DAMAGE – CAUSATION IN

FACTBy Kenisha Browning

GENERAL PRINCIPLESThe third aspect that must be proved ifthere is to be liability in negligence is thatthe broken duty caused the loss

complainedof, and that the law recognises that the

lossis not too remote from the act. This is

oftenreferred to as damage and must bedistinguished from damages which is theamount of compensation awarded.

GENERAL PRINCIPLESThere are two parts to damage: causation andremoteness. Causation is the idea that thedefendant must have caused the loss complainedof. This is causation in fact. This is the sameconcept as in criminal law, but is illustrated byexamples from the law of negligence. If no loss iscaused then there is no claim in negligence.Remoteness is concerned whether the loss isreasonably foreseeable: causation in law. Bothmust be proved following a broken duty of care ifthere is to be liability for a claim in negligence.

Situation-Defendant’s act

or omission- Drives car into claimant’s car

Causation in fact

- Apply ‘but for’ test

- Minor damage to car and

whiplash injury to claimant.

Causation in law- Take your victim as you find him/ unusual form of

foreseeable injury- Claimant already has a weak neck

from previous accident and in fact breaks neck

This can be illustrated by the following diagram:

CAUSATION IN FACTCausation in fact is the starting point. If there is nocausation in fact, there is no point in consideringwhether there has been causation in law. Causation infact is determined by the ‘but for’ test. The test issatisfied if it can be said that, but for the defendant’sact or omission the claimant would not have sufferedthe loss or harm. A different way of stating the test is toask whether the prohibited result would have occurred ifthe defendant had not acted. If the prohibited result wouldstill have occurred, even without the defendant’s actions,then something other than the defendant’s actions caused itand factual causation is not present.

BARNETT V CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE( 1968)

The facts of the case are that the defendants managed acasualty department at a hospital. One night, three nightwatchmen arrived at casualty, complaining to a nurse onduty that they had been vomiting for three hours afterdrinking tea. The nurse reported their complaints bytelephone to the duty medical casualty officer, whoinstructed her to tell the men to go home to bed and calltheir own doctors if they still felt ill in the morning. Thecasualty officer did not speak to the men or offer toexamine them which would have been normal practice.

The men then left, and, about five hours later,one of them died from poisoning by arsenic. Itseems that the arsenic had got into the tea,probably as a result of the mugs or teapotbeing used for mixing poison by someone elseat the workplace. The medical opinion wasthat the claimant was likely to have died fromthe poisoning even if he had been admitted tothe hospital wards and treated with all carefor the five hours before his death.

BARNETT V CHELSEA AND KENSINGTON HOSPITAL MANAGEMENT COMMITTEE( 1968)

CONCLUSION OF CASEThe hospital owed the deceased a duty ofcase, the hospital broke the duty of care bynot reaching the standard of the reasonablycompetent hospital; but the hospital had notcaused the death of the deceased as their failureto examine him had not been proved to be thefactual cause of his death. It should be noted thatthe judge stated the hospital had been negligentand only ruled out liability for the death. Thismeans that the hospital could be liable for otherlosses following from their failure to examine thedeceased.

MULTIPLE CAUSESIt is not always straightforward to

establishthat the defendant’s act or omission

causedthe loss complained of. Sometimes there

ismore than one possible cause. The courts

havestarted to use a modified rule on the

groundsof public policy where there are ‘specialcircumstances’. This was set out in the

case ofFairchild V Glenhaven Funeral

Services Ltd(2002).

FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD (2002)

This case decided that a worker who had contractedmesothelioma ( a form of cancer caused by exposure toasbestos dust) could sue any of his previous employers’negligence, even though the claimant could not provewhich particular exposure had been the cause of thedisease. It is understood that just one fibre fromasbestos can cause the disease, but not every fibreinhaled will cause the disease. As a result of thisuncertainty, the court decided all possible exposures toasbestos could have triggered the disease, and if anyand all employers were not to be held to be the causeof the disease, the claimant would not succeed. It was,therefore, unjust on policy grounds to leave this type ofclaimant without a remedy in law.

BAKER V CORUS (2006)In this case liability was placed on all those responsible

for

the exposure to asbestos so that liability is shared. This

seems to Mean that, in the case of exposure to asbestos at

any rate, the normal rule of causation in fact is modified.

The difference between Fairchild and Barker is that the

defendant in Fairchild had to take full responsibility for

compensation and then try to find and claim against other

possible sources of asbestos ( which might be difficult

where a potentially responsible defendant has gone out of

business); in Baker, each defendant sued by the

claimant was liable for a given percentage of the award in

proportion to the likelihood of having been the source of

the asbestos that caused the disease.

INTERVENING ACTS As with criminal law, an intervening act

canbreak the chain of causation. The

interveningact is known as novus actus interveniens

(newintervening act) and can be seendiagrammatically as:

Original negligent

act

New negligent

act

Injury caused

INTERVENING ACTThe defendant’s act may be said to cause theclaimant’s damage, in that it satisfies the ‘but for’ test,but a second factual cause is the real cause of thedamage. For example, suppose your head was injuredat school by a tile falling off the roof (because the roofwas badly maintained) , and your were taken tocasualty by a teacher. On the way to casualty, theteacher’s car was hit by a bus that was being drivenbadly, causing you leg injuries. It could be said that‘but for’ the tile falling off the rood you would not havesuffered the leg injury. However, the real cause of the leginjury is the bus, not the tile, The bus is the novus actusinterveniens. This means the injury to your head is caused bythe tile, the injury to your leg by the bus.

INTERVENING ACTThe principle that is applies is whether

theresulting damage was a foreseeableconsequence of the original act. The

casesoften appear to be decided on the basis ofproducing a just result as each set of facts

arevery different. This can be seen in Smith

VLittlewoods (1987).

SMITH V LITTLEWOODS (1987)

In this case the defendants purchased a cinema

with a view to demolishing it and replacing it

with a supermarket. They closed the cinema

and employed contractors to make siteinvestigations and do some preliminary

workon foundations, but then left the cinemaempty and unattended but locked.

Vandalsstated a fire in the cinema which seriouslydamaged two adjoining properties, one ofwhich had to be demolished.

SMITH V LITTLEWOODS (1987)The court decided that a reasonable person in theposition of the defendants would not foresee thatif he took no action to keep the premises fullysecure rather than just locked in the short timebefore the premises were demolished they would bset on fire and that would result in damage toneighbouring properties. The defendants had notknown of vandalism in the area or of previousattempts to start fires, so the events whichoccurred were not reasonably foreseeable by thedefendants and therefore the owned no duty tothe plaintiffs, the vandalism being a novus actusinterveniens.

CORR V IBC VEHICLES (2006)A more recent example is Corr V IBC Vehicles(2006). In 1996 Mr Corr was employed by thedefendant as a maintenance engineer when hesuffered severe head injuries in an accident atwork caused by malfunctioning machinery.Following lengthy reconstructive surgery, hebegan to suffer post-traumatic stress disordercausing him to lapse deeper and deeper intodepression. This was in contrast to his mentalhealth before the accident, which had noknown depression.

CORR V IBC VEHICLES (2006)In February 2002 he was admitted to hospital after taking

a drug

overdose; by March he was diagnosed as being at significant risk

of suicide; in May he was further diagnosed as being as suffering

from severe anxiety and depression and three days later he

committed suicide. The court decided that the question was not

whether the particular outcome was foreseeable but whether

the kind of harm was foreseeable ( this is an example of ‘take

your victim as you find him’) and, if it was, whether the

eventual harm was, on grounds of policy or fact, too remote.

Suicide does not necessarily break the chain of causation, and,

as the evidence clearly established that there was no other

cause than the depression that drove Mr Corr to suicide, there

was no break in the chain of causation, and the defendant had

been negligent.