Medicine and the
Law
Causation in a fault
based system
The Common Law
The system of law that governs:
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England & Wales
Ireland
USA and most Canadian States
Australia
New Zealand
Tort
The breach of an obligation placed upon a person
by the law
Note:
 The obligation is imposed by law
 The State does not enforce compliance with the
obligation
 The remedy for breach of the obligation is
normally monetary
 Punishment is not the primary purpose of
litigation
Negligence or faultbased liability
 3 Main INGREDIENTS
 A duty to take care
 A breach of that duty
 Loss or injury caused by that breach
Causation
 The defs breach must have caused
the claimant’s damage AND the
damage must be such that the law
regards it proper to hold the def
responsible for it.
Injury caused by the
breach
 CAUSE IN FACT PROVED
 The "But for" test
 Barnett v Kensington & Chelsea HMC
 Drs breach in not seeing him didn’t cause
death –he would have died anyway…=> not
liable
 Generally "but for" test must be fulfilled
 But there have always been exceptions
 Summers v Tice and Cook v Lewis
Summers v. Tice
 Supreme Court of California, 1948.
 33 Cal.2d 80, 199 P.2d 1.
 Facts: Two guys were trying to shoot a
quail but missed and one of them hit the
plaintiff. Nobody knows which one, but
one and only one defendant hit the
plaintiff. The plaintiff sued and won
verdicts at trial against both defendants.
Summers v Tice
 Issue: Can both defendants be held liable when
only one was in fact responsible?
 Rule: Both defendants may be held liable if both
were negligent.
 Analysis: As a matter of policy, confusion over
who dunnit should not bar recovery by the
plaintiff. Since the court finds that both
defendants were negligent and thus both in the
wrong, it is not considered unfair to make them
both pay. The court argues that if one was more
responsible than the other, they should fight it
out amongst themselves.
 Conclusion: The judgment of the trial court was
affirmed.
Summers v Tice and Cook
v Lewis(1952)
 Because the damage is clear and
can be proven, but which of the two
defs was the tortfeasor cannot be
determined, the onus is on one of
the defs to exculpate himself
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Both acted in a way that was at
least potentially negligent.
Injury caused by the
breach
 CAUSE IN FACT PROVED
 material contribution sufficient in
cumulative exposure cases
 Bonnington Castings v Warlow [1956]
 Silica dust –2 sources -pneumoconiosis
 Def could be liable if breach contributed
materially to damage suffered.
 material contribution equated with
increased risk in single employer cases
 McGhee McGhee v National Coal Board
(1973)
 Coal dust -Lack of shower facilities Dermatitis
 ? Reversal of burden of proof when scientific
knowledge is limited or might be elusive to a
lay person.
 Decision reversed in Wilsher v Essex AHA
 Burden of proof remains with claimant
Injury caused by the
breach
 CAUSE IN FACT PROVED
 now equated with increased risk in
multiple employer cases
 Fairchild v Glenhaven Funeral Services Ltd
[2002]
 Claimants exposed to asbestos dist over
several years and by several employers –
Mesothelioma
 HL held unanimously EACH employer was
liable
 (each materially increased risk to C’s)
Injury caused by the
breach
 CAUSE IN FACT PROVED
 The Chester v Ashfar case in
England and Chappel v Hart in
Australia
Cause in fact not proved
 Several possible causes of which
the breach is only one.
 Wilsher v Essex AHA
 emphasised strict adherence to the
principle that it was for the Claimant to
prove that a particular Defendant had
caused the damage – on a balance of
probabilities.
 Where the breach results in a loss of a
chance of a cure  Hotson v East Berkshire AHA (75%-100%)
 Gregg v Scott (42%-20%)
 Where the breach results in
unquantifiable damage
Cause in Law
 Limitation on recoverability as a
consequence of policy
 "Policy" wrapped up in lawyer's
terminology
 Foreseeability
 Proximity
 "Fair, just and reasonable" - damage
outside the scope of the duty
Cause in Law (continued)
 Foreseeability
 The need for the type of damage
sustained to be within the reasonable
contemplation of the tortfeasor
 But note the so-called "thin skull rule“
 Note also the extent of the damage need
not be foreseeable
 Note also that the damage sustained
need not be a likely or a probable
consequence of the breach
Cause in Law (continued)
 Proximity
 Limits on the class of people to
whom a duty is owed.
 Limits on the scope of the duty
owed
Conclusions
 Are the restrictions to causation in
fact legitimate, practical and fair?
 Are the restrictions to causation in
law appropriate?
 Is there a better way of limiting
liability for a medical accident?