Causation in Fact Issues
There are several issues with causation in fact in the UK. The first of which can be illustrated from a novel situation where A crouches on the ground and B pushes C, C then suffers injuries because of the actions of both A and B. The question is how to ensure there is a causal link between the acts of the defendant and the injuries suffered by the claimant.
The standard test for causation in fact is the ‘but for’ test. This test comes from the case of Barnett v Chelsea and Kensington Hospital. This is a question that looks at whether the breach of duty caused the claimants injuries. In other words – but for the defendants actions would the claimant have suffered injuries. In a simple situation, such as a road traffic accident we can clearly attribute the negligent acts causing damage to the claimant. The main issues arrive in many areas areas:
- Multiple Causes of Harm
- Loss of Chance
- Multiple Defendants
- Consecutive Causes
- Asbestos cases
The law has developed alternative tests to prevent defendants escaping liability. In the example above the defendants could argue that his actions didn’t cause the claimant any injury and it was the others that led to the injuries. Obviously, this is completely unreasonable and cannot be a good policy decision.
The courts have looked at whether the defendants have materially contributed to the injuries of the claimant. In the case of Bonnington Castings v Wardlaw the claimant had developed a lung diseases, which was caused by the defendant negligently maintaining some machinery and causing ‘guilty dust’. There was other dust around the factory, which meant there were two causes for the claimants injuries. The court held that the ‘guilty dust’ had materially contributed to the damage. Causation was established.
The case of Wilsher v Essex concerned a child being given too much oxygen by a catheter and became blind as a result. There were 5 causes of harm and only 1 of those the doctors negligence, but neither was more likely than the other. This meant that causation was not established. Taking Bonnington and Wilsher together, it is clear that the defendants breach must be a substantial cause of the claimants injuries.
McGhee v National Coal Board was a case where materially increasing the risk of harm was enough to establish causation in fact. The reason for this was because the defendant had negligently not provided cleaning facilities to wash away brick dust at the end of the workers shifts. This meant that they materially increased the risk of the claimant developing dermatitis.
Asbestos has created controversial causational issues. The ‘but for’ test was applied in the case of Fairchild v Glenham Funeral Services to establish causation and failed in the court of appeal. The reason for this was because the claimants were suffering from mesothelioma, which can be caused by a single fibre of asbestos. As the claimants had been exposed by several employers, it would be impossible to apply the ‘but for’ test as it was impossible to discover which employer was guilty. For those reasons the House of Lords allowed the claims by applying the principle in McGhee v National Coal Board. Each employer materially increased the risk of harm to the claimant, which meant that causation was established, and they were all jointly and severally liable.
Barker v Corus also applied McGhee v National Coal Board, but distanced itself from Fairchild because it apportioned the damage that each employer had caused, which meant they only had to pay for the damage they caused. This was hugely controversial because some employers would have become insolvent, which means they could not be sue; leaving the claimants without a remedy.
Fortunately, this decision has been reversed by the Compensation Act 2006 S3(2)(b) which essentially ensures that defendants are jointly and severally liable, restoring the previous position in Fairchild for mesothelioma.
Often in cases a person will make an argument that the defendants negligence has caused him a loss of chance of an outcome or avoiding an outcome. This can be illustrated in Hotson v Berkshire. In this case a boy fell from a tree and suffered a hip deformity. The doctors misdiagnosed the boy, but found he only had a 75% chance of recovering if it was discovered. The issue here was that there was only a 25% chance of avoiding the deformity. This does not meet the 51% balance of probabilities, so the claimant got nothing. This was the all or nothing approach in action.
This all or nothing approach has been applied again in Greg v Scott. There was only a 42% chance of survival if the lump was diagnosed correctly. This meant that the claimant received nothing.