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Causation And Remoteness In Tort Notes

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Causation and Remoteness

1. Causation General Test Barnett v Chelsea Hospital [1969] 1 QB 428: P drank some tea which had been laced with arsenic and he presented himself at D's hospital since he was vomiting. D told him to leave and call his own doctor. P died, but it was unclear that even if he had been admitted to the hospital he would have survived. P's widow sued for negligence. The court held that there was proximity since P had presented himself at D's hospital, and that D was negligent in not treating him. However it was not proven that on the balance of probabilities P's negligence caused D's death, since he might have died anyway if he had been admitted to hospital. Performance Cars v Abraham [1962] 1 QB 33: P had a car collision with X that meant P's car needed a respray. He then collided with D, through D's negligence, which would of itself have necessitated a respray. P sued D for the cost of a respray. CA ruled that since P's car already needed a respray, the need for it did not flow from D's negligence and therefore he would not be liable. Lord Evershed MR says to allow P to claim for damage that merely "would have" been caused by D in other circumstances is absurd: suppose A chips my windscreen so I have to get a new one and then you chip it: surely you shouldn't compensate me because there is no extra damage caused by your action. Baker v Willoughby [1970] AC 467 (NB CONFINED TO CASES OF TWO TORTIOUS ACTS BY JOBLING): P walked into the middle of the road and D, driving, ran into him, causing damage to P's leg. They both saw each other over 200 yds and neither took evasive action. The fault was ruled to be 25% P's and 75% D's. Shortly after the accident P was shot in the leg and it had to be amputated immediately. HL held that the subsequent shooting was irrelevant to the amount of damages that D had to pay, and that D would have to pay the value of 25% of the damage to the leg overall (i.e. NO reduction despite the fact that D did not cause the leg to be shot and amputated). The shooting and car accident were to be treated as concurrent causes of the disability and each was liable for the full damage to the leg i.e. that D should have to pay the full amount for the long term damage he would have caused (had there been no shooting) despite the fact that P would have been shot anyway (and P's actions made irrelevant). Lord Pearson: we should take a "unitary and comprehensive" view of the original injury, assessing it as a "devaluation" in the leg, for which the responsible party should pay (though only for the proportion of the devaluation for which he was responsible). The only thing that could change the amount to be paid is a reduction in the extent of the devaluation e.g. an unexpected recovery OR a shortening of P's life expectancy i.e. the period over which the plaintiff will suffer from the devaluation. If another tort occurs then the new tortfeasor will be liable for the further devaluation. The life-shortening point is supported by the fact that if an injury costs P 20 years working income by destroying

his capacity to work, and then after only 1 year P dies of an unrelated event, it would be unfair to make D pay for 20 years since this would no longer be compensation. Lord Reid: There were 2 concurrent causes of P's disability and both tortfeasors should have to pay for the suffering they cause. This seems logical: The "but for" test would support Lord Reid's conclusion since even "but for the shooting" P would still be disabled. The correct approach is that adopted: to say that each party has to pay for the "devaluation" that they cause, making a qualification for cases where the extent of the devaluation has been reduced by something, for example a wonder-cure: this qualification is made by Lord Pearson. The shooting does not absolve P of responsibility for disabling D, since even without the shooting D would still have been disabled: it merely aggravated the situation. Jobling v Associated Dairies Ltd [1982] AC 794: In 1973 P, who was expected to work until 1985 suffered an injury due to his employer's, D's, negligence which would reduce his capacity to work by 50% for the rest of his working life. Independently of this, in 1975, he contracted a disease that totally incapacitated him. Does D have to pay him 50%
for 3 years or 50% for 12? HL say for 3 years, since "the myelopathy (totally incapacitating disease) could not be disregarded since the court must provide just and sufficient but not excessive compensation". Lord Wilberforce: there are no overall rules that can govern this type of case that are universally fair and the best the courts can do is to assess just compensation on a case by case without rationalisation/exposition of universal guidelines/principles. Bad for legal certainty + inconsistency potential. The "vicissitudes" argument was adopted by several judges: that the contingencies/vicissitudes of life can change a person's fortunes and it would be wrong to ignore them when arriving at a fair settlement: the courts "should not speculate when they know" (Lord E-D). Problem is that this fails to reconcile Jobling with Willoughby. The House of Lords criticised the ruling in Willoughby on the grounds that it did not comply with the vicissitudes principle- Lord Reid. The problem with the vicissitudes argument is that it prioritises "potential causes" over "actual causes". In this case half the disability was caused by the negligence and the rest completed by the disease. If the disease had struck first then it would have been the cause, but as it happens the negligence happened first and caused half the disability. The fact that another "concurrent cause" (to use the Willoughby language) operates to complete the disability does not change what the original cause was or the fact that it is still operating: The vicissitudes argument assumes that there is only ever one cause, which is incorrect. Lord Keith said that he would reconcile Willoughby with the present case by saying that Willoughby was restricted to cases where there were two tortious acts, unlike the present case. Lords Bridge and E-D imply a desire to overrule Willoughby. Wilsher v Essex Area Health Authority [1988] AC 1074: Ds messed up the blood pressure levels when P was a baby with the result that they treated him incorrectly and he

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