Tort 5: Causation & remoteness I

It was found that the deceased would have died even if the Defendant had administered the anti-toxin required for arsenic poisoning, and therefore the Plaintiff had not, on the balance of probabilities shown that the Defendant had acted negligently. The question was, but for the doctor sending him home, would the deceased have died? The answer was Yes.

Bolitho v City & Hackney H. A. [1998] AC 232.

A doctor failed to answer numerous pager calls. By the time she had the Plaintiff's child had died. Her defence was that even if she had answered it, the child would have died in any case because she would not have intubated, which it was established was the only way that the child would have survived.

This case established that a Defendant couldn't say that he is not liable because the damage would have occurred in any event because he would have committed some other breach of duty thereafter. That is to say that the court will seek to establish, as best it can, what would have happened but for the negligence, both actual and hypothetical, of the Defendant.

Loss of Chance.

This is an important movement of the law. It allows a person to claim in the following TYPE of example.

Person x goes to hospital. He is wrongly diagnosed by "B" a doctor. He then suffers the effects of not having been treated by the illness y. He may then sue saying that he has lost the chance of making a recovery from y because of the negligence of B. However, this law was modified from being an open amount of lost chance, to a minimum 50% chance of recovery.

This area of law is most likely in medical negligence. It is possible to be used in other area's but most likely in med. neg.

Hotson v East Berkshire Area HA [1987] AC 750.

The claimant was a 13-year-old who fell out of a tree. He was taken to hospital were he was mistakenly diagnosed. 5 days later he was taken back to hospital in considerable pain. His illness was diagnosed, necrosis. The Defendant's said that their misdiagnosis had not affected the ultimate resulting injury. Trial judge found for the Plaintiff saying that he had a 25% chance of full recovery but for the negligence of the Defendant's. He had lost the chance of the possibility (25%) of being one of the 25 out of a hundred who would make a full recovery. @ The House of Lords it was found that it is correct in law to look at it like this, but the threshold must be much higher, it should be 50% chance or higher.

Remoteness:

Intervening Acts of a 3rd party:

Novus Actus Interveniens.

This area of tort looks at the chain of causation. Has it been broken at any stage? If it was broken, to what extent? It is too remote when the chain of causation is broken to such an extent that it overpowers the initial cause.

Baker v Willoughby [1970] AC 467

The Plaintiff was in a car accident with the Defendant. His left leg was damaged to a large degree, so that it was stiff, and he had stiffness in his right ankle. Before the trial the Plaintiff was shot in the left leg and had it amputated. The House of Lords had to look at the question of any possible lowering of the damages, because of the fact that the initial damage is no longer there.

After a long drawn out argument of reasoning it was decided that the Defendant was liable to pay damages and loss of earnings as if the Plaintiff still had his leg. Any further resulting loss of earning and damage resulting from the gun shot would then be the liability of the tortfeasor causing that incident. A man must take his victim as he finds him, was the way it was put.

HOWEVER, this must then be compared to:

Jobling v Associated Dairies Ltd. [1982] Ac 794

The Plaintiff suffered a spinal damage at work which greatly reduced his capacity to work. Subsequent to this he then suffered a spinal disease which incapacitate him permanently.

It was decided by this case that Baker should not be followed, but did not over rule it. Each case was to be taken upon it's own merits. The Lords said that it was an extremely difficult position to judge the current case. It was decided that the Defendant were only liable for damages for the accident but only for loss of earnings up until the point of injury. It is said that the Plaintiff must take into account inherent events....