The difficulties of applying the ‘but for’ test have been seen in numerous situations such as
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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.
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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 is important for the case law to develop especially as new situations arise. The systematic progression of the case law however shows that it is not merely based on the opinions of the House of Lords.
Fairchild v Glenhaven Funeral Services Ltd
The Court of Appeal held that, since medical evidence could not identify a single source of the disease, the precise employer responsible could not be identified and the claim should be rejected.
The House of Lords reversed this decision. They introduced a modified approach to the proof of causation- that in such a case, each defendant had materially increased the risk of the claimant contracting the disease; and this satisfactorily shows causation. Applying this approach, the claimants could then prove that the causal connection and establish liability.
It would be easy to say that the HL bended the rules in this case. In fact, Jonathan Morgan calls the case as one highlighting the ‘judicial creativity’ required by the House of Lords in difficult cases of causation.
Lord Hoffman would not seem to agree with this interpretation of the judgement. Lord Hoffman believes that it is entirely possible for the law to be satisfied with a causal connection that does not involve any historical connection and therefore, simply adhering to a tradition ‘factual causation’ and consideration of remoteness of damage is actually not an accurate description of the present law.5
In this appeal, their Lordships seek to formulate a ‘fair and just rule’4. They applied McGhee v National Coal Board; and established that the grounds upon which their Lordships were willing to identify a special causal relationship also applied in this case.
From this case, the House of Lords established that this new exception was confined to –
‘cases in which, the claimant was employed by more than one employer, both were negligent in failing to protect him from a particular form of harm..’.
The limits of the exception have been made clear and so have the grounds for creating a special causal requirement- it can hardly be said that the House of Lords bended the rules.
Continuing on this thread of evidential problems which make proving causation difficult-
Gregg v Scott
The claimant was unable to prove, on a balance of probabilities, that the defendant’s negligence had caused his injury (his injury being a shortened expectation of life). Although defendant’s negligence may have caused the injury, the probability was that it made no difference. The action was thereby dismissed.
This case is a clear example of the House of Lords adhering to the ‘rules’ and not simply sympathising with claimants. The House of Lords could not apply Fairchild as this was not a case of choosing between defendants. They could not extend the exception as this would make it far too wide and ‘would be a radical change in the law of tort’.4 Even though two dissentients found it hard for Mr Gregg that he could not recover damages, the House of Lords could not change the law.
The case exemplifies the ‘but for’ causation rule and shows that Fairchild is an exceptional case.
Chester v Afshar
Although applying conventional causation principles, ie the ‘but for’ test would mean that the defendant was not liable, the House of lords decided that in policy grounds the test of causation was satisfied.
The House of Lords do seem to bend the rules here. But this is another example of a situation where the conventional principles cannot be applied. Conventional causation principles rest upon the ‘single hit’ theory that is like that of criminal law, that it is one knife/ bullet that severs the victims aorta. This is difficult to apply in cases where one of the knives/ bullets could be taking away the right to choose for oneself. It is difficult to know what counts as a knife/bullet and what does not, When a causal factor is not so straightforward as a knife/ bullet the law must interpret whether it is truly a cause. In this case the House of Lords held that violating the patient’s right to choose for herself, even if not increasing risk to her, was sufficient to satisfy causation.
Barker v Corus
This case is the most recent from the House of Lords and is the best suited to exemplify how the House of Lords develop case law based on previous authorities instead of ‘bending the rules’. In this case the House of Lords did not extend the scope of Fairchild but defined it. They held that Fairchild applies even if some exposures were not tortious, (McGhee considered) and applies only if:
The House of Lords came to this conclusion by reinterpreting McGhee. In McGhee, one source of risk was the brick dust which adhered to his skin while at work, another source of risk was the brick dust which stuck to his body while he cycled home. One source of risk was tortious, another was not.
In the same way, on this case, not all potential causes of damage were tortious. Lrd Hoffman reasons in his judgement that having accepted non tortious sources of risk there was no logic in saying that it should be created by a tortfeasor. This is a logical and reasoned interpretation of the law rather than a decision taken to compensate the claimant.
In conclusion, I submit that although the House of Lords does deviate from the standard criteria, this deviation is not random and based on sympathies with the claimant, it is based on authority and a deeper understanding of the function of the law.
[2006] UKHL 20 (Scherpe (2006) CLJ 487)
Lord Hoffman “Causation” [2005] 121 LQR 592
Unreported, 1998; A 16 year old boy suffers brain damage when doctors fail to discover his fractured skull, court must decide whether such a discovery would have had a significant impact.
Morgan ‘Lost Causes in the House of Lords’ [2003] 66 MLR 277
5 Lord Hoffman “Causation” [2005] 121 LQR 592
C Miller ‘Why the House of Lords must overturn the Fairchild decision’ [2002] NLJ 319