NEGLIGENCE: FACTUAL CAUSATION - Cork v Kirby (1952)
“If damage would not have happened without D’s carelessness, D’s breach is not the factual cause. If injury would have happened anyway, D’s breach cannot be said to be the cause.”
*Cl. must establish a causal link between D’s breach & Cl.’s injury. The Q to be asked: “on a balance of probabilities, based on facts, is D’s breach the cause of Cl.’s injury/loss?” A few approaches to FC:
1. But for Test 2. Material Contribution Test 3. Material Increase in Risk Test 4. Mesothelioma Cases (Material Increase in Risk Test adopted)
(D’s breach the only cause) (where multiple possible causes exist & But (alternative to MC test – now mostly (where D is 1 of the sources of asbestos exposure causing M to Cl.
for Test unhelpful) used in mesothelioma cases)
Barnett v CKHMC (1969): Bonnington v Wardlaw (1956): McGhee v NCB (1973): D caused Cl. Fairchild v GFS (2003): MIR test and Lord Bingham’s 6 conditions
- Cl. died of poisoning, D (dr. on call) failed - D negligently exposed Cl. to silica dust – to develop dermatitis, by failing to - D was 1 of 2 employers who negligently exposed Cl. to asbestos resulting in
to attend/treat. OTF Cl. would have died unclear whether failure to maintain swing install washing facilities – increasing mesothelioma
anyway – FC X estd. grinder led to pneumoconiosis or whether Cl.’s contact with brick dust 6 conds. of Lord Bingham:
Cl. would develop this anyway (because of i. Cl. employed by both employers;
#Q: But for D’s failure, would Cl. have silica dust from another equipment) (OTF: #Q: Did D’s failure materially increase ii. Both owed Cl. DOC;
died? D’s breach materially contributed – FC risk of Cl. developing dermatitis? iii. Both breached DOC to Cl. in relation to asbestos exposure;
estd.) (judges opted for this test because iv. Cl. suffers mesothelioma;
YES NO But for Test was not helpful) v. Other exposures/inhalation of asbestos can be ignored;
D x Cause D = Cause #Q: Did D’s failure materially contribute to vi. Evidential gap exists in proving which employer is responsible
FC x satisfied FC satisfied Cl.’s disease? YES NO H: D liable – 6 conds. satisfied – D’s carelessness MIR of mesothelioma to Cl.
D = Cause D x Cause D liable jointly & severally to pay full damages
Other examples: YES NO FC is satisfied FC x satisfied
D = Cause D x Cause Barker v Corus (2006): D was one of the causes of asbestos exposure to Cl. (other
Bolitho: but for pager malfunction and FC satisfied FC x satisfied H: based on common sense, exposures were from Cl.’s self-employment & another employer). Ct. applied
doctor’s failure to attend, would baby inference drawn that D’s failure MIR Fairchild test – FC estd. – But D only liable for his own share of exposure
have died? Ct. accepted – baby would Supplement with: of Cl’s disease because dermatitis is a (proportionate recovery rule)
have died anyway – D would not have cumulative disease.
intubated baby even if attended to baby Bailey v MOD (2008); Wright v CMG S3 Compensation Act 2006:
and pager was functioning (FC X estd.) (2012): NOTE: * Once DOC, B, FC satisfied, S3 applies
- D’s careless is 1 out of 2 possible * This test is used not because there * D = jointly & severally liable for whole damage/ entire claim by Cl. (repeal’s
Chester: but for doctor’s failure to explanations for Cl.’s permanent injury. were multiple causes but because of Barker’s proportionate recovery rule for mesothelioma liability)
disclose risk would Cl. have become H: As long as D’s breach was more than policy and fairness * It doesn’t matter if there are other causes for Cl.’s mesothelioma
paralysed? Ct. found, possibly no, FC estd. minimal/ not negligible, it would have
materially contributed to Cl.’s injury * Bonnington & McGhee departed Sienkiewicz v Grief (2011): even though exposure by D was low level (18%), and
Correia v UH of North Staffordshire NHST from rigidity of But for Test for majority of exposure was from environment – MIR satisfied – D was jointly &
(2017): Chester considered, but for test Williams v Bermuda Hosp (2016): PC used fairness & public policy severally liable to pay full compensation. Note SC’s reasons. (S3 CA 2006 applied)
applied – distinguished on facts – FC X MC test – concluded FC estd. – even
estd. though type of disease indivisible in nature * Wilsher: refused to accept McGhee Zurich v IEGL (2015): mesothelioma case in Guernsey – no equivalent of S3 CA
and MIR test would have been more as creating a binding legal precedent. 2006 – MIR test applied, proportionate recovery rule from Barker v Corus (2006)
NOTE: suitable – MC test preferred Using but for Test in WIlsher FC could used
But for test only useful where D’s breach not be estd. – Cl. could not show that
is the only possible cause and there is NOTE: Use this test when: but for excessive O2 baby would not For NON-M cases, where Cl.’s disease is similar to mesothelioma – MIR test still
evidence to establish whether it caused * more than 1 possible cause have developed blindness applies but court may choose either Fairchild or Barker on liability:
injury. Otherwise the result may be * evidential gap – impossible to determine Heneghan v MDD (2016): proportionate recovery rule preferred over joint &
absurdity/ unfairness: on balance of probabilities, which of the several liability for lung cancer case similar to M disease
Cook v Lewis (1951) many causes is the actual cause
“If damage would not have happened without D’s carelessness, D’s breach is not the factual cause. If injury would have happened anyway, D’s breach cannot be said to be the cause.”
*Cl. must establish a causal link between D’s breach & Cl.’s injury. The Q to be asked: “on a balance of probabilities, based on facts, is D’s breach the cause of Cl.’s injury/loss?” A few approaches to FC:
1. But for Test 2. Material Contribution Test 3. Material Increase in Risk Test 4. Mesothelioma Cases (Material Increase in Risk Test adopted)
(D’s breach the only cause) (where multiple possible causes exist & But (alternative to MC test – now mostly (where D is 1 of the sources of asbestos exposure causing M to Cl.
for Test unhelpful) used in mesothelioma cases)
Barnett v CKHMC (1969): Bonnington v Wardlaw (1956): McGhee v NCB (1973): D caused Cl. Fairchild v GFS (2003): MIR test and Lord Bingham’s 6 conditions
- Cl. died of poisoning, D (dr. on call) failed - D negligently exposed Cl. to silica dust – to develop dermatitis, by failing to - D was 1 of 2 employers who negligently exposed Cl. to asbestos resulting in
to attend/treat. OTF Cl. would have died unclear whether failure to maintain swing install washing facilities – increasing mesothelioma
anyway – FC X estd. grinder led to pneumoconiosis or whether Cl.’s contact with brick dust 6 conds. of Lord Bingham:
Cl. would develop this anyway (because of i. Cl. employed by both employers;
#Q: But for D’s failure, would Cl. have silica dust from another equipment) (OTF: #Q: Did D’s failure materially increase ii. Both owed Cl. DOC;
died? D’s breach materially contributed – FC risk of Cl. developing dermatitis? iii. Both breached DOC to Cl. in relation to asbestos exposure;
estd.) (judges opted for this test because iv. Cl. suffers mesothelioma;
YES NO But for Test was not helpful) v. Other exposures/inhalation of asbestos can be ignored;
D x Cause D = Cause #Q: Did D’s failure materially contribute to vi. Evidential gap exists in proving which employer is responsible
FC x satisfied FC satisfied Cl.’s disease? YES NO H: D liable – 6 conds. satisfied – D’s carelessness MIR of mesothelioma to Cl.
D = Cause D x Cause D liable jointly & severally to pay full damages
Other examples: YES NO FC is satisfied FC x satisfied
D = Cause D x Cause Barker v Corus (2006): D was one of the causes of asbestos exposure to Cl. (other
Bolitho: but for pager malfunction and FC satisfied FC x satisfied H: based on common sense, exposures were from Cl.’s self-employment & another employer). Ct. applied
doctor’s failure to attend, would baby inference drawn that D’s failure MIR Fairchild test – FC estd. – But D only liable for his own share of exposure
have died? Ct. accepted – baby would Supplement with: of Cl’s disease because dermatitis is a (proportionate recovery rule)
have died anyway – D would not have cumulative disease.
intubated baby even if attended to baby Bailey v MOD (2008); Wright v CMG S3 Compensation Act 2006:
and pager was functioning (FC X estd.) (2012): NOTE: * Once DOC, B, FC satisfied, S3 applies
- D’s careless is 1 out of 2 possible * This test is used not because there * D = jointly & severally liable for whole damage/ entire claim by Cl. (repeal’s
Chester: but for doctor’s failure to explanations for Cl.’s permanent injury. were multiple causes but because of Barker’s proportionate recovery rule for mesothelioma liability)
disclose risk would Cl. have become H: As long as D’s breach was more than policy and fairness * It doesn’t matter if there are other causes for Cl.’s mesothelioma
paralysed? Ct. found, possibly no, FC estd. minimal/ not negligible, it would have
materially contributed to Cl.’s injury * Bonnington & McGhee departed Sienkiewicz v Grief (2011): even though exposure by D was low level (18%), and
Correia v UH of North Staffordshire NHST from rigidity of But for Test for majority of exposure was from environment – MIR satisfied – D was jointly &
(2017): Chester considered, but for test Williams v Bermuda Hosp (2016): PC used fairness & public policy severally liable to pay full compensation. Note SC’s reasons. (S3 CA 2006 applied)
applied – distinguished on facts – FC X MC test – concluded FC estd. – even
estd. though type of disease indivisible in nature * Wilsher: refused to accept McGhee Zurich v IEGL (2015): mesothelioma case in Guernsey – no equivalent of S3 CA
and MIR test would have been more as creating a binding legal precedent. 2006 – MIR test applied, proportionate recovery rule from Barker v Corus (2006)
NOTE: suitable – MC test preferred Using but for Test in WIlsher FC could used
But for test only useful where D’s breach not be estd. – Cl. could not show that
is the only possible cause and there is NOTE: Use this test when: but for excessive O2 baby would not For NON-M cases, where Cl.’s disease is similar to mesothelioma – MIR test still
evidence to establish whether it caused * more than 1 possible cause have developed blindness applies but court may choose either Fairchild or Barker on liability:
injury. Otherwise the result may be * evidential gap – impossible to determine Heneghan v MDD (2016): proportionate recovery rule preferred over joint &
absurdity/ unfairness: on balance of probabilities, which of the several liability for lung cancer case similar to M disease
Cook v Lewis (1951) many causes is the actual cause
