3 - Causation

Prévia do material em texto

RULES FOR PQs
Factual causation
· The general rule is the but-for test so you should always start with this: C must be able to show (burden is on C), on the balance of probabilities (more likely than not/50%+), that D caused X (Barnett) or in other words, that it wouldn’t have happened anyway 
· Test: on balance of probabilities (50%+), would damage have happened without breach? (Barnett v Chelsea and Kensington Hospital)
· If C would have done it anyway, no causation (McWilliams v William Arroll, Calvert v William Hill)
· Exception: non-disclosure of risks of medical treatment (Chester v Afshar)
· Lord Hoffmann dissenting/Green think it is best conceived as a failure to warn case where C should recover nominal damages based on infringement of C’s autonomy (Rees v Darlington) rather than full damages as in Chester (i.e. Chester is right in principle but wrong in application)
· Multiple causes: 
· Where you have a DIVISIBLE injury, this is where the injury can be divided into separate factors which work independently of one another, you apply orthodox but-for causation (Performance Cars v Abraham).
· What you have to show is that D was a but-for cause of part of C’s injury. For example, where D1 and D2 both separately damage C’s car, C must show that D1 was a but-for cause of damage X and D2 a but-for cause of damage Y. D1 will only be liable for damage X. This is not an exception to but-for causation.
· Where you have an INDIVISIBLE injury, this is where it is either practically or theoretically impossible to divide the injury into separate parts, the tests we apply depend on how the injury was caused: 
· 1. Over-determinative causes: independent and simultaneous causes which were independently sufficient to cause C’s injury, they are both jointly and severally liable and D1 can sue D2 for contribution in apportionment proceedings (Sumner v Tice, a Canadian case). This is your classic two hunters scenario, where D1 and D2 both shoot C, and either one of their shots was sufficient to kill C.
· 2. Multiple consecutive causes: one tortious injury to X (e.g. the leg) which is subsequently followed by another injury to X (e.g. the very same leg) 
· a. Where the subsequent injury is tortious, D1 remains liable for the original damage, and D2 is only liable for additional loss. So, D1 the employer in Baker v Willoughby will have to pay damages to C as if he still has his poorly leg, even though, following the armed robbery, it’s been amputated. D2 will be liable for additional damage to C’s leg (e.g. the additional damage of having no leg etc). 
· b. Where the subsequent injury occurs due to a natural event which is unconnected to the tortious injury by D1, D1's damages will stop from the point that the natural event occurs. So, for example, in Jobling, D1 will only have to pay for Cs loss of earnings until C suffers the disease in her spine which means that she will stop working in any event. 
· 3. Multiple cumulative causes: multiple causes which contribute to the same injury. Here you should first ask whether the material contribution to injury test applies, and if not, apply the material increase in risk test. 
· The main difference between them (ignoring for a second their individual requirements) is that for material contribution to injury you ARE able to show that D materially contributed to the injury, even if it cannot be shown that they are but-for cause (i.e. that it wouldn't have happened anyway). With material increase in risk, we are not able to say that THAT D contributed to the injury due to scientific impossibility. 
· Material contribution to injury (Bonnington, Holtby) – requirements 
· A material contribution, material meaning not de minimis (Bailey v MOD) 
· A single agent (Williams v Bermuda) 
· Not possible to prove but for causation due to scientific uncertainty, e.g. in Williams v Bermuda, it was not possible to show that but-for the delay in treatment, C would not have suffered sepsis because it was scientifically unclear what the effect of the delay was 
· EFFECT: enough C shows material contribution by single agent and burden then shifts to D
· RESULT: D liable in full (Bailey v MOD, Williams v Bermuda)
· Steel and Stapleton suggest that a better approach is to ask whether the causal process which causes the injury is divisible and to apportion liability accordingly 
· Material increase in risk (McGhee, Fairchild) – requirements (Fairchild)
· A ‘rock of uncertainty’ such that it is inherently impossible to prove exactly how the injury was caused because of the current state of scientific knowledge (Sanderson) 
· Multiple potential sources of the risk which has eventuated in the claimant’s damage – includes non-tortious (Sienkiwicz) and exposure due to C’s own negligence (Barker v Corus) 
· A single agent responsible for that risk (e.g. asbestos exposure) 
· Note it is unlikely it is possible to rely on this cause of action in MN cases, given that taking away a chance of a positive outcome and imposing a risk of injury are two sides of the same coin and loss of chance was not allowed in Gregg v Scott and Hotson
· EFFECT: if C can establish requirements are fulfilled, burden shifts to D 
· RESULT:
· 1. Mesothelioma: Ds are jointly and severally liable, D1 can go after other Ds in apportionment proceedings (s 3 Compensation Act 2006) 
· 2. Other diseases: liability proportionate to length of exposure to risk (Barker v Corus, confirmed still good law in International Energy Group v Zürich) Applied in respect of lung cancer in Heneghan v Manchester Dry Docks
· Loss of chance
· If exceptions to balance of probabilities are unsuccessful, alternative is to redefine the damage as a loss of a chance of a better outcome 
· In the medical context, loss of chance claims have been rejected (Hotson, Gregg v Scott) but the HL in Gregg v Scott did not entirely rule it out, it was a 3:2 majority and Lord Phillips in the majority left it open that it may be possible in a subsequent case 
· Outside of the medical context, this is allowed – chance of making a financial gain/avoiding a loss can be valued as a percentage of that gain/loss (Allied Maples v Simmons and Simmons – also Chaplin v Hicks in contract)
· Can even go down to very small chances which are only valued as a small percentage as long as they’re not de minimis
Legal causation
· If the breach is a factual but for cause of the claimant’s damage, there are two main reasons it might not be a legal cause:
· 1. Intervening act by the claimant or a third party
· Acts by third parties can be a novus actus which breaks causation – depends on the type of act involved and the nature of the defendant’s duty – we must consider
· How foreseeable was it that the third party would act? 
· Very unlikely to be a break in the chain of causation where they are dealing with a danger created by D, only if they’re very negligent (Oropesa, Knightley v Johns)
· Gravity of intervening act – it must amount to serious ineptitude (Knightley v Johns)
· Was the third party doing a free, deliberate and informed act?
· Very young children will never break the chain of causation because they aren’t responsible (Carmarthenshire v Lewis)
· Acts by the claimant can be a novus actus but generally only if the claimant acts very unreasonably – we must consider
· The gravity of the negligence – must be grossly negligent (McKew v Holland)
· Was C doing a free deliberate and informed act?
· Not if C is clinically depressed due to D’s breach and killed himself (Corr v IBC Vehicles)
· Exception Claimant will not break the chain of causation where he himself is owed a duty if care to be prevented from taking such actions (Reeves v MPC – prisoner committed suicide whilst on suicide watch and did not break the chain of causation because he was on suicide watch exactly to prevent this), providing that that duty of care is specifically to prevent the course of action that the claimant takes (Corr v IBC)
· 2. Damage is too remote from the breach
· Damage must be reasonably foreseeable(Wagon Mound No 2) 
· e.g. Wagon Mound No 2
· D’s ship spilled oil into a wharf and set fire. Damage to wharf by fouling was deemed a foreseeable risk but damage by fire was not because the oil wasn’t flammable, so D was not liable for the fire damage
· Remoteness depends upon how we define the risk 
· e.g. Jolley v Sutton (an abandoned boat which some boys played on which fell on one of them). In the CA, the risk was characterised as jacking up the boat, which was not foreseeable, but in the HL it was held to be playing on the boat, which was.
· Risk jacking up a boat (CA = not foreseeable) or was playing on a boat (HL = foreseeable)
· D does not have to foresee:
· The manner in which the damage is caused (Hughes v Lord Advocate) 
· The extent of the damage (Smith v Leech Brain) 
· If causation is established D is liable for full extent of the harm (Smith v Leech Brain), includes economic vulnerability (Lagden v O’Connor)
· Contraxtual remoteness rules apply where there’s concurrent liability in tort and contract (Wellesley v Withers)
· Intentional torts = liable for all direct consequences (Re Polemis)
Actionable damage
· Personal injury: any disease/impairment of a person’s physical or mental condition (s 38 Limitation Act 1980)
· Sensitivity which prevents the claimant carrying about their ordinary life because it makes them vulnerable to further damage is actionable damage (Greenway (or Dryden) v Johnson Matthey plc)
· Property damage: physical change which renders the article less useful or less valuable (Hunter v Canary Wharf (Pill LJ))
· Limitation Act:
· Latent Damage Act 1986: six years from date when cause of action arises, or three years after the date when the claimant both has a cause of action and knows the material facts giving rise to it
ESSAY ANALYSIS
Material contribution to injury
· Debateable whether this is an exception to but-for causation
· Green: this is orthodox but-for causation because you still have to prove that D1 was a but-for part cause of the overall injury, it’s just that they weren’t the only cause – Bailey and Williams are erroneous applications of the test
· Stapleton: it is an exception because there is no need to quantify the contribution 
· But there is no requirement that a cause be quantified, it’s enough that it caused the injury on the balance of probabilities
· In Bailey v MOD, D suffered a brain damage after choking on her own vomit due to weakness which was a combination of D’s negligence and her post-operative state 
· Waller LJ said that the material contribution to injury test was an exception to but-for causation and that it was enough that D makes a non-de minimis contribution – i.e. it is not necessary to prove that D’s breach was a necessary condition of the weakness
· In Williams v Bermuda, C had appendicitis and suffered sepsis partly because of the hospital’s delay in operating on her, D was held liable for materially contributing to the injury
· The PC held that material contribution was not a departure from but-for causation. You still need to prove that it was a but-for part cause of the injury. The contribution has to either: 
· Bring something about that wasn’t otherwise going to happen
· Hasten what would otherwise have happened
· To arrive to the result on the facts, you need to treat it as an exception to but-for causation because we can’t say they were actually a but-for part cause because it had been estimated that the pus would’ve taken 4 hours to develop as it did and if there had been no breach, the claimant would’ve waited between five and six hours before their surgery
· Also the fact that they imposed restrictions – must be a single agent because Bonington distinguished Wilsher
· Steel thinks it is a genuine exception because it is not right to say that if you are a but-for cause of some part of a process, you are a but-for cause if it might have happened anyway. If it was a general rule, it would mean that, for example, when I vote for an MP I am a but-for cause of them winning in every case
· But there is a distinction between concurrent/simultaneous causes (like voting) 
· With concurrent/simultaneous causes they operate interdependently, so it is not possible to isolate any of the causes. In this case, we should follow Sumner v Tice, all parties are jointly and severally liable because there is no way of isolating any of the causes, even though it would’ve happened anyway
· But in cases involving successive causes like Bailey and Williams, it is possible to isolate the non-tortious cause prior to the breach. From this, we can determine whether the injury would have more probably than not happened anyway, even if D had not breached their duty (Barnett v Chelsea and Kensington)
· But in Williams the PC said it can MCI apply in principle to successive causes
· This isn’t problematic, it can apply in principle, provided it is shown that the successive cause was a necessary condition of the injury, e.g. if the injury would not have formed without the successive cause, D materially contributed 
· Green: Bailey should have led to a conclusion of no liability because the experts were unable to say on the balance of probabilities there but for the negligent care Bailey would have avoided having a cardiac arrest when she did similarly in Williams, it was estimated that it took four hours for the pus to develop and if the breach hadn’t happened, the victim would’ve waited for six hours, so on the balance of probabilities, the victim would’ve had had sufficient pus to cause the injury without the breach
· If it would not have happened anyway, then D is a but-for part cause, because the breach was necessary in order for the injury to happen
· Wright uses the example of stabbing: just as if D stabs a person who more likely than not already has been stabbed sufficient times to bleed to death, but who still has a significant amount of blood left in several hours to live, contributes to that person is bleeding to death 
· But there is a significant difference between this stabbing example and Bailey and Williams: Ds did not do anything to aggravate the injury or to hasten it
· Also, we accept that you can be a but-for cause if you cause something to happen earlier than it would’ve happened without your negligence – this is orthodox but-for causation
· Justifications
· You can be a cause even though it would have happened anyway, (not if you know it would have happened anyway). If you don’t say that you have to conclude that nobody caused the injury and that wouldn’t be fair
· But you can’t be a necessary cause and arguably you can’t even be a material cause – it is the same as saying, A shoots B dead and then C shoots B after, if B is already dead, C is not a material cause of B’s death
· Fairness is not a sufficient justification for altering the causal rules. If tort law was serious about fairness to claimants, it would not require causation or even breach, we could just have a state-funded compensation system
· Stapleton and Steel suggests the case conflicts with Hotson but Hotson was distinguished on the basis that the two possible causes of the injury were independent and alternative rather than cumulative as in Williams
· Problems with treating material contribution to injury as an exception to but-for causation:
· Green:
· This is potentially explosive for medical practitioners because they can be liable in full where they contribute to a mechanism, but it doesn’t have to be shown that they were a necessary condition
· Create perverse incentives for doctors, if you treat someone dying and anything you do may contribute to a mechanism
· Seriously undermines corrective justice because we cannot say connect D’s breach to C’s injury – tantamount to treating hospitals as insurers of risk
· Balance of probabilities is unfair to Ds where probability is small: i.e. where chance was 49% and because of you it became 51%. Is that fair when D only contributed 2%? 
· Reality is that when we ask whether it was more probable than not thatit would’ve happened anyway, we are looking at probabilities higher than that
· Another approach would be to ask whether the causal process was divisible and apportion liability 
· Stapleton and Steel: the causal process in Williams was divisible, and the court should have tried to quantify how much was caused by the delay even if they couldn’t get an exact figure
· But this would still be a departure from cases like Barnett if it was not necessary to show it would’ve happened anyway
· There are problems with getting rid of all-or-nothing damages in this area: 
· Lady Hale in Hotson: unfair for those who can show that D was a but-for cause, because they will only get proportional damages, not the full amount 
· Risk of insolvency falls on C – i.e. if there were two concurrent cumulative torts and D2 was insolvent, she would only be able to recover for part
· In addition to the Fairchild exception, this would basically lead to the end of balance of probabilities causation, which Green argues is integral to our tort system 
· Balance of probabilities serves an important corrective justice role because it ensures that we can link D1’s tort with C’s injury 
Material contribution to risk
· The cases have developed from Fairchild which was restricted to cases where all of the exposure was tortious, to Barker v Corus, where Fairchild was extended to a case where part of the exposure was due to C’s own negligence and then Sienkiewicz Fairchild where 87% of the exposure was environmental, and D had only contributed 13% 
· Lord Brown was very critical of Fairchild in Sienkiewicz: there was no rational basis for confining Fairchild within its narrow bounds
· Mesothelioma cases are in a category all of their own. Whether this treatment is justified may be doubted. The unfortunate fact is that the courts are faced with comparable rocks of uncertainty in a wide variety of other situations and to circumvent these rocks on a routine basis would turn the law upside down and dramatically increase the scope for what have been rejected as purely speculative compensation claims
· Green thinks Fairchild should’ve been restricted to cases where all of the exposure is due to an employer’s negligence. In Sienkiewicz D was only liable for 13% of the risk and this goes too far
· Nolan thinks that although from D1’s perspective, it seems irrelevant that the other causes were non-tortious, if it is not significant that all the causes are tortious, there is nothing to distinguish Fairchild scenario from any other case of causal indeterminacy 
· Fairchild requirements
· Morgan: most of these requirements are judge-made law and are very arbitrary. This undermines the jurisprudential basis of the common law, which is incremental development. The law cannot incrementally develop if there are arbitrary lines drawn around certain principles 
· A more principled way of restricting the scope of Fairchild would’ve been to follow Lord Bingham’s requirements
· C was employed at different times under different periods by A and B, A and B both breached their duty, C suffers from mesothelioma and because of the limits of human science it cannot be proved on the balance of probabilities that his mesothelioma was a result of his inhaling asbestos during his employment by A or during his employment by the C
· Multiple potential sources of the risk which has eventuated in the claimant’s damage – includes non-tortious Sienkiewicz v Greif
· A single agent responsible for that risk
· Lord Bingham in Fairchild: a single agent
· Lord Rodger: as long as it operates in substantially the same way – approved obiter in Novartis
· Heneghan: exposure to asbestos and smoking operated in a substantially similar way so fulfilled the requirement
· Green: this gets rid of the single-agent rule because smoking is not the same agent as asbestos dust. Single agent is not the same as something operating in the same way 
· Nolan: there are bound to be doubts as to whether or not two different agents have operated ‘in the same way’
· Beever: the rule appears to be a deliberate arbitrary restriction on the application of Fairchild
· Some argue that the rule is beneficial
· Lord Scott in Barker: multiagent cases would make the identification of the proportion of risk attributable to each agent almost impossible
· Green: the difference in Fairchild is that we know more than we did on Wilshire, we know for certain that the asbestos caused injury. In Wilshire we cannot say that we knew this
· But does this make any difference if what we actually need to know to establish causation is that D’s exposure caused the injury – can it being a single agent help us establish this? No 
· Deciding in favour of liability in Wilshire would mean imposing liability for risk creation, regardless of whether that risk resulted in injury
· This is not the case because C must have actually suffered the injury (Trigger Litigation, Rothwell). Trigger Litigation made clear that liability is for causing the injury, not for merely creating the risk 
· But we are imposing liability for mere risk creation where that risk has manifested into an injury, in a very circumscribed type of case, because while we can say D exposed C to a risk, we cannot say that risk caused C injury
· It means that Fairchild will only rarely apply 
· But given scientific developments, Fairchild will rarely apply anyway
· It is far easier to defend the aggregation of defendants when they have all contributed to the creation of the same risk
· This still doesn’t say why 
· Practically useful for apportion purposes: much easier to calculate if all Ds have done the same thing
· But multiple agents could do the same thing 
· Coote: In McGhee the defendant increased the intensity of the risk from a single cause whereas in Wilsher the defendant increased the number of potential causes
· Single-agent rule is only therefore valuable in cases where the disease operates cumulatively, and we know that the single fibre theory is no longer true (Sienkiwicz)
· This doesn’t justify the extension of the rule in Heneghan
· Inherently impossible to prove exactly how the injury was caused because of the current state of scientific knowledge (Sanderson). Difficulty must be theoretical rather than evidential impossibility
· Beever: this restriction seems arbitrary
· Lord Brown in Sienkiewicz: the unfortunate fact is that the courts are faced with comparable rocks of uncertainty in a wide variety of other situations
· Klein argues that we should encourage science to supply the answer rather than changing the legal rules. Exceptions to proving causation should only be available where it is evidentially impossible to prove causation. 
· Unlikely it is possible to rely on this cause of action in MN cases (Gregg v Scott)
· Barker v Corus introduced proportionate liability, and this was overturned for mesothelioma. Following Zurich, there is proportional liability for all non-mesothelioma diseases 
· Lord Hoffmann: when liability is exceptionally imposed because you may have caused the harm, liability should be divided according to the probability that D caused the harm
· Initially it was thought that liability was for increasing the risk (Lord Hoffmann in Barker v Corus) but this view was rejected in Trigger Litigation which held that liability is for contributing to the disease
· Lord Hoffmann said in Barker that liability was for increasing the risk rather than causing the disease
· Lord Rodger dissenting on this point, observed that Lord Hoffmann had reinterpreted Fairchild and that liability for mere risk creation conflicts with the courts’ refusal to allow recovery in Greg v Scott on precisely that basis 
· Beever:
· Liability for mere risk creation would be immoral because it would mean that merely to walk down the street would become an actionable wrong since it places others at risk
· It is be unremarkable as a legal rule because we cannot have a situation in which everyone I pass on the street can see me even if they have suffered no harm· In Trigger Litigation Lord Mance observed that it is impossible to speak of the Fairchild cause of action as liability for mere risk creation because this would mean that a C could recover without proof of damage and that is not the law
· If liability was for increased risk, it could not be associated with a particular policy year because there is no ‘indivisible loss.’ By reformulating the action as causing the mesothelioma as the gist of the action, albeit by modified causal connections, every insurer on risk is liable 
Justifications for Fairchild
Corrective justice justifications
· Nolan: encompasses any account of tort law which justifies tort obligations by reference to the bipolar relationship between the parties, as opposed to external social goals such as deterrence or compensation
· Fair because Ds were at fault 
· As between the claimant and the defendants, the equities favour the claimant
· But this doesn’t provide a justification for the imposition of liability as between the claimant and each individual defendant. All we can say for certain as the defendants, on aggregate, ought to be liable as a matter of fairness
· There is also the assumption that somehow fault matters more than causation (without this assumption, there is no more reason to say that because the defendant is at fault, the claimant need not prove causation than there is to say that because the defendant admittedly caused the injury, the claimant need not prove that the defendant was negligent)
· Beever: this is false because, from the perspective of corrective justice, the defendant is entirely innocent (with respect to the claimant) unless the claimant establishes all the elements of the cause of action against the defendant’
· This argument once also fails to explain Wilsher and in Hotson v East Berkshire Health Authority where it was impossible for the claimant to prove that the admittedly negligent doctor had caused his condition, and yet recovery was denied
· Beever (two hunters’ scenario): D2’s act of exposing C to a risk of asbestos obscured the fact that D1 caused C’s injury. If we could take D2 out of the equation, we would be able to show that D1 was a but-for cause. D2 has therefore caused the claimant ‘evidential damage,’ and that this justifies imposing liability on both defendants or at least reversing the burden of proof.
· This explains why we might justly treat a defendant differently where the other possible cause or causes of the claimant’s injury are wrongful conduct
· But it works only if all the possible causes of the injury are tortious, and so the only case it might explain is Fairchild, but even there it falls down.
· It only works if there are no more than two wrongdoers because if there are more than two, each defendant will be able to establish on the balance of probabilities that he or she was not responsible, and hence to discharge the reversed burden of proof. But is not limited to two-party scenarios
· Evidential damage is not a cause of action 
· It is unlikely that a claim would exist for the negligent loss of hospital or police records essential to a cause of action against a third party. This is because evidential damage claims would be for pure economic loss, which is generally only recoverable in English tort law where the defendant has voluntarily assumed a responsibility towards the claimant
· It is also highly unlikely that evidential damage would be a reasonably foreseeable type of harm, as is required under Wagon Mound No 2 
· Steel: reliance upon wrongdoing. D1 should not be able to rely on D2’s to get away with it 
· You ought not to allow a wrongdoer who’s fault has been established to benefit from the presence of other wrongdoers
· What right has been infringed?
· Beever: the effect of the breach is to deprive the victim of his claim for damages against the true culprit by making it impossible to show which defendant caused his injury. His remedial right to prove liability has been infringed 
· But would that not allow for Wilsher recovery too?
· Has intuitive moral appeal and hits the concern we have in this area – what is wrong with not letting them recover in Fairchild scenario is that they’ve been left worse off because there are multiple tortfeasors. More people have breached a duty and the claimant loses out
· This justifies Fairchild, but not Barker or Sienkiewicz. It only applies where all of the exposure is tortious
· We could reformulate the claimant’s damage as the increased risk of injury rather than the injury itself (see problems above)
Consequentialist justifications
· If it were true that the function of tort law is to compensate and to deter, there would be no reason for causation 
· A compensation goal looks only to the loss suffered by the claimant, and a deterrence goal only at the defendant’s negligent behaviour. Causation is entirely redundant, and indeed positively counter-productive, since the enforcement of a causation requirement will mean that claimants who have suffered losses will go uncompensated, and that defendants who have acted negligently will go unpunished, with the result that tort law will under-deter
· Fair because C has suffered loss 
· If we took it to its logical conclusion it should not require proof of causation at all, or breach, because we could say it is unfair for a claimant to suffer an injury that was not her fault, even if it was not D’s fault, e.g. an accident
· It would also justify the state compensating the claimant if their negligent employer is insolvent, but that does not happen
· If we only cared about fairness the better solution would be to establish a legislative scheme which was available on proof of mesothelioma
· Would avoid cost and delays in adversarial legal disputes, would have helped cases were none of the employer is solvent and they have no insurer
· National insurance contributions could go into this scheme,
· Justified because this is a public health problem, responsibility lies with employers but there’s also a public responsibility because everyone thought asbestos was safe to work with, and everyone used it
· State would give you damages, and state would go and charge the insurers for risk they created on Barker v Corus. This would reduce litigation because employers wouldn’t be in a place to contest it
· There would be a shortfall which government could make up from general taxation, could put a tax on polluting industries to pay for this compensation scheme
· Fair because D has breached a duty and should be deterred
· In McGhee Lords Simon and Wilberforce were concerned that unless liability were imposed employers would be able to disregard the duties of care they owed their employees with impunity
· In Fairchild, Lord Bingham, Lord Hoffmann and Lord Rodger all made it apparent that one of their motivations for departing from the general ‘but-for’ rule was the fact that its application would rob the duty to protect employees against mesothelioma of all content
· A deterrence rationale might also explain why the courts have been more willing to modify the causation rules in employers’ negligence cases than in medical negligence cases, since the judiciary may well feel that employers need more incentives to exercise reasonable care than health-care providers
· If we think negligence should be turned into a deterrence mechanism, then not only should we do away with the causation requirement, we should do away with the damage requirement as well. But if we do this, then we find ourselves with something that no longer looks like tort law at all, but much more like the criminal law
Chester 
· Majority: the injury fell within the scope of the surgeon’s duty of care and if she were denied recovery the duty to warn would be drained of meaningful content
· The fact that the injury fell within the scope of the surgeon’s duty of care is not a substitute for causation – breach is not sufficient
· To conclude that the failure to warn had made any material difference to the claimant is as logical assaying that the odds on the number seven coming up in a roulette would change from one week to the next (Lord Hoffmann, dissenting)
· Green: Chester is best conceptualised as a failure to warn case
· Supported by Lord Hoffmann in his dissent who said ‘the failure was an affront to her personality and there might be a case for a modest solatium in such cases’
· Problems
· None of the judgments in Chester mentioned Rees v Darlington
· The damages award was far greater than the award in Rees
Loss of chance
· It is closely related to Fairchild, since taking away a chance of a positive outcome and imposing a risk of injury are two sides of the same coin
· Hotson: on the balance of probabilities, the fate of the claimant was determined at the time of the defendant’s breach of duty 
· Lord Mackay: it is not correct to say that on arrival at the hospital he had a 25 per cent chance of recovery. He either had no chance of recovery or he had a chance of recovery. He has failed to establish that on the balance of probabilities, the damage was not already sustained
· Gregg: on the balance of probabilities, he would not have survived in any case
· Lord Hoffmann: loss of a chance should not be recognised as a form of actionable damage. The logical implication of this argument is that D should be liable for materially increasing a risk
· Baroness Hale: if you allowed the loss of a chance claim but also stuck with traditional balance of probabilities causation then it would be a heads I win everything, tails I win something situation
· Lord Nicholls (dissenting): in Fairchild the courts had demonstrated a willingness to leap an evidentiary gap where limitations in scientific knowledge means it is impossible to say what would’ve happened 
· Lord Hope (dissenting): the delay in diagnosis had undoubtedly caused some physical injury to the claimant in the form of the enlarged tumour
· In contract there is no problem with recovery for lost chances (Chaplin v Hicks)
· Breach of contract is actionable per se, so C does not have to show that on the balance of probabilities the defendant has caused him damage
· Recovery for lost chances at the quantification stage in personal injury or death cases is available because questions of past fact are not in issue
· Claims for loss of a chance of an economic gain, as in Allied Maples Group Ltd v Simmons & Simmons (a firm), are available because a chance of economic gain is itself something of economic value, and hence its loss is itself an economic loss
· Distinguishing between Hotson/Gregg and Allied Maples, finances have an objectively provable value 
· In Allied Maples type cases, you have lost a chance but in Hotson/Gregg type cases, you haven’t lost a chance, you are either part of the injured group or part of the non-injured group
· Stapleton: the gist of the claim in an economic case is the same – chance of making money is financially valuable and therefore fundamentally the same kind of thing as money – but a chance of not losing a leg is fundamentally not the same thing as a leg
· Goold and Herring: we aren’t talking about chances really but about how certain we are that the defendant’s negligence caused the injury as opposed to the patient’s pre-existing condition – based on epidemiological statistics rather than knowledge of what chances the patient had in that particular case
· Objections to Gregg and Hotson
· Lord Nicholls in Gregg: it would drain the doctor’s duty of all content if we did not recognise liability 
· Objections above to deterrence arguments
· Lord Nicholls: this is the same issue as Fairchild where we should fill a gap to evidential uncertainty 
· But Fairchild only applies where C has suffered damage and in accordance with narrow requirements
· Conflicts with Williams v Bermuda and Bailey v MOD
· Steel and Stapleton: it’s inconsistent with the delay in treatment in Hotson did contribute to the patient’s avascular necrosis, even though it wasn’t a necessary condition for him to suffer his damage
· But in Williams Hotson was distinguished on the basis that the injury was either caused by the breach or the fall and that it could not have been caused by both. They were independent alternative causes and on the balance of probabilities it was the fall that caused the injury
· Difference in outcome depending on whether probability is 49 or 51 seems arbitrary 
· If you allowed the loss of a chance claim but also stuck with traditional balance of probabilities causation then it would be a heads I win everything, tails I win something situation – so we would also have to deduct in cases between 50 and 100 to account for the chance that D did not cause the damage and this would mean no more full liability for anything
· Reasons why we should keep balance of probabilities above
· Reasons why this completely misunderstands balance of probabilities causation – 50% isn’t really 50% 
· Stapleton: the loss of the chance is the damage
· Lord Hoffmann: loss of a chance should not be recognised as a form of actionable damage. The logical implication of this argument is that D should be liable for materially increasing a risk – not recognised as a form of actionable damage (Trigger Litigation)
· Also objections to materially increase in risk – Beever: it would mean I can recover whenever I walk down the street
· Stapleton seems to accept that C must have suffered physical injury in order to bring a claim
· The fact that C had not suffered injury in Gregg was one of the reasons for rejecting his claim
· This amounts to a tacit admission that the real damage is the physical injury, rather than the chance of avoiding it, in which case the theory is merely a fiction designed to circumvent the causal indeterminacy problem
· C has lost something of value 
· The claimant has not really lost any chance at all
· Green: The claimants in such cases are not those who have lost a less than evens chance, but those for whom there is a less than evens chance that they have lost anything at all
· Goold and Herring: we aren’t talking about chances really but about how certain we are that the defendant’s negligence caused the injury as opposed to the patient’s pre-existing condition – based on epidemiological statistics rather than knowledge of what chances the patient had in that particular case
· HL in Hotson: Where the occurrence or otherwise of the physical injury is causally determined at the time of the defendant’s breach of duty, the claimant has not lost a personal chance, but only a statistical chance
· Perry: It would be misguided to recognise the loss of a mere statistical chance as actionable damage in negligence, it would be very odd to suppose that ‘the hypothetical situation of 100 people who are assumed to have independently suffered the ‘same’ injury could in some sense be an asset possessed by an actual individual who has in fact incurred such an injury’
· Beever: 
· Objective probability is ‘a feature of the world’; an event has an objective probability if ‘there really is a chance that it will or will not happen’
· Epistemological probability ‘is not a feature of the world but reflects only our understanding of the world’
· E.g. You destroy my lottery ticket and I forgot the number. If this happens before the draw is made, I have a winning chance of one in a million, but if the same thing happens after the draw has been made, this is no longer a possibility. If we now say that there was a one in a million ‘chance’ that it was the winning ticket, this cannot therefore be a reference to an objective chance, but only to an epistemological one, and that is just ‘a form of factual uncertainty’
· Green: 
· In legal terms, however, such a ‘chance’ is less a prediction of what would have happened to a particular claimant than an approximation of the forensic margin of error
· The definition of the damage is redefined to attempt to circumvent the balance of probabilities standard, but this is integral to the tort system (see above)
· Reform – consider whether an alternativeoption of damages for infringement of autonomy right to diagnosis as an extension of informed consent 
· But in Shaw v Kovac it was held that it was not available as an independent cause of action because it would mean people could bring claims when they weren’t properly informed even if they suffered no loss as a result
· So could be available where the infringement of the right caused actual loss? – this was left open by Shaw v Kovac where a claimant could show that their suffering increased as a result of an infringement of their personal autonomy being infringed for a lack of informed consent 
Questions to consider/do
Crofton Hospital is a National Health Service Trust Hospital. It finds that it has insufficient funds to keep open a full accident and emergency service. It does however retain a scaled-down service staffed by one junior doctor, Philip. Anne comes to the hospital having slipped down the stairs at home and broken her arm. This is set incorrectly by Philip. Anne also has a trapped nerve after the fall. Medical opinion differs as to whether this would have occurred had the arm been correctly set. The dominant view is that there would have been a 40% chance of a trapped nerve occurring even if the bone had been correctly set. All doctors do however agree that the precise causes of trapped nerves are difficult to determine and that it may have been the result of a variety of factors which were not related to the fall at all. Advise Anne.
 
Andy is an itinerant ice-cream seller. One day, after selling ice-cream cornets to a group of children, Andy drives off without checking that all have left the vicinity of the van. He runs over the left foot of six-year-old Pip as well as her brand new bicycle. Duncan, a scoutmaster, sees Pip’s plight. He applies a tourniquet to Pip's foot and drives her to hospital. Due to delays caused by a combination of road works and political demonstrations the drive to the hospital takes an hour and a half. Duncan omits to slacken the tourniquet, with the result that Pip's foot eventually has to be amputated. Dr Brown, the house surgeon assigned to perform the operation, is nearing the end of an exhausting 48-hour shift. He misreads the instructions given to him and amputates the right foot instead of the left foot. Discuss Andy’s liability.
Are the exceptions to but-for causation justified?
Are the rules governing the recovery of tort damages for ‘loss of a chance’ rational? What reform, if any, is required?