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 NEGLIGENCE
AIMS AND OBJECTIVES

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 NEGLIGENCE
AIMS AND OBJECTIVES

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NEGLIGENCE

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 NEGLIGENCE

 Secondly, negligence may be an independent

tort consisting of the breach of a specific duty,
recognised by law and owed to the claimant

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 NEGLIGENCE

 theclassic definition of negligence was

formulated in the 19th century case of;
 Blythv Birmingham Waterworks Co 194
where the notion of the ‘reasonable man’ first
appears.

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 NEGLIGENCE

 In this case, negligence was defined as “the

omission to do something which a reasonable
man upon those considerations which
ordinarily regulate the conduct of human
affairs, would do, or doing something which a
prudent and ‘reasonable man’ would not do

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 NEGLIGENCE

it is not actionable per se

itis actionable only on proof of actual

damage

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NEGLIGENCE

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NEGLIGENCE

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NEGLIGENCE

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NEGLIGENCE

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 NEGLIGENCE

NEGLIGENCE
CAUSATION

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 CAUSATION

 Once the claimant has shown the existence of a duty of

care and proved that it has been breached by falling
below the appropriate standard of care, he must still
prove that the defendant’s negligent act or omission
actually caused the damage.
 Aswith the other two elements of negligence, the
burden is on the claimant to prove the causal link on a
balance of probabilities

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 CAUSATION

 Causation is necessarily measured against the facts of

the individual cases. Nevertheless, as in the other
areas, policy can still play a big part in decisions.

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 CAUSATION

 In establishing negligence, the courts will measure causation in

two different ways:
 according to the ‘but for’ test, that the defendant’s negligent
act or omission did in fact cause the claimant’s damage
(causation in fact);
 by establishing that the damage is still sufficiently proximate
in law to hold the defendant liable to compensate the victim
(causation in law – more commonly referred to as
remoteness of damage)

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 The simplest proposition, and the effective starting

point in establishing causation, is to say that the
defendant will only be liable in negligence if the
claimant would not have suffered the damage ‘but
for’ the defendant’s negligent act or omission.
 The
test was explained simply and precisely by Lord
Denning in Cork v Kirby MacLean Ltd[1952] 2 All
ER 402

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 In Cork v Kirby MacLean Ltd[1952] 2 All ER 402 the

court observed that ‘if the damage would not have
happened but for a particular fault, then that fault is the
cause of the damage; if it would have happened just
the same, fault or no fault, the fault is not the cause of
the damage’

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 In
Barnett v Chelsea & Kensington Hospital
Management Committee [1969] 1 QB 428
Three night watchmen from a college went to the casualty ward of
the hospital at around 5.00 a.m. on the morning of New Year’s
Day complaining of vomiting and stomach pains after drinking
tea. The doctor on duty, in clear breach of his duty towards the
men, then refused to attend to them or examine them and told
them to call on their own doctors in the morning. A few hours
later one of the men died, as it was discovered later, through
arsenic poisoning.
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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 The court found that the hospital was not liable for the
failure to treat, even though this was a clear breach of
their duty, because it was shown that the man would
not have recovered even if he had received treatment.
The failure to treat was not the cause of death.’

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST
 In Brock v Frenchay Healthcare Trust [1998] (Unreported),
Here a 16-year- old boy suffered irreversible brain damage after a
fall from a bicycle when he had not been wearing a crash helmet.
He had been taken immediately to hospital but the doctors had
failed to discover that he had a fractured skull, although it was
accepted that there was no negligence involved. The boy was
discharged but was readmitted after it became apparent that he
was seriously ill. Doctors prepared for an emergency operation
and to give the boy a drug, Mannitol, used to relieve pressure on
the brain

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 In the event the anesthetist did not use the drug until the
surgeon arrived and the issue before the court was whether the
eventual damage could have been averted if it had been
administered earlier.
 The Court of Appeal, applying the principles in Bolitho v City
and Hackney HA [1997] 4 All ER 771 (see later in section
4.3.1), held that there was nothing in the evidence to suggest
that the drug, if used earlier, would have had any significant
impact on the actual injuries.

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 In Chester v Afshar [2004] UKHL 41; [2004] 4 All ER 587

Here as we have already seen (see Chapter 3.4.3), the Court of
Appeal held that the surgeon had fallen below the appropriate
standard by failing to give full information on the risks of
neurological damage from an operation. The Court accepted
that there was evidence to show that the claimant would not
have undergone the operation but for the failure to advise of the
risks, even though she admitted that she may have been
prepared to have the operation at a later stage

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 CAUSATION IN FACT AND THE
‘BUT FOR’ TEST

 Compare Lord Steyn’s opinion and that of the

dissenting opinion by Lord Hoffmann

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 PROBLEMS IN PROVING
CAUSATION

 The problem of multiple causes

The problem of proving a causal link between the defendant’s
negligent act and the damage is always made more difficult
where there is the possibility of more than one cause. In such
instances the court is forced into the position of trying to
determine which of the possibilities is the actual cause of the
damage suffered. Very often the court will find that it is
impossible to do this with accuracy and the claimant may be
left without compensation at all.

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 PROBLEMS IN PROVING
CAUSATION

 In Wilsher v Essex Area Health Authority [1986] 3 All ER 801

CA Here a baby after being delivered was given excess oxygen
as a result of the admitted error of the doctor and the baby then
suffered blindness through retrolental fibroplasia. The House of
Lords identified that the excess oxygen was just one of six
possible causes of the condition and therefore it could not be
said to fall squarely within the risk created by the defendants.
The court would not impose liability on the defendant in these
circumstances although this seems very unfair.

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 PROBLEMS IN PROVING
CAUSATION

 In McGhee v National Coal Board [1973] 3 All ER 1008 Here

the claimant worked in a brick kiln where he was exposed to
brick dust, a possible cause of the dermatitis that he in fact
contracted. The Board was not liable for exposure during
working hours. They were held liable for materially increasing
the risk of the claimant contracting the disease because of their
failure to provide washing facilities, even though it could not be
shown that he would have avoided the disease if there had been
facilities

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 PROBLEMS IN PROVING
CAUSATION

 The reasoning of the court was that, since the employer was
clearly negligent in failing to provide basic health and safety
the burden should shift on to them to disprove the causal link.
This type of test is clearly more advantageous to a claimant
than the basic ‘but for’ test applied so rigidly in Hotson v East
Berkshire AHA[1987] 1 All ER 210.

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 PROBLEMS IN PROVING
CAUSATION

 In Bolitho v City and Hackney Health Authority [1997] 4 All

ER 771 Here the doctor had been negligent in failing to attend a
child with severe respiratory difficulties despite the requests of
the nursing staff for her attendance. The doctor claimed that this
fact was irrelevant in relation to the cardiac arrest and eventual
death of the child. Her argument was that, even if she had
attended the child with the breathing difficulties she would not
in any case have intubated and thus the same damage would
have occurred….

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 PROBLEMS IN PROVING
CAUSATION

 and that there was responsible medical opinion that

would support the practice in the circumstances of the
case. The House of Lords rejected the idea that the
Bolam test should be applied to the issue of causation
in order that the Health Authority should escape
liability.

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PROBLEMS IN PROVING
CAUSATION

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 MULTIPLE CONCURRENT
CAUSES

If the damage is caused by multiple causes that are acting

concurrently, or at the same time, then the ‘but for’ test appears to
be incapable of providing an absolute test of causation. The case
law demonstrates the difficulties faced by the courts in trying to
identify the precise cause.
On the one hand the court may decide that the negligence has
‘materially increased the risk’ of damage and that the defendant
should therefore be liable for damages

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 MULTIPLE CONCURRENT
CAUSES

 In McGhee v National Coal Board [1973] 3 All ER 1008 Here,

the court was prepared to make the employer liable for the
dermatitis suffered by the worker in the brick kiln. The court
did so because it considered that the risk of the particular
damage occurring had been materially increased by the
defendant’s negligent failure to provide adequate washing
facilities, even though it was impossible to pinpoint the lack of
washing facilities as the precise cause of the condition.

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 MULTIPLE CONCURRENT
CAUSES

 the ‘material contribution test

Where the courts use this ‘material contribution test’ it
can be difficult in any case to determine the exact
extent of the defendant’s contribution and this
naturally leads to some strange and apparently
arbitrary decisions

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 MULTIPLE CONSECUTIVE
CAUSES

 Where causes leading to the loss or damage suffered are

consecutive, or come one after the other, then ordinarily the
liability will remain with the first event unless subsequent
events have added to the damage. The ‘but for’ test will be
applied to the original defendant
 where a pre- existing condition of the claimant has contributed
to the eventual damage, the extent of the liability of the
defendant may be affected

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 MULTIPLE CONSECUTIVE
CAUSES

 In Performance Cars Ltd v Abraham [1962] 1 QB 33

The defendant negligently drove his vehicle so that it
collided with a Rolls Royce car. When the Rolls Royce
was also later negligently struck by another car the
court held that this did not relieve the original
defendant of liability for a respray that had in any case
been made necessary by the first collision.

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 MULTIPLE CONSECUTIVE
CAUSES

 In Performance Cars Ltd v Abraham [1962] 1 QB 33

The defendant negligently drove his vehicle so that it
collided with a Rolls Royce car. When the Rolls Royce
was also later negligently struck by another car the
court held that this did not relieve the original
defendant of liability for a respray that had in any case
been made necessary by the first collision.

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 NOVUS ACTUS INTERVENIENS

This may be in any of the following forms

Breaking the chain of causation
An intervening act of the claimant
An intervening act of nature
An intervening act of a third party

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 BREAKING THE CHAIN OF
CAUSATION

 Even though the defendant can be identified as

negligent and the ‘but for’ test satisfied in some
senses, the chain of causation may be broken by a
subsequent, intervening act if the court accepts that
this intervening act is the true cause of the damage
suffered then the defendant may not be liable despite
his breach of duty.

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 BREAKING THE CHAIN OF
CAUSATION

 Such a plea by the defendant is known as novus actus

interveniens. Translated it means ‘a new act
intervenes’, and it is an effective defence. If, however,
the intervening act is not accepted by the court as
being the true cause of the damage then the chain is
unbroken and the defendant remains liable for his
breach

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 BREAKING THE CHAIN OF
CAUSATION

 In Kirkham v Chief Constable of Greater Manchester

[1990] 3 All ER 882 Police who had transferred a
prisoner to Risley remand centre had failed to inform
the authorities there that the prisoner was a known
suicide risk. When the prisoner did in fact commit
suicide the police were held liable for their failure to
warn the prison authorities.

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 BREAKING THE CHAIN OF
CAUSATION

 Their plea of novus actus interveniens by the prisoner

failed, since he was suffering from clinical depression,
not in full control and therefore the suicide was not as
such a voluntary act.

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 BREAKING THE CHAIN OF
CAUSATION

The area seems to fall into three easily definable

categories:
where the intervening act is caused by the claimant
himself;
where the intervening act is an act of nature;
where the intervening act is the cause of a third party in
which case a new defendant
may in effect be introduced into the case.
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BREAKING THE CHAIN OF
CAUSATION

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BREAKING THE CHAIN OF
CAUSATION

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 AN INTERVENING ACT OF THE
CLAIMANT
 This is very closely connected with contributory negligence.
 Unlike contributory negligence, however, where the defendant
is liable but damages are reduced by the extent to which the
claimant is responsible for the harm he suffers, the plea here is
that the claimant is actually responsible for his own damage.
Therefore the chain of causation is broken and the defendant
has no liability at all

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 AN INTERVENING ACT OF THE
CLAIMANT
 In McKew v Holland & Hannen & Cubitts (Scotland) Ltd
[1969] 3 All ER 1621The claimant suffered an injury to his leg
leaving it seriously weakened as a result of the defendants’
negligence. When he later tried to climb a steep flight of steps
with no handrail without asking for help he fell and suffered
further serious injuries. The court held that the defendants were
not liable for this fall. The claimant’s act was a novus actus
interveniens.

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 FURTHER READINGS

 Kumado, K. (2009). Introduction to the law of torts in

Ghana. Accra: Blackmask
 Offei, S. (2014). The law of torts in Ghana; Texts, cases and
materials. Chapter 4, pp. 67-86, Chapters 5, 6, 7, 8,9, 10 and
11
 W.E. Peel and J. Goudkamp (eds), Winfield and Jolowicz on
Tort(19thedn, Sweet & Maxwell 2014)
 Chris Turner, Unlocking Torts (4th Edition) Routledge, 2014
Chapter 3
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