General Negligence - Causation

Front 1

Cork v Kirby Maclean Ltd [1952]

Back 1

Authority for the 'But For' test.

Front 2

Barnett v Kensington and Chelsea Hospital [1969]

Back 2

Authority for the 'But For' test for medical cases.
The hospital breached the duty of care owed to a patient in that a doctor failed to carry out a proper examination. The patient died of arsenic poisoning. However, the evidence showed that he would have died even if the doctor had examined him. Therefore, there was no factual causation, the 'but for' test having not been satisfied. It was, however, accepted that the doctor had been in breach of his duty.

Front 3

Mount v Baker Austin [1998]

Back 3

Solicitors failed to pursue their client's claim sufficiently quickly with the result that it was 'struck out' - i.e. dismissed by the court as having no real merit for trial. The client sued the solicitors for the delay. The court held that the client had failed to show that his original claim had a realistic prospect of success, and therefore it could not be said that the solicitors' negligence had caused any loss.

Front 4

Wilsher v Essex AHA [1988]

Back 4

Multiple Independent Causes: where there are several possible independent causes of a loss and it is not possible to prove from the evidence available which one actually caused the loss then the claimant will fail.

In this case the plaintiff had been born prematurely. He suffered a condition that caused him to go blind. There was evidence that his blindness could have been caused by any of five different factors, only one of which was tortious (i.e. an excess of oxygen given incorrectly). The others were all the natural result of his premature birth. The evidence suggested that these factors did not operate together to cause the blindness - one factor was solely responsible for the loss.

The court applied the 'but for' test in this situation. The plaintiff had to prove that but for the defendant's breach he would not have suffered the blindness. As the standard of proof in civil actions is the balance of probabilities, the plaintiff had to establish that it was more than likely (51%) that the blindness was caused by the negligence as opposed to any of the other possible factors. The plaintiff was unable to do this on the evidence available and so did not succeed.

Front 5

Bonnington Castings v Wardlaw [1956]

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Cumulative causes: where the loss is caused by two or more factors operating together, look to whether the defendant's breach materially contributed (or increased the risk of) to the plaintiff's loss.

Industrial Disease Case: Here, the plaintiff claimed compensation in negligence from his employers for a respiratory disease. Whilst it was clear that the cause of the disease was exposure to dust at work, only part of this exposure was due to the defendant's breach of duty. Some of the exposure was deemed to be a natural consequence of the work being carried out (and therefore non-tortious). Here the tortious and non-tortious factors operated cumulatively to produce loss.

The application of the 'but for' test, in this situation, is more complex than when dealing with independent causes. The plaintiff would not have suffered the loss but for the exposure to dust. It was impossible to tell, however, how much of the loss was caused by the tortious exposure to the dust and how much by the non-tortious exposure as they operated together. The House of Lords resolved the issue by introducing the material contribution test. If the defendant's breach could be proved to have materially contributed to the plaintiff developing the disease, then the defendant would be liable for all the loss.

Front 6

Hotson v East Berkshire Health Authority [1987]

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Multiple Independent Causes: where there are several possible independent causes of a loss and it is not possible to prove from the evidence available which one actually caused the loss then the claimant will fail.

Here, a child fell from a tree and broke his leg. The hospital was negligent in its treatment and the child was left paralysed. However, the medical evidence in this instance indicated that there was a 75% risk that the broken leg would have left the plaintiff with paralysis even if the hospital treatment had been perfect. The Court of Appeal awarded the plaintiff 25% of the total value of his claim, on the basis that the child had lost his 25% chance of recovery, the so-called 'loss of chance' argument. On appeal by the defendant, the House of Lords rejected this argument. Causation should be based on the damage caused, not loss of a chance, and the reality of the situation was that the child was likely paralysed by the original fall. His claim, therefore, failed.

Front 7

McGhee v National Coal Board [1973]

Back 7

Cumulative causes: where the loss is caused by two or more factors operating together, look to whether the defendant's breach materially contributed (or increased the risk of) to the plaintiff's loss.

Industrial Disease Case: Here, the plaintiff had contracted dermatitis as a result of exposure to brick dust. The plaintiff worked with brick dust during his working hours and there was no breach in relation to this exposure (i.e. it was non-tortious). His employers, however, were in breach of duty for failing to provide washing facilities for him to wash the brick dust off his skin at the end of the working day. As a result the brick dust was on his skin for an extended amount of time including his cycle journey home.

Again, the plaintiff would not have contracted dermatitis but for the exposure to brick dust. The medical experts could not state with certainty whether the dermatitis was caused by the exposure during the working-day (non-tortious) or through the extended time that the dust remained on his skin (tortious). The House of Lords again imposed liability on the defendant on the basis that their breach had materially increased the risk of the claimant's injury.

Front 8

Bailey v Ministry of Defence [2008]

Back 8

Cumulative causes: where the loss is caused by two or more factors operating together, look to whether the defendant's breach materially contributed to (or increased the risk of) the plaintiff's loss.

Medical Negligence Case: The medical experts were unable to say whether the negligent treatment was on the balance of probabilities the cause of the claimant's cardiac arrest and brain damage. They were able to determine, however, that the brain damage was caused by the negligence working together with the natural progression of the claimant's condition (i.e. factors working together cumulatively rather than independently). The Court of Appeal therefore applied the Bonnington test and concluded that factual causation was satisfied because the negligence materially contributed to the risk.

Front 9

Mountford v Newlands School [2007]

Back 9

Cumulative causes: where the loss is caused by two or more factors operating together, look to whether the defendant's breach materially contributed to (or increased the risk of) the plaintiff's loss.

Non-Industrial Disease Case: Here, the defendant schoolmaster was held to have increased the risk of the claimant suffering injury in a school rugby match by selecting a player who was older than the age limit for the team.

Front 10

Fairchild v Glenhaven Funeral Services Ltd & Others [2003]

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Where it is unsure if it is cumulative or independent causes, the 'But For' test could be departed from and the defendant should be seen as either wholly responsible or not at all.

Here, the defendant worked for a number of employers at different times in the 1960s, all of whom exposed him to asbestos. Some 25 years later, he developed mesothelioma, a form of lung cancer specifically associated with asbestos exposure. At the time, the specific way in which the asbestos caused the disease was not known. In particular, the scientific evidence available was unable to determine with certainty whether the disease was caused by a cumulative exposure to asbestos over time or by exposure to a single asbestos fibre. As a result, it was impossible for the medical experts to say which exposure with which employer was the cause of his illness. The courts couldn't decide whether to apply the 'But For' test from Wilsher or the material contribution test from Bonnington.

The House of Lord decided that where it is unsure if it is cumulative or independent causes, the 'But For' test could be departed from and the defendant should be seen as either wholly responsible or not at all. Here, the additional exposure to asbestos materially increased the risk of the claimant contracting the disease, so the defendant was found to be liable.

Front 11

Sienkiewicz v Greif (UK) [2009]

Back 11

Confirmed decision in Fairchild.

Front 12

Fitzgerald v Lane & Patel [1987]

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In cases where there are non-tortious and tortious reasons, then the tortious reasons will be held wholly responsible. [Bonnington and McGhee]

In cases where there are multiple tortious which are known to have caused part of the loss the approach taken in dealing with causation is a more pragmatic one: apportioning liability between defendants in a way that produces a practical result, providing compensation to the claimant while recognising the respective fault of the defendants.

Here the plaintiff was crossing a road at a pelican crossing when the lights were at red for pedestrians. The first defendant driver collided with him and the claimant was thrown from the bonnet of that car into the road, where he was run over by a car driven by the second defendant. The trial judge held that both defendants as well as the plaintiff had been negligent. It was impossible to say which of the two collisions had actually caused the injuries or to what extent each had contributed. He therefore held them each (the plaintiff and the two defendants) one third to blame. The Court of Appeal upheld the trial judge's basic approach, although adjusted the proportions to hold the plaintiff 50% to blame and the two defendants 25% each.

Front 13

Performance Cars v Abraham [1962]

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Multiple Causes with Identifiable Losses

Here, a collision occurred between two cars, one being the plaintiff's Rolls Royce, as a result of the negligence of the other driver. The damage to the Rolls Royce required a respray of the whole car to remedy it. Two weeks

Front 14

Baker v Willoughby [1970]

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Multiple Causes with Identifiable Losses

The plaintiff suffered a leg injury in a road traffic accident caused by the defendant's negligent driving. At a later date, whilst at work, the plaintiff was shot in a robbery and his injured leg had to be amputated. The House of Lords held that the first defendant should continue to be liable for the original injuries to the leg, beyond the time of the second defendant's intervention. In such situations, it would be for the intervening tortfeasor (here the robber) to compensate for any additional losses caused. The liability of the defendant to cease altogether after the amputation would have represented an unjustified windfall to the defendant.

Front 15

Jobling v Associated Diaries [1982]

Back 15

Multiple Causes with Identifiable Losses

The defendant negligently injured the plaintiff in a work accident. Some time later, the plaintiff suffered a further back injury (non tortious) arising from an illness unconnected to the accident. This further injury meant he was unable to work. It was held that the defendant's liability ceased at the point that the further back injury developed. He did not have to compensate the plaintiff for the 'vicissitudes of life'.

Here, he would have suffered a back problem as a result of his illness at some point anyway, even if he had not been not been injured by the defendant's negligence. The key difference between Jobling and Baker is that in Jobling, the second event was a naturally occuring one, and in Baker it was another tortious one.

Front 16

Humber Oil Terminal Trustee Ltd v Sivand [1998]

Back 16

Legal Causation Novus Actus Interveniens: Acts of God (natural events) will not break the chain of causation if they could have been foreseen by the defendant and they should have taken them into account as events that were likely to happen. If the natural event was wholly unconnected with the defendant's acts (independent and unforeseeable) the chain will be broken.

Here, further expenses incurred in the repair of harbour installations caused by the collapse of the sea bed were still recoverable. The collapse was not a novus actus in that it was in the realms of foreseeability.

Front 17

Meah v McCreamer (No 1) [1985]

Back 17

Legal Causation Novus Actus Interveniens: Acts of God (natural events) will not break the chain of causation if they could have been foreseen by the defendant and they should have taken them into account as events that were likely to happen. If the natural event was wholly unconnected with the defendant's acts (independent and unforeseeable) the chain will be broken.

However, if the later illness can itself be linked to the defendant's breach, then there will be no break in the chain.

Here, the plaintiff suffered injury in a road accident which later led to him developing a personality disorder. This disorder led to the plaintiff committing various criminal acts including rape. As the disorder was linked to the original tort, it could not be said to break the chain of causation.

Front 18

Knightey v Johns [1982]

Back 18

Legal Causation Novus Actus Interveniens: Acts of Third Parties - where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it is unforeseeable.

Here, the first defendant caused a road traffic accident. Subsequently, a police inspector negligently handled traffic control following the accident. This negligence led to the plaintiff, a police officer, being killed (he had been ordered to travel down a tunnel against the flow of oncoming traffic.) The first defendant successfully argued that the negligent handling by the police inspector broke the chain of causation between his negligence and the death of the officer.

Front 19

Scott v Shepherd (1773)

Back 19

If the third party has acted instinctively (as in 'the heat of the moment') then there will be no break in the chain of causation.

Front 20

Robinson v The Post Office [1974]

Back 20

Legal Causation Novus Actus Interveniens: Acts of Third Parties - where the subsequent event is the act of a third party, the courts have viewed it as breaking the chain of causation if it is unforeseeable.

As a matter of policy however, the courts are reluctant to hold that medical treatment breaks the chain of causation. When a defendant causes injury, he takes the risk that the claimant may not respond well to medical treatment, or that the medical treatment may not be perfect. Only medical treatment that is manifestly unreasonable or 'palpably wrong' will break the chain of causation.

Front 21

Emeh v Kensington and Chelsea Health Authority [1985]

Back 21

Legal Causation Novus Actus Interveniens: Acts of the Claimant: they will break the chain of causation when they are unforeseeable but will not break the chain where they can be foreseen by the defendant.

The defendants negligently performed a sterilisation operation on the plaintiff who later fell pregnant and refused to have an abortion. She sued for the cost of bringing up her child. The defendants argued that her refusal to have an abortion broke the chain of causation. The court held that the plaintiff had not acted unreasonably and, therefore, her refusal did not break the chain of causation.

Since Emeh, the so-called 'wrongful life' claims have been severely restricted and it is unlikely that a claim resulting from the birth of a healthy baby following a failed sterilisation would succeed if it were to be brought today.

Front 22

McFarlane v Tayside Health Authority [2000]

Back 22

Since Emeh, the so-called 'wrongful life' claims have been severely restricted and it is unlikely that a claim resulting from the birth of a healthy baby following a failed sterilisation would succeed if it were to be brought today.

Despite this, here, all five Law Lords confirmed that the decision of the mother not to undergo a termination of pregnancy could not amount to a novus actus interveniens.

Front 23

Reeves v MPC [2000]

Back 23

Legal Causation Novus Actus Interveniens: Acts of the Claimant: the actions of the claimant will not be treated as a novus actus where the duty of care on the defendant requires them specifically to prevent the claimant from taking such an action.

Here, the House of Lords decided that the Metropolitan Police were under a duty to ensure that a prisoner, who was at a known risk of suicide, did not take his own life while he was in their custody. As a result of failings by the custody officers, the prisoner was able to kill himself. The House of Lords held that, deciding that the prisoner's action amounted to a novus actus would remove the impact of imposing a duty of care on the defendant.

Front 24

Corr v IBC Vehicles [2008]

Back 24

Legal Causation Novus Actus Interveniens: Acts of the Claimant: they will break the chain of causation when they are unforeseeable but will not break the chain where they can be foreseen by the defendant.

Here, the duty of care owed by the defendant did not relate specifically to a responsibility to prevent the claimant's suicide. Mr Corr suffered a severe head injury in an accident at work. This not only caused physical injuries, but also led to significant psychological symptoms, including PTSD and depression. Six years after the accident, he killed himself. The defendant was held liable.