Negligence: Causation and Remoteness
a. Introduction
Tests
o But-for test (apply first)
o Material Contribution to Injury
o Material Contribution to Risk (only in very limited situations)
PQ Approach
o D has a duty of care & breached it. Did D’s breach of the duty of care cause C’s
loss?
o Novus actus?
o Remoteness?
b. ‘But-For’ Test
But for D’s breach of duty, would C have suffered the harm?
Established on balance of probabilities if chance of causation exceeds 50%, claim
succeeds
Barnett v Chelsea
o C was ill and went to hospital doctor (D) was not feeling well negligently told
patient to see GP the next day C suffered from arsenic poisoning died the next
day
o Held that on the balance of probabilities, chance of causation fell below 50% no
causation no liability
o Even if D assessed C property, could only admit C they next day and administer
antidote after would have been too late
bi. Balance of Probabilities
Not possible to claim for the loss of a chance, as adverse outcome had not yet occurred
Hotson v East Berkshire
o C fell and hurt his hip hospital examined him negligently and sent him home C
developed avascular necrosis
o But C could only that he had a 25% chance of avoiding the condition if he was properly
diagnosed on the balance of probability, claim fails
o C tried to claim that hospital deprived him of the 25% chance of avoiding condition
held that he could not claim for the probability of damage
Gregg v Scott
o D misdiagnosed cancerous a lump under C’s arm as harmless C went to see another
doctor who correctly identified
o If C had been properly diagnosed the first time would have a 42% chance of
, Negligence: Causation and Remoteness
recovery now only 25%. Case was 7 years after C started treatment C was still
disease free
o Held that C could not claim for the probability of damage
o Lord Phillips: Since C was still alive 7 years after chance of recovery was much
higher than 25%
o Lord Hoffmann
o The law commits that you can always identify a particular cause for damage
but a reduced probability in avoiding a damage suggests that you are unsure
whether that damage has been avoided
o Lord Nicholls (dissenting)
o Medical practice is inherently uncertain should recognise that a reduced
chance of recovery constitutes actionable damage
o All or nothing approach does not make sense where C’s prospects of
recovery are deemed as non-existent as long as they fall short of 50%
unprincipled construction
o Baroness Hale
o If loss of chance is acceptable as actionable damage C with a 60%
probability of survival should only be awarded 60% of the damages instead of
the full 100%
o This change in how the law views damages is too radical for the HoL to decide
c. Material Contribution to Injury
o Use when you have several causes working together to produce the damage (eg. 2
hunters shoot the same person at the same time)
o Material contribution requires a more than minimal contribution
Heneghan
o Lord Dyson
o If cause is cumulative use material contribution to damage test
o If cause is divisible (a single instance) use material contribution to risk test
Bonnington Castings v Wardlaw
o C worked in D’s workshop for 8 years suffered illness from inhaling silicon dust
(caused cumulatively)
o Two possible causes
o From operating a pneumatic hammer, where D was not negligent
o From swing grinders, where D was negligent
a. Introduction
Tests
o But-for test (apply first)
o Material Contribution to Injury
o Material Contribution to Risk (only in very limited situations)
PQ Approach
o D has a duty of care & breached it. Did D’s breach of the duty of care cause C’s
loss?
o Novus actus?
o Remoteness?
b. ‘But-For’ Test
But for D’s breach of duty, would C have suffered the harm?
Established on balance of probabilities if chance of causation exceeds 50%, claim
succeeds
Barnett v Chelsea
o C was ill and went to hospital doctor (D) was not feeling well negligently told
patient to see GP the next day C suffered from arsenic poisoning died the next
day
o Held that on the balance of probabilities, chance of causation fell below 50% no
causation no liability
o Even if D assessed C property, could only admit C they next day and administer
antidote after would have been too late
bi. Balance of Probabilities
Not possible to claim for the loss of a chance, as adverse outcome had not yet occurred
Hotson v East Berkshire
o C fell and hurt his hip hospital examined him negligently and sent him home C
developed avascular necrosis
o But C could only that he had a 25% chance of avoiding the condition if he was properly
diagnosed on the balance of probability, claim fails
o C tried to claim that hospital deprived him of the 25% chance of avoiding condition
held that he could not claim for the probability of damage
Gregg v Scott
o D misdiagnosed cancerous a lump under C’s arm as harmless C went to see another
doctor who correctly identified
o If C had been properly diagnosed the first time would have a 42% chance of
, Negligence: Causation and Remoteness
recovery now only 25%. Case was 7 years after C started treatment C was still
disease free
o Held that C could not claim for the probability of damage
o Lord Phillips: Since C was still alive 7 years after chance of recovery was much
higher than 25%
o Lord Hoffmann
o The law commits that you can always identify a particular cause for damage
but a reduced probability in avoiding a damage suggests that you are unsure
whether that damage has been avoided
o Lord Nicholls (dissenting)
o Medical practice is inherently uncertain should recognise that a reduced
chance of recovery constitutes actionable damage
o All or nothing approach does not make sense where C’s prospects of
recovery are deemed as non-existent as long as they fall short of 50%
unprincipled construction
o Baroness Hale
o If loss of chance is acceptable as actionable damage C with a 60%
probability of survival should only be awarded 60% of the damages instead of
the full 100%
o This change in how the law views damages is too radical for the HoL to decide
c. Material Contribution to Injury
o Use when you have several causes working together to produce the damage (eg. 2
hunters shoot the same person at the same time)
o Material contribution requires a more than minimal contribution
Heneghan
o Lord Dyson
o If cause is cumulative use material contribution to damage test
o If cause is divisible (a single instance) use material contribution to risk test
Bonnington Castings v Wardlaw
o C worked in D’s workshop for 8 years suffered illness from inhaling silicon dust
(caused cumulatively)
o Two possible causes
o From operating a pneumatic hammer, where D was not negligent
o From swing grinders, where D was negligent
