Causation Flashcards
Causation
In order to establish negligence, it must be proved that the defendant’s breach of duty actually caused the damage suffered by the claimant, and that the damage caused was not too remote from the breach.
THE ‘BUT FOR’ TEST
Causation is established by proving that the defendant’s breach of duty was, as a matter of fact, a
cause of the damage. To decide this issue the first question to be asked is whether the damage
would have occurred but for the breach of duty.
Barnett v Chelsea and Kensington Hospital Management Committee1986
Mr Barnett went to the hospital complaining of nausea. The doctor told the nurse to send Barnett home and contact his GP in the morning. Barnett died five hours later from arsenic poisoning. The court held that the breach did not cause his death. Evidence showed that, even if he had been examined, it was too late for any treatment to save him, and so it could not be said that but for the hospital’s negligence he would not have died.
Brooks v Home Office
The claimant was a woman in prison who was pregnant with twins. A scan showed that one of the twins was not developing properly, but the prison doctor waited five days before seeking a specialist. It was found that the twin had died two days after the scan. Ms Brooks sued, claiming that she was entitled to receive the same standard of healthcare as a woman outside prison. The court held that a wait of two days before getting expert advice was reasonable for a woman outside prison, and as the baby had actually died within this time, the doctor’s negligence could not be said to have caused its death.
Chester v Afshar
This case involved a surgeon who failed to warn a patient of the potential risks of the operation, the court held that the scope of the surgeon’s duty of care to his patient included a duty to warn of any risks, hence there should be a remedy where a doctor failed to fulfil that duty. The court accepted that it was difficult to prove here causation on conventional principles. Hence, on policy grounds, they decided to modify the normal approach to causation, and the claimant won her case.
White v Paul Davidson
However, it was made clear in White v Paul Davidson that Chester was an exceptional case. The claimant sued his solicitors for giving him incomplete advice, claiming that the effect of Chester was that the solicitors had denied him (claimant) the chance to act differently with a more complete advice. The court rejected his claim, stating that the House of Lords in Chester did not overrule any traditional rules on causation, but they merely modifying them for policy reasons because there was no other way to get justice for the claimant.
Bolitho v City & Hackney Health Authority
The doctor argued that even if she had turned up to examine the little boy, she would not have intubated him, so her failure to attend could not be a cause of his death. The court rejected this, and stated that causation could be established if the claimant proved either that the doctor would have intubated if she had attended, or that she should have intubated if she had attended, because it would have negligent not to do so.
McGhee v National Coal Board
1. McGhee test
Sometimes damage may have multiple causes.
The claimant’s job exposed him to brick dust, which caused him to develop dermatitis and the defendants had not installed any showers. Since showers would only have lessened the risk, not removed it, the but for test did not work. The House of Lords stated that in cases where there was more than one possible cause, causation could be proved if the claimant could show that the defendant’s negligence had materially increased the risk of the injury. The lack of showers was held to substantially increase the risk to the claimant and he won his case.
Page v Smith (No 2)
1. McGhee test
Sometimes damage may have multiple causes.
An accident victim claimed that the shock reactivated a previous physical illness. The defendant claimed that the claimant had not proved that the accident had caused the recurrence of his illness. The court held that the question was did the accident, on the balance of probabilities, materially increase the risk of the claimant developing the symptoms?
Bailey v Ministry of Defence
1. McGhee test
Sometimes damage may have multiple causes.
The defendants were negligent at an earlier stage of Miss Bailey’s care, and she suffered brain damage after this, when she suffered a heart attack. There was evidence that it could have been caused by her own disease and/or her weakened state caused by the defendants’ earlier negligence. The court found in favour of Miss Bailey: in a case where medical science cannot prove that but for an act of negligence the injury would not have happened but can establish that the contribution of the negligent cause was more than negligible, the claimant will succeed.
Wilsher v Essex Health Authority
2. Wilsher test
Although the McGhee approach continues to be good law, the courts also use a different test which can lead to a quite different result. This alternative test was used in Wilsher v Essex Health Authority.
A claimant was born prematurely. As a result of the doctor’s negligence, the claimant was given too much oxygen and suffered blindness. However, evidence suggested that although the overdoses of oxygen could have caused the blindness, it could also have been caused by any one of five separate medical conditions he suffered from. It was held that the claimant had to prove, on a balance of probabilities, that the defendant’s breach of duty was a material cause of the injury; it was not enough to prove that the defendant had increased the risk that the damage might occur, or had added another possible cause of it. On the facts, the defendant’s negligence was only one of the possible causes of the damage, and this was not sufficient to prove causation.
Loss of a chance
A third approach is taken to ‘loss of a chance’ cases. Often these are medical negligence cases, for example, where a cancer patient has a certain percentage chance of being cured, but has that chance reduced by the doctor’s delay.
Hotson v East Berkshire Health Authority(Loss of a chance)
The claimant was a boy who fell from a rope and injured his knee. The hospital could not see any apparent injury and sent him home. The claimant went on to suffer avascular necrosis. Evidence suggested that while the condition could have arisen from the injury, there was a 25% chance that if he had been treated properly on his first visit the condition would not have developed. The Court of Appeal held that the claimant should receive 25% of the damages he would have gotten if the condition was wholly due to the defendant’s negligence, but the House of Lords ruled that this was wrong: the law required that the claimant should prove causation on a balance of probabilities, which required at least 51% (and not 25%) chance that the negligence caused the damage.
Gregg v Scott (This approach was challenged in Gregg v Scott.)
The claimant had a lump under his arm and visited two GPs. The first told him it was nothing to worry about, and the second referred him to a surgeon. The lump was diagnosed as cancer, and was shown to have developed between visiting the first and second GP. Statistics showed that there was a 58% chance of the cancer being incurable, and a 42% chance of being cured. The court held that the claimant could succeed only if he could prove that the defendant’s negligence made it more likely than not that he would not be cured. Since statistics showed that it was more likely than not that his cancer would not have been curable (58% vs 42%), this had not been proved.
Stovold v Barlows
Damages for loss of a chance have, however, been allowed for financial losses, where a claimant misses out on the chance of a lucrative deal, or a well-paid job, because of the defendant’s negligence.
The claimant claimed that the defendant’s negligence had caused him to lose the sale of his house. The court found that there was a 50% chance that the sale would have gone ahead had the defendant not been negligent, and so they upheld the claimant’s claim, but awarded him 50% of the damages.
