1. Trinity College Dublin Medicine and the Law Causation in a fault based system
Orla Sheils
Introduction. SW = 7BR. Civil department handles clinical negligence cases – for Claimant and Defendant.
Also deal with personal injuries, particularly for the MoD, BAA, and other large organisations.

2. The Common Law 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

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

5. Injury caused by the breach
CAUSE IN FACT PROVED
The "But for" test
Generally "but for" test must be fulfilled
But there have always been exceptions
Summers v Tice and Cook v Lewis
And material contribution sufficient in cumulative exposure cases
And material contribution equated with increased risk in single employer cases
And now equated with increased risk in multiple employer cases
The Chester v Ashfar case in England and Chappel v Hart in Australia

6. Cause in fact not proved
Several possible causes of which the breach is only one.
Where the breach results in a loss of a chance of a cure
Where the breach results in unquantifiable damage

7. 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

8. 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“
The general maxim is that the defendant must "take their victim as they find them".
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

9. 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

10. Cause in Law (continued)
"Fair just and reasonable“
Primary and secondary victims
Type of loss sustained: physical injury, psychiatric injury, economic loss
The tortfeasor as a professional
Non-justiciable claims

11. 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?

12. Trinity College Dublin Medicine and the Law Causation in a fault based system
Orla Sheils
Introduction. SW = 7BR. Civil department handles clinical negligence cases – for Claimant and Defendant.
Also deal with personal injuries, particularly for the MoD, BAA, and other large organisations.