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GDL Law Notes GDL Tort Law Notes

Causation Notes

Updated Causation Notes

GDL Tort Law Notes

GDL Tort Law

Approximately 591 pages

A collection of the best GDL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from top students and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short these are what we believe to be the strongest set of GDL notes available in the UK this year. This collection of GDL notes is fully updated for recent exams, also making them the most up-to-date GDL study materials ...

The following is a more accessible plain text extract of the PDF sample above, taken from our GDL Tort Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Factual Causation: – single or multiple?

  • Physical link or nexus btw the defendant’s breach and the claimant’s damage

  • More difficult with multiple causes – hard to work out what the cause was

    • E.g. car accident – was it the defendant’s bad driving – or the state of the road – or the weather - or the car caused the accident through a fault

  • Temporal problems: where do you draw the line - courts will try and look to the immediate cause

First Test = “The But For” test

But for the defendant’s breach – would the claimant have suffered the damage anyway: Cork v Kirby

  • If yes – they would have suffered the damage anyway – then the defendant is not the cause

  • If no – then the defendant is the cause

  • Illustration in Barnett v Chelsea & Kensington H.M.C: C went to A&E with stomach ache – seen by a nurse and the nurse took his symptoms and contacted the doctor by phone – doctor was on duty but was himself feeling ill – she described symptoms and the doctor said he probably just had food poisoning, told her to tell patient that if it got worse he should contact his GP – he got worse overnight and died – estate sued the hospital claiming that the doctor’s negligence cause his death

    • Doctor owes duty of care

    • Breach in failure to attend

    • Did the breach cause the damage – ‘but fo’r the doctor’s omission – would the claimant have died anyway? answer was yes – whether the doctor had seen him or not he would have died – because the patient had arsenic poisoning – nothing the doctor could have done – because no cure

      • Doesn’t mean the doctor won’t be disciplined – by General Medical Council etc. – gross misconduct – in breach of employment contract etc. – but in terms of negligence – no liability

  • Bolitho v City & Hackney Health Authority: Bolitho was in hospital due to respiratory problems. Nurse paged the doctor – unfortunately the bleep for the doctor didn’t go off because the batteries were flat – so the doctor failed to turn up and attend to Bolitho

    • Doctor argued that even if she had attended – she would have concluded that nothing should be done at the moment, but the C argued that a good doctor would have intubated

    • But another group of doctors agreed with her – they wouldn’t have done anything differently – so used the But for test: he would have suffered the damage anyway even if she had attended – she wouldn’t have done anything

But For test doesn’t always work

Two causes working together (Multiple concurrent causes):

  1. Cumulative Causes (A + B) = tort

  • Material contribution or increase approach: (McGhee)

  • Bonnington Castings Ltd. v Wardlaw: employee sued his employer due to dust at work making him ill – employers’ liability claim

    • Lots of dust – some there due to tortious negligence - Other dust was there naturally

    • Impossible to prove scientifically that the dust caused by the tort (‘the bad dust’) caused the lung disease

    • Court said that provided that the dust ‘materially contributed to the damage’ then you win – pragmatic approach because can’t do it scientifically

  • McGhee v N.C.B: changed it to material increase – did it materially increase the likelihood of damage: plaintiff got dermatitis – claimed it was because of the workplace– prolonged contact with brick dust, workplace should have provided adequate washing facilities: but you can get dermatitis naturally without dust –‘Did the employer materially increase the likelihood of the damage?’ - YES

McGhee rarely used outside industry / industrial injuries – but:

  • Mountford v Newlands School: allowed small boy to play against much bigger boys – did the school materially increase chance of injury – YES

  1. Multiple Independent Causes:

  • Balance of Probabilities: most common/most likely (Wilsher case)

‘Does the increased (tortious) risk outweigh the original (non-tortious) risk?’

  • Wilsher v Essex A.H.A: premature baby that went blind – sued the junior doctor – but in court –evidence that there are 6 causes of blindness in premature babies – only one of these was a tort – the others all natural

    • Wilsher couldn’t prove that the tort by the doctor was more likely than not the cause

    • Where the risk of damage from the non-tortious cause is 50% or more, the claimant will always fail to establish factual causation

  • Loss of Chance Approach” – essentially the same thing as balance of probabilities

    • Hoston v East Berkshire HA: injured his leg - then got a complication : can lead to a limp – he sued the hospital saying that if they’d given him full treatment at the time then he wouldn’t have got complication

      • When it went to court – found that the complication would have had a 75% chance of having been suffered anyway – loss of a chance was 75% - more than 50 – therefore more likely than not going to get the condition regardless – so on the balance of probabilities his claim failed

    • Gregg v Scott: (HL) – loss of chance will not be used for personal injury, but potentially for consequential economic loss

Which test to use?

  • Independent and cumulative cases: Distinction btw multiple causes which act cumulatively to cause the loss and those which act independently

  • It has been suggested that the approach in Bonnington and McGhee more suitable to cases involving industrial injuries and the Wilsher more relevant to medical negligence

  • However – recent case of Bailey v Ministry of Defence: medical negligence case – medical experts unable to say whether negligent treatment was on the Balance of Probabilities the cause of the claimant’s cardiac arrest and brain damage – but were able to determine that the brain damage was caused by the negligence working together with the natural progression of the claimant’s condition –(i.e. working cumulatively rather than independently) – CA therefore applied the McGhee test and concluded that factual causation was satisfied

  • Usually - if the causes were acting independently of each other – then apply the Wilsher approach – prove on balance of probabilities that the defendant’s breach...

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