9.2 Causation, Remoteness and Personal Injury Remedies

Causation is where many meritorious-looking claims die. FLK1 requires you to handle single and multiple causes, then remoteness and loss, then principles of remedies for personal injury and death. Functioning knowledge means applying the right test to the facts, not listing every mesothelioma footnote.

Factual causation: the but-for test

Start with but-for. Would the claimant have suffered this loss but for the defendant's breach? If the loss would have occurred anyway, the claim fails. In Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428, night-watchmen drank tea laced with arsenic. A doctor sent them away. They died. The claim failed because they would have died even with competent examination: the poison was already fatal. A delayed ambulance or a missed examination is therefore not automatically a winning clinical-negligence case; you still need causal potency.

But-for is binary and struggles with multiple causes. If two tortfeasors each inflict an injury that would have been sufficient on its own, strict but-for can produce the absurd result that neither is a cause. The law then uses policy-driven modifications. Where a second tortious injury follows the first, Baker v Willoughby [1970] AC 467 kept the first defendant liable for the original disability: a later shooting did not wipe out the first tort. Where a natural supervening illness would have caused the same disablement, Jobling v Associated Dairies Ltd [1982] AC 794 cuts the first defendant's liability at the date of the natural condition. Exam point: identify whether the second event is a tort or a vicissitude of life.

Material contribution and the Fairchild exception

For divisible harm (for example, pneumoconiosis made worse by additional dust), it is enough that the breach made a material contribution to the damage (Bonnington Castings Ltd v Wardlaw [1956] AC 613). The claimant need not quantify the exact contribution so long as it is more than de minimis.

Indivisible diseases such as mesothelioma create a different problem. Science may not say which employer's fibre caused the tumour. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 allows recovery where the defendant materially increased the risk. Wilsher v Essex Area Health Authority [1988] AC 1074 is the contrasting case: a premature baby was blinded; there were five possible causes, only one of which was the hospital's excess oxygen. The claim failed because the claimant could not show that the negligent cause was more than one of several unrelated candidates. Do not stretch Fairchild to ordinary multi-factor clinical cases.

For mesothelioma, section 3 of the Compensation Act 2006 makes a responsible person jointly and severally liable for the whole damage, reversing the apportionment approach in Barker v Corus UK Ltd. On SQE1, if the disease is mesothelioma and several employers exposed the claimant to asbestos, joint and several liability is the statutory result among those who materially increased the risk.

Chester v Afshar [2004] UKHL 41 sits to one side. A neurosurgeon failed to warn of a small cauda equina risk. The claimant would not have refused surgery forever; she would have delayed. The House of Lords still treated the failure as causal, to vindicate the duty to warn. It is a narrow, justice-based result, not a general abolition of but-for.

Loss of a chance of a better medical outcome is generally not recoverable in personal injury (Gregg v Scott [2005] UKHL 2). A fall in survival prospects from 42% to 25% did not become a 17% damages award. Contrast contractual or economic-loss cases where a lost chance can be valued (Allied Maples Group Ltd v Simmons & Simmons). Do not offer a percentage-chance award on a delayed-diagnosis personal-injury fact pattern unless the facts take you outside Gregg.

A novus actus interveniens can break the chain: a third party's act, an unreasonable act of the claimant (McKew v Holland & Hannen & Cubitts (Scotland) Ltd), or a natural event. A reasonable attempt to cope with the injury usually does not break the chain. An unreasonable leap down stairs on a weakened knee might.

Remoteness

Even if but-for is satisfied, the defendant is not an insurer for every downstream consequence. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) [1961] AC 388 requires that the type of damage be reasonably foreseeable. Directness under Re Polemis is not the law. The precise manner need not be foreseeable if the type of harm is (Hughes v Lord Advocate [1963] AC 837: paraffin lamp, explosion, burns). Jolley v Sutton London Borough Council [2000] 1 WLR 1082 (an abandoned boat left for children) shows that a foreseeable accident-type can encompass an unusual mechanism.

The eggshell skull rule survives remoteness: the defendant takes the claimant as found for the extent of injury once the type is foreseeable (Smith v Leech Brain & Co Ltd). A thin-skulled claimant recovers the full stroke or cancer that follows a foreseeable blow. A primary victim who was within the zone of physical danger can recover for psychiatric injury even if no physical injury materialises, provided some personal injury was foreseeable (Page v Smith [1996] AC 155), subject to the psychiatric-harm controls in section 9.3.

Remedies for personal injury

Damages aim to put the claimant, so far as money can, in the position they would have been in if the tort had not been committed. Split pecuniary and non-pecuniary loss.

Non-pecuniary general damages cover pain, suffering and loss of amenity (PSLA). The Judicial College Guidelines are the practical starting point in England and Wales, though the exam tests principle more than a particular bracket.

Pecuniary loss includes past special damages (earnings, treatment, travel) and future loss. Future recurring loss uses a multiplicand (annual loss) and a multiplier. Courts use the Ogden Tables and must take into account the prescribed rate of return under section A1 of the Damages Act 1996. The Damages (Personal Injury) (England and Wales) Order 2024 sets that rate at 0.5% with effect from 11 January 2025 (it had been −0.25%). A higher rate of return reduces multipliers and therefore the capitalised award. Other heads include the cost of care, equipment, and Smith v Manchester awards for handicap on the labour market. The claimant must mitigate; failure to take reasonable steps reduces the award. It does not usually extinguish the cause of action.

Death: two statutes, two purses

Do not merge the estate claim with the dependants' claim.

Under the Law Reform (Miscellaneous Provisions) Act 1934, the deceased's cause of action survives for the benefit of the estate. The estate can recover losses to the date of death, including PSLA up to death, and funeral expenses if the estate paid them. The estate cannot recover the deceased's future earnings after death (a restriction confirmed by later amendment). Bereavement is not an estate head under the 1934 Act.

Under the Fatal Accidents Act 1976, specified dependants claim for loss of support caused by the death. Bereavement damages under section 1A are a fixed statutory sum of £15,120 (substituted by the Damages for Bereavement (Variation of Sum) (England and Wales) Order 2020, in force from 1 May 2020). The claim is for the benefit of the wife, husband or civil partner; a cohabiting partner who lived in the same household as if married or civil partners for at least two years immediately before death (Fatal Accidents Act 1976 (Remedial) Order 2020); and, where the deceased was a minor who was never married or a civil partner, the parents. If both parents claim, the sum is shared. Adult children of an adult deceased do not take bereavement. Funeral expenses paid by dependants can be included.

Limitation for personal injury is generally three years from the date of injury or date of knowledge (Limitation Act 1980, section 11). Fatal claims have their own three-year structure from death or knowledge (section 12). Knowledge issues are examinable in outline: the clock can start when the claimant knows the injury is significant and attributable to the defendant's act or omission, even if they do not yet know the full legal analysis.