptoms of the disease materialised) some of the employers had become insolvent. The issue arose as to whether it was right for the remaining employers to bear the whole of the cost or whether they were properly only responsible for a proportion. The House of Lords decided that it was not right for the solvent employers to meet the proportion of the damage for which the insolvent employers were responsible. This was not met with universal acceptance and it did not take Parliament long to pass the Compensation Act 2006 which effectively overruled the judgement of the House.
It has long been an established principle that a wrong doer must accept their victim as they find them (the 'eggshell skull' rule) so that if the claimant has some pre-existing condition and this exacerbates the injury then it is not the fault of the victim but should form part of the 'but for' rule and it becomes the responsibility of the defendant (Smith v Leech Brain).
Having worked through the 'but for' rule and any exceptions and variations, if a causal link is established, it is still necessary for the court to consider whether the damage is too remote a consequence of the breach to be allowed. The principle has its roots in policy considerations so as not to overburden the defendant.
Direct consequential loss has always been allowed. This is so even if the loss is not foreseeable (Re Polemis and Furness, Withy & Co (1921)).
Under the test of remoteness of damage, it is damage that is reasonably foreseeable that is recoverable (Wagon Mound (No 1) (1961).
In practice it is the type of damage that must be foreseeable not the amount or extent of damage Bradford v Robinson Rentals (1967). In this remarkable case the claimant, who was employed by the defendants, suffered frostbite as a result of driving unheated vans over long distances and long periods. A broad approach was adopted by the court in the sense that they found that in calling upon the claimant to undertake the task the defendants had exposed him to extreme cold and fatigue and as such had exposed him to reasonably foreseeable risk of injury. The injury included frostbite which although unusual could be said to be of the kind foreseeable i.e. injury from exposure to the cold – it did not need to be shown that the precise injury itself was foreseeable.
This broad approach was supported with the decision in Hughes v The Lord Advocate (1963) when it was ruled that it is not necessary for the precise circumstances to be foreseen.
In the Wagon Mound (No 2) (1967), the defendant owned a freighter ship named the Wagon Mound. The ship was moored at a dock. The claimant owned two ships and these were moored nearby. At some point during this period the Wagon Mound leaked oil into the harbour. At the same time some welders were working on a ship. The sparks from the welders equipment caused the leaked oil to ignite. The subsequent fire destroyed all three ships. The trial judge had agreed that fire was possible but was too remote to be considered as part of the compensation. The appeal eventually reached the Privy Council. The Judicial Committee of the Privy council held that loss will be recoverable where the extent of possible harm is so great (as was the subsequent fire) that a reasonable man (in this case the ship's engineer) would guard against it (even if the chance of the loss occurring was very small). Liability was found against the defendant owner of The Wagon Mound.
In the case of property damage, we can see that a narrower approach is taken to the question of what can properly be said to be reasonably foreseeable damage.
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