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Lecture # 5

Causation

By: Salik Aziz Vaince

[0313-7575311]

Introduction

In Negligence, a claimant must prove that the defendant's breach of duty owed caused the damage or

injury suffered. The causation element involves establishing that the defendant's negligence caused

the claimant's harm, both factually and in law.

In order to establish negligence, it must be proved that the defendant’s breach of duty actually caused

the damage suffered by the claimant, and that the damage caused was not too ‘remote’ from the

breach. The rules on causation covered in this lecture also apply to every other tort where proof of

damage is required. In practice, the rules are also applied in torts which are actionable per se (which

means actionable merely because they have been committed, whether or not damage is caused)

because where no damage is caused, compensation is usually a token amount, known as nominal

damages, so most cases are likely to involve damage of some kind and to require proof of it.

Meaning

The act of causing something to happen.

Connection between two events or states such that one produces or brings about the other; where

one is the cause and the other its effect.

Causation

It is obvious that in order to blame an individual for their actions, there must be some link between

the action and the damage caused; we cannot blame someone completely unconnected with the

damage. This link is what causation seeks to establish. Direct causation can be established by using the

'but-for' test. But for, or put otherwise, except for the action of the defendant, could the harm have

occurred? Factual (i.e. direct) causation is proved when the answer is, yes, the damage could only

have because of the Defendant.

However, while the basic test is a simple one, the situation becomes more complex when there are

multiple causes of an injury, or where an action intervenes between the Defendant's action and the

ultimate damage. Thus a second type of causation exists in these more complex situations, known as

legal causation or remoteness. In those cases, the Defendant may have been the direct (factual) cause

of the accident but they will not be held liable since the court considers that the injury was too remote.

Cases involving legal causation remain difficult to decipher (Convert code into ordinary language) in

some situations though the general principles are clear.

To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was

caused by the defendant. In most cases a simple application of the 'but for' test will resolve the

question of causation in tort law. i.e. 'but for' the defendant's actions, would the claimant have

suffered the loss? If yes, the defendant is not liable. If no, the defendant is liable. Causation may be


problematic where there exists more than one possible cause. Various formulations have evolved to

ease the burden of proving causation in such situations.

Factual causation: the 'but for' test

The ‘But-for’ test is the basic causation test in negligence claims. The object of the test is to evaluate

whether the Claimant's injury would have occurred without the defendant's actions. The question is:

can we suggest that the injury would not have occurred to the Claimant except for the action of the

Defendant. An important preliminary point to note is that the cause of the injury is to be judged on a

balance of probabilities i.e. what is more likely. Thus, as long as it is more likely than not (even if only

51% vs. 49%) that but-for the Defendant's action the injury would not have occurred, it will be held

that the But-for test is satisfied. The idea of how much an action caused an injury is usually best

explained in percentages, thus the cases will often speak in these terms. An example of the but-for test

is:

Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428

A night watchman had gone to the Defendant's hospital after drinking some tea and becoming ill. One

of the doctors told the night watchman to go home and consult his own doctor. A few hours later the

man died from arsenic poisoning. The judge said that it was negligent to send him away but questioned

whether the negligence caused the death: but-for the Defendant sending the man away, would he

have lived? The medical evidence was that the night watchman was at the hospital by 8.10am, he

could have been admitted by 11am and it was possible that a diagnosis could have been made by

12.30pm. However, if the night watchman was not treated before 12pm, the chances of his survival

were not good. The court refused to impose liability on the basis that, by the time a diagnosis and

treatment could be administered, it would have been too late to save the man's life. Thus it could not

be said that only because of the negligence (but-for the negligence) the man would have survived as

even if there had been no negligence he would have died anyway.

ISSUE: Did the defendant's negligence cause the victim's death?

HELD: The defendant’s negligence did not cause the victim's death, the arsenic was the cause. This

decision established the ‘but for’ test: But for the defendant's breach of duty, would the harm to the

claimant have occurred? If yes, as in this case, the defendant is not factually liable. However, if the

answer is no, then factual causation is satisfied.

So, the basic principles are:

- There must but-for causation, or in other words, only because of the negligence the Claimant

suffered injury,

- The court will make decisions of fact on a balance of probabilities.

Thus, the court in Barnett found that the watchman probably wouldn't have survived even if there was

no negligence; it did not find that he definitely wouldn't have survived, simply that the chance of him

not surviving was higher than 50%.

The ‘but-for’ test is simple and therefore very useful. However, it becomes more problematic in cases

where there is a lot of uncertainty as to how much the defendant contributed. Thus, what happens in

situations where the court cannot say that the Defendant caused the injury on a balance of

probabilities?


There must be a factual determination as to whether the defendant's actions caused the claimant's

harm. This is often referred to as the chain of causation.

MC WILLIAMS (CUMMINGS) V ARROL & CO [1962] 1 WLR 295

FACTS: The plaintiff was the widow of the victim, who fell to his death while working as the

defendant's employee. The victim had been working at seventy foot and the defendant did not provide

a safety harness (support), despite a statutory duty to do so. However, there was evidence that the

victim would not have worn a harness even had it been provided.

ISSUE: Did the defendant's breach of duty cause the victim's death?

HELD: The House of Lords found that the defendant was not liable as causation was not satisfied. The

evidence that the victim would not have worn the safety harness meant but for the defendant's

actions the victim would still have died.

The claimant must prove that harm would not have occurred 'but for' the negligence of the defendant.

It is possible to apply the 'but for' test where there is speculation as to how the claimant would have

behaved in a given situation.

The question of causation may also arise where there is a dispute about what the defendant would

have done in a given situation.

Sometimes, it may be clear that the defendant's breach of a duty did not actually cause the harm

suffered by the claimant.

Factual causation: proof

The claimant must prove, on the balance of probabilities, that the defendant's breach of duty caused

the harm. The defendant does not have to provide an explanation for the cause of harm but a failure

to do so may be a factor in deciding whether the claimant's explanation of the cause should be

accepted.

A claimant must prove that, on the balance of probabilities, their harm was caused by the defendant's

breach of duty.

HOTSON V EAST BERKSHIRE AREA HEALTH AUTHORITY [1987] AC 750

FACTS: The plaintiff fell from a tree and his injuries were then wrongly treated at the defendant's

hospital. The plaintiff was left permanently disabled. The defendant admitted negligence but denied

liability. Evidence showed that there was a seventy five percent chance that the plaintiff's medical

condition would have been the same even if he had received the correct treatment.

ISSUE: Did the defendant's negligence cause the plaintiff's injury?

HELD: Causation could not be established and the claim failed. There was only a twenty five percent

chance that the negligent medical treatment affected the claimant's prognosis. Therefore, it did not

satisfy the balance of probabilities burden, which would require more than a fifty percent chance. This

is known as the all or nothing approach.

Factual causation: clinical negligence

Clinical negligence claims may lead to complex causation issues.

WILSHER V ESSEX AREA HEALTH AUTHORITY [1988] AC 1074


FACTS: The plaintiff, a premature baby, received negligent treatment at the defendant's hospital and

was left blind. However, there were four other different, independent possible causes of his blindness;

each alone could have been the cause.

ISSUE: Did the defendant's negligence cause the plaintiff's injury?

HELD: It was for the plaintiff, on a balance of probabilities, to show that the defendant's negligence

caused the damage, which he could not do. Statistically each possible cause represented a twenty

percent chance of actually being the cause. The House of Lords ordered a retrial on the issue of

causation.

BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY [1998] AC 232

FACTS: The plaintiff was the mother of the victim, a two year old child, who suffered serious brain

damage following respiratory failure and eventually died at the defendant's hospital. The child was

taken to the hospital, however a doctor did not attend (due to a technology failure) until after the

victim died. The plaintiff argued that the doctor should have attended and carried out a specific

procedure, which would have saved the victim's life. The doctor testified that she would not have

carried out the procedure even if she had attended and her evidence was backed by a number of

medical professionals.

ISSUE: How did the ‘but for’ test apply?

HELD: The defendant's negligence was based on an omission to act. Therefore, the court had to

consider the ‘but for’ test in a hypothetical situation.

Generally, the courts are cautious about finding against medical professionals for policy reasons. If

patients often succeeded in Negligence claims then it may affect a doctor's willingness to treat

patients, pioneering new procedures would be unlikely to be tried and the cost of medical care would

increase due to higher insurance premiums.

Factual causation: multiple causes

Where there exist two or more causes which operate concurrently it may be factually impossible to

determine which one was the cause. This has proved problematic not least because it is the claimant's

responsibility to establish which one was the cause. On general principles the burden of proving this is

on the balance of probabilities i.e. the claimant has to demonstrate that there is more than a 50%

likelihood of the cause being the breach of duty of the defendant. Where there are two causes this

means the burden of proof is impossible to discharge leaving the claimant uncompensated often for an

obvious breach of duty. Various formulations have arisen to beat the strict approach.

However, the claimant does not have to prove that the defendant's breach of duty was the main cause

of the damage provided that it materially contributed to the damage.

It may be sufficient for the claimant to show that the defendant's breach of duty made the risk of

injury more probable.

Where there are a number of possible causes, the claimant must still prove the defendant's breach of

duty caused the harm or was a material contribution.

Where the claimant's case is based on proving a material contribution to the damage, the defendant is

responsible only for that part of the damage to which his negligence has contributed.

The case of McGhee has also been applied to a case where there were three possible causes of injury.


If there are several possible alternative causes then a claimant must show that his harm was caused by

the defendant's breach, as in Wilsher v Essex Area Health Authority [1988]. However, cases often

involve harm which may have been caused by a combination of a number of factors.

Material contribution approach

The courts have developed the material contribution approach in order to help determine causation

where multiple causes contributed to the claimant's harm.

Where there are two successive causes of harm, the court may regard the first event as the cause of

the harm.

However, it is possible for a second supervening event to reduce the effect of a tort.

Where a tort is submerged in a greater injury caused by (a) another tort or (b) a supervening illness or

non-tortious event.

BONNINGTON CASTINGS LTD V WARDLAW [1956] AC 613

FACTS: The plaintiff, a steel worker, had contracted a disease caused by exposure to dust from a

pneumatic hammer and swing grinders. The defendant was in breach of a statutory duty to maintain

the swing grinders. Therefore, the defendant could only be liable in Negligence if the swing grinders

were the cause of the plaintiff's disease.

ISSUE: What was the cause of the plaintiff's disease?

HELD: It was held that, on the balance of probabilities, dust from the swing grinders had materially

contributed to causing the plaintiff's disease and on that basis causation could be established.

Lord Reid: .. It appears to me that the source of his disease was the dust from both sources, and the

real question is whether the dust from the swing grinders materially contributed to the disease... [the

plaintiff] must make it appear at least that on a balance of probabilities the breach of duty caused or

materially contributed to his injury....

BAILEY V MINISTRY OF DEFENCE [2008] EWCA CIV 883

Facts: The claimant had suffered brain damage following cardiac arrest after inhaling vomit. She had

inhaled her vomit because she was in a very weakened state. Two causes had contributed to her

weakness, one tortious, the other not. The judge below held that the tortious cause had made a

material contribution to the weakness and the claimant succeeded in full. The employer appealed.

Held: The appeal failed. It was not possible to say with any confidence whether, without the tortious

contribution, the claimant would have been so weak as to inhale her vomit. It was not suggested either

in this court or below that the damages should be apportioned (Given out in portions).

Waller LJ said: “I would summarise the position in relation to cumulative cause cases as follows. If the

evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of

the non-tortious cause or causes in any event, the claimant will have failed to establish that the

tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that ‘but

for’ the contribution of the tortious cause the injury would probably not have occurred, the claimant

will (obviously) have discharged the burden. In a case where medical science cannot establish the

probability that ‘but for’ an act of negligence the injury would not have happened but can establish


that the contribution of the negligent cause was more than negligible, the ‘but for’ test is modified,

and the claimant will succeed.”

MCGHEE V NATIONAL COAL BOARD [1973] 1 WLR 1

FACTS: The plaintiff contracted dermatitis due to exposure to dust, when cleaning brick kilns for the

defendant. Medical evidence suggested that the only way to avoid the dust abrasions was thorough

washing of the skin immediately after contact. The defendant negligently did not provide washing

facilities on site. However, the medical evidence did not establish whether the lack of washing (which

the defendant was liable for) or more generally the exposure (which the defendant was not liable for)

was the cause.

ISSUE: Was sufficient causation proved?

HELD: Under the strict all or nothing approach the plaintiff could not prove the defendant caused his

dermatitis (Hotson v East Berkshire Area Health Authority [1987]). The plaintiff was also unable to

prove that defendant's failure to provide onsite washing facilities materially contributed to his

dermatitis (Bonnington Castings Ltd v Wardlaw [1956]). However, the House of Lords found that the

defendant's failure to provide onsite washing facilities was a material contribution to the risk of injury

and that was sufficient to prove causation.

Therefore, the courts have modified the ‘but for’ test. This means that a claimant must establish the

defendant's negligence either: materially contributed to the harm (Bonnington Castings Ltd v Wardlaw

[1956]) or materially contributed to the risk of harm (McGhee v National Coal Board [1973]). In

Wilsher v Essex Area Health Authority [1988], the defendant could only be held responsible for one of

the possible risk factors and it could not be shown that this increased the risk of the claimant suffering

the harm. Therefore, despite the widening of the ‘but for’ test the claimant was still unable to satisfy

the causation requirement.

Divisible injury

The issue arises: to what extent is a defendant who is found to have either materially contributed to

the harm or materially contributed to the risk of the harm, liable for damages?

HOLTBY V BRIGHAM & COWAN (HULL) LTD [2000] 3 ALL ER 421

FACTS: The claimant suffered asbestosis due to exposure to asbestos at work. The asbestosis was a

cumulative condition, which got progressively worse the longer the exposure continued. Over a period

of time, the claimant had been carrying out the same work for several employers, including the

defendant.

ISSUE: To what extent was the defendant liable?

HELD: The claimant succeeded in demonstrating a material contribution from the defendant's

negligence. The defendant would be responsible for a proportion of the harm suffered by the claimant.

Therefore, damages were apportioned between the defendant and the other employers (the

tortfeasor’s) according to the length of time the claimant worked for each employer. The claimant

must make a claim against all the tortfeasor’s in order to recover full damages.


Indivisible injury

In some cases more than one defendant has made a material contribution to the claimant's harm but it

is not divisible. For example, in a road traffic accident a single injury suffered may be the result of two

different defendant's negligence.

CIVIL LIABILITY (CONTRIBUTION) ACT 1978

S1 Entitlement to contribution

(1) .. any person liable in respect of any damage suffered by another person may recover contribution

from any other person liable in respect of the same damage (whether jointly with him or otherwise).

S2 Assessment of contribution

(1) .. in any proceedings for contribution under S1 above the amount of the contribution recoverable

from any person shall be such as may be found by the court to be just and equitable having regard to

the extent of that persons responsibility for the damage in question.

Under S1(1) of the Civil Liability (Contribution) Act 1978, the defendants are jointly and severally liable

for the full damages owed to a claimant. This means a claimant may bring a claim for full damages

against only one of the defendants. It aids a claimant to recover full damages even if one of the other

defendants is insolvent or untraceable. In addition, under S2(1), the courts can apportion liability for

damages between the defendants according to their share of responsibility for the harm caused.

Recent developments

A recent decision has been criticised for weakening the test for factual causation and therefore, leaving

employers and insurers vulnerable to large claims. However, it can also be seen as providing just

recourse for claimants who have suffered serious harm.

FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD [2003] 1 AC 32

FACTS: The claimants had developed mesothelioma, a cancer, caused by exposure to asbestos. The

claimants had worked for several employers and were exposed to asbestos in each job. The defendants

were some but not all of the employers. Medical evidence failed to show which of the employers had

been responsible for the exposure which led to the cancer. Each defendant argued that the ‘but for’

test was not satisfied as their breach may have not been responsible for triggering the cancer.

ISSUE: Could the defendants be held responsible?

HELD: The Court of Appeal found that the lack of medical certainty meant that causation could not be

proved. However, the House of Lords approved the approach in McGhee v National Coal Board [1973],

finding that the defendants had materially contributed to the risk of the claimants contracting the

cancer. It also found that mesothelioma was an indivisible injury and therefore, the defendants were

jointly and severally liable.

Another controversial decision followed, which appeared to retract the scope of the decision in

Fairchild v Glenhaven Funeral Services Ltd [2003].

BARKER V CORUS [2006] 2 AC 572

FACTS: The claimants contracted mesothelioma working for a number of employers. However, when

the case was brought the defendant was the only employer still trading. The defendant argued that if

was unfair to impose joint and several liability when their breach had only contributed to the risk of


harm. The defendant argued liability should be proportionate only to the extent to which they

contributed to the risk (the time that they had employed the claimants and exposed them to the

asbestos).

ISSUE: Could the defendant be held jointly and severally liable?

HELD: The House of Lords (majority) held that liability for mesothelioma under Fairchild v Glenhaven

Funeral Services Ltd [2003], was for the risk of harm and therefore a defendant's liability should be in

proportion to the contribution he has made to the risk of the harm occurring. Furthermore, although

mesothelioma was an indivisible injury, the risk of it was divisible and should be reflected in a

defendant's liability.

The decision in Barker v Corus [2006], was heavily criticised for limiting a claimant's ability to receive

damages in full. Parliament passed the Compensation Act 2006 which effectively reversed the decision

for claimants suffering mesothelioma. However, it remains unclear whether the decision will be

followed in cases where causation is based on a material contribution to the risk of harm.

Factual causation: loss of chance

Where the claimant submits the defendant's conduct lost them a chance of avoiding harm or injury as

opposed to causing the harm or injury itself, the courts have been reluctant at imposing liability. This

most commonly comes up in relation to medical negligence whereby a failure to diagnose a condition

correctly may prevent the claimant from receiving vital treatment which may have saved their life or

avoided a deteriation in their condition. The House of Lords has twice considered this issue of

causation and on each occasion has refused to impose liability:

A claimant may lose because of a solicitor's negligence an opportunity to bring legal proceedings, or

because of a doctor's negligence a good chance of recovery. Loss of chance is actionable in contract

(Chaplin v Hicks [1911] 2 KB 786) but its extent in tort is unclear.

The House of Lords have held that questions of loss of chance do not arise where there are positive

findings of fact on the issue of causation. Such a case may be an 'all or nothing' case.

Where the claimant's loss resulting from the defendant's negligence depended on the hypothetical

action of a third party, either in addition to action by the claimant or independently of it, see the

decision of the Court of Appeal.

The Court of Appeal has followed the approach adopted in Allied Maples in two later cases:

In Stovold v. Barlows (1996) PNLR 91 a solicitor acting for a vendor failed to use the appropriate

system for sending the title deeds to a purchaser. Consequently, the claimant lost his chance to sell the

property at a higher price. But damages were reduced by 50% as the court held that the purchaser

might have bought another property even if the documents had arrived on time.

In First Interstate Bank of California v Cohen Arnold & Co. (1996) PNLR 17 the claimant bank had

loaned money to a client of the defendant accountants who negligently overstated the net worth of

their clients. The bank then became concerned about the amount of the loan outstanding but, relying

on the representations made by the defendant accountants, the bank delayed in calling in the loan. As

a result of the delay in placing the property on the market, the price obtained was £1.45 million

whereas the bank contended that it could have realised £3 million in an earlier sale. The Court of


Appeal valued the chance at 66.66% on the assumption that “but for” the negligence, the property

would actually have been sold for 66.66% of £3 million.

The loss of chance concept applies to cases where a claimant is arguing that the defendant's breach

caused the claimant to lose a chance, rather than the defendant's breach being a cause of the harm.

Therefore, the courts must focus on the outcome of events not the damage which occurred.

In Hotson v East Berkshire Area Health Authority [1987], where the defendant's omission to treat the

claimant may have lessened his chance of recovery, the House of Lords decided to use the all or

nothing approach. However, it refused to rule out the possibility of successful loss of chance cases in

different circumstances.

GREGG V SCOTT [2005] WL 622 48

FACTS: The claimant had a lump (enlargement) under his arm which the defendant doctor negligently

diagnosed as benign (not dangerous to health). Therefore, the cancer was left untreated and spread to

other parts of the claimant's body. Medical evidence, suggested that if the misdiagnosis had not have

occurred the claimant would have had a forty five per cent chance of recovery.

ISSUE: Was the defendant liable for the claimant's loss of chance?

HELD: The House of Lords (majority) applied Hotson v East Berkshire Area Health Authority [1987] and

confirmed the all or nothing approach.

Factual causation: multiple injuries

If a claimant has suffered one injury or loss followed by another and they are relevant to one another,

causation issues can arise.

PERFORMANCE CARS V ABRAHAM [1962] 1 QB 33

FACTS: The defendant negligently hit the claimant's car and the car required a re-spray. However, two

weeks earlier the claimant's car had been hit by another negligent driver. The initial incident meant

that the car was in need of a re-spray prior to the incident involving the defendant.

ISSUE: Could the defendant be liable for the damage?

HELD: The Court of Appeal found that the defendant was not liable for the cost of the re-spray because

the defendant's breach had not caused the need for the re-spray. Therefore, if a claimant has already

suffered the harm, a subsequent defendant is only liable to the extent that he makes the claimant's

harm worse.

Similarly, issues can arise in relation to personal injuries.

RAHMAN V AREAROSE LTD [2001] QB 351

FACTS: The claimant had suffered physical injuries after a vicious assault at work, which employer, the

first defendant, had negligently failed to protect him from. Subsequently, the claimant was left blind in

one eye after receiving negligent treatment, in the second defendant's hospital. Furthermore, the

claimant suffered severe continuing psychiatric injury as a result. Medical evidence showed that the

complex psychiatric injury could be attributed to the two separate tortious incidents.

ISSUE: To what extent was each defendant liable?

HELD: The claimant's employer was solely responsible for the initial injuries and loss of wages resulting

from the attack. The hospital was solely responsible for the blindness. The court found that both were


liable for the psychiatric injury. On the basis of the medical evidence, the psychiatric injury was found

to be divisible and therefore, the damages were apportioned between the employer and the hospital.

Legal causation: intervening acts

Where there is a new intervening act this may break the chain of causation removing liability from the

defendant. The legal test applicable will depend upon whether the new act was that of a third party or

an act of the claimant.

Both factual causation and legal causation must be proved in order to make a claim in Negligence. For

the chain of causation to be proved the defendant's breach of duty must have caused or materially

contributed to the claimant's injury or loss. However, the chain may be broken by an intervening

event.

In these cases, as opposed to the cases just considered, the Defendant's negligence is not sufficient by

itself to cause the injury. Rather the injury is caused by a supervening event. The negligence, however,

creates the opportunity for the injury to occur. The Latin phrasenovus actus interveniens is used to

describe the intervening act.

Hoffman in Empress Car v National rivers [1992] 2 AC 22

A factory owner leaves an oil drum in a dangerous place and a worker comes by, lights a cigarette and

throws it towards the barrels causing a fire. It would be the owner's fault for leaving the barrels in a

dangerous place where an accident was likely to happen.

If, however, the workman knew that the barrels were flammable and still threw a match, it would be

difficult to say that the factory owner caused the fire. Similarly, if the drum had been struck by

lightning it would be hard to say that the owner caused it.

It should be clear from the examples that the question of whether a novus actus breaks the chain of

causation will depend on the duty of care of the Defendant. If the factory owner had a duty of care to

protect the barrels from lightning then there would be causation if lightning caused the fire. It is only

because lightning striking the barrel is such a rare occurrence that we can say it broke the chain of

causation between the owner's negligence (leaving the barrels in an unsafe place) and the damage by

fire.

Knightley v Johns [1982] 1 WLR 349

The 1st Defendant caused an accident in a tunnel. The police were called but the officer in charge

forgot to close the entrance of the tunnel so cars couldn't continue to enter. This was in breach of

police codes. The officer in charge then sent two police constables down the tunnel against the flow of

traffic in order to close the tunnel. They did so though it was in breach of codes for them to do so. One

of the constables was injured by an oncoming car (through no fault of the driver's) and he sued. The

trial judge found that 1st Defendant, the driver of the car which originally causes the need for the

police to be called out, was liable and the failures by the officer in charge and Claimant himself did not

break the chain of causation.

The Court of Appeal held that the chain was broken by the officer in charge. They said that the

question of when a novus actus break the chain of causation is a matter of common sense but it did

enunciate some principles of wider application. The Court asked whether the injury was a probable and

foreseeable result of the actions of officer in charge. The answer was yes and thus the chain was


broken. In addition, negligent conduct is more likely to break the chain of causation than non-negligent

conduct.

It is important to note that when we talk about a novus actus by the Claimant himself, the court will

usually deal with this by contributory negligence, rather than saying that the Claimant's action broke

the chain of causation. This is, however, something which is considered in the Defences. This won't be

the case when a duty of care is owed.

Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360

The House of Lords held that the suicide of a prisoner in a police cell did not break the chain of

causation as the police had a duty to watch the prisoner. The police knew that the prisoner had suicidal

tendencies and the police owed him a duty of care to stop him committing suicide.

The act of the Third party

Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third

party was foreseeable, the defendant remains liable and the chain of causation remains intact. If the

act of a third party is not foreseeable this will break the chain of causation and the defendant is not

liable for the actions of the third party:

The intervening act of a third party may break the chain of causation.

A third party act will not break the chain of causation if the defendant is under a legal duty to prevent

that act.

STANSBIE V TROMAN [1948] 2 KB 48

FACTS: The claimant had property stolen from her house, when the defendant, a decorator, left the

house unoccupied and unlocked. The defendant was under at duty to secure the property if he left the

house.

ISSUE: Did the intervening act break the chain of causation?

HELD: The chain of causation was not broken, the actions of the thief, was the very reason the

defendant was under a duty to secure the property.

A third party act will break the chain of causation if it is an unforeseeable consequence of the

defendant's own negligence.

KNIGHTLEY V JOHNS [1982] 1 WLR 349

FACTS: The defendant was driving negligently which led to his car turning over near the exit from a

one-way tunnel. The police officer who arrived at the scene negligently directed the plaintiff to drive

back up the tunnel. The plaintiff collided with an oncoming vehicle and was injured.


HELD: The chain of causation was broken. It was foreseeable the police would attend as a result of the

defendant's negligence. However, the gross negligence of the officer was not foreseeable.

A negligent act of a third party is more likely to break the chain of causation, but not definitely because

some errors of judgment are foreseeable.

Stephenson LJ: .. mistakes and mischances are to be expected....

Therefore, the question of foreseeability, even if the third party was negligent will be decided on the

facts of each case.


ROUSE V SQUIRES [1973] QB 889

FACTS: The defendant's careless driving resulted in his lorry skidding and blocking two lanes of the

motorway. The plaintiff's husband stopped to help the defendant. Another lorry driver, who was also

driving negligently, failed to see the blockage soon enough and killed the victim.


HELD: The Court of Appeal found that the chain of causation was not broken, as it was reasonably

foreseeable that other drivers may arrive at the scene too fast to stop. Both the defendant and the

second driver had made a material contribution to the indivisible injury. Under the Civil Liability

(Contribution) Act 1978 the court apportioned liability between them.

An instinctive intervention, by a third party, may not break the chain of causation if it is a

foreseeable reaction.

SCOTT V SHEPHERD (1773) 2 WM BL 892

FACTS: The defendant threw a lighted squib (Firework) into a crowded market. Two other individuals

picked the squib up and threw it away from themselves and their stalls. The squib eventually exploded

in front of the plaintiff, who lost his eye.

ISSUE: Did the intervening acts break the chain of causation?

HELD: The intervening acts did not break the chain of causation, as the third parties were acting

instinctively to the danger posed by the defendant's act.

De Grey CJ: .. all that was done subsequent to the original throwing as a continuation of the first force

and first act.. any innocent person removing the danger from himself to another is justifiable... acting

under a compulsive necessity for their own safety and self-preservation....

Act of the Claimant

Where the new intervening act is that of the claimant, the test is whether the claimant acted

reasonably in the circumstances. If the claimant's actions are deemed reasonable the chain of

causation remains intact and the defendant is liable for the actions of the claimant. If, however, the

claimant's actions are unreasonable in the circumstances the chain of causation is broken and the

defendant is not liable for the actions of the claimant:

A claimant's own act may break the chain of causation. A claimant’s own act may be a novus actus

interveniens if he acts unreasonably.

MCKEW V HOLLAND & HANNEN & CUBITTS [1969] 3 ALL ER 1621

FACTS: The plaintiff injured his leg at work, due to his employer's negligence (the defendant). A few

days later, the plaintiff was descending some steep steps without a handrail. He lost control of his leg

and fell down the stairs, severely fracturing his ankle.

ISSUE: Did the plaintiff's intervening act break the chain of causation?

HELD: The plaintiff's act did break the chain of causation because he took an unreasonable risk.

Lord Reid: .. if the injured man acts unreasonably he cannot hold the defender liable for injury caused

by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of

causation has been broken and what follows must be regarded as caused by his own conduct....

A claimant's act of carelessness may not always be considered so unreasonable as to break the chain

of causation. However, it may be viewed as contributory negligence on the claimant's part.


SPENCER V WINCANTON HOLDINGS LTD [2009] EWCA 1404

FACTS: The claimant was injured at work, resulting in his leg being amputated. The defendant was

liable was for this injury. Several months later, the claimant had an accident, trying to use his new

prosthesis, which meant that he would be permanently confined to a wheelchair.

ISSUE: Did the claimant's intervening act break the chain of causation?

HELD: The claimant's act did not break the chain of causation. However his damages were reduced as

contributory negligence was accepted as a partial defence.

Lord Sedley: .. Like the amputation, the fall was... an unexpected but real consequence of the original

accident, albeit one to which [the claimant’s] own misjudgment contributed....

Remoteness and foreseeability

Remoteness is often called legal causation, and does not concern itself with deciding whether there is

causation as a matter of fact, but rather is concerned with whether it is fair to impose liability. It has

already been established in these cases that factual causation exists, the issue is whether it is fair to

impose liability. The issues in remoteness are therefore largely to do with policy. The idea is similar to

the concepts encountered in duty of care topic, where the court will only impose liability if it is just and

reasonable. The general question is: was it foreseeable that that type of harm would occur?

Should a defendant be liable for all the consequences of his or her actions, no matter how unlikely or

unpredictable it is that those consequences manifested themselves? Remoteness is a legal principle

that serves to limit the potential liability of a tortfeasor in practice (Elliot and Quinn, (2007), p104 et

seq). The issue of remoteness arises on consideration of the fundamental question of legal causation,

which involves an analysis of the operative cause of the harm suffered by the claimant in law. As

Horsey and Rackley comment: ‘When a court asks whether a harm was too ‘remote’ a consequence of

the defendant’s negligence (breach of duty), what is essentially being asked is whether the

consequences of the negligent action were so far removed from it as to have been unforeseeable by the

defendant’ (Horsey and Rackley, (2009), p247).

In this context the foresight and perspicacity of the defendant is judged on the basis of the objective

standard of the notional ‘reasonable person’ at the moment that the tortious act or omission occurred

(Cooke, (2007), p177 et seq).

Remoteness test

A claimant must prove that the damage was not only caused by the defendant but that it was not too

remote. The remoteness of damage rule limits a defendant's liability to what can be reasonably

justified, ensures a claimant does not profit from an event and aids insurers to assess future liabilities.

The courts have developed tests in order to determine if the damage is too remote.

RE POLEMIS AND FURNESS, WITHY & CO [1921] 3 KB 560

FACTS: The plaintiffs chartered a ship and due to bad weather the cargo had leaked, releasing some

gas below the deck. On unloading the ship one of the defendant's workers knocked down a plank,

creating a spark, which ignited the gas and burnt the ship.

ISSUE: Was the defendant liable for the damage?


HELD: The defendant was liable for all the loss which flowed from his conduct. The Court of Appeal

applied a direct causation test which means that foreseeability is only relevant in determining

culpability (A state of guilt) not compensation.

Overseas Tankship v Morts Dock (The Wagon Mound (No 1)) [1961] AC 388

FACTS: The respondents were ship-builders; they owned a wharf with tools on it. A ship was docked

along the wharf and was being worked on by the respondents. The Appellants had control of a ship

called the Wagon Mound which was docked about 600 yards away. The Wagon Mound was unloading

gasoline which negligently allowed getting into the water and spreading over to the respondent's

wharf. The Respondent's manager became aware of the spill and told his workmen not to do any

welding. He asked the owner of the dock where the Wagon Mound was docked whether it was safe to

weld, and after receiving an affirmative answer he told his workmen that they could weld but to be

cautious. Some sparks from the welding fell into the water and caused a fire. The trial judge found that

some cotton was floating on a piece of debris under the wharf and that sparks from the welding fell

onto this. The judge said that the appellants could not have known that it was possible for the gasoline

to burn when floating on water.

ISSUE: Was the damage too remote?

HELD: The court held that the Appellants were not liable as the damage by fire was not a reasonably

foreseeable consequence. The court overruled an earlier case called Re Polemis in which it was held

that the Defendant is liable for all damage as long as it is a direct result of their actions, regardless of

whether it was foreseeable. The defendant was found not liable, because it was not reasonably

foreseeable that the oil might ignite on water in these circumstances. The Privy Council applied a

reasonable foreseeability test . Although, damage by oil was foreseeable the damage by fire was too

remote to be foreseeable. Essentially, the test means that if a reasonable person would not have

foreseen the damage it cannot be recovered.

The two tests cannot be reconciled. The Wagon Mound (No 1) [1961] decision, did not explicitly

overrule the Re Polemis and Furness, Withy & Co [1921] test. Therefore, both tests may still be applied

although courts have tended to use the approach taken in The Wagon Mound.

JOLLEY V SUTTON [2000] 3 ALL ER 409

FACTS: The claimant, a child, was injured when playing on a boat which had been abandoned on the

defendant's land. Older children had attempted to repair the boat and therefore it was left in a very

precarious position, when it fell on the claimant.

ISSUE: Was the injury too remote?

HELD: The House of Lords approved The Wagon Mound test and found that the damage was

reasonably foreseeable and therefore the defendant was liable.

Similar-in-type rule

An injury is not too remote if the type of injury is reasonably foreseeable, even if the precise way in

which the injury was caused was not foreseeable.

HUGHES V LORD ADVOCATE [1963] 1 ALL ER 705

FACTS: The defendant, left a manhole covered by a small tent with a paraffin lamp at each corner,

unattended. The plaintiff, one of two boys aged 8 and 10, took a lamp inside the tent, he tripped,


causing the lamp to fall into the manhole and this created a large explosion. The plaintiff suffered

serious burns.


HELD: The House of Lords found that the defendant was liable because the accident was caused by a

known source of danger; therefore, injury by burning was foreseeable, even though the way in which it

happened was unexpected.

Lord Morris: .. there was a duty owed by the defenders to safeguard the pursuer against the type or

kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not

absolved from liability because they did not envisage the precise concatenation of circumstances which

led up to the accident....

The House of Lords have taken a narrow view in interpreting the meaning of similar type.

TREMAIN V PIKE [1969] 3 ALL ER 1303

FACTS: The plaintiff contracted Weil’s disease working on the defendant's farm. The defendant had

negligently allowed a rat infestation on his farm. The plaintiff's rare disease was caused by contact with

rats' urine.


HELD: The defendant was not liable. An injury caused by rat bites was foreseeable but the plaintiff's

disease was so unusual that it was not foreseeable, even using the similar-in-type proviso.

However, more recently the courts have taken a broader approach to construction and widened the

scope of losses for which a defendant can be held liable.

JOLLEY V SUTTON [2000] 3 ALL ER 409

FACTS: The claimant, a child, was severely injured when playing on a boat which had been abandoned

on the defendant's land


HELD: The House of Lords took a wide view of the type of injury. It was foreseeable that injuries such

as bruises or even fractures may be sustained but the claimant suffered severe crushing injuries which

left him disabled. Using The Wagon Mound test and following the approach in Hughes v Lord Advocate

[1963], the court found that it was not necessary to distinguish between the different types of physical

injuries, because the precise nature of the injury does not need to be foreseeable.

Egg-shell skull rule

The egg-shell skull rule applies in cases where the type of injury is foreseeable but the claimant's

special characteristics make the extent of the injury unforeseeable. The rule is also referred to as take

your victim as you find him.

SMITH V LEECH BRAIN & CO [1962] 2 QB 405

FACTS: The victim suffered a burn on his face after being slightly splashed by molten metal when

working for the defendant. The incident would not have happened but for the defendant's negligence.

The burn aggravated the victim's unknown pre-existing cancerous condition and he died.

ISSUE: Was the victim's death too remote?

HELD: The court found that the defendant was liable because although the cancer was an

unforeseeable injury the defendant's negligent act led to the cancer developing. The court explicitly


followed The Wagon Mound test: the burn injury was foreseeable and the fact that the extent of the

injury was not, did not prevent liability.

Lord Parker : .. If a man is negligently run over... it is no answer to the sufferer's claim for damages that

he would have suffered less injury... if he had not had an unusually thin skull or an unusually weak

heart....

ROBINSON V POST OFFICE [1974] 1 WLR 1176

FACTS: The plaintiff slipped at work, due to the defendant's negligence, and suffered a minor injury to

his leg. The plaintiff went to hospital and was given an anti-tetanus injection and then he suffered a

severe allergic reaction to the injection.

ISSUE: Was the second injury too remote?

HELD: The defendant was liable for both injuries. It was reasonably foreseeable that the plaintiff would

require medical treatment as a result of the original injury and therefore, the defendant was liable for

the consequences of the treatment, despite the reaction being unforeseeably severe.

Claimant's impecuniosity

Another element of taking your victim as you find him, relates to the extent that a claimant's lack of

resources may mean that he is unable to ameliorate (To make better) the loss suffered due to the

defendant's negligence.

LAGDEN V O'CONNOR [2004] 1 ALL ER 277

FACTS: The claimant's car was damaged when the defendant negligently crashed into the parked

vehicle. The claimant's car required extensive work and he needed a temporary replacement. The

claimant was only able to obtain a hire car on an expensive credit arrangement.

ISSUE: Was the credit agreement payment too remote?

HELD: The defendant was liable for the cost of credit because the claimant had to take out the

expensive agreement as a result of the damage caused by the defendant's negligence. Essentially, the

court applied the principle that a defendant must take his victim as he finds him.

Is Foreseeability The Right Test?

As in this lecture should foreseeability continue to be the applicable test for remoteness? There is at

first sight a tempting argument to the contrary. If a defendant’s negligence sets in train a course of

events that result in wide ranging and far reaching damage why shouldn’t that defendant be made

liable for all that damage? Why is it deemed appropriate to limit the defendant’s liability only to those

consequences that might have been reasonably foreseen at the point of the negligent action or

omission? Viscount Simmonds evokes the notion of “current ideas of justice and morality”, but surely

fundamental justice and basic morality dictates that individuals are held responsible for all the

consequences of their actions. In terms of their strict definitions the concepts of justice and morality

do not contain opt-out clauses, exclusions or caveats in relation to foreseeability, which is an entirely

separate issue.

Presumably Viscount Simmonds uses the word “current” to suggest that the law had evolved over forty

years of the twentieth century, from its application in Re Polemis in 1921 to reach a state by the time

of the Wagon Mound No.1 decision in 1961 in which it was deemed appropriate to incorporate a


foreseeability factor into what was hitherto open-ended liability. In the real world there are fairly hard-

nosed justifications for the restricted liability test espoused in Wagon Mound No.1. One such

justification is insurability. It would be much harder and far more expensive to acquire insurance to

cover activity that could potentially result in untold and unforeseeable harm than it is to insure oneself

against foreseeable ranges of harm and loss. Viscount Simmonds then, in evoking the concepts of

current justice and morality, is essentially adding practicality to the list and it is submitted that this is

entirely justified. The law must be seen to operate efficiently and pragmatically within the imperfect

and complex world in which we live. It cannot be confined by a purity of principle or an obsession with

fundamental morality or justice.

In simple terms, if the Re Polemis test still existed, and defendants were liable for any and all

consequences of their negligent actions, no matter how unforeseeable or unlikely those consequences

might be, it is highly probable that activity in society would be quite drastically impaired, because

potential tortfeasor’s (every member of society) would be intimidated by the potentially draconian and

inestimable consequences of making a mistake. The Wagon Mound No.1 test maintains liability for

foreseeable harm, but at least prevents the imposition of liability for the unforeseeable (and possibly

very far-reaching) consequences of negligent action.

The Wagon Mound No.1 test thus strikes a balance, and this is something that the law is required to do

in a veritable constellation of different fields and contexts. It is a balance struck between imposing

appropriate liability but not doing so in a fashion that unduly impedes activity in society.

This balance is finessed by the fact that it is only the form of damage suffered that must be

foreseeable, not the degree of harm actually sustained (Horsey and Rackley, (2009), p248). This

ensures that a defendant will be liable if a certain foreseeable type of damage is sustained even if the

actual extent of that damage is not objectively foreseeable. This obviously tilts the balance significantly

back in favour of the claimant in many cases. It is a distinction that seems simple enough at first sight,

but case law has illustrated that the courts have struggled to reach consistent decisions. This is

however understandable given the almost infinite range of possible damage-inflicting scenarios that

the courts may be confronted with and individual rulings appear to turn on precisely how strictly a

court defines the concept of type or form of damage. A narrow definition was for example adopted to

the advantage of the defendant in Doughty v Turner Manufacturing Co [1964] 1 All ER 98 (here the

distinction was between a splash and an eruption of burning liquid), while in Hughes v Lord Advocate

[1963] AC 837 a more generous definition was endorsed to the advantage of a child (and this may be

significant) claimant.

Concluding Comments

This lecture concludes that foreseeability should remain the applicable test for remoteness. A principle

of good old fashioned common sense seems apposite: if it isn’t broken, don’t try to fix it. It is argued

that Viscount Simmonds’ contention that foreseeability should continue to be the applicable test for

remoteness, is well founded, primarily because, on reflection, no better test is available. It is fairly

pointless to point to the margins of application of a legal test and then subject that test to criticism

unless a superior alternative presents itself.


The foreseeability test is far from perfect, but then there are no perfect tests in law. Foreseeability

represents a balanced compromise between the interests of claimant and defendant. It is a pragmatic

solution, allowing measured recovery which permits compensation for foreseeable harm, but not

unlimited liability, which would expose a defendant to losses that he could not reasonably have

anticipated and also have a potentially draconian (harsh) inhibitive impact on conduct in society as a

whole.

As with all generally applicable tests in law, it is the application and interpretation of the test in specific

instances that is the most important thing, not the bare principle inherent in the test itself. Any test

can be rendered ineffective and deleterious if blindly or mechanically applied. If foreseeability is

sensitively and flexibly applied in the context of determining remoteness of damage then it can serve

as a good and appropriate measure of liability in almost any conceivable instance.

The case law in this field in the post Wagon Mound No.1 era does not suggest that significant problems

or iniquities have arisen as a consequence of the application of the foreseeability test. There are and

will always be individual cases that at first sight suggest weaknesses in a legal principle, but that is not

the way to judge a general test. The measure of the value of a general test in law is the way in which

the test can be applied in the vast majority of cases.

General tests must serve the day-to-day interests of the wider society, not necessarily specific

individuals in one-off or unique cases. Overall, the precedent bank in this area of law indicates that the

foreseeability test almost always produces the fairest result in a case. That is not to say that it is a

panacea in every difficult case, such as Tremain v Pike [1969] 3 All ER 1303 (concerning the distinction

between the foreseeable physical injury of a rat bite and the rare and unforeseeable disease suffered

as a result of the bite). Moreover there have been problems reconciling different rulings on

foreseeability, as illustrated by Caledonian North Sea Ltd v London Bridge Engineering Ltd [2000]

Lloyd’s Rep IR 249 IH, which highlighted the fact that foreseeability can be interpreted fairly loosely or

more strictly in any given context.

However, such problems effect every single test applied in every single field of law and they do not

undermine the fundamental integrity of foreseeability as a good general benchmark of liability. As

things stand it is submitted that the foreseeability test in remoteness represents the least imperfect

measure of liability and the best compromise between the interests of the parties involved and those

of the wider society that the law ultimately serves. Thus, on the basis of the foregoing analysis,

Viscount Simmonds’ contention is supported.

Class activity

Teacher-led information on basic tests. Learners prepare summaries on key cases such as the ones listed here: Hotson, McGhee, Wagon

Mound, Re Polemis, Jobling, Fairchild etc. Visual learning activity – learners make a mind map to show tests in diagrammatic form as a revision

aid for examinations.

PowerPoint – look at the presentation here and use it as a prompt for their own summary on its key

facts for making your own presentation.


Questions from past papers

Q1. A Law Commission report published in 1998 argued that the current rules on compensation for secondary victims suffering nervous shock are too restrictive. Outline the current rules relating to secondary victims and evaluate their usefulness in the light of case law decisions. [May/June 2004]

Q2. ‘The rules of causation and remoteness of damage aim to compensate claimants for loss and injury arising from a defendant’s negligence.’ Using case law examples to support your views analyse the extent to which this aim is met in England & Wales. [October/November 2005]

Q3. ‘Bystanders who have no relationship with the primary victims of an accident are very unlikely ever to be able to sue successfully for psychiatric injury experienced as a result.’ (Elliott & Quinn: Tort Law, 2003) With reference to relevant case law, discuss the limitations imposed by the courts in instances of nervous shock sustained by secondary victims. [October/November 2007]

Q4. With reference to case law, analyse the extent to which the rules relating to causation and remoteness achieve their aim of compensating a claimant’s loss in tort. [October/November 2008]

Q5. The distinction between primary and secondary victims was said by the Law Commission in its report on psychiatric illness to be ‘more of a hindrance than a help’ and it was said that there was ‘confusing inconsistency’. Analyse the rules relating to nervous shock and critically assess whether or not you agree with this view. [May/June 2010]

Q6. The distinction made between primary and secondary victims who suffer nervous shock can no longer be justified. Critically analyse the rules that are applied in claims for nervous shock and assess the extent to which the view above can be substantiated. [October/November 2010]

Q7. Critically analyse the development and application of the remoteness of damage principle through cases in the law of tort. [October/November 2012]

Q8. In negligence cases, the rules relating to causation and remoteness restrict the liability of defendants. Using decided cases to support your views critically assess the impact of these rules on the aim of damages to fully compensate victims of tort. [May/June 2013]

Q9. The current law relating to nervous shock is unsatisfactory and only policy considerations can justify it. Critically assess this view. [May/June 2014]

Q10. The distinction drawn between the primary and secondary victims suffering nervous shock as a consequence of negligence is unnecessary and unfair. Explain the distinction between the two types of victim and assess the validity of this statement. [October/November 2014]

Documents

Lecture # 5 Causation - vlc.com.pkvlc.com.pk/Law of Tort LOT/LOT 5 Causation.pdf · Lecture # 5 Causation By: ... a claimant must prove that the defendant's breach of duty owed caused