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 finding 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 in two stages (Honore:1983). The first, which is sometimes referred to as “factual 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 Fairchild , in 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 possibility 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 require 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 who 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 the defendant may be liable, in the absence of conclusive proof under the but-for-test, for increasing the risk of particular damage occurring. This possibility has been raised in order to reduce the considerable odds against certain claimants establishing the necessary casual link in industrial injury 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 formal 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 the damage, some innocent and some traceable to the defendant’s fault. In McGhee v National Coal Board (Weinrib: 1975) the claimant contracted 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 common-law 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 risk 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, as a result of which it was only diagnosed a year later. Mr Gregg sued for negligence, the damage being the shortening 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 found 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 the 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 a 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 Afshar , the lady who was not told of a risk 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 had 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 in 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 she had 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 foreseeability as opposed to directness as a basis for determining “remoteness” of damage. The test of legal 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 the extent of liability of one who has caused tortious 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 liable 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 been demonstrated therefore that indeed there does exist a tension between notions of fault liability and 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.
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