Topic 4 - Negligence - Factual Causation - 2023

Chinese University of Hong Kong
Faculty of Law
Tort 1
Laws 2131
Negligence
Factual Causation
Peter Rhodes
(Updated based on power points prepared by Prof. N. Witzleb)
Term 1 – 2023
Topic 4
Tort 1 - Negligence - Factual Causation 2023 1

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Causation
Factual Causation
Cause In Fact
Cause in Fact – factual causation – were the defendant’s acts or
omissions (breach of duty) the factual cause of the plaintiff’s
damage?
So v HSBC [2009] EWCA 296
Etherton LJ
“… it is essentially a matter of fact whether the

defendant’s breach of duty was an effective cause of the
loss.”

Causation
Factual Causation
Cause In Fact
• Defendant only liable if his breach of duty (wrongful conduct)

factually "caused” the plaintiff’s injury (damage)
• Factual causation (cause in fact) examines the factual sufficiency

of the connection between the defendant’s breach of duty
(wrongful conduct) and plaintiffs’ injury (damage).
• Factual causation is concerned with imposing tort liability only

on the party that factually caused the injury (damage) suffered
by the plaintiff

Causation
Factual Causation
Cause In Fact
• Factual causation is a control mechanism which allows the court
to impose liability on a defendant, within fair and reasonable
limits.
Fairchild v Glenhaven Funeral Services [2003] 1 AC 32

Lord Hoffmann
“…[It] is axiomatic that the law will not impose liability to pay
compensation for damage unless there is a relevant causal
connection between the damage and the defendant’s tort….”

Causation
Factual Causation
Subsequent Intervening Acts
Novus Actus Interveniens
• Events following the defendant’s breach of duty may add to to

the plaintiff’s damage or inflict new damage
• Need to consider if these subsequent events break the chain of

causation
• Novus Actus Interveniens (second cause) – an issue of whether

the defendant should be liable for all plaintiff’s damage given
other contributing factors or causes to plaintiff’s damage

Causation
Legal Causation
Remoteness of Damage
Cause in Law – remoteness – even if plaintiff’s damage was

factually caused by the defendant it may be held that legally the
defendant is not liable as the damage is too remote from the
breach.
Andrew Graham Young v Ho Chun Kit Peter [2012] HKEC 656

Bharwaney J
“In the case of most torts, however, the cause of action is not
complete until it has been established that the negligent act or
omission has caused some actual damage which is not, in law,
too remote.”

Causation
Legal Causation
Remoteness of Damage
• Defendant is not liable for all the consequences of a breach of
her duty of care
• Where the consequences of a breach of a duty of care are so

unusual, they may be held to be too remote and the
defendant not liable for such unusual losses (damage)
• Normally, where the type or kind of injury or damage is not

reasonably foreseeable it will be held to be too remote and
defendant not liable for such injury and damage.
• Remoteness of damage is a control mechanism to restrict

liability of defendant within fair and reasonable limits
Causation
Factual and Legal Causation
• The difference explained

Wright v Cambridge Medical Group [2011] EWCA Civ 669
Elias LJ
“It is clear that the doctor owed a duty of care to the claimant,
and that the failure to examine the patient on the
Wednesday involved a breach of that duty. Thereafter the
relevant question is whether as a matter of law the breach
of duty caused the injury. This raises two sub-questions as
the observations of Lord Nicholls’ judgment in the Kuwait
Airlines [2002] 2AC 883 case….makes clear.

Causation
Factual and Legal Causation
• The difference explained
Elias LJ (continued)
The first is whether in fact the breach caused the loss, or at

least materially contributed to it. If so, the second question
is whether it is appropriate to impose liability for that
breach. That raises issues of policy as to whether a defendant
ought to be liable for the particular damage caused. This is
sometimes described as asking whether there is causation in
law.”

Causation
Legal v Clinical Causation
• Courts have held that although medical experts may assist the
judge, causation is ultimately an issue for the judge to decide.
Ocean Tramping Co Ltd v Lee Kin Hai [1991] 2 HKLR 232

Hunter J
“Causation is a matter for the judge not for the doctors.”
‒Wong Ka Wai Johnny v Lee Man Wai [2012] HKEC 75

‒Graham Leslie Thorley v Sandwell & West Birmingham
Hospitals NHS Trust [2021] EWHC 2604

Causation
Legal v Clinical Causation
• Courts have held that although medical experts may assist the judge,
causation is ultimately an issue for the judge to decide.
Tam Wai Tuen v Seiko Screw Manufactory Ltd [2009] HKEC 2057
Yu J
“The learned judge (Hunter J) further pointed out that law and
medicine apply different standards on causation. In law, there is a
sufficient causation if it is shown on the balance of probabilities that the
defendant’s breach was a substantially contributing cause of the injury. A
cause is sufficient. It need not be shown to be the sole cause. Doctors on
the other hand, look for clinical cause or the science of aetiology, what
Lord Kilbrandon called “an irrefragable chain of causation in McGhee v
National Coal Board [1973] 1 WLR 1.”

Causation
Legal v Scientific Causation
• Courts have held that although scientific experts and evidence may
assist the judge, causation is ultimately an issue for the judge to
decide.
Saunderson & Others v Sonae Industria (UK) Ltd [2015] EWHC
2264
Jay J.
“The fourth legal issue which arises is the difference between
the legal and scientific standard of proof. The Court of Appeal has
stated on a number of occasions that there is a difference between
these two standards (see, for example, the judgment of Smith LJ in
MOD v Wood [2011] EWCA Civ 792), but what is more difficult is
to specify exactly what it is.”

Causation
Damage and Causation
• Plaintiff has no action in negligence unless she has suffered damage caused by the
defendant’s breach of duty
• The damage caused by the defendant’s breach of duty must be actual damage of a
kind or type recognized by the law
– Physical Injury – Donoghue v Stevenson [1932] AC 526
– Property Damage
– Spartan Steel & Alloys Ltd v Martin [1973] 1 QB 27
– Yearworth v North Bristol NHS Trust [2009] 2 ALL ER 986
– Psychiatric Injury – Page v Smith [1996] AC 155
– Pure Economic Loss – Hedley Byrne & Co v Heller & Partners
– Other types of damage? (incremental approach – law will be slow to recognize
new heads of damage) (e.g. emotional damage, injury to feelings)

Causation
Necessity for Damage – Actual Damage
Johnston and others v NEI International and others [2007] UKHL 39
Lord Hoffmann
“Some causes of action arise without proof of damage. Trespass and breach of
contract are examples. Proof of the trespass or breach of contract is enough to found a
cause of action. If no actual damage is proved, the claimant is entitled to nominal
damages. But a claim in tort based on negligence is incomplete without proof of
damage. Damage in this sense is an abstract concept of being worse off, physically or
economically, so that compensation is an appropriate remedy. It does not mean
simply a physical change, which is consistent with making one better, as in the case of a
successful operation, or with being neutral, having no perceptible effect upon one’s
health or capability….
How much worse off must one be? An action for compensation should not be set in
motion on account of a trivial injury. De minimis non curat lex. But whether an injury
is sufficiently serious to found a claim for compensation or too trivial to justify a
remedy is a question of degree.”

Causation
Necessity for Damage – Actual Damage
Cartledge v E. Jopling & Sons Ltd [1963] AC 758

Lord Evershed
“… real damage as distinct from minimal damage.”
Lord Reid
“… injury suffered is beyond what can be regarded as negligible.”

Causation
Necessity for Damage – Actionable Damage
Dryden and Others v Johnson Matthey plc [2018] UKSC 18
Lord Reed
“In summary, the claimants argue that platinum salt sensitisation

constituted a physical change to their bodies which amounted to material
damage in that they were worse off than they would have been but for
their employer’s breach of duty. By virtue of their sensitization, they were
likely to develop an allergy if further exposed to platinum salts. Their bodies
were now in a state that made them unfit for further work in areas where
they may be exposed to salts (“red zones”), and this constituted a real loss
of amenity and qualified as an actionable personal injury.

Causation
Lord Reed (continued)
The company supports the reasoning of Jay J and the Court of Appeal. It argues
that platinum salt sensitization is not an actionable personal injury and that
the claims is in reality one for pure economic loss for which the claimants are
not entitled to recover, either in tort or through the medium of a term implied
into their employment contracts. The claimants cannot establish actionable
personal injury, say Johnson Matthey, by adding the financial consequences of
the sensitisation to the physiological changes in their bodies…
The physiological changes to the claimants’ bodies may not be as obviously
harmful as, say, the loss of a limb, or asthma or dermatitis, but harmful they
undoubtedly are.

Causation
Lord Reed (continued)
The Cartledge case [1963] AC 758 establishes that the absence of symptoms does not
prevent a condition amounting to actionable personal injury, and an acceptance of
that is also implicit in the sun sensitivity example, in which the symptoms would
only be felt upon exposure to sunshine, just as the symptoms here would only be
felt upon exposure to platinum salts. What has happened to the claimants is that
their bodily capacity for work has been impaired and they are therefore
significantly worse off. They have, in my view, suffered actionable bodily damage,
or personal injury, which, given its impact on their lives, is certainly more than
negligible…
In these circumstances, it is unnecessary to say anything further about the claimants’
alternative argument that they should be able to recover for pure financial loss. I
would allow the appeals on the claimants’ first ground, having concluded that they
do have a cause of action in negligence/statutory duty against the company.”

Causation
Future Possibility of Damage – Non Actionable Damage
Johnston and others v NEI International and others [2007] UKHL 39

Lord Hoffmann
“The question is whether someone who has been negligently

exposed to asbestos in the course of his employment can sue his
employer for damages on the ground that he has developed pleural
plaques. These are areas of fibrous thickening of the pleural
membrane which surrounds the lungs. Save in very exceptional cases,
they cause no symptoms. Nor do they cause other asbestos-related
diseases. But they signal the presence in the lungs and pleura of
asbestos fibres which may independently cause life-threatening or
fatal diseases such as asbestosis or mesothelioma. In consequence, a
diagnosis of pleural plaques may cause the patient to contemplate
his future with anxiety or even suffer clinical depression…

Causation
Lord Hoffmann (continued)

Proof of damage is an essential element in a claim in negligence and in
my opinion the symptomless plaques are not compensatable damage.
Neither do the risk of future illness or anxiety about the possibility of
that risk materialising amount to damage for the purpose of creating a
cause of action, although the law allows both to be taken into account in
computing the loss suffered by someone who has actually suffered some
compensatable physical injury and therefore has a cause of action. In the
absence of such compensatable injury, however, there is no cause of
action under which damages may be claimed and therefore no
computation of loss in which the risk and anxiety may be taken into
account.”

Causation
It follows that in my opinion the development of pleural plaques,

whether or not associated with the risk of future disease and anxiety
about the future, is not actionable injury. The same is true even if the
anxiety causes a recognised psychiatric illness such as clinical depression.
The right to protection against psychiatric illness is limited and does not
extend to an illness which would be suffered only by an unusually
vulnerable person because of apprehension that he may suffer a tortious
injury. The risk of the future disease is not actionable and neither is a
psychiatric illness caused by contemplation of that risk.”

Causation
Factual Causation
• Pragmatic approach
• Causation given its ordinary meaning
Yorkshire Dale Steamship Co Ltd v Minister of War Transport

[1942] AC 691, 706
Lord Wright
“Causation is to be understood as the man in the street and not as

either the scientist or the metaphysician would understand it”

Causation
Factual Causation
• Reasonable Inferences from proven facts
• Causation in fact is concerned with the question of whether as a matter of

fact the plaintiff’s damage was caused by the defendant’s breach of duty.
This may involve reasonable inferences from established facts.
Chauhan v Paul [1998] CLY 3990
Wall JA
“In my judgment, whether or not the injury was “caused by” the animal is
essentially an issue of fact. Thus, to take one of the examples canvassed in
argument, if an innocuous dog barks at me as I am walking along the pavement
and as a result I jump into the path of an approaching car, it may well be that any
injuries I suffer were not caused by the dog, but by my excessive reaction to the
dog’s bark. It would furthermore be difficult for the owner of that dog reasonably
to foresee that when taking it for a walk its act of barking would have the
consequences described.

Causation
Factual Causation
• Reasonable Inferences from proven facts
Chauhan v Paul [1998] CLY 3990
Wall JA (continued….)
However, if I am approached at speed by a large dog whose intentions may
(unbeknown to me) be friendly; if as a consequence I take the reasonable
decision to remove myself from the scene as soon as possible; and if in
the process of running away I am chased by the dog and injure myself by
falling over or having a heart attack, on these facts the damage I suffer
is, in my judgment, caused by the dog.”

Causation
Factual Causation
• Common Sense Approach
• Court exercising its judgement in determining causation
Galoo Ltd v Bright Grahame Murray (1994) 1 WLR 1360

Glidewell LJ
“How does the court decide whether the breach of duty was
the cause of the loss or merely the occasion for the
loss?.....The answer in the end is by the application of the
court’s common sense.”

Causation
Factual Causation
• Common Sense Approach
• Court exercising its judgement in determining causation
Mario Schembri v Ian Marshall [2020] EWCA Civ 358
McCombe LJ
“But where a claimant proves both that a defendant was negligent and that loss
ensued which was of a kind likely to have resulted from such negligence, this will
ordinarily be enough to enable a court to infer that it was probably so caused,
even if the claimant is unable to prove positively the precise mechanism. That is
not a principle of law nor does it involve an alteration in the burden of proof;
rather, it is a matter of applying common sense. The court must consider any
alternative theories of causation advanced by the defendant before reaching its
conclusion about where the probability lies. If it concludes that the only alternative
suggestions put forward by the defendant are on balance improbable, that is likely
to fortify the court’s conclusion that it is legitimate to infer that the loss was
caused by the proven negligence.”

Causation
Factual Causation
• Limits to the Common Sense Approach
• Other negligence elements (e.g. duty may need to be
considered in determining factual causation)
Wright v Cambridge Medical Group [2011] EWCA Civ 669
Smith JA
“…sometimes the resolution of the issue will be a simple
matter of common sense applied to the sequence of events.
In other cases, it will be necessary to examine the nature
and extent of the defendant’s duty and the purpose for
which the cause of action against him exists.”

Causation
The “but for” Test
• Starting point – initial test for factual causation
• Screening device to eliminate causes not connected with the outcome
Fairchild v Glenhaven Funeral Services Ltd [2003] 1AC 32

Lord Nicholls
“In the normal way, in order to recover damages for negligence, a plaintiff
must prove that but for the defendant’s wrongful conduct he would
not have sustained the harm or loss in question. He must establish at
least this degree of causal connection between his damage and the
defendant’s conduct before the defendant will be held responsible for
the damage.”

Causation
• Starting point – initial test for factual causation
• An undemanding test
Ho Ka Yin v Express Security Ltd [2011] HKEC 975

McWalters J
“The test that is used to identify the factual cause of an

accident is referred to as the “but for” test. It has been long
accepted and applied by the courts of Hong Kong.”

Causation
Ask
• Would the plaintiff’s damage have occurred but for the
defendant’s breach of duty?
Answer
• If answer is yes, this suggests that the plaintiff would have
suffered the damage whether or not the defendant breached
her duty. (factual causation not established).
• If the answer is no, the defendant’s breach of duty has caused
the plaintiff’s damage (factual causation established).

Causation
The “but for” Test Explained
Clerk and Lindsell on Torts (21st Ed.) states at paragraph 2-09:

“The first step in establishing causation is to eliminate irrelevant causes, and
this is the purpose of the “but for” test. The Courts are concerned not to
identify all of the possible causes of a particular incident, but with the
effective cause of the resulting damage in order to assign responsibility for
that damage. The “but for” test asks: would the damage of which the
Claimant complains of have occurred “but for” the negligence (or other
wrongdoing) of the Defendant? Or to put it more accurately, can the
Claimant adduce evidence to show that it is more likely than not, more than
50% probable, that “but for” the Defendant’s wrongdoing the relevant
damage would not have occurred…… It is worth bearing in mind that the
“but for” test functions as an exclusionary test, i.e. its purpose is to exclude
from consideration irrelevant causes.”
Tort 1 - Negligence - Factual Causation

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Causation
The “but for” Test Explained
(continued)
“The fact that the Defendant’s conduct is found to be a cause,
applying the “but for” test, is not conclusive as to whether he
should be held responsible in law since the function of the
causal enquiry in law is to determine which causes have
significance for the purpose of attributing legal responsibility. It
is sometimes said that the law seeks the causa causans (effective
factor) rather than the causa sine qua non (factors without which
damage could not have occurred).”

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Causation
The “but for” Test – Application
• Barnett v Chelsea and Kensington Hospital Management

Committee [1969] 1 QB 428
• McWilliams v Sir William Arral Ltd [1962] 1 All ER 623
• Miezianko v Bjorkdale Lions Club Inc (2007) SKCA 122
• Yu-Mei Chu v State Rail Authority of New South Wales [2007]
NSWDC 41; [2008] NSWCA 14
• Mulcahy v Castles Solicitors [2013] EWCA Civ 1686
• AW Group Ltd v Taylor Waltons (A firm) [2014] EWCA Civ 592
• Sims v Maclennan [2015] EWHC 2739

Causation
The “but for” Test – Application
• Beaumont v Ferrer [2016] EWCA Civ 768

• DS v Northern Lincolnshire and Goole NHS foundation Trust
[2016] EWHC 1246
• John v Central Manchester and Manchester Children’s
University Hospital NHS Trust [2016] EWHC 407
• Tiuta International Ltd (In Liquidation) v De Villiers Chartered
Surveyors Ltd [2016] EWCA Civ 661
• Arksey v Cambridge University Hospitals NHS Trust [2019]
EWHC 1276

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Causation
Effective Cause
• In some circumstances - need to go beyond “but for” test

• Show defendant’s conduct (breach of duty) was the effective
cause of plaintiff’s harm (damage)
• Need to prove that defendant’s conduct (breach of duty) was
more than the creation of opportunity for the incident leading
to plaintiff’s harm (damage) – this is particularly so in cases of
negligent financial advice that leads to loss caused or made
worse by extraneous factors.

Causation
Effective Cause
• Courts have considered this as an issue of scope of the duty (valuation –
financial, professional advice situations)
‒ SAAMCO v York Montague Ltd [1997] AC 191
• Courts have extended scope of duty principle to clinical negligence

claims
‒ Khan v Meadows [2021] UKSC 21
• Scope of duty governed by purpose of the duty, judged on an objective

basis by reference to the reason for which the advice is being given
‒ Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20
‒ Chen Fenglan v Kao, Lee & Yip Solicitors [2022] /HKEC 4780

Causation
Effective Cause
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360
Lord Hobhouse (dissenting)
“Any disputed question of causation (factual or legal) will involve a

number of factual events or conditions which satisfy the “but for” test.
A process of evaluation and selection has then to take place. It may, for
example, be necessary to distinguish between what factually are
necessary and sufficient causes. It may be necessary to distinguish
between those conditions or events which merely provide the occasion
or opportunity for a given consequence and those which in the ordinary
use of language would (independently of any imposed legal criterion) be
said to have caused the relevant consequence. Thus certain causes will
be discarded as insignificant and one cause may be selected as the
cause.”

Causation
Effective Cause – Application
• Galoo Ltd v Bright Graham Murray [1995] 1 All ER 16

• Wong Sau Kam v Shum Yuk Fong & Others [2001] HCPI 798
of 1998
• Guang Xin Enterprise Ltd v Kwan Wong Tang Fong [2002] 2
HKLRD 319
• Wright v Cambridge Medical Group [2011] EWCA Civ 669
• Howmet v Economy Devices Ltd [2016] EWCA Civ 847
• Manchester Building Society v Grant Thornton [2018] EWHC
963
• AssetCo Plc v Grant Thornton [2020] EWCA Civ 1151

Causation
Hypothetical Omission
• In some circumstances the court may be required to consider the causal effect of a
hypothetical omission.
• Bolitho v City and Hackney Health Authority [1998] AC 232
A 2 year old boy was admitted to hospital with breathing problems. The boy’s
breathing deteriorated and on 2 occasions the nurse asked the doctor in charge to
see the boy but she failed to do so. The child suffered cardiac arrest and died. The
doctor was negligent in not attending the boy but argued that her non-attendance
did not cause his death. The doctor argued that even if she had attended the boy,
given his symptoms, she would have done nothing and left him for further
observation. The plaintiff argued that the doctor was negligent for failing to
intubate the boy if she had attended him. The doctor argued failure to intubate, if
she had attended, was not negligent and supported by a body of responsible
medical opinion.

Causation
• In deciding the question of causation in Bolitho, the House of Lords asked
not simply “Would the doctor have intubated if she had attended, but
should the doctor have intubated in the circumstances?”
• The House of Lords held that causation could be established if the plaintiff
proved either that the doctor would have intubated if she attended or that
she should have intubated if she had attended, because it would have
been negligent not to do so.

Causation
• Bolitho v City and Hackney Health Authority [1998] AC 232
Lord Browne Wilkinson
“In all cases of causation the primary question is one of fact: did the
wrongful act cause the injury? But in cases where the breach of duty
consists of an omission to do an act which ought to be done (eg. the
failure of the doctor to attend) that factual enquiry is, by definition, in
the realms of hypothesis. The question is what would have happened if
an event which by definition did not occur had occurred….the question
of what would have happened was not conclusive, because, if the doctor
ought, in order to have met proper professional standards of care, to have
intubated the child, that would have been enough to establish causation.
The doctor could not escape liability by establishing she would have
hypothetically broken another duty of care.”

Causation
Hypothetical Omission – Application
• Beary v Pall Mall Investments [2005] EWCA 415

• Joyce v Merton Sutton and Wandsworth HA [1996] 7 Med
LRI
• Josephine Robbins v London Borough of Bexley [2013]
EWCA Civ 1233
• Shah v North West London Hospital NHS Trust [2013]
EWHC 4088

Causation
Multiple Possible Causes
Concurrent Causes – Indeterminate Causes
• The situation where there may be more than one possible cause, the
possible causes occurring almost at the same time (simultaneously)
• Only one operative cause of the injury involving multiple defendants
• Over-determination situation, where each of the more than one

possible causal factors might have caused the injury
• But for test unable to establish which party caused the injury, although
it must be one of them – result none of defendants a factual cause
• Pragmatic solution by the courts in reversing the burden of proving

causation and each defendant held jointly and severally liable. (both
events held to be a factual cause)

Causation
Concurrent Causes – Indeterminate Causes
• Defendant’s only able to escape liability by showing that their

conduct did not cause the plaintiff injury
• One operative cause but more than one defendant who possibly
caused the damage.
Summers v Tice 119 P. 2d 1 (1948)
Cook v Lewis [1951] S.C.R. 830

Causation
Concurrent Causes – Cumulative Cause
• The situation where there may be more than one possible cause, the causes
occurring at almost the same time (consecutively)
• More than one operative cause involving multiple defendants combining to cause
the damage
• One defendant causes injury which is followed by a second defendant causing
additional injury to the plaintiff
• The acts of the defendant’s combine to produce a single outcome
• Plaintiff unable to prove which defendant's act caused what injury to the plaintiff
• Pragmatic solution by the courts - apportioning liability
The Koursk [1924] P 140
Fitzgerald v Lane [1987] QB 781

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Causation
Successive (Independent) Causes
• Situation where successive independent acts cause injury to the plaintiff
and acts of second defendant or natural event overtakes or obliterates
the damage caused by the first defendant
• Issue of whether effects of first act are overtaken by effect of the second
act (is loss after second event factually connected to defendant’s
negligence)
– Property damage
• Performance Cars Ltd v Abraham [1962] 1 QB 33
• Carlslogie SS Co v Royal Norwegian Government [1952] AC 292
– Personal injury
• Baker v Willoughby [1970] AC 467
• Jobling v Associated Dairies Ltd [1982] AC 794
• Rahman v Arearose Ltd [2001] QB 351
• Wright v Cambridge Medical Group [2011] EWCA Civ 669

Causation
Baker v Willoughby [1970] AC 467
Lord Reid
“…If it were the case that in the eye of the law an effect could only have
one cause then the respondent might be right. It is always necessary to
prove that any loss for which damages can be given was caused by the
defendant’s negligent act. But it is a commonplace that the law regards
many events as having two causes: that happens whenever there is
contributory negligence for then the law says that the injury was caused
both by the negligence of the defendant and by the negligence of the
plaintiff. And generally it does not matter which negligence occurred first
in point of time.

Causation
Lord Reid (continued)
I see no reason why the appellant’s present disability cannot
be regarded as having two causes…
These cases (including Performance Cars) exemplify the

general rule that a wrongdoer must take the plaintiff (or his
property) as he finds him: that may be to his advantage or
disadvantage. In the present case the robber is not
responsible or liable for the damage caused by the
respondent: he would only have to pay for additional loss to
the appellant by reason of his now having an artificial limb
instead of a stiff leg….

Causation
Lord Reid (continued)

A man is not compensated for the physical injury: he is
compensated for the loss which he suffers as a result of that
injury. His loss is not in having a stiff leg: it is in his inability to
lead a full life ...... and his inability to earn as much as he used
to earn or could have earned if there had been no accident In
this case, the second injury did not diminish any of these
(losses). So why should it be regarded as having obliterated or
superseded them”

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Causation
Jobling v Associated Dairies Ltd [1982] AC 794
Lord Wilberforce
“…Causation arguments. The unsatisfactory character of

these is demonstrated by Baker v Willoughby [1970] AC 467.
I think that it can now be seen that Lord Reid’s theory of
concurrent causes even if workable on the particular facts of
Baker v Willoughby (where successive injuries were sustained
by the same limb) is as a general solution not supported by
the authority he invokes (Harwood v Wyken Colliery Co
[1913] 2 KB 158) nor workable in other cases….

Causation
Lord Wilberforce (continued)
In the present, and in other industrial injury cases, there

seems to me no justification for disregarding the fact that the
injured man’s employer is insured – indeed since 1972
compulsorily insured – against liability to his employees. The
state has decided, in other words, on a spreading of
risk…..Without any satisfaction I draw from this the
conclusion that no general, logical, or universally fair rules
can be stated which will cover, in a manner consistent with
justice, cases of supervening events whether due to tortious,
partially tortious, non-culpable or wholly accidental events.

Causation
Lord Wilberforce (continued)
The courts can only deal with each case as best they can in a
manner so as to provide just and sufficient but not excessive
compensation, taking all factors into account. I think that
this is what Baker v Willoughby did – and indeed that Lord
Pearson reached his decision in this way: the rationalisation
of the decision as to which I at least have doubts, need and
should not be applied to other cases.”

Causation
Rahman v Arearose Ltd (2001) QB 351

Laws LJ
“The problem in this case rests in the law’s attempt to contain

the kaleidoscope nature of the concept of causation within a
decent and rational system for the compensation of innocent
persons who suffer injury by reason of other people’s
wrongdoing…it is recognised that the first principle is that
every tortfeasor should compensate the injured claimant in
respect of that loss and damage for which he should justly
be held responsible.”

Causation
Wright v Cambridge Medical Group [2011] Civ 669

Neuberger MR
“Accordingly, where there are successive tortfeasors, the

contention that the causative potency of the negligence of the
first is destroyed by the subsequent negligence of the second
depends very much on the facts of the particular case. In
many cases where there are successive acts of negligence by
different parties, both parties can be held responsible for the
damage which ensues,…

Causation
Neuberger MR (continued)
…so that the issue is not which of them is liable, but how liability
is to be apportioned between them. The mere fact that, if
the second party had not been negligent, the damage which
subsequently ensued would not have occurred, by no means
automatically exonerates the first party’s negligence from
being causative of that damage.”

Causation
Proof of Causation
Burden of Proof
• Plaintiff has burden of proving factual causation (and all other

elements of negligence)
– Wright v Cambridge Medical Group [2011] Civ 669
Neuberger MR
“It is true that the burden of establishing causation in a
negligence claim is, in principle, as with every other
ingredient of the claim, on the claimant (plaintiff).”

Causation
Proof of Causation
Standard of Proof
• Civil standard-balance of probabilities
‒ “more likely than not” defendant's breach of duty caused plaintiff’s
injury,
‒ greater than 50% likelihood defendant’s breach of duty is the
factual cause of plaintiff’s injury
– Chan Kun v Tsuen Wan New Cambridge Nursing Home Limited
[2006] 2 HKLRD 623
– So Fat v Ken On Concrete Co Ltd [1992] Civ App 193 of 1991
– Ou Jianping v Hong Kong Housing Authority [2013] HKEC 955

Causation
Proof of Causation
All or Nothing Approach
• Plaintiff who proves that it is “more likely than not” (more
that 50% likely) that the defendant caused her loss, will
recover for all her losses
• Plaintiff who proves less than a 50% likelihood that the
defendant caused her loss recovers nothing
– Hotson v East Berkshire Area Health Authority [1987] AC 750
– Wilsher v Essex Area Health Authority [1988] AC 1074
– Gregg v Scott [2005] 2 AC 176

Causation
Proof of Causation
Loss of a Chance
• Attempt to avoid the greater than 50% standard of proof and all or nothing
consequence ( Injustice where plaintiff cannot establish that loss would
have been avoided if defendant had not been negligent)
• Loss of a chance claims represent another approach to dealing with factual
causation. In these claims the plaintiff is arguing that the defendant’s
breach of duty caused the plaintiff to lose, for example in a medical
negligence claim, the chance of a better outcome because of the doctor’s
negligent delay in diagnosing or treating the plaintiff’s injury or illness.
• Courts unwilling to award damages for loss of a chance in respect of losing
a possible better physical outcome
- Hotson v East Berkshire Area Health Authority [1987] AC 750
- Gregg v Scott [2005] UKHL 2

Causation
Proof of Causation
Loss of a Chance
Gregg v Scott [2005] 2 AC 176
(3 v 2 Majority)
• Misdiagnosis of cancerous lump resulted in plaintiff having a lower chance

of survival than if a correct diagnosis made (25% chance of survival)
• Even if a correct diagnosis made patient only had a 42% chance of survival
• Majority of House of Lords held that although doctor in breach of duty,
there could be no liability as on the balance of probabilities, claimant
would not likely have survived if correct diagnosis made
• Liability for loss of a chance of a more favourable outcome should not be
introduced into medical negligence claims (policy concerns)

Causation
Proof of Causation
Loss of a Chance

Lord Hoffmann
“It should…be noted that adopting such a rule would involve

abandoning a good deal of authority…There seems to me to
be no new arguments or change of circumstances which could
justify such a radical departure from precedent.”

Causation
Proof of Causation
Loss of a Chance
Lord Nicholls (dissenting)
“Given this uncertainty of outcome, the appropriate characterisation of

a patient’s loss in this type of case must surely be that it comprises the
loss of the chance of a favourable outcome, rather than the loss of the
outcome itself.
Justice so requires, because this matches medical reality. This recognises
what in practice a patient had before the doctor’s negligence occurred. It
recognises what in practice the patient lost by reason of that negligence.
The doctor’s negligence diminished the patient’s prospects of recovery.
And this analysis of a patient’s loss accords with the purpose of the legal
duty of which the doctor was in breach. In short, the purpose of the duty
is to promote the patient’s prospects of recovery by exercising due skill
and care in diagnosing and treating the patient’s condition.

Causation
Proof of Causation
Loss of a Chance
Lord Nicholls (continued)
This approach also achieves a basic objective of the law of tort. The
common law imposes duties and seeks to provide appropriate
remedies in the event of a breach of duty. If negligent diagnosis or
treatment diminishes a patient’s prospects of recovery, a law
which does not recognise this as a wrong calling for redress would
be seriously deficient today. In respect of the doctors’ breach of
duty the law would not have provided an appropriate remedy.”

Causation
Proof of Causation
Loss of a Chance
• Courts are willing to consider an award for loss of a chance in some circumstances
(financial harm) where proof of causation is difficult.
• Courts willing to make an award for the loss of a chance of a better financial
outcome in some cases
– Chaplin v Hicks [1911] 2 KB 786
– Davies v Taylor [1972] 3 All ER 836
– Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602
– Spring v Guardian Assurance Plc [1995] 2 AC 296
– Barker v Corus UK Ltd [2006] 2 AC 572
– Edwards v Hugh James Ford Simey [2018] EWCA Civ 1299
– Wellesley Partners LLP v Withers [2015] EWCA Civ 1146
– Javed Akbar Waraich v Ansari Solicitors [2019] EWHC 1038
– Hanbury v Hugh James Solicitors [2019] EWHC 1074
– Perry v Raleys Solicitors [2019] UKSC 5

Causation
Proof of Causation
Loss of a Chance
• Court willing to consider an award for the loss of a chance in
respect of professional negligence (negligent legal advice)
Perry v Raleys Solicitors [2019] UKSC 5
Lord Briggs
“The assessment of causation and loss in cases of professional
negligence has given rise to difficult conceptual and practical
issues which have troubled the courts on many occasions. The
most recent example at the level of this court is Gregg v Scott
[2005] UKHL 2; [2005] 2 AC 176 in which the House of Lords had to
wrestle with the intractable question whether negligent medical
advice, which reduced the patient’s prospects of long-term survival
from cancer from 42% to 25%, sounded in damages when,
probably, he would have died anyway, even if competently treated.

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2023
Causation
Proof of Causation
Loss of a Chance
Lord Briggs (continued)
Commonly, the main difficulty arises from the fact that the court is
required to assess what if any financial or other benefit the client
would have obtained in a counter-factual world, the doorway into
which assumes that the professional person had complied with, rather
than committed a breach of, his duty of care. The everyday task of the
court is to determine what, in fact, happened in the real world rather
than what probably would have happened in a what-if scenario
generally labelled the counter-factual. Similar difficulties arise where
the question of causation or assessment of damage depends upon
the court forming a view about the likelihood of a future rather than
past event.

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Causation
Proof of Causation
Loss of a Chance
In both those types of situation (that is the future and the
counter-factual) the court occasionally departs from the
ordinary burden on a claimant to prove facts on the balance or
probabilities by having recourse to the concept of loss of
opportunity or loss of a chance. Sometimes the court makes
such a departure where the strict application of the balance of
probability test would produce an absurd result, for example
where what has been lost through negligence is a claim with
substantial but uncertain prospects of success, where it would
be absurd to decide the negligence claim on an all or nothing

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2023
Causation
Proof of Causation
Loss of a Chance
basis, giving nothing if the prospects of success were 49%, but

full damages if they were 51%: see Hanif v Middleweeks (a firm)
[2000] Lloyd’s Rep PN 920 per Mance LJ at para 17. A further
reason why this is a generally unrealistic approach is that most
claims with evenly balanced prospects of success or failure are
turned into money by being settled, rather than pursued to an all
or nothing trial.”

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2023
Causation
Proof of Causation
Material Contribution to Injury Approach
Key Points
• Court avoiding “all or nothing” consequences of causation rules by relaxing the
standard of proof.
• If defendant’s negligent conduct makes a material contribution to the injury suffered
by plaintiff, defendant’s conduct has been held to have caused plaintiff’s harm.
• In circumstances where there are two causes of plaintiff’s injury, one cause involving
breach of duty (fault) by the defendant and the other cause not involving breach of
duty (fault) by the defendant, the causation requirements can be met if plaintiff
proved on the balance of probabilities that the cause involving the defendant’s
breach of duty (fault) materially contributed to the plaintiff’s injury.
‒ Bonnington Castings Ltd v Wardlaw [1956] AC 613

‒ Williams v Bermuda Hospitals [2016] UKPC 4
‒ Law Yin Pok Bosco v Dr Chan Yee Shing [2017] HKECC 906

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Causation
Proof of Causation
Material Increase of Risk of Injury Approach
Key Points
Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32
• In circumstances where there are two or more causes of the plaintiff’s
injury, factual causation requirements may be satisfied if it can be shown
that the defendant’s breach of duty was a material contributor to the risk
of injury:
• Fairchild decision had not recognised a new form of liability in tort,
consisting of increasing the risk of mesothelioma by exposing someone to
asbestos. It decided that, as a matter of causation, wrongful exposure to
asbestos in the course of employment met the necessary causal
requirement for the victim to be entitled to hold the employer responsible
in law for his illness.
• Material increase of risk of injury approach an exception to “but for” and
“all or nothing” approaches to factual causation.

Causation
Proof of Causation
Key Points
Lord Nichols
“…part of the underlying rationale of the principle is that the defendant’s

wrong doing has materially increased the risk that the claimant will suffer
injury. It is therefore essential not just that the defendant's conduct created a
material risk of injury to a class of persons but that it actually created a
material risk of injury to the claimant himself…By contrast, the principle
dose not apply where the claimant has merely proven that his injury could
have been caused by a number of different events, only one of which is the
eventuation of the risk created by the defendant’s wrongful act or omission”

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2023
Causation
Proof of Causation
Material Increase of Risk – Factual Issue
• What is a material increase of risk of injury is a question of degree, but any
increase which does not fall within the “ de minimis” exception may be regarded
as material
– Sandra Mayne v Atlas Stone Co Ltd. [2016] EWHC 1030
– Warne v Vinters – Armstrong Ltd [2016] EWHC 197
– Bussey v 00654701 (formerly Anglia Heating) [2018] EWCA Civ 243
Williams v University of Birmingham [2011] EWCA Civ 1242

Aikens LJ
“In S v G the Supreme Court stated two further important propositions, both of
which relate particularly to causation in mesothelioma cases. First it held that
a “material” increase in the risk of contracting mesothelioma meant a
degree of increase that is more than minimal and it was for the trial judge to
determine on the facts of each case whether the increase was “material””

Causation
Proof of Causation
Material Increase of Risk – Factual Issue
Bannister v Freemans Plc [2020] EWHC 1625
The deceased had been employed in the defendant’s account department

and did not work with asbestos. However, the claimant alleged that in the
mid-1980’s the offices in which he worked were refurbished and, over the
course of a weekend, partitions containing asbestos were removed and
replaced.
“Any exposure experienced by the deceased while employed by the
defendant was incredibly small, and the annual risk of it causing
mesothelioma was 1 in 50 million. Thus even if the deceased had been
exposed to asbestos dust, his exposure would not have resulted in a
material increase in the risk of his developing mesothelioma.”

74
2023
Causation
Proof of Causation
Application – Simultaneous or Successive Events
Williams v Bermuda Hospitals Board [2016] UKPC 4
•The “material contribution” approach to causation is not

confined to cases in which the timing of the origin of the
contributory causes was simultaneous. As a matter of principle,
successive events were capable of each making a material
contribution to the outcome.

75
2023
Causation
Proof of Causation
Application – Simultaneous or Successive Events
Arksey v Cambridge University Hospitals NHS Trust [2019]

EWHC 1276
Spencer J.
“Thus the doctrine of material contribution, as developed
through Bonnington Casting Ltd and McGhee, can be seen
to be an exception to the need for the claimant to prove
that the ‘but for’ test is satisfied and is confined to the
situation where there are contributory causes, whether
concurrent or successive.”

76
2023
Causation
Proof of Causation
• McGhee v National Coal Board [1973] 1 WLR 1

• Wilsher v Essex Area Health Authority [1988] AC 1074
• Holtby v Brigham & Cowan (Hull) Ltd [2003] 3 All ER 421
• Barker v Corus [2006] UKHL 20
• Hull v Sanderson [2008] EWCA Civ 1211 (Fairchild principles
not applied)
• International energy Group v Zurich Insurance Plc [2013]
EWCA Civ 39

Causation
Proof of Causation
• Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229

• Jones v Secretary of State For Energy and Climate Change
[2012] EWHC 2936
• Durham v BAI (Run Off) Ltd [2012] UKSC 14
• Heneghan v Manchester Dry Docks Ltd [2014] EWHC 4190
• Williams v The Bermuda Hospitals Board [2016] UKPC 4
• John v Central Manchester and Manchester Children’s
University Hospital NHS Trust [2016] EWHC 407

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Causation
Proof of Causation
Material Increase of Risk of Injury Approach – Application
• Material increase of the risk of injury is an exception to the “but for” test for
causation
• When does the material increase of the risk of injury approach apply?
• Policy considerations:

Lord Nicholls
“I need hardly add that considerable restraint is called for in any relaxation of the
threshold “but for” test of causal connection. The principle applied on these
appeals is emphatically not intended to lead to such a relaxation whenever a plaintiff
has difficulty, perhaps understandable difficulty, in discharging the burden of proof
resting on him. Unless closely confined in its application this principle could become
a source of injustice to defendants. There must be good reason for departing from
the normal threshold “but for” test. The reason must be sufficiently weighty to
justify depriving the defendant of the protection this test normally and rightly afford
him, and it must be plain and obvious that this is so. Policy questions will loom large
when a court has to decide whether the difficulties of proof confronting the
plaintiff justify taking this exceptional course”

Causation
Proof of Causation
• When does the material risk of injury approach apply?
• Policy considerations
Lord Hoffmann
“… the political and economic arguments involved in a
massive increase in the liability of the National Health
Service which would have been a consequence of the broad
rule favoured by the Court of Appeal in Wilsher’s case are far
more complicated than the reasons given by Lord
Wilberforce (in McGhee) for imposing liability upon an
employer who has failed to take simple precautions. ”

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2023
Causation
Proof of Causation

Lord Bingham
“It can properly be said to be unjust to impose liability on a party who
has not been shown, even on a balance of probabilities, to have caused
the damage complained of. On the other hand, 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 so, when the harm
can only have been caused by breach of that duty and when science does
not permit the victim accurately to attribute, as between several
employers, the precise responsibility for the harm he has suffered. I am
of opinion that such injustice as may be involved in imposing liability on
a duty-breaking employer in these circumstances is heavily outweighed
by the injustice of denying redress to a victim…..”

Causation
Proof of Causation
Lord Hoffmann
“What are the significant features of the present case? First, we are dealing
with a duty specifically intended to protect employees against being
unnecessarily exposed to the risk of (among other things) a particular
disease. Secondly, the duty is one intended to create a civil right to
compensation for injury relevantly connected with its breach. Thirdly, it is
established that the greater the exposure to asbestos, the greater the risk of
contracting that disease. Fourthly, except in the case in which there has
been only one significant exposure to asbestos, medical science cannot
prove whose asbestos is more likely than not to have produced the cell
mutation which caused the disease. Fifthly, the employee has contracted
the disease against which he should have been protected.

Causation
Proof of Causation
So the question of principle is this: in cases which exhibit the five features I have
mentioned, which rule would be more in accordance with justice and the policy of
common law and statute to protect employees against the risk of contracting
asbestos-related diseases? One which makes an employer in breach of his duty liable
for the claimant’s injury because he created a significant risk to his health, despite the
fact that the physical cause of the injury may have been created by someone else? Or a
rule which means that unless he was subjected to risk by the breach of duty of a single
employer, the employee can never have a remedy? My Lords, as between the
employer in breach of duty and the employee who has lost his life in consequence of a
period of exposure to risk to which that employer has contributed, I think it would be
both inconsistent with the policy of the law imposing the duty and morally wrong for
your Lordships to impose causal requirements which exclude liability…”

Causation
Proof of Causation
• Legal considerations
• Exception to but for test of causation (all or nothing consequence) applies when:
‒ impossible for plaintiff to show how injury caused;
‒ defendant’s conduct created a material risk of injury to plaintiff ; and
‒ injury created by an agency that operated substantially in the same way as
defendant’s risk

Causation
Proof of Causation
Saunderson & Others v Sonae Industria (UK) Ltd [2015] EWHC 2264
Jay J.
“The Fairchild doctrine of “material contribution to the risk” is designed

to cover two situations. The first is where there are two or more
tortfeasors, and medical science cannot say which caused the injury. In
order to achieve justice for the Claimants, the law relaxes the “but for”
test of causation. However, in that situation it is beyond dispute that (a)
the Claimant suffered personal injury, and (b) that injury was caused by
a tortious agent (whose agent being the issue). The second situation is
where there is one tortfeasor and two potential causative agents (one
“guilty” and the other “innocent”), but it cannot be proven which
actually caused the Claimant’s injury. Again, in all these situations it is
beyond dispute that (a) the Claimant suffered personal injury, and (b)
the industrial agent was capable of causing that injury.”

Causation
Proof of Causation
Applying the Law or doing Justice?
“Constitutionalism and Private Law”
Cambridge Freshfields Annual Law Lecture 2015
Lord Hoffmann
“I now want to contrast the Kleinwort Benson case with another case decided in the
House of Lords four years later: Fairchild v Glenhaven Funeral Services Ltd². This was
the case about victims of mesothelioma. This is a rare but fatal cancer, caused almost
invariable by ingestion of asbestos fibres. It has an incubation period of several
decades so that the victims tend to be people who worked with asbestos when its
dangers were insufficiently appreciated. In 2012 about 2,500 people died from
mesothelioma, about 1.5% of cancer deaths in that year. In many cases, their
employers years earlier had been negligent in not taking precautions against their
coming into contact with asbestos. At common law, however, it is not enough to
prove that someone was negligent. ”
² [2003] 1 AC 32

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2023
Causation
Proof of Causation
Lord Hoffmann (continues)
“You have to prove on a balance of probability that his negligence caused your
injury. But the problem about mesothelioma was that there is no way of proving
which asbestos fibres caused the disease. If you worked with asbestos for several
employers over the years, as most building and shipyard workers did, it could have
been caused by any of them. So the Court of Appeal decided that it was very
unfortunate but none of the employers could be made liable.
The House of Lords decided that this was a terrible injustice which they had to put
right. So they created an exception in which it was unnecessary to prove that the
defendant caused the injury. It was sufficient to prove that he substantially increased
the chances of it happening. Statistically, you were more likely to get the disease if you
worked with asbestos for ten years than if you only did so for three. So an employer
who exposed you to asbestos for a substantial time increased the chances of your
injury and the House of Lords held that this was enough to make him liable.”

87
2023
Causation
Proof of Causation
“In principle, this was a revolutionary judgment. The common law of negligence had
always demanded proof that the negligence had caused the injury. It operated a
binary system: you had either caused it or you had not. If it was more that 50% likely
that you had caused it, you were taken definitely to have done so. If it was 50% or
less, you had definitely not done so. You recovered full compensation or none at all. It
is a crude but simple system. Why did the House of Lords think it could change the
law?
The reason, of course, was that Fairchild was a hard case. They say that hard cases make
bad law. The great difference between Kleinwort Benson and Fairchild was that in
Kleinwort Benson one could say that, as a matter of principle, the previous decisions
were wrong. It made no sense in the context of recovering money paid by mistake to
distinguish between errors of fact and errors of law. But the House of Lords in Fairchild
did not claim to be correcting a rule that was wrong in principle.”

88
2023
Causation
Proof of Causation
“The general principle that you had to prove causation on a balance of

probability was left intact. So the judges had to find some principle upon
which they were justified in creating an exception. But they were unable to
do so. Should one say that the exception should apply in all cases in which it
was impossible to prove which of two or more possible causes was
responsible? That would have been far too wide. It would have destroyed the
general rule altogether. There are many cases of medical negligence in which
it is impossible to prove that, but for some negligent act on the part of the
doctor, the patient would have got better, or would not have got worse. If it
was enough to show that the doctor substantially reduced the chances of
getting better, the £1 billion or so paid by the NHS last year for clinical
negligence claims would be considerable increased.”

89
2023
Causation
Proof of Causation
“The best we could do, and this includes myself, was to say that the exception applied
when the injury was caused by the same agency. In Fairchild, for example, it was
definitely caused by asbestos and the only question was: whose asbestos? It would not
apply when, for example, the cause of the disease was either asbestos or smoking. But this
was an unprincipled decision which was almost comically exposed in a later case in the
Court of Appeal when the claimant’s cancer could have been caused by smoking or by
inhalation of chemicals from dyestuffs with which he had been working³. The expert
evidence showed that the chemical substance in the dyes which might have caused the
disease was the same as that in the cigarettes. This was an arbitrary distinction of ever
there was one.
I said in discussing Kleinwort Benson that the common law trades in principles and not in
arbitrary rules. Kleinwort Benson was right because it removed an arbitrary distinction and
restored the general principle.”
³ Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261

90
2023
Causation
Proof of Causation
“Fairchild was wrong because it introduced an arbitrary distinction into what had
been a clear principle. The judges recognised that they could not limit the exception
to mesothelioma. That would have looked blatantly arbitrary. So they tried to invent
a distinction which looked more like a principle but which came apart in their hands.
The Fairchild case illustrates the perils of making changes in the common law which
cannot be justified on principle. But there may be other, more constitutional, reasons
why judges should hold back. Sometimes it will be because Parliament has already
created a system of rules which are a more practical answer to the problem than
anything which the judges could devise. Sometimes it will be that a proposed change
in the law, for example, to create a new head of liability, will involve public expenditure
and that it is more appropriate that such expenditure should be authorised by
democratically elected organs of government than by judges. The Fairchild rule itself
opened the way to a case which raised an issue of this kind.”

91
2023
Causation
Proof of Causation
“Gregg v Scott⁴ was a case in which a doctor had been negligent in telling a patient that a Lords it
was submitted that we ought to extend a version of the Fairchild principle to alump under his
arm was benign instead of referring him to hospital to have it checked. In fact it was found a year
later to be cancerous and the judge found, not surprisingly, that having cancer had reduced the
patient’s expectation of life. The question, however, was whether it would have made any
difference if it had been diagnosed earlier. The judge found on a balance of probability that it had
made no difference. There was, he said, after looking at epidemiological statistics, a 40% chance
that it would have made a difference and under the law’s binary system, that meant it had to be
taken as having made no difference. In the House of ll cases of medical negligence and award
the patient 40% of the damages he would have recovered if he had been wholly successful. This
would have been a huge change in the common law and, furthermore, would have enormously
increased the liabilities of the National Health Service. If such a change in the law was desirable,
it should be made by Parliament and not by judges. Fortunately, by a majority of 3 to 2, the
proposed change in the law was rejected. It was a very close-run thing. ”
⁴ [2005] 2 AC 176

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2023
Causation
Joint and Several Liability
Fairchild v Glenhaven Funeral Service Ltd [2003] 1AC 32
•Defendants accepted joint and several liability

•Joint and several liability enables the plaintiff to claim the full
amount of the damages from each of the defendants (no
multiple recovery)
•Any defendant who pays the full amount of damages to the
plaintiff can seek contribution from the other defendants (Civil
Liability (Contribution) Ordinance Cap. 377)
•Joint and several liability benefits the plaintiff

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2023
Causation
Several Liability
Barker v Corus UK Ltd [2006] 2 AC 572
• Various employers exposed plaintiff to asbestos which caused plaintiff’s illness
(mesothelioma)
• Trial Judge and Court of Appeal held the defendants jointly and severally liable,
following Fairchild
• Majority of the House of Lords held that defendant’s liability was several
(individual) only.
• Defendant’s several (individual) liability would be determined proportionately
depending on period and intensity of plaintiff’s exposure to asbestos by each
defendant
• Several liability benefits the defendants
• Decision reversed by the Compensation Act 2006 s 3 (only in respect of
mesothelioma cases)
• Hong Kong does not have legislation equivalent to the Compensation Act 2006

Causation
Several v Joint and Several Liability
Barker v Corus UK Ltd [2006] 2 AC 572

Lord Scott
“The joint and several liability of tortfeasors is based upon a finding

that the breach of duty of each has been a cause of the indivisible
damage for which redress is sought. No such finding can be made
in a Fairchild type of case and the logic of imposing joint and several
liability on Fairchild defendants is, in my opinion, absent.
Moreover, Fairchild constitutes an exception, perhaps an
anomalous one, to the causation principles of tortious liability. It
should not, therefore, be found to be surprising if consequential
adjustments to other principles of tortious liability become
necessary….

Causation
Several v Joint and Several Liability
Lord Scott (continued)
I would, therefore, hold that the extent of the liability of each
defendant in a Fairchild type of case, where it cannot be
shown which defendant’s breach of duty caused the damage
but where each defendant, in breach of duty, has exposed the
claimant to a significant risk of the eventual damage, should
be liability commensurate with the degree of risk for which
that defendant was responsible. Ascertainment of the
degree of risk would be an issue of fact to be determined by
the trial judge….”

Causation
Proof of Causation
Failure to Warn of Risk of Treament
Chester v Afshar [2005] 1 AC 134
• Failure to warn of risk of medical treatment
• Plaintiff suffered a wrong so should be entitled to compensation
• Majority of House of Lords held plaintiff entitled to damages
despite causation problems
• Policy considerations for a “narrow and modest departure from
traditional causation principles” (vindication of plaintiff’s rights)
• Doctor who negligently fails to warn patient of risks of treatment
is liable for any injury (damage) resulting if the risk occurs.

Causation
Proof of Causation
Failure to Warn of Risk of Treament
Chester v Afshar [2005] 1 AC 134
Lord Steyn
“It is true that there is no direct English authority permitting a
modification of the approach to the proof of causation in a
case such as the present. On the other hand, there is the
analogy of Fairchild v Glenhaven Funeral Services Ltd [2003]
1 AC 32 which reveals a principled approach to such a
problem…The Fairchild case is, of course, very different from
the facts of the present case. A modification of causation
principles as was made in Fairchild will always be
exceptional. But it cannot be restricted to the particular
facts of Fairchild.

Causation
Proof of Causation
Failure to Warn of Risk of Treatment
Lord Steyn (continued)
Standing back from the detailed arguments, I have come to the

conclusion that, as a result of the surgeon’s failure to warn the
patient, she cannot be said to have given informed consent to
the surgery in the full legal sense. Her right of autonomy and
dignity can and ought to be vindicated by a narrow and
modest departure from traditional causation principles.”
• Duce v Worcestershire Acute Hospitals NHS Trust [2018]

EWCA Civ 1307

Causation
Proof of Causation
Failure to Disclose “Material” Risks of Treatment
Montgomery v Lanarkshire Health Board [2015] UKSC 11
Lords Kerr and Reed
More fundamentally, however, the consequence of our holding that there was a duty to
advise Mrs Montgomery of the risk of shoulder dystocia, and to discuss with her the
potential implications and the options open to her, is that the issue of causation has
to be considered on a different footing from that on which it was approached by the
Lord Ordinary and the Extra Division. They had in mind the supposed reaction of Mrs
Montgomery if she had been advised of the minimal risk of a grave consequence. The
question should properly have been addressed as to Mrs Montgomery's likely
reaction if she had been told of the risk of shoulder dystocia. On that question, we
have Dr McLellan's unequivocal view that Mrs Montgomery would have elected to
have a caesarean section. The question of causation must also be considered on the
hypothesis of a discussion which is conducted without the patient's being
pressurised to accept her doctor's recommendation. In these circumstances, there is
really no basis on which to conclude that Mrs Montgomery, if she had been advised of
the risk of shoulder dystocia, would have chosen to proceed with a vaginal delivery…...

Causation
Proof of Causation
Failure to Disclose “Material” Risks of Treatment
Montgomery v Lanarkshire Health Board [2015] UKSC 11

Lords Kerr and Reed (continued)
“Approaching the issue of causation in that way, we have therefore
concluded that the evidence points clearly in one direction…In the
light of that assessment, and having regard to her evidence in
particular, the only conclusion that we can reasonably reach is that,
had she advised Mrs Montgomery of the risk of shoulder dystocia
and discussed with her dispassionately the potential consequences,
and the alternative of an elective caesarean section, Mrs
Montgomery would probably have elected to be delivered of her
baby by caesarean section. It is not in dispute that the baby would
then have been born unharmed.”

Reading
• Glofcheski, Tort Law in Hong Kong (2018),

pages 92-99, 115-142
• Lunney and Oliphant, Tort Law: Text and
Materials (2023), pages 227-295
• Giliker, Tort (2020), pages 190-215

Topic 4 - Negligence - Factual Causation - 2023

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Chinese University of Hong Kong

Tort 1 - Negligence - Factual Causation 2023 1

• It must not be distributed to third parties without

Tort 1 - Negligence - Factual Causation 2023 2

“… it is essentially a matter of fact whether the

Tort 1 - Negligence - Factual Causation 2023 3

• Defendant only liable if his breach of duty (wrongful conduct)

• Factual causation (cause in fact) examines the factual sufficiency

• Factual causation is concerned with imposing tort liability only

Tort 1 - Negligence - Factual Causation 2023 4

Fairchild v Glenhaven Funeral Services [2003] 1 AC 32

Tort 1 - Negligence - Factual Causation 2023 5

• Events following the defendant’s breach of duty may add to to

• Need to consider if these subsequent events break the chain of

• Novus Actus Interveniens (second cause) – an issue of whether

Tort 1 - Negligence - Factual Causation 2023 6

Cause in Law – remoteness – even if plaintiff’s damage was

Andrew Graham Young v Ho Chun Kit Peter [2012] HKEC 656

Tort 1 - Negligence - Factual Causation 2023 7

• Where the consequences of a breach of a duty of care are so

• Normally, where the type or kind of injury or damage is not

• Remoteness of damage is a control mechanism to restrict

• The difference explained

Tort 1 - Negligence - Factual Causation 2023 9

• The difference explained

The first is whether in fact the breach caused the loss, or at

Tort 1 - Negligence - Factual Causation 2023 10

Ocean Tramping Co Ltd v Lee Kin Hai [1991] 2 HKLR 232

“Causation is a matter for the judge not for the doctors.”

‒Wong Ka Wai Johnny v Lee Man Wai [2012] HKEC 75

Tort 1 - Negligence - Factual Causation 2023 11

Tort 1 - Negligence - Factual Causation 2023 12

Tort 1 - Negligence - Factual Causation 2023 13

Tort 1 - Negligence - Factual Causation 2023 14

Tort 1 - Negligence - Factual Causation 2023 15

Cartledge v E. Jopling & Sons Ltd [1963] AC 758

Tort 1 - Negligence - Factual Causation 2023 16

“In summary, the claimants argue that platinum salt sensitisation

Tort 1 - Negligence - Factual Causation 2023 17

Tort 1 - Negligence - Factual Causation 2023 18

Tort 1 - Negligence - Factual Causation 2023 19

Johnston and others v NEI International and others [2007] UKHL 39

“The question is whether someone who has been negligently

Tort 1 - Negligence - Factual Causation 2023 20

Lord Hoffmann (continued)

Tort 1 - Negligence - Factual Causation 2023 21

Lord Hoffmann (continued)

It follows that in my opinion the development of pleural plaques,

Tort 1 - Negligence - Factual Causation 2023 22

• Causation given its ordinary meaning

Yorkshire Dale Steamship Co Ltd v Minister of War Transport

“Causation is to be understood as the man in the street and not as

Tort 1 - Negligence - Factual Causation 2023 23

• Causation in fact is concerned with the question of whether as a matter of

Tort 1 - Negligence - Factual Causation 2023 24

Chauhan v Paul [1998] CLY 3990

Tort 1 - Negligence - Factual Causation 2023 25

• Court exercising its judgement in determining causation

Galoo Ltd v Bright Grahame Murray (1994) 1 WLR 1360