Causation &

Remoteness
of damage
Prepared by: Ms
Suloshiny Segaran
 Causation
The link between the defendant’s negligence and the claimant’s loss

Defendant’s Claimant’s
Act Causes Loss

The link must be both

Legal Factual
Remoteness of damage Causation in fact

Causation must be proved – if there is no loss – there is no claim.

• In order to establish negligence,
it must be proved that the
defendant’s breach of duty
actually caused the damage
suffered by the claimant, and that
the damage caused was not too
‘remote’ from the breach.
 Factual Causation
if not because
Determined using the ‘but for’ test, see: The test requires one to ask the question:
But for the defendant’s negligence would the claimant have suffered
the loss?

Yes No

Defendant is not Defendant is

responsible for the responsible for the
claimant’s loss claimant’s loss

Illustrative cases: Barnett v Chelsea & Kensington Hospital

 determined simply by asking the ‘but for’ question
a thing that was left out
 However, where the defendant’s negligence involves an omission – an additional
query becomes necessary to determine causation
What would have happened if the defendant done what he was
suppose to do?
3 scenarios could arise

What naturally would What would the defendant What the claimant
have occurred? have subsequently done would have done if
had he done what he was the defendant had
Barnett v Chelsea suppose to do? done what he was
what will occur if not suppose to do?
because the defendant's Bolitho v City of
negligence
Hackney Health Chester v Afshar
Authority
The ‘but for’ test was established in the
case of:
Barnett v Chelsea Kensington Hospital
Management Committee:
Facts:
• Mr Barnett went to hospital
complaining of severe stomach pains
and vomiting.
• He was seen by a nurse who telephoned
the doctor on duty.
• The doctor told her to send him home
and contact his GP in the morning.
• Mr Barnett died five hours later from
arsenic poisoning.
 Held:
• The claim failed. The question that the
court had to decide was whether the
harm would not have occurred ‘but for’
the defendant’s breach of duty.
• The hospital was able to show that even
if the claimant’s husband had been
examined with proper care, he would
still have died, the defendant’s breach of
duty was not the factual cause of death.
Note: this is the test used to establish
causation in fact. If the harm would not
have happened ‘but for’ the defendant’s
negligent behaviour, the negligence is the
cause of that harm.

It'll still happen even if the doctor wasn't negligent because no one
will expect this as an arsenic poison
 • In this case, the patient’s (a child) death was
due to breathing difficulties. The defendant’s
were sued for their failure to attend and
intubate the child when summoned.

• Although the courts found the doctor’s failure

Bolitho v to attend a breach of duty the issue then turned
on what the doctor would have done if the
City of child had been attended to.

Hackney • The court found the defendant’s contention

that even if they had attended they would not
Health have intubated the child, as being capable of
logical analysis.
Authority • There the courts held that although the doctors
were in breach of their duty when they failed to
attend to the child, that failure did not cause
the child’s death.
 • In this case, the claimant alleged that
she was not told of a 1-2% inherent risk
of serious neurological damage arising
from the spine surgery she had

Chester
undergone. The surgery left her with
serious neurological damage.

v Afshar • Having held that Mr Afshar was in

breach of duty for his failure to inform
of the risk, the courts had to consider
what would have she done had she been
informed of the risk to determine
whether his failure caused her loss.
 • In this case, the claimant could not
if she say she would not
take the surgery if told the
risk then defendant will be
liable
say, given her condition, that she
would not have had the surgery had
she been told of the risk. She
however did say that had she been
told of the risk she most definitely
would have postponed the surgery
and sought a second opinion.

• The peculiar issue in this case was

that the risk was inherent and
regardless of when Miss Chester
had her surgery the risk was the
same.

• Therefore, technically, Mr Afshar

‘did not cause’ the risk to materialise.
Held:
• The HOLs disagreed. They pointed out that
the scope of the surgeon’s duty of care to his
patient included a duty to warn of any risks
• Therefore, there had to be a remedy where a
doctor failed to fulfil that part of the duty, and
a patient was injured as a result of the risk,
otherwise that aspect of the duty was
meaningless.
• The court stated that this was a case where
legal policy required a judge to decide whether
justice required the normal approach to
causation to be modified.
• In this case it did.
• Hence, on policy grounds, the test of causation
was satisfied and the claimant won her case.
NOTE: Chester was an exceptional case.
The ‘but for’ test is best
suited to instances
where there is one cause
of harm and one
defendant.
Problem can arise where:

The claimant has lost the

chance of a full recovery
There are multiple causes

There are consecutive or

successive causes
There are multiple
tortfeasors
 • Where there is more than one
possible cause for damage, the
1.Multiple courts have modified the ‘but for’
test in an effort to find a fair way
causes of deciding whether liability
should be imposed on the
defendant.
• where there is more than one possible explanation for the
claimant’s loss

• yet only one is or can be the actual cause

Claimants ‘s loss is
A There is no way to
caused by either
prove scientifically or
B medically which is the
actual cause

… the but for test in such a case is not useful – as it does not yeild a
conclusive outcome
... the answer to the but for question becomes a ’maybe’
McGhee v National Coal Board (1972)
(KEY CASE)
Facts:
• The claimant worked at the defendant's
brick works.
• His normal duties did not expose him
to much dust but he was then asked to
work on the brick kilns in a hot and
dusty environment.
• The defendant was in breach of duty in
not providing washing and showering
facilities.
• The claimant thus had to cycle home
still covered in the brick dust.
• The claimant contracted dermatitis.
• He argued that this materially
increased the risk of him the
claimant developing dermatitis. This
however could neither be proved
scientifically or medically.
• There were two possible causes: the
brick dust he was exposed to during
the course of his employment which
was not attributable to a breach of
duty and the brick dust he was
exposed to on his journey home
which was attributable to a breach.
Held:

• HOL - causation was satisfied so long as

the claimant was able to establish that
the defendant’s negligence materially
increased the risk to the claimant
• The claimant only had to demonstrate
that the dust attributable to the breach
of duty materially increased the risk
of him contracting dermatitis.
• Where there is more than one possible
cause of injury, causation can be proved
if the claimant can show that the
defendant’s negligence materially
increased the risk of injury occurring.
Wilsher v Essex Health Authority
• A premature baby was given too much oxygen
by a junior doctor. The baby suffered from a
condition affecting his retina which left him
totally blind in one eye and partially sighted in
the other.
• The condition could have been caused by the
excess oxygen he had been exposed to or it
could have been caused by four other factors
unrelated to the oxygen, but related to the
premature birth.
• The trial judge found the Health Authority
liable.
• He applied McGhee v NCB but stated that
McGhee had reversed the burden of proof
where there was more than one possible causes.
The Health Authority appealed.
Held:
• C had to prove, on a balance of
probabilities, that the defendant’s
breach of duty was a material
contributory cause of injury; it
was not enough to prove that the
defendant had increased the risk
that the damage might occur; or
had added another possible cause
of it.
• On the facts of the case, the
defendant’s negligence was only
one of the possible causes of
damage, and this was not
sufficient to prove causation.
Difference • In McGhee the plaintiff had
between established his disease was caused
McGhee by the brick dust; the only
question was whether the
and additional period of exposure to
Wilsher the brick dust had contributed to
his dermatitis.
 2. Loss of chance cases
Usually involves medical negligence of some kind.

Claimant will have a certain percentage of being cured, but that chance is reduced
by the doctor’s delay in diagnosing or treating the illness.

The court has to decide if the delay can be said to have caused the patient not to
be cured or whether that would have been the situation even if the doctor had
not acted negligently.

Loss of chance can also involve financial losses, where a claimant misses out on
the chance of a lucrative deal, or a well-paid job, because of the defendant’s
negligence.
Hoston v East Berkshire AHA
• The claimant as a school boy fell out of
a tree from a height of 12 foot. He
suffered a fracture to his hip and was
taken to hospital.
• The hospital failed to diagnose his
fracture and sent him home.
• He was in severe pain so he was taken
back to hospital 5 days later where an X
ray revealed his injury.
• He was treated and suffered an
avascular necrosis which resulted in him
having a permanent disability and a
virtual certainty that he would develop
osteoarthritis.
• According to medical evidence,
had he been correctly diagnosed
initially there was a 75% chance
that he would have still
developed this condition, but
there was a 25% chance that he
would have made a full recovery.
• The trial judge awarded damages
of £11,500 based of 25% of
£46,000 which was what would
have been awarded if the
claimant had shown that the
defendant's conduct had caused
the avascular necrosis of the hip.
Held:

• The claimant had failed to

establish on the balance of
probabilities that the
defendant's breach of duty had
caused the necrosis since there
was a 75% chance that it was
caused by the fall.
• Therefore the claimant was not
entitled to receive anything in
respect of the necrosis.
 • Where one act succeeds another,
there are circumstances where
the effect of the first act can be
3. said to have become “overtaken”
Consecutive by the effect of the second act, in
causes such a way that the first act
ceases to be a cause of the
claimant’s loss.
Baker v Willoughby:
Facts:
• The claimant suffered an injury to his
leg when the defendant ran into him in
his car. He suffered pain and loss of
amenity and had to take a lower paid
job. He tried various different
employments some of which he had to
discontinue because of his injury.
• He was employed sorting through scrap
metal when he sustained a further injury
to his leg. He was on his own when two
men came in and demanded money.
When he refused they shot him in his
injured leg.
• As a result of the shooting, the claimant
had to have his leg amputated.
 • The defendant argued that the
second injury removed the very limb
from which the earlier disability had
Defendant should only stemmed, and that therefore no loss
suffered thereafter can be attributed
held responsible for the
first injury, second one

to the defendant's negligence.

you're on your own

• Arguing that the second injury

submerged or obliterated the effect
of the first and that all loss
thereafter must be attributed to the
second injury.
• The trial judge rejected this
argument which he said was more
ingenious than attractive. But it was
accepted by the Court of Appeal.
Held:

• HOL held that the claimant’s

injury could be regarded as
having two causes, and where the
later injuries became a concurrent
cause of the disabilities caused by
the injury inflicted by the
defendant, damages payable by
the defendant could not be
reduced
C/F
Jobling v Associated Dairies
• Mr Jobling, a butcher, slipped on the floor
at his place of work due to his employer's
negligence.
• He injured his back which caused him to
reduce his earning capacity to 50% of
what it was.
• He then developed an independent back
condition which was unrelated to the
injury which left him unable to work.
• The trial judge applied Baker v
Willoughby and held that the claimant was
entitled to recover damages beyond the
onset to the back condition. The employer
appealed.
• Held:

The House of Lords

distinguished Baker v
Willoughby and stated where the
victim is overtaken before trial by
a wholly unconnected and
disabling illness, the decision had
no application.
• The House of Lords were critical
of the decision in Baker v
Willoughby but stopped short of
overruling it.
 In the situations above, the
question has been whether
damage was caused by the
defendant, or by one or more
non-negligent acts or situation,
such as accident or illness.

4. Multiple More than one defendant who

could be responsible for the harm,
tortfeasors in whole or part.

Often arises in cases concerning

work-related illnesses which take
many years to develop, so that it is
not always clear at which point
during the claimant’s working life
the damage was done.
Fairchild v Glenhaven Funeral Services
Facts:

• The claimants suffered mesothelioma after

contact with asbestos while at work.

• They had worked for several employers all

of whom had negligently exposed them to
asbestos.

• It was however impossible to tell both

medically and scientifically, during whose
employment the claimant contracted the
disease.

• Such knowledge was crucial to the case as

mesothelioma is a ‘single strike’ disease
meaning it could be triggered by a single
exposure as it required only the inhalation or
ingestion of a single miniscule strand of
asbestos.
• Whilst prior and future exposures
to asbestos increased the risk of
that one single minuscule strand,
such exposure did not aggravate
the disease itself.
• This meant that only one of the
employers was in fact
responsible.
• Further, it did not help that
mesothelioma had a long latency
period making it almost
impossible to tell which of the
employers were indeed
responsible.
 Issue:

• From which employer, if any, were the

claimants entitled to claim compensation
from for their tortious negligence in
exposing their employees to asbestos.
Held

• The House of Lords held that

they were all liable, so long as the
evidence remained inconclusive
• On the balance of probabilities
each defendant’s wrong-doing
had materially increased the risk
of the claimants contracting the
disease and this was to be treated
as proof that each defendant had
materially contributed to it.
Barker v Corus UK (2004) (restricted the
application of Fairchild)
Facts:

• In this case a group of defendant

employers sought to argue that, where an
employee was negligently exposed to
asbestos by more than one different
employer, each employer’s liability should
be calculated according to the length of
time the employee spent with them and
type of asbestos involved.
• One of the employees in the case had
been self employed for a part of his
career and the defendant’s argued that the
exposure was his own responsibility
Held:

• The House of Lords partially

reversed the ruling in Fairchild to
the extent that it held that liability
was several rather than joint
• As a consequence, although a
defendant could still be liable
without proof of causation, his
liability could only extend to the
relative proportion to which he
could have contributed to the
chance of the outcome.
Causation in law: remoteness of
damage
• There are two tests for remoteness of damage (causation in
law), and these are found in the two cases of:
• Re Polemis (1921): Direct consequence
• Wagon Mound (No 1) (1961): Reasonable foreseeability
• Even if causation in fact can be proved, the defendant may
still avoid liability if it is not possible to prove causation in
law, that is, the damage caused must not be too remote.
 Facts:
• Some Stevedores carelessly
dropped a plank of wood into
the hold of a ship.
• The plank struck something as it
was falling which caused a spark.
• The spark was ignited by petrol
Re Polemis
vapours resulting in the
(Direct
destruction of the ship.
Consequence)
• The arbitrator held that the
causing of the spark could not
have been anticipated and
therefore no liability arose. The
claimant appealed.
Held:

• There was no requirement that

the damage was foreseeable. The
defendant was liable for all the
direct consequences of their
action.
• This was largely considered
unfair as a defendant could be
liable for damage which was not
foreseeable and therefore could
not take steps to prevent it
 Facts:
The defendant's vessel, The Wagon
Mound, leaked furnace oil at a
Wharf in Sydney Harbour. Some
cotton debris became embroiled in
Wagon Mound
the oil and sparks from some
(No 1)
welding works ignited the oil. The
(Reasonable
foreseeability) fire spread rapidly causing
destruction of some boats and the
wharf.
Held:

Re Polemis should no longer be

regarded as good law. A test of
remoteness of damage was
substituted for the direct
consequence test. The test is
whether the damage is of a kind
that was foreseeable. If a
foreseeable type of damage is
present, the defendant is liable for
the full extent of the damage, no
matter whether the extent of
damage was foreseeable.
 Hughes v Lord Advocate
• Post Office employees had opened a
manhole in the street, and left it open
when they finished work for the day,
covering it with a canvas shelter and
surrounding it with paraffin lamps.
• The claimant, an 8 year old, picked up one
of the lamps and took it into the shelter.
• While playing there, he knocked the lamp
Other into the manhole, and paraffin vapour
from the lamp ignited, causing an
cases: explosion in which the claimant fell into
the hole and was badly burnt.
• The D’s claimed that although they could
have foreseen a risk that someone might
be burnt, they could not have foresee
injuries caused by an explosion, and so the
damage was too remote.
Held:
HOL rejected this view: if it was
reasonably forseeable that the
damage would be burning, it did
not matter that the burns were
produced in an unforeseeable way.
Jolley v Sutton LBC
• Two 14 year old boys found an abandoned
boat on land owned by the council and
decided to do it up.
• The boat was in a thoroughly rotten
condition and represented a danger.
• The council had stuck a notice on the boat
warning not to touch the boat and that if
the owner did not claim the boat within 7
days it would be taken away.
• The council never took it away.
• The boys had been working on the boat
for 6-7 weeks when one of them suffered
severe spinal injuries, resulting in
paraplegia, when the boat fell on top of
him.
• The boys had jacked the boat up to
work on the underside and the jack
went through the rotten wood. The
claimant brought an action under the
Occupiers Liability Act 1984.
• The trial judge found for the claimant.
• The Court of Appeal reversed the
decision, holding that whilst it was
foreseeable that younger children may
play on the boat and suffer an injury by
falling through the rotten wood, it was
not foreseeable that older boys would
try to do the boat up.
• The claimant appealed.
Held:
The claimant's appeal was allowed.
The risk was that children would
"meddle with the boat at the risk of
some physical injury" The actual
injury fell within that description.