Negligence : Causation and remoteness of damage.
- Causation – Causation is relevant to all torts in which proof of damage is essential.
- It is important to link the tort (i.e. The breach of duty in the case of negligence) and not merely the defendant to the damage.
Causation – The basic rule
- The basic rule may be stated positively or negatively
- If the damage would still have occurred, even if the defendant had not broken the duty of care, then the breach did not cause the damage.
- If the damage would not have occurred but for the defendant’s breach of duty,then the breach of duty is a cause of the damage.
- The basic rule is therefore known as the ‘but for test’ – its main purpose is to exclude things that have no bearing on the damage.
- It is for the claimant to show that the breach of duty was the cause of the damage, and not for the defendant to show that the breach of duty was not the cause of the damage.
Causation – The basic rule.
- It is sufficient to show that on a balance of probabilities the breach caused the damage, or that it is more likely than not that the breach was a cause of the damage.
- If it is not more probable than not, even if it is a possibility, then the claimant recovers nothing.
- In many cases, the causation issue raises no problems at all, especially if the defendant is guilty of some wrongdoing, such as overtaking a vehicle at a blind spot or administering the wrong type of drug to a claimant.
- Usually it is very clear whether or not the act has caused the damage.
Causation – The basic rule
- There is likely to be difficulty in those cases where the defendant’s breach of duty consists of a failure to do something that should have been done.
- Here it is necessary to speculate about what would have happened if the defendant had not been guilty of this failure.
- See the various situations in the proceeding slides
Doubt about what the natural course of events would have been if the defendant had behaved properly.
- Barnett v Kensington Chelsea Hospital (1969) – The defendant doctor failed to diagnose the claimant as having an illness in need of treatment. Was it so serious that the defendant would have died even if proper diagnosis or treatment had been given?
- The Ogopogo (1971) – The defendant’s rescue efforts were Would the claimant have perished in the cold water before even a competent rescuer have saved her?
Doubt about how the defendant would subsequently have behaved.
- Bolitho v City and Hackney Health Authority (1998) – The doctor in breach of her duty failed to attend a patient, but she successfully argued that the action she would in fact have taken if she had attended would not have been negligent (was in accordance with a respectable body of professional opinion) and would not have saved the patient. The child would therefore have still been dead, even if she had performed her duty by attending. Her culpable failure to attend was therefore not the cause of death.
Doubt as to how the claimant would subsequently have behaved if defendant had performed his duty.
- McWilliams v Sir William Arrol (1962) – The defendant employers may have failed to provide safety equipment for their employees: would the deceased employee have used it, if it had been provided? If then, the failure to provide it, was not the cause of the injuries.
- ABOUT THE TUTOR
- JIDE OGUNDIMU IS A SOLICITOR OF ENGLAND AND WALES PROVIDING LEGAL SERVICES TO MEMBERS OF THE PUBLIC. HE IS REGULATED BY THE SOLICITORS REGULATION HE HAS LEGAL EXPERIENCE IN AREAS SUCH AS LANDLORD AND TENANT LAW, ANTI-SOCIAL BEHAVIOUR, WELFARE BENEFITS, DEBT AND MONEY ADVICE, NEIGHBOUR DISPUTES, CIVIL LITIGATION, FAMILY AND ESTATE MATTERS, PRIVATE LAW AND DATA PROTECTION. HTTPS://SOLICITORS.LAWSOCIETY.ORG.UK/PERSON/19333/JIDE-BENJAMIN-
A SOLICITOR AND ADVOCATE OF THE SUPREME COURT OF NIGERIA, JIDE WAS CALLED 30 YEARS AGO. HIS FIRM IN NIGERIA, JIDE OGUNDIMU & CO SOLICITORS HTTPS://JIDEOGUNDIMUCOSOLICITORS.CO.UK/ DEAL WITH ALL ASPECTS OF LAW, INCLUDING PROPERTY CONVEYANCING, LANDLORD AND TENANT LAW, ESTATE AND WILL PLANNING, CIVIL LITIGATION, PRIVATE LAW, INFRASTRUCTURE AND MEDIA LAW.
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