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A short video explaining the structure and main elements of "Causation", "Remoteness" and "Damage" in Negligence (as of May 2014 - by Shaveen Bandaranayake):
Tort Law - Negligence - Causation, Remoteness & Damage -
https://www.youtube.com/watch?v=x_JshzJe_ic
A funny video that illustrates how hard it can be to understand the intricacies of the law of factual causation:
‘Hitler reacts to tort law – negligence causation’ https://www.youtube.com/watch?v=fuT4KuAZ6lQ
Gregg v Scott and Loss of a Chance
Allan Beever, University of Queensland Law Journal (2005)
[2005] UQLJ 10
www.austlii.edu.au/au/journals/UQLJ/2005/10.html
In this article, Allan Beever argues that the House of Lords reached the right decision in Gregg v Scott [2005] but not necessarily for the right reasons. The article is also valuable as it examines in detail two of the main opinions of the law lords: Lord Hoffmann (in the majority) and Lord Nicholls (dissenting).
Causation and failure to warn of risks
A clinical negligence case – Chester v Afshar [2004] – made all professionals sit up and take notice – could the same principles apply to them if they failed to give adequate warnings of risks? But lawyers need not worry – the ruling does not apply to them. The link below is to an article called ‘Causation effect’ in The Lawyer (a solicitors’ journal) by Peter Causton of Browne Jacobson LLB on the case that decided this principle and seemingly limits Chester v Afshar to clinical negligence (Paul Davison & Taylor v White [2004])
www.thelawyer.com/causation-effect/113915.article
Less v Hussain [2012] 3513 EWHC (QB)
http://www.bailii.org/ew/cases/EWHC/QB/2012/3513.html
An interesting case in which a couple claimed for various heads of damage in respect of the conception of a child who was subsequently delivered still-born. Negligent advice had been given by the consultant in respect of the risks of pregnancy. The parents’ claim failed because the judge found that the couple would have attempted pregnancy even if they had received proper advice.
Other causation issues in a clinical setting
There have been a large number of cases where the court has considered the issue of causation in great detail (particularly since the case of Bailey v Ministry of Defence (2009) which appeared to extend asbestos case principles into the medical context). The recent case of ST (A protected party by his Mother and Litigation Friend KT) v Maidstone & Tunbridge Wells NHS Trust is no exception:
Material contribution - case update: ST v Maidstone (2015)
http://www.lexology.com/library/detail.aspx?g=dce709ee-0e18-4a30-a622-f20ac9b880ae
Also see:
John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016]
WLR Daily: http://www.innertemplelibrary.com/2016/03/john-v-central-manchester-and-manchester-childrens-university-hospitals-nhs-foundation-trust-wlr-daily/
‘Material contribution in medical claims: Williams v The Bermuda Hospitals Board’
http://anthonygold.co.uk/latest/blog/material-contribution-in-medical-claims-williams-v-the-bermuda-hospitals-board
Material Contribution and Williams – Hardwicke Chambers
http://www.hardwicke.co.uk/insights/articles/material-contribution-and-williams
Future loss of earnings (Ogden vs Smith v Manchester approach), loss of congenial employment, material contribution test: A review of the decision in Kennedy v London Ambulance Service NHS Trust [2016] EWHC 3145 (QB) https://zenithpi.wordpress.com/2017/01/06/future-loss-of-earnings-ogden-vs-smith-v-manchester-approach-loss-of-congenial-employment-material-contribution-test-a-review-of-the-decision-in-kennedy-v-london-ambulance-service-nhs-trust-201/
Asbestos claims
1. Pleural Plaques
For decades prior to 2006, sufferers of Pleural Plaques could expect to receive damages payments for this condition of up to £15,000. Only in 2006, did defendant insurers challenge the right to recover damages for this condition, alleging that Pleural Plaques was not a condition which resulted in any injury to a sufferer. In the case of Grieves & Others v FT Everard & Sons & Others [2005] EWHC 88 at first instance, Mr Justice Holland held that Pleural Plaques was a compensatable condition, because the anxiety most sufferers have as a result of having the condition, when combined with the possibility of future injury, amounted to an injury. However, he reduced the award of general damages for pain and suffering to £6-7,000. The Court of Appeal disagreed, overturning the lower court decision. The case went to the House of Lords, where it was upheld that there is no actionable injury on the basis that Pleural Plaques do not cause respiratory injury and are analogous to a mole on the surface of the skin. See:
Compensation right ended for asbestos condition workers
www.guardian.co.uk/business/2007/oct/17/uknews
Following the House of Lords decision, campaign groups continued to lobby Government on the issue of Pleural Plaques. In response, a public consultation was established in England and Wales, but the Scottish government took more immediate action and passed legislation – The Damages (Asbestos-related Conditions) (Scotland) Bill 2009 in which it is stated that ‘asbestos-related pleural plaques are a personal injury which is not negligible’ (S1(1)) and that ‘accordingly, they constitute actionable harm for the purposes of an action of damages for personal injuries (S1(2)).
www.scottish.parliament.uk/s3/bills/12-Asbestos/b12as3-aspassed.pdf
Scottish pleural plaques victims compensated
www.chroniclelive.co.uk/north-east-news/campaigns-and-events/give-them-justice/give-them-justice-news/2009/06/18/scottish-pleural-plaques-victims-compensated-72703-23912657/
This later survived a legal challenge
http://www.bbc.co.uk/news/uk-scotland-glasgow-west-13050830
However, no action was forthcoming from Jack Straw, the Justice Minister, despite assurances from him and the then Prime Minister, Gordon Brown, that an announcement was ‘imminent’. See:
Government is stalling on compensating asbestos victims
www.cnplus.co.uk/news/ucatt-government-is-stalling-on-compensating-asbestos-victims/5204039.article
But, on 25 February 2010 Jack Straw made a ministerial statement to the House of Commons on pleural plaques, in which he stated that following a public consultation process the government was ‘unable to conclude that the Law Lords' decision should be overturned at this time or that an open-ended no-fault compensation scheme should be set up’. The text of this can be found here (scroll down).
Bill Butler MSP questions insurance lawyers appearing at the Scottish Parliament giving testimony on the Damages (Scotland) Bill; the lawyers argue that asbestos-related pleural plaques are a 'good thing'.
www.youtube.com/watch?v=ByhBvQdx_3E
There are many other videos on YouTube on the testimonies given to the Scottish Parliament Justice Committee on the Damages (Scotland) Bill relating to asbestos claims.
2. Other asbestos-related claims
A newspaper article on Sienkiewicz v Greif (UK) Ltd
http://www.guardian.co.uk/education/2011/mar/09/asbestos-school-compensation-dianne-willmore?intcmp=239
And a BBC News story – including an interview with Mrs Costello's daughter
http://www.bbc.co.uk/news/uk-england-merseyside-12686641
And case comment on the UKSC blog: Sienkiewicz v Greif (UK) Ltd; Knowsley MBC v Willmore [2011] UKSC 10
http://ukscblog.com/case-comment-sienkiewicz-administratrix-of-the-estate-of-enid-costello-deceased-respondent-v-greif-uk-limited-appellant-knowsley-metropolitan-borough-council-appellant-v-willmore-responde/
And many comments from law firms have been (self) published on the case. See for example
Sienkiewicz: another decision about the UK’s “special” mesothelioma jurisprudence
http://www.lexology.com/library/detail.aspx?g=db6a28c3-1b82-4999-b8df-6b007bef6b96
THE HORNET’S NEST REVISITED - THE DECISION OF THE SUPREME COURT IN SIENKIEWICZ v GREIF; WILLMORE v KNOWSLEY MBC
http://www.byromstreet.com/news/wp-content/uploads/2011/05/Hornets-Nest-Revisited.pdf
In Zurich Insurance PLC UK Branch v International Energy Group Limited, the Supreme Court again considered causation in asbestos-related mesothelioma claims. The appeal was from Guernsey, to which s.3 of the Compensation Act 2006 does not apply. The relevant employer was not insured for the whole period of exposure. The Court held that Barker v Corus continues to apply in Guernsey. Compensation is proportionate, therefore, though defence costs are not.
https://www.supremecourt.uk/cases/docs/uksc-2013-0057-judgment.pdf
Claimants aren’t always successful, even in asbestos claims:
In Williams v University of Birmingham [2011] EWCA Civ 1242 the Court of Appeal was confronted with a mesothelioma case, this time arising from the experiments of the deceased, a physics student, conducted in what appears to have been a subterranean tunnel at the University of Birmingham (containing asbestos). The University successfully appealed the first instance finding of liability in negligence, on the basis (among other things) that the trial judge had confused the tests for breach of duty and causation (Aikens LJ helpfully summarises the leading cases).
The asbestos cases are familiar to anyone who has studied causation in tort law (see section 9.2.2.2 in textbook). But similar issues may also arise elsewhere; see, for example BBC News Phurnacite plant, Abercwmboi: Workers' High Court win
http://www.bbc.co.uk/news/uk-wales-south-east-wales-20039041 from 23 October 2012.
Typing 'asbestos negligence' into Google produces such a wealth of sources for asbestos disease-related compensation that it is highly illustrative of the scale of the problem:
www.google.co.uk/search?sourceid=navclient&ie=UTF-8&rlz=1T4RNWN_enGB285GB286&q=asbestos+negligence
What'sMyAsbestosClaimWorth.com
www.whatsmyasbestosclaimworth.com
This site (one of many such sites) contains a free compensation calculator (estimates) based on age, type of disease etc. Useful to illustrate the sums of money being talked about in asbestos-related cases and the fact that there are still many people out there who might have potentially valid negligence claims.
A BBC news report on the upholding of Scottish law which allows victims of an asbestos-related illness the right to claim damages – includes interview with sufferer of pleural plaques (April 2011)
http://www.bbc.co.uk/news/uk-scotland-13065853
The House of Lords published a briefing on the Mesothelioma (Amendment) Bill 2015 http://www.hfw.com/Insurance-Bulletin-3-December-2015
The egg-shell skull rule
‘What happens to claimants who suffer from a pre-existing weakness? The “egg shell skull” rule and challenges ahead’ (re Reaney v University Hospital of North Staffordshire NHS Trust [2014] EWHC 3016)
https://www.kingsleynapley.co.uk/comment/blogs/clinical-negligence-law-blog/what-happens-to-claimants-who-suffer-from-a-pre-existing-weakness-the-egg-shell-skull-rule-and-challenges-ahead
Cases
Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) No 1 [1961]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKPC/1961/1.html
Baker v Willoughby [1970]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1969/8.html
Jobling v Associated Dairies Ltd [1982]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1981/3.html
Knightley v Johns [1982]
www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1981/6.html
Hotson v East Berkshire Health Authority [1987]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1988/1.html
Wilsher v Essex Area Health Authority [1988]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/1987/11.html
Fairchild v Glenhaven Funeral Services [2002]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2002/22.html
Chester v Afshar [2005]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2004/41.html
Gregg v Scott [2005]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2005/2.html
Grieves & Ors v FT Everard & Sons & British Uralite Plc & Ors [2005]
http://www.bailii.org/ew/cases/EWHC/QB/2005/88.html
Barker v Corus UK Ltd [2006]
www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKHL/2006/20.html
Sienkiewicz v Greif (UK) Ltd [2011]
http://www.bailii.org/uk/cases/UKSC/2011/10.html
John v Central Manchester and Manchester Children’s University Hospitals NHS Foundation Trust [2016]
http://www.bailii.org/ew/cases/EWHC/QB/2016/407.html
Williams v The Bermuda Hospitals Board (Bermuda) [2016]
http://www.bailii.org/uk/cases/UKPC/2016/4.html