Causation and Remoteness
1. Causation
General Test
Barnett v Chelsea Hospital [1969] 1 QB 428: P drank some tea which had been laced
with arsenic and he presented himself at D’s hospital since he was vomiting. D told him
to leave and call his own doctor. P died, but it was unclear that even if he had been
admitted to the hospital he would have survived. P’s widow sued for negligence. The
court held that there was proximity since P had presented himself at D’s hospital, and that
D was negligent in not treating him. However it was not proven that on the balance of
probabilities P’s negligence caused D’s death, since he might have died anyway if he had
been admitted to hospital.
Performance Cars v Abraham [1962] 1 QB 33: P had a car collision with X that meant
P’s car needed a respray. He then collided with D, through D’s negligence, which would
of itself have necessitated a respray. P sued D for the cost of a respray. CA ruled that
since P’s car already needed a respray, the need for it did not flow from D’s negligence
and therefore he would not be liable. Lord Evershed MR says to allow P to claim for
damage that merely “would have” been caused by D in other circumstances is absurd:
suppose A chips my windscreen so I have to get a new one and then you chip it: surely
you shouldn’t compensate me because there is no extra damage caused by your action.
Baker v Willoughby [1970] AC 467 (NB CONFINED TO CASES OF TWO TORTIOUS
ACTS BY JOBLING): P walked into the middle of the road and D, driving, ran into him,
causing damage to P’s leg. They both saw each other over 200 yds and neither took
evasive action. The fault was ruled to be 25% P’s and 75% D’s. Shortly after the accident
P was shot in the leg and it had to be amputated immediately. HL held that the subsequent
shooting was irrelevant to the amount of damages that D had to pay, and that D would
have to pay the value of 25% of the damage to the leg overall (i.e. NO reduction despite
the fact that D did not cause the leg to be shot and amputated). The shooting and car
accident were to be treated as concurrent causes of the disability and each was liable for
the full damage to the leg i.e. that D should have to pay the full amount for the long term
damage he would have caused (had there been no shooting) despite the fact that P would
have been shot anyway (and P’s actions made irrelevant).
Lord Pearson: we should take a “unitary and comprehensive” view of the original injury,
assessing it as a “devaluation” in the leg, for which the responsible party should pay
(though only for the proportion of the devaluation for which he was responsible). The
only thing that could change the amount to be paid is a reduction in the extent of the
devaluation e.g. an unexpected recovery OR a shortening of P’s life expectancy i.e. the
period over which the plaintiff will suffer from the devaluation. If another tort occurs
then the new tortfeasor will be liable for the further devaluation. The life-shortening point
is supported by the fact that if an injury costs P 20 years working income by destroying
,his capacity to work, and then after only 1 year P dies of an unrelated event, it would be
unfair to make D pay for 20 years since this would no longer be compensation.
Lord Reid: There were 2 concurrent causes of P’s disability and both tortfeasors should
have to pay for the suffering they cause. This seems logical: The “but for” test would
support Lord Reid’s conclusion since even “but for the shooting” P would still be
disabled. The correct approach is that adopted: to say that each party has to pay for the
“devaluation” that they cause, making a qualification for cases where the extent of the
devaluation has been reduced by something, for example a wonder-cure: this
qualification is made by Lord Pearson. The shooting does not absolve P of responsibility
for disabling D, since even without the shooting D would still have been disabled: it
merely aggravated the situation.
Jobling v Associated Dairies Ltd [1982] AC 794: In 1973 P, who was expected to work
until 1985 suffered an injury due to his employer’s, D’s, negligence which would reduce
his capacity to work by 50% for the rest of his working life. Independently of this, in
1975, he contracted a disease that totally incapacitated him. Does D have to pay him 50%
for 3 years or 50% for 12? HL say for 3 years, since “the myelopathy (totally
incapacitating disease) could not be disregarded since the court must provide just and
sufficient but not excessive compensation”.
Lord Wilberforce: there are no overall rules that can govern this type of case that are
universally fair and the best the courts can do is to assess just compensation on a case by
case without rationalisation/exposition of universal guidelines/principles. Bad for legal
certainty + inconsistency potential.
The “vicissitudes” argument was adopted by several judges: that the
contingencies/vicissitudes of life can change a person’s fortunes and it would be wrong to
ignore them when arriving at a fair settlement: the courts “should not speculate when they
know” (Lord E-D). Problem is that this fails to reconcile Jobling with Willoughby. The
House of Lords criticised the ruling in Willoughby on the grounds that it did not comply
with the vicissitudes principle- Lord Reid. The problem with the vicissitudes argument is
that it prioritises “potential causes” over “actual causes”. In this case half the disability
was caused by the negligence and the rest completed by the disease. If the disease had
struck first then it would have been the cause, but as it happens the negligence happened
first and caused half the disability. The fact that another “concurrent cause” (to use the
Willoughby language) operates to complete the disability does not change what the
original cause was or the fact that it is still operating: The vicissitudes argument assumes
that there is only ever one cause, which is incorrect.
Lord Keith said that he would reconcile Willoughby with the present case by saying that
Willoughby was restricted to cases where there were two tortious acts, unlike the present
case. Lords Bridge and E-D imply a desire to overrule Willoughby.
Wilsher v Essex Area Health Authority [1988] AC 1074: Ds messed up the blood
pressure levels when P was a baby with the result that they treated him incorrectly and he
,went blind. The judge ruled that since D had failed to prove that they did NOT cause the
blindness they were liable. HL reversed this and said that causation had to be proven on
the balance of probabilities, the burden being on the plaintiff. Since this had not been
done, there would have to be retrial.
Loss of a Chance
Hotson v East Berkshire Area Health Authority [1987] AC 750: P was injured and taken
to hospital where there was a negligent failure to treat him. He later developed a more
serious injury from the initial one, and the trial judge found that there was a 25% chance
that if P had been treated on time the latter injury would have been prevented. The trial
judge had awarded him 25% of the value of his injury. HL reversed this and held that it
was for P to prove on the balance of probabilities that the negligence of D caused his later
more serious injury. Since he had not, his claim for that injury was dismissed.
Lord Bridge: since, if P proved on the balance of probabilities (i.e. 51%) that the
negligence caused his injury, he would be entitled to the full amount and not merely 51%
of it. Therefore it would be unjust to make D pay a proportion of this where he had not
reached the evidentiary threshold.
Allied Maples Group v Simmons & Simmons [1995] 4 All ER 907: D paid P, solicitors,
to take over a company for them. After completion, D became aware of several claims
that could be made against them as a result of the takeover agreement and sued D. CA
allowed the claim, saying that causality was a question of fact, to be determined on the
balance of probability and that once this fact was established, D was entitled to claim for
damages in full. Where this question relates to a 3rd party and he can show that there was
a substantial/real chance (NOT merely a speculative one) that a 3rd party would have
conferred a benefit on him (or averted a detriment) he can claim for the value of the
benefit foregone. The CA found (Millett LJ dissenting on purely factual grounds) that had
it not been for D’s negligence, P would not be open to the aforementioned claims. Thus
loss of a chance to be indemnified against losses could be compensated where the loss
was dependent on the acts of a third party (ie whether the target company would have
agreed to such indemnities).
Gregg v Scott [2005] UKHL 2: As a result of D’s negligence, P’s cancer was diagnosed
late and his chances of long term survival were reduced as a result from 42% to 25%. P
argued (1) that the reduction in chances of survival WAS injury, or (2) that reduced
chances of survival should give rise to liability in its own right. HL rejected “lost
opportunity” as giving rise to liability. This case was decided on the traditional guidelines
for a tort claim.
Lord Hoffman (majority): The law treats every harmful event as having a single
determinate cause. It is therefore impossible to compensate a person for an act which has
not caused the harmful event. Here on balance of probabilities the impugned treatment
did not ‘cause’ the outcome (it merely reduced P’s survival chances). To allow
, compensation in proportion to ‘chance’ would contradict this fundamental position that
the law takes on causation. Exceptions to the rule, such as loss of a chance where the loss
is dependent on third party conduct, is an arguably unprincipled exception. The Fairchild
exception (see below) is tightly confined. Another consideration is floodgates, since
nearly everything a doctor does affects survival chances by a small percentage.
Minority: Lord Nicholls: floodgates is a bad reason for depriving people of
compensation. He also says that since it is a doctor’s duty to protect a patient’s prospects,
there ought to be a remedy where this duty is abandoned. Lord Hope says that the
enlargement of the tumour itself is physical harm and should be compensated irrespective
of effect on survival chances long term.
Rothwell v Chemical & Insulating Co; Re Pleural Placques Litigation [2006] EWCA 27,
[2006] 4 All ER 1161: see facts in session 1 reading.
Material Risk of Contribution to Harm
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32: Ps had
been exposed to asbestos by different employers over different times and they caught a
disease from it. However it could not be proved which specific exposure caused the
disease or at which moment it was contracted, so that no tortfeasor could be said on the
balance of probabilities to have caused the disease. HL held that in such a case (i.e. the
specifics of this case where the source of the problem is undoubted but it is impossible to
pinpoint a particular moment or D that caused the disease) there was no need to prove
“balance of probabilities.” Instead all that was necessary was that each defendant's
wrongdoing had “materially increased the risk” of contracting the disease. Within these
guidelines, claims could be founded against all the employers.
Lord Bingham: this type of modification is necessary where the injury is caused by slow
build up and not one sudden infliction. There are policy arguments either way for the
principle of the “increase the material risk of harm”. Against it are: (1) an employer for
only a short period of time might be punished; (2) an employer who didn’t cause the
harm might be made liable. However FOR it are (1) the idea that P should be
compensated for injury that his employer should have done more to prevent; (2) to
exclude the rule would be to prevent all claims for injuries which are caused by a
development over time rather than at one moment, as here.
Lord Nicholls: the doctrine is necessary in cases of two or more alternative causes to
prevent patent unfairness: suppose A and B are hunting and shooting carelessly so that
one of them (it is unknown which) shoots and injures passer-by C. If causation had to be
proved beyond reasonable doubt then there would be no compensation. It is more unfair
that a victim should not be compensated than that a hunter who didn’t cause the harm
should be punished (since he is doing something inherently fault-worthy). Where good
policy reasons exist, the court can depart from the “balance of probabilities” rule.
However these reasons must be so good that it is worth depriving D of the protection
afforded to him by the normal evidentiary rule. He also said that “considerable restraint is
1. Causation
General Test
Barnett v Chelsea Hospital [1969] 1 QB 428: P drank some tea which had been laced
with arsenic and he presented himself at D’s hospital since he was vomiting. D told him
to leave and call his own doctor. P died, but it was unclear that even if he had been
admitted to the hospital he would have survived. P’s widow sued for negligence. The
court held that there was proximity since P had presented himself at D’s hospital, and that
D was negligent in not treating him. However it was not proven that on the balance of
probabilities P’s negligence caused D’s death, since he might have died anyway if he had
been admitted to hospital.
Performance Cars v Abraham [1962] 1 QB 33: P had a car collision with X that meant
P’s car needed a respray. He then collided with D, through D’s negligence, which would
of itself have necessitated a respray. P sued D for the cost of a respray. CA ruled that
since P’s car already needed a respray, the need for it did not flow from D’s negligence
and therefore he would not be liable. Lord Evershed MR says to allow P to claim for
damage that merely “would have” been caused by D in other circumstances is absurd:
suppose A chips my windscreen so I have to get a new one and then you chip it: surely
you shouldn’t compensate me because there is no extra damage caused by your action.
Baker v Willoughby [1970] AC 467 (NB CONFINED TO CASES OF TWO TORTIOUS
ACTS BY JOBLING): P walked into the middle of the road and D, driving, ran into him,
causing damage to P’s leg. They both saw each other over 200 yds and neither took
evasive action. The fault was ruled to be 25% P’s and 75% D’s. Shortly after the accident
P was shot in the leg and it had to be amputated immediately. HL held that the subsequent
shooting was irrelevant to the amount of damages that D had to pay, and that D would
have to pay the value of 25% of the damage to the leg overall (i.e. NO reduction despite
the fact that D did not cause the leg to be shot and amputated). The shooting and car
accident were to be treated as concurrent causes of the disability and each was liable for
the full damage to the leg i.e. that D should have to pay the full amount for the long term
damage he would have caused (had there been no shooting) despite the fact that P would
have been shot anyway (and P’s actions made irrelevant).
Lord Pearson: we should take a “unitary and comprehensive” view of the original injury,
assessing it as a “devaluation” in the leg, for which the responsible party should pay
(though only for the proportion of the devaluation for which he was responsible). The
only thing that could change the amount to be paid is a reduction in the extent of the
devaluation e.g. an unexpected recovery OR a shortening of P’s life expectancy i.e. the
period over which the plaintiff will suffer from the devaluation. If another tort occurs
then the new tortfeasor will be liable for the further devaluation. The life-shortening point
is supported by the fact that if an injury costs P 20 years working income by destroying
,his capacity to work, and then after only 1 year P dies of an unrelated event, it would be
unfair to make D pay for 20 years since this would no longer be compensation.
Lord Reid: There were 2 concurrent causes of P’s disability and both tortfeasors should
have to pay for the suffering they cause. This seems logical: The “but for” test would
support Lord Reid’s conclusion since even “but for the shooting” P would still be
disabled. The correct approach is that adopted: to say that each party has to pay for the
“devaluation” that they cause, making a qualification for cases where the extent of the
devaluation has been reduced by something, for example a wonder-cure: this
qualification is made by Lord Pearson. The shooting does not absolve P of responsibility
for disabling D, since even without the shooting D would still have been disabled: it
merely aggravated the situation.
Jobling v Associated Dairies Ltd [1982] AC 794: In 1973 P, who was expected to work
until 1985 suffered an injury due to his employer’s, D’s, negligence which would reduce
his capacity to work by 50% for the rest of his working life. Independently of this, in
1975, he contracted a disease that totally incapacitated him. Does D have to pay him 50%
for 3 years or 50% for 12? HL say for 3 years, since “the myelopathy (totally
incapacitating disease) could not be disregarded since the court must provide just and
sufficient but not excessive compensation”.
Lord Wilberforce: there are no overall rules that can govern this type of case that are
universally fair and the best the courts can do is to assess just compensation on a case by
case without rationalisation/exposition of universal guidelines/principles. Bad for legal
certainty + inconsistency potential.
The “vicissitudes” argument was adopted by several judges: that the
contingencies/vicissitudes of life can change a person’s fortunes and it would be wrong to
ignore them when arriving at a fair settlement: the courts “should not speculate when they
know” (Lord E-D). Problem is that this fails to reconcile Jobling with Willoughby. The
House of Lords criticised the ruling in Willoughby on the grounds that it did not comply
with the vicissitudes principle- Lord Reid. The problem with the vicissitudes argument is
that it prioritises “potential causes” over “actual causes”. In this case half the disability
was caused by the negligence and the rest completed by the disease. If the disease had
struck first then it would have been the cause, but as it happens the negligence happened
first and caused half the disability. The fact that another “concurrent cause” (to use the
Willoughby language) operates to complete the disability does not change what the
original cause was or the fact that it is still operating: The vicissitudes argument assumes
that there is only ever one cause, which is incorrect.
Lord Keith said that he would reconcile Willoughby with the present case by saying that
Willoughby was restricted to cases where there were two tortious acts, unlike the present
case. Lords Bridge and E-D imply a desire to overrule Willoughby.
Wilsher v Essex Area Health Authority [1988] AC 1074: Ds messed up the blood
pressure levels when P was a baby with the result that they treated him incorrectly and he
,went blind. The judge ruled that since D had failed to prove that they did NOT cause the
blindness they were liable. HL reversed this and said that causation had to be proven on
the balance of probabilities, the burden being on the plaintiff. Since this had not been
done, there would have to be retrial.
Loss of a Chance
Hotson v East Berkshire Area Health Authority [1987] AC 750: P was injured and taken
to hospital where there was a negligent failure to treat him. He later developed a more
serious injury from the initial one, and the trial judge found that there was a 25% chance
that if P had been treated on time the latter injury would have been prevented. The trial
judge had awarded him 25% of the value of his injury. HL reversed this and held that it
was for P to prove on the balance of probabilities that the negligence of D caused his later
more serious injury. Since he had not, his claim for that injury was dismissed.
Lord Bridge: since, if P proved on the balance of probabilities (i.e. 51%) that the
negligence caused his injury, he would be entitled to the full amount and not merely 51%
of it. Therefore it would be unjust to make D pay a proportion of this where he had not
reached the evidentiary threshold.
Allied Maples Group v Simmons & Simmons [1995] 4 All ER 907: D paid P, solicitors,
to take over a company for them. After completion, D became aware of several claims
that could be made against them as a result of the takeover agreement and sued D. CA
allowed the claim, saying that causality was a question of fact, to be determined on the
balance of probability and that once this fact was established, D was entitled to claim for
damages in full. Where this question relates to a 3rd party and he can show that there was
a substantial/real chance (NOT merely a speculative one) that a 3rd party would have
conferred a benefit on him (or averted a detriment) he can claim for the value of the
benefit foregone. The CA found (Millett LJ dissenting on purely factual grounds) that had
it not been for D’s negligence, P would not be open to the aforementioned claims. Thus
loss of a chance to be indemnified against losses could be compensated where the loss
was dependent on the acts of a third party (ie whether the target company would have
agreed to such indemnities).
Gregg v Scott [2005] UKHL 2: As a result of D’s negligence, P’s cancer was diagnosed
late and his chances of long term survival were reduced as a result from 42% to 25%. P
argued (1) that the reduction in chances of survival WAS injury, or (2) that reduced
chances of survival should give rise to liability in its own right. HL rejected “lost
opportunity” as giving rise to liability. This case was decided on the traditional guidelines
for a tort claim.
Lord Hoffman (majority): The law treats every harmful event as having a single
determinate cause. It is therefore impossible to compensate a person for an act which has
not caused the harmful event. Here on balance of probabilities the impugned treatment
did not ‘cause’ the outcome (it merely reduced P’s survival chances). To allow
, compensation in proportion to ‘chance’ would contradict this fundamental position that
the law takes on causation. Exceptions to the rule, such as loss of a chance where the loss
is dependent on third party conduct, is an arguably unprincipled exception. The Fairchild
exception (see below) is tightly confined. Another consideration is floodgates, since
nearly everything a doctor does affects survival chances by a small percentage.
Minority: Lord Nicholls: floodgates is a bad reason for depriving people of
compensation. He also says that since it is a doctor’s duty to protect a patient’s prospects,
there ought to be a remedy where this duty is abandoned. Lord Hope says that the
enlargement of the tumour itself is physical harm and should be compensated irrespective
of effect on survival chances long term.
Rothwell v Chemical & Insulating Co; Re Pleural Placques Litigation [2006] EWCA 27,
[2006] 4 All ER 1161: see facts in session 1 reading.
Material Risk of Contribution to Harm
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32: Ps had
been exposed to asbestos by different employers over different times and they caught a
disease from it. However it could not be proved which specific exposure caused the
disease or at which moment it was contracted, so that no tortfeasor could be said on the
balance of probabilities to have caused the disease. HL held that in such a case (i.e. the
specifics of this case where the source of the problem is undoubted but it is impossible to
pinpoint a particular moment or D that caused the disease) there was no need to prove
“balance of probabilities.” Instead all that was necessary was that each defendant's
wrongdoing had “materially increased the risk” of contracting the disease. Within these
guidelines, claims could be founded against all the employers.
Lord Bingham: this type of modification is necessary where the injury is caused by slow
build up and not one sudden infliction. There are policy arguments either way for the
principle of the “increase the material risk of harm”. Against it are: (1) an employer for
only a short period of time might be punished; (2) an employer who didn’t cause the
harm might be made liable. However FOR it are (1) the idea that P should be
compensated for injury that his employer should have done more to prevent; (2) to
exclude the rule would be to prevent all claims for injuries which are caused by a
development over time rather than at one moment, as here.
Lord Nicholls: the doctrine is necessary in cases of two or more alternative causes to
prevent patent unfairness: suppose A and B are hunting and shooting carelessly so that
one of them (it is unknown which) shoots and injures passer-by C. If causation had to be
proved beyond reasonable doubt then there would be no compensation. It is more unfair
that a victim should not be compensated than that a hunter who didn’t cause the harm
should be punished (since he is doing something inherently fault-worthy). Where good
policy reasons exist, the court can depart from the “balance of probabilities” rule.
However these reasons must be so good that it is worth depriving D of the protection
afforded to him by the normal evidentiary rule. He also said that “considerable restraint is
