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Causation Notes

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Again res ipsa loquitur can be used in straightforward cases.
The But For Test - but for the breach of duty the damage would not have occurred.
o Barnett v Chelsea and Kensington HMC [1969] - Doctor assumed nightwatchman had been drinking too much, failed to carry out a proper examination. Patient died overnight from arsenic poisoning.
 Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him. Hospital not laible.
Claims are usually decided on an all or nothing basis

Hotson v East Berkshire AHA [1987] - Hospital failed to diagnose a fracture in schoolboy. His bone tissue died and he suffered a permanent disability.
 According to medical evidence, had he been correctly diagnosed initially there was a 75% chance that he would have still developed this condition, but there was a 25% chance that he would have made a full recovery.
 HoL held that C had failed to show on the balance of probabilities that it was the breach of duty that caused damage as 75% chance that it would happen anyway.
 Rejects the idea that people can sue doctors for the loss of a chance to get better

Wilsher v Essex AHA [1988] - Junior Dr gave premature baby too much oxygen, resulting in blindness. There were however other possible causes of the damage. Trial found HA
 HoL ordered a retrial - claimant had to prove that the breach was that which probably caused the damage.
Where there are multiple causes, it must be proved that the tortuous cause was the most likely cause on the balance of probabilities.
Unfairness and the But For Test (Judge made exceptions that are inconsistent)
o Cook v Lewis [1952 - Canada] Two hunters (defendants) who negligently fired their guns in the direction of the claimant at the same time. Could not prove which arrow hit, and there was as =50% chance (i.e. not >50% chance) that it was either party.
 Supreme Court of Canada held both defendants were liable. Thus claimant could sue either defendant for the full amount of the loss.
 This approach was upheld in California SC in
Summers v Tice 33 (1948)
o Sindell v Abbott Laboratories (1980) - SC California.
Hundreds of Defendants who had produced a drug that
Sindell had taken durign pregnancy which led to her developing cancer.

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