Tort: Causation and Remoteness

1. Causation

General Test

Barnett v Chelsea Hospital [1969] 1 QB 428: P drank some tea which had been laced with arsenic and he presented himself at D’s hospital since he was vomiting. D told him to leave and call his own doctor. P died, but it was unclear that even if he had been admitted to the hospital he would have survived. P’s widow sued for negligence. The court held that there was proximity since P had presented himself at D’s hospital, and that D was negligent in not treating him.

However it was not proven that on the balance of probabilities P’s negligence caused D’s death, since he might have died anyway if he had been admitted to hospital.

Performance Cars v Abraham [1962] 1 QB 33: P had a car collision with X that meant P’s car needed a respray. He then collided with D, through D’s negligence, which would of itself have necessitated a respray. P sued D for the cost of a respray.

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CA ruled that since P’s car already needed a respray, the need for it did not flow from D’s negligence and therefore he would not be liable. Lord Evershed MR says to allow P to claim for damage that merely “would have” been caused by D in other circumstances is absurd: suppose A chips my windscreen so I have to get a new one and then you chip it: surely you shouldn’t compensate me because there is no extra damage caused by your action.

Baker v Willoughby [1970] AC 467 (NB CONFINED TO CASES OF TWO TORTIOUS ACTS BY JOBLING): P walked into the middle of the road and D, driving, ran into him, causing damage to P’s leg. They both saw each other over 200 yds and neither took evasive action. The fault was ruled to be 25% P’s and 75% D’s. Shortly after the accident P was shot in the leg and it had to be amputated immediately.

HL held that the subsequent shooting was irrelevant to the amount of damages that D had to pay, and that D would have to pay the value of 25% of the damage to the leg overall (i.e. NO reduction despite the fact that D did not cause the leg to be shot and amputated). The shooting and car accident were to be treated as concurrent causes of the disability and each was liable for the full damage to the leg i.e. that D should have to pay the full amount for the long term damage he would have caused (had there been no shooting) despite the fact that P would have been shot anyway (and P’s actions made irrelevant).

Lord Pearson: we should take a “unitary and comprehensive” view of the original injury, assessing it as a “devaluation” in the leg, for which the responsible party should pay (though only for the proportion of the devaluation for which he was responsible). The only thing that could change the amount to be paid is a reduction in the extent of the devaluation e.g. an unexpected recovery OR a shortening of P’s life expectancy i.e. the period over which the plaintiff will suffer from the devaluation. If another tort occurs then the new tortfeasor will be liable for the further devaluation. The life-shortening point is supported by the fact that if an injury costs P 20 years working income by destroying his capacity to work, and then after only 1 year P dies of an unrelated event, it would be unfair to make D pay for 20 years since this would no longer be compensation.

Lord Reid: There were 2 concurrent causes of P’s disability and both tortfeasors should have to pay for the suffering they cause. This seems logical: The “but for” test would support Lord Reid’s conclusion since even “but for the shooting” P would still be disabled. The correct approach is that adopted: to say that each party has to pay for the “devaluation” that they cause, making a qualification for cases where the extent of the devaluation has been reduced by something, for example a wonder-cure: this qualification is made by Lord Pearson. The shooting does not absolve P of responsibility for disabling D, since even without the shooting D would still have been disabled: it merely aggravated the situation.

Jobling v Associated Dairies Ltd [1982] AC 794: In 1973 P, who was expected to work until 1985 suffered an injury due to his employer’s, D’s, negligence which would reduce his capacity to work by 50% for the rest of his working life. Independently of this, in 1975, he contracted a disease that totally incapacitated him. Does D have to pay him 50% for 3 years or 50% for 12? HL say for 3 years, since “the myelopathy (totally incapacitating disease) could not be disregarded since the court must provide just and sufficient but not excessive compensation”.

Lord Wilberforce: there are no overall rules that can govern this type of case that are universally fair and the best the courts can do is to assess just compensation on a case by case without rationalisation/exposition of universal guidelines/principles. Bad for legal certainty + inconsistency potential.

The “vicissitudes” argument was adopted by several judges: that the contingencies/vicissitudes of life can change a person’s fortunes and it would be wrong to ignore them when arriving at a fair settlement: the courts “should not speculate when they know” (Lord E-D). Problem is that this fails to reconcile Jobling with Willoughby. The House of Lords criticised the ruling in Willoughby on the grounds that it did not comply with the vicissitudes principle- Lord Reid. The problem with the vicissitudes argument is that it prioritises “potential causes” over “actual causes”. In this case half the disability was caused by the negligence and the rest completed by the disease. If the disease had struck first then it would have been the cause, but as it happens the negligence happened first and caused half the disability. The fact that another “concurrent cause” (to use the Willoughby language) operates to complete the disability does not change what the original cause was or the fact that it is still operating: The vicissitudes argument assumes that there is only ever one cause, which is incorrect.

Lord Keith said that he would reconcile Willoughby with the present case by saying that Willoughby was restricted to cases where there were two tortious acts, unlike the present case. Lords Bridge and E-D imply a desire to overrule Willoughby.

Wilsher v Essex Area Health Authority [1988] AC 1074: Ds messed up the blood pressure levels when P was a baby with the result that they treated him incorrectly and he went blind. The judge ruled that since D had failed to prove that they did NOT cause the blindness they were liable. HL reversed this and said that causation had to be proven on the balance of probabilities, the burden being on the plaintiff. Since this had not been done, there would have to be retrial.

Loss of a Chance

Hotson v East Berkshire Area Health Authority [1987] AC 750: P was injured and taken to hospital where there was a negligent failure to treat him. He later developed a more serious injury from the initial one, and the trial judge found that there was a 25% chance that if P had been treated on time the latter injury would have been prevented. The trial judge had awarded him 25% of the value of his injury. HL reversed this and held that it was for P to prove on the balance of probabilities that the negligence of D caused his later more serious injury. Since he had not, his claim for that injury was dismissed.

Lord Bridge: since, if P proved on the balance of probabilities (i.e. 51%) that the negligence caused his injury, he would be entitled to the full amount and not merely 51% of it. Therefore it would be unjust to make D pay a proportion of this where he had not reached the evidentiary threshold.

Allied Maples Group v Simmons & Simmons [1995] 4 All ER 907: D paid P, solicitors, to take over a company for them. After completion, D became aware of several claims that could be made against them as a result of the takeover agreement and sued D. CA allowed the claim, saying that causality was a question of fact, to be determined on the balance of probability and that once this fact was established, D was entitled to claim for damages in full.

Where this question relates to a 3rd party and he can show that there was a substantial/real chance (NOT merely a speculative one) that a 3rd party would have conferred a benefit on him (or averted a detriment) he can claim for the value of the benefit foregone. The CA found (Millett LJ dissenting on purely factual grounds) that had it not been for D’s negligence, P would not be open to the aforementioned claims. Thus loss of a chance to be indemnified against losses could be compensated where the loss was dependent on the acts of a third party (ie whether the target company would have agreed to such indemnities).

Gregg v Scott [2005] UKHL 2: As a result of D’s negligence, P’s cancer was diagnosed late and his chances of long term survival were reduced as a result from 42% to 25%. P argued (1) that the reduction in chances of survival WAS injury, or (2) that reduced chances of survival should give rise to liability in its own right. HL rejected “lost opportunity” as giving rise to liability. This case was decided on the traditional guidelines for a tort claim.

Lord Hoffman (majority): The law treats every harmful event as having a single determinate cause. It is therefore impossible to compensate a person for an act which has not caused the harmful event. Here on balance of probabilities the impugned treatment did not ‘cause’ the outcome (it merely reduced P’s survival chances). To allow compensation in proportion to ‘chance’ would contradict this fundamental position that the law takes on causation. Exceptions to the rule, such as loss of a chance where the loss is dependent on third party conduct, is an arguably unprincipled exception. The Fairchild exception (see below) is tightly confined. Another consideration is floodgates, since nearly everything a doctor does affects survival chances by a small percentage.

Minority: Lord Nicholls: floodgates is a bad reason for depriving people of compensation. He also says that since it is a doctor’s duty to protect a patient’s prospects, there ought to be a remedy where this duty is abandoned. Lord Hope says that the enlargement of the tumour itself is physical harm and should be compensated irrespective of effect on survival chances long term.

Rothwell v Chemical & Insulating Co; Re Pleural Placques Litigation [2006] EWCA 27, [2006] 4 All ER 1161: see facts in session 1 reading.

Material Risk of Contribution to Harm

Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32: Ps had been exposed to asbestos by different employers over different times and they caught a disease from it. However it could not be proved which specific exposure caused the disease or at which moment it was contracted, so that no tortfeasor could be said on the balance of probabilities to have caused the disease. HL held that in such a case (i.e. the specifics of this case where the source of the problem is undoubted but it is impossible to pinpoint a particular moment or D that caused the disease) there was no need to prove “balance of probabilities.” Instead all that was necessary was that each defendant's wrongdoing had “materially increased the risk” of contracting the disease. Within these guidelines, claims could be founded against all the employers.

Lord Bingham: this type of modification is necessary where the injury is caused by slow build up and not one sudden infliction. There are policy arguments either way for the principle of the “increase the material risk of harm”. Against it are: (1) an employer for only a short period of time might be punished; (2) an employer who didn’t cause the harm might be made liable. However FOR it are (1) the idea that P should be compensated for injury that his employer should have done more to prevent; (2) to exclude the rule would be to prevent all claims for injuries which are caused by a development over time rather than at one moment, as here.

Lord Nicholls: the doctrine is necessary in cases of two or more alternative causes to prevent patent unfairness: suppose A and B are hunting and shooting carelessly so that one of them (it is unknown which) shoots and injures passer-by C. If causation had to be proved beyond reasonable doubt then there would be no compensation. It is more unfair that a victim should not be compensated than that a hunter who didn’t cause the harm should be punished (since he is doing something inherently fault-worthy). Where good policy reasons exist, the court can depart from the “balance of probabilities” rule. However these reasons must be so good that it is worth depriving D of the protection afforded to him by the normal evidentiary rule. He also said that “considerable restraint is called for in any relaxation of the threshold ‘but for’ test of causal connection”, that “Policy questions will loom large” and that it was “impossible to be more specific”.

Lord Hoffman: There are 5 features that justify an exception to the general rule on “balance of proof”: “First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease. Secondly, the duty is one intended to create a civil right to compensation for injury relevantly connected with its breach. Thirdly, it is established that the greater the exposure to asbestos, the greater the risk of contracting that disease. Fourthly, except in the case in which there has been only one significant exposure to asbestos, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease. Fifthly, the employee has contracted the disease against which he should have been protected.”

Lord Rodger: conditions for an exception are: (1) impossibility of proving who caused the harm. (2) D materially increased probability of P being harmed. (3) D’s conduct must have been capable of causing P’s injury. (4) D has to prove that his injury was caused by one kind of event (e.g. exposure to asbestos: NOT exposure + unhealthy lifestyle + working in a mine etc). (5) That it was caused by agencies operating in the same way e.g. two types of dust ARE allowed.

Barker v Corus plc [2006] UKHL 20 (repealed by the Compensation Act 2006 s 3 in so far as apportionment of liability in mesothelioma cases is concerned): D1 was exposed to asbestos while working for a company, now insolvent, another company and himself. D2s were exposed by several companies, some of whom became insolvent. Fairchild exception is applied and the parties were made to pay in proportion to how much they contributed to the risk of harm. NB by spreading liability out (rather than making one single D fully liable, one is less likely to be left without compensation (e.g. if that oneD is insolvent). This case also extended the Fairchild principle so that it applied even where the individual P exposed themselves to asbestos as well as D doing it too.

Lord Walker and Lady Hale: in the interests of farness the Fairchild exception should be extended to the present case.

Lord Hoffman: Quoted Bingham in Fairchild as saying “It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise.” He also says that the various formulations are of little help in new situations such as this.

Hypothetical Conduct by the Victim

Chester v Afshar [2004] UKHL 41, [2004] 3 WLR 587: D breached his tortious duty to P to warn her of the possible complication of an operation and this complication occurred. However P was unable to prove that had she been told of the risk, she would not have undergone the operation. Thus the “but for” test was not made out. However, HL by majority held that the purpose of the law was the vindication of rights and providing remedies for breaches of rights. Causation could not be separated entirely from policy considerations and thus, in this case, the principles of causation would be modified, since the breach of the duty had inhibited the patient’s consent (it was not an informed consent).

Since this breach was within the sphere of D’s duty to P, D would be made liable to P. Majority also ruled that while such modifications would be “exceptional”, they could not be limited to a given set of facts. This is an extension of the law since, while Fairchild widened liability to those who would be likely to have caused the harm (albeit with the high risk of punishing a person who didn’t cause it), Chester completely ignores the requirement to show causation of the harm inflicted (in the circumstances where it applies). Hence the majority are wrong to call it a “modification” of the causation principles, given that it is really a dispensation of the causation principles.

Lord Steyn (majority): The right of a patient to consent to an operation and to be informed of the risks is very important and must therefore be given legal force. He then says that Fairchild has shown that in certain cases the causation principles can be modified (though this is really dispensation) where justice and policy demand it (this will mean legal uncertainty.). He says that concerns over a patient’s autonomy fulfil the “justice and policy” requirements. This case is NOT within the Fairchild guidelines because that only permitted cases of “increasing the material risk”. The doctor’s failure to warn D of the dangers did NOT increase the material risk since P would have undergone the operation anyway.

Minority: Hoffmann argues (1) that the “value” of being told he risk beforehand would be hard to quantify (Courts put values on things the whole time: if the European Courts of Human Rights can put values on breaches of ECHR rights, then there s no reason why the HL could not value the right to be informed). (2) The costs of litigation would make litigation on the matter useless since the award would be very low (this assumption that the award would be low negates his point that it would be hard to value the right to be informed AND the cost-benefit margins would make the law a natural deterrent to bringing these cases so this is a concern for litigants, not judges). Lord Bingham argues simply that the current law’s rules do not permit compensation (he doesn’t engage with arguments over the possible extension).

The reason for having causation is because it is unfair to punish someone for harm that does not flow from them: hence it would seem fair to make an award to compensate the breach of the right to be informed BUT this does not mean that the doctor should have to be liable for physical harm, which he did not cause!

2. Remoteness of Damage

Re Polemis [1921] 3 KB 560: D chartered a ship from S and because of the negligence of one of the stevedores employed by D a plank of wood was dropped, causing the cargo (petrol) to ignite and destroy the ship. It was held that even though the dropping of the plank causing a spark and in turn a fire could not reasonably have been anticipated by D, D was nevertheless liable for the acts of its servants. Bankes LJ: the damage was “direct”

Warrington LJ: “The presence or absence of reasonable anticipation of damage determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent, then the question whether particular damages are recoverable depends only on the answer to the question whether they are the direct consequence of the act.” Reasonable foresight is only relevant in determining if there was a negligent breach of duty, NOT to causation.

Scrutton LJ: "Once the act is negligent, the fact that its exact operation was not foreseen is immaterial."

The Wagon Mound (1) [1961] AC 388: For facts see week 1: a person can be held liable for indirect damage provided the intervening events were reasonably foreseeable. Viscount Simonds: it is too harsh a rule to hold a man responsible that for a consequence that he did not and ould not reasonably have foreseen.

Hughes v Lord Advocate of Scotland [1963] AC 837: D left a manhole open and warning lamps around the sides. Ps (two children) approached the manhole with one of D’s lamos, dropped it, causing an explosion and causing P burns. HL said D was liable because it was reasonably foreseeable that children would approach the unguarded, open manhole and suffer injury as a result.

Lord Pearce: NB Ds would not have been liable if the accident had been of a different type from one that they could reasonably have foreseen.

Lord Reid: “So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature.”

Doughty v Turner [1964] 1 QB 518: D was employed by P to look after two cauldrons of boiling hot metal that had asbestos covers. D accidentally let the cover slide into the cauldron. Since the cover was bought off a reputable manufacturer, nobody thought it was dangerous that the cover was in the cauldron and they stayed in the room. The metal exploded injuring D. CA dismissed D’s claim since the only reasonably foreseeable damage was that there might be a “splash”, while an explosion was completely unforeseeable. Therefore, because the actual danger was of a fundamentally different type to the reasonably foreseeable danger, P was not liable. Harman LJ says that unlike in Hughes where the explosion was merely on a larger than expected scale of the same type of damage, the difference between “splash” and explosion here is fundamental.

Tremain v Pike [1969] 1 WLR 1556: D was emplyed by P on P’s farm and contracted Weil’s disease. CA held that it was so rare for Weil’s disease to be caught by humans and knowledge of the disease was so low, that it was not reasonably foreseeable that disease could occur. The minimal foreseeable possibility of D contracting the disease meant (1) that P was not in breach of his duty of care to take reasonable steps to prevent D contracting the disease, and (2) even if he was in breach, it was not reasonably foreseeable that D would be harmed (i.e. even if D did nothing to protect P from harm, he would still not be liable because it was not reasonably foreseeable that, even in breach, D would catch the disease).

Jolley v Sutton LBC [2000] 1 WLR 1082: D knew of a boat beside a block of flats and made plans to remove it which were never implemented. Ps (children) played in it and the boat, which was rotten, collapsed causing them injuries. HL allowed Ps’ claim. The council had conceded that it had a duty to remove the boat, but claimed that only minor injuries were foreseeable from the rotten planking giving way. HL held that since the means by which injury was reasonably foreseeable, an injury of a greater extent but of the same type (the type being injury from planking giving way) came within the scope of D’s duty of care.

Lord Steyn: He denies that the manner of the injury nor the extent of the injury had to be reasonably foreseeable. Only the type of injury had to be reasonably foreseeable.

Smith v Leech Brain [1962] 2 QB 405: D was v susceptible to cancer because of previous employment and might have got cancer anyway. However one day he was working with molten metal for his employer P, with inadequate protection, and some molten metal landed on him, causing him to get cancer and die. P’s widow sued. CA allowed P’s widow’s claim for damages not just for the initial molten burn to P but also for P’s death.

Parker CJ: Tortfeasors have to take their victims as they find them. They are liable for the damage provided that that type of damage was reasonably foreseeable. The burn was reasonably foreseeable, but D is also liable for the damage that the burn did to the victim, regardless of whether the extent of the damage was foreseeable.

Page v Smith [1996] AC 155: See week 1 for facts. Question is “could it have been reasonably foreseen that the plaintiff might suffer personal injury?” This doesn’t get rid of the requirement that a type of injury has to be foreseen (Jolley v Sutton LBC is still reasoned on that basis), but it indicates a willingness to broaden the categories so as to ensure compensation for victims.

McKew v Holland Hannen & Cubitts [1969] 3 All ER 1621: P was mildly injured at work (his left leg became stiffer and weaker) due to D’s negligence, and was later trying to climb a flight of flight of stairs. Due to the weakness of his left leg following the injury, he was about to fall and instead of falling jumped and broke his rights ankle. P claimed damages for the ankle-break but HL refused. HL said D was only responsible for the first accident.

Lord Reid: D should have been more careful following his accident. If a person who is injured does act “reasonably and carefully” given the circumstances of the injury, but is still caused a second injury, then P will be responsible for that too. If D fails to so act (as here- the stair was steep with no hand rail and D refused to wait for assistance), D is not liable for the second accident. “a defender is not liable for a consequence of a kind which is not foreseeable”.

Wieland v Cyril Lord Carpets [1969] 3 All ER 1006: D caused P to have a neck problem and made her feel shaken so that, in addition to her neck-collar, her vision and judgment of space was faulty. She fell down the stairs and sustained further injuries. QBD held that she could claim damages for the second injury as well as the first from D, since the second fall was D’s fault too.

Evleigh J: If foreseeability is required, it is enough if it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life and thereby be the cause of another injury.

Lamb v Camden LBC [1981] QB 625: P left their house unoccupied and when D was fixing the water pipes they broke a drain in the house. This caused the foundations damage, caused the walls to crack and the house to subside. After this, the house was invaded by squatters who caused large amounts of damage. CA held that the breaking of the pipe did not make it reasonably foreseeable that the squatters would invade.

Denning MR: In Dorset Yachts Lord Reid said that where human action occurred between the alleged cause and the consequence/loss, the human action must have been made “very likely” by the original cause for it not to be regarded as an NAI. This is WRONG because it makes the original party liable beyond all reason e.g. if a borstal boy escaped over the wall, it is very likely that he would steal a car, rob a house etc and yet the home office would be liable! He also says it is irreconcilable with the Wagon Mound and subsequent reasoning that D is liable for whatever can be “reasonably foreseen” as occurring as a result of the breach of contract. (though this test is even wider that Lord Reid’s). He also rejects mere “reasonable foreseeability” as the test for remoteness as this would extend liability too wide.

He says that “The truth is that all these three – duty, remoteness and causation – are all devices by which the courts limit the range of liability for negligence . . . All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide.” In this case it would be bad policy to make the council liable for the squatters’ entrance because homeowners are responsible for their own security and to insure themselves.

Oliver LJ: He explains Lord Reid’s dictum, as trying to explain a point of fact: in cases of 3rd parties inflicting damage, “the immediate cause is known. It is the independent human agency, and one has therefore to ask, on what basis can the act of that person be attributed back to the tortfeasor?” In answer he says that it is logical to attribute back to the tortfeasor those scenarios that are very likely to occur, rather than those merely possible. (BAD: still doesn’t explain the problems Denning raises or change the fact that, very likely though it may be, a 3rd party still takes a decision to inflict damage independently of the defendant).

He applies the “reasonable foreseeability” test to say that the invasion was remote (he doesn’t apply Lord Reid’s dictum of “very likely” (although this wouldn’t change the result) despite basically agreeing with it). In obiter he says Lord Reid’s test is good, but he should have gone even further in requiring a high degree of likelihood before the courts will attribute an independent act back to the original tortfeasor.

Watkins LJ: He simply uses the “reasonable foreseeability test”. He basically denies that Lord reid meant what he said and was actually applying the “reasonable foreseeability” test of the Wagon Mound, even for cases of 3rd party interventions.

Knightley v Johns [1982] 1 All ER 851: A negligent motorist caused an accident in a tunnel, which led to the officer on the scene negligently directing a police constable to cycle against the traffic to close off the entrance. When the constable was injured he sued the original motorist and the officer. CA dismissed his claim in respect of the motorist but allowed it regarding the officer. The test for remoteness is whether the “damage was natural and probable and therefore reasonably foreseeable, in the sense that something similar to what happened was likely to happen”. The original accident did not fulfil this criteria, whereas the officer’s command did.

Lagden v O’Connor [2003] UKHL 64, [2004] 1 All ER 277, paras 45-62, 90-102: D negligently damaged P’s car and since P couldn’t afford to hire a replacement, he obtained an agreement with a hire-credit firm that they would provide a car free of charge provided they could claim back the cost of the hire (which they charged far above the standard hire cost) from D’s insurers. D disputed that he had to pay the high cost of P’s replacement car. HL said that D had to pay the cost, as not too remote an expenditure.

HL held that generally only the standard cost of hiring a car could be recovered, but an exception was granted where P was really so poor as to be pushed towards the higher rates of a hire-credit firm. (Not necessarily an exception to the general “reasonable foreseeability” rule: it could be construed as the economic equivalent of the think skull test, whereby the cost of replacement is inevitably greater on P for being poor, just as the physical injury in Leech Brain was extended due to the deceased’s condition).

Corr v IBC Vehicles Ltd [2008] UKHL 13, [2008] All ER (D) 386: D was employed by P who negligently allowed an accident to occur whereby D was struck on the head and suffered depression and ultimately committed suicide as a result. HL allowed her clam, stating that P’s suicide was a “direct and foreseeable consequence” of the act of negligence, despite being a conscious decision.

Lord Bingham: “There can be no recovery for damage which was not reasonably foreseeable.”

Theoretical Discussions

Discussion of loss of a chance

•A ‘chance’ is merely a way of expressing our uncertainty as to a result. It is only relevant insofar as it may indicate whether D’s conduct will change whether the bad thing will or will not happen. It is not something which can be gained or lost in its own right i.e. a ‘chance’ is not valuable. The only concern is whether D’s conduct makes a bad thing happen that otherwise would not have happened, or prevents a good thing happening that otherwise would have happened. ‘Chance’ is just a way of showing whether this is the case. (Beevor). Thus the HL was right in Gregg v Scott and wrong in Chaplin. In latter case the compensation of 25% due to 25% chance of winning would necessarily undercompensate/overcompensate (since P either would win or would not). HL rejected this approach in Hotson. •Peripheral arguments in Gregg v Scott:

oLord Nicholls says it’s unfair to compensate for loss of a commercial opportunity (as in Spring v Guardian Assurance/Allied Maple Group) but not for losso opportunity to live: True: Commercial losses of opportunity also shouldn’t be compensable per se (i.e. they should actually have to show that they would have gained the hoped-for bargain had D not acted as he did. oLord Hoffmann: Floodgates because actions that may increase or decrease a patient’s chance of surviving happen constantly in hospitals, and this would overburden the NHS.

•How can chance be calculated in a way that allows the all or nothing approach to work (i.e. that tells us, esp in medical cases, how we can determine whether the chance lost is such as to permit inference that the conduct has caused P to not survive etc)? Hill says that we should use individual chances of survival to assess the past facts of a case, rather than use statistical evidence based on experience with other patients with similar conditions, since this doesn’t take adequate account of individual circumstances. However Scott says that these stats give us the best indication of what will/would have happened in P’s case precisely because they draw on past experience. •As medical advances allow us to say with greater precision whether P was going to survive and whether D’s conduct changed that, there is no need for a ‘proportionality’ test (i.e. compensate 25% loss of chance w/ 25% of full damages).

Discussion of Fairchild exception

•Mesothelioma litigation is problematic for several reasons: first, the aetiology of the disease is unclear; secondly, the incubation period for the disease runs into decades; and thirdly, in most cases the victims have had multiple exposures to the disease-causing asbestos. The combination of these factors makes it impossible for the victim to prove on the traditional “but for” test which exposure or exposures contributed to the disease. (Amirthalingham) •In Fairchild Lord Nicholls indicated that his conclusion of causation was motivated by how “unattractive” the result would be from a justice perspective. Not a good justification for changing causation rules. Equally deterrence also isn’t good enough, since negligence is primarily concerned with compensation, not deterrence.

Better explanation is Economic view of how best to reduce the cost to society of tortious conduct- Quantum argument: If D1 harms P by £4 and D2 doesn’t, but nobody can tell whether D1 or D2 caused the harm, then the but for test would allow D1 to wrongly keep £4 and P to be wrongly deprived, so total cost of conduct is £8. If Fairchild is applied and D1 & D2 each have to pay £2, the only wrong is D2’s cost and D1’s ability to wrongly keep £2, so that total cost of conduct is £4. oThis only works provided the Ds are severally liable. If jointly liable, as in Compensation Act, and D2 were made to pay the whole £4, the total cost would be back up to £8. oAlso doesn’t work for the Barker rule (overturned by Compensation Act, s.3) that each D be liable for a share of the damages in proportion to his level of contribution to the risk of injury (as again, innocent parties could made to pay a disproportionate share of the compensation).

oProblematic to apply ‘material contribution’ test where P himself, or the surrounding environment may have caused the disease (as in Barker & Sienkiwicz respectively). •Stapleton suggests avoiding the false negatives sometimes thrown up by the but for causation tests (e.g. case of two hunters, one of whose bullet ends up killing P, but court cant say which bullet it was, as in Cook v Lewis: Supreme Court of Canada ordered a retrial after the jury concluded, along lines of but for test, that neither hunter had caused the death because such a conclusion was ‘peverse’).

She says where a false negative is thrown up, the following test should be used: “whether C can, if necessary by notionally removing factors from the scene, reach a perspective where the tortious conduct does satisfy the but-for test. For example, by notionally removing hunter Y, the walker's estate can target the tortious conduct of hunter X and show that but-for it the death would not have occurred.” This is the ‘targetted but-for’ test.