How courts determine causation

by jiya178 (student)

Word count (excluding footnotes, endnotes, bibliography, etc.):

The aim of the following essay is to critically analyse how the courts determine causation in the tort of negligence. The essay will explain the meaning of causation and establish the difference between causation in fact and causation in law. The essay seeks to analyse the steps involved in establishing causation and identify crucial cases. Lastly, the essay will discuss its relevance in present times.

To understand the concept of causation, it is important to understand the idea behind the tort of negligence. According to Percy Winfield, ‘negligence as a tort is a breach of a legal duty to take care which results in damage to the claimant.’ 1 Therefore, if a claimant brings an action in negligence it is important to establish not only was there a duty of care and a breach of the duty, but it is also essential to establish that there has been some form of damage which is legally recognized. This is where the concept of causation arises. What is causation? Causation seeks to ‘establish a link between the claimant’s harm and the defendant so as to allocate responsibility for the harm and, to some extent, the risk.’2

To determine whether there has been some sort of legal damage, it is important to divide the two aspects of Causation- causation in fact and remoteness. Causation is fact seeks to resolve whether ‘the defendant’s act (or omission) should be excluded from the events which contributed to the occurrence of the claimant’s loss. If causation in fact cannot be established, the case ends as there is no connection between the defendant’s action and the claimant’s loss.’3

1 V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008) 43

2 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 222

3 W V H Rogers, Winfield & Jolowicz on Tort (17th edn, Sweet & Maxwell Ltd 2006) 269

Remoteness or Causation in Law is concerned with the ‘scope of the defendant’s duty but it is important to understand that no human is responsible ad infinitum for all the consequences of their wrongful conduct even when there is a factual link between the defendant’s act and the claimant’s loss. Otherwise, human activity would be unreasonably hampered.’4

Therefore, there may be many reasons for the occurrence of the harm caused to the claimant. This is why it is important for the courts ‘to find the real cause from a number of factors’5 and so, it becomes important to answer the questions of factual causation and remoteness.

The aim of courts is to be fair so as to ensure that both, the claimants and defendants receive justice. Therefore, to establish causation, the first essential step is the ‘but for’ test. As mentioned above, there are many factors which can be the cause of a breach of duty and so, the ‘but for’ test ‘merely acts as a preliminary filter to eliminate the irrelevant factors.’6 ‘The purpose of the ‘but for’ test is to help the courts in deciding that if the defendant had not been careless, would the loss or damage have occurred?’7 One of the key cases where the ‘but for’ test was applied was the case of Barnett v Kensington & Chelsea Management Committee (1969) where the deceased had died as a result of arsenic poisoning. The victim had visited the hospital and the doctor had failed to examine him. Eventually, the victim died within five hours and his wife brought action against the hospital. However, it was held by the court that even though the doctor owed the victim a duty of care and there had been a breach, it was not necessary that the reason for the victim’s death was the doctor’s negligence and so the doctor was not liable.8

4 V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008) 43

5 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 222

6 W V H Rogers, Winfield & Jolowicz on Tort (17th edn, Sweet & Maxwell Ltd 2006) 273

7 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 225

8 Barnett v Kensington & Chelsea Management Committee (1969) 1 Q.B 428

This is a preview of the whole essay

4 V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008) 43

5 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 222

6 W V H Rogers, Winfield & Jolowicz on Tort (17th edn, Sweet & Maxwell Ltd 2006) 273

7 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 225

8 Barnett v Kensington & Chelsea Management Committee (1969) 1 Q.B 428

However, there are several challenges which surround the ‘but for’ test. To establish a breach of duty, there must at least be a 50% chance of the breach occurring. So, what happens if ‘the answer to the question is unjust or contradictory and it is impossible to answer the ‘but for’ test?’9 One of the challenges is that of ‘Loss of chance’. This situation arises when the claimant feels that the defendant diminishes their chance of avoiding the loss or damage. This was seen in the case of Hotson v Berkshire Area HA (1987) where a ‘13 year old boy lost a chance of recovering due to medical negligence. The hospital admitted to negligence but denied liability because the hospital appealed that even if the boy was given proper treatment, the claimant would only have 25% chance of full recovery and therefore, the appeal was allowed.’10 In a similar case of clinical negligence, Gregg v Scott (2005), it was held that ‘liability for the loss of a chance of a more favourable outcome should not be introduced into clinical negligence claims.’11

Another challenge faced by the ‘but for’ test is that of ‘cumulative causes’. As the term suggests, these causes arise when there could be multiple causes behind the occurrence of the loss. In such cases, ‘it becomes factually hard to establish, in absence any clear evidence/ proof, that any of the potential causes is more likely than any other to be the cause.’ This is seen in the case of Bonnington Castings Ltd v Wardlaw (1956) where it was established that if ‘a defendant contributes to the harm caused without necessarily breaching their duty of care, the claimants should establish that they have been injured by the defendant’s act.’ 12 Therefore, ‘claimants could receive full compensation if it was proved that the negligent part of exposure would materially contribute to the condition.’13

9 V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008) 90

10 Hotson v Berkshire Area HA (1987) A.C. 750

11 Gregg v Scott (2005) UKHL 2

12 Bonnington Castings Ltd v Wardlaw [1956] 1 All ER 615

13 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 227-228

However, in the case of Holtby v Brigham & Cowan (Hull) Ltd (2000), the Court of Appeal ruled that the ‘if the harm done was a joint responsibility, then the compensation provided must be on the basis of apportionment of responsibility on time exposure.’14

The case of McGhee v National Coal Board (1973) is similar to that of Bonnington Castings Ltd v Wardlaw. In McGhee, it was established that ‘material increase of risk was treated by majority of judges as equivalent to material contribution. The House of Lords reversed the burden of proof, shifting it onto the defendant who then had to show that there was another, more likely, cause than their negligence.’15 In the case of McGhee, there was only one cause which caused the claimant the harm. However, in yet another case of medical negligence, Wilsher v Essex Area Health Authority (1988) ‘there were five factors which could be the reason behind the harm caused the claimant. Based on probability, the claimant could not prove that excess oxygen had been the cause of the harm done. In the Court of Appeal, the judges followed the decision in McGhee and the claimant succeeded. However, when the case was taken to the House of Lords, McGhee was distinguished as it was obvious that the harm caused was a result of the defendants’ negligence.’ 16

One of more recent problems surrounding the ‘but for’ test is asbestos. In the case of Fairchild v Glenhaven Funeral Services (2003), ‘the claimant sought damages for asbestos induced mesothelioma. The claimants had been exposed to asbestos dust working for more than one employer but could not show on balance of probabilities which exposure had caused disease. The House of Lords allowed all the appeals of the claimants thus, taking a relaxed approach towards the ‘but for’ test.’17

14 Holtby v Brigham & Cowan (Hull) Ltd (2000) 3 All E.R. 421

15 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 229-230

16 Wilsher v Essex Area Health Authority (1988) A.C. 1074

17 Fairchild v Glenhaven Funeral Services (2003) UKHL 22; [2003] 1 A.C. 32

However, in the case of Barker v Corus UK (2006) which was similar to Fairchild, it was decided that ‘the several employers can only be liable to the extent of the share of risk created by their breach of duty.’18

There could be cases where two torts are involved. This was seen in the case of Performance Cars v Abraham (1962) ‘where the claimant contended that the defendant should recover the cost of respraying his car as their cars had collided. Though there was a breach, the defendant was not held liable as the claimant’s car had been damaged in a previous accident’19

Once the factual causation has been established, it is important to look at remoteness. Remoteness seeks to establish whether the ‘harm was too remote a consequence of the defendant's negligence. If remoteness is established, then the claimant’s case cannot proceed. ’20

In Re Polemis (1921) it was held that ‘the defendants were liable for the damage caused by the unexpected explosion on the basis that there should be liability for all the ‘direct consequences’ of a defendant’s negligence.’21

In current law, the Wagon Mound test is crucial as it focuses on how foreseeable the harm is rather than its extent. Prior to the Wagon Mound (No 1) ‘the defendant’s would be liable for any consequence of their breach of duty, as long as they were directly the result of the breach, whether or not they could be foreseen. The Wagon Mound (No 2) did not change the nature of the test. The Privy Council concluded that even a thin film of oil on water would ignite, although the risk of damage by the fire was small, it still existed’22

18 Barker v Corus UK (2006) UKHL 20

19 Performance Cars v Abraham (1962) 1 Q.B. 33

20 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 247

21 Re Polemis (1921) 3 K.B. 560; V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008) 99

22 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 248-249

In the case of Tremain v Pike (1969) is was held that ‘the defendant was not liable as it was not reasonably foreseeable that the claimant would contract Weil’s disease. Even if there was a breach of duty, the contraction of the disease was too remote.’23

When deciding whether the situation was too remote, the courts must also look into whether the damage caused by the defendant was reasonably foreseeable. This aspect is dealt by the egg-shell rule. In a manslaughter case, R v Blaue (1975) it was established that a ‘defendant should take their victim as they find them.’24 Further, in the case of Smith v Leech (1962)25 it was established that ‘a defendant will be liable for the full extent of the harm they caused, even if the person harmed suffered more harm than they had expected, due to an existing weakness/ frailty.’26

Causation could also be a result of a series of events which are usually referred to as intervening events. These events could be the actions of the claimant, natural events and actions of a third party. ‘If the defendant causes an accident by setting off a sequence/ chain of events, the later event which is the ‘real’ cause ‘breaks’ the chain of causation. The defendant is not held liable for the claimant’s harm. The later event is often called a novus actus interveniens.’27

In the case of R v Dear (1996) (which explained actions by claimant) ‘the defendant appealed against conviction of murder as the victim refused medical treatment. However, this did not break chain of causation and the court held that voluntary suicide did not constitute novus actus interveniens.’28

23 Tremain v Pike (1969) 1 W.L.R. 1556

24 This statement was made by Lord Justice Lawton in the case of R v Blaue (1975) 1 W.L.R 1411

25 Smith v Leech Brain(1962) 2 Q.B. 405

26 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 250

27 K Horsey & E Rackley, Tort Law (2nd edn, OUP 2011) 250

28 R v Dear (1996) C.L.R 595

One important case related to natural events is that of Vacwell Engineering v BDH Chemicals Ltd (1971)29. ‘It is concerned with extreme chemical reaction. Though the type of reaction was unforeseeable, it was not held to have broken the chain of causation and the defendant’s were liable.’30

When a third party is involved, ‘the defendant will not be liable if there has been breach of duty but this breach provided a third party a chance to act in a way which will directly harm the claimant.’31 In the case of Rouse v Squires(1973) , ‘the defendant’s negligent driving was an operative cause of the victim’s death. However, road users owe a duty of care to other road users even if they are driving without care but not to reckless drivers.’32 However, in a similar case, Wright v Lodge (1993), it was held that ‘not every cause "but for which" an accident would not have happened can be said to have been causative in law for the purposes of determining liability.’33

In current times, there have been some more challenges surrounding causation which is seen in the case of Chester v Afshar (2004) where ‘a neurosurgeon failed to warn a patient of the small risk of injury inherent in surgery though the neurosurgeon had not acted negligently while carrying out the operation. Though the claimant suffered a rare complication known as cauda equina syndrome, the increase in risk of contracting the disease was not caused by failure of informing the patient.’34

Therefore, in conclusion, the essay explored the ways in which courts establish causation. Various cases and their impacts were analysed as well as the challenges that surround establishing causation. Even though courts may find ways around causation, it is crucial in the Tort of Negligence.

29 Vacwell Engineering v BDH Chemicals Ltd (1971)

30 V Bermingham & C Brennan, Tort Law DIRECTIONS (1st edn, OUP 2008) 103

31 W V H Rogers, Winfield & Jolowicz on Tort (17th edn, Sweet & Maxwell Ltd 2006) 311

32 Rouse v Squires (1973) Q.B. 889

33 Wright v Lodge (1993) 4 All E.R. 299

34 Chester v Afshar (2004) UKHL 41