Tort 15 - Causation 1

Once it has been established that the defendant owed the plaintiff a duty of care and once it has been found that the defendant has breached that duty of care either by his actions or by failing to act, the next step in order for a plaintiff to be successful in a claim of negligence is to establish that the defendant’s actions or his omissions (failure to act) had caused the plaintiff to incur some type of property damage, or suffer from some sort of physical injury, psychiatric illness or nervous shock. The question that needs to be asked is - would the plaintiff have incurred any damage to his or her property or would he or she have suffered from any form of physical injury, psychiatric illness or nervous shock “but for” the defendant’s acts or omissions? If the answer is no i.e. the plaintiff would not have incurred any type of property damage or suffered from some form of physical injury, psychiatric illness or nervous shock “but for” the defendant’s actions or inactions (failure to act or omissions) then the defendant would be held to be liable.

This test is called the “but for” test and it was laid down in Barnett v Chelsea Hospital Management Committee (1969). The plaintiff went to a hospital complaining of stomach pains and vomiting and was subsequently examined by a nurse who telephoned the doctor on duty. The doctor after listening to the nurse instructed her to tell the patient to consult a general practitioner and the nurse did as she was instructed. The plaintiff went home and died 5 hours later from arsenic poisoning. His estate sued on the grounds that had the doctor examined the patient in time, he could have saved the patient and that his death was the result of the doctor’s negligence.

In order for the doctor to be liable it must be established that the patient died as a result of the doctor’s actions or his or her inactions (omissions). If it can be established that the patient would have died regardless of whether the doctor acted or failed to act (omission) then the chances are that the doctor would not be held to be liable.

The test to establish liability is called the “but for” test i.e. “but for” the defendant’s actions or inactions (omissions) the plaintiff would not have died.

In Mahon v Osborne (1939) for example it could be established that the plaintiff would not have fallen ill and subsequently died “but for” the swab of cotton that was left in his body.

In Carmarthenshire CC v Lewis (1955) the defendant was a teacher who left a 5-year-old-child that was under her care unsupervised and the child somehow left the classroom and made his or her way onto a busy road. The child got in the way of an oncoming lorry and the driver had to swerve to avoid hitting the child and crashed into a tree and subsequently died as a result. His widow sued.

The court held that had it not been for the defendant’s inactions (omissions) or failure to act in the manner that she was supposed to - there was a duty imposed on her to not leave a child under her care alone, the plaintiff’s husband would not have died. The defendant’s employers were held to be liable.

In Froom v Butcher (1975) the plaintiff was involved in a car accident that was caused by the defendant’s negligence. While the defendant was held liable, the claimant was not wearing her seat belt at the time of the accident. The law that made the wearing of seatbelts mandatory only came into force on the 31st of January 1983 - prior to that it was recommended that passengers in a car wore seatbelts. Fitting of seatbelt anchorage points in all new cars was made compulsory in 1967. Therefore, it is possible to surmise that the government was quite serious about making the public aware of the benefits of wearing seatbelts and it was only a matter of time before the law came into effect.

It was held that the plaintiff would not have been injured but for the defendant’s negligence but the plaintiff also had a duty to take the necessary precautions to mitigate or reduce any injury he or she may incur by taking recommended precautionary steps and therefore the damages that the plaintiff received was reduced in proportion to the amount that he or she was deemed to have contributed to his or her own injury.

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