4.3 Problem Fact Patterns in Proving Causation

4.3.1. Loss of a chance of recovery

- An area that “but for” test is inconclusive- Due to D’s negligence, P lost a chance of avoiding an injury / his situations got

worsen. - P doesn’t seek damage for all of his injuries, but just that portion connected to the

loss of chance

Hotson (1987, HL)Fact: a kid fell out of a tree and got his hip hurt. He attended at the defendant’s hospital and the hospital misdiagnosed his injury. 5 days later, he was healed but has already suffered a permanent injury. Evidence showed that if he was treated previously, there is ¼ chance of recovery.

Plaintiff sued for ¼ of total damages.

Can “but for” test be passed (on the permanent damage)? NO. Can “but for” test be passed (on the ¼ chance of recovery)? YES

Held: rejected the loss of chance argument, adopted an all-or-nothing approach. On that basis, if P is able to prove, on a balance of probabilities, his permanent injury is caused by D’s delay of a proper treatment over the fall; he is awarded to all the damages.(Mathematically, the loss of chance must be greater than 50%. E.g. 74% 11%)

(Lord Bridge: analogy between this case (medical diagnosis) and Chaplin (the lost chance for securing an employment) and Kitchen (the lost chance of prosecuting a successful civil action) is inappropriate.)

Issues and Questions

1. Some of the members of the court in Hotson had left open for future cases the possibility of a plaintiff being able to claim for loss of a chance, but the circumstances in which this might occur was not identified.

2. Criticism: Based on this decision, doctors will not be willing to treat patients who have a small chance of recovery, because they won’t be able to sue the doctors.

3. The plaintiff’s loss of chance argument can be applied to McWilliams (safety belt; where the wife cannot prove her husband would use it if provided)

Note the case of Fairchild (mentioned by Lord Hoffmann as provided an exception!A basic question for this lecture: can causation be proved if “but for” test is not passed?

4.3.2 Material contribution to injury

There can be two or more causes of an injury/accidento E.g. P is contributorily negligent; o there are multiple tortfeasors (e.g. two motor vehicles driven negligently,

one of which hurt a passenger) In such case, it did not matter that the defendant’s negligence only made a

contribution in an indeterminate amount. It was sufficient that it made a “material” contribution.

Bonnington Castings v Wardlaw: Plaintiff contracted lung disease after inhaling silicon dust over a period of years

from sources Only one source is traceable to the defendant employer’s negligence

Gregg (2005, HL)

Facts: D’s failure to diagnosed P’s cancer. P’s cancer was discovered 9 months later. During the 9-month delay, P’s [chances of living for 10 more years] reduced from 42% to 25%

Held: On a balance of probabilities, even diagnosed earlier, he would not be able to live

for 10 more years (42%) (42%-25% = 17% < 50%) Therefore, on a balance of probabilities, his [being unable to live for 10 more

years] is not caused by defendant.

Lord Hoffman,“Everything has a determinate cause, even if we do not know what it is. …What we lack is knowledge and the law deals…by the concept of the burden of proof.”“One striking exception…is the actions of human beings. … This may provide…explanation for why in some cases damages are awarded for the loss of a chance”“The apparently arbitrary distinction obviously rests on grounds of policy…most of the cases in which there has been recovery for loss of a chance have involved financial loss, where the chance can…be characterized as an item of property.”

Lord Nicholls (Dissenting)“(Loss of chance argument applies) Justice so requires, because it matches medical reality” “the purpose of the duty (of doctors) is to promote the patient’s prospects of recovery”

No way to know the proportion of “innocent” and tortious dust inhaled no way to know whether the plaintiff would have contracted the disease even if the defendant had not been negligent

Held: It was sufficient proof that the defendant’s negligently produced dust materially

contributed to the disease D held liable for the entirety of the damages arising from the disease

4.3.3 Material increase of the risk of injury

An independent agent (non-tortious) works together with D’s breach of duty to bring about the injury

In such case, causation is proved if D’s act is a material contribution to the injury (McGhee, 1973)

Under McGhee, however, if P cannot prove D’s breach of duty materially contributed to the injury (because it is impossible to know which is the material cause. P will fail.

(Cheng Loon Yin, 2006)—P attack by hawker, no personal alarm, P sued his employer, relied on McGhee to argue that not having a personal alarm materially increased his risk. This argument was rejected.

McGhee (1973, HL)Facts: P was employed by D as a laborer at their brick works. He returned home everyday without washing because D did not provide the washing facilities (breach of duty) P then suffered a skin disease, due exposure to the dust. The real reason of that disease is not known by medical science

The issue: which is the effective cause? The “neutral cause” due to general poor work conditions (but still fulfill legal requirement)? Or the employer’s negligence to not provide shower?

(see powerpoint for a simplified version of “necessary criteria”)

McGhee (1973, HL)Facts: P was employed by D as a laborer at their brick works. He returned home everyday without washing because D did not provide the washing facilities (breach of duty) P then suffered a skin disease, due exposure to the dust. The real reason of that disease is not known by medical science

The issue: which is the effective cause? The “neutral cause” due to general poor work conditions (but still fulfill legal requirement)? Or the employer’s negligence to not provide shower?

Fairchild (2003, HL) (There are actually 3 claims)Facts: P exposed to cancer-causing asbestos by multiple employers (Ds) who were found negligence. It was found that the trigger of the cancer is on a single occasion which mechanism is unknown. It is not cumulative. Therefore, P cannot prove who the employer was when he contracted that cancer.

Held: Lord Nicholls:

The example of two hunters fire their guns carelessly. One bullet injures an innocent passer-by. Although the plaintiff is unable to prove from which gun the bullet came, it would be absurd to leave the plaintiff remediless.

Both should be liable. Although it may be unfair to the one of them, it is anyway better than leaving the P without remedy.

In very exceptional cases, if justice so required, the threshold of “but

Barker v Corus (2006, HL) (There are 3 claims)

In this case, the judge seeks to limit the reach of Fairchild which held all ex-employers jointly and severally liable

Facts: essentially the same fact as Fairchild; two main differences, there are a phase that the deceased P was self-employed; some of the ex-employers became insolvent.Held: Confirming the general liability principle from Fairchild and McGhee, allowed the appeal that ex-employers should be severally liable on a proportionate basis only

The attribution of liability is according to the duration of the employment and the intensity of the exposure

It was said it could “smooth the roughness of the justice”, per Lord Hoffmann Note the distinguishing fact that there is a self-employment phase, it may be

this reason why the liability should be “several” but not “jointly and several”, only doing so can the contributory negligence comes in play. Therefore the Ds will not be liable for P’s own fault

Note the distinguishing fact that there are some insolvent ex-employers too The significance of Barker: (narrowing Fairchild) plaintiff must find all

defendants in order to get full recovery. If any of those are dead / insolvent, other D’s won’t have to pay his part.

Issue and Questions1. Is there a distinction between “material contribution of injury” and a “material

increase of the risk of injury” In McGhee and Fairchild, this distinction is not clear. However, in Barker, the distinction is important. The principle of Barker is that, those who “materially increased the risk” but not necessarily “materially contributed to injury” are liable based on to apportionment. The distinction is controversial in Wilsher.

2. Can “material increase of risk” argument be applied in Gregg v Scott or Hotson. This sounds attractive. But they cannot fulfill Lord Rodger’s criteria

3. The reasoning here does not confine in employment related disease, e.g. informed consent to medical risk.

4. How about a case where a number of drug manufacturers produced versions of same drug, each proves to be cancer-causing. Can P rely on the “material increase of risk” reasoning? From the American approach, it does notu apply because given the social value of drug manufacturers

5. Notice the reversal of “jointly liable” principle by UK Parliament later. (Compensation Act 2006) It became “jointly and severally liable” again.

4.3.3 Multiple Possible (Independent) Causes

Cases involving discrete and independent possible causes, one of which was the cause of damage. But it is unclear which is that.

Wilsher (1988, HL)Facts

P (an infant) was born premature D (doctor) negligent in giving too much oxygen, P later suffered blindness Excess oxygen is only one possible cause

Issue: is it enough to show that D materially increased the risk?Held: (per Lord Bridge, in favour of the defendant)

To apply the principle of McGhee would be an extension of that principle Distinguish this case with McGhee:

McGhee, only one possible agent. There is no doubt that the disease was caused by brick dust; Wilsher: multiple causes other than excess oxygen, and no evidence that excess oxygen is more likely than other candidates to have caused the blindnessSince there is no evidence that excess oxygen is a “material contribution”

Fairchild (2003, HL) (There are actually 3 claims)Facts: P exposed to cancer-causing asbestos by multiple employers (Ds) who were found negligence. It was found that the trigger of the cancer is on a single occasion which mechanism is unknown. It is not cumulative. Therefore, P cannot prove who the employer was when he contracted that cancer.

Held: Lord Nicholls:

The example of two hunters fire their guns carelessly. One bullet injures an innocent passer-by. Although the plaintiff is unable to prove from which gun the bullet came, it would be absurd to leave the plaintiff remediless.

Both should be liable. Although it may be unfair to the one of them, it is anyway better than leaving the P without remedy.

In very exceptional cases, if justice so required, the threshold of “but

A good quote, “The nature of causation…can best be answered by ordinary common sense rather than abstract metaphysical theory”

Issues and Questions1. Such distinction is not really convincing. Note that it is true that excess oxygen

materially increased the risk of blindness. Lord Bridge seemed to confine the principle of McGhee as “material contribution”. (Yet, Fairchild expressed that the position of McGhee was “material increase of risk”)

2. Lord Wilberforce ruled in McGhee that, in similar cases, burden of proof will shift to D. Such position was rejected in Wilsher

3. The pro-doctor ruling in Wilsher will affect plaintiffs who are “suing the Hospital Authority for contracting SARS due to hospitals’ breach of duty”. Such claims will be difficult.

4. Don’t confuse with novus actus interveniens where the effective cause(s) is known.