THE UNIVERSITY OF THE WEST INDIES

FACULTY OF LAW

Law of Torts (LAW1310)

GENERAL PRINCIPLES OF NEGLIGENCE

(c)Causation

________________________________________________________________

Semester 2 2019-2020
WS3/SYI
As adapted from J Cumberbatch

Readings

Winfield & Jolowicz –Ch. 6

Kodilinye 5th ed –Ch. 4

Elliot & Quinn–Ch. 3

Kidner –Ch. 4

CAUSATION

Causation is the third requirement to be satisfied in order to establish negligence.

*N.B Causation is also an element of other torts .However, since the majority of
reported cases of causation arise under negligence, it is dealt with here.

Winfield and Jolowicz refer to causation as the link between the loss suffered and the
Defendant‟s wrong .

There are two elements of the causation requirement:

1. Causation in fact – i.e the but for test

2. Remoteness of damage in law- The issue which the Courts seek to assess
in this regard is whether the breach of duty is the immediate, proximate,
effective or operative cause of the Claimant’s loss so as to justify imposing
liability for that loss on the defendant

1
Causation in fact

The But-For test

First, it must be determined that the defendant’s breach of duty was, as a matter of
fact, a cause of the damage. ‘A useful test which is often employed is the ‘but for’ test;
that is to say, if the damage would not have happened but for the defendant‟s negligent
act, then that act will have caused the damage 1.’

*Barnett v Chelsea and Kensington Hospital Management [1968] 1 All ER 1066- in

Kodilinye and Elliot and Quinn

Mr. Barnett , a night watchman, went to the defendants’ hospital, complaining of

nausea after drinking a cup of tea at work. The nurse called the duty doctor for an
examination. The doctor, refused and instructed the nurse to inform Mr. Barnett to
consult his GP if he still felt unwell in the morning. Mr. Barnett, died five hours later, of
arsenic poisoning.

Mr. Barnett’s wife unsuccessfully sued the hospital for negligence.

Why was she unsuccessful ?

The court accepted that even if the doctor had seen Mr. Barnett it would not have
prevented death, and that the failure to examine Mr. Barnett was not the cause of death.
The evidence showed that the antidote was not available and by the time Mr. Barnett
arrived at the hospital it was too late for any treatment to save him.

*McWilliams v Sir William Arrol & Co. Ltd. [1962] 1 WLR 295-in Kodilinye

A steel erector who working was 70ft above ground, died after falling from the building
he was working on. Even though it was accepted the employer was under a statutory
duty to provide safety harnesses to employees and the deceased was not given one on
the date the incident, the employer was not found liable

Why?

The employer produced evidence that on previous occasions when safety harnesses
had been provided, the deceased did not wear it. The Court therefore inferred that even
if a harness had been provided on the day of the accident, the deceased would not

1 rd
Per G Kodilinye Commonwealth Caribbean Tort Law 3 ed p104

2
have worn it. Therefore, the failure to provide a harness was unlikely to be a cause of
the deceased’s death

Twins Pharmacy Ltd. v Marshall (1979) 26 WIR 320 – in Kodilinye

It is not always clear what would have happened but for the defendant’s negligence.

*Chester v Afshar [2005] 1 AC 345 –in Kodilinye & Elliot & Quinn

The Claimant who suffered from back problems received a back operation. However,
the surgeon did not tell her about a 1%-2% risk which would have worsened the
condition. Even though the surgery was executed without negligence by the surgeon
the Claimant suffered the 1%-2% risk. The Claimant argued that if she was told about
the risk, she would not have had the surgery on that day, but would have discussed the
risks with her family and sought alternate opinions. Court noted that she did not say she
would have never had the operation. The Defendant argued that failure to warn did not
increase the risk of the operation and highlighted that the Claimant may have
undergone the operation on another day . The Claimant was successful at High Court
and Court of Appeal.

The House of Lords in a 3:2 decision found for the Claimant. However, Lord Hoffman
in a dissenting judgment said at page 41 as follows” where the breach of duty is a
failure to warn of a risk [the claimant] must prove that he would have taken the
opportunity to avoid or reduce the risk. In the context of the present case, that means
proving that she would not have had the operation.‟

Practitioners and academics expressed concern about the majority decision of the
House of Lords in Chester. Elliot and Quinn note that the House of Lords, on the basis
of policy found that the Claimant satisfied the test of causation .

See for example the dicta of Lord Hope (part of the majority) ‘to leave the patient who
would find the decision difficult, without remedy , as the normal approach to causation
would indicate, would render the duty useless in the cases where it may be needed
most. This would discriminate against those who cannot honestly say that they would
have declined the operation once and for all, if they had been warned. I would find that
result unacceptable. The function of the law is to enable rights to be vindicated and to
provide remedies when duties have been breached. Unless this is done, the duty is a
hollow one, stripped of all practical force and devoid of all content. It will have lost its
ability protect the patient and thus to fulfil the only purpose which brought it into
existence. On policy grounds therefore, I would hold that the test of causation is
satisfied in this case.

3
The case of White v Paul Davidson [2004] EWCA Civ 1511 emphasises that
that Chester is as an exceptional case and its application should be limited to cases of
negligent failure to warn patients of the risks of medical treatment

Note, however, the limitations of the “but for” test. It is not by itself a conclusive test
of legal causation, and it might eliminate both of two simultaneous operative causes as
irrelevant.

MULTIPLE CAUSES

What happens there is more than one cause? A strict application of but-for test may lead to
confusion and may even ‘ defy common sense’ as asserted by Winfield & Jolowicz.

Resultantly, the Courts have modified the ‘but for’ test to fit circumstances where there is more
than one possible cause of damage. The test to be applied may differ in case to case.

SIMULTANEOUS CAUSES

Cook v Lewis [1952] 1 DLR 1

A Canadian case where the Defendants C and A together with a third person were hunting as
party of 3. The Plaintiff L was also hunting the vicinity but in a different hunting party. L was
injured when the hunting parties came close and there was gun discharge from C & A’s party. L
brought an action and the evidence showed that C & A both fired, at different birds in different
directions. However, the jury was not able to determine if it was C or A’s shot that caused L
injury and dismissed L’s claim. On appeal, the Supreme Court found that since it could not be
determined whose negligent shot caused L’s injury, both C and A should be found liable.

However, in a dissenting judgment Justice Locke observed that in the absence of finding that L
was shot by C, the action was properly dismissed at the trial stage.

*Fairchild v Glenhaven Funeral Services Ltd. [2003] 1 AC 32

The Claimants became ill from exposure to asbestos. However the illness did not present until
many years after exposure. The Claimants were exposed to asbestos at multiple employers
during their working life. Therefore, it could not be conclusively determined which exposure
caused the fatal illness. Held if the Claimants could demonstrate that ONE employer had
MATERIALLY INCREASED the risk of contracting the illness, they were entitled to claim full
compensation from that one employer.

Note that the House of Lords sought to confine the application of this case and observed that
the ruling should apply to closely analogous facts.

4
SUCCESSIVE CAUSES

Baker v Willoughby [1970] AC 467

The D injured C’s leg in a car accident. C as a result suffered pain and loss of amenity. After the
accident C had to find lower paying jobs. One such job was sorting scrap metal. During a
robbery attempt while at the job, C was shot in his leg. Thereafter C’s leg had to be amputated.

Question was D still liable to C? Or did the second injury sustained in the robbery obliterate the
effect of the car accident?

Held: D was still liable for loss of amenity and lower earing capacity after amputation. House of
Lords’ rationale was that the original incident was still a cause of loss so that D could not
escape liability.

One argument is if the robbers had been found and successfully sued, their liability would relate
to the deprivation of the damaged leg.

Contrast with Jobling v Associated Dairies Ltd. [1982] AC 794

The Claimant suffered a disabling back injury during an accident at work which was a result of
the Defendant’s breach of duty. The injury also reduced the claimant’s earning capacity by 50
per cent. The Claimant was subsequently diagnosed with a back condition which had no
connection to the accident and due to the development of the disease was wholly disabled and
could no longer work.

Held the supervening disease had to be taken into account . The Defendant only liable for the
effects of the back injury up to the point at which the disease occurred. Rationale- Court must
provide just and sufficient but not excessive compensation, taking all factors into account

Heil v Rankin [2001] IRLR 334

*Bailey v MOD [2008] EWCA 883

Summary from Elliot & Quinn page 61- The claimant, Miss Bailey, suffered brain damage while
she was in a hospital run by the defendants. The defendants admitted that they had been
negligent at an earlier stage of her care, but the brain damage was caused after this, when
Miss Bailey suffered a heart attack due to inhaling her vomit.

Ms. Bailey was in a weakened state and two causes contributed to it one tortious (i.e the D’s
earlier negligence and the other was not (an unrelated disease which she suffered from).

Question – did the negligence of D make a material contribution to Ms. Bailey’s weakness
sufficient to establish causation?

Held: Claimant was successful, even though it was not possible to say with confidence that she
was so weak to inhale her vomit due to the D’s negligence.

5
Rationale by Waller LJ- ‘ I would summarise the position in relation to cumulative cause cases
as follows. If the evidence demonstrates on a balance of probabilities that the injury would have
occurred as a result of the non-tortious cause or causes in any event, the claimant will have
failed to establish that the tortious cause contributed … If the evidence demonstrates that „but
for‟ the contribution of the tortious cause the injury would probably not have occurred, the
claimant will (obviously) have discharged the burden. In a case where medical science cannot
establish the probability that „but for‟ an act of negligence the injury would not have happened
but can establish that the contribution of the negligent cause was more than negligible, the „but
for‟ test is modified, and the claimant will succeed.’

Q: Is the decision in Baker v Willoughby a just one? See the discussion in Winfield & Jolowicz
on this point

INTERVENING CAUSES

“Negligent conduct is more likely to break the chain (of causation) than conduct which is not;
positive acts will more easily constitute new causes than inaction...per Stephenson LJ

(i) Acts of third parties:

“The voluntary act of another, independent of the defender‟s fault, is regarded as a „novus actus
interveniens...per Lord Goff

Lord Goff identified four circumstances in which a party may be liable for the act of third parties

1. Where there is a special relationship between the Defendant and the Plaintiff based
on an assumption of responsibility by the Defendant;

2. Where there is a special relationship between the Defendant and the third party
based on control by the Defendant;

3. Where the Defendant is responsible for a state of damage which may be exploited by
a third party;

4. Where the Defendant is responsible for property which may be used by a third party
to cause damage

Haynes v Harwood [1935] 1KB 46

The Defendant left a horse drawn van unattended in a busy street. The horses bolted when a
boy threw stones at them. A police officer tried to stop the horses which were heading towards a
woman and children and was injured in the process of trying the stop the horses. Held : the
Defendant was liable as he owed a duty of care to a police officer since the D created a source
of danger by leaving the horses unattended in the busy street.

6
The rationale for D’s liability per Green L.J L it is not necessary to show that this particular
accident and damage was probable; it is sufficient if the accident is of a class that might be
anticipated.‟

What happens when D’s original wrongdoing provides an opportunity for separate and
subsequent wrongdoing? Who should be reasonable for the full consequences?

See Lamb v Camden BC [1982] 2 All ER 408

The council negligently fractured a water pipe which caused damage to the Claimant’s home
and required the Claimant to vacate her property. The council delayed in repair and squatters
moved in the property and caused further damage.

Held : Notwithstanding the Council’s delay, and the prevalence of squatting which was rife in
Camden, the Defendant was only liable for the water damage . The Defendant was not liable for
the damage caused by squatters. Lord Denning held that as matter of policy the squatter’s
damage was too remote.

Smith v Littlewoods Organisation Ltd. [1987] 1 All ER 710 –in Elliot & Quinn

The Defendant, L, acquired a derelict cinema with intention to develop it. Prior to development,
vandals set the building on fire, and the fire spread, causing damage to neighbouring buildings.

Held; L not liable for negligence on the following basis: a reasonable man is bound to foresee
the probable consequences of his own actions. In order to be responsible for the actions of
others, it is necessary for there to be a clear basis for anticipating the action of third parties.

Nottage v Super Value Food Stores (1997) Supreme Court, The Bahamas, No 389 of 1994
(unreported). –summary in Kodilinye

D liable to Claimant employee who was injured in armed robbery. Found that there had been
previous robberies at the D’s stores and D breached duty of care by failure to to take
reasonable precautions to protect the Claimant which included providing a security officer to
accompany the Claimant at opening times.

Knightley v Johns [1982] 1WLR 349

(ii) Act of the claimant:

Elliot & Quinn observe at page 68 that „where the intervening act is something the claimant
does, the courts will look at whether it is fair to hold them responsible for the damage caused by
that act. One aspect of this is whether the claimant‟s act was a reasonable one‟

Further, the authors of Clerk & Lindsell on Torts 22nd ed para 2-126 state as follows: „when the
conduct of the claimant exacerbates or adds to the injuries of which he complains, that conduct

7
will generally result in a reduction of his damages on grounds of contributory negligence, or
failure in his duty to mitigate damage. However, it may be that the conduct of the claimant is so
wholly unreasonable and/or of such overwhelming impact that that conduct eclipses the
Defendant‟s wrongdoing and constitutes a novus actus. His own conduct is found to be the
effective cause of his injury.‟

Mc Kew v Holland, Hannen & Cubitts [1969] 3 All ER 1621

The Claimant ,M, was involved in an accident at work and his leg was injured. It was established
that the injury occurred due to the D’s negligence. Following the injury M’s leg was weak and
prone to giving way. M, attempted to walk down a very steep staircase with no handrail,
unaided. During the journey M’s leg gave way, so he jumped to the bottom of the stairs and
sustained new injuries.

Held; M’s act was a novus actus intervenines as the decision to walk the stairs unaided was
unreasonable and broke the chain of causation. The D was not liable for M’s new injuries.

Spencer v Wincanton Holdings Ltd. [2009] All ER (D) 194- Court used fairness to determine
whether the Claimant‟s unwise act broke the chain of causation

Here S was injured at work due to the employer’s negligence. S suffered severe pain and
ultimately his leg had to be amputated. S was fitted for a prosthesis but this could not be worn in
the car until the car was retrofitted. One day, S stopped at the petrol station and instead of using
sticks or seeking assistance hopped out of the car to get gas. While outside the car, S’s foot got
caught in a man-hole cover and he fell. As a result, he damaged his remaining leg and was
permanently confined to a wheel chair. While S was found contributorily negligent, the question
was whether the employer was liable or whether there was a break in the chain of causation .

Held: the Defendant employer was liable and Court found it was unfair to find that the chain of
causation was broken in the present circumstances. The court observed that what happened to
S was a foreseeable result of the defendants’ negligence. The Defendant may not have been
able to foresee the exact circumstances of the accident in the petrol station, but it was possible
to foresee that if their negligence caused a man to lose his leg, that man would be more likely to
hurt himself in an ordinary fall than someone who had two legs and would more easily be able
to regain their balance.

*Corr v IBC [2008] 1 All ER 943

The Claimant’s husband suffered from PTSD and depression following a work accident. The
employer accepted liability for the accident which caused the PTSD and depression but resisted
a claim that they were liable for the suicide committed by C a few years after the accident.

The Court held that the employer was liable.

Per Lord Bingham: ‘Mr. Corr‟s suicide was not a voluntary , informed decision taken by him as
an adult of sound mind… it was the response of a man suffered from a severely depressive
illness.. such illness being, as is accepted, a consequence of the employer‟s tort.”

8
(iii) Natural intervening acts

The authors of Clerk & Lindsell on Torts 22nd ed para 2-103 state as follows: ‘where the
subsequent supervening event is non-tortious, the courts apply a different test. If the
supervening event is a sufficient cause, i.e, it would have been sufficient in itself to cause the
loss, the causative effect of the initial tort is treated as spent or obliterated.’

Carslogie SS Co v Royal Norwegian Government [1952] AC 292

D’s vessel negligently damaged C’s vessel. As a result C set sail to the US for repairs ( note C
was not previously on route to the US, but journeyed to the US specifically for the repairs).
While en route to the US, C’s vessel suffered significant damage inflicted by a heavy storm.
Once in the US, repairs for the storm damage and the damage caused by D’s negligence were
effected. C sought to claim for the 10 days needed for repairs specifically due to D’s negligence.

C was unsuccessful as the Court held that the vessel would have been detained in any event
during the 10 days and as incapable of gainful use during the 10 days necessary to complete
her collision repairs.

PROOF OF CAUSATION –THE BALANCE OF PROBABILITIES

*McGhee v NCB [1972] 3 All ER 1008 [HL] dermatitis case

The claimant’s job exposed him to brick dust. It was accepted brick dust could cause dermatitis.
There were two possible exposures to brick dust. Such exposure was unavoidable however,
and it was known that showering after exposure could reduce the risk of developing dermatitis
could be reduced. The Defendant did not provide showers at work.

Question was the Defendant liable in negligence for the Claimant’s dermatitis?

Court accepted that it impossible to prove that the damage would not have happened ‘but for’
the defendants’ negligence, and also impossible to prove that it would definitely still have
happened without the negligence.

House of Lords held that where there was more than one possible cause, causation could be
proved if the claimant could show that the defendants’ negligence had materially increased
the risk of the injury occurring; it was not necessary to show that it was the sole cause. In that
case, the lack of showers was held to substantially increase the risk to the Claimant.

Wilsher v Essex Area HA [1988] 1 All ER 871[HL] -

A premature baby was given too much oxygen by a junior doctor. The baby suffered from a
condition which affected the baby’s sight. The excess of oxygen was accepted as a potential
cause for the impaired sight. However the condition could have been caused by four other
factors which were unrelated to the oxygen but related to premature birth. The baby suffered
various conditions which could have resulted in impaired sight during the first two months of his
life.

9
On appeal the Court of Appeal directed that there should be a retrial of the causation issue. See
the dissenting judgment Sir Nicolas Brown Wilkinson where stated as follows: ‘ to my mind, the
occurrence of [the condition] following a failure to take a necessary precaution to prevent
excess oxygen rather than one or more of the four other possible agents which caused or
contributed to [ the condition] in this case. The position, to my mind is wholly different from
that in McGhee where there was only one candidate (brick dust) which could have
caused the dermatitis, and the failure to take a precaution against brick dust causing
dermatitis was followed by a dermatitis caused by brick dust.

Fairchild v Glenhaven Funeral Services Ltd. [2003] 1 AC 32

Delay and loss of chance- most common in medical cases, in these types of cases the Court
has to decide whether the delay can be said to have caused the Claimant not to have been
cured, or whether that would have been the situation even if the Defendant had not acted
negligently. Loss of chance can also occur outside of the context of medical cases.

In loss of chance cases, the loss of chance must be proved on a balance of probabilities for the
Claimant to be successful

See*Hotson v East Berkshire HA [1987] AC 750-

The claimant, was 13 years old at the time that he fell while climbing a tree. He went to the
hospital after the incident and after an X-ray was sent home having been incorrectly diagnosed.
Five days later, the boy was still in pain, and when he was taken back to the hospital, a hip
injury was diagnosed and treated. However, by that time he developed avascular necrosis, that
caused a disability in his hip joint and a deformity. There was a 25 per cent chance that if he
had been diagnosed and treated properly on his first visit to the hospital, the injury would have
healed and the avascular necrosis would not have developed.

Both High Court and Court of Appeal awarded the Claimant damages for the 25% loss of
chance. This was reversed by the House of Lord which applied a balance of probabilities and
concluded that in light of the 75% risk to the Claimant whether or not her was treated
immediately he could not prove that the D’s negligence cause his condition.

Gregg v Scott [2005] 4 All ER 812 – Should a 51%-49% ratio be used in determining liability on
a balance of probability?

In Greg, if at the time the patient first visited the doctor, he was diagnosed correctly and treated,
he had a 42-45% chance of survival. However, because the patient was misdiagnosed, in the
intervening months the chance of recovery was significantly reduced. The Defendant sought to
resist liability on the basis that the prospect of recovery was not more than 50%.

Lord Nicholls strongly dissented and classified the use of such stringent ratios as irrational and
indefensible

10
Tutorial Questions:

1. Attempt to describe to a client how causation is established in negligence.

2. Marcus while speeding along Blackrock crashes into a car driven by Carelle. Carelle was
on her way to drop her daughter Maya to the Cavehill Campus for a Tort Lecture.

Carelle complains that her back is hurting. Maya hit her head during the crash, suffered
visible cuts and bruises and swelling in her legs. Carelle’s car sustains collision damage.

Carelle and Maya are transported to the hospital. Carelle is not seen for 8 hours and is.
diagnosed with paralysis from the waist down by the doctor on duty. Carelle is later
advised by her family physician, that if she was treated within the first two hours after the
accident, there was 15% chance that she could have retained some level of mobility.

Maya’s head injury is treated immediately. The hospital cleans and applies dressing to
the cuts and bruises and prescribes pain medication for Maya. Five days later, Maya
returns to the hospital complaining about immense pain and an inability to walk. An X-
ray shows that her knee was fractured in the accident and as result her knee becomes
weak. Two months later, while walking from the pitt to the moot court Maya’s knee gives
way and she falls down the stairs. Maya was not holding on to the hand rail at the time of
the incident.

Carelle’s car had to be transported by wrecker to a body work shop located on the west
coast. While en route to the body work shop, a passing storm causes a sudden storm
surge and the waves crash into the road resulting in water damage to the car and
flooding the engine. The repair process take 60 days , 5 of which relate to repair from
the collision damage.

Advise Marcus on liability.

11