Law Express Question and Answer

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Law Express Question and Answer Tort Law (Q&A Revi
Contract Law (Coventry University)
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QUESTION 1
Question 1
‘Certainly in Wilsher’s case the House of Lords applied strictly the “but-for” test and rejected
the Court of Appeal’s interpretation of McGhee’s case but it was not a case of causes
cumulatively causing injury but a case where there were different distinct causes.’ Per
Waller LJ in Bailey v Ministry of Defence [2009] 1 W.L.R. 1052 at 1069
Evaluate how the ‘but-for’ test is adapted depending on whether the case involves a
cumulative cause scenario rather than a distinct, alternate cause scenario and consider
whether the law is satisfactory.
answer plan
➜■ Outline the standard ‘but-for’ test.
➜■ Demonstrate its application in scenarios such as Wilsher.
➜■ Highlight what further problems there can be with applying the ‘but-for’ test.
➜■ Chart the development of modifying the test through the material-contribution test to
the material increase in risk test.
➜■ Conclude assessing the current state of the law.
Diagram plan
Copyright © 2011. Pearson Education UK. All rights reserved.
Discuss the standard method Evalulate the development Assess the current state
for establishing causation of the test for causation of the law on causation
• Demonstrate its application • Consider the adaptation to

• in a Wilsher scenario • material contribution for
• cumulative causes
• Evalulate the problems
• which exist with the test • Then assess the material
• increase in risk test
a printable version of this diagram is available from www.pearsoned.co.uk/lawexpressqa
answer
The issue to address is the test used for determining causation in
negligence and how it is modified depending on the circumstances.
Strict adherence to the traditional approach has led to many
Geach, Neal. Law Express Question and Answer: Tort Law (Q&A Revision Guide), Pearson Education UK, 2011.
ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/coventry/detail.action?docID=5136805. 19
Created from coventry on 2021-01-23 01:52:41.
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2 NEGLIGENCE: CaUSaTION, REMOTENESS aND DEFENCES

claimants going uncompensated, whereas in certain circumstances
claimants benefit from a relaxation of the rules. It will be argued
that this discrepancy in the law can be justified and so the law is
satisfactory.
The standard approach for determining causation was devised in
Cork v Kirby Maclean [1952] 2 all E.R. 402, and is to apply a
simple test to the facts. One asks whether, ‘but for’ the negligent act,
the claimant would have suffered their injury. This requires looking
at whether, on the balance of probabilities, the negligent act was the
most likely cause of the claimant’s injury. Where there was an over
50 per cent chance that the negligent act was the cause, it is treated
as the 100 per cent cause. Where it is shown that the injury was
likely to have occurred even without the negligence, the defendant
cannot be deemed the factual cause of the injury. Hotson v East
Berkshire AHA [1987] a.C. 750 illustrates this with the judge
1
It is the decision of the case holding that as there was only a 25 per cent chance that without the
and its reasoning here which negligence the condition would have been avoided, the injury was
you need to illustrate your already in place prior to the negligence.1 In Bonnington Castings
point, so there is no need to
give a fuller factual account.
Ltd v Wardlaw [1956] a.C. 613 Lord Reid noted the authorities
supported the proposition that the question is whether on the balance
of probabilities the defendant caused or materially contributed to the
injury. although Wardlaw concerned cumulative causes, the issue of
material contribution to the injury applies where the cause is one of
several distinct factors as seen in Wilsher v Essex AHA [1988] a.C.

1074. Here a prematurely born baby was given excessive oxygen by
the hospital and later suffered blindness, but there were four other
completely separate risks which the baby was exposed to which
could have caused the blindness. Lord Bridge framed the question
throughout as one of showing that the excess oxygen administered
to the baby was the cause or material contribution of the blindness.
However, the problem was the presence of the other factors meant
that it could not be shown that ‘but for’ the contribution of the
2
negligent cause, the injury would not have occurred. The application
The fact that these cases are
set in a different context is of the ‘but for’ test for the material contribution of injury in such a
important as to why the same case was affirmed in Bailey v Ministry of Defence.
policy factors as Wilsher have
not been applied. Therefore, as Wilsher shows, the test has been rigorously applied in medical
you need to flag up this negligence cases; however, in cases of negligent exposure to
difference in setting. industrial illnesses2 the courts have been willing to relax the ‘but
for’ test to overcome causal uncertainties. In Wardlaw, while the
ProQuest
20 Ebook Central, http://ebookcentral.proquest.com/lib/coventry/detail.action?docID=5136805.
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QUESTION 1
fact that a material contribution would suffice as opposed to actually
causing the injury, the issue was complicated by the fact that the
case concerned a cumulative cause scenario. Wardlaw contracted
pneumoconiosis from inhaling silicon dust while at work. There were
two sources of inhalation, an innocent cause from using a pneumatic
hammer which could not be avoided; and a negligent cause by his
employer who had failed to maintain the extraction plant. Wardlaw
succeeded as while it could not be said that ‘but for’ the negligence
3
Do not forget this the injury would not have occurred – indeed the evidence showed
qualification to the decision it was insufficient to have caused it – the evidence showed that
as this forms part of the
his employer’s contribution to his contracting the illness was more
justification to the decision.
than negligible.3 In Fairchild v Glenhaven Funeral Services Ltd
4
By referring to Lord Rodger in [2002] U.K.H.L. 22 Lord Rodger expressly stated4 that the ‘but for’
Fairchild, you have high level test is departed from in such situations.
authority for the statement
which you are making. The approach was developed further by McGhee v National
Coal Board [1973] 1 W.L.R. 1. McGhee, through his job, was
non-negligently exposed to brick-dust and then negligently not
provided with washing facilities, which prolonged the exposure while
he travelled home. Subsequently, he developed dermatitis which
medical evidence showed was from the exposure. However, the
evidence only showed that the prolonged exposure increased the
risk of dermatitis but not that this negligent exposure had caused
it. Lord Reid felt that there was no distinction between a material
contribution and a material increase in risk, although this was

rejected in Fairchild. Lord Wilberforce justified liability on the basis
that where a person creates a risk by breaching a duty, and injury
ensues from within the area of risk, he should bear the loss unless
5
This is still part of Lord
he can show there was another cause. This was a matter of justice
Wilberforce’s reasoning which
you need to set out before as the employer should be taken to foresee the possible injury and
considering whether McGhee thus bear the consequences.5 at first glance this might seem unfair
was an acceptable departure on the defendant who becomes liable for injury which it is unclear
from the traditional position. that he caused. However, it certainly achieves justice for the claimant
and would seem to be grounded in tort principles such as ideas of
corrective justice and loss distribution. a wrong has been done with
a foreseeable outcome, the employer is in a better position to bear
such a loss through insurance and could prevent liability through
better working practices, another aim of tort.
Therefore, a shift in approach has been undertaken by the courts
in relation to causation and the application of the ‘but for’ test, with
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2 NEGLIGENCE: CaUSaTION, REMOTENESS aND DEFENCES

6
although a judicial quote has departure permitted where, as Lord Rodger states in Fairchild, ‘it is
just been stated as to how/ inherently impossible for the claimant to prove exactly how his injury
when the principle operates,
was caused’. The principle, started in Wardlaw and developed in
you ought to demonstrate
that you understand it by McGhee, can be applied where the claimant has proved all they can,
explaining it and developing with the causal link of the injury needing scientific investigation which
the point. cannot be concluded because science itself is uncertain as to the
cause.6 Wilsher appeared to make a distinction between industrial
7
It is important to explore why
cases and medical cases. While justified on the grounds of protecting
the distinction existed and the
nature of that distinction, i.e. NHS funds, this has now rightly been removed by Bailey which stated
you comment on whether it is there is no policy reason for not applying McGhee in cumulative-
right or wrong that Bailey has cause medical cases which does provide some consistency.7
exposed the medical profession
to potentially more litigation. However, a distinction does remain, even after Bailey, as the quote
shows,8 between cases where the cause is cumulative but flowing
8
You should write something from essentially the same substance or where there are distinct,
like this to tie your point to the alternative causes as in Wilsher. In the former, to alleviate the
question.
evidential uncertainty the ‘but for’ test is departed from, and possi-
9
Refer to your previous bilities are considered rather than probabilities. as noted above,9 this
comment to justify your point is justifiable under tort principles but it raises questions as to why
without repeating in full what the same tort principles are not applied to a Wilsher-style case.
you have already said.
However, the key distinguishing factor is that in Wilsher there were
10
If you are arguing that there
several independent causes.10 No commonality existed and so it is
is a distinction, you need to
highlight why this is the case hard to say that the hospital’s negligence even contributed to the
and then argue whether there injury; the uncertainty is too great. Imposing liability would be too
is a good reason for it or not. unfair and thus ensures justice between the parties in question; no
wrong needs correcting.
3 Make your answer stand out

■■ Offer a view as to whether material contribution is different to material increase in risk;
if you think that they are, are they equally justifiable?
■■ Consider whether, if damages are awarded for material contributions and increased
risks, those damages should be awarded on a proportionate basis.
■■ Evaluate the merits of the single agent theory as the basis for continuing to distinguish
Wilsher from McGhee. Look at the opinion of Lord Hoffman in Fairchild who did not
think it was satisfactory although he did change his mind in Barker v Corus UK Ltd
[2006] 2 a.C. 572.
■■ Consider the potential overlap with issues for loss of a chance.
■■ Include academic opinion to support your view as to the merits of the judicial
comments which you use in your answer.
ProQuest
22 Ebook Central, http://ebookcentral.proquest.com/lib/coventry/detail.action?docID=5136805.
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QUESTION 2
! Don’t be tempted to . . .
■■ Frame your answer too narrowly by focusing on mesothelioma if you rely more on
Fairchild and Barker for your discussion.
■■ Forget the merits of the policy factors which underpin why each case was decided.
These are needed to more fully assess whether the decisions reached in the cases as
to test of causation to apply are justifiable for those situations.
Question 2
‘The common law imposes duties and seeks to provide appropriate remedies in the event
of a breach of duty. If negligent diagnosis or treatment diminishes a patient’s prospects
of recovery, a law which does not recognise this as a wrong calling for redress would be
seriously deficient today.’ Per Lord Nicholls in Gregg v Scott [2005] 2 A.C. 176 at 185E
Critically evaluate whether the law on causation is ‘deficient’ and loss of a chance should be
an actionable head of damage.
answer plan
➜■ Outline the factual background of Gregg.
➜■ Set out the majority’s view, evaluating the compatibility of each judge’s reasoning.
➜■ Discuss whether the decision leaves the law ‘deficient’.

➜■ Evaluate whether the opinion of Lord Nicholls satisfactorily counters the majority’s concerns.
➜■ Conclude which view is more justifiable.
Diagram plan
Evaluate the view
of the majority
Detail the facts to Conclude which side has

Gregg v Scott the stronger argument
Consider the merits of

Lord Nicholls’s opinion
a printable version of this diagram is available from www.pearsoned.co.uk/lawexpressqa


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Law Express Question and Answer Tort Law (Q&A Revi

Contract Law (Coventry University)

StuDocu is not sponsored or endorsed by any college or university

• Demonstrate its application • Consider the adaptation to

a printable version of this diagram is available from www.pearsoned.co.uk/lawexpressqa

2 NEGLIGENCE: CaUSaTION, REMOTENESS aND DEFENCES

several distinct factors as seen in Wilsher v Essex AHA [1988] a.C.

contribution and a material increase in risk, although this was

2 NEGLIGENCE: CaUSaTION, REMOTENESS aND DEFENCES

3 Make your answer stand out

➜■ Discuss whether the decision leaves the law ‘deficient’.

Detail the facts to Conclude which side has

Consider the merits of

a printable version of this diagram is available from www.pearsoned.co.uk/lawexpressqa

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