Causation (Tort Notes)

CAUSATION
Actionable per se means actionable merely because they have been committed, whether or not
damage is caused because where no damage is caused, compensation is usually a token amount, aka
nominal damages.
The But for Test

First question to decide whether the Ds breach of DOC was the cause of
damage: Whether the damage would have occurred but for the breach of
duty. (But for test)
Barnett v Chelsea and Kensington Hospital Management
Committee (1968)
A night-watchman died after drinking a cup of tea at work, but the doctor who refused to
examine the man, by simply telling him to go home and consult his GP if he still felt
unwell in the morning, was sued for negligence.
It was held that the D owed the deceased a DOC and had breached the DOC yet 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 the action failed.
Brooks v Home Office (1999)
The C was a high-risk pregnant woman in prison, the doctor waited for five days, after
one of the scans showed that one of the twins was not developing properly, before
seeking specialist advice. It was discovered that the twin affected died two days after the
scan.
Ms Brooks sued the Home Office saying that she was entitled to receive the same
healthcare as a woman outside the prison.
The Court argued that a wait of two days before getting expert advice would have been
reasonable for woman outside the prison, and as the baby had died within this time, the
doctors negligence could not have been said to cause its death.
C must prove causation on a balance of probabilities, which means proving that it was more
likely than not that the negligence caused the injury.
Hotson v East Berkshire Health Authority (1987)
A young boy fell out of a tree and suffered deformity of the hip. The hospital negligently
failed to make a correct early diagnosis so he later developed avascular necrosis, a
deformity in the hip. Expert evidence confirmed that he would have 75% chance of
deformity even without failure to diagnose promptly.
COA awarded him 25% of the damages they would have considered appropriate for the
condition for the loss of a chance of recovery.
It isnt always clear what would have happened but for the Ds negligence.
Chester v Afshar (2004)
The surgeon failed to warn a patient of the possible risks of an operation. The D argued
that causation can only be proved if the C could show that, had she been warned, she
would have decided against having the operation at all. The C said she would have
sought further advice on what to do. (what? how?)
The HOL sided with the C due to policy reasons because the scope of a surgeons DOC
is to warn of any risks, and the conventional approach to causation will result in
unfairness and uselessness where its needed the most. On policy grounds, the test of
causation is satisfied and the C won her case.
*This decision caused shockwaves through the legal profession, with several experts
claiming it meant that the HOL effectively abolished any meaningful requirement for
factual causation.
White v Paul Davidson (2004)
Makes it clear that Chester should be viewed as an exceptional case. Arden LJ stated
that Chester did not establish a new general rule on causation, pointing out HOL had
not said they were overruling any traditional rules in causation.
The C was suing his solicitors, who he said had been negligent in giving him
incomplete advice about a tenancy dispute. He used the Chester case but COA
rejected his argument that the solicitor had denied him the chance to make up his
mind after being given full facts.
Bolitho v City & Hackney Health Authority
The doctor argued that even if she had turned up to examine the little boy, she would
not have intubated him. Had this argument succeeded, it would have meant that a
patient who could prove that a doctor was negligent in not attending could lose the
action on the basis that, even if the doctor had attended, she would have behaved
negligently.
TOPICAL ISSUE: THE CORBY LITIGATION
Multiple Causes
MATERIAL CONTRIBUTION TEST
There are occasions where courts appear to take a pragmatic approach where
proof of causation is difficult.
Bonnington Castings Ltd v Wardlaw (1956)
C contracted pneumoconiosis after years of working in dusty conditions and without
adequate washing facilities. There were two principal causes of dust, the one requiring
no extraction and the other which did, but no extractor was provided. It was impossible
to prove which dust the C had inhaled the most of.
On the evidence, the C could not establish causation based on the but for test.
However, HOL held that the C does not have to establish that the Ds breach of DOC was
the cause of the damage provided that it materially contributed to the damage.
MATERIAL
INCREASE IN RISK TEST

The court chooses to accept the chance of a causative link between the Ds acts and the
damage. Although, this might risk the possibility of unfairly penalising the D.
Multiple Concurrent Causes

The but for test appears to be incapable of providing an absolute test of causation. The court
may decide that the negligence has materially increased the risk of damage and therefore, the D
should be liable for damages.
McGhee v National Coal Board (1973)

C worked in a brick kiln where he was exposed to brick dust, a possible cause of
dermatitis that he in fact contracted. The Board was not liable for exposure during
working hours (his job).
They were held liable for materially increasing the risk of the C contracting the disease
because of their failure to provide washing facilities, even though it could not be shown
that he would have avoided the disease if there had been facilities.
Legal Principle: Where there is more than one possible cause of injury,
causation can be proved if the C can show that the Ds negligence
materially increased the risk of injury occurring.
Wilsher v Essex Health Authority (1986)
C was born three months early, with a number of health problems associated with
premature birth. He was put on an oxygen supply and as a result of a doctors admitted
negligence, was twice given too much oxygen.
The court identified that there were at least five other possible causes of the babys
blindness and the C thus could not establish the necessary causal link with the Ds
negligence and was without remedy.
Legal principle: A claimant must prove on a balance of probabilities, that
the Ds negligence was a material cause of their injury; it is not enough
merely to increase the risk of damage.
Multiple Consecutive Causes

Ordinarily, the liability will remain with the first event unless subsequent events have added
to the damage. The but for test will be applied to the original D.
Baker v Willoughby (1970)
C was knocked down by a car and suffered a permanent stiff leg. He was then forced to
take work on a reduced income. At a later time, he was shot in the injured leg during an
armed robbery and this resulted in the leg having to be amputated.
The Court identified that the loss of earnings was a permanent state of affairs and had
resulted from the original injury. Thus, the original D is liable for the entire loss.
Jobling v Associated Dairies (1982)
Due to his employers negligence, the C slipped on the floor of the refrigerator in his
employers butcher shop and injured his back losing 50% of his earning capacity. He
later developed spondylotic myelopathy, a crippling back disorder that was unrelated to
the fall.
The court held that the D employer was liable for damages only up to the first event, and
therefore any further loss of earnings, would have occurred anyway despite the original
negligence.

Causation (Tort Notes)

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Causation (Tort Notes)

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CAUSATION

The But for Test

Bolitho v City & Hackney Health Authority

INCREASE IN RISK TEST

Multiple Concurrent Causes

McGhee v National Coal Board (1973)

Multiple Consecutive Causes

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