TORT LAW 2022/2023

LECTURES 8 & 9

CAUSATION

Essential Reading
P Giliker, Tort (Sweet and Maxwell, 7th Ed, 2020) Chapter 6.

Further Reading
Horsey & Rackley, Tort Law (OUP, 7th Ed 2021) Chapter 9

LECTURE 8
Causation
1. Factual causation
a. The ‘but for’ rule
i. Wheather the claimant has suffered damage regardless of defendants
actions
ii. Barnett v Chelsea and knsington
1. Drank tea and had arsenic poisoning, got negligent treatment,
whas that conduct more liklety than not caused the death,
expert evidence demonstrated would have ordinarly died
weather the duty was breached, defendant was found not
liable
iii. But for test may be hypothetical
1. Mcwilliams v sir William arrol
a. Was working on machine and he never wore harness,
even if they were provided, defendant was negligent in
not providing the harnesses, because of historical
regection of not wearing any protection, he is more
likely than not would have not used the harness,
becuae of his history and the defendant were not liable
b. Standard of probabilities (based on balance of probabilities at least more
than 51 %)
i. Barnett v chlsea and knsingtion
1. More likely than not would have died
ii. Quite problematic in medical negligence loss of chance cases
c. Loss of chanses case
i. Hoston v east berkshire area ha
1. Claimant fell form tree and injured hip, he was wrongly
diagnosed, he came 5 days later, and was correctly diagnosed,
had necrosis, and was going to be paralysied. He sued. If he
was correctly diagnosed the first time 25% chance that the
condition would have occurred after 5 days it was 0. The
claimant had to show 51 percent that he would have
recovered. But 25 percent he would have recovered
ii. Gregg v scott

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 1. Lump was wrongly diagnosed, claimant to defendant to court,
evidence for every 100, 17 recovered if it was diagnosed early,
25 if diagnosed after a year, 58 would have got it, and did not
satisfy the requirement
2. Lord Nichols in his dissenting judgment at [42] & [43] held: ‘…It
cannot be right to adopt a procedure having the effect that, in law, a
patient’s prospects of recovery are treated as non-existent
whenever they exist but fall short of 50%. If the law were to proceed
in this way, it would deserve to be likened to the proverbial ass
d. Compare with
i. Allied maples group ltd v simmons & simmons
1. The claimant was negotiantiong to purchase property, the solicitor
did not tell about the removal of a important clause, it was more
than likely, that the knowedge of the removal the clause the person
would have renotiated, there was a loss of change to negotiate
ii. Spring v guardiance assurance
1. Negligently giving refrecne, made him look dishobest and loss of
employment.
e. Problems with but for test
i. Multiple potential cuases
1. Whre there is more than one potentiola cause of harm/ injury,
including natural ones, and it will be difficult to establish without
clear evidence that one of the potential causes is more likely than
any other to be the cause
2. Where thy are equally could cause an injury
3. Wilsher v essex area health authority
a. A baby was born and put in special care unit and put
something in catheter and put it in vein, it would show that
the baby had not enough oxygen (inaccurate readings) and
resulted in receiving excessive oxygen which caused the
baby an illness that made him to go blind.
b. They argued that that action could have caused the
blindness because there were 6 causes of the illness, they
could not prove that that was more likely than not,
ii. Indeterminate causes
1. Where there is more than one negligent defendant with each being
plausibly liable, but neither can be proved to be the cause of the
harm.
2. Cook v lexis
a. Hunting accident shot could have been done by 2 people
but 1 bullet, reversed the burdun of proof, the supreme
court made the defendacts proved that they did not do it, if
they could not prove they would have joint liability
3. See also US cases of Summers v Tice (1948) 119 P.2d 1; Sindell v
Abbott Laboratories (1980) 607 P.2d 924.
a. Manufacture drugs that created cancer
b. Decided to portion damges based on market share at that
time, because if but for test would create no liability
iii. Multiple sufficient cuases/ successive cuases

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 1. Where there is more than one defendant, and each defendant
passes the but-for test i.e., more than likely to cause the
injury/harm, but one of the actions comes later than the other.
a. Person walking down on the street, gets knocked down by a
driver, and happened again, and would have caused the
same injury but caused extra injury. What is extent of
liability.
b. Question is whether the original defendant who is liable for
some harm should remain liable for the unrelated actions of
the other party?
i. Baker v Willoughby (not sure it applies)
1. Recover damages for subsequent action
that created the injury, sufferd injury to leg
by car accident nad then took job at scrap
metal place and there got shot in same leg
and had to get amputatated. The second
defs could not be found so the first person
2. The negligence continued because he would
not have looked for the job
ii. Jobling
1. Suffered back injury from work, negliangent
from protecting employee and also got
disease that got
2. Sued for initial damage from empoyer and
for the disease. Job would have liability till
point in of sickness
3. Futher people would be liable
4. https://www.lawteacher.net/cases/
jobling-v-associated-dairies.php
iii. Murrell v healy
1. Injured by accident, reached court
settlemtn, subsequently suffetred accident
on the same leg, the second defendant, he
would only be liable for the additional injury
2. Also suffered joint stiffness not related to
any injury (
Lecture 9
2. Exceptions to the ‘but for’ rule
a. Certain curcamstaces whre the but for rule wont apply (and needs
justification)
b. Mostly in medical negligence cases with personal inhuries
c. Material contributionto harm
i. •Where C suffers disease/injury which is caused by exposure to a
particular agent and there has been both non-negligent and negligent
exposure, the courts may find causation to be established where the
negligent exposure makes a material contribution to the injury
suffered
1. If it will not happen but for
2. Bonnington v wardlaw castings

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 a. Silicon dust was inhaled causes medical problem, only
one was tortious and one was incocent, more came
from the innocent source, (cannot succeed form but
for test) the court saw that but for would be difficult,
since the tortious dust materially contributed to the
disease, he w
3. Willimas v Bermuda
a. Went to AandE, wait for 5 hours, his appendix ruptured
and put on life support, the negligent diagnosis and
delay,
b. The delay which caused the rupure and release of fluid
materially contributed to harm.
4. This approach applicable whre
a. Multiple cuases of the inhury/ disease
b. Injury/ disease is caused by a cumulative (both
innocent and negligent) exposure to a particular agent.
ii. On apprortionment of damges
1. holbty
2. Lung injury caused by prolonged asbestos, and it can get
progresivly worse if a person is in contact with it more. In
contact with it during his whole working life. Got it during
defendant’s employment. Partialment of damages, because
they were only liable for the time they were working for the
defendant,. It materially contributed to harm
3. Reasons for apportionment in holtyb
a. In Bonnington, damages were not apportioned simply
because the Ds did not make the argument, unlike in
Holtby.

b. • In Holtby, the exposures were successive rather than

concurrent.

4. Is material contribution to harm not just an application of the

but for test
a. In Bonnington, damages were not apportioned simply
because the Ds did not make the argument, unlike in Holtby.
• In Holtby, the exposures were successive rather than
concurrent.
5. Usually a single agent, negligent and non negligent, not scientifically
pinpoitable, cumulative
iii. Why not applicalble to wilsher
1. Multiple possible causes, there was speculation of the causes of
concurrent things or successive treatment, no cumulative
iv. Materialy increased risk
v. To hold D liable for a certain kind of injury, it is enough to demonstrate that
D’s breach of duty materially increased the risk of the injury occurring. No
need to prove breach of duty more than likely caused injury.
1. Mcghee v national coal board

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 a. Exposed to brick dust, inevitable part of their job, but
there was no washing facility, the claimants contracted
disease, they could not establish at what point
dermatitis, (material contribution need multiple
instances)
b. According to Lord Wilberforce: ‘…it is a sound principle that
where a person has, by breach of a duty of care, created a
risk, and injury occurs within the area of that risk, the loss
should be borne by him unless he shows that it had some
other cause.
2. not used in wilsher for same reason
3. but was appliend in fairchiled
a. contracted type of canser associated with asbestos, mutpel
exposures to multiple contractors, one instance couses it,
and show after a while, could
4. •Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 (The
Mesothelioma exception).
a. •Fairchild is an exception to the need for proof of
causation, driven by policy and fairness considerations.
b. •key factors in Fairchild decision:
i. • Ds’ actions were not only negligent but also
materially increased the risk of the C suffering
the relevant harm (Mesothelioma).
ii. • C then did suffer from the relevant harm.
iii. • Though we don’t know which D did in fact
cause the harm, we do know that one (or some
combination) of them did.
c. Damages were split up?
vi. What qualifies as ‘material’ in material contribution to risk of harm
1. • Sienkiewicz v Greif (UK) Ltd [2011] SC

2. • Lord Brown stated that ‘material’ here means being exposed

to asbestos “more than minimally”
vii. Does farchild extend beyond mesothelioma cases
1. • Heneghan v Manchester Dry Docks [2016] 1 WLR 2036. • Note
however, • The fact that the case did not concern mesothelioma
means that the Compensation Act not applicable therefore Barker
applies to therefore apportioned damages. • Heneghan may have
gone beyond the single-agent cause since there was exposure to
two agents, asbestos, and cigarette smoke though asbestos was
deemed to be more probable, on a 2:1 ratio).
2. Applied Fairchild and held liable
d. Failure to inform/ vindication of right
i. •Where risk of an injury/harm is within the scope of a doctor’s duty to warn,
and the injury was the result of the risk of which the claimant is entitled to
be warned of, failure to inform the claimant of the risk can render the
doctor liable if injury occurs. It is immaterial if the risk is minimal.
ii. Chester v Afshar [2004] UKHL 41
iii. Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

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1. Introducing Causation

For defendant (D) to be liable in the tort of negligence, it must be shown that his breach of
duty caused loss to claimant (C). As such, causation is an essential element to a negligence
claim. It provides an essential link between D’s conduct and the harm suffered by C, which
explains why D should be liable to C for C’s loss.

What does it mean to say that D’s breach caused C’s loss?

2. Two ‘Types’ of Causation: Factual and Legal

The causation inquiry usually involves asking

1) whether D’s breach of duty (action/conduct below standard of care) is the factual
cause of C’s loss; and if so,

2) whether C’s loss is too remote a consequence of D’s breach of duty to justify D’s
liability – the legal causation question.

3. Factual Causation – The ‘But For’ Rule

The factual causation inquiry asks would claimant have suffered the loss/harm/injury even if
defendant had not breached his duty? If yes, D not liable. If no, D liable.

This is the standard approach in most cases.

Barnett v Chelsea and Kensington Hospital [1969].

The but-for test may require the court to consider hypothetical situations such as what the
conduct of the claimant would have been.

McWilliams v Sir William Arrol & Co Ltd [1962] 1 All ER 623.

3.1 Standard of Proof for But-for test – ‘All or Nothing Approach’

The standard of proof is the balance of probabilities, i.e., more likely than not / 51% chance.

C needs to show that it is more likely than not /on the balance of probabilities / that there is at
least a 51% chance that, had D not breached her duty, C would not have suffered the loss she
did.

See, Barnett v Chelsea and Kensington Hospital [1969]

Quite problematic in medical negligence loss of chance cases where there is a lot of
uncertainty as to what the outcome (harm or recovery) could be.

In loss of chance cases, C is claiming that they lost the chance of full recovery owing to D’s
negligence.

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To succeed, C must prove that they had at least a 51% chance of recovery if it were not for
D’s negligence. However, even if with diligent medical services, C is more likely than not
(above 50% chance) to suffer harm, C will not succeed.

Hotson v East Berkshire Area HA [1987] AC 750.

See also, Gregg v Scott [2005] 2 AC 176.

Decision of majority criticised by Lord Nichols in his dissenting judgment at [42] &
[43] where he held:

…It cannot be right to adopt a procedure having the effect that, in law, a
patient’s prospects of recovery are treated as non-existent whenever they exist
but fall short of 50%. If the law were to proceed in this way, it would deserve
to be likened to the proverbial ass.

Baroness Hale pointed out that recognising proportionate compensation for claimants with
lost chance less than 50% would require the transformation of personal injuries law.

There will have to be proportionate compensation across board. Such that if there is a 51%
chance that defendant’s negligence caused claimant’s harm, defendant’s liability would have
to be reduced by 51% to reflect that there is a 49% chance that claimant would have suffered
harm in any event.

Compare with the economic loss of chance cases:

Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602,
See also, Spring v Guardian Assurance plc [1995] 2 AC 296.

3.2 Problems with the ‘But-for’ test:

(i) The problem of multiple potential causes.

This problem arises where there are more than one potential causes of harm/injury, including
natural ones, it will be difficult to establish without clear evidence that one of the potential
causes is more likely than any other to be the cause. For instance, if there are 2 plausible
causes, each will only be 50% likely to cause the harm. For 3 plausible causes, 33.3% likely
etc.

Wilsher v Essex Area Health Authority [1987]

(ii) The problem of indeterminate causes.

This problem arises where there is more than one negligent defendant with each being
plausibly liable, but neither can be proved to be the cause of the harm. Applying the but-for
test would result in Ds not being liable.

Cook v Lewis [1951] SCR 830. (Supreme Court of Canada).

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See also US cases of Summers v Tice (1948) 119 P.2d 1; Sindell v Abbott Laboratories
(1980) 607 P.2d 924. Here defendants were not held jointly liable, rather liability was based
on market share.

(iii) The problem of multiple sufficient causes/successive causes.

This problem arises where there is more than one defendant, and each defendant passes the
but-for test i.e., more than likely to cause the injury/harm, but one of the actions comes later
than the other.

The question is whether the original defendant who is liable for some harm should remain
liable for the unrelated actions of another party?

Baker v Willoughby [1970] HL.

The subsequent unrelated action may be non-tortious but could bring about the harm/injury.

Jobling v Associated Dairies Ltd [1982] HL.

Compare Baker with Jobling on damages.

See also Murrell v Healy [2001] EWCA CIv 486.

LECTURE 9
EXCEPTIONS TO THE ‘BUT FOR’ RULE

(i) Material contribution to harm

This is an alternative approach to but-for test where it produces unsatisfactory results.

Applies where C suffers disease/injury which is caused by exposure to a particular agent and
there has been both non-negligent and negligent exposure, the courts may find causation to be
established where the negligent exposure makes a material contribution to the injury suffered.

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 Bonnington v Wardlaw Castings [1956]

See Privy Council decision in Williams v The Bermuda Hospitals Board [2016] PC

This is approach seems to be applicable where:

1. There are multiple causes of the injury/disease.

2. Injury/disease is caused by a cumulative (both innocent and negligent) effect of a
particular agent.

Is apportionment of damages possible?

Holtby v Brigham & Cowan (Hull) Ltd [2000] I.C.R. 1086

Reasons for apportionment in Holtby:

(1) In Bonnington, damages were not apportioned simply because the Ds did not
make the argument, unlike in Holtby.

(2) In Holtby, the exposures were successive rather than concurrent.

Is the material contribution to harm not just an application of the but-for test?

Bailey v Ministry of Defence [2008] EWCA Civ 883 suggests that the material
contribution to harm is an alternative to the but-for test in situations where medical
science cannot establish D more likely than not caused harm.

Waller LJ:
In a case where medical science cannot establish the probability that
‘but for’ an act of negligence the injury would not have happened but
can establish that the contribution of the negligent cause was more than
negligible, the ‘but for’ test is modified, and the claimant will succeed.

(ii) Material contribution to the risk of harm

Another alternative approach to but-for test. Here, to hold D liable for a certain kind of
injury, it is enough to demonstrate that D’s breach of duty increased the risk of the injury
occurring.

McGhee v National Coal Board [1973] 3 All 1008.

According to Lord Wilberforce:

…it is a sound principle that where a person has, by breach of a duty of care,
created a risk, and injury occurs within the area of that risk, the loss should be
borne by him unless he shows that it had some other cause.

Not applied in Wilsher v Essex Area Health Authority [1987]

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But applied in.

Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 (The Mesothelioma

exception).

According to Lord Bingham:

I am of opinion that such injustice as may be involved in imposing liability of

a duty-breaking employer in these circumstances is heavily outweighed by the
injustice of denying redress to a victim.

Fairchild is an exception to the need for proof of causation, driven by policy and fairness
considerations.

Fairchild goes further than McGhee, since in the latter there was only one defendant, whereas
there were several in Fairchild. Disease in McGhee was dermatitis, while it was
mesothelioma in Fairchild.

The following factors appear to be key to Fairchild:

1. Ds’ actions were not only negligent but also materially increased the risk of the C
suffering the relevant harm (Mesothelioma).
2. C then did suffer from the relevant harm.
3. Though we don’t know which D did in fact cause the harm, we do know that one (or
some combination) of them did

Fairchild is not only applicable where there are several defendants all of whom were
negligent, and it is impossible to determine who caused the harm. It can also be applied
where claimant was self-employed.

Barker v Corus plc [2006]

However, in Barker, the House of Lords held that liability should be apportioned according to
each employer’s “share” of the total asbestos exposure to which the C was subjected.

Lord Hoffmann: “The justification for the joint and several liability rule is that if you
caused harm, there is no reason why your liability should be reduced because
someone else also caused the same harm. But when liability is exceptionally imposed
because you may have caused harm, the same considerations do not apply and
fairness suggests that if more than one person may have been responsible, liability
should be divided according to the probability that one or other caused the harm”.

This can be illustrated as follows:

Risk increased by Period of time Defendant Proportion of

negligent employed by solvent or damages paid
defendant defendant bankrupt
A 10 years Solvent 20%

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 Harm suffered B 20 years Bankrupt None
by claimant
C 15 years Solvent 30%
(e.g.
mesothelioma) D 5 years Solvent 10%
Total proportion of (full) damages recoverable by claimant 60%

Note that the apportionment ruling in Barker has been overruled by s 3 of the Compensation
Act 2006, such that anyone liable under the Fairchild exception for causing/creating the risk
of mesothelioma is liable in full for C’s losses.

What qualifies as ‘material’ in material contribution to risk of harm?

Sienkiewicz v Greif (UK) Ltd [2011] SC

Lord Brown stated that ‘material’ here means being exposed to asbestos “more than
minimally”.

Does Fairchild extend beyond mesothelioma cases, to other cases of evidential uncertainty
and indivisible disease?

See Heneghan v Manchester Dry Docks [2016] 1 WLR 2036.

Note however,
(I) The fact that the case did not concern mesothelioma means that Compensation Act
not applicable therefore Barker applies to therefore apportioned damages.

(II) Heneghan may have gone beyond the single-agent cause since there was exposure
to two agents, asbestos, and cigarette smoke though asbestos was deemed to be
more probable, on a 2:1 ratio).

(iii) Failure to inform/ Vindication of Right

Failure to inform a patient of risks of an operation which then materialises can be actionable
in negligence provided the injury is within the scope of the doctor’s duty to warn and was the
result of the risk of which the claimant is entitled to be warned of.

Chester v Afshar [2004] UKHL 41

Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307

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