Clough v First Choice Holidays and Flights Ltd.

In an ordinary personal injury claim arising from a single incident, the claimant must prove on the balance of probabilities that the defendant’s negligence caused or materially contributed to the injury. The “but for” formulation is shorthand and does not require the negligence to be the sole or final cause.

Proof that a breach merely increased the risk of injury does not establish the necessary causal link. The exceptional relaxation of conventional causation principles in cases involving scientific uncertainty does not extend to an ordinary accident whose causation can be determined from the evidence.

The appellant suffered catastrophic injuries after slipping from a wall into a shallow paddling pool at a holiday complex. The tour operator was contractually responsible for the owners’ negligent failure to coat the wall with proper non-slip paint, contrary to applicable Spanish regulations.

A deputy High Court judge nevertheless dismissed the damages claim. He was not satisfied that the absence of non-slip paint caused or materially contributed to the accident, rather than merely increasing its risk. The appellant challenged the judge’s legal approach to causation and his factual conclusion.

The central issue was whether proof that the breach increased the risk of slipping was sufficient, or whether the appellant had to establish a causal link between the breach and his injuries.

1. Appeal dismissed unanimously. The judge correctly directed himself that the appellant had to prove, on the balance of probabilities, that the absence of proper non-slip paint caused or materially contributed to his slip and fall. His factual conclusion that this had not been proved was properly open to him and should not be disturbed.

2. The conventional principle is that a claimant may recover compensation only for damage caused by the defendant’s negligence. The expression “but for” is shorthand for that principle. It must not be applied as though the defendant’s negligence must have been the sole, single or chronologically last cause of the injury. A sufficient causal link exists where the evidence supports an inference that the negligence materially contributed to the injury.

3. Proof that negligence created an increased risk of injury is not sufficient by itself. The exceptional modification of ordinary causation principles recognised in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 addressed special problems of scientific uncertainty and multiple wrongful exposures. It did not apply to an ordinary accident arising from a single incident. The suggested distinction between material contribution to damage and material contribution to the risk of damage did not alter the conventional approach in such a case.

4. The broad approach stated by Mustill LJ in the Court of Appeal decision in Wilsher v Essex Area Health Authority [1987] QB 730 had been rejected twice by the House of Lords and could not be revived. Any further appellate development of causation principles had to be approached with great caution.

5. The duty to provide a safer, anti-slip surface protected adult holidaymakers as well as children. Its protection extended to holidaymakers who had consumed alcohol. The claim therefore failed for want of proof of causation, not because the appellant fell outside the scope of the duty.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the deputy High Court judge’s legal direction and factual finding on causation.
2. High Court, Queen’s Bench Division: Mr David Foskett QC, sitting as a deputy High Court judge, dismissed the damages claim on 27 January 2005 because causation had not been proved.