Introduction to negligence (2) causation, defences, problematic duty of care and the burden of proof
Subjects
negligence
causation
negligence defences
problematic duty of care
clough
negligence burden of proof
barnett v chelsea and kensington hospital 1969
the wagon mound 1 1961
knightley v johns 1982
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The University of Kent (UKC)
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Introduction to Negligence (2) Causation,
Defences, Problematic Duty of Care, and
the Burden of Proof
Causation
Liability in negligence is dependent on making a connection between the defendant’s wrongful
conduct and the damage suffered by the claimant. If the damage was caused by some other factor,
the defendant will escape liability.
There are two aspects (i.e., parts / features) of causation (both need to be satisfied):
• Cause in fact: a question of fact. What in fact caused the injury, and what non-causes can be
eliminated.
• Cause in law: was the harm too remote (i.e., slight / unlikely / improbable) a consequence of
the defendant’s actions, and, therefore, not the cause in law.
Cause in Fact
The factual cause of the damage is established by applying the ‘but for’ test i.e., would the harm
have occurred ‘but for’ the defendant’s negligent conduct?
• If the answer is yes: the defendant’s negligent action did not cause the injury and is
subsequently not the cause in fact.
• If no: the defendant’s negligent action did cause the injury and is subsequently the cause in
fact.
Leading Authority for the ‘But For’ Test
Barnett v Chelsea and Kensington Hospital [1969]
Case Facts
The claimant went to hospital complaining of severe stomach pains and vomiting. They were seen by
a nurse who telephoned the doctor on duty. The doctor told the nurse to send the claimant home
and contact their GP in the morning. The claimant later died from arsenic poisoning.
Case Decision
The court found in favour of the defendants. The court held that, although the doctor was negligent
in failing to examine the claimant, the failure to take reasonable care was not the cause of the
claimant’s death. The evidence was that, even if the claimant had been examined, correctly
diagnosed, and treated, they would have died anyway.
Point to Take Away
Leading authority for the ‘but for’ test. Here the claimant would have died regardless of the doctor’s
negligent conduct.
,Example of the Harshness of the ‘But For’ Test (Towards the Claimant)
Wilsher v Essex AHA [1986]
Case Facts
An infant was delivered prematurely and shortly after was administered oxygen by a junior doctor,
who accidentally provided too much. The baby was later diagnosed with a retinal condition, which
severely limited his sight. Five potential causes or factors were identified to explain the condition,
four relating to the baby’s premature birth and the fifth being the junior doctor’s actions.
Case Decision
The House of Lords identified that the excess oxygen was just one of five possible causes of the
condition and therefore the harm could not be said to fall squarely within the risk created by the
defendants. The court would not impose liability on the defendants in these circumstances -
(although this seems very unfair).
Point to Take Away
Example of the harshness of the ‘but for’ test, on the behalf of the claimant.
Exceptions to the ‘But For’ Test
Bonnington v Casing Ltd v Wardlaw [1956]
Case Facts
The claimant contracted lung disease (silicosis) from a cumulative combination of non-negligent and
negligent silica dust from their workplace.
Case Decision
The House of Lords ruled the claimant only had to demonstrate that the guilty dust had made a
material contribution to the harm. They did not have to demonstrate on the balance of probabilities
that the guilty dust was the sole cause of the harm. The defendants were, therefore, liable for
breach of duty.
Point to Take Away
Negligent action made a material (i.e., substantial / considerable / meaningful) contribution to
damage / harm.
Note: Material contribution has been applied to non-industrial disease and non-medical cases but
not with much success. It was considered and rejected in Clough, for example, but has been used
successfully in a road accident case. However, the latter case had very specific, rare circumstances.
So, for the purposes of this module you are best advised to treat this as only applying to industrial
disease / medical cases, not accidents.
McGhee v National Coal Board [1973]
Case Facts
The claimant contracted a skin condition (dermatitis) in the course of their employment with the
defendant. The defendant requested the claimant work with the brick kilns but failed to satisfy their
statutory duty to provide a washing area to allow employees to remove the dust from the kilns at
the end of the day. Subsequently, employees could not wash off the dust till they returned home.
Two possible causes were identified for the claimant’s dermatitis: exposure to brick dust during the
working day (which was not attributable to a breach in duty), and the continued exposure received
between the end of the day and being able to wash at home (which was attributable to a breach in
duty).
, Case Decision
The House of Lords ruled that the claimant only had to demonstrate that the dust exposure resulting
from the defendants’ negligent breach of statutory duty had materially increased the risk of them
developing dermatitis.
Point to Take Away
Negligent action made a material (i.e., substantial / considerable / meaningful) contribution to the
risk of damage / harm.
Note: Material contribution has been applied to non-industrial disease and non-medical cases but
not with much success. It was considered and rejected in Clough, for example, but has been used
successfully in a road accident case. However, the latter case had very specific, rare circumstances.
So, for the purposes of this module you are best advised to treat this as only applying to industrial
disease / medical cases, not accidents.
Jobling v Associated Diaries [1982]
Case Facts
The claimant, a butcher, slipped on the floor at their place of work due to their employer's
negligence. They injured their back, limiting them to carrying out light work, and resulting in their
earnings being reduced by 50 per cent of what they were prior to the accident. Later and before the
trial, the claimant had been diagnosed with a pre-existing spinal disease, which was not a result of
the accident. It would eventually disable him entirely and he would be unable to work.
Case Decision
The defendants were found liable up to the point of the onset of the claimant’s latent (i.e., dormant
/ undeveloped) back condition (that was a supervening event).
Point to Take Away
When there is a supervening event, the defendant, though still liable, will only be liable up to the
onset of that event.
Fairchild v Glenhaven [2003]
Case Facts
Three separate claimants contracted lung cancer (malignant mesothelioma) as a result of their
exposure to asbestos during their various courses of employment with varying employers. Only a
single incident of exposure to asbestos fibres is necessary for the cancer to be caused and
subsequently repeated or prolonged exposure does not impact the severity of the cancer. Whilst the
three claimants had all experienced asbestos exposure with each employer, it could not be
determined which employer was the most likely source of the asbestos fibre.
Case Decision
The House of Lords held that where a claimant could satisfy the burden of proof that one employer
had materially contributed to their asbestos exposure, and thus had materially raised the probability
of the claimant contracting cancer, the claimant could claim total compensation from them
(although that employer may claim joint contributions from the other employers). The ‘but for’ test
created a result that was simply unacceptable and therefore was not to be applied.
Point to Take Away
If the claimants could demonstrate that one employer had materially increased the risk of
contracting mesothelioma, they were entitled to claim full compensation from that one employer.
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