NEGLIGENCE – CAUSATION AND REMOTENESS
CAUSATION
Claimant show a causal link with Ds act/omission and loss suffered – chain of causation
Breach of duty must be factually caused, general test to determine= ‘but for’ test
REMOTENESS
Whether kind of damage suffered was reasonably foreseeable by d at the time of breach of duty
remoteness eliminates causes that are too distinct from negligence to be recoverable
‘BUT FOR’ test
‘But for’= but for the Ds breach of duty would the loss or damage have occurred?
Test is specific, C must prove that Ds breach of duty probably caused Cs damage
Claims usually decided on an all or nothing basiseither get all damages, or no damages
Barnett v Chelsea Hospital [1969]
Barnett went hospital complaining of severe stomach pains, doctor negligently failed to diagnose
arsenic poisoning, died held not liable as even if diagnosed, patient would still have died
Rothwell v Chemical Insulating Ltd [2007]
Employees exposed to asbestos dust, subsequently developed pleural plaques (harmless proof of
exposure to asbestos dust, not indicative of asbestosis), feared for developing asbestosis, mental
injury from fear held not liable, pleural plaques not actual damage
Material contribution
Multiple causes of damage – when more than one cause, does not need to be even main cause
Wilsher v Essex AHA [1988]
Baby born prematurely, was given too much oxygen by doctor too much oxygen caused blindness,
there was 5 other possible causes of blindness held material contribution where more than one
cause, Ds breach must be the substantial cause of damage
McGhee v NCB [1972]
McGhee’s employer failed to provide washing facilities at his workplace, from the dust McGhee got
dermatitisheld liable for materially increasing the risk by not providing washing facilities
Fairchild v Glenhaven Funeral Services Ltd [2002]
Claimants contracted mesothelioma lung cancer by exposure to asbestos, can be caused by a single
fibre of asbestos, condition does not get worse by greater exposure, once fibre embedded into the
lung it can lay dormant for 30-40 years before giving rise to a tumour which can then take 10 years
to kill, each of the claimants exposed to asbestos by a number of different employers, unable to
demonstrate which employer exposed each of them to the one fatal fibre held material
contribution but damages reduced under Law Reform (Contributory Negligence) Act 1945 to reflect
other exposures (if can show 1 employer materially increased risk, then get full compensation)
Contribution to risk treated as sufficient causal link
After Fairchild
Single agents: Fair child applies where exposure to same type of risk, not like Wilsher variety
Innocent: employer show not negligent, took precautions, Fairchild not apply
Fairchild applies where 1 source of exposure is tortious
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, McGhee/Fairchild principle: APPORTIONMENT of damages
Barker v Corus [2006]: claimant got mesothelioma through exposure to asbestos over number of
years, in one case deceased was self-employed for period of time, exposed to asbestos during self-
employment held damages reduced contributory negligence, 20% less for self-employed
Following Barker, where Ds are liable on Fairchild basis, each D only liable to extent they increased
risk to claimant ‘proportionate liability’
Compensation Act 2006, s.3 – Mesothelioma: damages
Person negligently or in breach of statutory duty permitted victim to be exposed to asbestos
Victim contracted mesothelioma from exposure to asbestos
Person liable of damage caused, whether materially increased a risk or other reason
Courts shall regard length of periods of exposure, but will not apply if (a) responsible person
agrees to apportion responsibility amongst themselves or court things another basis for
determining contributions is more appropriate
Bailey v Ministry of Defence [2008]: medical negligence, courts applied Fairchild, claimant was in
hospital and had a medical condition, received negligent medical treatment, led to him developing
brain damage, claimant could not show breach alone caused damage, so could not satisfy ‘but for’
test, so courts held here that medical science cannot show exactly how significant the breach was,
but shows it was a more than negligible contribution, so do not need to satisfy ‘but for’ test
Gregg v Scott [2005]: had a bump on hand, it was cancer but doctor said it was not harmful, patient
went away thinking nothing seriously wrong, after a year another GP saw and discovered had
cancer, expert evidence showed delayed diagnosis had reduced length of survival of 10years HOL
stopped from but for test, said should not apply as otherwise too easy to sue NHS
For Problem Q need to consider if the ‘but for’ test is satisfied – if not than Fairchild, if not= fails
SUMMARY OF CAUSATION
Fairchild adopted + built on ‘material contribution’ to more specific ‘material contribution to risk’
Since Fairchild recognised ‘material contribution to damage’ and ‘but for causation’ are 2
different approaches to showing a causal link – material on causal ‘contribution’ and but for on
‘necessary’ nature of breach in events it brings about damage
‘Material contribution’ is more appropriate for cumulative concurrent cases, and ‘material
contribution’ relates to causation of divisible disease then claimant will recover damages relating
to contribution that has been made, for indivisible disease D may still make a material
contribution to causal process and claimant will then recover in full
Stapleton argues can choose additional stage of ‘no better off’ principle of compensatory
damages – consider other tortious causes which are not acts/omissions of parties before the
court, and how will court assess these contributions can discourage court using it
Where Mesothelioma is concerned s.3 Compensation Act 2006 ensures liability is not
proportionate but full – Fairchild is however applied to lung cancerso scope of expansion?
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