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Issue was the hospitals negligence the cause of the

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Issue: Was the hospitals negligence the cause of the death? Held: (On applying the ‘but for’ test)On the balance of probabilities… that if all the care had been taken, still the defendant would have died. The hospitals failure was not a necessary condition to his harm.
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Singularly it ‘factual liability’ is too broad. Thus the second requirement of ‘legal causation’ ‘But for’ test insufficient for situations in which there are more that one cause of injury. The test fails (eg. Being hit by a car at the same time as a brick hitting you- but for either one the harm would have still occurred, so either D liable. May use s 51 (2) when a particular breach doesn’t satisfy the necessary condition (but for) requirement, the court can still find that the breach was the factual cause of the harm if policy dictates that it should. Under s.51(1)(a) Wrongs Act the defendant’s negligent act does not have to be the only cause of the plaintiff’s injury. It is enough if the defendant’s breach is a necessary cause, in the sense that the plaintiff wouldn’t have sustained the injury but for the defendant’s breach. If there was more than one responsible person, the plaintiff can recover from one, or both, but cannot receive more than 100%. In a case where they only act against one of the defendants, that defendant can seek contribution from the other ( Chapman v Hearse- there were 2 successive acts, and if either were removed, the harm wouldn’t have \ occurred. The first defendant sought contribution from the second ). There are some problems and limitations involved with the necessary condition requirement: - It is, by itself, too broad: Almost any harm can have an almost infinite number of preconditions- but for the plaintiff being born, but for him living in that street, etc. This is why the court also looks at legal causation - There are operational problems: If there are more than one causes of death, the ‘but for’ test fails- i.e. being hit by a car at the same time as a brick hitting you- but for wither one, the harm still would have occurred, so either defendant would not be held liable. CJ Mason acknowledged this in March v Stromare - the ‘but for’ test is important, but can be inadequate or troublesome. In a case where there are multiple sufficient causes, the court must adopt a common sense approach. In doing this, they can make value judgements and take policy into consideration- so, for example, they may accept both as sufficiently causing the harm, or only one: (ii) THE COMMON SENSE TEST Common sense approach allows value judgments and policy considerations. Used to modify ‘but for’ test when it is illogical (such as multiple causes, etc) Haber v Walker 1963
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Causation areof the ‘plain man’ guided by common sense considerations March v E & MH Stramare Facts: the truck in the middle of the lane case Issue: was there causation here for D in a situation that were it not too for P’s negligence the harm would not have occurred?
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