• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
  1. 1
  2. 2
  3. 3
  4. 4
  5. 5
  6. 6
  7. 7
  8. 8
  9. 9
  10. 10
  11. 11
  12. 12
  13. 13
  14. 14

In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for br

Extracts from this document...


Chapter 1: Introduction Chronologically, having traced back on the development before 1932 whereby most of the cases were decided on the ad hoc basis. It was indeed an uphill task for the 'triers' in the court even it appears to be a similar fact. Lord Atkin has planted a seed of the negligence in tort, which marked an important ink in tort law, nonetheless, still lead to criticism even it eased the latter judges.1 Similarly, to one of the controversial and skeptical elements in proving2 negligence and that is 'causation', the main issue to be discussed in this question on which test to be used that is best dressed in covering every situation, hence obiter by Lord Bingham.3 It is notably that, regarding on the issue stated by Lord Bingham in Fairchild4 is doubtless to say but a 'black hole' in the proof of causation as it still remains mysterious and unsolved. Without a second of thought, it has been said that 'But for Test' is the unsurpassed test since it has established, which borrowed from R v White5 in criminal law. It is of course rather bizarre to use the criminal law principles applying in the civil trial as it is utterly contradicting to the aim of tort via the maxim of damno sine injuria6 since it would be harder to prove every single injury beyond reasonable doubt. Hence, unquestionably, a lower standard will be granted in a civil case that is, on the balance of probabilities. So do it leads to how the 'causation' element has been vague, especially with the modified test in Fairchild case. Therefore, His Lordship Statement has raised a momentous point where in general situation, 'But For'7 Test may be used if it appears to be apparent that it is more than probable that a 'sole' cause is present. A complication, however, arises when it appears to the fact that, it is thorny to identify the sole cause as what took place in Fairchild case. ...read more.


The House of Lord in this case, has set in favour of the claimant by held that, the defendant was not liable for injury that is resulted from the exposure to dust in the proceed of work, but it had merely materially increased the risk. There has been a suspicion view where, the reason of the court to lower the standard is plainly for a question of policy. In regards with that, Lord Wilberforce has bluntly expressed in the judgment that: "If one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi, must be taken to have foreseen the possibility of damage, who should bear its consequences."18 In contrary to the aforementioned standing decision, in Wilsher v Essex Area Health Authority which is also decided by the House of Lord, has taken a different view. It is identified that, the claimant was born prematurely hence needed more oxygen to survive. Unfortunately, the junior doctor happened to be negligent and inserted a catherer into a vein rather than an artery. As a consequence, the baby (claimant) had received excessive oxygen, which eventually led to damage to the retina and consequential blindness. Apparently, the baby has suffered a great material physical injury.19 In the Court of Appeal of McGhee case, where Lord Browne Wilkinson being the minority view has delivered his dissenting view was later found preferred by Lord Bridge of Harwich in this case that: "I do not consider that the present case falls within their [McGhee's majority decision] reasoning. A failure to take preventive measures against one out of five possible causes is o evidence as to which of those five caused the injury." The mentioned quotation is then used as a ratio in deciding Wisher's situation. ...read more.


Doubtless, one test which backed the principle is 'But For Test' used in Barnett's case. It is suggested that, perhaps the principle of causation will be less burdened to make 'Fairchild' and 'Barker' principle into a new category of law.27 Stringently speaking, the fact of the said case does not even fit in the law of negligence as there is a failure of proof on the balance of probabilities. As per academician T.Hill: "...Proof of causation should not be accepted on anything less than the balance of probabilities, as in common with all civil actions..."28 Notwithstanding that Compensation Act 2006 may have helped in a way to compensating the parties still it is far from the aim to ensure justice. So, commentator29 is of the view to establish a new tort after the novel case of Sienkiewicz v Grief (UK) Ltd [2009] as The 'Tort of Increase Risk in Personal Injury' with the threshold that, only similar fact like Fairchild with obstacles to prove under medical evidence and multiple possible defendants. The establishment of Fairchild principle perhaps purely on a pragmatic purpose that time, and maybe it is the time for some reform to make it sensible and justice sounded. So far, It appears that Lord Bingham is quite true as to in general scenario when dealing with personal injury cases, 'But For' Test is the finest test to be invoked simply because it put more weight on the standard of proof in the balance of probabilities. It may, however, sound sheepish as after all the assessment on which test dress the best in 'causation', the result don't seem to answer nor to give us a clearer impression on how it is better worked. Nonetheless, it is of the opinion that, law should reform the lawin accordance from time to time as the social needs differ since time immemorial until now. Hence, perhaps the idea of having a new tort is of a fruitful one. Even if it does not, maybe modifying causation is not the only route but to have a better test in 'remoteness'30. ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Tort Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Tort Law essays

  1. A Critical Examination of the Concept of Breach of Duty of Care

    Notice his use of 'ought' and 'reasonably'. There is a large moral component to his test. It is not just about what can be foreseen, but about what 'ought' to be foreseen - These tests are of most use when the law is uncertain. These are concepts that judges use when deciding whether or not a duty of care ought to be recognised in new situations.

  2. To what difficulties had the use of a 'but-for' test of factual causation in ...

    that it is impossible to tell; the disease was due to the accumulation of dust over a number of years and whether the innocent cause was more to blame or the negligent one was a question that literally could not be answered.

  1. To succeed in a negligence action in tort, the claimant must prove three things

    Where one daughter had died and her other daughter and husband were covered in dirt and oil with cuts and bruises, and her son was screaming hysterically. She then suffered depression as a result of seeing the immediate aftermath. Mrs N is a secondary victim, because when she got there

  2. Torts: How Satisfactorily have the courts used the control devices of duty of care, ...

    terms of a contract cannot be easily translated into a duty of care. No duty can be owed on contractual rights alone. However, in cases of pure economic loss, the expansion of the tort of negligence evident in the Hedley Byrne criteria tells us that there can be a special relationship which is equivalent to contract.

  1. Causation and Remoteness.

    When the doctor was summoned, she had not appeared. This, she admitted was her negligence. However, she also said that even if she had appeared, she would not have applied 'intubation' which was perhaps the only way the deceased could have been saved. There was evidence that a responsible body of medical opinion would have done the same.

  2. Tort law. In order to pursue a successful claim of negligence, The claimant ...

    Although in some cases employer?s have to provide employees with competent colleagues, It states that Mr Carnell was doing is ?incompetent best?, so there for Mr Carnell lacked knowledge and skill in the job role he had been given. ?An employer owes a personal duty to his employees? according to Lord Herschell in the case Smith v baker [1891] AC.

  1. McLoughlin v OBrian [1983] AC 410, per Lord Bridge, at 441. Discuss the above ...

    [11] The defendant should reasonably foresee injuries to these groups but not necessarily to others such as siblings who would have to show evidence of their closeness. However, commenters namely Weir, believes that such requirement causes ?embarrassment? to claimants who face cross-examination on their closeness therefore creates contradiction by investigators

  2. Defamation Law: A Comparative Study of the US and the UK

    Cases like Milkovich v Lorain Journal[34] have made it easy to state opinion as a defence. The major difference, however, remains that the New York Times case made it so that practically speaking defamatory statements are considered true per se[35] and the burden of proving its falsity falls on the plaintiff.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work