Law of Tort II

HAFIZAH ABD LATIFF

 CAUSATION
 Did the breach cause the damage?
 Plaintiff must prove that the defendant’s breach of duty actually
caused the damage suffered by the plaintiff, and that the damage
caused was not too remote from the breach.
 CAUSATION

‘BUT FOR’ TEST

MULTIPLE CAUSES
INTERVENING
EVENTS
 ‘BUT FOR’ TEST
 By proving that the Defendant’s breach of duty was, as a matter of fact, a cause of
the damage.
 Whether the damage would have been occurred but for the breach of duty.
 Case: Barnett v Chelsea and Kensington Hospital Management Committee.
 Facts: A night watchman arrived early in the morning at the defendant’s hospital,
suffering from nausea after having a cup of tea at work. The nurse on the duty
telephoned the casualty doctor, who refused to examine the man. The man died 5
hours later due to arsenic poisoning.
 Held: The court accepted that the defendant owed duty to the deceased and they
had breached that duty by failing to examine him. However the breach did not cause
his death. Evidence showed that, even if he had been examined, it was too late for
any treatment to save him, and therefore it could not be said that but fir the
hospital’s negligence he would have died.
 ‘BUT FOR’ TEST
 Case: Brooks v Home Office
 Facts: The plaintiff was a woman in prison, who was pregnant with twins.
Her pregnancy had been classified as high risk, so she needed regular
ultrasound scan. One of the scans showed that on of her twins was not
developing properly, but the prison doctor, who had little experience in
this area of medicine, waited 5 days before seeking specialist advice. It
was discovered, the baby had died 2 days after the scan.
 Held: The court agreed that the prison doctor delayed the treatment, but it
was found out that a wait of 2 days before getting expert advice would
have been reasonable for women outside prison, and as the baby had
actually died within this time, the doctor’s negligence could not have been
said to have caused its death.
 ‘BUT FOR’ TEST

Discuss the case Corby Group Litigation v Corby

Borough Council (2009) in reference to the
application of but for test.
 MULTIPLE CAUSES
 In some cases, the damage maybe caused by more than one possible
cause.
 When there are multiple cause to cause the damage, but for test is not
applicable.
 The law applies different type of test based on the circumstances of the
case.
 Case: McGhee v National Coal Board
 Facts: The Plaintiff’s job brought him into contact with brick dust, which
caused him to develop the skin condition dermatitis. It was known that
contact with brick dust could cause dermatitis, but it was not suggested
that merely exposing workers to the dust is negligent, as that was
unavoidable risk of the job they did. However, it was known that the risk of
 MULTIPLE CAUSES
 Held: In cases where there has been more than one possible cause of
damage, the court have modified the application of “but for” test. In this
case, the causation could be proved if the claimant could show that the
Defendant’s negligence had materially increase the risk of the injury
occurring; it was not necessary to show that it was the sole cause. In this
case, the lack of showers were held to substantially increase the risk to
the Plaintiff.
 MULTIPLE CAUSES
 Case: Wilsher v Essex Health Authority
 Facts: The Plaintiff was born 3 months earlier, with a number of health problem
associated with premature birth. He was put on oxygen supply and as a result of a
doctor’s admitted negligence, was twice given too much oxygen. He eventually
suffered from permanent blindness, and the hospital was sued. Medical evidence
suggested that although the overdose of oxygen could cause the Plaintiff’s
blindness, it could also have been caused by any one of the 5 separate medical
condition which he suffered from.
 HOL: The Plaintiff has to prove on the balance of probabilities, that the defendant’s
breach of duty was a material cause to the injury; it was not enough to prove that
the defendant has increase the risk that the damage might occur or had added
another possible cause of it. In this case, the defendant’s negligence was only one
possible cause of the damage, and this was not sufficient to prove causation.
 MULTIPLE TORTFEASORS

 Discuss the position for multiple

tortfeasors.