Law of Tort I Lecture 2

Causation is the most important ingredient of the law of tort

Duty of Care

Breach of Duty

If you dont have causation, you dont have a successful claim

Burden of Proof it is on the claimant to show that this exists

But for Test

Deviation from the But for Test McGhee vs. NCB (1973) man
worked in a brick factory, the issue here was whether or not the
employees dermatitis from working in the factory. He biked to and
from work everyday; because the factory didnt provide shower
facilities he had brick dust all over him for more time than was
reasonable. The court said that rather than going after the But FOR
test, the case should focus on whether the showers could have
reduced the threat of dermatitis.
The case highlighted the word increase
The probably for test To demonstrate causation in tort law, the
claimant must establish that the loss they have suffered was caused
by the defendant. In most cases a simple application of the 'but for'
test will resolve the question of causation in tort law. Ie 'but for' the
defendant's actions, would the claimant have suffered the loss? If yes,
the defendant is not liable. If no, the defendant is liable. Causation
may be problematic where there exists more than one possible
cause. Various formulations have evolved to ease the burden of
proving causation in such situations.

Fitzgerald vs. Lane 1987

Joint vs. Several Liability

Joint If parties have joint liability, then they are each liable up to
the full amount of the relevant obligation. So if a married couple takes
a loan from a bank, the loan agreement will normally provide that they
are to be "jointly liable" for the full amount. If one party dies,
disappears or is declared bankrupt, the other remains fully liable.
Accordingly, the bank may sue all living co-promisors for the full
amount. However, in suing, the creditor has only one course of action;
i.e., the creditor can sue for each debt only once.
Several Liability The converse is several or proportionate
liability, where the parties are liable for only their respective
obligations. A common example of several liability is in syndicated loan
agreements, which will normally provide that each bank is severally
liable for its own part of the loan. If one bank fails to advance its
agreed part of the loan to the borrower, then the borrower can sue only
that bank, and the other banks in the syndicate have no liability.

Joint and Several Liability Under joint and several liability or all
sums, a claimant may pursue an obligation against any one party as if
they were jointly liable and it becomes the responsibility of the
defendants to sort out their respective proportions of liability and
payment. This means that if the claimant pursues one defendant and
receives payment, that defendant must then pursue the other obligors
for a contribution to their share of the liability.
Joint and several liability is most relevant in tort claims, whereby a
plaintiff may recover all the damages from any of the defendants
regardless of their individual share of the liability. The rule is often
applied in negligence cases, though it is sometimes invoked in other
areas of law.

Wilshire vs. Essex 1988 medical negligence, baby was given too
much oxygen, the baby developed an illness, which caused blindness,
the father of the child brought a claim against the hospital. He claimed
but for the impact of negligence, which caused his son to be blind.
Excessive oxygen does cause blindness, but 4 or 5 other reasons may
have also caused the blindness. The issue of causation could not be
proven in regards to the one factor of oxygen. Was there a departure
from general practice?
Material Increase of Risk

Clark vs Mckennan (1983) the doctor went against standard

practice, the whole discussion of causation came under this standard.

Holtby vs Bringham + Cowan (2000) Claimant had contracted

asbestos while working under several different employers. His claim
failed because he could not prove that the negligence was solely on
the part of one employer.

Fairchild vs Glenhaven Funeral Services (2002)

Ones liability only extends to the relative proportion of the harm
Joint liability

Barker vs Corus (2006) The plaintiff was self employed when he was
exposed to asbestos. There was no joint liability, it was several liability
Whatever sets a limit to liability is considered a win to the insurance
community. The Fairchild case is one example of this.

Proof of causation must always be proved by the claimant

Hotson vs Gast Berkshire Area Health Association (1987) the

doctors failed to properly diagnose the patients hip condition, the
condition went untreated for 5 days. By the time it was discovered it
was found that the delayed treatment led to a 25 % less chance of
recovery because of the delayed treatment. The court awarded a 25%
amount of the full compensation. A radical position to be taken by a
court, the house of lords reversed the decision. It held that there was
no basis in court to award damages on the basis of probabilities

Loss of chance

Greg vs Scott (2005) Malignance cancer was misdiagnosed as

benign. The effect was that it delayed treatment for 9 months which
reduced his rate of survival from 42 percent to 25 percent. All or
nothing approach taken by the court, they claimed that the delay did
not deprive him of the prospect of being cured. Since the claimant had
less than 50 percent chance of living anyway, liability should not have
been introduced. If the loss of chance is less than 50 percent, then the
courts wont entertain a claim based on loss of chance.

Allied Maple Group vs Simmons x2 (1995)

Baker vs. Willoughby (1970) negligence when driving his car, the
majority of the liability had fallen upon him. Before the trial had
commenced, mr baker was a victim of a robbery, he got shot in the leg
and had to amputate his leg. It turned out that the shot to the leg was
deemed as an attributing factor to expedite the need to amputate the
leg, but was not the sole reason. The court thought that leaving mr
baker undercompensated would be a great injustice, there was a
causal relation between the legs condition after the accident and the
amputation.

Jobling vs. Associated Dairies 1981 Back pain associated with

working, he broke his back from his job. 3 years after the accident
commence, he obtained a disease of the spine. The company would
be liable only for the damage caused, but would not be held liable for
the spine disease. It was the first time the courts had made a
distinction between a natural occurring event and a tort.
Mckew vs. Holland + Hannen + Cubbits 1969 The man had a weak
leg, went to go look at a flat, he didnt ask for help, went up the stairs
(no handrails) and fell. Chain of causation was broken because he
went up the stairs knowing that his leg could have gave in.

Weilan vs Cyril Lord Carpets (1969) lady with her byphocals, tripped
on carpet.

Pigney v Pointers 1957 guy got a blow to the head, lost the capacity
to perform rational judgements guy committed suicide from acute
neurosis. The defendants claimed that the suicide was a novus actus
interveniens

novus actus interveniens -> Breaking the chain (or novus actus
interveniens, literally "new act intervening") refers in English law to the idea
that causal connections are deemed to finish. Even if the defendant can be
shown to have acted negligently, there will be no liability if some new
intervening act breaks the chain of causation between that negligence and
the loss or damage sustained by the claimant.

Corr vs IBC vehicles 2006. A suicide because of a blow to the head,

suicide was a result of depression. The chain of causation had not been
broken.

Reeves vs commissioner of the Police Metropolis (1999) The deceased

was placed under police custody, he had attempted suicide twice before
this. A doctor met with him, determined there was no mental issue, turns
out they put him under suicide arrest regardless. The guy put his sheets
on the door hanger (which was left open) and hung himself. Defendants
claim that his own suicide was a Novus Actus Interveniens
The court reduced the fault of the police to 50 % because of the doctors
analysis.

Knightly vs Jones 1982 mr jones was driving negligently and he caused

the flipping of his car in a tunnel. Several police men came to the scene of
the accident and had entered the tunnel. The constable in charge realized
he failed to stop the flow of traffic after he was in the tunnel. He ordered
the police men to go back and stop the traffic flow. There were 2 options,
one that was safer and one that wasnt, one of the officers got hit by a car
on the way to stop traffic the police officer sued jones