Causation and Defences

Factual causation can be particularly problematic in certain claims against employers. This might be because the
court has to examine a hypothetical situation, especially in relation to the provision of safety equipment or training
(i.e. is there “but for” causation when it is not clear that safety equipment would have prevented the injury
suffered?). We saw already that many of the cases where a different approach to causation was needed were
cases involving workers suing their employer and these “industrial disease” cases (especially relating to asbestos)
have troubled the courts for many years. Finally, the increase in claims for stress and other psychological injury
caused by employers has also led to causation issues – it is much easier to decide what caused a broken bone
than what combination of what happens at work and factors from one’s private life cause a condition such as
stress or anxiety.

As we saw when we examined general defences in unit 8, it is very difficult to plead volenti non fit injuria as a
defence to a claim in employers’ liability. This is because workers do not tend to freely choose to accept risks –
they do so only because their job depends on it. On the other hand, contributory negligence is a very, very common
defence in employers’ liability claims.