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 Cork v Kirby Maclean Ltd [1952] 2 AER 402

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 Cork v Kirby Maclean Ltd [1952] 2 AER 402

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The 'But for' test was from Lord Denning's decision in this case.
Facts

C died having a seizure when working on a platform with no railings over 20 feet above ground.

His employers were not aware of his condition, nor the fact that C’s doctor told him not to work at heights.

C’s partner sued the D in the tort of negligence.

Judgement

CA held D liable.

The court set out the test for establishing causation.

If appropriate railings been installed, C would not have fallen off the platform while having the seizure.

D's breach caused the accident

C's damages were reduced to reflect his contributory negligence in failing to inform his employers of his condition.

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Causation in fact -  The defendant's negligent act or omission did in fact cause the claimant's damage

Causation in law -  Establishing that the damage is still sufficient to hold the defendant liable to compensate the claimant.

Defendant will only be liable in negligence if the claimant would not have suffered damage 'but for' the defendant's negligent act or omission.

'But for' test not to allocate legal responsibility but to eliminate factors which could not have had any causal effect.

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Fairchild v Glenhaven Funeral Services [2002] UKHL 22

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Fairchild v Glenhaven Funeral Services [2002] UKHL 22

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(Fall under increase in material risk)
Facts
Three separate claimants contracted lung cancer (malignant mesothelioma) as a result of their exposure to asbestos during their various courses of employment with varying employers. Significantly, once an asbestos fibre has implanted in a human lung, it has an extended latency period whereby it can take decades before it causes a cancerous tumour which in turn then may take another near decade to cause the victim any distress.

By the point at which symptoms emerge, the cancer is in too late a stage to be deemed treatable. Only a single incident of exposure to asbestos fibres is necessary for the cancer to be caused and subsequently repeated or prolonged exposure does not impact the severity of the cancer. Whilst the three claimants had all experienced asbestos exposure with each employer, it could not be determined which employer was the most likely source of the causative asbestos fibre.

Issues
From which employer, if any, were the claimants entitled to claim compensation from for their tortious negligence in exposing their employees to asbestos.

Thus, the cases such that makes the ‘but for’ test cannot be reasonably or fairly applied.

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David Chelliah v Monorail Malaysia Technology (MMT) and KL Monorail Systems Sdn Bhd (KLMS) 2002

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David Chelliah v Monorail Malaysia Technology (MMT) and KL Monorail Systems Sdn Bhd (KLMS) 2002

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(Fall under multiple causes)
In 2002, a reporter, David Chelliah, was hit by an iron wheel weighing about 14 kilograms when he was just under the track of a newly built monorail train, causing him to be seriously injured and he became unconscious on the spot. He is likely to be in a disadvantaged position and other physical injuries.

He proposed a RM5 million negligent litigation in March 2003.

In this case, the court implemented a special law called "Res Ipsa Loquitur", which was interpreted as "the facts tell everything." This rule is to infer the negligence of the defendant when the plaintiff has no direct evidence to prove the negligence of the defendant. Therefore, the current responsibility will be borne by the defendant to prove that he was not negligent.

-In announcing the verdict, the judge said that it was a rare accident that the train's iron wheels hit a bypasser. If it does happen, although it is impossible to directly prove the negligence, it can also be inferred to be caused by the negligence of the train company. In addition, the defendant train company in this case was unable to prove that it had taken adequate safety measures and had not been negligent.

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Distinguish: Payremalu A/L Veerappan v Dr Amarjeet Kaur & Ors [2001] 3 MLJ 725

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Distinguish: Payremalu A/L Veerappan v Dr Amarjeet Kaur & Ors [2001] 3 MLJ 725

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Facts:

1. The plaintiff was hit in his right eye with a foreign object while cutting grass.

2. At the hospital, the two defendants informed him that facilities for his treatment are only available at either Ipoh General Hospital or Kuala Lumpur General Hospital. He was warded at Hospital Taiping while waiting for the referral to Kuala Lumpur General Hospital.

3. The 1st defendant informed the plaintiff that the rupture in his eye had to be stitched on the same evening. After the operation he continued to suffer pain and a 2nd operation was done to deal with the pain.

4. The condition of his eye continued to deteriorate. His eye had to be removed.

5. He brought an action against 4 parties for medical negligence: The 2 eye specialists, the director of Hospital Taiping and the Government of Malaysia.

Held:

The defendants were not liable for the damages because the plaintiff couldn’t prove that they had departed from the standard of care expected of a reasonably competent eye specialist and that on a balance of probabilities their negligence caused his injury.

Conclusion: On a balance of probabilities, the act of the defendant did not cause the injury.

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🧑‍⚖️ Likelihood of Survival Test
If the defendant's actions decreased the victim's chance of survival.

🧑‍⚖️ Acceleration Theory
If the defendant's action caused a victim to die sooner than the victim would have otherwise died.

🧑‍⚖️  Proximate Cause
If the defendant's actions are closely enough related to the result to make the defendant responsible.

🧑‍⚖️ Model Penal Code (MPC) Approach
If the result of the defendant's action involves the same kind of injury or harm as the probable result, and the result is not too remote or accidental in its occurrence that it actually has nothing to do with the defendant's liability or the gravity of his offense.

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Distinguish: Rich (a protected party by her Mother and Litigation Friend Helen Rich) v Hull and East Yorkshire Hospitals NHS Trust, [2015] EWHC 3395 (QB), [2015] All ER (D) 238 (Nov) 

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Distinguish: Rich (a protected party by her Mother and Litigation Friend Helen Rich) v Hull and East Yorkshire Hospitals NHS Trust, [2015] EWHC 3395 (QB), [2015] All ER (D) 238 (Nov) 

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Facts:

1. The claimant contended that medical negligence prior to her emergency c-section caused or materially contributed to her developing RDS and consequently PVL as the defendant was aware of her recurrent pain.

2. The defendant normally prescribed specific drugs if the delivery was about to happen. In practice he should be considering them pre-term delivery within 34 weeks.

3. The plaintiff claimed that the RDS and PVL would have been avoided all together.

Held:
The drugs would have ameliorated the plaintiff's RDS.
Medicial negligence did materially contribute to her brain injuries suffices for the proof of causation. If she delivers with steroids, the risk of reducing RDS is up to 50%

But it was not necessary to have been administered on her delivery date because she experienced no pain upon examination.

If it was supposed to be administered, her claim would succeeded in full.

The defendant's practice was acknowledged to be flawed however, he is not liable for the damages suffered by not prescribing drugs to the C because he could not have known that she would deliver within the following 1-7 days.

Conclusion: On a balance of probabilities, the omission of the defendant caused the injury.

Note: Claim failed because he was not in breach of his duty.

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👩‍⚖️ Tenuous Relations Between Actions
Plaintiff was taking a different route to work because his usual route was closed due to construction. Then, the plaintiff's phone was stolen by the defendant.

The incident would not have occurred if the victim had not been walking down the street that day. Furthermore, if the city had not closed the street that day, the crime would not have occurred. So, in this case, the defendant would actually shed some of the culpability because of all of the previous actions that led to the robbery.

👩‍⚖️ Overcausation​
In a firing squad scenario, we cannot prosecute any of the firing squad members based on but-for causation because wouldn't know whose bullet killed the victim, and the crime continues to occur in the absence of a specific defendant.

As a result of this over-determination situation, we have a big issue with but-for causation.

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In some cases, it’s not valid/ inapplicability for "But For" test because "But For" test is complicated, or the test is invalid:

-Concurrent reasons. More that 1 act may result in the damage/ injury but its not easy to identify which one.

-Multiple causes. There are several acts either from the same person or multiple parties that all contributed to the damage/ injury.

-Increase in material risk. It is not necessary to prove that the Defendant was the main cause for the damage. The defendant's negligence contributed to an increase in the risk of the damage occuring.

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Swamy v Matthews & Anor [1968] 1 MLJ 138
💉 Plaintiff went to see a doctor for an itch on his hands and legs
💉 He was given three shots of 5 cc of acetylarsan during treatment, which was alleged to have caused paralysis of his hands and legs
💉 Held:

The two heavy doses failed to produce any symptoms of polyneuritis (damage or disease affecting peripheral nerves), the third dose was not the cause thereof, nor was the administration of the third dose, in the circumstances, negligent.

High Court dismissed plaintiff's claim, as the plaintiff failed to establish causal link between the injections & his paralysis

Plaintiff subsequently appealed but the verdict was upheld by Federal Court

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Barnett v Chelsea and Kensington Hospital Management committee [1969] 1 QB 428
👨‍⚕️ A man experienced stomach pain & nausea after drinking tea
👨‍⚕️ Doctor on duty refused to examine him, told him to go home and advised him to consult general practitioner (GP) if he still felt unwell
👨‍⚕️ Hours later, he died due to arsenic poisoning
👨‍⚕️ his widow (which is the plaintiff) brought an action against the doctor on duty
👨‍⚕️ Held:

The doctor was indeed breached his duty of care as a doctor by failing to examine him

However, the doctor was not liable for failure to treat because evidence showed that the man would not have recovered even if he received immediate treatment

The man would have died 'but for' doctor's failure to treat - NO factual link

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With reference to decided cases explain the relevance of causation under the tort of negligence.

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With reference to decided cases explain the relevance of causation under the tort of negligence.