Damage Causation Factual Legal

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TORT | Negligence

Damage:
Causation
Study Note | Degree

11 APRIL 2013

Introduction
In Negligence, a claimant must prove that the defendant's breach of duty owed caused the damage or injury
suffered. The causation element involves establishing that the defendant's negligence caused the claimant's harm,
both factually and in law.

Factual causation: the 'but for' test


There must be a factual determination as to whether the defendant's actions caused the claimant's harm. This is
often referred to as the chain of causation.

BARNETT V CHELSEA & KENSINGTON HOSPITAL [1969]1 QB 428

FACTS:
The plaintiffs were the family of the victim, who had gone to the defendant's hospital but was
negligently sent home untreated and died of arsenic poisoning a few hours later. The medical evidence
suggested that the victim would probably have died, even if the proper treatment had been given
promptly.

ISSUE:
Did the defendant's negligence cause the victim's death?

HELD:
The defendant 's negligence did not cause the victim's death, the arsenic was the cause. This decision
established the 'but for' test: But for the defendant's breach of duty, would the harm to the claimant
have occurred? If yes, as in this case, the defendant is not factually liable. However, if the answer is
no, then factual causation is satisfied.

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MC WILLIAMS (CUMMINGS) V ARROL & CO [1962] 1 WLR 295

FACTS:
The plaintiff was the widow of the victim, who fell to his death while working as the defendant's
employee. The victim had been working at seventy foot and the defendant did not provide a safety
harness, despite a statutory duty to do so. However, there was evidence that the victim would not have
worn a harness even had it been provided.

ISSUE:
Did the defendant's breach of duty cause the victim's death?

HELD:
The House of Lords found that the defendant was not liable as causation was not satisfied. The
evidence that the victim would not have worn the safety harness meant 'but for' the defendant's
actions the victim would still have died.

Factual causation: proof


A claimant must prove that, 'on the balance of probabilities', their harm was caused by the defendant's breach of
duty.

HOTSON V EAST BERKSHIRE AREA HEALTH AUTHORITY [1987] AC 750

FACTS:
The plaintiff fell from a tree and his injuries were then wrongly treated at the defendant's hospital. The
plaintiff was left permanently disabled. The defendant admitted negligence but denied liability.
Evidence showed that there was a seventy five percent chance that the plaintiff's medical condition
would have been the same even if he had received the correct treatment.

ISSUE:
Did the defendant's negligence cause the plaintiff's injury?

HELD:
Causation could not be established and the claim failed. There was only a twenty five percent chance
that the negligent medical treatment affected the claimant's prognosis. Therefore, it did not satisfy the
balance of probabilities burden, which would require more than a fifty percent chance. This is known as
the 'all or nothing' approach.

Factual causation: clinical negligence


Clinical negligence claims may lead to complex causation issues.

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WILSHER V ESSEX AREA HEALTH AUTHORITY [1988] AC 1074

FACTS:
The plaintiff, a premature baby, received negligent treatment at the defendant's hospital and was left
blind. However, there were four other different, independent possible causes of his blindness, each
alone could have been the cause.

ISSUE:
Did the defendant's negligence cause the plaintiff's injury?

HELD:
It was for the plaintiff, on a balance of probabilities, to show that the defendant's negligence caused the
damage, which he could not do. Statistically each possible cause represented a twenty percent chance
of actually being the cause. The House of Lords ordered a retrial on the issue of causation.

BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY [1998] AC 232

FACTS:
The plaintiff was the mother of the victim, a two year old child, who suffered serious brain damage
following respiratory failure and eventually died at the defendant's hospital. The child was taken to the
hospital, however a doctor did not attend (due to a technology failure) until after the victim died. The
plaintiff argued that the doctor should have attended and carried out a specific procedure, which would
have saved the victim's life. The doctor testified that she would not have carried out the procedure
even if she had attended and her evidence was backed by a number of medical professionals.

ISSUE:
How did the 'but for' test apply?

HELD:
The defendant's negligence was based on an omission to act. Therefore, the court had to consider the
'but for' test in a hypothetical situation.

Generally, the courts are cautious about finding against medical professionals for policy reasons. If patients often
succeeded in Negligence claims then it may affect a doctor's willingness to treat patients, pioneering new procedures
would be unlikely to be tried and the cost of medical care would increase due to higher insurance premiums.

Factual causation: multiple causes


If there are several possible alternative causes then a claimant must show that his harm was caused by the
defendant's breach, as in Wilsher v Essex Area Health Authority [1988]. However, cases often involve harm
which may have been caused by a combination of a number of factors.

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Material contribution approach
The courts have developed the material contribution approach in order to help determine causation where multiple
causes contributed to the claimant's harm.

BONNINGTON CASTINGS LTD V WARDLAW [1956] AC 613

FACTS:
The plaintiff, a steel worker, had contracted a disease caused by exposure to dust from a pneumatic
hammer and swing grinders. The defendant, was in breach of a statutory duty to maintain the swing
grinders. Therefore, the defendant could only be liable in Negligence if the swing grinders were the
cause of the plaintiff's disease.

ISSUE:
What was the cause of the plaintiff's disease?

HELD:
It was held that, on the balance of probabilities, dust from the swing grinders had materially
contributed to causing the plaintiff's disease and on that basis causation could be established.

Lord Reid: '.. It appears to me that the source of his disease was the dust from both sources,
and the real question is whether the dust from the swing grinders materially contributed to the
disease... [the plaintiff] must make it appear at least that on a balance of probabilities the
breach of duty caused or materially contributed to his injury...'.

BAILEY V MINISTRY OF DEFENCE [2008] EWCA CIV 883


Waller LJ: '.. 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...'.

MCGHEE V NATIONAL COAL BOARD [1973] 1 WLR 1

FACTS:
The plaintiff contracted dermatitis due to exposure to dust, when cleaning brick kilns for the defendant.
Medical evidence suggested that the only way to avoid the dust abrasions was thorough washing of
the skin immediately after contact. The defendant negligently did not provide washing facilities on site.
However, the medical evidence did not establish whether the lack of washing (which the defendant
was liable for) or more generally the exposure (which the defendant was not liable for) was the cause.

ISSUE:
Was sufficient causation proved?

HELD:
Under the strict 'all or nothing' approach the plaintiff could not prove the defendant caused his
dermatitis (Hotson v East Berkshire Area Health Authority [1987]). The plaintiff was also unable to

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prove that defendant's failure to provide onsite washing facilities materially contributed to his dermatitis
(Bonnington Castings Ltd v Wardlaw [1956]). However, the House of Lords found that the
defendant's failure to provide onsite washing facilities was a material contribution to the risk of
injury and that was sufficient to prove causation.

Therefore, the courts have modified the 'but for' test. This means that a claimant must establish the defendant's
negligence either: materially contributed to the harm (Bonnington Castings Ltd v Wardlaw [1956]) or materially
contributed to the risk of harm (McGhee v National Coal Board [1973]). In Wilsher v Essex Area Health
Authority [1988], the defendant could only be held responsible for one of the possible risk factors and it could not be
shown that this increased the risk of the claimant suffering the harm. Therefore, despite the widening of the 'but for'
test the claimant was still unable to satisfy the causation requirement.

Divisible injury
The issue arises: to what extent is a defendant who is found to have either materially contributed to the harm or
materially contributed to the risk of the harm, liable for damages?

HOLTBY V BRIGHAM & COWAN (HULL) LTD [2000] 3 ALL ER 421

FACTS:
The claimant suffered asbestosis due to exposure to asbestos at work. The asbestosis was a
cumulative condition, which got progressively worse the longer the exposure continued. Over a period
of time, the claimant had been carrying out the same work for several employers, including the
defendant.

ISSUE:
To what extent was the defendant liable?

HELD:
The claimant succeeded in demonstrating a material contribution from the defendant's negligence. The
defendant would be responsible for a proportion of the harm suffered by the claimant. Therefore,
damages were apportioned between the defendant and the other employers (the tortfeasors)
according to the length of time the claimant worked for each employer. The claimant must make a
claim against all the tortfeasors in order to recover full damages.

Indivisible injury
In some cases more than one defendant has made a material contribution to the claimant's harm but it is not
divisible. For example, in a road traffic accident a single injury suffered may be the result of two different defendant's
negligence.

CIVIL LIABILITY (CONTRIBUTION) ACT 1978


S1 Entitlement to contribution

(1) .. any person liable in respect of any damage suffered by another person may recover contribution
from any other person liable in respect of the same damage (whether jointly with him or otherwise).

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S2 Assessment of contribution

(1) .. in any proceedings for contribution under S1 above the amount of the contribution recoverable
from any person shall be such as may be found by the court to be just and equitable having regard to
the extent of that person s responsibility for the damage in question.

Under S1(1) of the Civil Liability (Contribution) Act 1978, the defendants are jointly and severally liable for the full
damages owed to a claimant. This means a claimant may bring a claim for full damages against only one of the
defendants. It aids a claimant to recover full damages even if one of the other defendants is insolvent or untraceable.
In addition, under S2(1), the courts can apportion liability for damages between the defendants according to their
share of responsibility for the harm caused.

Recent developments
A recent decision has been criticised for weakening the test for factual causation and therefore, leaving employers
and insurers vulnerable to large claims. However, it can also be seen as providing just recourse for claimants who
have suffered serious harm.

FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD [2003] 1 AC 32

FACTS:
The claimants had developed mesothelioma, a cancer, caused by exposure to asbestos. The
claimants had worked for several employers and were exposed to asbestos in each job. The
defendants were some but not all of the employers. Medical evidence failed to show which of the
employers had been responsible for the exposure which led to the cancer. Each defendant argued that
the 'but for' test was not satisfied as their breach may have not been responsible for triggering the
cancer.

ISSUE:
Could the defendants be held responsible?

HELD:
The Court of Appeal found that the lack of medical certainty meant that causation could not be proved.
However, the House of Lords approved the approach in McGhee v National Coal Board [1973],
finding that the defendants had materially contributed to the risk of the claimants contracting the
cancer. It also found that mesothelioma was an indivisible injury and therefore, the defendants were
jointly and severally liable.

Another controversial decision followed, which appeared to retract the scope of the decision in Fairchild v
Glenhaven Funeral Services Ltd [2003].

BARKER V CORUS [2006] 2 AC 572

FACTS:
The claimants contracted mesothelioma working for a number of employers. However, when the case
was brought the defendant was the only employer still trading. The defendant argued that if was unfair
to impose joint and several liability when their breach had only contributed to the risk of harm. The

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defendant argued liability should be proportionate only to the extent to which they contributed to the
risk (the time that they had employed the claimants and exposed them to the asbestos).

ISSUE:
Could the defendant be held jointly and severally liable?

HELD:
The House of Lords (majority) held that liability for mesothelioma under Fairchild v Glenhaven
Funeral Services Ltd [2003], was for the risk of harm and therefore a defendant's liability should be in
proportion to the contribution he has made to the risk of the harm occurring. Furthermore, although
mesothelioma was an indivisible injury, the risk of it was divisible and should be reflected in a
defendant's liability.

The decision in Barker v Corus [2006], was heavily criticised for limiting a claimant's ability to receive damages in
full. Parliament passed the Compensation Act 2006 which effectively reversed the decision for claimants suffering
mesothelioma. However, it remains unclear whether the decision will be followed in cases where causation is based
on a material contribution to the risk of harm.

Factual causation: loss of chance


The loss of chance concept applies to cases where a claimant is arguing that the defendant's breach caused the
claimant to lose a chance, rather than the defendant's breach being a cause of the harm. Therefore, the courts must
focus on the outcome of events not the damage which occurred.

In Hotson v East Berkshire Area Health Authority [1987], where the defendant's omission to treat the claimant
may have lessened his chance of recovery, the House of Lords decided to use the 'all or nothing' approach.
However, it refused to rule out the possibility of successful loss of chance cases in different circumstances.

GREGG V SCOTT [2005] WL 622 48

FACTS:
The claimant had a lump under his arm which the defendant doctor negligently diagnosed as benign.
Therefore, the cancer was left untreated and spread to other parts of the claimant's body. Medical
evidence, suggested that if the misdiagnosis had not have occurred the claimant would have had a
forty five per cent chance of recovery.

ISSUE:
Was the defendant liable for the claimant's loss of chance?

HELD:
The House of Lords (majority) applied Hotson v East Berkshire Area Health Authority [1987] and
confirmed the 'all or nothing' approach.

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Factual causation: multiple injuries
If a claimant has suffered one injury or loss followed by another and they are relevant to one another, causation
issues can arise.

PERFORMANCE CARS V ABRAHAM [1962] 1 QB 33

FACTS:
The defendant negligently hit the claimant's car and the car required a re-spray. However, two weeks
earlier the claimant's car had been hit by another negligent driver. The initial incident meant that the
car was in need of a re-spray prior to the incident involving the defendant.

ISSUE:
Could the defendant be liable for the damage?

HELD:
The Court of Appeal found that the defendant was not liable for the cost of the re-spray because the
defendant's breach had not caused the need for the re-spray. Therefore, if a claimant has already
suffered the harm, a subsequent defendant is only liable to the extent that he makes the claimant's
harm worse.

Similarly, issues can arise in relation to personal injuries.

RAHMAN V AREAROSE LTD [2001] QB 351

FACTS:
The claimant had suffered physical injuries after a vicious assault at work, which employer, the first
defendant, had negligently failed to protect him from. Subsequently, the claimant was left blind in one
eye after receiving negligent treatment, in the second defendant's hospital. Furthermore, the claimant
suffered severe continuing psychiatric injury as a result . Medical evidence showed that the complex
psychiatric injury could be attributed to the two separate tortious incidents.

ISSUE:
To what extent was each defendant liable?

HELD:
The claimant's employer was solely responsible for the initial injuries and loss of wages resulting from
the attack. The hospital was solely responsible for the blindness. The court found that both were liable
for the psychiatric injury. On the basis of the medical evidence, the psychiatric injury was found to be
divisible and therefore, the damages were apportioned between the employer and the hospital.

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Legal causation: intervening acts
Both factual causation and legal causation must be proved in order to make a claim in Negligence. For the chain of
causation to be proved the defendant's breach of duty must have caused or materially contributed to the claimant's
injury or loss. However, the chain may be broken by an intervening event. Extrinsic intervening events (nova causa
interveniens) may occur or the independent act of someone other than the defendant (novus actus interveniens)
may also interfere with the chain of causation. However, an intervening event does not necessarily break the chain of
causation.

Third party
The intervening act of a third party may break the chain of causation.

A third party act will not break the chain of causation if the defendant is under a legal duty to prevent that act.

STANSBIE V TROMAN [1948] 2 KB 48

FACTS:
The claimant had property stolen from her house, when the defendant, a decorator, left the house
unoccupied and unlocked. The defendant was under at duty to secure the property if he left the house.

ISSUE:
Did the intervening act break the chain of causation?

HELD:
The chain of causation was not broken, the actions of the thief, was the very reason the defendant was
under a duty to secure the property.

A third party act will break the chain of causation if it is an unforeseeable consequence of the defendant's own
negligence.

KNIGHTLEY V JOHNS [1982] 1 WLR 349

FACTS:
The defendant was driving negligently which led to his car turning over near the exit from a one-way
tunnel. The police officer who arrived at the scene negligently directed the plaintiff to drive back up the
tunnel. The plaintiff collided with an oncoming vehicle and was injured.

ISSUE:
Did the intervening act break the chain of causation?

HELD:
The chain of causation was broken. It was foreseeable the police would attend as a result of the
defendant's negligence. However, the gross negligence of the officer was not foreseeable.

A negligent act of a third party is more likely to break the chain of causation, but not definitely because
some errors of judgment are foreseeable.

Stephenson LJ: '.. mistakes and mischances are to be expected...'.

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Therefore, the question of foreseeability, even if the third party was negligent will be decided on the facts of each
case.

ROUSE V SQUIRES [1973] QB 889

FACTS:
The defendant's careless driving resulted in his lorry skidding and blocking two lanes of the motorway.
The plaintiff's husband stopped to help the defendant. Another lorry driver, who was also driving
negligently, failed to see the blockage soon enough and killed the victim.

ISSUE:
Did the intervening act break the chain of causation?

HELD:
The Court of Appeal found that the chain of causation was not broken, as it was reasonably
foreseeable that other drivers may arrive at the scene too fast to stop. Both the defendant and the
second driver had made a material contribution to the indivisible injury. Under the Civil Liability
(Contribution) Act 1978 the court apportioned liability between them.

An instinctive intervention, by a third party, may not break the chain of causation if it is a foreseeable reaction.

SCOTT V SHEPHERD (1773) 2 WM BL 892

FACTS:
The defendant threw a lighted squib into a crowded market. Two other individuals picked the squib up
and threw it away from themselves and their stalls. The squib eventually exploded in front of the
plaintiff, who lost his eye.

ISSUE:
Did the intervening acts break the chain of causation?

HELD:
The intervening acts did not break the chain of causation, as the third parties were acting instinctively
to the danger posed by the defendant's act.

De Grey CJ: '.. all that was done subsequent to the original throwing as a continuation of the
first force and first act.. any innocent person removing the danger from himself to another is
justifiable... acting under a compulsive necessity for their own safety and self-preservation...'.

Claimant
A claimant's own act may break the chain of causation.

A cliamant's own act may be a novus actus interveniens if he acts unreasonably.

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MCKEW V HOLLAND & HANNEN & CUBITTS [1969] 3 ALL ER 1621

FACTS:
The plaintiff injured his leg at work, due to his employer's negligence (the defendant). A few days later,
the plaintiff was descending some steep steps without a handrail. He lost control of his leg and fell
down the stairs, severely fracturing his ankle.

ISSUE:
Did the plaintiff's intervening act break the chain of causation?

HELD:
The plaintiff's act did break the chain of causation because he took an unreasonable risk.

Lord Reid: '.. if the injured man acts unreasonably he cannot hold the defender liable for injury
caused by his own unreasonable conduct. His unreasonable conduct is novus actus
interveniens. The chain of causation has been broken and what follows must be regarded as
caused by his own conduct...'.

A claimant's act of carelessness may not always be considered so unreasonable as to break the chain of causation.
However, it may be viewed as contributory negligence on the claimant's part.

SPENCER V WINCANTON HOLDINGS LTD [2009] EWCA 1404

FACTS:
The claimant was injured at work, resulting in his leg being amputated. The defendant was liable was
for this injury. Several months later, the claimant had an accident, trying to use his new prosthesis,
which meant that he would be permanently confined to a wheelchair.

ISSUE:
Did the claimant's intervening act break the chain of causation?

HELD:
The claimant's act did not break the chain of causation. However his damages were reduced as
contributory negligence was accepted as a partial defence.

Lord Sedley: '.. Like the amputation, the fall was... an unexpected but real consequence of the
original accident, albeit one to which [the cliamant's] own misjudgement contributed...'.

This article can be found online at www.bitsoflaw.org/tort/negligence/study-note/degree/damage-causation-factual-legal where links to further


resources are available.

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