4.

3 Problem Fact Patterns in Proving Causation

4.3.1. Loss of a chance of recovery
-

An area that but for test is inconclusive

Due to Ds negligence, P lost a chance of avoiding an injury / his
situations got worsen.
P doesnt seek damage for all of his injuries, but just that portion
connected to the loss of chance
Hotson (1987, HL)
Fact: a kid fell out of a tree and got his hip hurt. He attended at the
defendants hospital and the hospital misdiagnosed his injury.
5 days later, he was healed but has already suffered a permanent
injury. Evidence showed that if he was treated previously, there is
chance of recovery.
Plaintiff sued for of total damages.
Can but for test be passed (on the permanent damage)? NO.
Can but for test be passed (on the chance of recovery)? YES
Held: rejected the loss of chance argument, adopted an all-or-nothing
approach.
On that basis, if P is able to prove, on a balance of probabilities, his
permanent injury is caused by Ds delay of a proper treatment over the
fall; he is awarded to all the damages.
(Mathematically, the loss of chance must be greater than 50%. E.g.
74% 11%)
(Lord Bridge: analogy between this case (medical diagnosis) and
Chaplin (the lost chance for securing an employment) and Kitchen (the
lost chance of prosecuting a successful civil action) is inappropriate.)

Gregg (2005, HL)

Facts:
Ds failure to diagnosed Ps cancer. Ps cancer was discovered 9
months later. During the 9-month delay, Ps [chances of living for 10
more years] reduced from 42% to 25%
Held:
On a balance of probabilities, even diagnosed earlier, he would not
be able to live for 10 more years (42%)
(42%-25% = 17% < 50%)
Therefore, on a balance of probabilities, his [being unable to live for
10 more years] is not caused by defendant.
Lord Hoffman,
Everything has a determinate cause, even if we do not know what it is.
What we lack is knowledge and the law dealsby the concept of the burden of
proof.
One striking exceptionis the actions of human beings. This may provide
explanation for why in some cases damages are awarded for the loss of a
chance
The apparently arbitrary distinction obviously rests on grounds of policy
most of the cases in which there has been recovery for loss of a chance have
involved financial loss, where the chance canbe characterized as an item of
property.
Lord Nicholls (Dissenting)
(Loss of chance argument applies) Justice so requires, because it matches
medical reality
the purpose of the duty (of doctors) is to promote the patients prospects of
recovery

Issues and Questions

1. Some of the members of the court in Hotson had left open for future
cases the possibility of a plaintiff being able to claim for loss of a
chance, but the circumstances in which this might occur was not
identified.
2. Criticism: Based on this decision, doctors will not be willing to treat
patients who have a small chance of recovery, because they wont
be able to sue the doctors.
3. The plaintiffs loss of chance argument can be applied to
McWilliams (safety belt; where the wife cannot prove her husband
would use it if provided)
Note the case of Fairchild (mentioned by Lord Hoffmann as provided an
exception!
A basic question for this lecture: can causation be proved if but for test
is not passed?
4.3.2 Material contribution to injury

There can be two or more causes of an injury/accident

o E.g. P is contributorily negligent;

there are multiple tortfeasors (e.g. two motor vehicles driven

negligently, one of which hurt a passenger)
In such case, it did not matter that the defendants negligence only
made a contribution in an indeterminate amount. It was sufficient
that it made a material contribution.
o

Bonnington Castings v Wardlaw:

Plaintiff contracted lung disease after inhaling silicon dust over a
period of years from sources
Only one source is traceable to the defendant employers
negligence
No way to know the proportion of innocent and tortious dust
inhaled no way to know whether the plaintiff would have
contracted the disease even if the defendant had not been
negligent
Held:
It was sufficient proof that the defendants negligently produced
dust materially contributed to the disease
D held liable for the entirety of the damages arising from the
disease
4.3.3 Material increase of the risk of injury

An independent agent (non-tortious) works together with Ds breach

of duty to bring about the injury
In such case, causation is proved if Ds act is a material
contribution to the injury (McGhee, 1973)
Under McGhee, however, if P cannot prove Ds breach of duty
materially contributed to the injury (because it is impossible to
know which is the material cause. P will fail.

McGhee (1973, HL)

Facts:
P was employed by D as a laborer at their brick works. He
returned home everyday without washing because D did not
provide the washing facilities (breach of duty) P then suffered a
skin disease, due exposure to the dust. The real reason of that
disease is not known by medical science
The issue: which is the effective cause? The neutral cause due
to general poor work conditions (but still fulfill legal
requirement)? Or the employers negligence to not provide
shower?
Held: (judgment in favour of P)
This is not a correct approach. It is sufficient if Ds negligence can
materially contributed to increasing the risk of injury.
One need not to prove, Ds negligence alone can cause the injury.
It is not important if there is no medical proof on the cause of
such disease. It is sufficient if experience shows that it is so.
It relaxes the but for test. (A less stringent casual connection
suffices) It can also be said that, the proof of causation on a
balance of probabilities is waived.
The role of policy? the creator of the risk, who must have
foreseen the possibility of damage, should bear its
consequencesLord Wilberforce
(Cheng Loon Yin, 2006)P attack by hawker, no personal alarm, P sued his
employer, relied on McGhee to argue that not having a personal alarm
materially increased his risk. This argument was rejected.

Fairchild (2003, HL) (There are actually 3 claims)

Facts: P exposed to cancer-causing asbestos by multiple
employers (Ds) who were found negligence. It was found that
the trigger of the cancer is on a single occasion which mechanism
is unknown. It is not cumulative. Therefore, P cannot prove who
the employer was when he contracted that cancer.
Held:
Lord Nicholls:
The example of two hunters fire their guns carelessly. One
bullet injures an innocent passer-by. Although the plaintiff is
unable to prove from which gun the bullet came, it would
be absurd to leave the plaintiff remediless.
Both should be liable. Although it may be unfair to the one
of them, it is anyway better than leaving the P without
remedy.
In very exceptional cases, if justice so required, the
threshold of but for test can be lowered. (cautious not to
cause injustice to D)
So long as it was not insignificant, each emploters wrongful
exposure of its employee to the dust (which increases the
risk of getting the lung disease) should be regarded by the
law as a sufficient degree of causal connection.

Lord Rodger (defining the criteria in using the McGhee)

1. The exact cause of injury is unknown (the immediate
cause is known)
2. Materially increased the risk of injury to the claimant
himself (not a class of people)
3. Negligence on the part of Ds act
4. Damage to P as caused as an eventuation of the risk of Ds
act (distinguished from Wilsher)
5. In regards to another sources, P must prove that it is a
similar agency, as the act of D. (e.g. a workman suffered
skin disease due to exposure of two dust sources releasing
similar particles)
6. That another source can be tortious or non-tortious
The defendants (Ds) are liable for all damages on a jointly and
several basis (the plaintiff can go to any of the defendant (D1) to
get the damages. It is the responsibility of D1 to go to other
defendants to sort out their respective share of that liability,
maybe through their own contribution proceedings)
(see powerpoint for a simplified version of necessary criteria)

Barker v Corus (2006, HL) (There are 3 claims)

In this case, the judge seeks to limit the reach of Fairchild which held
all ex-employers jointly and severally liable
Facts: essentially the same fact as Fairchild; two main differences,
there are a phase that the deceased P was self-employed; some of
the ex-employers became insolvent.
Held:
Confirming the general liability principle from Fairchild and McGhee,
allowed the appeal that ex-employers should be severally liable on a
proportionate basis only

The attribution of liability is according to the duration of the

employment and the intensity of the exposure
It was said it could smooth the roughness of the justice, per Lord
Hoffmann
Note the distinguishing fact that there is a self-employment
phase, it may be this reason why the liability should be several
but not jointly and several, only doing so can the contributory
negligence comes in play. Therefore the Ds will not be liable for Ps
own fault
Note the distinguishing fact that there are some insolvent exemployers too
The significance of Barker: (narrowing Fairchild) plaintiff must find
all defendants in order to get full recovery. If any of those are dead /
insolvent, other Ds wont have to pay his part.

Issue and Questions

1. Is there a distinction between material contribution of injury and a
material increase of the risk of injury In McGhee and Fairchild, this
distinction is not clear. However, in Barker, the distinction is
important. The principle of Barker is that, those who materially
increased the risk but not necessarily materially contributed to
injury are liable based on to apportionment. The distinction is
controversial in Wilsher.
2. Can material increase of risk argument be applied in Gregg v
Scott or Hotson. This sounds attractive. But they cannot fulfill Lord
Rodgers criteria
3. The reasoning here does not confine in employment related
disease, e.g. informed consent to medical risk.
4. How about a case where a number of drug manufacturers produced
versions of same drug, each proves to be cancer-causing. Can P rely
on the material increase of risk reasoning? From the American
approach, it does notu apply because given the social value of drug
manufacturers

5. Notice the reversal of jointly liable principle by UK Parliament

later. (Compensation Act 2006) It became jointly and severally
liable again.
4.3.3 Multiple Possible (Independent) Causes
Cases involving discrete and independent possible causes, one of which
was the cause of damage. But it is unclear which is that.
Wilsher (1988, HL)
Facts
P (an infant) was born premature
D (doctor) negligent in giving too much oxygen, P later suffered
blindness
Excess oxygen is only one possible cause
Issue: is it enough to show that D materially increased the risk?
Held: (per Lord Bridge, in favour of the defendant)
To apply the principle of McGhee would be an extension of that
principle
Distinguish this case with McGhee:
McGhee, only one possible agent. There is no doubt that the disease
was caused by brick dust;
Wilsher: multiple causes other than excess oxygen, and no evidence
that excess oxygen is more likely than other candidates to have
caused the blindness
Since there is no evidence that excess oxygen is a material
contribution
A good quote, The nature of causationcan best be answered by
ordinary common sense rather than abstract metaphysical theory
Issues and Questions
1. Such distinction is not really convincing. Note that it is true that
excess oxygen materially increased the risk of blindness. Lord
Bridge seemed to confine the principle of McGhee as material
contribution. (Yet, Fairchild expressed that the position of McGhee
was material increase of risk)
2. Lord Wilberforce ruled in McGhee that, in similar cases, burden of
proof will shift to D. Such position was rejected in Wilsher
3. The pro-doctor ruling in Wilsher will affect plaintiffs who are suing
the Hospital Authority for contracting SARS due to hospitals breach
of duty. Such claims will be difficult.
4. Dont confuse with novus actus interveniens where the effective
cause(s) is known.