Medicine and the Law Causation in a fault based system.
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Transcript of Medicine and the Law Causation in a fault based system.
Medicine and the Law
Medicine and the Law
Causation in a fault based system
The Common LawThe Common Law
The system of law that governs:
England & Wales Ireland USA and most Canadian States Australia New Zealand
The system of law that governs:
England & Wales Ireland USA and most Canadian States Australia New Zealand
TortTort
The breach of an obligation placed upon a person by the law
Note: The obligation is imposed by law The State does not enforce compliance with the
obligation The remedy for breach of the obligation is
normally monetary Punishment is not the primary purpose of
litigation
The breach of an obligation placed upon a person by the law
Note: The obligation is imposed by law The State does not enforce compliance with the
obligation The remedy for breach of the obligation is
normally monetary Punishment is not the primary purpose of
litigation
Negligence or fault-based liabilityNegligence or fault-based liability
3 Main INGREDIENTS
A duty to take care A breach of that duty Loss or injury caused by that breach
3 Main INGREDIENTS
A duty to take care A breach of that duty Loss or injury caused by that breach
CausationCausation
The defs breach must have caused the claimant’s damage AND the damage must be such that the law regards it proper to hold the def responsible for it.
The defs breach must have caused the claimant’s damage AND the damage must be such that the law regards it proper to hold the def responsible for it.
Injury caused by the breachInjury caused by the breach
CAUSE IN FACT PROVED
The "But for" test Barnett v Kensington & Chelsea HMC
Drs breach in not seeing him didn’t cause death –he would have died anyway…=> not liable
Generally "but for" test must be fulfilled But there have always been exceptions Summers v Tice and Cook v Lewis
CAUSE IN FACT PROVED
The "But for" test Barnett v Kensington & Chelsea HMC
Drs breach in not seeing him didn’t cause death –he would have died anyway…=> not liable
Generally "but for" test must be fulfilled But there have always been exceptions Summers v Tice and Cook v Lewis
Summers v. TiceSummers v. Tice
Supreme Court of California, 1948. 33 Cal.2d 80, 199 P.2d 1. Facts: Two guys were trying to shoot a
quail but missed and one of them hit the plaintiff. Nobody knows which one, but one and only one defendant hit the plaintiff. The plaintiff sued and won verdicts at trial against both defendants.
Supreme Court of California, 1948. 33 Cal.2d 80, 199 P.2d 1. Facts: Two guys were trying to shoot a
quail but missed and one of them hit the plaintiff. Nobody knows which one, but one and only one defendant hit the plaintiff. The plaintiff sued and won verdicts at trial against both defendants.
Summers v TiceSummers v Tice
Issue: Can both defendants be held liable when only one was in fact responsible?
Rule: Both defendants may be held liable if both were negligent.
Analysis: As a matter of policy, confusion over who dunnit should not bar recovery by the plaintiff. Since the court finds that both defendants were negligent and thus both in the wrong, it is not considered unfair to make them both pay. The court argues that if one was more responsible than the other, they should fight it out amongst themselves.
Conclusion: The judgment of the trial court was affirmed.
Issue: Can both defendants be held liable when only one was in fact responsible?
Rule: Both defendants may be held liable if both were negligent.
Analysis: As a matter of policy, confusion over who dunnit should not bar recovery by the plaintiff. Since the court finds that both defendants were negligent and thus both in the wrong, it is not considered unfair to make them both pay. The court argues that if one was more responsible than the other, they should fight it out amongst themselves.
Conclusion: The judgment of the trial court was affirmed.
Summers v Tice and Cook v Lewis(1952)Summers v Tice and Cook v Lewis(1952)
Because the damage is clear and can be proven, but which of the two defs was the tortfeasor cannot be determined, the onus is on one of the defs to exculpate himself
Both acted in a way that was at least potentially negligent.
Because the damage is clear and can be proven, but which of the two defs was the tortfeasor cannot be determined, the onus is on one of the defs to exculpate himself
Both acted in a way that was at least potentially negligent.
Injury caused by the breachInjury caused by the breach
CAUSE IN FACT PROVED
material contribution sufficient in cumulative exposure cases Bonnington Castings v Warlow [1956] Silica dust –2 sources -pneumoconiosis Def could be liable if breach contributed
materially to damage suffered.
CAUSE IN FACT PROVED
material contribution sufficient in cumulative exposure cases Bonnington Castings v Warlow [1956] Silica dust –2 sources -pneumoconiosis Def could be liable if breach contributed
materially to damage suffered.
material contribution equated with increased risk in single employer cases McGhee McGhee v National Coal Board
(1973) Coal dust -Lack of shower facilities -
Dermatitis ? Reversal of burden of proof when scientific
knowledge is limited or might be elusive to a lay person.
Decision reversed in Wilsher v Essex AHA Burden of proof remains with claimant
material contribution equated with increased risk in single employer cases McGhee McGhee v National Coal Board
(1973) Coal dust -Lack of shower facilities -
Dermatitis ? Reversal of burden of proof when scientific
knowledge is limited or might be elusive to a lay person.
Decision reversed in Wilsher v Essex AHA Burden of proof remains with claimant
Injury caused by the breachInjury caused by the breach
CAUSE IN FACT PROVED
now equated with increased risk in multiple employer cases Fairchild v Glenhaven Funeral Services Ltd [2002] Claimants exposed to asbestos dist over several
years and by several employers – Mesothelioma HL held unanimously EACH employer was liable (each materially increased risk to C’s)
CAUSE IN FACT PROVED
now equated with increased risk in multiple employer cases Fairchild v Glenhaven Funeral Services Ltd [2002] Claimants exposed to asbestos dist over several
years and by several employers – Mesothelioma HL held unanimously EACH employer was liable (each materially increased risk to C’s)
Injury caused by the breachInjury caused by the breach
CAUSE IN FACT PROVED
The Chester v Ashfar case in England and Chappel v Hart in Australia
CAUSE IN FACT PROVED
The Chester v Ashfar case in England and Chappel v Hart in Australia
Cause in fact not provedCause in fact not proved
Several possible causes of which the breach is only one. Wilsher v Essex AHA
emphasised strict adherence to the principle that it was for the Claimant to prove that a particular Defendant had caused the damage – on a balance of probabilities.
Several possible causes of which the breach is only one. Wilsher v Essex AHA
emphasised strict adherence to the principle that it was for the Claimant to prove that a particular Defendant had caused the damage – on a balance of probabilities.
Where the breach results in a loss of a chance of a cure - Hotson v East Berkshire AHA (75%-100%) Gregg v Scott (42%-20%)
Where the breach results in unquantifiable damage
Where the breach results in a loss of a chance of a cure - Hotson v East Berkshire AHA (75%-100%) Gregg v Scott (42%-20%)
Where the breach results in unquantifiable damage
Cause in LawCause in Law
Limitation on recoverability as a consequence of policy
"Policy" wrapped up in lawyer's terminology
Foreseeability
Proximity
"Fair, just and reasonable" - damage outside the scope of the duty
Limitation on recoverability as a consequence of policy
"Policy" wrapped up in lawyer's terminology
Foreseeability
Proximity
"Fair, just and reasonable" - damage outside the scope of the duty
Cause in Law (continued)Cause in Law (continued)
Foreseeability The need for the type of damage
sustained to be within the reasonable contemplation of the tortfeasor
But note the so-called "thin skull rule“ Note also the extent of the damage need
not be foreseeable Note also that the damage sustained
need not be a likely or a probable consequence of the breach
Foreseeability The need for the type of damage
sustained to be within the reasonable contemplation of the tortfeasor
But note the so-called "thin skull rule“ Note also the extent of the damage need
not be foreseeable Note also that the damage sustained
need not be a likely or a probable consequence of the breach
Cause in Law (continued)Cause in Law (continued)
Proximity
Limits on the class of people to whom a duty is owed.
Limits on the scope of the duty owed
Proximity
Limits on the class of people to whom a duty is owed.
Limits on the scope of the duty owed
ConclusionsConclusions
Are the restrictions to causation in fact legitimate, practical and fair?
Are the restrictions to causation in law appropriate?
Is there a better way of limiting liability for a medical accident?
Are the restrictions to causation in fact legitimate, practical and fair?
Are the restrictions to causation in law appropriate?
Is there a better way of limiting liability for a medical accident?