L T 12 (CAUSATION AND REMOTENESS OF DAMAGE

(A). FACTUAL CAUSE: ' BUT FOR' TEST.

1. The defendant's breach of duty must be a total cause of damage or at least have
'materially' contributed to that damage.
2. 'But for' test was defined in Cork as ' the harm wouldn't have happened but
for defendant's negligent behaviour'.
3. This test was used in Barnett v Chelsea where defendant hospital wasn't liable
the death of the claimant when they failed to attend him because he would have died
anyway due to arsenic poisoning even if he would have been properly treated by the
doctors.
4. There are four problems with but for test ie it is not easy to apply where:
(a) the claimant has lost a chance of a full recovery, (b) there are several
concurrent causes of harm (c) there are consecutive causes of harm and (d) there
are multiple tortfeasors.
5. Loss of chance cases are usually linked to medical negligence where claimant's
percentage chance of being cured is reduced by doctor's negligence in either
diagnosing his disease or treating him. If such a negligence caused the claimant
not to be cured, then doctor is liable and if the claimant wouldn't have been cured
even if the doctor had not been negligent, then the doctor is not liable. In Hotson
v East Berkshire Area Health Authority where the claimant lost a 25 per cent chance
of being cured for hip injury due to delayed treatment and couldn't recover damages
for loss of chance of complete recovery, the court held that the claimant could
only be awarded damages if he could prove on the balance of probabilities that he
would have recovered if given proper treatment. This principle was confirmed in
Gregg v Scott (2005) where the claimant's chances of surviving for more than 10
years were reduced due defendant's misdiagnosis, he couldn't recover damages
because the Trial Court held that the delay hadn't deprived him of the prospect of
a cure. The House of Lords stated that the liability for loss of chance of a more
favourable outcome shouldn't be introduced into personal injury claims.
6. Where there's more than one possible cause of damage, the courts have modified
but for test in order to give fair decisions as in McGhee v NCB where claimant
developed a skin disease due to brick dust and defendant's failure to provide
proper washing facilities, the claimant won his claim and the court modified the
but for test and stated that causation could be proved if the claimant could show
that that the defendant's negligence had 'materially contributed' to his injury and
he doesn't have to show that the defendant's negligence was the only cause of his
harm. This approach was used in Bailey v Ministry of Defence. Sometimes the court
uses a different approach from McGhee as in Wilsher v Essex Area Health Authority,
the House of Lords stated that a claimant must prove on the balance of
probabilities that the defendant's negligence was a material cause of their harm.
It is not sufficient to show that the defendant merely increased the risk of
damage.
7. Where two independent events cause the same damage one after the other, the
first event is treated as the cause eg, in Baker v Willoughby where claimant
suffered injury to his left leg due to defendant's negligence and later was shot by
robbers on the same leg which resulted in amputation of his leg, the Court made
defendant liable for the amputation (full extent) of claimant's leg. However, in
Jobling v Associated Dairies, the defendant wasn't liable for a spinal disease of
the claimant ( making him totally unfit for the work) which he contracted after
three years of back injury due to defendant's negligence because the spinal disease
was brought about by natural causes. In Fitzgerald v Lane where a claimant was hit
by two negligent drivers, each driver was held liable for all the injuries because
it couldn't be shown which impact had caused the claimant's harm.
8. In case of multiple tortfeasors linked to work-related illness suffered by the
claimant that is developed over the years , the Court held in Holtby v Brigham and
Cowan that if claimant's harm is due to the negligence of several defendants, then
each defendant would be liable for compensation for a proportion of their share of
contribution.
 9. Holtby principle was harsh against the claimant. It was partially corrected in
Fairchild v Glenhaven Funeral Services where claimant suffered mesothelioma during
the course of employment with different employers and it was impossible to prove
precisely which defendant was responsible for the negligent exposure, the House of
Lords held that on the balance of probabilities, each defendant materially
increased the risk of harm to the claimant, so each was liable and the claimant was
entitled to compensation in full. The decision was made on policy grounds but
defendants had to pay compensation even if they had not done anything. However, the
situation was changed in Barker v Corus UK Ltd where defendant was exposed to
mesothelioma during the time he was working with a number of employers and also
during the time when he was self-employed, CA held that the claimant's damages were
reduced to 20 per cent for contributory negligence for the period of self-
employment when he exposed himself to the disease.
10. Barker partially overruled Fairchild, although defendants were still liable
without proof of causation, but the liability was several rather than joint ie they
were liable for their share of contribution only. The insurance companies were
happy with the decision, but trade unions and the mesothelioma support groups were
not, so legislation was introduced to restore Fairchild principle in relation to
mesothelioma cases as section 3(1) Compensation Act 2006 states that where an
employee has contracted mesothelioma, causation can be proved by showing that the
exposure made a material contribution to the risk. This section was interpreted in
Sienkiewicz v Grief UK Ltd where Supreme Court held that the 'doubles the risk'
test was unsuitable as a test for causation in mesothelioma cases, so claimant
didn't win her claim.