Tort Law Tuesday 28th November
CAUSATION AND REMOTENESS OF DAMAGE
Consists of two parts:
1. The conduct of the defendant must have CAUSED the claimant’s damage and;
2. The damage suffered by the claimant must not be too remote.
Causation – First Element
Central question – “was the defendant breach of duty, as a matter of fact, a cause of
damage?”
Known as the BUT FOR TEST.
Linking breach to the damage.
Barnett v Chelsea and Kensington HMC (1969) 1 QB 428
Patient would have died anyways, calling doctor in would not have saved the patient.
Therefore, the doctor delay did not CAUSE the death.
What would have happened if the defendants breach of care had not
occurred?
Proof of Causation
• The but for test is really only the starting point: it can be difficult for the claimant to
prove that it was the defendant's breach which was the cause of his or her damage.
A number of possible causes may exist or it may be difficult to actually prove that ‘x’
state of affairs was the cause of the claimants damage.
Material Contribution/Increase Test
Alternative test to the BUT FOR TEST (this is still used).
Used when:
1. Cases where the science involved could not determine which part of the event in
question caused the health condition OR
2. When there are a number of cases, and it cannot be established which particular
breach caused the damage of the claimant by science.
, Williams v The Bermuda Hospitals Board 2016
Shows material contribution test part 1.
Facts
• Mr Williams attended the hospital complaining of severe abdominal pain.
• After a five-hour delay a CT was conducted.
• His appendix ruptured and he was very seriously ill.
Under the BUT FOR test, the defendant would not be found guilty.
C must prove with more than 50% CERTAINTY that D’s breach caused
injury/damage.
Material Contribution Test – Applied
C must prove that D’s breach materially contributed to injury/damage.
Somebody has to materially (less than 50%) cause the damage.
More than one defendant can be sued.
Used when science cannot help C prove causation or when it is
scientifically impossible to prove what might have happened if there
was not a breach.
McGhee v National Coal Board 1972
A pottery worker developed a serious skin condition at work but it was difficult to
work out what had precisely caused it.
Lord Wilberforce said ‘where a person, by breach of the duty of care creates a risk and
injury occurs within that area the loss should be borne by him unless he shows it has
some other cause”.
The Lords also applied a lower standard of proof – material contribution rather than
BUT FOR test.
The House of Lords have adopted a far more restrictive interpretation of McGhee.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 WLR
Workers exposed to asbestos without precautions.
Worked for more than one employer.
Unable to satisfy the BUT FOR test.
Material increase test was satisfied because there is less than 50% requirement
needed, which was proven, therefore both D’s were liable (joint claim).
CAUSATION AND REMOTENESS OF DAMAGE
Consists of two parts:
1. The conduct of the defendant must have CAUSED the claimant’s damage and;
2. The damage suffered by the claimant must not be too remote.
Causation – First Element
Central question – “was the defendant breach of duty, as a matter of fact, a cause of
damage?”
Known as the BUT FOR TEST.
Linking breach to the damage.
Barnett v Chelsea and Kensington HMC (1969) 1 QB 428
Patient would have died anyways, calling doctor in would not have saved the patient.
Therefore, the doctor delay did not CAUSE the death.
What would have happened if the defendants breach of care had not
occurred?
Proof of Causation
• The but for test is really only the starting point: it can be difficult for the claimant to
prove that it was the defendant's breach which was the cause of his or her damage.
A number of possible causes may exist or it may be difficult to actually prove that ‘x’
state of affairs was the cause of the claimants damage.
Material Contribution/Increase Test
Alternative test to the BUT FOR TEST (this is still used).
Used when:
1. Cases where the science involved could not determine which part of the event in
question caused the health condition OR
2. When there are a number of cases, and it cannot be established which particular
breach caused the damage of the claimant by science.
, Williams v The Bermuda Hospitals Board 2016
Shows material contribution test part 1.
Facts
• Mr Williams attended the hospital complaining of severe abdominal pain.
• After a five-hour delay a CT was conducted.
• His appendix ruptured and he was very seriously ill.
Under the BUT FOR test, the defendant would not be found guilty.
C must prove with more than 50% CERTAINTY that D’s breach caused
injury/damage.
Material Contribution Test – Applied
C must prove that D’s breach materially contributed to injury/damage.
Somebody has to materially (less than 50%) cause the damage.
More than one defendant can be sued.
Used when science cannot help C prove causation or when it is
scientifically impossible to prove what might have happened if there
was not a breach.
McGhee v National Coal Board 1972
A pottery worker developed a serious skin condition at work but it was difficult to
work out what had precisely caused it.
Lord Wilberforce said ‘where a person, by breach of the duty of care creates a risk and
injury occurs within that area the loss should be borne by him unless he shows it has
some other cause”.
The Lords also applied a lower standard of proof – material contribution rather than
BUT FOR test.
The House of Lords have adopted a far more restrictive interpretation of McGhee.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 WLR
Workers exposed to asbestos without precautions.
Worked for more than one employer.
Unable to satisfy the BUT FOR test.
Material increase test was satisfied because there is less than 50% requirement
needed, which was proven, therefore both D’s were liable (joint claim).
