Gn: Causation

Consists of Factual Causation and Legal Causation (Remoteness)

Barnett v Chelsea and Kensington Hospital Management:

The “but-for” test is the preferred test.

Would the damage have occured but-for the defendant’s negligence? If YES, no liability. If NO, there’s liability.

The defendant suffered mercury poisoning but his admission to the hospital was delayed.

Held: even if he was admitted earlier, the poisoning was much to severe and there was no prospect of saving his life.

The death would still have occured regardless of the defendant’s negligence.

Material Contribution

Material Increase of Risk

Multiple Tortfeasors

Consecutive Causes

Breaks in the chain of Causation

As long as the negligence had materially contributed to the damage, absolute certainty need not be proven.

Bonning Castings v Wardlaw

Bailey v Ministry of Defence

Dickins v O2

Claimant could not prove on a BoP that proper extraction mechanisms would not have caused her disease.

HoL found a material contribution to be sufficient.

As long as it was not de minimis non curat lex (minimal/triffling issues)

Bailey v Ministry of Defence: Doctor’s negligence in failing to remove stone in her bile duct had materially contributed to the brain damage she suffers later.

Dickins v O2: failure to refer Claimant to a less stressful environment despite knowing she was suffering from chronic stress and anxiety material contributed to psychiatric injury.

McGhee v National Coal Board: Employers contracted dermatitis by being covered in brick dust. Could not be proven absolutely that the defendant’s failure to provide showers had caused the disease. But it was found to material increase the risks of it. Defendants were liable.

Despite the uncertainty in evidence compared to MC, Lord Salmon states:

“[a distinction between MC and MIR] is far too unreal to be recognized by the common law”

A real increase in risk is necessary.

The wrong contraceptive pill being administered was considered to materially increase the risk of pregnancy.

Mesothelioma caused by two sources. Claimant’s workplace and her living atmosphere.

It was found that her working environment had material increased her risks of contracting it by 18%. Supreme Court found this to be more than minimal. The risk does not need to be “more than doubled.”

Held: Sufficient. D is liable.

Fairchild v Glenhaven Funeral Services (2002):

Mesothelioma was an indivisible disease, meaning caused through one instance rather than accumulated over time. None of 6 employers could be identified to be the true caused.

The test of Material increase of risk was applicable to all employers.

Heneghan v Manchester Dry Dock: Diseases “truly anologous to mesothelioma” are considered Fairchild cases. The rule also applies to Lung cancer.

Hotson v East Berkshire Area Health Authority (1987)

It was argued that due to negligence, the claimant had lost 25% odds of recovery.

HoL rejected that 25% of the full compensation be paid on this notion. They either proved the loss of chance was more than likely (51%) and be compensated in full, or not compensated at all.

Such claims are likely not awarded because it means:

1. It would create floodgates of litigation. Creating major issues for insurance companies and for hospitals (especially because medical mishaps remain uncertain)

2. If this approach was taken, it would mean for the sake of fairness, those who manage to prove 51% would only be compensated for 51% of losses. This undermines the proportionality of recovery.

Baker v Willoughby (1970)

D caused C’s stiff leg - C forced to work at reduced pay. Later, C was shot in the same leg by thirdparty and needed amputation.

D held liable for amputation and for permanent loss of earnings. C’s “ability to live a full life” was taken away i.e. freedom to live and earn.

The thirdparty would also be liable for the same losses.

D caused C’s injury - earnings reduced by 50%

Later C developed back disorder (unrelated to the initial accident) and lost all ability to work. D is only liable for losses up until the time the disorder had become the true cause for C’s loss of earnings.

It was held that cases of this nature are on a case to case basis.

Baker v Willoughby reconciled by saying it only applies where the consequent cause was also a tortious act.

By either an act of the claimant, an act of a third party or an act of nature, C’s injuries would be more attributable to those than D’s negligence.

This absolve’s D’s liability completely.

Wireland v Cyril Lord Carpets

If the claimant’s acts were foreseeably and reasonably, there is no break. Eveleigh J: “one injury may affect a person’s ability to cope with the vicissitudes of life and cause another foreseen injury”

Corr v IBC Vehicles (2008): suicide did not break the chain. It was a foreseeable consequence of his depressive illness (caused by D)

McKew v Holland (1969): C tried to walk down stairs unaided despite his leg being injured. Found to have acted unreasonably, thus his falling down broke the chain of causation.

Leg injury by defendant. C had fallen while filling up his current car. C had not use his prothesis and walking sticks.

Held: this did not break the chain of causation but D could rely on contributory negligence to reduce the damages owed.

Caslogie Steamships v Royal Norwegian Government (1952)

A storm that later damaged C’s ship after it was repaired following an initial collision with D’s ship, was held to be independent of the initial incident. The chain was broken.

Knightley v Jones per Stephen LJ: “foreseeable, natural and probable consequence”

To break the chain, it must not be the above.

Senior officers broke the chain due to his negligence; he forgot to block the entrance of the tunnel that D had crashed in. He subjected C (junior officer) to the dangerous task of blocking the entrance causing him to meet with a collision with another.

Lamb v Camden LBC (1981)

D negligently damaged a water pipe, forcing C to move out while repairs were underway. During this time, squatters entered C’s home causing further damage.

Council was not liable for the damage. They had no power nor a duty to protect the house against such a threat that was unforeseeable.

Lamb v Camden LBC (1981)

D negligently damaged a water pipe, forcing C to move out while repairs were underway. During this time, squatters entered C’s home causing further damage.

Council was not liable for the damage. They had no power nor a duty to protect the house against such a threat that was unforeseeable.

Al Kandan v Brown (1988)

Divorce proceedings, husband threatened to run away with children. C (the wife) tasked solicitor (D) to take care of the passports. D negligently trusted the father and gave the passport back. Father ran away with children.

D was liable for the chain of events leading up to the father’s taking of the children.