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Negligence: causation and remoteness of damage
Once a breach of duty has been established the claimant must then show: that, as a matter of fact, that defendant's breach of duty has resulted in injury or damage (the causation issue)
that the injury or damage is sufficiently closely connected to the breach (the remoteness issue).
The issues of causation and remoteness are relevant to the law of tort generally but are dealt with in the context of negligence because that is where most of the problems have arisen. If "but for" the defendant's negligent conduct the damage would not have happened then that negligence is the cause of the damage.
Where causation is established, the question of remoteness of damage then arises; liability may still be avoided if the defendant can show that the damage suffered was too remote a consequence of the breach of duty, either because harm of that type was not reasonably foreseeable, or because it would not be reasonable to impose liability for that kind of harm.
Causation: the ‘but for test’ The case of Barnett v Kensington and Chelsea Hospital (1969) established what is known as the "but for" test: 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.
In this case the plaintiff's husband was one of three night watchmen who went to the defendant's hospital complaining of vomiting. The nurse on duty consulted the casualty doctor by telephone and was instructed by him to tell the three men to go home to bed and to call their own doctors. Soon afterwards the plaintiff’s husband died of arsenic poisoning. There was no dispute that in failing to examine the plaintiff's husband the doctor was negligent; the issue to be decided was whether the doctor's breach of duty had caused the man's death.
The key question was whether the harm would not have occurred "but for" the defendant's breach of duty. The claim failed because the hospital was able to produce evidence to show that even if the deceased had been examined and treated with proper care, he would still have died. Since the death would have occurred in any event the defendant's breach of duty was not a factual cause.
In Bolitho v City and Hackney Heath Authority (1998) the doctor, in breach of her duty, failed to attend a two-year-old patient in the defendant's hospital. The child suffered respiratory failure and cardiac arrest from which he subsequently died. It was accepted that, having been called to attend on more than one occasion by a nursing sister, the doctor was in breach of her duty. The issue before the court was causation; did the doctor’s breach of duty cause the child's injuries?
Whether the doctor's failure to attend caused the damage depended on what she would have done had she turned up. If the child had been intubated (to provide an airway) the
respiratory difficulties would not have resulted in cardiac arrest. However, the doctor argued that even if she had attended she would not have intubated, and therefore the cardiac arrest would have occurred in any event (no "but for" causation).
Both the claimant and the defendant called distinguished medical experts to determine whether the professional standard of care required any doctor who attended the child to intubate. The House of Lords accepted that even if the doctor had attended she would not have intubated and this 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 therefore 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 how the claimant would subsequently have behaved if the defendant had done what should have been done. In McWilliams v Sir William Arrol & Co Ltd (HL, 1962), an experienced workman fell to his death because he was not wearing a safety harness. Although the employer was in breach of duty for failing to provide a harness, the question was whether the deceased employee would have used it if it had been provided. On the evidence, the deceased would probably not have worn the harness and the accident would still have occurred. Therefore, the employer’s failure to provide a harness was not the cause of the injuries.
In Chester v Afshar (2004), there was no breach of duty in respect of the procedure undertaken by the defendant neurosurgeon. However, the claimant suffered paralysis during the operation and she brought an action against the defendant claiming that he was in breach of duty in failing to advise her of the risk. The issue was one of causation; the claimant argued that she had not been given adequate warning of a 1 - 2 per cent risk of paralysis before she consented to the operation. Had she been aware of the risks of the proposed surgery she would not have consented to the operation taking place so soon and also, before deciding what to do, she would have sought a second or possibly even a third opinion. The House of Lords (majority) decision in favour of the claimant could not be based on conventional causation principles because the risk of which she should have been warned was not created or increased by the failure to warn. Nevertheless, the "but for" test was satisfied on the ground that the claimant would not have had the operation when she did if the warning had been given. Where a risk that eventuates falls within the scope of a duty to warn, the "but for" test of causation may be satisfied on grounds of policy. In such circumstances the injury may be regarded as having been caused, in the legal sense, by the breach of that duty.
Causation: damages for loss of a chance, special problems and multiple causes
Damages for loss of a chance The claimant must establish, on balance of probabilities, that the defendant’s negligence caused the damage suffered. There is no recovery for loss of chance.
This is illustrated by Hotson v East Berkshire Area Health Authority (1987) where the claimant fell from a tree and injured himself. The hospital failed correctly to diagnose and treat his injury for some days. In due course he suffered a wasting (necrosis) of the hip
steel worker who had been exposed to noxious dust over a period of years as the result of his employer’s negligence, contracted a progressive disease. The defendant’s breach of duty was not the sole or principal cause of the damage, but it “materially contributed” to the development his illness. However, some of the exposure to which the worker 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 and this constituted an application of, or an exception to, the but-for test.
“A material increase in risk” In McGhee v National Coal Board (1973) the House of Lords established the principle that if the claimant cannot positively prove that the defendant's breach of duty caused the damage, it is sufficient to show that the defendant's negligent conduct made the injury more probable. In this case the plaintiff worked at the defendant's brick kilns where he contracted dermatitis as a result of exposure to abrasive dust at work. His employers were not at fault for the exposure during the normal course of his work, but were in breach of statutory duty in failing to provide washing facilities with the result that he was caked in dust for longer than necessary as he cycled home.
Dermatitis results from a single episode where the dust reacts with a susceptible area of skin, which produces an immune reaction. This could have been in the first minutes of exposure, or at a later stage if his skin became damaged and susceptible. However, the evidence did show that the provision of showers would have materially reduced the risk of dermatitis and the plaintiff succeeded on the ground that it was sufficient to show that the defendants' breach materially increased the risk of injury, even though medical knowledge was unable to establish the breach as the probable cause.
Note that this case was distinguished in Wilsher v Essex Area Health Authority (1988) where a premature baby was negligently given excessive oxygen. It is known that excessive oxygen given to premature babies can lead to blindness and the plaintiff alleged that this was the cause of his blindness. But there were up to five possible causes of the plaintiff's injury, any one of which might have caused his blindness. The House of Lords held that the burden of proof remained with the plaintiff who must establish that the defendant's breach of duty was at least a material contributory cause of the harm. Showing the defendant's negligence to be one out of five possible causes of the plaintiff'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.
Fairchild : multiple defendants. In Fairchild v Glenhaven Funeral Services Ltd (2002) it could not be proved which of Fairchild’s former employers' breach of duty was the actual cause of his mesothelioma. This is a cancer of the lining of the lungs or abdomen almost exclusively caused by exposure to asbestos. Fairchild was exposed to asbestos by a number of employers, all of whom were in breach of statutory duty. While the link between asbestos and mesothelioma is well- established, the exact causation of the disease is still unclear. All experts agree that it is not
the result of cumulative exposure. It seems that a single asbestos fibre must make contact with a cell which is defective, and this triggers the cell into becoming cancerous, although the process may be more complex. As the cancer may only develop many years later, it is quite impossible to identify when the initial process occurs. Each employer denied liability on the basis that the claimant could not prove it was ‘their’ asbestos which made the critical contact. The High Court and Court of Appeal dismissed the action by applying the ‘but-for’ test.
The question for the House of Lords was whether in these circumstances the claimant needed to satisfy the "but for" test. The House of Lords applied and extended McGhee which had varied the ordinary "but for" approach to causation_._ On the balance of probabilities each defendant's wrong-doing had materially increased the risk of the claimant's contracting the disease. It was sufficient to show that the asbestos exposure for which any one defendant was responsible had contributed materially to the risk which in fact materialised.
Note: 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. According to Lord Nicholls: "The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold 'but for' test of causal connection. Inhalation of asbestos dust carries a risk of mesothelioma. That is one of the very risks from which an employer's duty of care is intended to protect employees. Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment. A former employee's inability to identify which particular period of wrongful exposure brought about the onset of his disease ought not, in all justice, to preclude recovery of compensation".
Barker v Corus UK (2006) also concerned exposure to asbestos on three separate occasions. Here the circumstances differed from Fairchild in that the negligence for one of these exposures was that of the claimant himself during short periods when he worked as a self- employed plasterer. The question arose as to whether the Fairchild principle could apply in this situation and whether the defendant was liable for all the damage suffered by the claimant or only for its contribution to the risk that materialised.
The House of Lords partially reversed the ruling in Fairchild and held that although a defendant could still be liable without proof of causation, his liability only extended to the relative proportion to which he could have contributed to the chance of the outcome. This decision was seen as a victory for employers' insurers but it met with strong resistance from trade unions and victim groups. The Government responded by introducing the Compensation Act 2006 to restore the Fairchild approach to liability in cases of mesothelioma. Section 3 sets out the provisions for dealing with cases where the victim has contracted mesothelioma as a result of exposure to asbestos.
Section 3(1) of the Compensation Act 2006 was interpreted in Sienkiewicz v Grief (UK) Ltd (2011) in the case of a mesothelioma victim who died of mesothelioma. The woman had
How much is foreseeable? The significance of the The Wagon Mound test was considered by the House of Lords in Hughes v Lord Advocate (1963) where it was held that if the kind of damage suffered is reasonably foreseeable, the precise manner in which it occurred need not have been. In this case employees of the Post Office negligently left an open manhole unattended in the street. It was covered by a canvas tent and surrounded by paraffin warning lamps. Out of curiosity two young boys entered the tent and the plaintiff, a boy aged eight, took one of the lamps in with him. The lamp was knocked into the hole and caused a violent explosion in which the plaintiff suffered severe burns. The House of Lords held the defendants liable. Even though in the circumstances the explosion was unforeseeable the kind of damage which occurred, burns, was of a type which was foreseeable.
Note that this case was distinguished by the Court of Appeal in Doughty v Turner Manufacturing Co Ltd (1964) where an asbestos cover was knocked into a cauldron of molten liquid. A minute or two later, due to a chemical reaction which was unforeseeable at the time, the liquid erupted and the plaintiff suffered burns. The plaintiff failed on the ground that a splash causing burns was foreseeable but the damage which occurred was of an entirely different kind.
These cases show that it is not necessary to foresee precisely what happened. In particular it is not necessary to foresee either (i) the severity of the damage or (ii) the precise manner in which it occurred. It is sufficient if the injury is of the type that could be foreseen, even it came about in an unexpected way or was much more severe than expected.
This can be illustrated by the facts of Jolley v Sutton London Borough Council (2000). The defendant council had in breach of duty failed after several months to remove a derelict cabin cruiser that had been abandoned on its land. The issue was whether the council could foresee only that small children would be injured by clambering over it, or whether (as actually happened) teenaged children would be injured by jacking it up and working underneath it in order to make it seaworthy. This is in the end a matter of judgment – the Court of Appeal unanimously held that the accident was not foreseeable and found that, even making full allowance for the unpredictability of children's behaviour, it was not reasonably foreseeable that the boys would work under a propped up boat; it was too remote because it occurred in an unforeseeable manner.
The House of Lords unanimously held that it was. Their lordships approached the question of what risk was foreseeable in much wider terms and said that the trial judge had been correct to consider the reasonable forseeability of the wider risk that children would meddle with a dilapidated boat and be at risk of physical injury.
The egg-shell skull cases The amount of damage that a victim suffers as the result of negligence depends upon the individual's characteristics and constitution.
This is known as the "egg-shell skull" principle which may be expressed this way: (i) where the defendant is in breach of duty to the claimant and (ii) it was foreseeable that the claimant would suffer some physical injury and
(iii) the particular claimant has a particular susceptibility or abnormality and as a result suffers more serious injury or injury of a different type from that which was foreseen, then the defendant is liable for that further injury.
This can be illustrated by Smith v Leech Brain & Co (1962) where the plaintiff employee suffered a burn to his lip as a result of inadequate safety measures in the defendant employer's factory. The plaintiff's lip was in a pre-malignant condition and the burn caused him to develop cancer which ultimately led to his death. The defendants argued that it was not reasonably foreseeable that the plaintiff would suffer cancer from being burned. The defendants were found liable; even though the only foreseeable injury was a splash causing a burn the "egg-shell skull" rule applied. The question to be asked was whether the burn could be foreseen; not whether the cancer was foreseeable
In Robinson v Post Office (1974) the plaintiff's damage was a combination of the defendant's negligence and the administration of medical treatment to which he was allergic. Applying the "egg-shell skull" rule the defendant was held liable for both the original injury and the allergic reaction to the injection.
A new and intervening cause Where it can be established that an intervening act has caused the damage, it may break the causal link between the defendant's breach of duty and the damage.
Intervening criminal conduct In Smith v Littlewoods Organisation Ltd (1987) the defendants bought a disused cinema with the intention of demolishing it to make way for a supermarket. While the premises were empty, vandals gained access and attempts were made to start a fire, though neither the defendants nor the police knew of this. A fire was eventually started which spread and caused damage to adjacent property belonging to the plaintiffs. In this case the claim failed.
Lord Mackay adopted the test of reasonable foresight, but indicated that there might be circumstances where the risk would have to be “highly likely” before it could be regarded as reasonably foreseeable; in this case, he said, whilst it was probable that persons might attempt to enter the vacant premises, it was by no means a probable consequence of the vacation of those premises that they would be set on fire.
Intervening negligent conduct Where the subsequent event is the intervening act of a third party, negligent conduct is more likely to break the chain of causation than conduct which is not. For example, in Knightley v Johns (1982) the defendant's negligent driving caused the blocking of a busy road tunnel. A police inspector sent the plaintiff police constable to drive back against the traffic flow to close the tunnel entrance. As he was driving back into the tunnel the plaintiff was injured by a car being driven in the other direction.. The Court of Appeal found the defendant was not liable. While it might be natural, probable and foreseeable that police would come to deal with the accident and that there might be risk-taking, there were so many errors before the plaintiff was sent back into the tunnel that the police inspector's negligent behaviour was the cause of the plaintiff's injuries.
