Our legal system had instated a series of mechanism in order to determine

the rules of causation and remoteness of damage. These elements of

negligence rely heavily on objective and positivist tests to compensate
victims for their losses which had resulted from the defendants negligence.
Apart from satisfying the elements of duty of care from the defendants and to
show that they have breached that duty, one has to prove that factual
causation exists and that the damage is not too remote in order to establish
that negligence has occurred. This is because, although the damage may
have been factually caused by the defendant, the courts may decide that the
defendant should not have to pay for the full extent of the damage because it
is considered too remote. Issues are raised as to whether the purposes of
these elements in the law are met and how the courts should best go about
determining whether negligent acts will be deemed to be the cause of injury.
This is because some legal academicians and lawyers have argued that the
raison detre of the rules are more of a hindrance than a help.
Factual causation is generally known as the casual relationship between the
conduct and result and the test for it was propounded by Richard Wright in
the Causation in Tort Law article, known as the but for test, or also the
NESS test. The test was demonstrated in Barnett v Chelsea and
Kensington Hospital Management Committee 1969 whereby the
deceased would have died from arsenical poisoning regardless of whether the
defendant had attended to him or not. Hence, it could not be said that but for
the defendants negligence, the deceased would not have died. However, as
much as the but for test is intended to be the sole test, there is evidence that
the force of the waves is beginning to chip away at the edges of the but for
test and it seems likely that the process of erosion will accelerate in the
future. Richard Goldberg in Perspectives on Causation 2013 had
accused the test of not being able to handle situations where it is to be
determined whether the third partys actions caused the defendant to act in a
particular way (Mitchell v Glasgow City Council 2009). Regardless of that,
while the main but for test is not itself under threat, there is discernible
movement towards the modification of the tests to accommodate different
situations. This prompted calls for some changes to be made to the but for
test and with that, the courts departed from that test and introduced several
relaxed test.
Peter Gardenfors, a professor at the University of Lund, Sweeden has
pointed out a few problems in the nature of relation between cause and
effect. Sometimes, the damage suffered by the claimant may be caused by
more than one possible reasons. Conflicts arise as well when the claimant
could not prove the loss suffered was caused by the defendants negligence
and this could pose a trouble to the claimant. Therefore, in an attempt to find
a fair way to maneuver around the but for test, the court thus introduced the
material contribution test which is seen in the case of Bonnington
Castings v Wardlaw 1956 which had set precedent in minimizing the
injustice suffered by the claimant in which the defendant was found to be in
breach for not maintaining the swing grinders properly. Such a test is the
recognition of a liability for the employers material contribution to the
employees injury in a situation where part of the toxic exposure causing the

injury was innocent and part of it was attributable to the employers breach
of duty. Therefore, it was sufficiently proved that the dust from the grinders
had materially contributed in the contraction of pneumoconiosis by the
claimant. Although the claimant was awarded full damages, the COA now
held that claimant in such cases is entitled only to proportionate damages to
reflect the extent of the defendants wrongful contribution to the disease and
this is assessed by the time-exposure basis as in Holtby v Brigham &
Cowan 2003.
The court also formed the material increase in risk test in addition to the
modified test when they found themselves to be in a position in McGhee v
National Coal Board 1973. The defendant was found to be in breach of
duty for failing to provide adequate washing facilities which had materially
contributed to the risk of the claimant contracting dermatitis. It was
commented by Lord Reid that the fact the man had to cycle home caked
with grime and sweat added materially to the risk that this disease might
develop and the accumulation of the minor abrasions is therefore a necessary
precondition for the onset of the disease. This test is usually applied when the
medical evidence could not say whether the claimants injury was caused by
a cumulative process or a discrete one-off exposure for which the defendant
may or may not be responsible. It merely materially contributed to the risk of
the injury and the effect is to relax the ordinary rule of causation.
Establishing liability is also not a straightforward task when there are multiple
tortfeasors in a case. A case giving rise to this kind of situation is Fairchild v
Glenhaven Funeral Services Ltd 2003 where the claimants had each
worked for several employers for a period of time during which they were
exposed, through the employers negligence, to asbestos dust and suffered
mesothelioma. COA held that there is no way of identifying even on a BOP,
the source of the fibre which triggered mesothelioma and on this rock of
uncertainty, the claimants failed because they could not establish which
period of exposure had caused the damage. This decision which was
criticized was eventually reversed by the HOL and the defendants were found
to be jointly and severally liable. According to Lord Bingham, although it is
unjust to impose liability on a party who has not been shown, even on a BOP,
to have caused the damage complained of, there is a strong policy argument
in favour of compensating those who have suffered grave harm, at the
expense of their employers who owed them a duty to protect them against
that very harm and failed to do. The raison detre for the defendants to be
jointly and severally liable is that if you caused harm, there is no reason why
your liability should be reduced because someone else also caused the same
harm.
On causation issue in Williams v University of Birmingham 2011, the
COA followed the supreme courts decision in Sienkiewicz v Grief (UK)
2011 that to establish causation, all it was obliged to do was to make a
finding of fact that tortious exposure to asbestos fibres materially increased
the risk of contracting mesothelioma and not that the negligence had caused
the damages suffered. This is because the symptoms develop long while after
the asbestos fibres are inhaled and the time span for such a condition is
some 40 years, as provided by the medical evidence in Durham v BAI (Run

off) Ltd 2012. Jane Stapleton in The Fairchild doctrine: Arguments on

breach and materiality 2012 had commented that such a decision would
avoid the requirement of having to place an insuperable evidentiary burden
on claimants because they are unable to provide relative estimates of all
exposures suffered by the victim.
Although in theory the aim of the rules of factual causation are meant to
compensate the victims, there are such significant exceptions to this where
the court refused to award nominal damages. Causation was not established
in Wilsher v Essex Area Health Authority 1988 in which there were
multiple agents and that the defendants negligent act was just one of the
possible causes. Although on one side it can be argued that it is unfair to
impose liability on the defendant when the exact cause could not be
determined, it is also on the flip side of the coin possible to say that the
claimant will not have developed retrolental fibroplasis if the defendant had
not been negligent in his course of work. Thus, the courts should at least
award a minimal of damages to the claimant.
Over the years, it could be seen that the defendants are always trying to
reduce the extent of causation on their part which would in effect reduce
their liability to pay the compensation. In Barker v Corus UK Ltd 2006, the
claimants have died from mesothelioma and the claim was brought against
the solvent defendants. However, instead of being jointly and severally liable,
the HOL found that the defendants should not be liable for more than the
damage which he caused, but only for the time of exposure suffered by the
claimants. This was to reduce the burden placed on the defendants but this
effect was reversed shortly after that by S3 Compensation Act 2006. This
Act states that all defendants are now jointly and severally liable but it should
be noted that this only applies to mesothelioma. In a fairly recent case of
International Energy Group Ltd v Zurich Insurance plc UK 2013,
Toulson LJ had pointed out that they are required to indemnify its insured
employer in full, and not for the proportion of risk to which the employer had
tortiously exposed its employee. However, it had to be noted that Lord
Phillips (President of SC of England) in Durham v BAI (Run off) Ltd
2012 had dissented and suggested that insurance policies should not cover
mesothelioma claims where the year of contraction cannot be proven. He was
of the opinion that it is the prerogative of Parliament and not the courts, to
impose liability on insurers when their insured cannot prove injury was
caused during a specific period of cover.
It is debatable that the decisions made by the courts reveal a great variance
across the legal system in the recognition and scope of application regarding
loss of chance. In Hotson v East Berkshire Area Health Authority 1987,
Lord Bridge with the leading judgment decided that the claimants fall was
the sole cause of the medical condition and therefore had failed to prove on
balance of probabilities that his deformed hip was caused by the authoritys
breach of duty in delaying over a period of 5 years a proper diagnosis and
treatment. Similarly, in Gregg v Scott 2005, a lump was wrongly diagnosed
as harmless and caused in a delay of treatment of 9 months, which has
reduced the claimants chance of survival for 10 years from 45% to 25%.
According to Lord Hoffmann, the initial chance of recovery is only 45%,

which means that even if it had been diagnosed earlier, he still would not
have recovered. However, Lord Nicholls in his dissenting judgment held
that the loss of 45% prospect of recovery is just as much a real loss for a
patient as the loss of a 55% prospect of recovery and he should have a right
to a remedy. There is much truth behind Lord Nicholls statement in the eyes
of a reasonable man. Strict adherence to judicial precedence will only lead to
injustice to the victim.
Having said that, Rothwell v Chemical & Insulating Ct Ltd 2008 affirmed
Hotson and Gregg but according to Chaplin v Hicks 1911, damages may be
awarded for the loss of a chance in contract law, but not in tort. A recent
development in the law seemed to shine some ray of hope for claimants in
cases of loss of chance. Wright v Cambridge Medical Group (A
Partnership) 2011 demonstrated that the defendants negligence was a but
for cause of the damage to the claimants hip which had developed a
bacterial super-infection. Lord Neuberger MR pointed out that any delay in
having C seen by doctors at South Cleveland Hospital increased the potential
that she would end up suffering permanent damage.
The issue is further addressed by the contribution of NAI to the claimants
claim. Lord Wright had put it in The Oropesa 1943 that for an intervening
act to amount to a break in the chain of causation, it must be extraneous,
unwarrantable or unreasonable act. When there is a break in the causal link,
the defendant will only be liable for such damage as occurred up to the
intervening event. Demonstrated in Knightley v Johns 1982, Stephenson
LJ held that the inspectors negligence was a new cause disturbing the
sequence of events, and therefore his act had broken the causal link between
the first defendants negligence and the claimants injury. Similarly, acts by
the claimant himself can limit the liability imposed on the defendant as seen
in McKew v Holland and Hannen and Cubitts (Scotland) 1969 whereby
the claimants act was held by the court to be unreasonable and therefore
breaking the causal link. However, Sedley LJ in Spencer v Wincanton
Holdings 2009 thought that unreasonable was too vague a concept as its
fine distinctions run from irrationality to simple incaution or unwisdom. He
therefore preferred to ground his reasoning in fairness. He also thought that if
contributory negligence had been pleaded in McKew, the outcome would be
different.
The issue of suicide has never been able to escape the discussion when it
comes to NAI. In Kirkham v Chief Constable of Greater Manchester
Police 1990 and Reeves v Commissioner of Police for the Metropolis
2000, it was shown that the suicide of a prisoner in police custody did not
break the chain of causation regardless of their clarity of mind, provided that
a DOC was owed by the defendant to take steps to prevent it. This is later
reaffirmed by Corr v IBS Vehicles Ltd 2008 whereby it was held by Lord
Scott that the suicide was a reasonably foreseeable consequence of the
defendants negligence to cause the deceased to be depressed. It is noted
that the 3 decisions are in line with Art 2 ECHR whereby, once a person in
custody had been identified as a suicide risk, Art 2 required reasonable steps
to be taken to prevent that suicide.

It is therefore acknowledged that these rules aim to compensate the

claimants for loss and injury arising from the defendants negligence but
there are times where the courts failed to look beyond its purpose while
delivering their judgment. Many issues have been hidden beneath the
beguiling veneer of the factual causation and as Lord Hoffmann had put it,
the reason why courts set the wrong answer on questions of causation is not
usually because they have misunderstood the facts, but because they have
got the law wrong. Having said that, the but-for test and its modifications still
play an important role in the law of tort today and it can be seen in Hanke v
Resurfice Corp 2007 which was decided by using the but for test. Despite
the flaws existed that were discussed earlier, they will not pose a great
impact in the long run as the law is dynamic and does not remain static only.
After all, as Aristotle had been quoted off saying, even when the laws have
been written down, they ought not always to remain unaltered. At the end of
the day, it is the balance between justice and fairness that needs to be
struck.