Negligence Causation and Remoteness

“...... In Wilsher’s case [1988] A.C. 1074... the House of Lords applied strictly the “but – for" test an rejected the Court of Appeal’s interpretation of McGhee’s case [1973] 1 W.L.R. 1 but it was not a case of causes cumulatively causing injury but a case where there were different distinct causes which operated in a different way and might have caused the injury and where the claimant could not establish which cause either “caused or contributed" to his injury." Per Waller LJ in Bailey v Ministry of Defence [2009] 1.W.L.R. 1052 AT 1069

In light of this statement evaluate how the courts adapt the “but-for" test depending on whether they are dealing with a cumulative cause scenario as opposed to a distinct, alternate cause scenario and consider whether the law is in a satisfactory state.


This essay will look at how the courts adapt the “but-for" test involved in factual causation and the problems involved in proving it. The courts will deal with different scenarios as mentioned in the above statement this essay will also look at the various scenarios in a variety of cases. Other adopted topics include the different types of approaches which will also be addressed as the essay continues. This essay will also look at the intervening acts and touching upon the subject of remoteness before concluding on the subject of causation and negligence.

Factual Causation - “But for" Test

The courts must first examine that the breach of duty must be the factual cause of the damage. The general test used by the courts to determine factual causation is commonly known as the “but-for" test. If the claimant’s injury would have occurred irrespective of the defendant’s negligence, the negligence is not causative of the claimant’s loss. However, satisfying the “but-for" test may itself be insufficient to establish causation for their maybe a number of factual causes satisfying that test. Illustrated by Lord Hobhouse in the case of Reeves v Commissioner of Police for the Metropolis [1] Lord Asquith also stated in Stapley v Gypsum Mines [2] “a broad common-sense view is taken in deciding whether one of two more conditions is the ‘real’ or ‘legal’ cause".

However the “but-for" causation is only established on the balance of probabilities: if it was more than likely the event of the cause it will be treated like the event of the cause. An illustration of the balance of probabilities standard of proof to the “but-for" test can be illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [3] However, when applying the “but-for" test the courts also take into account any hypothetical causes that may have produced a claimants loss as well as the existing causes illustrated in the Barnett case above. A great illustration of a hypothetical case is the one of Bolitho v City and Hackney Health Authority [4] here the courts considered the causal effect of a hypothetical omission.

“A child died when the doctor on duty could not be called owing to a flat battery in her pager. The doctor claimed that, had she been called, she would not have intubated the child, who would have died anyway. Other experts claimed that intubation would have saved the child. So the issue for consideration was whether the doctor would have been negligent. In deciding whether a professional person has discharged the duty of care incumbent on himself or herself, the standard test has generally been that set out in Bolam v Freirn Hospital Management Committee [5] would a `responsible body' of practitioners have acted the same way. The presence of dissenting voices among the profession does not, in itself, show that the duty of care was not discharged [6] ". The courts held that the doctor’s failure to intubate would not have been negligent, due to the reasons given were supported by medical opinion. However what was relevant here in deciding the question of causation the courts were prepared to ask not would the doctor have intubated if she had attended? But should the doctor have intubated in such circumstances? Lord Browne-Wilkinson “ A defendant in breach of duty cannot escape liability by stating the damage would have occurred in any event because he would have committed some other breach of duty after."

Problems with the “but-for" test

The “but-for" test works exceptionally well in some cases, however in cases where multiple cases arise it runs into problems. The courts approach to the different cases involving these multiple cases are discussed more in the next part of this essay. It is traditional to classify such cases under a number of headings. However classifying cases and the traditional accompanying analysis of the various rules governing each case can give the misleading impressions that causation is more technical branch of the law in which policy plays a minor role. Within tort certain rules are flexible, although some rules are accommodated to policy concerns this may also be done at times by the courts without leaving a clear analysis.

The courts may come across certain cases involving concurrent causes this is simply interpreted to the causes occurring or repeated constantly after each other or one after another. Concurrent causes can be divided into two groups an Inderterminate cause and a cumulative cause. An Inderterminate cause involves cases where there more than one defendant. However there is one operative cause of the claimant’s loss, this leads to an unclear view of which defendant’s act has caused the loss of the claimant. A great illustration can be seen in the Canadian case of Cook v Lewis [7] this case involved the claimant being shot with one bullet in his leg but several defendants were negligent in shooting their guns in the claimant’s direction. The courts adopted the pragmatic approach and reverse the burden of proof in this case. Thus, in the absence of evidence from the defendant to prove innocence the defendant was liable for the whole of the claimant’s loss. In the case mentioned above the courts had to decide which of the two human actions produced the claimant’s loss. The solutions adopted in this case have not been favoured in the English courts in cases where the fault of one defendant is competing with one or more innocent or natural explanations for the claimant’s loss. The leading authorities here are Wilsher v Essex Area Health Authority, [8] Hotson v East Berkshire Area Health Authority [9] and Gregg v Scott [10] In these cases, the courts have not been prepared to make a defendant liable unless the claimant can show that on balance of probabilities, his or her loss was caused by the defendant’s fault rather than by a natural occurrence. In such cases, the standard of proof required of the claimant assumes enormous significance. For this reason, these cases will also be discussed in further detail under the proof of causation.

A cumulative cause is where there is more than one operative cause of the claimant’s loss, each produced by the act of a different defendant, but the problem is these causes have combined and unavoidably result in the same damage. In such situations, applying the “but-for" test would result in neither defendant being liable. Therefore, the usual approach of the courts is to say that, because either negligent act would have produced the same damage, each defendant is liable for the whole of the damage. One of the best known cases for a cumulative cause is Fitzgerald v Lane [11] Here the claimant walked across a pelican crossing when the lights for pedestrians were red. He was struck by the first defendant and bounced off the bonnet on to the path of the car driven by the second defendant. He suffered tetraplegia. The claimant was unable to establish whether it was the first impact or the second impact which caused the tetraplegia. The trial judge held that the three were equally at fault with both defendants travelling too fast and not paying sufficient attention. He assessed the damages at £596,553 and ordered the two defendants to pay one third of that amount. The defendants appealed. Both defendants appealed against the apportionment of the damages in that if the judge held they were equally at fault the claimant should have his damage reduced to 50%. The second defendant also argued that he was not the cause of the tetraplegia. Court of Appeal, Held: as the claimant was unable to prove which impact was the cause of the tetraplegia, it was for each of the defendants to demonstrate that that they were not the cause. If they were unable to do so they would be jointly liable. (This point was not appealed and has since been overruled in Wilsher v Essex)

Secondly the trial judge was correct in the apportionment of loss under the Law Reform (Contributory Negligence) Act 1945. The defendants appealed this point to the House of Lords. The House of Lords substituted a reduction in damages of 50%. Each defendant was to pay 25%. The court is to first assess the full damages. Then assess the degree to which the claimant contributed to his own injuries. Then reduce the damages he is entitled accordingly. A claimant is not to be over compensated simply because there are two defendants [12] .

In Performance Cars v Abraham [13] the key issue was that the first act succeeded the other, in such circumstances the effect of the first act had become overtaken by the effect of the second act, this in result ceased the first act to be a cause of the claimant’s loss. The House of Lords applied the same reasoning in Baker v Willoughby [14] treating the case as one where the plaintiff’s continuing loss of amenity had concurrent causes. Lord Reid held the defendant liable for all consequences of the first injury just as if the second injury did not occur at all. Lord Reid “A man us not compensated for the physical injury he is compensated for the loss which he suffers as a result of that injury." Therefore the second injury did not diminish the loss of the plaintiff would continue to suffer; it could not be regarded as having eliminated the effects of the first injury mentioned. However the thieves in the case who had shot the plaintiff could not be found, although even if they had been trialled in court they would not be able to pay the compensation asked of them. However if the victim’s were sued in court the rule of “taking the victim as you find him" would come into effect. The Lordships believed practical justice needed to be reached this meant that the victim’s could not liable for the whole of the plaintiff’s loss of amenity only to the extent of the act that the victims made worse. This also meant the first defendant was not fully liable either resulting the plaintiff to be undercompensated if this was the case. The Plaintiff in this case would fall under two defendants this would result the in the first defendant liable for any continuing effects even where a second tort would produce wither the same or worse effect.

It can be argued that the decision in Baker v Willoughby should have been adopted in the Jobling v Associated Dairies Ltd. However the supervening event n question had been a disease rather than a tort. The Lordships involved in the case reached the opposite conclusion then the one in the baker case. Although the aim of awarding damages had been taken into consideration it was held that the plaintiff if recovered from the act would be over compensated. Therefore the defendant’s liability had been ceased at the beginning stages of the disease.

Lord Bridge pointed out the decision in baker appeared to ignore the fundamental principle that the aim of a damages award in tort is to put the claimant in the same position had the tort not occurred. On Lord Bridge’s analysis alone it can be argued that if the first tort had not occurred nevertheless the plaintiff would have suffered the same sort of loss in any event when he was shot by the thieves leaving him in a better position had the first tort not occurred. However in Baker due to the plaintiff working in the scrap metal yard due to first tortfeasor’s negligence, which had rendered him unfit for other types of jobs he may had never been shot if it the first tort had not occurred. Lord Edmund-Davies concluded that in Baker that the decision in baker could not be properly analysed in terms of legal principle and that the case had been decided on policy grounds. However in Jobling their Lordships criticised the decision in Baker, although agreed that the case may have been correctly decided on the facts. The distinction between a supervening illness and that of a supervening tort is that the illness would eliminate the previous tortious act then that of a supervening tort. The decisions in both cases are heavily dependent on the pragmatic policy driven approach.

Proof of Causation

Here the claimant has to prove that the defendants breach is the cause of the claimant’s loss. Here the nature of the approach the courts will take will depend on the type of case concerned and any decisions will be heavily influenced by the policy considerations.

There are different approaches like the one’s mentioned in Jobling and baker, although these different approaches in the proof of causation cases are not possible to settle with one and another on the basis of coherent principle. Each case has its own pragmatic response to what the courts perceive as the broad demands of justice in specific circumstances.

The All or Nothing Approach will be applied in most cases. Here the claimant must show on the balance of probabilities it was the defendants breach that had caused the loss rather than another event or cause. If the Claimant can successfully show that it is 51% probable that the breach of the defendant had caused the loss. The law will treat such a probability as a certainty leading the claimant to winning the case and compensated for the loss. However, if the claimant can show a less percentage of probability and the defendant can show a higher degree of probability then the claimant will leave with nothing. This is quite a straight forward approach, however there has been much difficulty applying this approach with medical negligence cases where the loss is the claimants loss chance of recovery. This approach can be exemplified in the decisions by the House of Lords in Hotson v East Berkshire [15] Gregg v Scott [16] and Wilsher v Essex Area Health Authority [17] these cases alleged to cause of the plaintiffs loss via medical negligence.

In Hotson, had the hospital treated the plaintiff promptly when first admitted the chance of making a full recovery would have been 25 percent. However due to the delay this chance had been lost. The plaintiff had been awarded damages a sum of the 25 percent however had the hospital’s negligence been the only cause leading the disability then the full percentage would have been awarded. This decision had been affirmed by The Court of Appeal, but was revered by the House of Lords stating that the plaintiff had failed to prove the balance of probabilities. Simon Brown J assessing the medical evidence had found that a 75percent chance that the disability would have resulted in any event even if the plaintiff had been treated promptly. This meant in Lordships view that on the balance of probabilities the disability had been cause das the plaintiff fell out of the tree. However his Lordship was wrong to embark on a quantification of the loss caused by the defendant the loss could only be done once the issue of causation had been overcome which the plaintiff failed to do so. Although cases in medical negligence can sometimes be awarded for loss of chance the Lordships did not feel this approach would best suite the case of Hotson. This was resulted in the evidence was cleared as to when the disability had occurred. When Hotson had fallen out of the tree in the balance of probabilities disabled the law would treat such a probability as a factual certainty. Thus meaning as the patient arrived at the hospital the plaintiff would have already been considered disabled resulting in the plaintiff no chance to lose. The House of Lords followed this strict approach of causation in Gregg v Scott [18] . Here the claimant had felt the all or nothing approach could be modified in such a way where the demands of justice made it right to do so, Illustrated by the House of Lords in Fairchild v Glenhaven Funeral Services [19] . However in Gregg v Scott the Lordships had declined to extend reasoning made in Fairchild which had involved more of an industrial disease to cover the claimant’s case. The Lordships had held due to the fact the But for test was not satisfied the plaintiff could not prove the GP’S negligence resulted in failure to make a full recovery in any event. The reasoning reveals a division of opinion between law lords about the correct approach that should be taken in medical negligence cases involving loss of chance if recovery.

The key Issue is whether justice demands that the tort negligence should abandon its strict causation rules in this type of case and instead compensate claimants for lost chances were a real value to them. Lord Nicholls stated that “if the law failed to do this it would be irrational and indefensible" Lord Nicholls continued in a statement

“The Law should be extremely slow to disregard medical reality... In these cases a doctor’s duty to act in the best interests of his patient’s involves maximising the patient’s recovery prospects, and doing so whether the patient’s prospects are good or not so good. In the event of a breach of this duty the law must fashion a matching and meaningful remedy... It cannot be right to adopt a procedure having the effect that, in law, a patient’s prospects of recovery are treated as non-existent whenever they exist but fall short of 50 percent. If the law were to proceed in this way it would deserve to be likened to the proverbial ass." [20] 

Baroness hale, however speaking in a majority explained the difficulty the courts would face if they recognised claims for loss (of a 50 per cent) chance of recovery. Baroness Hale “Such recognition would require that personal injury law should transform itself." [21] 

If a claimant had lost somewhat 40 percent chance of recovery, were entitled to a proportionate sum representing that loss, where would be the justice in allowing a claimant who had lost a 51 percent chance of recovery (thereby satisfying the standard of proof) to leave court with 100 percent of the damages? Surely the idea of proportionate compensation would cut both ways, allowing the defendants, it is suited them, to reformulate the gist of the action against them as a loss of chance.

Leading to the strange proposition that where it is shown that there is 90 per cent chance that my negligence broke your leg, i am entitled to require the court to reduce your damages by 10 percent, to reflect the chance that your leg might have been become broken in any event. This proposition would unwelcome any complication in the great majority of personal injury case, and would make recovery of compensation much less predictable for defendants and for the insurance market. For these reasons it was not desirable for the courts to view Mr Gregg’s loss in a case like Gregg v Scott as a lost chance. Rather it should be viewed as an outcome (i.e. after the outcome of the defendants negligence had placed the claimant in no different a position from the position he had been in before the negligence had occurred, meaning, in effect, that he had suffered no actionable loss.

The All or Nothing approach taken by the House of Lords in Gregg v Scott reflects the approach taken Wilsher v Essex Area Health Authority. Here the plaintiff developed retrolental fibroplasias (RLF) a condition affecting the retina that could have been caused by the excess oxygen given to the plaintiff. However this condition also occurs in premature babies who do not receive enough oxygen. There was a causal link between (RLF) and at least 5 other conditions that were very common in premature babies.

The Trial Judge and the Court of Appeal had relied on the decision made by the House of Lords in the case of McGhee v National Coal Board [22] stating that by supplying an excess of oxygen increased the risk that the plaintiff would succumb to RLF. However the House of Lords rejected such a liberal approach to causation and instead used the all or nothing approach holding that the plaintiff had failed to establish on the balance of probabilities, that the RLF had been produced by the oxygen rather than the 5 other conditions of RLF.

Lord Bridge – “Many may feel that [ordering a retrial] serves only to highlight the short Comings of a system in which the victim of some grievous misfortune will recover substantial compensation or none at all according to the unpredictable hazards of the forensic process. But, whether we like it or not, the law, which only Parliament can change, requires proof of fault causing damage as the basis of liability in tort. We should do society nothing but disservice if we made the forensic process still more unpredictable and hazardous by distorting the law to accommodate the exigencies of what may seem hard cases [23] .

Members of the House of Lords have alliterated that the rules of causation should not be displace or accommodate certain cases. However in the next two cases mentioned this has appeared to have happened. In both cases mentioned the House of Lords to achieve a just result have relaxed the strict requirements of causation.

The Material Increase in Risk Approach

The best illustration by the House of Lords of this approach is McGhee v National Coal Board [24] The House of Lords held the Defendants liable; however the courts did not expect the plaintiff to establish on the balance of probabilities that the absence of washing facilities could be the actual cause of dermatitis. By failing to providing the washing facilities the defendant’s had increased the risk of the plaintiff catching the disease. However at the time of the decision in McGhee it had not been clear what the ratio of the case was or in what other factual circumstances its approach of proof of causation might even apply. Lord Wilberforce stated that the outcome in McGhee was dictated by policy. Thus the defendants by their own negligence had created such a risk of a particular type of damage that escaping liability should not be allowed because of the claimants evidential difficulties in proving causation.

Lord Wilberforce : “It is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause." [25] 

The Approach made by Lord Wilberforce was that it appeared to ignore the fundamental principle that the claimant must prove case. Nothing really suggested that the plaintiff’s damage had occurred within the area of risk created by the defendant’s negligence. Here the two distinct areas of risk owed too much to the broad policy consideration that as a matter of justice large employers should be made to compensate their employees for all injuries and diseases in the workplace.

Lord Bridge in Wilsher in the House of Lords explained the decision in McGhee by saying that the case had “laid down no principle of law whatever" However on Interpretation thier Lordships felt able to draw a legitimate inference of fact.