Question:
‘It is never reasonable to impose liability in negligence without establishing that the defendant’s breach caused the claimant’s loss, if only because, as the case law shows, exceptions to the “but for” rule cannot be kept under control.’
Discuss.
Answer:
The ‘but for test’ established in Barnett v Chelsea Kensington Hospital[1], assesses whether there is a break in chain of causation, which questions had the defendant not been involved in the event, would the claimant have suffered the loss.
The underlying assumption of the question is that having too many exceptions renders them unreasonable. This essay discusses how exceptions have generally been kept under control, despite the widening and narrowing of its definition in different cases. The essay also examines how exceptions allow the test to be applied more flexibly that leads to fairer results; and whether the but for test could be broadened to cover more scenarios where negligence has contributed to loss of chance, particularly in injuries and health recovery.
Why it is reasonable to have exception
We must admit that exceptions to the test is important, because one drawback of the but for test is that it is difficult to distinguish the ‘but for reason’, which happens when too many causes have contributed to the claimant’s loss. Although one may argue that the court assessment of the ‘but for’ reason protects defendants from being taken advantage of, the lack of exceptions on the other hand risks resulting in unjust results. In Wisher v Essex,[2] it was held that there were too many factors that contributed to the health issues experienced by the premature baby. Therefore, the court found it difficult to distinguish whether the doctor’s negligence was the ‘but-for’ reason for the baby’s sight impairment and found the doctor not liable. The decision is arguably unfair as the (lack of) compensation is disproportionate to the permanent harm suffered by the baby. This case can be contrasted to the later asbestos cases where that concerns material contribution to the risks of injury and to injury.
The Fairchild exception[3] was established to the but for test, where the court relaxed and allowed ‘material contribution in risk’. This is significant as McBride argues ‘Wilsher as a forerunner of the decision in Fairchild’ and based on similar concerns to the ones that motivated Fairchild’ and that Wilsher is unlikely to be decided the same way now. [4] By applying the exception established in Fairchild onto Wilsher, the doctors would have been held liable for their negligence, as having increased material contribution in risk. The exception protects claimants from a situation where they have failed the but for test and be able to claim compensation for the harm they suffered.
Have but for test exceptions been kept under control?
Firstly, exceptions to the but for test have been kept under control, which is proven by the fair results that have been achieved. One evidence that supports this is the case of McGhee v National Coal Board. If the ‘but for test’ was directly applied to the case, the claimant would not have been awarded damages. The employer did not provide showers for the claimant after work, but medical evidence supported that the claimant would have contracted dermatitis anyway. The exception to the but for test has been kept under control here as damages caused by the claimant’s working environment over a period of time can still be awarded. The decision to depart from the ‘but for test’ allows claimants who have received unfair treatment to be compensated and allows a fair result to be achieved.
Another evidence that shows that the but for test has been kept under control is the judgment in the case of Sienkiewicz v Greif. The court held that the Fairchild rule was ‘catered for ignorance existed at the time’[5] when the mesothelioma cases were decided. This suggests the court acknowledges the dangers of having too many exceptions, and that they intend to keep them under control. This is further strengthened by the court’s aversion towards the clash between the Compensation Act and the exception to the but for test applied in Barker v Corus.[6]
In Barker v Corus, the exception was widened so that claimant can get compensation by showing that the defendant materially contributed to the injury, even if the claimant has partly brought it on to themselves. The court also introduced ‘proportionate liability’ – so that defendant is only liable for the share of damage they caused. The decision of the case however contradicts Section 3 of the Compensation Act, where the reason for the policy to hold companies completely liable is to incentivise companies that have been exposing asbestos to employees to stop or to force them to close down. In Sienkiewicz v Greif, Lord brown describes the possibility of employers being held accountable to greater responsibilities than they are actually responsible for in reality as ‘draconian’. By applying exceptions to the but for test therefore highlights the court’s respect to parliamentary legislation and their reluctance in going against it.
Loss of Chance
Loss of chance exhibits another reason why it is unreasonable to impose liability without causation. In Hoston v East Berkshire, [7] claimant was not awarded damages despite the hospital’s negligence. The claimant failed the balance of probabilities test – which assesses whether where it was found that there would only be 25% chance, as opposed to the requirement of greater than 50% of him not suffering from a muscular condition, had the hospital took reasonable care. Furthermore, Gregg v Scott[8] also displays unfairness in compensating claimants when they fail the but for test. The delay in diagnosis had reduced Gregg’s chances of surviving for more than 10 years from 42% to 25%. Again, the claimant failed to pass 50% required by the but for test, and the court dismissed the claimant’s appeal with a 3:2 decision.
The above cases demonstrate that loss of chance in relation to medical problems is not a form of injury one can claim damages. The question we need to determine here in order to assess whether exceptions are reasonable, is would it be be fair to impose liability and award damages based on statistics and probabilities. The decision in Gregg v Scott was very close, Lord Nicholls who was in favour of offering damages to the claimant suggests that doctors could be ‘unincentivized to treat patients who are presented with a low chance of recovery’ and that the law would be ‘unfairly discriminating against different patients’ if they treat patients with different recovery likelihood differently. Both arguments are completely valid and justifies why the but for test cannot be strictly applied without consideration of any exceptions, otherwise claimant would not be awarded anything even if doctors’ negligence contributed to the harm they suffer even in small extent.
Conclusion
Although exceptions to the but for test may create uncertainties, evidence has shown the court’s acknowledgment for it to be kept under control. I would argue as more cases have shown the limitations of the but for test in arriving at decisions that compensate victims of negligence, it would be reasonable for the courts to assess on a case by case basis, rather than solely assessing the probabilities of whether it has passed 50% to fairly compensate victims.
Feedback:
Grade: 67
Feedback:
Good description (at the outset) of the but for test, and a clear articulation of your position. Despite the comments of McBride, be careful of the differences between Wisher and Fairchild. In Wisher it was different causes; in Fairchild it was the same cause, but different employers. But good use of the case to make your argument and quoting McBride for support.
I am not sure that ‘fair results’ are actually a mechanism by which the exceptions have been kept under control (I would have thought the opposite). You could focus more on Grief for this argument, or suggest that fairness is an overriding value to that of keeping exceptions ‘under control’. In that fairness of the law is more important than exceptions to legal tests.
I think your first sentence in the Loss of Chance section is the opposite of what you are trying to argue, which is an exception to the requirement of causation.
References: [1] Barnett v Chelsea & Kensington Hospital Management Committee [1968] 2 WLR 422 [2] Wilsher v Essex Area Health Authority [1988] AC 1074 [3] Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 [4] McBride, Nicholas, and Roderick Bagshaw. Tort Law EBook PDF, Pearson Education, Limited, 2018. ProQuest Ebook Central, p. 278 [5]Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 [6] Barker v Corus plc [2006] UKHL 20 [7] Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909 [8] Gregg v Scott [2005] UKHL 2
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