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04 June 2009 / Stephen O'doherty
Issue: 7372 / Categories: Features , Damages
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Causation: a floating concept

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

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MOVERS & SHAKERS

Penningtons Manches Cooper—Jean-François Le Gal

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Penningtons Manches Cooper strengthens international disputes team with appointment of leading arbitration partner

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Shakespeare Martineau strengthens trust and estates disputes team with new appointments

Bellevue Law—Shannon Moore

Bellevue Law—Shannon Moore

Bellevue Law strengthens employment disputes and international advisory capability with senior associate appointment

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