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212 NEGUGENCE: CAUSATION AiSJD CONTRIBUTORY NEGLIGENCE

and always spoke of ''legał" or "effective" or "proximate^//|3 causation but the expression is probably now inveterate.

Secondly, the first, or "but for", stage of the causation inquiry j_s comparatively unimportant in practice because it will usually be obvious whether it is satisfied and it will not form the basis of argument or adjudication. It eliminates the irrelevant but its function is certainly not t₀ provide a conclusive determination of the defendant's liability, though sonie judicial criticisms of it rather gloss over this point.¹ ‘ The matter is put in the following way by an Australian judge¹⁵:

"If a defendant promises to direct me where I should go and, at a cross-roads, directs me to the left road rather than the right road, what happens to me on the left road is, in a sense, the result of what the defendant has done. If I slip on that road, if it collapses under me, or if, because I am there, a car driving down that road and not down the right road strikes me, my loss is, in a sense, the result of the fact that I have been directed to the left road and not the right road. But, in my opinion, it is not everything which is a result in this broad sense which is accepted as a result for this purpose in the law. Thus, if, being on the left road, I slip and fali, the fact alone that it was the defendant's direction ... which put me there will not, without morę, make the defendant liable for my broken leg. I say 'without morę': if there be added to the breach the fact that, for example, the left road was known to be dangerous in that respect [hel may, of course, be liable. But, in relation to losses of that kind, the fact that the breach has initiated one train of events rather than another is not, or at least may not, be sufficient in itself."¹⁶

The question of whether the defendant's act was an effective cause for this purpose has been said to be a matter of "common sense"¹⁷ but common sense can differ from one judge to another.¹⁸ However, suppose

that in the misdirection example the claimant had not heard the defen-dant's instructions or had resolved to go down the left road anyway, _whatever the defendant might say, then it is submitted that it could not _even be said that "in a sense" what the defendant did had caused the _acddent for it would have madę no contribution at all to its occurrence and the case would fail at the first stage.

Causation is of course also an element in a claim for damages for breach of contract and, indeed, where equitable compensation is sought for breach of fiduciary duty,‘“ both of which may overlap with a claim in

tort.

Causation in Fact

As a first step it must be decided whether the defendant's breach of duty 6.6 was, as a matter of fact, a cause of the damage. Although the question of factual causation has exercised philosophers and morę than one approach is possible,²⁰ for the practical purposes of the law that most generally mentioned by the courts is the so-called "but-for" test, or in Latin, causa (or conditio) sine qua non.²¹ If the result would not have happened but for a certain event then that event is a cause; contrariwise, if it would have happened anyway, the event is not a cause.²² Of course this test will produce a multitude of causes which are not legally effective from the point of view of allocating responsibility,²³ but as has been emphasised above the but-for test merely acts as a preliminary filter to eliminate the irrelevant. The application of the but-for approach is neatly illustrated by Bamett v. Chelsea and Kensington Hospiłal Management Committee.²⁴ The claimant's husband, a night watchman, called early in the morning at the defendants' hospital and complained of vomiting after drinking tea. He was told to go home and consult his own doctor later, which amounted to a breach of the hospitaFs duty of care. Later that day the claimanfs husband died of arsenical poi son i ng and the coroner's verdict was of murder by persons unknown. The hospitaFs breach of duty²³ was held

”See StoindL■ v. Harrisom |1997] 4 All H.R. 703.

'Hart and Honore, Causation in the’ Lata (2nd. ed.) Part 1; Honore, "Necessary and Sufficient Conditions >n Tort Law" in Owen (ed.) Philosophical Fouiuiations ofTort Ijtw (1993).

¹ U. "a cause without which (the event would] not lhave happened 1". A legally eftectiee cause is known ^ as a causa causans.

"Subject to the question of remoteness, causation in a question of fact. It the damage would not have happened but for the particular fault, then that fault is a cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage. It is to be decided hy the ordinary plain common sense of the business": Cork Kirbu Maclean Liii 11952] 2 All E.R. 402 at ^406

^ Rahman v. Arearose Ud |2001] Q.B. 331 at 367.

11969] 1 Q.B. 42S. See also Deloille Haskins & Sclls v. National Mutual Life Nominccs Ltd (1993] A.C.

E^yen in a case of strict liability, care must be taken to determine the scopc of the issue of causation.

Thus, under the Consumer Protection Act 1987 (see para. 10.12, below) the defendant is strictly liable damage caused by a defect in a product madę by him, bul this is not quite the same as being liable f°^r damage caused by the defectiee product. To take the example of counsel in A v. National Blood Authority (2001] 3 All E.R. 289 at 360, if a priniuct is defective because it docs not carn.' an adequatc ^v*'aming and the claimant is tnjured because, on the facts, he could not and would not have been able fo hets.1 a waming, the damage is not caused by the defect.

1

' The standard American expression.

¹⁴    See, e.g. the High Court of Australia in March t\ F.. & M.H. Stramare Pty Ud, (1991) 171 C.L.R. 506 and Głidewell L.J. in Galoo Ud r. Bright Grafionie Murray (19941 1 W.L.R. 1360.

¹⁵    Mahoney j.A. in Alexander v. Cambridge Credit Corp Ud (1987) 9 N5.W.L.R. 310 at 333.

*• On this basis, although an auditor clearly owes a duty of care to the company being audited. he i- not liable for losses incurred in continuing to trade even though a proper audit would have brought a bont a oessation of business: Alerandcr v. Cambridge Credit Corp Ud. above; Galrn Ud v. Bnght Grafuime Murray, above; B.C.C.I. International (Oirrseas) Ud v. Price Waterhouse (No. 3), The Times, April -1998.

^,r Among many examples see Stapley o. Gypsum Minęs l.td (1953) A.C. 663 at 681; Fitzgerald v. Penn 91 C.L.R. 268 at 277; March V. E. & M.H.'Stramare Pty Ud (1991) 171 C.LR. 506 at 515; Galoo Ud :• Bright Grahame Murray (19941 1 W.L.R. 1360. at 1375.

Thus, in the Alexaiuirr case Glass J.A. dissented on whether a negligent audit was an effectiee cau-^e ot losses caused by the company's continuing to trade. In the contract case of Monarch S.S. Co. Ud Karlshamns OUciabrikcr (1949) A.C. 196, D"s ship was unseaworthy at the commencemcnt of a voyag^Ł’ to Sweden, which caused two months dełay, by which time war had broken out and the Admirale prohibited the continuance of the vovage, with consequent loss to the cargo owners. The House ot Lords held that the unseaworthiness was an effective cause of the loss, but the defendants’ conłcntion to the contrary could hardly bo described as unarguable: if the ship had been lost in a tvphoon it seeiu* the result would have been difterent.