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In my previous blog, I discussed the need to establish if there was a duty of care or statutory duty, and if so, was the law broken / duty breached?

Within this blog I will discuss whether the breach of duty caused any loss, and whether the harm was foreseeable.

3. Did the breach of duty cause any loss?

This issue is referred to as “causation.”

Sometimes there will be a situation in which although a law was broken, it did not make any difference to the outcome.  An example would be a doctor who fails to send someone with signs of a serious medical condition to hospital but later, before harm is done, the patient decides themselves to seek emergency care and the problem is detected in time.  The GP may be held negligent, but the negligence, or breach of duty, did not cause any loss and therefore there is no claim.

There is though a subtle division on this point being that sometimes it is necessary to divide causation up into two smaller questions:

a) Did the breach of duty cause the accident (often referred to as “legal causation”)?

b) Did the accident cause the loss (e.g. injury) to the person involved (often referred to as “medical causation”)?

Sometimes there will be situations in which one party has broken the law (or “breached duty”) and caused an accident but the accident itself did not cause their injuries, or some aspects of their injuries.  In this example legal causation will be established but not medical causation.

Both legal and medical causation have to be established in order for the claimant to succeed.

If we take an example, say an employer breaks the law by failing to keep a walkway free of slip hazards which causes an employee to slip and fall.  However, when the employee claimant undergoes a medical examination (necessary for any claim) the doctor identifies that the symptoms the claimant complains of could not have come from the accident and were instead symptoms that would have been there anyway.  In this example the claimant would have proved legal causation i.e. the failure to keep the walkway safe caused the slip and fall but not medical causation i.e. the slip/fall caused their injuries.  The claim will fail as there is not legal and medical causation.

A key point: if a defendant admits liability or a court finds them liable it is taken that legal causation is established: there cannot be a finding of liability without legal causation being accepted.

Why?  Well the reason is that if liability was admitted but there was no legal causation it would mean the admission was merely that the law was broken, which, without also admitting that that led or contributed to the accident, would be meaningless.  For this reason wherever there is a finding of liability (either admitted or from the Court) legal causation is proven.

There can be breaches of duty without legal causation but these are known as “technical breaches”.  The example above regarding the doctor missing symptoms would be one of those – a technical breach – there would be no legal causation and therefore no liability.

Remember: do not confuse breach of duty and liability – one can breach duty but not be liable – there is only liability if there is legal causation also.

The other half of causation – medical causation – has its own complexities.  In particular, there can be situations in which it cannot be proven conclusively either way that the person would or would not have the symptoms they have now if it was not for the accident.  An example would be someone who becomes ill and is then taken into hospital where their health not only deteriorates further but in addition there is an incident, or incidents, of medical negligence along the way.  If the doctor who reviews the case concludes that it is not possible to separate out the various things that happened, and to work out what the outcome would have been both with and without the negligence, BUT it can be said that the negligence is likely to have at least contributed to the outcome, then this will be enough to prove medical causation – this is known as the “material contribution” test.  The material contribution test will not apply however in situations where it cannot be said the negligence is likely to have contributed, for example where there are a number of competing possible causes for what happened and it just cannot be worked out which might have contributed and which did not, and it will not apply in cases in which the effects of the negligence can be separated out from the non-negligent aspects.  So, for example, someone who has a vulnerable back who suffers an accident and as a result of that accident back pain begins that would otherwise have not come on for another 20 years – this is not a material contribution situation – this is rather a situation in which the accident is said to have caused an additional 20 years’ worth of pain and suffering.

4. Was harm foreseeable?

“Foreseeable” means the same as “predictable.”  Here the test is whether some harm was foreseeable, of the general type claimed.  Here a key point is that the actual, specific harm caused does not have to be foreseeable – this is known as the “egg shell skull principle” e.g. if someone has a very thin skull the result of which is that an accident causes them severe brain injury then all that needs to be established is that a head injury is foreseeable and not necessarily severe brain injury.

Here another principle applies known as “remoteness” being that if there is a large chain reaction which eventually results in a loss that could not have even remotely been foreseen as a consequence then it is unlikely it could be included in the claim.

The Law of Negligence – simplified (part III)

Aston Knight Solicitors Bury are a specialist personal injury practice with a particular focus on serious injury cases.  If you would like to know more please feel free to contact us at either info@astonknightsolicitors.co.uk or by telephoning on 0800 999 6661.  We are always happy to provide a free initial consultation and no-win-no-fee agreements.

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