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CAUSATION + REMOTENESS
The C must prove causation on the balance of probabilities (51% rule).
The decision of McGHEE v NATIONAL COAL BOARD was that the negligence substantially increased
the risk to C and so was liable. The case of HOTSON v EAST BERKSHIRE HEALTH AUTHORITY used the
idea of all or nothing and as it was only 25% it failed making it legally accurate. This all or nothing
approach was followed in WILSHER v ESSEX HEALTH AUTHORITY which failed as 1 in 6 is not sufficient
enough chance. The case of FAIRCHILD v GELNHAVEN followed McGHEE however and it was said the
employer materially increased the risk to C (a decision based on justice as otherwise C would fail).
The decision in CHESTER v ASHFAR said the duty to give full information is to be given to all patients
and in the interest of fairness C was not penalised for her honesty and succeeded. The case of GREGG
v SCOTT took the all or nothing approach and as it was a 45% the claim failed, the court then clarified
which approach should be taken when. For multiple D's FAIRCHILD should be used but for multiple
causes then HOTSON should be used. BARKER v CORUS held each D liable for the proportion of harm
they caused and so C got a proportion of damages from each D. this decision was reversed by the
COMPENSATION ACT 2006 S3 by making all negligent D's liable in the full amount however this is
only for cases involving asbestos. Following the act the case of KAREN SIENKIEWICZ v GRIEF allowed C
to recover in full.
RES IPSA LOQUITA (the facts speak for themselves) is a maxim that puts the responsibility for an
explanation of the incident on D so they have to show there was no negligence in the circumstances.
This maxim is set out by SCOTT v LONDON AND ST KATHERINE'S DOCKS and the criteria for RIL the
cause of the accident must be unknown, the incident would not have happened unless lack of proper
care the thing that caused damage was in D's exclusive control. This maxim means that C can succeed
despite a lack of evidence and only proves D has breached a duty of care; the other parts of
negligence must be proved.
The criteria of an unknown cause is evidenced in the case of BARKWAY v SOUTH WALES TRANSPORT
CO which failed RIL as the cause was known to be a burst tyre.
For the criteria of lack of proper care the case of CHAPRONIERE v MASON is evidence as RIL applied
because the stone would not have been in the bun with proper care by D. RIL is also applied
successfully in CASSIDY v MINISTER OF HEALTH where D could give no explanation for the stiff fingers
so negligence was assumed.
The criteria that D be in express control of the situation is shown in the cases of GEE v
METROPOLITAN RAILWAY COMPANY and EASSON v LONDON NORTH EAST RAILWAY COMPANY.
However RIL only applied to GEE as D was responsible for closing the train doors before leaving the
station and in EASSON the door could have been left open by a passenger between the stations so
failed. A broad way of looking at RIL is that the maxim reverses the burden of proof from C to D that
D must prove on the balance of probabilities they were not negligent. A narrow view would be that
the maxim simply allows the court to infer D may have been negligent and D must explain what
happened, this is the equivalent of circumstantial evidence in criminal law.
Causation is a question of fact and the general test is the `but for' test, would C have suffered the
damage but for the negligence of D. this is established in the case of BARNETT v CHELSEA &
KENSINGTON HOSPITAL MANAGEMENT COMMITTEE in which C would have died but for the failure to
examine him so D was not liable.
However there are problems with the application of this test. For example if the damage to C is due
to a pre-existing condition rather than D's negligence then D will not be liable as shown in
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PERFORMANCE CARS v ABRAHAMS. Another example is if there are concurrent causes of damage in
which case the courts will use a common sense approach as in COOK v LEWIS. Finally consecutive
causes can present a problem when applying this test as shown by the policy decision to stop under
compensation to C in BAKER v WILLOUGHBY and over compensation to C in JOBLING v ASSOCIATED