Causation and Remoteness.

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Causation and Remoteness

Even in torts that are actionable per se, the claimant must prove that the tort caused the loss of which he complains if he wants to obtain substantial rather than nominal damages.

Causation is concerned with the physical connection between the defendant’s negligence and the claimant’s damage. No matter how gross the defendant’s negligence, he will not be liable if, as a question of fact, the conduct was not the cause of damage. The ‘but for’ test serves to exclude from consideration factors which have made no difference to the final outcome of events.

Sometimes the conduct satisfies the ‘but for’ test, yet it is merely one of a number of events that could be rightly regarded as causing harm. Clearly, the facts must have a bearing on the decision (factual causation), but in the final analysis the court has to make a choice as to which events are to be regarded as having sufficient causative potency. This is not a scientific enquiry but a process of attributing responsibility, and this involves value judgments and policy decisions.

It may be wrong however, to hold one responsible for all consequences of negligence. Sometimes, the outcome is freak or unusual and as such, it may not entirely be fair to put blame and accountability solely on the tortfeasor. Hence, the remoteness of damage that is the degree to which consequence of negligence and the type of consequence is anticipated from negligent conduct must be taken into account.

Causation and remoteness are separate issues but they do tend to merge in practice.

Lord Denning:

‘The truth, all these terms – duty, causation and remoteness – are all devices by which the courts limit the range of liability…ultimately it is a question of policy for judges to decide’ in Lamb v Camden London Borough Council [1981].

Causation – Claimant focus

The ‘but for’ test – removing irrelevant causes

If harm to the claimant would not have occurred ‘but for’ the defendant’s negligence than that negligence is the cause of the harm. It is not necessary however, to be the cause because there may well be other events which are causally relevant.  Thus, if a loss would have occurred anyway then the defendant’s conduct is not a loss

Barnett v Chelsea and Kensington Hospital Management Committee [1969]

This is the authority for the ‘but for’ test. Here, the claimant was the wife of the deceased who died from arsenic poisoning. Upon feeling uncomfortable, he got medical attention but was negligently handled. Although negligence of the hospital was admitted, it was held that even if the hospital was not negligent, he would have still died. Accordingly, the hospital was absolved of liability.

Robinson v Post Office [1974]

It was held that the allergic reaction to the claimant would not have been discovered even if it was not negligently administered. As such, the doctor was not liable since it could not be established that ‘but for’ the doctor’s negligence, the plaintiff would not have suffered.

McWilliams v Sir William Arrol & Co. Ltd [1963] 

This is the authority for breach of statutory duty that does not amount to liability. The HoL held that it was probable that the deceased worker who was not given safety belt and subsequently fell to his death would not have worn it anyway from the overwhelming evidence gathered that they absolved the defendant.

Bux v Slough Metals Ltd [1974] – Limiting ‘but for’

Employers were held liable for failing to instruct and supervise employee in use of safety equipment. But safety equipment was provided.

Sidaway v Bethlem Royal Hospital Governors [1985]

This is authority for medical risk disclosure. Here, the patient alleges that his doctor had been negligent in disclosing risk information for a proposed procedure. However, even if such negligence is proven, he still had to prove that had the information been disclosed he would have declined the treatment, thus avoiding that risk.  Thus, the defendants may be absolved of liability if the claimant cannot prove that ‘but for’ the defendant’s failure to disclose relevant information she would not have undergone the treatment. The degree of disclosure is that described in the Bolam test.

 

Chester v Afshar [2002]

Court of Appeal held that in order to establish causation, the patient had only to prove that, had she been informed of the risks, she would have declined the particular procedure on the particular occasion on which the risk materialized, not that she would have refused ever to undergo the procedure – the claimant’s damage consisted not in being exposed to the inherent risks of the procedure, which were always the same, but in causing the claimant to have an operation which she would not otherwise have had ‘then and there’.

JEB Fasteners Ltd v Marks Bloom & Co. [1983]

This is the authority for negligent statements and advice. The claimant must establish not only that he placed real and substantial reliance on the defendant’s advice though not only by itself a decisive part, in inducing the plaintiff to act to his detriment. Thus, he must establish that if he had not been given bad advice / statement, he would not have taken the course of action that he did.

Sidaway, Chester and JEB is all to be subjectively analyzed. i.e. the question is of what this claimant would have done not what a reasonable claimant in that position would have done.

Causation – Defendant focus

The issue is not just limited to what the plaintiff would have done, but for the breach but, what the defendant would have done in hypothetical circumstances, which have not arisen because of the defendant’s own negligence. The courts approach this similarly in that it requires the claimant to prove that but for negligence, the damage would not have occurred.

Bolitho v City and Hackney Health Authority [1997] 

A child suffered brain damage from cardiac arrest. 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. In judgment it was held that ‘but for’ the doctor’s negligence, the child would still die.

Lord Simon Brown (dissenting) argued that ‘in determining matters of causation, the question that should be asked is what would have happened, not whether a responsible body of professional opinion agrees with what the defendant says he would have done’.

In the HoL Lord Wilkinson said ‘...in all cases the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consist of an omission to do an act which ought to have been done the factual enquiry would necessarily be hypothetical. Thus in Bolitho, he raised the following: 1.What would the doctor have done if she attended 2. If she did not intubate is it negligent. The first is a hypothetical factual enquiry. The second may be vindicated with the Bolam test. Thus, causation is about what in fact happened, which in turn depends upon the hypothetical question what would have happened had here been no negligence (‘but for’ test). In Bolitho the damage would have occurred even if she attended to the patient (no causation).

But one cannot escape liability by proving that she would have failed to act as any reasonable competent doctor would have acted in the circumstance: ‘A defendant cannot escape liability by saying that the damage would have occurred any event because he would have committed some other breach of duty thereafter’.

In Joyce v Wandsworth Health Authority [1996]

The claimant had after surgery, which was not necessarily negligent developed a condition that she charged was due to poor aftercare. It was given that the only way she could have averted her unfortunate eventuality was if she was seen by a surgeon who would operate on her. Thus, she had to prove that if proper care had been given she would have been referred to a surgeon who would operate on her. If she could do so, she would have established that ‘but for’ the defendant’s negligence she would not have suffered. She did. The plaintiff succeeded in action against the defendants as he could prove that his condition would not have worsened ‘but for’ the doctor’s negligence.  

Capital and Counties plc v Hampshire County Council [1997]

The fire brigade had arrived at the scene of a fire and bizarrely switched off the sprinkler system. The building was completely destroyed. The fire brigade argued that even if the sprinkler system was not switched off, the defendants cannot prove that the damage would have been averted.

The Appeal Court held that the defendants by their positive act exacerbated the fire so that it spread. They compared the eventuality with the hypothetical notion of not switching off the sprinklers and found for the claimants. Although the fire service is not obliged to prevent damage by fire, they cannot exacerbate it.  

Another approach to factual causation is to ask whether the damage was within the risk envisaged by the defendant’s fault. In Gorris v Scott (1874), it was held that although the loss (of the claimant’s sheep) would not have occurred but for the breech of the statutory duty to keep animals in pens so as to minimize disease risk, it was not caused by the breach which envisaged an entirely different risk.

In Darby v National Trust [2001],  it was held that the risk of contracting Weil’s disease and drowning were fundamentally different and as such the alleged duty to take reasonable care to warn against the risk of contracting that disease could not form the basis of a claim for damages attributable to a different cause.

Similarly, in the case of The Empire Jamaica [1957], it was held that not having the physical certificate of exemption was not the causation of the collision of the ship when the mate who was duly qualified to handle it but failed to apply for exemptions. Thus, ‘but for’ the mate not having the relevant certificates physically, the collision would have still occurred.

In Barker v Willoughby [1970] it was held that where the defendant’s tort results in the claimant having to change his job, the tort is not per se a ‘cause’ of subsequent damage sustained by the claimant in the course of his new employment. Here, factual causation shades into causation of law.

Proof of Causation

It is important to prove, on the balance of probabilities, that the defendant’s breach of duty caused the damage. The onus of providing such evidence generally lies with the plaintiffs, although the defendant may produce rebutting evidence.

Pick ford v Imperial Chemical Industries plc [1998]

This is an example for the need to provide robust rebuttal where facts of the case are contentious. However, the defendant’s failure to proof that his version is the correct one where there are contentious conflicting facts may be a factor in deciding whether the claimant’s explanation of the causes should be accepted.

Reay v British Nuclear Fuels plc [1994]

This is authority for a need to for the plaintiffs to proof that on the balance of probabilities, the negligence of the defendants caused the injury. In this case, the plaintiffs failed to establish, on the balance of probability, given the many sources of contracting the condition, that paternal pre-conception irradiation causing sperm mutation and hence predisposition to cancer in children.

In Kay v Ayrshire and Arran Health Board [1987] the plaintiffs failed to proof that penicillin overdose could cause deafness.

In Loveday v Renton [1990] plaintiffs failed to show on the balance of probabilities that the pertussis vaccine causes brain damage in young children although it was possible that it did.

Hotson v East Berkshire Area Health Authority [1987]

This is authority for cases where on the balance of probability, the damage would have occurred and thus the ‘but for’ causation unsatisfied. The claimant had sustained a fall that led to hip injury. The claimant was sent to hospital and was negligently treated. Subsequently his condition worsened. However, he could not, on the balance of probability, prove ‘but for’ the negligence of the hospital, he would not have suffered as evidence showed that he had only a 25% chance of recovery. Applying Diplock LJ view on probability (Anything that is more than not is treated as certain), the claimant lost.

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Generally, anything more than probable is treated as a certainty (and vice versa) (Mallett v McMonagle [1970]).

Bonnington Castings Ltd v Wardlaw [1956] 

This is authority for material contribution where claimant cannot establish ‘but for’ causation due to inability to quantify contribution to damage between possible causes. The HoL held that a claimant does not have to establish that the defendant’s breach of duty was the substantial cause of damage as long as they can prove, on the balance of probability that it materially contributed the disease.

The claimant contracted lung disease from inhaling dust-polluted air in his ...

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