CAUSATION – Is the D’s breach of DOC cause the damage 2. What would the defendant have subsequently to traditional causation techniques or should there be
to C? done had he done what he was supposed to do? greater emphasis on policy and corrective justice?
Bolitho v City of Hackney Health Authority
But For Test Patient’s (a child) death was due to breathing difficulties. The rules of causation had not been modified in such a case,
No loss no claim, burden of proven on the C on balance of The D’s were sued for their failure to attend and intubate the however the case of Fairchild v Glenhaven Funeral Services
probabilities child when summoned. Although the courts found the Limited was an example of the rules being modified in the
doctor’s failure to attend a breach of duty the issue then interest of justice and policy.
Several liability turned on what the doctor would have done if the child had
• 2 or more parties independently to cause the same been attended to? The court found the defendant’s Courts held that causation in this case was satisfied on the
damage to C. contention that even if they had attended they would not basis that Mr Afshar’s failure to disclose the risk to her
• Each party is separately liable for the whole of have intubated the child, as being capable of logical caused her to have the operation on that day – when
damage, but compensation only be recovered analysis. There the courts held that although the doctors unfortunately, the risk materialised. Court based their
once. were in breach of their duty when they failed to attend to conclusion on the policy grounds of upholding patient
the child, that failure did not cause the child’s death. autonomy.
Joint and several liability
• 2 or more D simultaneously cause damage to C 3. What the claimant would have done if the Had she postponed her surgery, on any given day she had a
• Each party being separately liable for whole of defendant had done what he was supposed to do? 98% -99% chance coming out of the surgery without any
damage. If when only one able to pay, he will liable Chester v Afshar complications.
for the whole of damage. C alleged that she was not told of a 1-2% inherent risk of
• The one who pays compensation may wish to claim serious neurological damage arising from the spine surgery Note: this was an exceptional way of satisfying the but for
a portion of this from other wrongdoers under S1 she had undergone. The surgery left her with serious test.
and S2 of Civil Liability (Contribution) Act 1978 neurological damage. Having held that Mr Afshar was in
breach of duty for his failure to inform of the risk, the Correia v University Hospital of North Staffordshire NHS
Q1: But for D’s neg would the C have suffered loss? courts had to consider what would have she done had she Trust [2017] COA
Yes – D is not responsible for the C’s loss been informed of the risk to determine whether his failure Court stressed that if the exceptional principle which Chester
No – D is responsible for the C’s loss caused her loss? established were to be relied upon, it had to be pleaded and
proved that a claimant would have deferred the surgery if
Addition query involves an omission:- C could not say, given her condition, that she would not have warned of the risk. The claimant in Corrella failed to prove
Q2: What would have happened if D done what he had the surgery had she been told of the risk. She however that she would have done so.
supposes to do / if there is no omission? did say that had she been told of the risk she most definitely
would have postponed the surgery and sought a second Darnley v Croydon Health Services NHS Trust
3 scenarios could arise opinion.
Duce v Worcestershire Acute Hospitals NHS Trust [2018]
1. What naturally would have occurred? The peculiar issue in this case was that the risk was inherent COA
Barnett v Chelsea & Kensington Hospital and regardless of when Miss Chester had her surgery the risk Followed Correia, court confirming therefore that the
Patient’s death was attributed to arsenic poisoning, the was the same. Therefore, technically, Mr Afshar ‘did not Chester decision as an exception to the usual principles of
courts held that the ‘but for’ test was not satisfied. The cause’ the risk to materialise. causation can only be in limited and clearly set-out
hospital was not liable for the doctor's failure to examine the circumstances.
patient - that failure was not the cause of the patient’s The courts were confronted with the question of whether
death. Even if the doctor had examined and treated the causation in this case ought to be determined by adhering
patient, he would have died anyway.
to C? done had he done what he was supposed to do? greater emphasis on policy and corrective justice?
Bolitho v City of Hackney Health Authority
But For Test Patient’s (a child) death was due to breathing difficulties. The rules of causation had not been modified in such a case,
No loss no claim, burden of proven on the C on balance of The D’s were sued for their failure to attend and intubate the however the case of Fairchild v Glenhaven Funeral Services
probabilities child when summoned. Although the courts found the Limited was an example of the rules being modified in the
doctor’s failure to attend a breach of duty the issue then interest of justice and policy.
Several liability turned on what the doctor would have done if the child had
• 2 or more parties independently to cause the same been attended to? The court found the defendant’s Courts held that causation in this case was satisfied on the
damage to C. contention that even if they had attended they would not basis that Mr Afshar’s failure to disclose the risk to her
• Each party is separately liable for the whole of have intubated the child, as being capable of logical caused her to have the operation on that day – when
damage, but compensation only be recovered analysis. There the courts held that although the doctors unfortunately, the risk materialised. Court based their
once. were in breach of their duty when they failed to attend to conclusion on the policy grounds of upholding patient
the child, that failure did not cause the child’s death. autonomy.
Joint and several liability
• 2 or more D simultaneously cause damage to C 3. What the claimant would have done if the Had she postponed her surgery, on any given day she had a
• Each party being separately liable for whole of defendant had done what he was supposed to do? 98% -99% chance coming out of the surgery without any
damage. If when only one able to pay, he will liable Chester v Afshar complications.
for the whole of damage. C alleged that she was not told of a 1-2% inherent risk of
• The one who pays compensation may wish to claim serious neurological damage arising from the spine surgery Note: this was an exceptional way of satisfying the but for
a portion of this from other wrongdoers under S1 she had undergone. The surgery left her with serious test.
and S2 of Civil Liability (Contribution) Act 1978 neurological damage. Having held that Mr Afshar was in
breach of duty for his failure to inform of the risk, the Correia v University Hospital of North Staffordshire NHS
Q1: But for D’s neg would the C have suffered loss? courts had to consider what would have she done had she Trust [2017] COA
Yes – D is not responsible for the C’s loss been informed of the risk to determine whether his failure Court stressed that if the exceptional principle which Chester
No – D is responsible for the C’s loss caused her loss? established were to be relied upon, it had to be pleaded and
proved that a claimant would have deferred the surgery if
Addition query involves an omission:- C could not say, given her condition, that she would not have warned of the risk. The claimant in Corrella failed to prove
Q2: What would have happened if D done what he had the surgery had she been told of the risk. She however that she would have done so.
supposes to do / if there is no omission? did say that had she been told of the risk she most definitely
would have postponed the surgery and sought a second Darnley v Croydon Health Services NHS Trust
3 scenarios could arise opinion.
Duce v Worcestershire Acute Hospitals NHS Trust [2018]
1. What naturally would have occurred? The peculiar issue in this case was that the risk was inherent COA
Barnett v Chelsea & Kensington Hospital and regardless of when Miss Chester had her surgery the risk Followed Correia, court confirming therefore that the
Patient’s death was attributed to arsenic poisoning, the was the same. Therefore, technically, Mr Afshar ‘did not Chester decision as an exception to the usual principles of
courts held that the ‘but for’ test was not satisfied. The cause’ the risk to materialise. causation can only be in limited and clearly set-out
hospital was not liable for the doctor's failure to examine the circumstances.
patient - that failure was not the cause of the patient’s The courts were confronted with the question of whether
death. Even if the doctor had examined and treated the causation in this case ought to be determined by adhering
patient, he would have died anyway.
