Causation

Introduction

Establishing a **duty of care** and a **breach** of that duty is not enough to make a defendant liable in the tort of negligence. The claimant must also prove that the breach **caused** the loss complained of and that the loss is **not too remote**. This chapter examines **causation in fact** (the 'but-for' test, the 'all or nothing' approach and material contribution), **causation in law** (novus actus interveniens and remoteness), and the **principles of remedies** — compensatory damages, general and special damages, damages for personal injury, and damages on death under the **Law Reform (Miscellaneous Provisions) Act 1934** and the **Fatal Accidents Act 1976**.

Assessment focus

For the SQE1 FLK1 assessment you must be able to **apply** the rules of causation and remoteness to a realistic client scenario, not merely recite them. You should be able to work through the **'but-for' test** (Barnett v Chelsea & Kensington Hospital), recognise when it breaks down and the **material contribution** test applies (Bonnington Castings v Wardlaw), distinguish **divisible from indivisible injury** (Holtby v Brigham & Cowan), identify a **novus actus interveniens** that breaks the chain of causation, and apply the test for **remoteness** in The Wagon Mound (No. 1). On remedies you must distinguish **general from special damages** and **pecuniary from non-pecuniary loss**, and identify who may claim on a death. This is a **closed-book** assessment: learn the cases, the principles and the statutory provisions from memory.

Study tips

1) Always start factual causation with the **'but-for' test**: but for the breach, would the loss have occurred? (Barnett). 2) Remember civil proof is **'all or nothing'** on the **balance of probabilities** — a 25% loss of a chance recovers **nothing** (Hotson). 3) Where the but-for test fails because of multiple cumulative causes, ask whether the breach made a **material contribution** (Bonnington Castings v Wardlaw). 4) Distinguish **divisible** injury (liability apportioned to the defendant's contribution — Holtby) from **indivisible** injury (full liability). 5) A **novus actus interveniens** breaks the chain — note that a **natural/instinctive** reaction (Scott v Shepherd) usually does **not** break it. 6) Remoteness: the test is **reasonable foreseeability of the kind of damage** (The Wagon Mound (No. 1)). 7) On death, learn the **1934 Act** (estate's claim) and the **1976 Act** (dependants' claim — loss of dependency, bereavement, funeral expenses) and the **s 1(3)** list.