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Proof Of Causation Notes

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Material Contribution to harm The Rule

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If we know something has made a material contribution to a disease, recovery is available even if the proportions are not known so long as the tortious one is material o Bonnington Castings v Wardlaw - C was exposed to silica dust from two sources - one which was tortious and one which was not. He developed a respiratory disease, but it was clear that the contribution of the tortious disease, while not small, was vastly lesser than the first.
? Held

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Recovery permitted - the swing grinders contributed a quota of silica dust which was not negligible to C's lungs o and helped to produce the disease from which he suffered o MOD v AB and Others [2010]:
? Smith LJ

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In Bonnington, the claim succeeded because the tortious exposure to silica dust had materially aggravated (to an unknown degree) o the pneumoconiosis which the claimant might well have developed in any event as the result of non-tortious exposure to the same type of dust.
? The tort did not increase the risk of harm; it increased the actual harm

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But the principle cannot be used for indivisible conditions o MOD v AB and others [2010]:
? Smith LJ

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As far as cancer is concerned, C cannot rely on proving that the radiation exposure has made a material contribution to the disease, as in Bailey and Bonnington Castings.

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This principle applies only where the disease or condition is 'divisible' so that an increased dose of the harmful agent worsens the disease. o In those cases, the pneumoconiosis and the weakness were divisible conditions.
? [although the proportions themselves could not be determined]

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It does not matter if one of the causes is natural causes and one is tortious o Both McGhee, Bonnginton had cases where the source of the dust was the employer, albeit that some was tortious and some not
? In Wilsher, the multiple different causal agents - some natural and some not - defeated the claim both for material contribution and increase of risk o Bailey v MOD [2008]: C received negligent treatment, but also contracted pancreatitis, which contributed to the fact that C was so weak she was in a state where she aspirated vomit, causing brain damage.
? Waller LJ

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Judge decided at first instance that this was a case where MOD had made a material contribution to the risk of C aspirating vomit

o As their lack of care had meant C was in such a weak state
? This meant MOD had either increased the risk of C aspirating vomit
? OR materially contributed to the deterioration which allowed C to aspirate vomit and cause brain damage.

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If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the nontortious cause or causes in any event, o C will have failed to establish that the tortious cause contributed.

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If the evidence demonstrates that 'but for' the contribution of the tortious cause the injury would probably not have occurred, o C will (obviously) have discharged the burden.

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In a case where medical science cannot establish the probability that 'but for' an act of negligence the injury would not have happened o but can establish that the contribution of the negligent cause was more than negligible,
? the 'but for' test is modified, and C will succeed.

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Swinging further towards claimants o Canning-Kishver v Sandwell and West Birmingham Hospitals
? Sir Christopher Holland

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The evidence does not establish on balance of probabilities that A's brain injury arose simply from her immaturity. o That cannot be excluded as a possibility but there is nothing to say that that non tortious cause was probable and the evidence of the experts militated against this.
? However, the fact of residual possibilities militates against success for A by reference to a 'but for' test.

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However I find on balance of probabilities the contribution of the collapse occasioned by the breach of duty o constituted a contribution to the harm than was more than negligible so that the claim succeeds. Was Bailey dealing with material contribution or increase in risk?

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Reference to material increase in risk, but seems to be different o While there was reference to Fairchild and material increase in risk,
? Waller LJ seems to base his decision on material contribution, which is not the same as the material increase in risk doctrine and not subject to Wilsher. o Bailey: It is unclear whether the case was decided on the basis of the two factors combining to make a sufficient weak condition
? If it is this, then it fits within the narrow Bonnington

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Subsequent cases have interpreted it as material contribution o MOD v AB and Others [2010]:
? Smith LJ (who agreed with Waller LJ in Bailey v MOD)

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