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Law Notes Tort Law Notes

Proof Of Causation Notes

Updated Proof Of Causation Notes

Tort Law Notes

Tort Law

Approximately 1070 pages

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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