1. Medicine and the Law Causation in a fault based system

2. The Common Law The system of law that governs:  England & Wales  Ireland  USA and most Canadian States  Australia  New Zealand The system of law that governs:  England & Wales  Ireland  USA and most Canadian States  Australia  New Zealand

3. 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 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

4. Negligence or fault- based liability  3 Main INGREDIENTS  A duty to take care  A breach of that duty  Loss or injury caused by that breach  3 Main INGREDIENTS  A duty to take care  A breach of that duty  Loss or injury caused by that breach

5. 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.

6. 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  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

7. 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.  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.

8. 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.  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.

9. 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  Both acted in a way that was at least potentially negligent.  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  Both acted in a way that was at least potentially negligent.

10. 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.  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.

11.  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  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

12. 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)  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)

13. 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 PROVED  The Chester v Ashfar case in England and Chappel v Hart in Australia

14. 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.  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.

15.  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  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

16. 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  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

17. 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  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

18. 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  Proximity  Limits on the class of people to whom a duty is owed.  Limits on the scope of the duty owed

19. 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?  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?