Factual causation

Introduction
The issue of factual causation is one of the most complex and challenging topics arising
in the law of tort.
Imagine that Fred has just passed his driving test. Owen lends Fred his car. Fred drives it
carelessly. Jemima, out for a jog, is hit and injured by Fred driving Owen's car when she
crossed the road.
Strictly, the causes of the accident are Fred being permitted a driving licence, Owen
lending Fred the car, Fred driving carelessly, and Jemima choosing to go out for a run
and to cross the road when Fred is out driving. You can add an almost infinite number of
other causes into this example.
So when we ask whether an act of negligence caused a particular loss, we are really
seeking to identify a particular chain of events from within a much more complex
scenario. In many cases, this is straightforward, but a number of difficult cases have
given rise to significant complexity. This is often because attractively simple rules failed to
achieve justice in those difficult cases, and complexities were therefore introduced.
Basic factual causation: the 'but for' test
Where one is dealing with a single cause for the damage, the test that must be satisfied
is to show that 'but for' the defendant's breach of duty the claimant would not have
suffered the loss at that time and in that way (ie were it not for the defendant's breach,
the claimant would not have suffered that loss): see Cork v Kirby Maclean Ltd [1952] 2 All
ER 402.
Consider again the scenario with Jemima and Fred mentioned above. Let us assume that
if Fred had not been driving carelessly, Jemima would not have been injured. Fred could
have passed his test and borrowed the car, and Jemima could have crossed the same
road at the same time, and still there would have been no accident, if Fred had not been
driving carelessly. So 'but for' Fred driving carelessly, Jemima would not have been
injured. Factual causation is established.
We have picked out a relevant chain from the web of events surrounding Jemima. This is
the chain we are interested in, because this is a claim against Fred. You could make a
'but for' chain between the person who gave Fred his driving licence and the accident.
'But for' the examiner passing Fred, the accident would not have happened. This is true,
but it is simply not relevant to a claim between Fred and Jemima. There will be lots of 'but
for' chains leading to the same conclusion. But the question is whether there is a 'but for'
chain between the act or omission allegedly constituting negligence and the damage (if
the examiner owed a duty of care to Jemima and breached that duty, then we might be
interested in the chain between them).
In Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428 the hospital breached the
duty of care owed to a patient in that a doctor failed to carry out a proper examination.
The patient died of arsenic poisoning after drinking poisoned tea. However, the evidence
showed that he would have died even if the doctor had examined him. There was little or
no chance that the only effective antidote would have been administered to him on time
even if he had been examined. Mr Barnett's drinking the poisoned tea would have
brought about his death whether or not he was treated by the doctor. Therefore, there
was no factual causation: the 'but for' test was not satisfied.
 'But for' the
negligent act / No Factual causation
omission, would is established
the claimant have
suffered the loss?

Yes
Factual causation
not established,
unless an
exception applies
(see later in this
element)
Activity
Try to think of five different sets of circumstances in which the 'but for' test
would be met and five different sets of circumstances in which it would fail.
Example 1
A window cleaner falls from a building because he had not been properly
trained in cleaning this particular type of 'sash' window. 'But for' this lack of
training, he would not have fallen and suffered injury.
Example 2
A woman is injured in a car accident caused by defective brakes in her own
vehicle and the negligent driving of a lorry driver who collided with her. It is
not possible here to say definitely that 'but for' the defective brakes the
accident would not have occurred because we do not know, without further
information, whether or not the negligent driving of the lorry driver would
have been enough on its own to cause the collision.
In the vast majority of cases, it might be hard to be 100% certain that the alleged breach
caused the damage. So, for example, there might be a small chance that even if Fred
had not been driving carelessly, he might have been looking in the car mirror at the
precise moment that Jemima stepped into the road, and the accident might have
happened anyway. This is unlikely, but possible. So Jemima cannot prove with certainty
that Fred's negligence caused the accident. At this point, it is worth remembering an
important rule of evidence relating to the burden of proof on the claimant. The claimant
only needs to prove its case, including the 'but for' test, on the balance of
probabilities: ie that there is a more than 50 per cent chance that the defendant's
breach caused their loss. So a small chance that the accident might have happened
anyway does not mean that the claim will fail.
Key case: Wilsher v Essex AHA [1988] AC 1074
A further (and often cited!) example of the 'but for' test failing is Wilsher v
Essex AHA. This case also shows the impact of the burden of proof on the
claimant. The claimant had been born prematurely. He suffered a condition
that caused him to go blind. There was evidence that his blindness could
have been caused by any of five equally probable different factors, only
one of which was tortious (ie an excess of oxygen given incorrectly). The
others were all the natural result of his premature birth. The evidence
suggested that these factors did not operate together to cause the
blindness: one factor was solely responsible for the loss.
The court applied the 'but for' test in this situation. The claimant had to
prove that but for the defendant's breach he would not have suffered the
blindness. As the standard of proof in civil actions is the balance of
probabilities, the claimant had to establish that it was more likely than not
(ie more than 50 per cent) that the blindness was caused by the breach as
opposed to any of the other possible factors. The claimant was unable to
do this on the evidence available and so did not succeed. The claimant
could only prove that there was a 20 per cent chance that the breach had
caused his loss.
 Negligently
given oxygen The problem in Wilsher: which one of the five
factors caused the blindness?
Alternative
cause 1
Alternative
cause 2 ? blindness

Alternative
cause 3
Alternative
cause 4

You might have spotted a slight difference between Barnett and Wilsher. In Barnett, there
was no question as to what happened – poisoned tea was given to the patient and he
was not given an antidote. The uncertainty was as to whether the antidote would have
been given in time if there had been no breach. In Wilsher there was uncertainty as to
what had happened: one of five factors did cause the blindness, but there was
uncertainty as to which. But note that, either way, the conclusion is the same: the
claimant failed to establish the 'but for' causation.
Summary

• Factual causation deals with establishing the link between the defendant’s breach and
the claimant’s damage.
• The starting point for establishing factual causation is always the ‘but for’ test; but for
the defendant’s breach, would the claimant have suffered their loss? If no, factual
causation is satisfied.
• The claimant must prove the ‘but for’ test on the balance of probabilities ie there is a
greater than 50 per cent chance that the breach caused the damage.
• In Wilsher, the claimant was unable to prove factual causation using the ‘but for’ test.
There were five equally probable causes of the claimant’ s loss acting independently;
only one of which was the breach. The claimant could therefore only prove that there
was a 20 per cent chance that the breach caused his loss.