Causation- Part 1 Causation - two elements - Factual causation - the 'but for' test ? Legal causation - remoteness 1 Remoteness is the chain of responsibility, how far down the line did the harm occur? Causation - pause for thought! ? D hits the rear of C's car which had stopped at a red traffic light. C's arm is broken in the accident. ? Did D cause C to break his arm? What if ... - C went to hospital and the hospital treated C incorrectly. The break became infected and C had to have his arm amputated. - Did D cause C to lose his arm? What if ... - C refused to go to hospital as he had to attend an important meeting. The delay in treatment meant that C suffered nerve damage and lost the use of his arm? ? Did D cause C's paralysis? Causation - the 'but for' test ? "But for his actions did the D cause this ... " Barnett v Chelsea & Kensington Hospital ? Group of workers on a night shift due to them being ill, doctor told them to go home, one of them later died, they tried to claim that he died because he didn't see him however it was found he had arsenic poisoning 1 The but for test failed because it wasn't the doctor's fault, it was the poison Brooks v Home Office ? Baby died due to an inexperienced doctor, D is not negligent because it would have been the same outside the jail, she wouldn't have been treated any quicker than she would have now Causation - the 'but for' test ? Sometimes it is not obvious what would have happened 'but for' D's negligent act: ? Chester v Afshar (2004) 4 All ER 812: 1 Decision appears limited to medical cases following the subsequent decision in Paul Davidson v White tt2004ff EWCA Civ 1511 Chester v Afshar ? C wasn't told that there was a risk in the surgery if she were to go through with the operation, that risk was materialised and that patient came out even worse, her argument was that if she was known to the risks then she wouldn't have done it, which the court were considering 1 Found out to be that the doctor was negligent in not telling her the risk, he caused those injuries upon her Causation - the 'but for' test - problem areas - More than one potential cause of harm ? Loss of chance ? Contribution by C to harm suffered Causation - the 'but for' test - multiple causes of harm - The harm may have more than one potential cause ? McGhee v NCB [1972] Not necessary to show D's act SOLE cause only that it has materially increased risk of harm suffered.
Similar decisions reached in Page v Smith ttno 2ff [1996] and Bailey v MOD [2008] McGhee v NCB ? Related to a minor ttCoalff, who was subject to