Damage – Causation in law

By Kenisha Browning

Where there is factual causation, the claimantmay still fail to win his case, as the damagesuffered may be too remote. The breach ofduty may have significant results, but thedefendant will not be liable for everything thatcan be traced back to the original act. Clearlythere are some farfetched results that are notforeseeable and therefore are not recoverable.

Causation in Law

For example, consider the negligent driving of someonewho bumped into the back of my car. There are almostinfinite consequences: the car suffers very minordamage ( a broken tail light); I might miss the train; Imight not get the job, the interview for which I wastravelling to when the accident occurred; the reason I didnot get the job was that I was late for the interview; Imight then be unemployed for many months; I mighthave to sell my car to cover living expenses as I havelittle income ( being unemployed); I might then buy acheap car that has not got modern safety features; Imight crash that car and be injured, become depressedand commit suicide – all because of a minor trafficaccident. The law has to draw the line and say that someevents are too remote to be considered to have beencaused by the negligent act.

The test is that the defendant is liable for damage only if it is theforeseeable consequence of the breach of duty. The case that thisPrincipe stems from is Wagon Mound. In that case, the defendantspilt a quantity of oil whilst refuelling another ship. The oil spreadover the water to the claimant’s wharf, which was some distanceaway. The claimant was carrying out repair work to a ship. Thisinvolved welding. Molten metal ( part of the welding) from theclaimant’s wharf fell on floating cotton waste which smoulderedand then ignited the oil on the water. The claimant’s wharf wasseverely damaged by fire. The defendants did not know and couldnot reasonably have been expected to know that the oil could beset alight when spread on water.

Wagon Mound No.1 (1961)

They had made enquiries about the possibilityof fire as soon as the oil was noticed andsuspended welding whilst the situation waschecked. They were told that it was safe tocontinue and took precautions to stopflammable waste falling into the water. Despitethis, the fire started. The court decided that thedamage by the oil was foreseeable but thedamage by the fire was too remote and was notforeseeable.

Wagon Mound No.1 (1961)

The principle here is that as long as the type of damage isforeseeable, it does not matter that the form it takes isunusual. A classic example of this is Bradford V RobinsonRentals (1967). The claimant was required by his employerto take an old van from Exeter to Bedford and collect a newone. The weather was very cold and there was advice not totravel unless it was necessary. The vans had no heater, andthe windscreen kept freezing over, so Bradford had to drivewith the window open. The old van’s radiator leaked and hadto be topped up regularly. Bradford suffered frostbite. It wasforeseeable that the would suffer some cold-related injury,so the defendants were liable for his frostbite even thoughthat is very unusual. The reason for the claimant succeeding isthat frostbite is merely an extreme form of injury from beingcold.

Remoteness of damage – the kind of damage must be reasonably foreseeable

Similarly, in Hughes V Lord Advocate (1963) theclaimant succeeded. Two boys took a paraffinwarning lamp down an unattended open manhole.On emerging from the hole, one of the boysknocked the lamp back into the hole, causing anexplosion, and suffered sever burns. Since the riskof injury by burning was foreseeable, thisextremely unlikely form of burning meant thatthere was factual and legal causation and theboys’ claim succeeded. This is another example ofcase law helping develop safety standards, as thismethod of warning is no longer used.

Remoteness of damage – the kind of damage must be reasonably foreseeable

However, in Doughty V Turner Asbestos (1964),the claimant was burned when an asbestos lit wasknocked into a vat of molten metal; the lid slid intothe liquid with no noticeable effect for a fewminutes. However, a chemical reaction then causeda violent eruption that scientific knowledge at thetime did not expect to happen. It could beforeseen that knocking things into the liquid mightcause a splash of molten metal, but this was anevent of a wholly different type from that whichcould have been foreseen. Therefore, the claim failedas the result was not reasonably foreseeable.

Remoteness of damage – the kind of damage must be reasonably foreseeable

This is similar to the concept in criminal law. Aperson’s liability in negligence is not extinguished orlessened because the claimant had a pre-existingcondition that made the injuries worse. A case thatillustrates the principle is Smith V Leech Brain (1962).In that case, the claimant suffered a very minor splashby molten metal that caused a burn on his face. Theburn triggered his pre-existing cancerous condition,and the claimant developed cancer. Some minor injuryat lease was foreseeable. His extreme reaction was aresult of his condition and as the principle is that youtake a person as you find them, the claim succeeded.

Remoteness of damage – take your victim as you find him.

In Gabriel V Kirklees Metropolitan Council(2004), the claimant was six years old. He waswalking past a building site owned by the localcouncil in Huddersfield, when he was hit in theeye by mud thrown by children playing on thesite. The site was not fenced at that time. Itwas decided that the correct way to decidewhether the council were liable in negligenceinvolved the following tests:

Remoteness of damage – a recent example of how a judge should apply the principle of reasonably Foreseeability.

Whether it was reasonably foreseeable that children would go onto the construction site.

Whether, whilst on the construction site, it was reasonably foreseeable that the children would play there.

Whether it was reasonably foreseeable that, in playing on the site, they would throw whatever came to hand.

Whether in playing with material on site it was reasonably foreseeable that they might cause injury to those passing by on the pavement,

Damage caused by the defendant's breach has

two principles that equate to factual and legal

causation. Factual causation is the ‘but for’test. Legal causation in the idea of

remotenessof damage, which has a test of reasonablyForeseeability.

Conclusion