Causation in Fact: The 'But For' Test

Causation in Fact

• Concerns whether the defendant's negligence was a cause of the claimant's damage.
• Requires determining if the defendant's breach of duty actually caused the loss.
• If the breach did not cause the loss, the claimant has no cause of action.

The 'But For' Test

• Asks whether the harm would have occurred irrespective of the defendant's negligence.
• If yes, there is no causation.
• If no, the harm would not have happened but for the defendant's negligence.
• In Barnett v Chelsea Hospital, the patient would have died from arsenic poisoning regardless of the hospital's negligence, so there was no causation.

Balance of Probabilities (All or Nothing)

• Requires the claimant to prove facts to the standard of the balance of probabilities.
• In Hotson v East Berkshire, a 25% chance of avoiding injury was not enough to prove causation.
• In Wilsher v Essex AHA, the claimant failed because they couldn't prove the defendant's act caused the harm among five possible causes.

Material Contribution

• In multiple cause cases, the claimant need not prove the defendant's breach was the only or main cause.
• The claimant must show the breach materially contributed to the damage.
• In Bonnington Castings Ltd v Wardlaw, the "guilty dust" materially contributed to the claimant's lung disease.
• In Holtby v Brigham, asbestos exposure from multiple employers led to damages proportionate to each employer's contribution.

Material Increase in Risk

• Is applied in cases of scientific uncertainty, like mesothelioma.
• In McGhee v NCB, the employer's failure to provide washing facilities materially increased the risk of dermatitis.
• In Sienkiewicz v Greif, the principle applies to mesothelioma even with minimal asbestos exposure from one employer.

Divisible vs. Indivisible Injury

• Divisible Injury leads to damages being proportionate
• The court proportions damages when it can divide the injury suffered by the claimant proportionally.
• Holtby v Brigham and Cowan (Hull) Ltd held the defendant responsible only for the proportion of harm suffered during their employment.
• Indivisible Injury leads to full liability.
• In Fairchild v Glenhaven Funeral Services, the court allowed claimants to rely on a material increase in risk when multiple employers exposed them to asbestos.
• Barker v Corus UK Ltd modified the material increase in risk approach, dividing the risk (but not the mesothelioma itself) among defendants.
• The Compensation Act 2006 (s3) made defendants liable for full damages in mesothelioma cases, addressing the Fairchild issue.

Indivisible Injury Contribution Between Tortfeasors

• Joint and Several Liability means the claimant can sue any one defendant for full loss.
• The Civil Liability (Contribution) Act 1978 allows the court to apportion damage between those responsible.
• The claimant can recover full damages from any one defendant.
• A defendant liable for damage can seek contribution from others liable for the same damage.

Factual Causation: Multiple Injuries

• If two injuries are unrelated and have no impact on each other, there are no specific causation problems.
• In Performance Cars v Abraham, the second defendant was not liable because they caused no additional harm, as the paintwork was already damaged.
• A later defendant is liable only to the extent they worsen the claimant's damage.

Breaking the Chain of Causation: Intervening Acts

Acts of a Third Party

• Instinctive interventions do not break the chain of causation, as seen in Scott v Shepherd.
• Negligent actions of a third party that the defendant could not reasonably foresee may break the chain, as in Knightley v Johns.
• Rouse v Squires established that a foreseeable second act does not break the chain of causation.
• Reckless or intentional conduct of a third party is more likely to break the chain.
• In Lamb v Camden, squatters' actions broke the chain of causation because they were independent.
• In Stansbie v Troman, the decorator was liable because they had a duty to prevent third-party acts.
• In Rahman v Arearose, medical negligence was not enough to break the chain of causation.

Acts of the Claimant

• Where the claimant's actions after the defendant's negligence cause further harm.
• In McKew v Holland, the claimant's unreasonable act of descending a steep staircase broke the chain.
• In Wieland v Cyril Lord, the claimant's fall due to limited vision from a neck collar was a reasonable act, so the chain was not broken.

Remoteness of Damage

Reasonable Foreseeability

• If damage is too far removed, the defendant is not responsible.
• The court determines if the damage is of a kind that a reasonable person would have foreseen.
• In Wagon Mound (No 1), the fire was not a foreseeable type of damage from an oil spill.

Similar in Type Rule

• If the claimant suffers a foreseeable type of injury, the exact way the injury occurred need not be foreseeable.
• In Hughes v Lord Advocate, burns were foreseeable even if the exact explosion was not.
• In Tremain v Pike, contracting Weil’s disease from rats was too rare to be foreseeable.

Egg-Shell Skull Rule

• "You take your victim as you find them."
• In Robinson v Post Office, the claimant was awarded full damages due to an allergic reaction, as the defendant must accept the claimant's pre-existing condition.

Defences to Negligence

Volenti non fit injuria

• Operates as a complete defence, preventing the claimant from recovering.
• The claimant must have full knowledge of the nature and extent of the risk.
• Rarely succeeds in claims by employees against employers, as employees often act under a duty.
• Rescuers are generally not considered to have voluntarily assumed the risk if:
  • They were rescuing persons or property endangered by the defendant's negligence.
  • They were acting under a compelling legal, social, or moral duty.
  • Their conduct was reasonable in the circumstances.
• In Dann v Hamilton, knowledge of the driver's drunkenness did not equal consent.
• In Morris v Murray, flying with a very drunk pilot was clear acceptance of extreme risk.
• The Road Traffic Act 1988, s149, prevents volenti as a defence for passengers.
• In Haynes v Harwood, a rescuer was not treated as volens.
• In Smith v Baker, awareness of risk did not equal consent for an employee.

Illegality (Ex turpi causa non oritur actio)

• If the claimant was involved in an illegal enterprise when injured, the defendant may have a defence.
• Ex turpi causa non oritur actio means no action arises from a disgraceful cause.
• In Pitts v Hunt, the claim was barred because the claimant was engaged in a criminal enterprise.
• In Ashton v Turner, the claim was barred as injuries occurred during a burglary escape.

Contributory Negligence

• Applies when the claimant's carelessness contributed to their damage.
• Requires carelessness on the claimant's part and that the carelessness contributed to the damage.
• Law Reform (Contributory Negligence) Act 1945 reduces damages proportionally to the claimant’s fault.
• Sections 1(1) of the 1945 Act state that a claim shall not be defeated by the claimant's fault, but damages will be reduced as the court deems just and equitable.
• In Reeves v Metropolitan Police Commissioner, damages were reduced by 50% because the deceased was 50% to blame.
• Damages are reduced to the extent the court thinks just and equitable, considering the claimant's share of responsibility.
• In Froom v Butcher, damages were reduced by 0–25% depending on the impact of not wearing a seatbelt.
• Capps v Miller had the same outcome as Froom v Butcher for motorcyclists not wearing helmets.
• In Owens v Brimmell, self-intoxication did not excuse failing to take reasonable care.
• In Gough v Thorne, children are judged by an age-appropriate standard.
• In Baker v TE Hopkins, there was no contributory negligence for rescuers.
• In Jones v Boyce, a panic response was reasonable.
• In Sayers v Harlow UDC, damages were reduced by one quarter due to contributory negligence.
• In Caswell v Powell, workers get leeway in noisy or dangerous conditions.