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Causation And Remoteness Notes

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Causation and remoteness in negligence
General rule: C must prove on the balance of probabilities that the damage for which C seeks a remedy was caused by D's negligence.
2 elements to causation: factual causation ('but-for' test or D's negligence 'materially contributed')
and legal causation (no breaks in the chain of causation).
NB: most authorities and textbooks break down the causation requirement into (i) causation, (ii)
remoteness. 'Scope of duty' or 'scope of responsibility' can be included in the former requirement.
DAMAGE
Hunter v Canary Wharf (1996, UKHL) - physical damage = a physical change in the land which makes it less useful (a nuisance case).
Rothwell v Chemical & Insulating Co (2007, UKHL)

FACTS: C's employer D exposed C to asbestos; C developed symptomless pleural plaques which were themselves harmless, but signalled the presence of asbestos fibres in the lungs which might in turn cause fatal diseases; C resultingly developed clinical depression
The symptomless plaques were not actionable damage. "The important point was that, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of C to other diseases or shorten their expectation of life. They had no effect upon their health at all. Neither the risk of future disease nor anxiety about the possibility of that risk materialising amounted to damage for the purpose of creating a cause of action."

Dryden v Johnson Matthey (2018, UKSC) - 'personal injury' = a physical change making the sufferer appreciably worse off (than he would have been had D not acted negligently) in terms of his health or capability to enjoy ordinary life (even if that change was hidden and symptomless).

Gemma Turton, 'Risk and the damage requirement in negligence liability' (2011) 35 Legal Studies 75

Risk cannot coherently be recognised as damage.
"In this paper, it will be argued that under the Barker apportionment approach, the gist of the negligence action is still the physical harm rather than the risk of that harm. Moreover,
in the absence of physical harm, pure risk cannot be regarded as damage for the purposes of the negligence inquiry. The paper examines the notion of risk and distinguishes it from the related concept of probability. It will be argued that risk, properly understood, is a forwardlooking concept that is incompatible with the role in which it is cast by Lord Hoffmann in the backward-looking causation inquiry. This paper will also question the moral significance of risk as damage, and explore the difficulties of explaining why risk might be considered deserving of compensation. It will be argued that the primary obstacle to accepting risk as damage in negligence is that risk is already addressed under the heading of breach of duty. If risk were to be recognised as actionable damage, the result would therefore be to subsume the damage requirement into the breach inquiry, effectively transforming negligence liability from a system of corrective justice to a punitive system focused solely on the defendant's wrongdoing in isolation." 

Fairchild - uncertainty about how asbestos caused mesothelioma  material contribution to risk was sufficient for causation; based on a policy concern to avoid unfairness to innocent claimants facing an evidentiary gap.
Barker v Corus - B had also exposed himself to asbestos during a period of self-employment;
UKHL accepted C's argument that while Fairchild applied, liability for the mesothelioma should be apportioned rather than being joint and several (calculated according to the individual's contribution to the total risk of mesothelioma)  thus, Barker ruled for an apportionment approach to liability (a.k.a. aliquot liability), contrasted to Fairchild's joint and several liability - this was to "smooth the roughness" of the outcome under Fairchild where a defendant who cannot even be proved to be a but-for cause of the claimant's injury is to face joint and several liability (as opposed to just several). This supposedly reached a fair balance between the interests of innocent claimants and potentially 'innocent'
defendants (in that their negligence may not have caused any damage).
o Lord Hoffmann (leading judgment) … reasoned that if it is only possible to prove that
D's negligence materially contributed to the risk of mesothelioma, then it is appropriate to regard the risk, rather than the mesothelioma, as forming the gist of the negligence action". He reasoned that it does not matter that mesothelioma is indivisible, since "[c]hances are infinitely divisible and different people can be separately responsible to a greater or lesser degree for the chances of an event happening"  since risk is divisible damage, it attracts several liability, and thus an apportionment approach. Lord Hoffmann criticised the CoA's approach (joint and several liability) because it supposed that D's breach of duty, which caused one phenomenon (increase in risk of harm), could result in him being liable for the whole of the ultimate injury - a whole other phenomenon.
 Approved in Lord Phillips' dissenting judgment in Durham v BAI -
 BUT the majority of the UKSC in Durham v BAI disagreed and held that the actionable damage was the mesothelioma. UKHL in
Rothwell held that, in the absence of mesothelioma materialising,
the risk of mesothelioma is not actionable damage.
o Baroness Hale instead clearly stated that the damage forming the gist of the action was the mesothelioma.
Criticisms relating to the nature of the negligence inquiry:
o Lord Hoffmann's apportionment-based approach ostensibly appears to chime with negligence as a corrective-justice based system of liability, but on closer inspection this is not true. Two reasons:
 AUTHORITY: "First, the continued insistence that the claimant must have developed mesothelioma [e.g. in Durham v BAI and Rothwell] undermines the claim that the gist has been changed to the risk of mesothelioma. In other words, the damage for which the claimant was compensated was still the mesothelioma itself, but liability was apportioned to reflect the degree of uncertainty surrounding proof of the causal link."
 CONCEPTUAL: "Secondly, even if the courts were to abandon the requirement that the claimant must suffer the physical harm, exposure to risk cannot be considered to be damage within corrective justice, because it adds nothing to the breach inquiry. Conduct is characterised as wrongful if it exposes the claimant to an unreasonable risk of harm. Corrective justice does not punish this wrongful behaviour, but requires the wrongdoer to repair the damage when his wrongdoing causes harm to another. If a 

defendant commits a wrong by exposing a claimant to an unreasonable risk of harm but this risk does not materialise, then he is not liable because there is no damage for him to correct. If the law was to hold that exposure to risk does constitute harm, then the requirement of damage would effectively be lost and the basis for liability would not be corrective justice but a retributive form of justice."
Criticisms of Barker relating to the nature of risk:
o Steele explains that 'risk' and 'probability', "though related, are distinct terms".
 Turton builds on this, explaining that "while probability may be used to analyse past events, risk is a forward-looking concept. It describes a situation of uncertainty as to whether a particular outcome will occur. When a risk materialises it causes an outcome, so it is no longer a 'risk' but a cause." - yes, there may be uncertainty as to which risk(s) materialised (and probability can help with that causation analysis), but it would be circular to say that if a risk has materialised it has contributed to the risk of the outcome. "In other words, a 'risk' is only a 'risk' while the outcome is still prospective. Once the outcome occurs, then the relevant question is whether the risk materialised and made a causal contribution."
 Weekes: "A risk which is proven to have resulted in damage is of course a risk that has been realised, or more properly, 'a cause'."
o Turton argues that what Lord Hoffmann's apportionment-based approach "actually achieves is to make the defendant liable for the mesothelioma itself, but to discount the extent of his liability to reflect the uncertainty over whether the risk he created was the risk that actually materialised. The method used to calculate the appropriate discount is the probability that it was the defendant's risk rather than another source of risk that materialised. It cannot be the case that exposure to risk is the damage that is being compensated here, because risk is forward-looking and only exists before the outcome occurs. After the outcome has occurred, the risk that the defendant created either is or is not a cause of that outcome."
 Thus, the apportionment-based approach to liability is not actually compensating for risk, but rather to reflect the probability that the defendant caused the mesothelioma.
 If it were based on risk, then D's liability would be fixed from the time of his conduct - but the fact that liability varies (decreases)
with every person who subsequently contributes to the risk, it must be based on probability of D's risk being the one that materialises.
o Thus, 'material increase in risk' or 'material contribution to risk'? (where 'risk' refers to 'total risk')
 I.e. whether risk should be measured in absolute or comparative terms,
respectively.
 'Material increase in risk' does not change with subsequent additions of risk,
but 'material contribution to risk' does, and is thus about probability.
 Thus, we should use the term 'material contribution to risk' to show we have actually shifted to measuring probability of causation when using apportionment-based liability.
 This subtle change in terminology occurred in academic discussion following Fairchild, reflecting a desire to bring it in line with the
Wardlaw test of material contribution to harm. o

BUT Turton explains this "is likely to result in confusion by detracting from the exceptional nature of the Fairchild principle" - the shift from 'material increase in risk' to
'material contribution to the risk of harm' "has been accompanied by an unnoticed shift in meaning from 'risk' to
'probability'".

FACTUAL CAUSATION
As explained by the Master of the Rolls in Heneghan v Manchester Dry Docks (EWCA, 2016) at [23]:
"There are three ways of establishing causation in disease cases.
The first is by showing that but for the defendant's negligence, the claimant would not have suffered the disease.
Secondly, where the disease is caused by the cumulative effect of an agency part of which is attributable to breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant will be liable on the ground that his breach of duty made a
"material contribution" to the disease: Bonnington Castings Ltd v Wardlaw [1956] AC 613.
The disease in that case was pneumoconiosis which is a divisible disease (i.e. one whose severity increases with increased exposure to the agency).
Thirdly, where causation cannot be proved in either of these ways, for example because the disease is indivisible, causation may be established if it is proved that the defendant materially increased the risk of the victim contracting the disease: the Fairchild exception.
Mesothelioma is an indivisible disease."

1. 'But-for' causation (Performance Cars, Barnett v Chelsea Hospital where the nightwatchman would have died anyway bc the antidote could not have been delivered before his death).
May have been multiple reasonable ways D could have conformed with his duty  compare D's conduct to the hypothetical course of conduct D would in fact have undertaken had he conformed to his duty (Bolitho).

If D would have in fact done X to conform to his duty and doing X would not have prevented
C's damage  no causation (Bolitho). This is so even if X was more than the minimum conduct required (Robbins).

D cannot argue that C's harm would have occurred due to some future breach by himself. Nor can he rely on a 3rd party's hypothetical future breach, since D's negligence deprived C of a cause of action against the 3rd party (Wright v Cambridge Medical Group). Where D seeks to rely on a 3rd party's hypothetical wrong, or actual wrong which was not the sole cause of the damage, the Q:
would C's damage have occurred had D and 3 rd parties behaved reasonably in relation to C?

2. Material contribution KEY CASE = Bonnington Casting v Wardlaw  C need only demonstrate that D's negligence had made a material contribution to C's disease - it need not be the sole cause of the disease.

FACTS: C contracted pneumoconiosis by inhaling air which contained minute silica particles during his employment. D was in breach of a statutory duty in failing to provide an extractor fan, though even with a fan some silica particles would have been present. Thus, two possible causes: the 'guilty' dust or the 'innocent' dust.

Bailey v Ministry of Defence - If 'but-for' causation cannot be proved: C can prove on the balance of probabilities that D's negligence materially contributed to C's damage. 'Material' means something greater than negligible. Does this only apply to cases where the but-for test cannot be satisfied due to limits in medical science?

FACTS: It was enough for the patient to establish, on the balance of probabilities, that a lack of post-operative care and the consequences of that made a material contribution to the overall weakness of her condition which had caused her harm. The added weakness was taken to NOT be a but-for cause because it simply added to causes which would have led to the same outcome.
D was held liable in full in respect of an injury which may have happened anyway.
o One justification: difficult to come up with a non-arbitrary way to determine how much of the compensation D should pay due to the lack of medical knowledge.

Not much caselaw, but 'material contribution' likely means:
(a) that D's negligence caused a part of the causal chain to exist (i.e. the cause of a cause), or
(b) that but-for D's negligence, there would be one fewer, actual, sufficient set of conditions sufficient to produce the injury (e.g. two shooters case, the facts of Bailey).
Williams v Bermuda Hospitals Board (2016, UKPC, but STRONGLY PERSUASIVE) - Successive events are capable of each making a material contribution to the outcome. It is irrelevant whether the cumulative factors operated concurrently or successively. Thus, the 'material contribution' approach is not confined to cases in which the timing of origin of the contributory causes were simultaneous.


FACTS: W claimed that D's negligence caused his operation to be delayed by 2hrs 20mins which materially contributed to the consequent physical issues from which he suffered.
HELD: UKPC upheld the EWCA ruling that the delay had materially contributed to W's injury.
Green (2016) case note -
o "In upholding the Court of Appeal on causation, the Privy Council missed a chance to arrest the expansion of the material contribution to injury approach into situations in which it does not fit, and in which it is not necessary."
o Material contribution to risk analysis is only necessary where:
 1) the evidence indicates on the balance of probabilities that the C's injury would not have occurred but for the defendant's breach of duty; and
 2) that evidence is unable to distinguish between the respective effects of different, causally established factors

Example: Bonnington Casting v Wardlaw - exposure to silica dust causes pneumoconiosis by a gradual accumulation of physical particles in the lungs;
material contribution approach was necessary bc of the simultaneity of C's exposure to both sources of dust (i.e. "the simultaneity of effect of the breach and non-breach factors on the claimant") - there as "no point in time in Bonnington at which the forensic inquiry could ascertain whether the claimant was, regardless of the o

o

defendant's breach of duty, more likely than not to go on to suffer the adverse consequences which formed the basis of its claim."
In Williams, the UKPC should have asked the basic causal Q asked in Barnett: on the balance of probabilities, but for D's breach, would the damage have occurred?
 Instead, the UKPC "was distracted by the more complicated, but ultimately unnecessary, inquiry into material contribution to injury".
 "Wherever it is possible to assess the claimant's likely fate before the intervention of the defendant, this is the inquiry which should be conducted." Both Barnett and Hotson support a "chronological division of events for the purposes of establishing 'but for' causation". E.g. in Hotson the UKHL found that C's fate had been determined on the balance of probabilities even before D's breach of duty took effect.
 The UKPC in Williams did not consider this primary causal question,
instead skipping to the 'material contribution to risk' inquiry.
Green: "… making a material contribution to damage which is already bound [more likely than not] to happen is not something which should attract liability in negligence" - that would be "analogous to attributing the killing of a corpse to the person who shot it post-mortem"
 Departure from the ordinary but-for causal inquiry is only non-arbitrary where there is total chronological overlap between two causal factors - this is because there is no point in time at which the ordinary causal question can be asked.
 OTF, "the causal inquiry should have taken the form of asking whether, on his admission to hospital, C was more likely than not to have developed complications from appendicitis, given all the conditions then operative. … If the answer to this question was yes, the D's breach of duty should have been deemed causally irrelevant. If the answer was no, the D should have been help liable in full for causing C's damage. … There is no room for a material contribution analysis on these facts; that analysis belongs to a place with no chronological space between two causal factors."
 Green warns about the possible implications for medical care, in particular emergency medical care - the Williams ruling may incentivise "increasingly defensive practices the sicker a patient is to begin with"  although Williams did not involve the NHS, "the reasoning and result have potentially significant, and adverse,
implications for it".

Holtby v Brigham Cowan - As a general rule, the method of apportioning responsibility on a timeexposure basis was the correct approach in law - D is only liable for his share of the damage caused.

Asbestosis is not indivisible  more exposure leads to greater disease severity (can say that each D is a but-for cause of some part of the total severity) and hence why this method of apportionment works. 3. Material contribution to risk (= an exception to the requirement to prove factual causation on the balance of probabilities)
This is essentially an inference of causation. Key case …
Fairchild v Glenhaven Funeral Services - C exposed to asbestos by multiple employers; no scientific means of determining which exposure caused the asbestos mesothelioma

Causation may be established even where D's acts are not a but-for cause nor materially contributed towards C's harm by C proving that, on the balance of probabilities, D's negligence materially increased the risk of the damage suffered. (NB: This was confirming the previous case of McGhee).
CONDITIONS FOR USE:
(i)
it is impossible to prove causation on the balance of probability due to (at least in part) uncertainty in scientific knowledge over the causal mechanism,
(ii)
the various possible causes of C's damage are the same kind of noxious agent or would all operate so as to cause C's damage in the same or similar way* (single agent),
(iii)
C has suffered personal injury, and
(iv)
the case is not one concerning the negligence of a medical professional (instead you apply Hotson and Gregg v Scott). (NB: This is strongly suggested by Lord H and
Baroness Hale in the latter case, but not definitively ruled out.)

Heneghan v Manchester Dry Docks (EWCA, 2016) extended this to "situations which are not materially different from Fairchild"  extended Fairchild to other similar indivisible diseases (on the facts, C had been exposed multiple times to asbestos, but it was unclear which (if any) of the exposures triggered cell changes in C's body which led to him dying of lung cancer).

[47]: "… The factors identified in Fairchild for the application of this solution exist in the present case: (i) all the defendants concede their breach of duty; (ii) all increased the risk that the deceased would contract lung cancer; (iii) all exposed the deceased to the same agency that was implicated in causation (asbestos fibres); but (iv) medical science is unable to determine to which (if any) of the defendants there should be attributed the exposure which actually caused the cell changes which initiated the genetic changes culminating in the cancer."
[48]. "In short, I can see no reason not to apply the Fairchild exception to the facts of the present case. There can be no objection in principle to extending it to situations which are not materially different from Fairchild. Indeed, principle requires that in a situation which is truly analogous to that considered in that case, the Fairchild exception should be applied.
Otherwise, the law in this area would be inconsistent and incoherent."

Barker v Corus - D is only liable to the extent of his share of the risk created by his breach of duty.
This is pro rata liability for period of exposure.

That is, each D's liability is in proportion to the amount of risk (n%) to which the D
negligently exposed C. This was to be apportioned in proportion to the length of exposure to asbestos while under each employer's care.

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