Negligence – Causation and Remoteness of Damage

Law of Torts I

Lecturer: Christopher Gray

E-mail: cg15586@my.bristol.ac.uk

Question is whether the defendant’s breach is the legal cause of the claimants loss.

Two issues:

- Whether the defendant’s actions are the factual cause of the claimants loss.

- Is the loss ‘too remote’ from the defendants breach, such that the law does not
recognise the loss as a consequence of the defendant’s loss.

Factual Causation

The relationship between cause and effect is very complex and philosophical. Every ‘effect’
has many ‘causes’, which in turn are ‘effects’ produced by other ‘causes’.

The law must therefore adopt a common-sense approach

Lord Wright in Yorkshire Dale Steamship Co v Minister of War Transport: ‘causation is to be
understood as the man in the street, and not as either the scientist or the metaphysician, would
understand it’

The ‘but for’ test

Can it be said that ‘but for’ the defendants conduct, the claimants loss would not have
occurred?
OR would the claimants loss have occurred in any event, even without the defendants
conduct?

Classic case: Barnett v Chelsea and Kensington Hospital Management Committee – the
actions of the defendant did not cause the claimants death, because this would have happened
anyway

In applying the test, the courts will examine hypothetical causes that might have produced the
same loss.
McWilliams v Sir William Arrol Ltd

But the ‘defendant cannot escape liability by saying that the damage would have occurred in
any event because he would have committed some other breach of duty thereafter’ – Bolitho
v City and Hackney Health Authority
Issues with the ‘but for’ test:
- Cases with multiple causes have problems, and two defendants can employ the same
argument and neither are liable.

Concurrent causes

Causes which occur either at the same time, or which occur at different times but their effects
operate at the same time.

Divided into two groups:

1. Indeterminate causes: there is more than one defendant, and only one cause, but it is
unclear which defendants act produced the cause.
2. Cumulative causes: there are two causes, each produced by a different defendant, but
the causes have combined to produce the damage.

Indeterminate cause
Cook v Lewis and Summers v Tice – both cases involved a claimant shot by one bullet fired
by one of two defendants, unable to prove who did it, they held them jointly liable.

Sindell v Abbott Laboratories – made each defendant liable according to their market share in
a defective product, to approximate each defendant’s likely responsibility.

These are issues are when the cause is spread between different human sources, what about
where there is competition with nature?

Cumulative cause
The Koursk – defendants can be jointly liable for the whole damage. In this case two ships
were simultaneously navigating negligently so were both jointly liable.

What about where the act of each defendant wouldn’t have been enough to cause the damage
on its own? i.e. Fitzgerald v Lane

Consecutive causes

If one act is succeeded by a different act, can the effect of the first act be ‘overtaken’ by the
second.

But the courts have also argued that the first act ‘continues’, and so makes the second act
irrelevant – Performance Cars v Abraham

Baker v Willoughby – second incident did not affect the loss which the claimant suffered, so
the defendant was liable fully despite a second act

C.f. Jobling v Associated Dairies Ltd – a disease overtaking a tort, the defendant only liable
up until the onset of the disease.

No overarching principle from these two, Jobling did not overrule Baker. Argued that in
Jobling there was a disease as the intervening act, but in Baker it was a tort, but this is hard to
justify. Makes them hard to reconcile.
BUT Jobling approach is preferred. i.e. Gray v Thames Trains – sentencing for a crime
stopped the continuing loss of earnings.

Proving causation

Three approaches:

- The ‘all or nothing’ approach – claimant must prove causation on a balance of

probabilities
Hotson v East Berkshire Area Health Authority
- The ‘material increase in risk’ approach – a claimant in some circumstances can
merely prove that there was a ‘material increase in risk’ as a result of the defendant’s
breach.
Lord Wilberforce: ‘where a person has, by a breach of a duty of care, created a risk
and injury occurs within the area of that risk, the loss should be borne by him unless
he shows it had some other cause’ - McGhee v National Coal Board – as explained in
Fairchild v Glenhaven Financial Services.

Which of these two approaches should be taken? In Gregg v Scott there was disagreement
about this – eventually ‘all or nothing’ approach applied and claim failed due to 42% chance.
Lord Nicholls: this is ‘irrational and indefensible’, ignorant of medical reality
Lady Hale: can’t get rid of the ‘nothing’ without changing the ‘all’ – would be destructive to
the process

‘Material increase in risk’ approach can only be taken when the whole damage results from a
single particular event, but it is unclear from which event out of a bunch of identical ones that
the damage has been caused. If different defendants made quantifiable contributions then
their liability will be apportioned accordingly – Holtby v Brigham & Cowan (Hull) Ltd

Novus Actus Interveniens

An act which breaks the chain of causation

Intervening act by a third party

An instinctive or natural reaction does not break the chain of causation – Scott v Shepherd
Even where there is some time to think, the chain of causation will not always be broken –
The Oropesa

A negligent intervention – when will the chain of causation be broken by a negligence

committed by a third party?
Roberts v Bettany – it will often not do so
Wright v Lodge – not negligence, but recklessness will break the chain
Overall – no certain rule.
Intentional acts of wrongdoing by a third party – will break the chain of causation where the
act is foreseeable – Attorney General of the British Virgin Islands v Hartwell; Home Office v
Dorset Yacht

Intervening act by the claimant

The claimant can break the chain of causation, and become the cause of their own loss.

The claimant’s act will only break the chain of causation where it is unreasonable – compare
McKew v Holland and Hannens and Cubitts (Scotland) Ltd with the case in Wieland v Cyril
Lord Carpets Ltd.

Can suicide break the chain of causation? Corr v IBC Vehicles – no, where the defendant’s
negligence creates a risk of psychiatric illness which manifests itself in that way, it does not
break the chain of causation.

Remoteness of Damage

The Wagon Mound (No 1)

In this case, it was reasonably foreseeable that the defendants negligence might cause some
damage to the claimants, but the type of damage which was in fact caused was not reasonably
foreseeable. As such, the damage was held to be too remote.

Example of this in action: Hughes v Lord Advocate – extensive use of ‘damage by burning’

BUT personal injury remains an indivisible form of damage. If the courts considered property
damage as one ‘type’, then this may open up defendants to disproportionate liability, however
the compensation of personal injury is not likely to be as big, and the protection of the
claimants interest is prioritised.

C.f. Tremain v Pike – the disease of the type contracted was not considered to be foreseeable,
and ‘entirely different in kind’ from that which might be inspected.

The Wagon Mound (No 1) has also been interpreted in two other ways:

Foreseeability of the way the damage is caused

In Doughty v Turner Manufacturing Ltd – the cause of the damage was not foreseeable,
although the general activity was a foreseeable cause of damage.

Foreseeability of the extent of the damage caused

The extent of the damage caused is not a way to escape liability, only where it is different in
kind – Hughes v Lord Advocate

Confirmed in Parsons v Uttley Ingham & Co Ltd

Eggshell Skull rule

‘the defendant must take the victim as he finds him’ – the tort version of this maxim

Kennedy J in Dulieu v White and Sons

‘If a man is negligently run over or otherwise negligently injured in his body, it is no answer
to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all,
if he had not had an unusually thin skull or an unusually weak heart’

Does this run into conflict with the rule in The Wagon Mound? May appear so i.e. damage
must be of the same type. But this was interpreted broadly in Smith v Leech Brain & Co Ltd