Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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Material Contribution to harm
The Rule
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
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
Recovery permitted - the swing grinders contributed a quota of silica dust which was not negligible to C’s lungs
and helped to produce the disease from which he suffered
MOD v AB and Others [2010]:
Smith LJ
In Bonnington, the claim succeeded because the tortious exposure to silica dust had materially aggravated (to an unknown degree)
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
But the principle cannot be used for indivisible conditions
MOD v AB and others [2010]:
Smith LJ
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.
This principle applies only where the disease or condition is 'divisible' so that an increased dose of the harmful agent worsens the disease.
In those cases, the pneumoconiosis and the weakness were divisible conditions.
[although the proportions themselves could not be determined]
It does not matter if one of the causes is natural causes and one is tortious
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
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
Judge decided at first instance that this was a case where MOD had made a material contribution to the risk of C aspirating vomit
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.
If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event,
C will have failed to establish that the tortious cause contributed.
If the evidence demonstrates that ‘but for’ the contribution of the tortious cause the injury would probably not have occurred,
C will (obviously) have discharged the burden.
In a case where medical science cannot establish the probability that ‘but for’ an act of negligence the injury would not have happened
but can establish that the contribution of the negligent cause was more than negligible,
the ‘but for’ test is modified, and C will succeed.
Swinging further towards claimants
Canning-Kishver v Sandwell and West Birmingham Hospitals
Sir Christopher Holland
The evidence does not establish on balance of probabilities that A's brain injury arose simply from her immaturity.
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.
However I find on balance of probabilities the contribution of the collapse occasioned by the breach of duty
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?
Reference to material increase in risk, but seems to be different
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.
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
Subsequent cases have interpreted it as material contribution
MOD v AB and Others [2010]:
Smith LJ (who agreed with Waller LJ in Bailey v MOD)
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
Cancer is an indivisible condition; one either gets it or one does not.
The condition is not worse because one has been exposed to a greater or smaller amount of the causative agent.
In Bailey, the tort (a failure of medical care) increased C’s physical weakness. She would have been quite weak in any event as the result of a condition she had developed naturally.
No one could say how great a contribution each had made to the overall weakness save that each was material.
It was the overall weakness which led to the inhalation of vomit and resulting brain damage.
In those cases, the pneumoconiosis and the weakness were divisible conditions.
Material increase in Risk
The rule
Fairchild v Glenhaven Funeral Services
Lord Bingham
McGhee did lead to new principle of law
Essentially that those who made a material increase to the risk of harm
Should be treated, in the absence of any other evidence, as having materially contributed to the harm.
On policy grounds, would also be unjust to deny C recourse as clearly wrong has been done by set of Ds
But...
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Tort Law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB tort law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).
These were the best Tort Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highest results in ...
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