Tort Seminar 5 Causation:

1. How does the ‘but for test’ work?

The but-for test is a test commonly used in both tort law and criminal law to
determine factual causation. The test asks, "But for the defendants carelessness
(breach), would the claimant have escaped harm? If the answer is ‘yes’ the
cause in harm is identified: no harm would have come to the claimants without
the added element of the defendant’s carelessness.”

2. What would the effect of applying the but for test in McGhee have been?

(James McGhee was employed to clean out brick kilns and developed dermatitis from the
accumulation of coal dust on his skin. Because there were no shower facilities at his workplace,
he would cycle home each day, increasing the risk he would contract dermatitis. Had his
employer provided shower facilities, the coal dust could have been washed off before cycling,
reducing the risk of contracting dermatitis. Due to the limits of scientific knowledge, it was
impossible to rule out the possibility that he hadn't contracted dermatitis during the non-wrongful
exposure to brick dust while working in the kiln.
He sued his employer for negligence for breaching its duty to provide proper washing facilities.
The issue before the House of Lords was whether the failure to provide the washing facilities had
caused the rash.
The House of Lords held that the risk of harm had been materially increased by the prolonged
exposure to the dust. Lord Reid stated:
"The medical evidence is to the effect that the fact that the man had to cycle home caked with
grime and sweat added materially to the risk" 
The material increase in risk was treated as equivalent to a material contribution to damage. The
implication of the case was significant as it meant that a claimant need not demonstrate that the
defendant's actions were the "but for" cause of the injury, but instead that the defendant's actions
materially increased the risk of injury, and thus damage, to the claimant.)

A: The material increase in risk was treated as equivalent to a material contribution to damage.
The implication of the case was significant as it meant that a claimant need not demonstrate that
the defendant's actions were the "but for" cause of the injury, but instead that the defendant's
actions materially increased the risk of injury, and thus damage, to the claimant.
If the but for test was applied in this instance the claimant would have to show, on the
balance of probabilities, that the alleged negligence materially increased the risk of the
harm being suffered. However this may produce unsatisfactory results and is less
reliable then using material contribution.
3. Explain in a sentence what the ‘material contribution’ rule is?

This rule is regarding instances where the defendant’s negligence causes damage and must
be assessed through examining the material harm or harms caused. This rule is usually used
when the but for Test produces unsatisfactory results.

4. What was the justification Lord Goff used for adopting what he described as a “modified
approach to causation” in Fairchild?

a modified approach to proof of causation was justified; that in such a case proof that each
defendant's wrongdoing had materially increased the risk of contracting the disease was sufficient to
satisfy the causal requirements for his liability; and that, accordingly, applying that approach and in
the circumstances of each case, the claimants could prove, on a balance of *33 probabilities, the
necessary causal connection to establish the defendants' liability

5. Explain the difference in the allocation of damages in Fairchild and Barker?

In the case of Baker damages were allocated through the period of time and Intensity of
exposure whereas in Fairchild this assessment of damages received due to the defendant’s
negligence was assessed through the material increase risk test.

6. Explain the difference between causation in law and causation in fact?

Causation in law is dependant on two rules, one is whether the harm was too remote a
consequence of the defendant’s negligence and the other is if any act could break the chain
of causation stemming from the defendant’s negligent act. Causation in fact requires the
but for test to assert a link between the defendant’s negligent act and the harm inflicted to
the claimant.

7. What is the doctrine of remoteness?

Only the type of damage must have been foreseeable, not the extent.