Stephen O'Doherty searches for the missing link in damages cases
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The traditional causation test was put by Lord Hoffmann in Barker v Corus [2006] 2 AC 572, [2006] 3 All ER 785: “The standard rule is that it is not enough to show that the defendant's conduct increased the likelihood of damage being suffered and may have caused it. It must be proved on a balance of probability that the defendant's conduct did cause the damage in the sense that it would not otherwise have happened.”
If the applicant has suffered loss but cannot show who was responsible, a claim in tort against a particular defendant should fail. Why should “A” be liable in damages to “B” if the harm may have been caused by “C”?
Causal contribution
The starting point in the evolution is McGhee v National Coal Board [1972] 3 All ER 1008, [1973] 1 WLR 1. McGhee contracted dermatitis either from the dust in his employer's kilns (where no breach was alleged) or from
