The rules of causation state that the claimant has to prove that the defendants breach of duty was the factual cause of material damage, when considering the facts of Barnett v Chelsea & Kensington Hospital Management Committee (CKHMC) where the claimants husband became ill after drinking tea which had arsenic, when taken to hospital, the doctor in the casualty department did not examine him and admit him. Instead, he asked the claimant’s husband to see his own GP, a few hours later he passed away.
The casualty doctor owed a duty of care and was in breach of his duty as he did not examine the patient, however, the court held that the doctor should not be liable to pay compensation as there was evidence that even if the doctor had not been negligent and had admitted the claimants husband to hospital he would have died of the arsenic poisoning, thus conveying the fundamental rule of factual causation. The test widely used to decide the issue of factual causation is the ‘but for’ test.
This is defined by M. A Jones “if harm to the claimant would not have occurred ‘but for’ the defendants negligence then that negligence is a cause of the harm… If the loss would have incurred in any event, the defendant’s conduct is not a cause. ” When applying the ‘but for’ test to the Barnett case it is found that as the claimants husband would have died from the arsenic poisoning regardless of the doctor not admitting the patient, the doctors negligence was thus not the cause of the death.
Another case which applied the ‘but for test’ was Robinson v Post office where a doctor gave his patient a miniscule test dose of an anti-tetanus injection, but instead of waiting for half an hour to see whether the patient was allergic the doctor waited 30 seconds and then administered the full dose. Nine days later the patient developed encephalitis as he was allergic to the serum and consequently died.
As was the case with the Barnett v CKHMC case the doctor involved with the Robinson v post office case owed a duty of care and was in breach of his duty as he did not follow the correct procedure, however it was held that the doctor was not liable as the doctor was not a cause of the patients death due to the fact that even if the doctor followed correct procedure the patient would have developed encephalitis regardless. Concurrent cases are cases whereby two defendants cause injury to a claimant and both are held liable.
A case where two defendants injured the claimant at the same time is Fitzgerald v Lane where the claimant crossed at a pedestrian crossing when the pedestrian light was red. Two cars, driven by D1 and D2 hit him. Both drivers were found to be negligent, but the evidence could not establish whether it was D1 or D2 who caused injury to his neck. Both defendants were held liable.
The first question which a judge has to determine is whether the claimant has established liability against one or other or all the defendants, i. e.that they, or one or more of them, were negligent and that that negligence caused or materially contributed to his injuries. In regards to cases where the claimant suffers damage through one cause and subsequently suffers damage through another cause, the judge has to determine whether it was the second incident which caused material damage. In performance cars ltd v Abraham defendant 1 (D1) negligently drove his car and damaged the claimants car. As a result of the damage by d1, the claimants car was in need of a repaint.
But before it was painted the second defendants car was involved in a collision with the claimants car and caused damage to the part of the car which was already in need of a repaint. The court therefore held that the second defendant was not liable to pay the claimant the cost of painting his car as the second defendant damaged a car which was in need of a repaint, the second defendant will only be liable for negligence if they had increased damage. Another case which involves consecutive causes is Baker v.
Willoughby where the claimant’s leg was injured due to the defendant’s negligence, however before the court case by the claimant against the defendant, the claimant was shot in his left leg by robbers and subsequently his leg had to be amputated. The defendant argued that he should only be liable to compensate the claimant for his injuries caused by the car accident only up to the date of the shooting, as the second injury completely obliterated the first.
The house of lords disagreed, lord Reid said “A man is not compensated for the physical injury; he is compensated for the loss which he suffers as a result of that injury” as D1’s actions led the claimant to not lead a full life the robbers did not increase the material damage this is further explained as Lord Reid stated that “his loss is not in having a stiff leg; it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and an inability to earn as much as he used to or could have earned if there had been no accident.
In this case the second injury did not diminish any of these” thus, the first defendant was held liable due to this fact. On the other hand, in other cases such as jobling vs associated Dairies Ltd. The criticisms of Lord Reids judgement are highlight by Lord Wilberforce.