Chapter Causation and Remoteness of Damage

Revision Aid

1. Definition

This is the third element of the tort of negligence.

The claimant must show that the defendant’s breach of duty caused the harm and/or loss.

2. Factual Causation

The defendant’s breach of duty must cause the damage or materially contribute to the damage.

The courts use the ‘but for’ test to establish factual causation.

Cork v Kirby Maclean Ltd: this case described the test and stated that if the damage would not
have happened but for a particular fault then that fault is the cause of the damage.

Barnett v Chelsea and Kensington Hospital Management Committee: the hospital was able to
show that even if the claimant’s husband had been examined with proper care he would still
have died and the defendant’s breach was not the cause of the death.

Sometimes it is difficult to apply the ‘but for’ test.

Chester v Afshar: the court said that in this case it was difficult to prove causation using the ‘but
for’ test and that policy considerations required a judge to decide whether justice demanded
that the usual approach to causation should be modified. The court in this case held that
causation had been proven on policy grounds and the claimant won.

It must be remembered that the judges in Chester made it clear that the case was unusual and
was decided on its own particular facts.

3. Loss of Chance Cases and the ‘But For’ Test

These are usually cases of medical negligence.

In these cases the claimant claims that they had a certain percentage of chance of being cured
but that percentage was reduced because of the doctor’s delay.

The courts have to decide if it can be said that the delay by the doctor caused the patient to not
be cured or whether the claimant would not have been cured regardless of what the doctor did.
Generally the courts are not willing to award compensation.
Hotson v East Berkshire Area Health Authority: the defendant’s negligently failed to diagnose
the claimant’s hip condition. Expert medical testimony indicated that had his fractured hip been
identified on his initial hospital visit, there was a 25% chance of his condition having been
successfully treated (and thus a 75% chance it would have made no difference). The House of
Lords held that the claimant had not satisfied the burden of proof and was not entitled to
damages.

Greg v Scott: whilst the defendant had been negligent in his original assessment, it remained
that loss of a chance was not a form of injury for which one could claim damages for tortious
negligence in relation to medical problems.

4. Several Concurrent Causes of Harm

The courts have modified the ‘but for’ test where there is more than one cause of damage.

(a) Material Increase of Harm:

Bonnington Castings Ltd v Wardlaw: there were two potential causes of the claimant’s illness –
the guilty dust that should not have been present in the working environment and the innocent
dust that would have been present anyway.

The House of Lords held that the claimant had to show that the guilty dust materially
contributed to the illness and not that it was the only cause of the illness.

Sienkiewicz v Greif: the court held that where there is more than one possible cause of the
injury, causation can be proved if the claimant can show that the defendant’s negligence
materially increased the risk of injury.

McGhee v NCB: one possible cause of the claimant’s skin disease was exposure to brick dust
and the other was failure to provide washing facilities. The court held that causation could be
proved if the claimant could show that the defendant’s negligence materially increased the risk
of injury.

Bailey v Ministry of Defence: the Court of Appeal decided in favour of the claimant stating that
the defendant’s negligence materially contributed to what had happened.

(b) Material Cause of Injury:

When using this modification of the ‘but for’ test, it is not enough to show that the defendant
merely increased the risk of damage. The claimant must show that the defendant’s negligence
was a material cause of the injury.
Wilsher v Essex Area Health Authority: on the facts the defendant’s negligence was only one of
the possible causes but not the material cause of the injury and this the defendant was not held
liable.

5. Consecutive Causes of Harm

Where there are two independent events the second event causes the same injury as the one
caused by the first event then the first event shall be treated as the cause.

Baker v Willoughby: the defendant in this case was liable for the full extent of the claimant’s
injury which also included being shot in the same leg that was injured by the defendant’s
negligence.

Jobling v Associated Dairies: in this case the defendant was not liable for the full extent of the
defendant’s injury as the subsequent spinal disease was brought on by natural causes.

Fitzgerald v Lane: both drivers were held liable for all the injuries as it could not be shown
which impact caused the claimant’s harm.

Performance Cars Ltd v Abraham: the first defendant was held responsible for the entire
amount due as regards the damage to the car. The second defendant was absolved from paying
anything.

6. Multiple Tortfeasors

This is where there is more than one defendant who could be responsible for the harm in whole
or in part.

Holtby v Brigham and Cowan: the claimant suffered from asbestosis. He had been employed by
the defendant for half the time of his work life and other companies for the rest of that time.
The defendants were held liable as their negligence had made a material contribution to the
claimant’s harm. Liability was assessed at 75%.

This principle can work harshly against the claimant as he would not be able to recover
compensation in full.

Fairchild v Glenhaven Funeral Services: this problem was partially corrected in this case. The
claimant suffered from mesothelioma. He had been exposed to asbestos fibres during
employment with several different employers. Some of them had gone out of business and
could not be sued. The remaining defendants denied liability on the basis that it could not be
proven that their asbestos was what the claimant inhaled.
The House of Lords extended McGhee and stated that each defendant’s breach materially
increased the risk of contracting mesothelioma and the claimant was entitled to compensation
in full.

The defendants did not see this decision as fair as they had to pay compensation even if they
were not to blame for the harm.

Barker v Corus: Fairchild was applied and the claimant was successful but damages were
reduced by 20% to take into account the period the claimant was self-employed and exposed
himself to asbestos.

Baker partially overruled Fairchild in that liability was several rather than joint. This meant that
the defendant would be liable to the extent to which their negligence exposed the claimant to
the risk of mesothelioma.

This position was criticized and the government in power at the time introduced legislation to
restore the Fairchild principle.

Section 3(1) of the Compensation Act 2006 states that causation can be proven by showing that
the exposure to asbestos made a material contribution to the risk of contracting mesothelioma.

Sienkiewicz v Greif: the Supreme Court held that the Fairchild principle was developed for
mesothelioma cases and the principle will apply regardless of whether there is single or
multiple exposure. As far as what constitutes material increase it was held that this was
something for the judges to decide on the facts of the case.

7. Intervening Acts

If the defendant can show that the chain of causation is broken by an intervening act then he
will not be liable. This is also known as novus actus interveniens.

There are two types.

(a) Intervention by the claimant:

McKew v Holland: if the injured person acts unreasonably he cannot hold the defendant liable
for injury caused by his own unreasonable conduct.

Wieland v Cyril Lord Carpets: the defendant in this case was liable for the full extent of the
claimant’s injuries as she had not acted unreasonably and did not break the chain of causation.

Not all irresponsible behavior will break the chain of causation.

Spencer v Wincanton Holdings: the court decided that the claimant’s action were contributory
negligence but did not break the chain of causation.

(b) Intervention by a third party:

If the action by a third party is an intervening act the defendant will not be liable for any harm
occurring after the second action.

To break the chain of causation the action by a third party should be voluntary and independent
of the initial breach of duty.

Knightley v Johns: the court found that the chain of causation had been broken by the police
inspector’s actions and the defendant was not liable for the claimant’s injuries.

8. Remoteness of Damage

Even if causation is proven it is possible that the defendant is not found liable because the
damage is considered too remote.

Re Polemis: the court held that the test for remoteness was whether the damage was a direct
consequence of the breach of duty.

This was overruled.

The Wagon Mound: the Privy Council held that the fact that some of the damage was
foreseeable did not mean the defendants were liable for the fire damage as that was not
foreseeable. It was held that the test for remoteness was whether the kind of damage that was
sustained was reasonably foreseeable.

If the damage is foreseeable then it does not matter that the manner in which it occurred was
not foreseeable.

Doughty v Turner Manufacturing: the Wagon Mound was applied and the court held that the
chemical reaction was unforeseeable and the damage was too remote to impose liability on the
defendant.

Smith v Leech Brain and Co: the court applied the thin skull rule and held that the defendant
was liable for the burn that led to cancer in the claimant.