Negligence - Causation The Traditional Division Causation and Remoteness ? A traditional analysis (often/usually) features 2 causal questions: 1. 'Cause in fact'- Was the defendant's breach of duty a factual cause of the damage? 2. 'Cause in law'/ 'remoteness'- the damage must not be too remote. Is the damage attributable to the defendant's breach of duty -legal responsibility- should any of the factual causes be excluded from being seen as causes by the law. 1) Factual Causation Principally approached through the 'but for' test The main technique is to ask what would have happened 'but for' the breach of duty Also referred to as 'causa sine qua non' THE "BUT FOR" TEST - The question is would C have suffered the harm as a question of fact 'but for' D's actions? If D had not been careless would C have suffered harm? 1 C must show that on the balance of probabilities he would not have suffered harm 'but for' D's actions. This is a lower standard of proof than 'beyond all reasonable doubt' and enables C to show that D's action made it slightly more likely than not that the harm occurred. Preliminary "but-for" test - Causa sine qua non ? NB there is no need to show that D's breach of duty was the cause of the injury. It is sufficient to show that it was a cause of the injury. This must be shown on the balance of probabilities. There is no need to be the cause, sufficient to be a cause (on balance of probabilities) ? If the injury would still have happened but for the breach, the 'but for' test is not passed. What the academics say ... The 'but for' test a) Stapleton: 'but for' is the only causal test in tort law - remoteness is not about causation at all, but responsibility b) Hart and Honore: 'but for' is not a sufficient test of 'causation' at all. It only identifies 'conditions precedent'. 'Cause' is more than this. Factual Causation-The 'but for' test Barnett v Chelsea Hospital [1968] 2 WLR 422 - Arsenic poisoning from drinking tea. - Complained of vomiting but sent home as a result of advice from the duty medical officer ? 5 hours later the C's died. 1 Application of the 'but for' test. Even speedy attention would not have saved the C's lives (assessed on the balance of probabilities). Claimant need only show that there is more than a 50% chance that the defendants breach caused the harm. It is more likely than not that that the defendant's breach contributed to the harm. Application of 'but for' Hypothetical acts of the claimant McWilliams v Sir William Arroll [1962] 1 WLR 295 - Even if safety equipment had been available, would not have worn it (on the evidence, on balance)
Bolitho v City and Hackney Health Authority [1996] 4 All ER 771 - Even if D had attended, would not have intubated ... (we also discussed this case in lecture