TORT LAW
2 – Negligence (Causation & Defences)
Tort c3
Causation of Damage
Causation in Fact
Claimants must satisfy judge that:
1. They would not had been harmed had defendant not been negligent
o ‘but for’ test; Barnett
o ‘all or nothing’ approach; Hotson v East Berkshire Area Health Authority
o multiple causes: material contribution approach (Bonnington) or material increase in risk (McGhee)
2. No significant intervening event broke chain of causation between defendant breach & claimant suffering
harm; Rouse (third party acts) Wieland (claimant acts)
o intervening acts (NAI test; Novus Actus Interveniens)
3. The kind of harm suffered was reasonably foreseeable; Wagon Mound No 1 (remoteness in damage)
o ‘similar in type’ rule
o ‘eggshell skull’ rule
The burden for proving causation lies on the claimant
But burden for proving any defence lies on the defendant
- balance of probability
Relevant evidence:
- witness evidence
- criminal convictions
- expert evidence
- documentary evidence
‘But for’ test
But for the defendant’s breach of duty, would the harm to the claimant have occurred?
- was the negligence a cause of the damage
Barnett v Chelsea and Kensington Hospital Management Committee [1969]; man felt ill early in morning; called
casualty department of local hospital; doctor did not examine; told to see his own doctor; died of arsenic
poisoning later that day
- medical evidence: would’ve died even if seen that morning; arsenic poisoning too far advanced
- hospital had breached duty of care, but breach not cause of death; not liable
McWilliams v Sir William Arrol [1962]; defendant employees obliged to provide safety harnesses to employees
but didn’t; McWilliams fell to his death; had history of not wearing harness even when supplied
- employers successfully argued McWilliams wouldn’t have worn harness even if provided; would’ve died
anyway; breach not cause of death
‘All or nothing’ approach
To establish causation, must show on the balance of probabilities that harm suffered was caused by defendant
- ‘more likely than not’
Hotson v East Berkshire Area Health Authority [1987] – claimant fell from tree and injured, then treated
negligently by client – 75% likelihood medical condition would’ve been same irrespective of diagnosis/treatment
- failed to satisfy causation test; 25% < 50%!
, TORT LAW
2 – Negligence (Causation & Defences)
Tort c3
Much more difficult with several possible alternative causes of claimant’s injury:
Wilsher v Essex Area Health Authority [1988]; claimant born prematurely; put in special baby care unit at
hospital; catheter wrongly inserted; baby oversaturated with oxygen; developed condition resulting in blindness
- likely cause was administered too much oxygen; but 5 possible alternative causes! (only one due to
defendant’s breach)
- House of Lords: burden falls on claimant to prove defendant’s breach of duty cause the harm on the
balance of probabilities – not liable
Gregg v Scott [2005]; more recent confirmation of Hotson; claims for loss of chance <50% are not going to
succeed in personal injury actions; but often successful in cases of pure economic loss!
Somewhat contradicted by:
Chester v Afshar [2002]; claimant needed spine operation; asked about risks but claimant failed to warn of very
small risk of serious injury; operation carried out carefully but serious injury still occurred
- surgeon clearly breached duty of care to advise of risks; but had his breach caused the harm?
- claimant admitted would’ve still probs gone for operation with warning; but court decided failure to warn
caused harm
- illogical! definitely not balance of probabilities!
- hard to reconcile with Wilsher & Hotson
Material contribution approach
In a multiple cause case the claimant need not show that defendant breach of duty was only/main cause of
damage – just that materially contributed;
Bonnington Castings Ltd v Wardlaw [1956]; claimant employed for 8 years in shop; got pneumoconiosis by
inhaling air contaminated with noxious dust particles; two causes of noxious dust; ‘guilty dust’ (from machinery
improperly maintained by defendant; breach of duty) and ‘innocent dust’ (alternate source; not in breach)
- House of Lords: claimant succeeded in establishing causation as could show the defendant’s breach of duty
created the ‘guilty dust’ which materially contributed to the harm he suffered
(Not applied in Wilsher; negligence could not be shown to have made material contribution to claimant’s harm)
Material increase in risk?
Exception to material contribution approach; material increase in risk of injury (rather than injury itself)
- now strictly confined to cases of scientific uncertainty
o e.g. mesothelioma – may be only case currently recognised
McGhee v National Coal Board [1973] – claimant not able to prove ‘guilty dust’ connected to defendant’s breach
by failing to provide washing facilities contributed to his dermatitis
- House of Lords: claimant still succeeded; defendant breach had materially increased risk of dermatitis
- appeared to extend material contribution approach to principle of material increase in risk
Sienkiewicz v Greif (UK) Ltd [2011] – casts doubt on any extension!
- SC: found defendant liable based on material increase in risk approach
o However: judgements in case suggested principle of material increase in risk is now strictly limited
to cases of scientific uncertainty
2 – Negligence (Causation & Defences)
Tort c3
Causation of Damage
Causation in Fact
Claimants must satisfy judge that:
1. They would not had been harmed had defendant not been negligent
o ‘but for’ test; Barnett
o ‘all or nothing’ approach; Hotson v East Berkshire Area Health Authority
o multiple causes: material contribution approach (Bonnington) or material increase in risk (McGhee)
2. No significant intervening event broke chain of causation between defendant breach & claimant suffering
harm; Rouse (third party acts) Wieland (claimant acts)
o intervening acts (NAI test; Novus Actus Interveniens)
3. The kind of harm suffered was reasonably foreseeable; Wagon Mound No 1 (remoteness in damage)
o ‘similar in type’ rule
o ‘eggshell skull’ rule
The burden for proving causation lies on the claimant
But burden for proving any defence lies on the defendant
- balance of probability
Relevant evidence:
- witness evidence
- criminal convictions
- expert evidence
- documentary evidence
‘But for’ test
But for the defendant’s breach of duty, would the harm to the claimant have occurred?
- was the negligence a cause of the damage
Barnett v Chelsea and Kensington Hospital Management Committee [1969]; man felt ill early in morning; called
casualty department of local hospital; doctor did not examine; told to see his own doctor; died of arsenic
poisoning later that day
- medical evidence: would’ve died even if seen that morning; arsenic poisoning too far advanced
- hospital had breached duty of care, but breach not cause of death; not liable
McWilliams v Sir William Arrol [1962]; defendant employees obliged to provide safety harnesses to employees
but didn’t; McWilliams fell to his death; had history of not wearing harness even when supplied
- employers successfully argued McWilliams wouldn’t have worn harness even if provided; would’ve died
anyway; breach not cause of death
‘All or nothing’ approach
To establish causation, must show on the balance of probabilities that harm suffered was caused by defendant
- ‘more likely than not’
Hotson v East Berkshire Area Health Authority [1987] – claimant fell from tree and injured, then treated
negligently by client – 75% likelihood medical condition would’ve been same irrespective of diagnosis/treatment
- failed to satisfy causation test; 25% < 50%!
, TORT LAW
2 – Negligence (Causation & Defences)
Tort c3
Much more difficult with several possible alternative causes of claimant’s injury:
Wilsher v Essex Area Health Authority [1988]; claimant born prematurely; put in special baby care unit at
hospital; catheter wrongly inserted; baby oversaturated with oxygen; developed condition resulting in blindness
- likely cause was administered too much oxygen; but 5 possible alternative causes! (only one due to
defendant’s breach)
- House of Lords: burden falls on claimant to prove defendant’s breach of duty cause the harm on the
balance of probabilities – not liable
Gregg v Scott [2005]; more recent confirmation of Hotson; claims for loss of chance <50% are not going to
succeed in personal injury actions; but often successful in cases of pure economic loss!
Somewhat contradicted by:
Chester v Afshar [2002]; claimant needed spine operation; asked about risks but claimant failed to warn of very
small risk of serious injury; operation carried out carefully but serious injury still occurred
- surgeon clearly breached duty of care to advise of risks; but had his breach caused the harm?
- claimant admitted would’ve still probs gone for operation with warning; but court decided failure to warn
caused harm
- illogical! definitely not balance of probabilities!
- hard to reconcile with Wilsher & Hotson
Material contribution approach
In a multiple cause case the claimant need not show that defendant breach of duty was only/main cause of
damage – just that materially contributed;
Bonnington Castings Ltd v Wardlaw [1956]; claimant employed for 8 years in shop; got pneumoconiosis by
inhaling air contaminated with noxious dust particles; two causes of noxious dust; ‘guilty dust’ (from machinery
improperly maintained by defendant; breach of duty) and ‘innocent dust’ (alternate source; not in breach)
- House of Lords: claimant succeeded in establishing causation as could show the defendant’s breach of duty
created the ‘guilty dust’ which materially contributed to the harm he suffered
(Not applied in Wilsher; negligence could not be shown to have made material contribution to claimant’s harm)
Material increase in risk?
Exception to material contribution approach; material increase in risk of injury (rather than injury itself)
- now strictly confined to cases of scientific uncertainty
o e.g. mesothelioma – may be only case currently recognised
McGhee v National Coal Board [1973] – claimant not able to prove ‘guilty dust’ connected to defendant’s breach
by failing to provide washing facilities contributed to his dermatitis
- House of Lords: claimant still succeeded; defendant breach had materially increased risk of dermatitis
- appeared to extend material contribution approach to principle of material increase in risk
Sienkiewicz v Greif (UK) Ltd [2011] – casts doubt on any extension!
- SC: found defendant liable based on material increase in risk approach
o However: judgements in case suggested principle of material increase in risk is now strictly limited
to cases of scientific uncertainty
