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22 Cards in this Set

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Barnett v Chelsea and Kensington HospitalManagement Committee

‘Would the claimant’s harm have happened, but for the defendant’s breach?’ > If probably not, then the defendant breach caused the harm. 2) If the harm would have probably happened anyway, because of a non-tortious reason, the breach did not cause the harm!


B security guard at technical college in Chelsea – new years eve – the college had an intruder and hit one of the security guards – B and his colleagues took him to the hospital – to return for the x ray in the morning; went back to the college and within a short time all of them started feeling ill – the nurse thought they had been drinking but they weren’t – she rang the doctor on the second floor in the hospital to report them – the doctor himself was ill and told the nurse and told it to the nurse and that they should visit their own doctor if symptoms continue – went back to the college – B lied down and died out of arsonic poisoning – murder by unkown person but never resolved how this happened, probably tea poisoning – his wife brought an FAA action against the hospital for medical negligence


Held that she could not recover and that there was no negligence bc the doctor owed duty of care to those men ebcaues giving medical advice even if he never saw them + causation failed bc back in those days there was only one antidote to arsenic poisoning and had to be administered within 60-75 min of ingestion> B turned up to the hospital too late; they would not be able to save him anyway

Mallett v McMonagle

the balance ofprobabilities is the relevant standard –the claimant does not need to prove that the breach definitely caused the harmbc in the real world there are always many more possible causes…he needs toprove that the breach PROBABLY caused the harm (51% threshold). It will betreated as certain

Hotson v East Berkshire AHA [1987]:

H claimant – 13 years old – fell out of the tree– suffered hip injury – taken to the hospital but not examined properly – sent home with pain killers and told to return if the pain did not stop – 5 days later he came back – proer examination and found out that his hip turned > disability… HoL: whether the failure to examine him caused his narcotic hip joint – two possible causes: 1) delay in the examination meant that bleeding in the hip joint ruptured the blood vessels or 2) the fall out of the tree already ruptured too many blood vessels; held that he could not recover anything because there was a 25% change that the delay in the examination caused the > claimant must get over the 51% threshold – medical witnesses assessed the percentages

TheCreutzfeldt-Jakob Disease Litigation, Group A and C Plaintiffs(1998):

statistical analysis may assist


c= a group of children who had been entered into a because they were showing some signs of – to inject them human growth hormone – reports overseas but not in England that such injection can give rise to some brain disease in some patients – gvt decided that post 1st July 1977 any participant all injections must be used – in this particular trial this direction was not followed – CGD is irreversible and untreatable illness – by now adults, some of them died – problem was that causaully none of them cold establish that the injection was administered before or after 1st of July, it would be negligent only if after. Held that causation would be proven on the statistical analysis> if any claimant received more injections after the 1st of the July then statistically more likely that there was injection but mathematically it was not quite right

Corby Group Litigation v Corby DC [2009

children born near british steel site; high degrees of contamination with heavy metal – the children suffered serious physical disabilities/deformities and it was alleged that the contamination was the cause during the pregnancies they have injested- held that causation could be proven as a generic issue on the basis of epidemiological analysis: cluster of injury or damage which exceeds the injury or damage sustained by the general population

hotson

burden of proof on c to prove causation


+ no fractional damages possible

McGhee v National Coal Board

· Facts: worked at steel factory– he was workingwith ovens and in these ovens there would be some dust floating – the companywas required to provide him shower facilities to get rid of the dust after theworking day under the statue – but they did not provide him the showers – heshowered at home > suffered industrial dermatitis· problem: medical evidence was that even if the facilitieshad been provided then he could have contracted this illness anyway > guiltycause (dust that should have been showered) + innocent cause (dust he wasexposed to during the working day)· HoL held there was causation bc the guilty dustcontributed cumulatively and materially increased the risk of contracting thedisease

Fairchildv Glenhaven Funeral Services

o HoLexplained McGhee theorem and gave this testo Fworked for a number of employers who had wrongfully exposed him to asbestosdust – better filtering/masks should have been provided to him – suffered frommeso…(terminal illness caused by the exposure) – he could not prove which asbestosfibre caused the illness (from which employer)o Wentagainst first employer because others were insolvento HoLagreed there was a causation because they materially increased the likelihoodof damage even though he could not establish on balance of probabilities >recovered damageso Insurersof employers not happy about this because they have to pay for something theymight have not even caused (but for test not satisfied)· In bothcases only agent that could have caused harm to the claiamnts – that is whythey succeeded

Barkerv Corus

o exposedto wrongfully during work – difference: he exposed himself too during theperiod of self-employment – should causation apply here – HoL causation succeeson the principle even if the claimant exposes himself carelessly to the agent.Reduces rough justice from Fairchild apart from that illness.

Wilsher v Essex AHA [1988

Wilsher v Essex AHA [1988

Barkerv Corus UK Ltd [2006

· exposed to asbestos by few Ds but also hehimself exposed himself > q: will Fairchild still apply even if hevoluntarily exposed himself > yes Q2: he wanted joint & several l. – 4:1 held that their liability is not joint and several, but liability shall only be proportionate to the risk that was created by each defendant’s negligence – but employer 2 and 3 insolvent> he could recover only the fraction of the damages (how many year worked for 1/sum of years) but if other employers insolvent…they wont pay but hard to track down every employer and investigate every exposure, employer may not exist anymore…· reactions: the Compensation Act 2006>Parliament added s3 – where claimant suffered m. the liability of the Ds shouldbe joint and several > Barker reversed for that particular illness onlyo butif there is some other agents too then the liability will be proportionate

Sienkiewicz v Greif (UK

· she worked in a factory - exposure was environmental…whereone of the exposures was ‘innocent’ environmental (innocent) exposure –Fairchild exception still applied

Cook v Lewis[1951

· Cook and his friend were hunting; both shot atthe clump of bushes thinking it was an animal – but it was Lewis crunchingbehind the bush; shot in the eye – impossible to tell from which gun had theshot had come – Supreme Court of Canada… said 50% chance – causation wasnonetheless proved because it was an independent concurrent activity by Ds

Gregg v Scott

· G presented at his GP with a lump under his arm– diagnosed it was a lump of fatty tissue – 9 month later diagnosed withtumour… - at first point his survival rate was 42% but then it dropped to 25% -he argued that the delay in diagnosis caused him to loose chance of a betteroutcome – held causation must fail and that his lost chance is not acompensable damageo diverseviews of majority: Hoffman – there were three reasons for that dropped chanceof survival: misdiagnosis + patient’ s lifestyle + patient’ s genetic make up> different agents > simply Wilsher caseunder 50% probability> in legal terms no loss of a chance at allit would be possible rather than probable causation – chaos in NHS insurance…o and minority in Gregg (3:2): Hope & Scott– he did lose something; if this is to be true then the patient’s prospects ofrecovery are treated as non existent

Chatterton v Gerson [1981

· we apply hybrid test – court considers whatwould have reasonable person done if warned about the risk but qualified withthe particular characteristics of that patient having regard to importantfactors: 1. wasthe operation needed for therapeutic reasons (more likely to say yes) or justcosmetic2. pastexperience of that patient with medical treatments3. patient’s employment situation – did he really need it to keep their job> if yes>then yes4. what degree of trust does the patient place ontheir medical adviser

Hills v Potter[1984

· deformity of the neck – causing a great deal ofpain – operation to deal with it – inherent risk of paralysis arose and she wasparalysed from her neck down – she said she would not have the operation if shewere warned – held that causation failed because 1) it was a great conditioncausing great deal of pain> would do it and 2) placed a great deal of faithin her doctors (from the past, etc)

Chester v Afshar [2004]:

· she had a neck pain – recommended that she had asurgery to relieve the pain – 1-2% risk of paralysis and was not warned aboutit – she had her operation 3 days after the consultation and she was paralysed– she admitted that she would have had the operation even if the info about therisk had been given but I woul have it at another time, another venue andanother doctor > HoL; held that the causation was proven; 4 reasonso Indicatespatient’ s right to personal autonomy to choose where the treatment should be o Emphasizesto the medical profession the duty to disclose the risko Rewardsthe honest patiento Therisk that happened was no coincidental; the precise risk that should have beenwarned about

McKew v Holland and Hannen

· claimant suffered a work injury because of hisemployer’ s negligence (D1), left him very weak/gammy leg; wanted to inspect aflat in Glasgow on his way back very steep staircase no handle and carrying achild – weak leg gave way and had to jump down and broke his ankle – D1 allegedthis was an intervening act – HoL held this was an intervening act because itwas so unlikely that it was almost unforeseeable

Knightley v Johns

· same test (so unlikely as to be almostunforeseeable) – D1 overturned his car in a tunnel because driving too fast –police inspector called to the scene (D2) forgot to close the one way tunnel –instructed K to ride the wrong way down against the traffic flowing down – Khit by a car (D3) which was driving the right way – CoA held that D3 was notliable in negligence because it was a true inevitable accident (could not haveacted differently) – D1 not liable for negligence to claimant because D2’ s actwas an intervening act; key reason: so many departures committed by this policeinspector and his negligence was almost unforeseeable

Fitzgerald v Lane [1989

· 22 year old estate agent – running late to showsomeone premises – crossed the divided road against the red walkman – hit by acar (D1) – accepted he was negligently driving too fast – hit also by a secondcar (D2) – q: whether D2 was intervening act – HoL held both of these driverswere committing a negligent driving, therefore the both were equally liableunder the 1978 Act

Webb v Barclays Bank plc [2001

· intervening medical treatment cannot constituteNAI unless the negligence – suffered… - fell over a protruding stone – premiseswere Barclay’s (D1) and they were responsible to keep it free of obstructions –great pain in her leg – her surgeon recommended that amputation should becarried out above her knee – later decided that it was not necessary and didnot solve the pain – CoA; q: whether surgeons were negligent – held it was noNAI because it was not so unlikely as to be almost unforeseeable (25 and 75%)

Baker v Willoughby [1970

· B injured in a car accident by W’s (D1)negligent driving - permanently disabled left leg – working later in a scrapmetal yard – two robbers (D2) broke in and shot him – left leg had to beamputated because of those bad injuries – D2 never found – B could sue only W –q: what damage was D1 liable for – held by HoL: he was liable for the full extentof B’ s injury (pre and post shooting) bc D2 must take the victim as he findshim and robbers would be liable only for the cost of the artificial leg or painsuffered as D1 caused the injury which led to amputation; he is justlyresponsible for it