Fairness in Factual Causation of Tort - Essay Example

FAIRNESS IN FACTUAL CAUSATION OF TORT Common Law In The Area Of Factual Causation Of Tortious Negligence, Far From Meeting Present Day Requirements Of Fairness, Seems To Have Lost Its Way Student Name: _______ University: __________ Abstract Fairness is a noble and necessary virtue in common law tort. In the aspect of negligence in Law on Torts, current caselaw on determination of the existence of duty of care particularly in causation - in - fact seems to have strayed away from the ideals of fairness. A series of jurisprudence will be evaluated to determine how and why the court neglected to include fairness requisites in its decision. Common Law In The Area Of Factual Causation Of Tortious Negligence, Far From Meeting Present Day Requirements Of Fairness, Seems To Have Lost Its Way. Your Title Goes Here Introduction. Common Law1, in the context of the law prevailing in England and Wales2 and developed through centuries of caselaw, has evolved a set of requirements constituting the concept of "fairness" on the issue of causation - in - fact in negligence in the Law on Torts. Fairness (natural justice) was restored to common law by the caselaw of Ridge vs. Baldwin3. (W)hat the requirements of fairness demand from any body, domestic or administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates.4 The courts will imply procedural standards into a statutory framework to ensure the attainment of fairness.5 Negligence, definition and elements. At common law, there is liability for damage caused by unintentional but negligent acts or omissions. "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."6 Lord Wright, J. wrote: In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. (1934)7 The Defendant (D) in a negligence case will only be liable if the Plaintiff (P) proves the following elements: 1. D owed a duty of care8 within a required standard to P; 2. D breached910 said standard of care; 3. D's breach of duty caused P harm; cause in fact between P's injuries and D's action; 4. Proximate causation/Reasonable Foreseeability; the link connecting breach and harm is not too remote; and 5. Damage. According to Denning L.J.11, all the elements are really the same thing. What is being required by court as a matter of social policy is risk because when P is injured because of risk created by D, the latter (D) ought to be required by law to compensate the injured party (P). In effect, duty, proximate cause and remoteness continually run into each other; they are simply ways of looking at the same thing. Two of the elements are factual, namely cause - in - fact and damage, while duty of care, standard of care and remoteness are questions of law. Causa Sine Qua Non. Upon P is laid the burden of establishing each and every element in the required quantum of evidence. P is required to prove that the breach of which he complains caused the damage for which he claims12 and he does so by proving that "but for" the breach of duty he would not have suffered the damage. He must prove such causation in both factual and legal aspects. The determination of factual causation comes before that of legal causation. The causal connection between the act or omission constituting the breach of duty and the damage as a fact must be proven to exist and the "But For" test determines and establishes that an event constituting the negligence and another constituting the damage are in fact linked. In multiple possible causes, the claimant must prove that the defendant's breach of duty caused the harm or was a material contribution.13 Fairness in Factual Causation. The concept of fairness is related to one of the three-fold test14 for determination of the existence of duty of care. The first two being foreseeability and proximity, the third test asks "whether it is fair, reasonable and just to impose a duty of care", in other words "fairness". Because fairness in the English common law system is procedural, fairness in relation to proof of factual causation is related to the compliance and fulfillment of this element. It may be said that this element that constitutes fairness in the subject of causation sine qua non. The "but for" test, however, can lead to injustice because it requires P to prove what cannot be scientifically proven. In such cases, factual cannot be proved because one cannot separate the questions of liability from questions of causation, there cannot be one and uniform causal requirement for liability in tort. The one is inextricably connected to the other because D is not simply liable, he must be liable for something and determination of what his liability is is entangle with the determination of which among his acts should give rise to liability.15 This reflects the transition from the mechanical application of the "but for" test to its modification is special cases. The following examples will reflect the straight-forward mechanical application of the test: Cork vs. MacLean. In the case of Cork vs. Kirkby MacLean16, a worker, unknown to his employers, suffered from epilepsy. He worked at heights, when during a seizure he fell off the platform and was injured. While the employers were adjudge negligent of not fitting a guard rail to the platform, the worker was found to be equally responsible for his own injuries and damages were reduced. This is an application of the Law Reform Act 1945.17 In this case, it is fair, just and reasonable for the court to impose a duty of care, with corresponding application of reduction of liability due to contributory negligence. Barnett vs. Chelsea Hospital. Plaintiff went to Defendant Hospital because the former was suffering from stomach pains and vomiting from the tea he drank. The doctor refused to medicate and sent him home, untreated and he died, five hours later, of arsenic poisoning. His heirs sued the hospital. The Queen's Bench ruled that in failing to see and examine the deceased, an in failing to admit him to hospital and treat him, the doctor was negligent and did not discharge the duty of case which the circumstances was owed to the former by latter. The case was dismissed only because the plaintiff-heirs failed to discharge their burden of proving the causal connection between the death and the negligence.18 Fairness in imposing a duty of care in this case is obvious from the denial to exercise and fulfill a duty of care, existing under the circumstances. Robinson vs. Post Office. Plaintiff slipped while descending a ladder from one of the tower wagons due to oil that leaked from a pump. He visited his doctor and was given anti-tetanus serum. The administering doctor deviated from established procedure, not waiting for signs of allergic reaction before he administered the full dose. Only on the ninth day did plaintiff suffered allergic reaction and was admitted to hospital for encephalitis and suffered brain damage. The court held that the negligence of the doctor was not an effective intervening cause, a novus actus interveniens and the negligence in the oil leak remained to be the proximate cause.19 Despite the reduction, the employer's duty of care is obvious from the facts of the case. Hotson vs. East Berkshire. A young boy injured his hip from falling out of a tree and he was taken to defendant-hospital. Defendant erred in the diagnosis and administered inappriate teatment. The boy suffered a major permanent diability. In this case, the "balance of probabilities" test was employed and the court held that given his condition, correct diagnosis and treatment would not have prevented the disability. Quantification of liability was not possible because there cannot be any question concerning loss of chance where there is positive finding that before the duty arose the damage complained of was already sustained or inevitable.20 In this case, the dark shadow looms and the inherent weakness in the but for test begins to be seen. The common law courts admitted that that causa sine qua non cannot and should not be the exclusive test of causation in negligence cases. Merely imposing a duty of care upon the defendant or defendants for two or more acts or events, each of which is sufficient to cause the plaintiff injury21, is no longer fair, just and reasonable under particular circumstances, as will be seen in the following examples which can be considered as modern requirements of fairness. Cook vs. Lewis. Two hunters discharged their shotguns simultaneously in the immediate vicinity of Plaintiff who was struck by a single pellet. The Supreme Court of Canada shifted the burden of proof on Defendants to show that their acts were neither intentional nor negligent.22 McGhee vs. National Coal. Plaintiff was ordered by his employers to clean out brick kilns, without providing him with adequate washing facilities. He developed dermatitis from the extended exposure to abrasive brick dust. The Court of Appeals found that the defendants were negligent and breached their duty to provide the required facilities and ruled that proof that the breach has caused or contributed to an increased risk of injury is sufficient to establish causation.23 Fairchild vs. Glenhaven Funeral. A widow sued the former employers of her husband who died from mesothelioma due to exposure to asbestos. Each employer,differently and separately, had exposed the deceased to asbestos, which exposure constituted breach of duty of care or statutory duty to protect the employee from asbestos. Each employer's wrongdoing had materially increased the risk of contracting the deisease. The standard but for test was relaxed due to a plain and obvious balancing of justice and policy considerations of common law and statute because sticking to the rule in this case would empty the duty of content.24 The duty of care was attributed even if the present state of science cannot prove the causation as required in the but for test. The plaintiff retains the burden of proving what caused the harm and who delivered it, even if it cannot be proved who among many defendants actually brought the fatality. Chester vs. Afshar. In this case, the doctor failed to warn the patient of a small and unavoidable risk of surgery surgery damage, despite due care and skill in performing the surgery. There was no proof whether the claimant would not have agreed to the operation had the doctor duly warned her of the risk. The doctor was not employed to make such finding. The court allowed recovery recognising the duty of the doctor to warn the patient of a material risk inherent in the proposed treatment.25 Conclusion. Adopting a central view of causation would have the effect of weakening the force and importance of duty of care. It becomes especially wrong to point to and choose one defendant where there are several who contributed material risk. A restrictive or an expansive answer to the determination of causation would only result to injustice. Enough space in law is available for judicious application of the Fairchild caselaw in the appropriate cases. Tort law cannot and does not need to choose between one or the other. It must be realised that the purpose of tort law is to compensate those who are wrongfully injured and to do so it must recognize and right wrongful conduct. To restrict this by limiting the viewpoint that law can take is to cause injustice even before the case is filed in court. The common law view on fairness is proceduralist. It is normative as it sets down prior norms which determine the validity of intended outcomes through valid procedure. Common law fairness is a process to be applied in the conflict that constitutes the cases filed and argued before the court. It is not the implementation of basic rights. Nevertheless, it should reflect the morality of the times and the improvements of moral views as such. To say that common law failed is to ignore the process that is common law in the evolution of law itself. It is not safe to conclude that common law lost its way merely because there are still cases where the simplistic but for test does apply. It can only be said that in addition to factual causation, there now exists in cases where strict and mechanical application of the but for test will only result to injustice. The Fairchild rule is an equitable rule of factual causation. There is fairness in these types of cases only and only if the duty of care is imposed where proper to the circumstances of the case. References Thomas, Robert, (1996) . Aldermen, Reasons and Judicial Review. 1Web JCLI. January 13, 2006. . Winfield and Jolowicz on Tort [1989]. Barnett vs. Chelsea and Kensington Hospital [1968] 1 All ER 1068. Blyth vs. Birmingham Waterworkds Co. [1836] 11 Exch 781. Caparo Industries vs. Dickman [1990] 1 All ER 568, HL Chester vs. Afshar [2004] UKHL 41. Cook vs. Lewis [1952] 1 DLR 1. SCC. Cork vs. Kirkby MacLean [1952] 2 All ER 402 Donoghue vs. Stevenson [1932] AC 562, All ER Rep 1 (UK-HL); Anns vs. Merton London Borroughs [1977] 2 All ER 492, HL. Fairchild vs. Glenhaven Funeral Services [2002] UKHL 22 [2003] 1 AC 32. Hotson vs. East Berkshire AHA [1987] 2 All ER 909. Kuwait Airways Corp. vs. Iraqi Airways Co. [2002] 2 WLR 1353. Lamb vs. Camden LBC [1981] 2 All ER 408. Lloyd vs. McMahon [1987] AC 625. Lochgelly Iron & Coal vs. M'Mullan (1934). McGhee vs. National Coal Board [1972] 3 All ER 1008 (HL). Ridge vs. Baldwin [1964] AC 40. Robinson vs. Post Office [1974] 2 All ER 737 Roe vs. Minister of Health [1954] 2 All ER 131, CA Scott vs. London and St. Catherine Dock Co. [1861-73] All ER 246. Wilsher vs. Essex AHA [1988] 1 All ER 871. Read More