'In recent times, the House of Lords has given up any attempt to examine causation questions in a systematic manner. If their Lordships feel the claimant deserve compensation they will bend the rules to achieve that result.'

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‘In recent times, the House of Lords has given up any attempt to examine causation questions in a systematic manner. If their Lordships feel the claimant deserve compensation they will bend the rules to achieve that result.’

Discuss.

Recent cases such as Barker v Corus,Gregg v Scott,Chester v Afshar and Fairchild v Glenhaven Funeral Services Ltd have certainly diverted away from the standard ‘but for’ test of causation. However, this does not necessarily mean that the House of lords are willing to ‘bend the rules’; and that they have stopped developing the case law in a systematic manner.

This attempt will attempt to examine the decisions in these four recent cases and therefore show that the law has developed in a systematic manner; and is not simply based on whether their Lordships emphasise with the claimant or not.

It must first be established what the ‘rules’ the statement mention are-

  • The standard ‘but for’ causation test- explained by Lord Denning in Cork v Korby Maclean Ltd [1952] 2 all ER 402 –the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.’ (causation in fact)

  • Whether the damage is still sufficiently proximate in law to hold the defendant liable to compensate the victim. (Causation in Law or remoteness of damage)

However, the courts have found that is not always easy to analyse situations using this standard test for causation. Lord Hoffman describes the ‘but for’ test as being the standard criteria and the ‘most commonly prescribed’. But there is still room to deviate from this criteria when the situation demands it, and the House of Lords has been doing so for a very long time, not just in recent times.

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The difficulties of applying the ‘but for’ test have been seen in numerous situations such as

  • When there is an omission rather than an act by the defendant , the court must then determine what would happen had the defendant chosen to act. For example, Brock v Frenchay Healthcare Trust.
  • When there are  multiple causes, for example Wilsher v Essex Health Authority, where the House of Lords identified that the defendants’ negligence was only one of six possible causes; and would not impose liability on the defendant.

These difficulties mean that it ...

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