Insurance & Reinsurance analysis: David McArdle, partner, and Michelle Bakker, trainee solicitor, of Beale & Company, consider a decision of the Commercial Court rejecting a claimant’s submissions that causation in brokers’ negligence claims ought to be assessed on a ‘loss of chance’ basis, raising the bar for claimants.

Corporate Crime analysis: In R v Wood Treatment Ltd and another, the Court of Appeal upheld Mrs Justice May’s grant of the defendants’ submissions of no case to answer, resulting in the jury being directed to return not guilty verdicts on eight counts of corporate manslaughter and gross negligence manslaughter against an employer and its managing director. Four employees lost their lives in the explosion of a wood dust mill in 2015. The court found that May J was right to hold that, after the evidence of the Crown’s expert witness, there was a realistic possibility which could not be excluded that the cause of the explosion was consistent with innocence. The jury could not therefore safely return guilty verdicts. This case marked the first application of Broughton principles in the field of health and safety and corporate manslaughter, and demonstrated that case’s critical importance beyond cases concerned with medical causation. Written by Harry Vann, barrister at Crown Office Chambers.

Corporate Crime analysis: Louella Fletcher Michie took a mixture of drugs including 2C-P, ketamine and ecstasy. She reacted badly and her medical condition worsened. Having supplied the drugs to her, the prosecution said that the appellant was grossly negligent in failing to obtain timely medical assistance, which failure was a substantial cause of her death. The appellant was convicted of gross negligent manslaughter. On appeal, the main point argued was that the court had misdirected the jury on causation. The Court of Appeal concluded, after a thorough examination of the case law, that the prosecution must prove to the criminal standard that the gross negligence was at least a substantial contributory cause of death. That means that the prosecution must prove that the deceased would have lived in the sense that life would have been significantly prolonged. In this case, as the medical expert could not exclude the realistic or plausible possibility that the deceased would anyway have died, the appeal was allowed. Written by Sailesh Mehta, barrister, at Red Lion Chambers.

PI & Clinical Negligence analysis: This was an appeal against the dismissal of a fatal mesothelioma claim where the deceased person had been exposed only to a very low dose of asbestos by the defendant. The issue at trial was whether the defendant’s negligence had materially increased the risk of the deceased person contracting mesothelioma. The parties disagreed on how the court should approach calculating the increase in risk. The Court of Appeal concluded that the approach adopted by the trial judge was not wrong on the basis of the expert evidence available at trial. Accordingly, the appeal was dismissed. In dismissing the appeal, the court provides very important guidance on the issue of causation in low dose mesothelioma claims. Written by Peter Hale, barrister, 12 King’s Bench Walk.

For guidance on causation in clinical negligence cases, see Practice Note: Causation and material contribution in clinical negligence claims. Did the breach cause the injury to the claimant? The starting point in establishing causation is the ‘but for’ test, which requires the court to consider: but for the breach of the duty by the defendant, would the claimant have sustained the damage? In a personal injury action based on negligence or breach of statutory duty, the claimant seeks to establish a breach by the defendant, of a duty owed to the claimant, which has caused them damage. It is convenient to break the claim into its constituent elements: • does a duty of care exist? • has the defendant breached this duty? • is there a causal connection between the breach and the damage or loss? • what is the nature and extent of the damage or loss? The claimant must prove that the breach complained of caused the damage by showing that ‘but for’ the breach, they would not have suffered

This is a Court of Appeal decision against the dismissal of a claim brought by Clarice Wright against her GP’s surgery, the Cambridge Medical Group, for clinical negligence. The GP’s surgery admitted that they were negligent in not referring Clarice to a hospital when they should have done, but the trial judge held that the claim failed on the issue of causation.

A cause of action is the set of facts which, if proved, gives a claimant or pursuer a legal right to a remedy from a court. It is the combination of legal rights and alleged breaches (for example, negligence, breach of contract, breach of statutory duty or misrepresentation) that entitles a party to sue.In England and Wales and Northern Ireland, “cause of action” is a well‑established common law concept, frequently used in procedural rules (including limitation statutes and court rules) to identify when a claim accrues and what must be pleaded. In Ireland, the term is used in a similar way in legislation and case law to determine when time starts to run for limitation and how a civil claim is framed.Scots law more commonly refers to “grounds of action” or the “basis of action”, but practitioners and courts also use “cause of action” descriptively. Across all four jurisdictions, understanding the cause of action is critical for drafting pleadings, identifying the correct forum and procedure, assessing limitation periods and advising on prospects of success.

Cause of action estoppel is a sub-species of the res judicata doctrine (see Practice Note: The doctrine of res judicata). In addition to the general key requirements for establishing a res judicata (see Practice Note: Key requirements to establish a res judicata) this Practice Note considers the specific requirements when seeking to establish a cause of action estoppel. For guidance on issue estoppel see Practice Note: Issue estoppel. What is cause of action estoppel? Cause of action estoppel arises where: • the same parties, or their privies • involved in the same subject matter bring a cause of action in a second action that is identical to a cause of action the first action (Arnold v National Westminster). Per Diplock LJ in Thoday v Thoday: ‘… cause of action estoppel … prevents a party from asserting or denying as against the other party, the existence of a particular cause of action, the existence or non–existence of which has been determined by a court of competent jurisdiction in previous litigation

Dispute Resolution analysis: The High Court has found a cause of action estoppel barring progression of a regulatory body’s disciplinary proceedings against a member where the same complaints had already been investigated and adjudicated upon in disciplinary proceedings by a sister regulatory body. Further that in the second body ‘recognising’ in a consent order the decision of the first body, the second body became a party to and was bound by it. Alternatively under the doctrine of collateral attack it would be manifestly unfair for the second body to allow its proceedings to continue.

Cause of death describes the medical reason a person died, as formally certified and recorded, and is distinct from the legal classification of the death (for example, unlawful killing, accident or suicide). It is commonly established through a medical certificate of cause of death, a post‑mortem report, or coronial/procurator fiscal investigations.The term is used descriptively in death certification, inquests and fatal accident inquiries, criminal proceedings (e.g. murder or manslaughter / culpable homicide), clinical negligence and personal injury claims, life insurance disputes and probate matters. It is not given a single, exhaustive statutory definition, but appears in legislation and procedural rules across the UK and Ireland, often alongside requirements for a registered medical practitioner or coroner to certify or determine it.Accurate determination of cause of death is crucial to proving causation, liability and quantum in civil claims, to establishing the elements of homicide or related offences in criminal law, and to triggering or excluding insurance or pension benefits. Usage is broadly consistent across England and Wales, Scotland, Northern Ireland and Ireland, though the investigative structures (coroner v procurator fiscal) and procedural frameworks differ.

To 'cause' involves some express mandate or authority from the person 'causing' to the other person; the meaning of 'permit' depends on the context or the provision contravened.

Legal test for establishing liability for pollution.