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Published: Wed, 07 Mar 2018
Cork v Kirby MacLean Ltd  2 All ER 402
TORT – NEGLIGENCE – CAUSATION
The claimant was a factory worker who died when he had an epileptic seizure while working on a platform with no railings over 20 feet above the ground. His employers were not aware of his condition, nor of the fact that his doctor had told him not to work at heights. The claimant’s partner sued the defendant employers in the tort of negligence.
Establishing negligence involves proving that the defendant owed the claimant a duty of care, breached this duty of care, and that the breach caused the harm. It was clear in this case that a duty was owed and had been breached due to the absence of any railings. However, the defendant argued that the absence of railings did not cause his death, but rather the epilepsy did. As the defendant did not cause the epilepsy, they argued they did not cause the death.
The issue in this case was how causation is established in the tort of negligence.
The Court of Appeal held the defendant liable.
The Court set out the test for establishing causation. If the harm would not have occurred but for the breach of duty, the breach has caused the harm in the sense required by the tort of negligence. If the harm would have occurred anyway even if the defendant had not been in breach, the breach is not a cause of the harm.
In this case, had appropriate railings been installed, the claimant would not have not fallen off the platform while having the seizure. The defendant’s breach therefore caused the accident. The claimant’s damages were reduced to reflect his contributory negligence in failing to inform his employers of his condition, however.
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