W3 – CAUSATION
LOSS
Loss/damage is the gist of a claim in negligence.
No claim unless C can show that he can identify some loss which connected to D’s
breach of duty.
What sort of connection?
THE LAW OF CAUSATION
The legal rules concerning what counts as a sufficient connection between D’s
breach and C’s loss are often divided in two:
o FACTUAL CAUSATION – Can we in fact connect D’s breach and C’s loss?
o LEGAL CAUSATION/ REMOTENESS – Is the sort of connection which
exists between D’s breach and C’s loss such as to justify D being held
liable for that loss?
BUT FOR TEST
Would C have suffered BUT FOR D’s breach? (notice similarity to criminal law).
Barnett v Chelsea and Kensington Hospital:
o A guy drinks some tea with arsenic in and goes hospital feeling unwell
(poisoned). Doctor says go home just an upset tummy. The guy dies.
Negligence against hospital claim is made. Did the negligence cause his
death? The court held NOPE. The poison was already too far into his
system even though he was still alive so the hospital could do nothing. The
same harm would have been suffered even if. The same fact would have
been caused.
Any event has MULTIPLE CAUSES. E.g. if you have a car crash in the morning it
could be because you had a 9am job, because you did not have coffee, because
your boss forced you to come in even if you are ill etc. In tort law you have to
look at net causes, as in the Barnett case. Was the negligent party’s behaviour A
cause to the breach of duty. MULTIPLE BUT FOR CAUSES CAN EXIST. THERE
IS NO SUCH THING AS A SINGLE FACTUAL CAUSATION IN TORTS.
Divisible injuries: injury could have happened differently.
PROOF
What would have happened if care was taken? Element of uncertainty here, if
we consider how the defendant’s actions would have changed the outcome. At
trial, people tell different stories about what happened so the court has to
figure this out. The balance of probabilities is followed in civil courts. The
claimant’s story is more likely than not to be true.
BURDEN OF PROOF ON C:
o Balance of probabilities.
, o It is more likely than not that C would not have suffered the loss but for
D’s breach?
o Wilsher v Essex AHA
Premature baby born and hospital screws up in taking care of the
baby in the hospital. They have a wrong measure of how much
oxygen it needs and they give it too much so the baby goes blind.
This was a basic error. The parents claimed negligence. The
claimant’s had to prove that the hospital was negligent. Expert
opinion showed that the amount of oxygen (negligence) DID cause
the harm (blindness) to the baby. But there was only ONE
negligent action the hospital made. The baby was already very ill.
The court said that on the balance of probabilities that one of the
5 causes are negligent so weighing it up there is NO negligence on
the hospital’s part even though they did not know for sure if the
oxygen was the main cause for the baby becoming blind.
WRONG RESULTS
The but for test sometimes give answers which look wrong. It is still used in
many areas of law and has common sense.
E.g. C is about to embark on a trek across the desert. D1 poisons the water in his
bottle. D2 drills a hole in the bottle so the contents leak out. C does not notice
until all of the contents have escaped. C dies.
WHO CAUSED C’S DEATH?
o BUT FOR D1’S ACTIONS, C WOULD HAVE STILL DIED
o BUT FOR D2’S ACTIONS, C WOULD HAVE STILL DIED
EXCEPTIONS
Material contribution to the risk of injury
o McGhee v National Cool Board: Dermatitis through exposure to dust
everyday at work. McGhee brings a claim against the Board. Negligence
because he did not have proper facilities to have himself cleaned. All he
could do was get on his bike and go all the way home to get cleaned but by
then it was too late. The HofL accept that a breach of duty is there
since the Board could easily make showers at the work place. THE
QUESTION WAS THAT IF THERE WAS SHOWERS, WOULD HE GET
DERMATITIS ANYWAY? Medical evidence said the longer you keep the
dust on you the more likely you get the illness BUT was the extra 30 mins
of him going all the way home added to his chance of getting dermatitis?
The balance of probabilities said that the extra time was not a major
difference in him being exposed to the dust everyday anyway. McGhee
would fail if the but for test was used as well as balance of probabilities…
LOSS
Loss/damage is the gist of a claim in negligence.
No claim unless C can show that he can identify some loss which connected to D’s
breach of duty.
What sort of connection?
THE LAW OF CAUSATION
The legal rules concerning what counts as a sufficient connection between D’s
breach and C’s loss are often divided in two:
o FACTUAL CAUSATION – Can we in fact connect D’s breach and C’s loss?
o LEGAL CAUSATION/ REMOTENESS – Is the sort of connection which
exists between D’s breach and C’s loss such as to justify D being held
liable for that loss?
BUT FOR TEST
Would C have suffered BUT FOR D’s breach? (notice similarity to criminal law).
Barnett v Chelsea and Kensington Hospital:
o A guy drinks some tea with arsenic in and goes hospital feeling unwell
(poisoned). Doctor says go home just an upset tummy. The guy dies.
Negligence against hospital claim is made. Did the negligence cause his
death? The court held NOPE. The poison was already too far into his
system even though he was still alive so the hospital could do nothing. The
same harm would have been suffered even if. The same fact would have
been caused.
Any event has MULTIPLE CAUSES. E.g. if you have a car crash in the morning it
could be because you had a 9am job, because you did not have coffee, because
your boss forced you to come in even if you are ill etc. In tort law you have to
look at net causes, as in the Barnett case. Was the negligent party’s behaviour A
cause to the breach of duty. MULTIPLE BUT FOR CAUSES CAN EXIST. THERE
IS NO SUCH THING AS A SINGLE FACTUAL CAUSATION IN TORTS.
Divisible injuries: injury could have happened differently.
PROOF
What would have happened if care was taken? Element of uncertainty here, if
we consider how the defendant’s actions would have changed the outcome. At
trial, people tell different stories about what happened so the court has to
figure this out. The balance of probabilities is followed in civil courts. The
claimant’s story is more likely than not to be true.
BURDEN OF PROOF ON C:
o Balance of probabilities.
, o It is more likely than not that C would not have suffered the loss but for
D’s breach?
o Wilsher v Essex AHA
Premature baby born and hospital screws up in taking care of the
baby in the hospital. They have a wrong measure of how much
oxygen it needs and they give it too much so the baby goes blind.
This was a basic error. The parents claimed negligence. The
claimant’s had to prove that the hospital was negligent. Expert
opinion showed that the amount of oxygen (negligence) DID cause
the harm (blindness) to the baby. But there was only ONE
negligent action the hospital made. The baby was already very ill.
The court said that on the balance of probabilities that one of the
5 causes are negligent so weighing it up there is NO negligence on
the hospital’s part even though they did not know for sure if the
oxygen was the main cause for the baby becoming blind.
WRONG RESULTS
The but for test sometimes give answers which look wrong. It is still used in
many areas of law and has common sense.
E.g. C is about to embark on a trek across the desert. D1 poisons the water in his
bottle. D2 drills a hole in the bottle so the contents leak out. C does not notice
until all of the contents have escaped. C dies.
WHO CAUSED C’S DEATH?
o BUT FOR D1’S ACTIONS, C WOULD HAVE STILL DIED
o BUT FOR D2’S ACTIONS, C WOULD HAVE STILL DIED
EXCEPTIONS
Material contribution to the risk of injury
o McGhee v National Cool Board: Dermatitis through exposure to dust
everyday at work. McGhee brings a claim against the Board. Negligence
because he did not have proper facilities to have himself cleaned. All he
could do was get on his bike and go all the way home to get cleaned but by
then it was too late. The HofL accept that a breach of duty is there
since the Board could easily make showers at the work place. THE
QUESTION WAS THAT IF THERE WAS SHOWERS, WOULD HE GET
DERMATITIS ANYWAY? Medical evidence said the longer you keep the
dust on you the more likely you get the illness BUT was the extra 30 mins
of him going all the way home added to his chance of getting dermatitis?
The balance of probabilities said that the extra time was not a major
difference in him being exposed to the dust everyday anyway. McGhee
would fail if the but for test was used as well as balance of probabilities…
