One of the most challenging aspects of a personal injury claim is proving causation – that is, the negligent act or omission of another person or body that caused the claimant to suffer harm.
There are two parts to causation.
The claimant must prove:
- the defendant’s breach in fact caused the injury and loss and
- the injury and loss were not too remote or unforeseeable
If the resulting harm was too remote or an unforeseeable consequence of the negligent act, a compensation claim is unlikely to succeed. The concepts of foreseeability and remoteness provide the controls needed to ensure frivolous and/or vexatious claims are unsuccessful.
The ‘but for’ test
When considering causation, as standard the courts will apply the ‘but for’ test. That is, ‘but for’ the defendants conduct, would the claimant have suffered the damage?
A famous example of the ‘but for’ test is Barnett v Chelsea & Kensington Hospital . This case involved three men who went to their local A&E complaining of stomach pains and vomiting. A nurse reported their complaints by telephone to the duty medical casualty officer who thereupon instructed her to tell the men to go home to bed and call in their own doctors. That she did. The men then left, and, about five hours later, one of them died from poisoning by arsenic which had been introduced into tea they had consumed.
Medical evidence confirmed the man might have died from the poisoning even if he had been admitted to a hospital ward and treated before his death.
His widow brought a claim against the hospital for negligence.
Justice Nield, sitting in the Queen’s Bench Division, confirmed the defendants owed the deceased a duty of care and this duty was breached when the medical examiner did not examine the patient. However, causation could not be shown as even if the deceased had been admitted to hospital and cared for, he probably would have died from the poisoning.
The balance of probabilities
When applying the ‘but for’ test, all factors will be considered and examined in light of the balance of probabilities. As a result, circumstances which on the face of it seem to show causation may still fail the test. A good example is Calvert v William Hill Credit . In this case, the defendant’s failure to close the claimant’s bookmaking account despite promising to, did not satisfy the ‘but for’ test as the court held, given the claimant’s prolific gambling habit, he would have spent all his money with other bookmakers regardless.
The ‘Fairchild’ exception
In cases involving industrial disease, the ‘but for’ test shows its limitations. For example, in McGhee v National Coal Board , the claimant developed severe dermatitis from brick dust. However, it was impossible to say that because the defendant had not provided adequate washing facilities, this had caused the disease, because dermatitis is cumulative, and the ‘but for’ test could not apply. It was possible to conclude that the lack of washing facilities increased the risk of dermatitis developing, and the House of Lords held that this was sufficient.
The raft of Mesothelioma cases that began to come through the courts in the late 1990s/ early 2000s further developed this exception. In Fairchild v Glenhaven Funeral Services Ltd t/a GH Dovener & Son , the court confirmed that where scientific knowledge could not prove the defendants conduct had caused the damage, it was sufficient for the claimant to prove the conduct had materially increased the risk of the damage being caused.
Remoteness of damage
The law on remoteness attempts to ensure that claimants are only compensated for what Justice Coleridge has called “the proximate and direct consequences of wrongful acts.
“Foreseeability is at the heart of remoteness of damage. In Polemis and Furness Withy & Co Ltd , the House of Lords held the defendant is liable for all the “reasonably foreseeable” consequences of a negligent act. In this case, the defendant had negligently discharged oil into Sydney harbour. The oil encountered sparks created by wielding on the claimant’s wharf. The fire that subsequently developed damaged the wharf and the claimant sued the defendant for negligence. The court found that the damage was not a reasonably foreseeable consequence of the fire and therefore the defendant could not be found liable.When it comes to personal injury cases, the general rule is where the type of damage was foreseeable, all injuries resulting from that type of damage will be recoverable.
The ‘eggshell skull’ principle
The decision in Smith v Leech Brain & Co , is an example of what is known as the ‘eggshell skull’ principle. The claimant was burned on his lip at work and this was held to be foreseeable. The burn then caused the claimant to develop a type of cancer to which he was predisposed. The cancer was plainly not foreseeable. However, the fact that the injury which caused the cancer was foreseeable meant the claimant was entitled to full damages.
The ‘eggshell skull’ principle only applies where negligence is the sole cause of more than ordinarily foreseeable damage. Where ‘but for’ the defendant’s negligence, the claimant’s problems would have developed anyway, the defendant will only be liable for the hastening they triggered.
In summary
The law surrounding causation can be highly complex. This is why it is crucial to instruct an experienced personal injury solicitor who specialises in negligence and can build a solid claim so you receive the maximum compensation possible. At Russell Worth Solicitors we specialise in personal injury claims. If you have suffered a workplace injury and would like a free claim assessment, please call us now on 0800 028 2060 or complete our Online Claim Assessment.
