A complete set of in-depth notes on tort concepts in causation for negligence claims. This is with flow-charts and case summaries with detailed explanations and understandings of each concept to answer PQ's effectively.
Once a duty of care and breach are established, claimants must also show that the defendant’s
breach caused their harm.
Causation is central to any negligence claim.
o It LINKS the negligence to the harm [duty and breach to the damage]
[you can’t be liable for something you didn’t actually cause no matter how
careless you’ve been]
= Factual Causation [cause-in-fact] – this is the ‘But For test’ (a balance of probabilities)
- then some special tests
- and along the way ~ notice Legal Causation (which basically is a way of excluding
some things – novus actus and remoteness concepts).
The basic test
Corrective Justice?
It’s not always possible to work out a single factual cause of a harm in real life [it is very
complex]
– but law kind of looks at things in a less complex way.
“Why is causation important in tort law? One reason is that to insist on causal connection
between conduct and harm ensures that in general we impose liability only on those who, by
intervening in the world, have changed the course of events for the worse.”
A Honoré, ‘Necessary and Sufficient Conditions’ in D Owen (ed) Philosophical Foundations
of Tort Law (Oxford, Clarendon Press, 1995) 385.
He says – we look at the actions of D: Did the defendant intervene in the plaintiff’s life
and MAKE IT WORSE?
In Tort, we ask, ‘did the defendant’s breach of duty (their negligence) cause this harm?’
Standard Test – But For
, We use the ‘But For’ Test ~ civil claim tested on balance of probabilities.
Which is to say, ‘but for the negligence, the harm would not have happened’.
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428
BUT FOR the defendant’s breach, would the claimant’s damage have
occurred?
In that case a man had drunk some tea which had arsenic in it. The hospital treating him was
actually negligent in his treatment (duty of care, did not meet the standard of care) but
crucially you could not say the negligent treatment was the cause of the death.
= Nothing the hospital did, brilliant treatment or terrible treatment, was going to affect the
outcome. The man was always going to die.
So, duty (yes), breach (yes), causation (NO!). – Not liable. [in case of one sufficient
cause]
Quite often a series of bad things happen to people that combine in all sorts of ways to cause
harm.
Wilsher v Essex AHA [1988] AC 1074
illustrates the ‘But For’ test in multiple causes [MULTIPLE agents]
Poor baby had a whole bunch of things happen that could (on their own) have caused his
blindness. You could not break up the baby’s harm according to each bad thing. The harm is
said to be INDIVISIBLE. FOUR is just life but ONE of those things was medical negligence.
So, on the BOP (more likely than not) it COULD NOT be said that the negligence was the
cause.
No causation can be proved according to the standard of proof.
Where there are:
• several different agents, e.g. the four conditions from which baby Wilsher suffered
plus the defendant’s breach
• they could all have caused the harm
• but the court does not know which one was the cause.
= Where the harm is indivisible [harm cannot be divided]: Wilsher will apply and causation
will NOT be established
More complicated cases: where there are a series of bad things that happen one after the
other.
The concept of whether we can divide up the harm becomes important here ~
Multiple Sufficient Causes.
o So, what do we do then? Does the original defendant get let off because of the
second one?
à Divisible Injuries
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