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How courts determine causation

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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) ...read more.


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) ...read more.


, ?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 ...read more.

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