Negligence: Subeh Ashfarah

Causation I Barrister-at-Law, Lincoln’s Inn

LLB(hons), University of London

CAUSATION

Causation is relevant to all torts in which proof of damage is essential. So it is essential to

establish causation in case of negligence claims as well. The basic rule, also known as the ‘but
for test’ can be stated as- If the damage would not have occurred but for the defendant’s
breach of duty, then the breach of duty is a cause of the damage (Barnett v Chelsea and
Kensington Hospital Management Committee). It is for the claimant to show that
the breach of duty was the cause of the damage, and not for the defendant to show that the
breach of duty was not the cause of the damage. It is sufficient to show that on a balance of
probabilities the breach was the cause of the damage, or that it is more likely than not that
the breach was a cause of the damage. In principle it is an ‘all or nothing’ question. If it is
more probable than not that the negligence caused the damage, then the claimant recovers in
full. If it is not more probable than not, even if it is a possibility, then the claimant recovers
nothing.

Few points to remember while applying the but for test:

 If the D failed to diagnose the claimant as having an illness in need of treatment but the C
would have died even if the proper diagnosis or treatment had been given there will be no
liability (Barnett).
 If the claimant fell overboard into icy water and the defendant’s rescue effort was
inadequate. But if the claimant have perished in the cold water before even a competent
rescuer could have saved her there will be no liability (Ogopogo).
 There may be doubt about the D’s subsequent behaviour even if there was no negligence-
Bolitho: (discussed earlier). In this case the doctor was in breach of her duty to attend the
child. However, whether the doctor’s failure to attend caused the plaintiff’s damage
depended on what she would have done had she turned up. If the plaintiff had been
intubated, the respiratory difficulties would not have resulted in cardiac arrest. But the
doctor successfully argued that if she had attended she would not have intubated the child
(which would not have been negligent because it was in accordance with a respectable body
of professional opinion) and would not have saved the patient. The child would still have
been dead even if she had performed her duty by attending. Therefore her culpable failure to
attend was not a cause of the death.
 There may be doubt about the C’s subsequent behaviour even if there was no negligence-
McWilliams v Sir William Arrol: Employer had been negligent in failing to provide a
safety harness and the worker fell to his death. It was clearly established that had the
defendant provided a safety harness, he would not have worn it. There was no liability.
 Negligence: Subeh Ashfarah
Causation I Barrister-at-Law, Lincoln’s Inn
LLB(hons), University of London

 The defendant doctor may have failed to warn the patient about the risks of treatment but if
the patient have decided to have the treatment anyway, the failure to warn cannot be a cause
of the damage if one of the risks occurs. This issue was considered by the House of Lords in
Chester v Afshar. Here, the claimant did not show that she would probably never have
had the operation, but she did show that she would have taken her time and consulted
friends and therefore would not have had the actual operation on the particular day that she
did have it. The House of Lords accepted that she had therefore established that the breach
of duty was a cause of her injury. In this case, the disease was such that it rarely occurred
without any reason, it did not occur because of any problem in the C’s body.

Multiple Causes
Application of ‘but for test’ becomes a bit difficult in certain situations involving more than
one possible cause of damage or two independent consecutive causes causing the same
damage. How causation is established in such cases is discussed below in turn:
1. Uncertainty of Facts: Classic example is the Canadian case of Cook v Lewis, when two
hunters negligently fired their guns in the direction of the claimant. One bullet hit him, but it
was not established which gun had fired that bullet. In the absence of the required proof, it
was held that both defendants should be liable.
 In Bonnington Castings Ltd v Wardlaw a steel worker who was exposed to noxious
dust over a period of years, as the result of his employer’s negligence, contracted a
progressive disease. However, some of the dust to which he was exposed was from a ‘non-
negligent’ source and there was no evidence of the proportions of negligent and non-
negligent exposure to the dust, so the ‘but for’ test could not be satisfied. The House of Lords
held that in these circumstances causation could be established because the employer’s act or
omission made a ‘material contribution’ to the harm which constituted an application of,
or an exception to, the ‘but for’ test.
 If the claimant cannot positively prove that the defendant’s breach of duty caused the
damage, the court may ask if the defendant’s negligence has materially increased the
risk of damage occurring. In such cases it is sufficient for the claimant to show that the
defendant’s negligent conduct made the injury more probable. In McGhee v National
Coal Board, the P contracted dermatitis and alleged that if washing facilities had been
provided he would not have developed the disease. The medical evidence was unable to show
that had washing facilities been provided he would have escaped the disease. However, the
evidence did show that the provision of showers would have materially reduced the risk of
dermatitis. The House of Lords held the defendants liable. However, McGhee was
 Negligence: Subeh Ashfarah
Causation I Barrister-at-Law, Lincoln’s Inn
LLB(hons), University of London

distinguished in Wilsher v Essex Area Health Authority, The House of Lords held that
the plaintiff must establish that the defendant’s breach of duty was at least a material
contributory cause of the harm. Showing the D’s negligence to be one out of five possible
causes of the P’s blindness was not evidence that it was the cause. In McGhee the plaintiff
had established his disease was caused by the brick dust; the only question was whether the
additional period of exposure to the brick dust had contributed to his dermatitis.
Asbestos Cases:
 In Fairchild v Glenhaven Funeral Services Ltd [2002], the approach in McGhee was
followed. The claimants had all worked for more than one employer over many years. The
employers, in breach of their duty, exposed the claimants to asbestos fibres which caused
asbestos-induced mesothelioma (a form of cancer). It was impossible to form any view about
whose fibres had triggered the cancer. Some of the employers had gone out of business and
could not now be sued. The Court of Appeal held that none of the employers were liable
because the claimants could not prove against any of them that their fibres had caused the
cancer. The House of Lords held that they were all liable, so long as the evidence remained
inconclusive. On the balance of probabilities each defendant’s wrong-doing had materially
increased the risk of the claimants contracting the disease and this was to be treated as proof
that each defendant had materially contributed to it. The decision in McGhee was applied
and the ordinary ‘but for’ approach to causation was varied. These appeals raised conflicting
policy considerations but their Lordships found the injustice of denying a remedy to
employees who had suffered grave harm to outweigh the potential unfairness in imposing
liability on successive employers who could not be proved to have caused the harm.
Later, in Barker v Corus UK Ltd [2006] the House of Lords partially reversed the ruling
in Fairchild to the extent that it held that liability was several rather than joint. As a
consequence, although a D could still be liable without proof of causation, his liability could
only extend to the relative proportion to which he could have contributed to the chance of
the outcome. The D’s liability was therefore limited to the extent that its negligence exposed
the C to the risk of contracting the disease. This decision was seen as a victory for insurers
but it met with strong resistance from trade unions and victim support groups. It led to the
introduction of emergency legislation to restore the Fairchild position of joint and several
liability in cases of mesothelioma. The Compensation Act 2006 (s.3) provides that where the
employee has contracted mesothelioma as a result of exposure to asbestos causation can be
established by showing that the exposure made ‘a material contribution to the risk’.
 In cases where there was a tortious as well as an environmental exposure to asbestos, it is not
necessary for a claimant to show that the risk arising from the tortious exposure was more
 Negligence: Subeh Ashfarah
Causation I Barrister-at-Law, Lincoln’s Inn
LLB(hons), University of London

than twice the risk arising from the non-tortious causes. It is sufficient to show that the
tortious exposure materially increased the risk of mesothelioma. As stated by the CA in
Sienkiewicz v Greif (UK) Ltd [2009], in mesothelioma cases a claimant could establish
causation by showing that the workplace exposure to asbestos had materially increased the
risk of the employee developing the disease. Interpreting s.3(1) of the Compensation Act
2006, the Court said the intention of Parliament was to reflect the common law
requirements of causation in mesothelioma cases, which required proof of causation by
reference to a material increase in risk, not the normal test of causation.
 In Rothwell v Chemical & Insulating Co. Ltd., The appellants had been negligently
exposed to asbestos at work and developed pleural plaques. Their case was put to the House
of Lords on three main grounds: a) Pleural plaques alone represent damage- Lord Hoffman
rejected this. He said pleural plaques cause no symptoms, do not increase susceptibility to
other disease or shorten life expectancy and had had no effect on the health of the appellants.
b) Pleural plaques plus anxiety about the risks of developing another asbestos related
disease “aggregate” to damage. This was also rejected unanimously by the HL. Neither the
pleural plaques nor anxiety without psychiatric injury represented damage in law on their
own and they could not be linked together when neither one nor the other had any value in
law. c) Psychiatric and physical injury developing from general anxiety (One appellant, had
developed a full blown psychiatric injury and irritable bowel syndrome through his anxiety
about the pleural plaques). The HL dismissed his claim and ruled the risk of asbestos related
disease in this claim would not cause a psychiatric illness to a person of reasonable fortitude
and the HL denied to extend the principle of Page v Smith to cover this case.
2. Independent and consecutive causes of the same damage:
The House of Lords has considered this problem in Baker v Willoughby and Jobling v
Associated Dairies.

In Jobling, C had been injured in an industrial accident and permanently disabled. This led
to a 50 per cent reduction in his earning capacity. Some years later, before damages had been
assessed, he was found to be suffering from a disabling disease that rendered him unfit for
work. The House decided that the defendant was not required to compensate for the losses
after the onset of this disease. The House was critical of (but did not overrule) the earlier
decision in Baker.

In Baker, his leg had been permanently damaged in a road accident. He had to change his
job and was shot by robbers (who were of course tortfeasors but were never found) and as a
result his leg was amputated. The defendant admitted negligence but argued that his
Negligence: Subeh Ashfarah
Causation I Barrister-at-Law, Lincoln’s Inn
LLB(hons), University of London

responsibility ended when the plaintiff was shot and therefore all losses from the date of the
shooting flowed from the robbery. The House had held that the damage was not subsumed in
the new tort, but the negligent motorist continued to be answerable for the damage to the leg
(and its continuing economic and other consequences). There would be an obvious
harshness if Baker were to lose his damages because he was the victim of two torts and not
just one, but it is not easy to formulate a principle explaining why Baker’s claim was not
extinguished, but Jobling’s was.

It is necessary to stress that both these cases were concerned with continuing liability for the
consequences of the original injury and not with liability for the additional consequences of
the second injury. It was not, for instance, argued that the defendant in Baker was liable for
the amputation. Those situations are considered in the second handout.