Causation and remoteness of damage

Briefly outline the gist of causation and remoteness

Once a duty of care and breach are established, claimants must also show that the defendant’s breach caused their harm. Two aspects of this:

1. Factual causation - Analysed almost mathematically, using a balance of probabilities test (with some exceptions) to see if the defendant in fact caused the harm.

2. Legal causation - (includes a test of ‘remoteness’) simply asks whether any of the factual causes should be excluded from being seen as a cause in law.

If either of these fail, then the defendant escapes liability.

What are the two overall questions?

1. What are the prerequisite conditions for the harm (factual causation)?

2. What is the ‘relevant’ or ‘real’ cause of it (legal causation)

Begin by explaining the factual causation but for test

It must be established that the harm suffered by the claimant must be caused by the fact that the defendant’s actions fell below the appropriate standard of care for liability to arise.

It asks whether the defendant’s negligent action or omission was a necessary condition for the harm to occur. If the harm would have occurred without the defendant’s carelessness, there is no cause in fact.

What is the ‘but for’ question asked?

But for the defendants carelessness (breach) would the claimant have escaped harm? If the answer is ‘yes’, the cause in fact is identified.

What must the claimant show in order to succeed?

The claimant must only show that it was more likely than not that the defendant’s breach caused their harm.

Give a case example of the ‘but for’ test.

Barnett v Chelsea and Kensington Hospital Management Committee [1969] - the patient would have died anyways even if acting properly. W

What are two problems that make dealing with factual causation difficult?

1. The first problem being situations where there are multiple potential causes of the harm and a lack of, for example, scientific or forensic knowledge making it too difficult (or even impossible) to establish what would have happened in the absence of negligence. Complex medical situations leading to unclear outcomes.

2. The second problem more contentiously covers situations where we can work out the factual cause, but the result appears unjust and we therefore want to reject it.

Explain the idea under there being multiple potential causes

When there is more than one potential cause of harm, it becomes hard to establish, in the absence of clear evidence or proof, that any of the potential causes is more likely than any other to be the cause.

What case is a good example of this?

Wilsher v Essex Area Health Authority [1988] - there was a clear negligent act here where common sense tells us would be the cause of someone’s harm, but if there are alternative possible causes of that harm, especially ‘natural’ ones, we cannot establish that ‘but for’ the negligent act, the claimant would not have suffered. Defendant therefore escapes liability.

Outline two instances where, in the case of multiple potential causes, courts have deviated from the traditional ‘but for’ test?

1. Material contribution to harm

2. Material increase in risk

Outline what the first instance is about and give a good case to exemplify it.

Bonnington Castings Ltd v Wardlaw [1956] - though it could not be said that ‘bit for’ the defendant’s negligence in allowing the ‘guilty’ dust into the air, the defendant would not have suffered the harm. However, the HoL found that because cumulatively the ‘innocent’ and ‘guilty’ dust were more likely to cause harm, it was enough to show that the defendant’s negligence made a material ('more than negligible’) contribution to the condition.

When the ‘but for’ test produced unsatisfactory results, the courts manufactured a way around it.

What was the general idea following Bonnington?

Following Bonnington, where a disease is contracted because of cumulative exposure to toxins (divisible), it need only be proved that the negligent part of that exposure would likely materially contribute to the condition, and not that the negligent exposure was the probable cause of the condition.

Outline the difference between divisible vs indivisible injuries

• Divisible injury is harm that can be separated into distinct parts, so each defendant is only liable for the portion they caused.

• Indivisible injury is harm that cannot be separated, so a defendant may be liable for the whole injury even if there are multiple causes

What is the important authority relating to ID and D injuries?

Michael Holmes v Poeton Holdings Ltd [2023] - this case is authority that the ‘material contribution to harm’ principle applies to both divisible and indivisible injuries, where the evidence supports this. However, it is important to be cautious - in situations where the claimant has a difficulty proving factual causation on ‘but for’ grounds, the material contribution option may not be easier.

Outline the second instance?

Material increase in risk

The rigidity of the ‘but for’ test visited in McGhee v National Coal Board - the question here was whether the claimant’s condition was caused by his innocent exposure to dust or by the ‘guilty’ dust. The HoL said that it was enough that the longer dust stays on the skin, the more there is a risk, because the fact that the risk of the claimant developing the condition was materially increased was enough to establish causation.

In the McGhee case, what must the claimant show?

The claimant must show, on the balance of probabilities, that the alleged negligence materially increased the risk of the harm being suffered.

What was a key development in this area?

A HoL decision in Fairchild v Glenhaven Funeral Services [2002] but this case fits into another category - where the court feels the result of using the ‘but for’ test is an unjust one.

Name the two unjust results categories:

1. ‘Unjust results’ 1: The Mesothelioma exception

2. ‘Unjust results’ 2: Failure to inform

How was the result unjust in Fairchild?

The law lords held that the ‘but for’ test produced an unjust result. The idea that no defendant would be liable for the claimant’s harm, when there was no doubt that the cause had been negligence, sat uncomfortably with them.

Fairchild was therefore an exception to the normal causation principles, where the employers would be jointly and severally liable

What was the next case that followed this?

Barker v Corus UK Ltd [2006] - this was a cause there there was an added complication of a period of self-exposure and a new question regarding apportionment of damage. Defendants were held jointly and severally liable.

What was the apportionment of damage like?

In this case, the HoL agreed that the damages should be apportioned among the defendant’s according to their contribution to the increased risk.

What does Section 3 of the Compensation Act 2006 provide?

Section 3 of the Compensation Act 2006 provides that, where the conditions for applying Fairchild are met (i.e. where negligent exposure to asbestos by a series of employers causes mesothelioma, but it cannot be shown which employer actually, or most likely, caused the disease), any or all employers will be liable for the whole sum of damages.

What case also demonstrates the application of the Fairchild exception?

Sienkiewicz v Greif (UK) Ltd [2011] - this decision tells us that the ‘Fairchild exception’ also applies in mesothelioma cases where only one defendant is proved to have negligently exposed the victim to asbestos, even though there was a risk of developing the disease from a non-negligent exposure.

Outline the second ‘Unjust’' result point?

The second one being about the failure to inform, where the courts departed away from ordinary ‘but for’ causation to secure just results in medical negligence cases involving ‘informed consent’.

What case demonstrates this?

Chester v Afshar [2005] - HoL agreeing with the trial judge that the possibility that the claimant might have consented to surgery in the future was not sufficient to break the causal link between the defendant’s failure to warn and the damage sustained by the claimant.

How did the law lords modify the principles?

They said that the defendant doctor owed her a duty to advise her of the disadvantages of the treatment he proposed and this was closely connected with her ability to give consent and make an informed choice about whether to have treatment.

What cases adds an important aspect to the Chester case?

In Correia v University Hospital of North Staffordshire NHS Trust [2017] - the CoA emphasised that if Chester is to be relied upon it remains necessary for the claimant to prove that, if correctly warned of the risk, they would have declined or deferred the operation.

What are the other three factors after the multiple potential causes and the unjust results?

• Indeterminate causes

• Uncertain actions

• Loss of chance

What do we mean by indeterminate causes?

What is the situation if there is more than one negligent defendant, but neither can be proved to be the cause of the harm suffered? In Fairchild, it was stated that reversing the burden of proof in relation to the ‘two hunters problems’ would be artificial.

Because the ‘but for’ test fails, the law may still hold defendant’s liable using alternative approaches (e.g. material increase in risk).

Explain the uncertain actions?

Another problem arising when either the claim being made relates to something that has not been done, but should have been (an omission), or - more precisely - when we cannot be quite sure what would or should have been done in a given situation.

Causation is basically uncertain because we don’t know what the defendant would have done if they had acted properly.

Explain the loss of chance?

A claimant cannot recover for a lost chance in medical negligence unless it can be shown that the outcome would have been more likely than not (>50%).

What case can demonstrate this?

Hotson v East Berkshire Health Authority [1987] - it could not be shown on the balance of probabilities that Hotson would have avoided the condition had the doctors not been negligent: it was more likely than not that he would have developed the condition even with proper diagnosis. Claim failed.

What was the case that basically ruled out lost chances cases?

Gregg v Scott [2005] - Claim was rejected, the majority stating that the claimant needed to show that the doctor’s negligence made it more likely than not that he could not be cured. At the outset, he was 58% likely to die anyways, so this was not possible.

What did Lord Nicholls say in relation to the lost chance in Gregg?

He basically says that a patient can only recover damages if his original chance of recovery had been more than 50% as not only ‘irrational and indefensible’, but makes the duty of care a doctor owes their patients to take reasonable care ‘hollow’.

What if there are multiple sufficient causes?

Another problem arises where there is more than one defendant, each of whom does pass the ‘but for’ test, but where one of their actions comes later than the other. Or, the later action may be non-tortious, but still capable of giving rise to the harm.

Instead of indeterminate or multiple potential causes, we have what are known as multiple sufficient causes; the question is whether the action of the second party (negligent or otherwise) absolves the original tortfeasor from blame.

How can we put this another way?

Should the original defendant, who is clearly liable for some harm, remain liable after the unrelated actions of another party?

What case is exemplary of this?

Baker v Willoughby [1970] - the HoL said that the original defendant’s negligence continued to operate even after the additional harm caused by the gunshot.

What is another question that can be asked in relation to non-tortious/naturally occurring events?

What is the position when the later event is either non-tortious or even naturally occurring? In such a situation, no one would be liable for the additional harm caused by the later event.

What case demonstrates this?

Jobling v Associated Dairies Ltd [1982] - where a claimant suffers an initial injury caused by the defendant, but later develops an unrelated condition, damages are limited to the period before the supervening condition. Jobling was only compensated up until the point that he contracted the disease.

Jobling is a case where the later ‘sufficient cause’ of the harm complained of overtakes or supersedes the original cause. When this happens, the defendant will be liable only for the damages relating to the extent of the injury they caused, up until the time of the superseding event.

What is the relationship between Jobling vs Baker?

Jobling didn’t explicitly overrule Baker, but it is probable that Baker is now ‘confined to its facts’. It is therefore possible that if a similar situation arose today, the later event, even if tortious or criminal, would supersede the first.

What is legal causation?

Once factual causation has been established, the ‘real’ or ‘operative’ cause in law (legal causation) must still be determined. This involves two distinct tests:

1. Whether the harm was too ‘remote’ a consequence of the defendant’s negligence

2. Whether any subsequent event could be said to have broken the chain of causation stemming from the defendant’s breach.

Explain the remoteness of damage

When a court is asking about the remoteness of the consequence of the defendant’s negligence, it is essentially asking whether the consequences of the breach were so far removed from it as to have been unforeseeable by the defendant (judged by the standard of the ‘reasonable person’).

How can we put this another way?

The defendant may argue that the consequence of their action were not foreseeable - that is, they were too remote. If so, cause in law is not established and the claimant’s case fails. Whether something is too remote is judged considering what was known at the time the breach happened - with foresight, not hindsight.

What case demonstrates this?

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon Mound) (No.1) [1961] - a reasonable person could not have foreseen the fire damage as a possible consequence of the negligent act.

Before the Wagon Mound No.1, a defendant was liable for all direct physical consequences of their negligent act, but following this case, the question asked to establish whether the claimant’s harm is too remote is - ‘Was the kind of damage suffered by the claimant reasonably foreseeable at the time of the breach happening|?’. This remains the primary test for remoteness of damage in negligence.

What is the relationship between the type vs the extent of the damage?

The way the remoteness test is formulated means that only the type of image must be foreseeable, not the extent. If some physical damage is foreseeable consequences of the breach, the amount of physical damage suffered need not be. However this hasn’t always been straightforward (seen in Doughty v Turner Manufacturing Co [1964]).

Outline the ‘eggshell skull rule’

This states that a defendant will be liable for the full extent of the harm they caused, even if the person harmed suffered more harm than might be expected, due to existing weaknesses or frailty. ‘The defendant must take the victim as they find them’ (seen in Smith v Leech Brain & Co Ltd [1962]).

Where was this approach followed but then corrected?

In Reany v University Hospital of North Staffordshire NHS Trust [2014] - describe the correct approach as objectively determining whether the claimant’s needs before and after the negligently caused injury were ‘quantitatively’ or ‘qualitatively’ different.

If quantitatively different (i.e. more of the same), then the defendant is only liable for any additional needs flowing from their negligent act.

If qualitatively different (i.e. different in kind), then a claimant may recover in full).

Explain intervening acts:

Even if the defendant ‘causes’ an accident by starting a sequence or chain of events, a later event might be held to be the ‘real’ cause of the eventuating harm. In such situations, the ‘chain of causation’ (beginning with the defendant’s breach) is said to be ‘broken’.

This is the second part to establishing cause in law (the first being the remoteness).

Fine line between supervening events - cause in fact, and later ‘intervening’ acts (cause in law).

Talk more about later negligent acts

It is clear that subsequent deliberately wrongful acts (e.g. crimes) will be sufficient (Weld-Blundell v Stephens [1920]), but beyond this, the question remains whether a later act must be negligent in order to break the chain of causation.

Whether what happens subsequently is foreseeable is also relevant - if something lily to happen because of the defendant’s negligence, it is unlikely to break the chain of causation.

What case is this expressed in?

Home Office v Dorset Yacht Co Ltd [1970] - a subsequent negligent act of a third party must have been something ‘very likely to happen if it is not to be regarded as a novus actus interveniens’ breaking the chain of causation.

What was established in a different web case?

It was established that later medical negligence will not usually break the chain of causation back to an original defendant’s breach unless it is so ‘grossly negligent as to be a completely inappropriate response to the injury by the defendant.

An intervening act must be something very unforeseeable (Dorset) and the usual position (sadly) being that the ‘ordinary’ medical negligence is not unforeseeable.

What if there are more than one parties being responsible?

If there is more than one party responsible for causing the harm, it is unusual for the courts to find only one party legally responsible. The Civil Liberty (Contribution) Act 1978 means that the court can apportion damages between the parties responsible (or leave them to do this for themselves).

What about the acts of the claimant?

It is rare for the claimants own negligence to break the chain of causation, but this has only been a ‘partial’ defence, meaning that the claimants contribution to their own harm can be assessed and their damages reduced accordingly.

What about if a claimant commits suicide?

A claimant’s own action in committing suicide while being imprisoned (Kirkham v Chief Constable of Greater Manchester Police [1990]) or while being held in police custody (Reeves v Commissioner of Police for the Metropolis [2000]) have been found not to break the chain of causation back to the defendant.