Law of Torts:

Negligence

Part III – Causation

and Damages

Bhumika Nanda
Causation and Remoteness

• Claimant must show a causal link between the loss he has suffered and the defendant’s
wrong.
• Standard of proof – balance of probabilities [more likely than not that the negligence caused
the injury]
• It must be proved that the defendant’s breach of duty actually caused the damages suffered
by the claimant, and the damage caused was not too remote from the breach

• Causation is established by proving that the defendant’s breach of duty, as a matter of fact, a
cause of the damages.
• Claimant must also show that the loss is not too remote i.e. that it is within the range of that
for which it is just to make the defendant responsible
• Causation in fact – whether the defendant’s act or conduct should be excluded from the events which contributed to
the occurrence of the claimant’s loss – if it is so excluded – then there is no case of liability against the defendant.
General rule – there should at least be a causal connection between D’s act and C’s loss.
If what D did is found to have made no contribution to the situation in which C now finds himself the connection
is absent.

• Causation in Law – if we conclude that D’s act or omission was a cause of C’s loss, we move on to consider whether
it was a sufficiently legally effective cause among the complex of other causes to justify imposing liability on the
defendant.
• D leaves a loaded shotgun in an unlocked cupboard, X steals it and used it to murder C (D knows nothing about
X’s murderous intention). D’s breach of duty in failing to lock up the gun was a cause of C’s death in the sense
used above because had the gun not been available X would not have used it to kill C.
• Court – if X is an adult of sound mind, then X, not D, is responsible for C’s death and it may do so by speaking
in terms of X’s act being ‘the cause’ or X’s act having broken the chain of causation between D’s negligence and
C’s death.
• If X is a child – it would be readily agree that C’s death was well within the risk created by D’s negligence in
leaving the cupboard unlocked, and that D ought to be responsible, even though what D did was just as much an
historical or mechanical cause in one case as in the other
• Issue is one of fairness and of legal policy – about setting limits to the responsibility which D bears for his
negligence
• Scope of liability/remoteness/proximate cause
• ‘But for’ test – whether the damage would have occurred but for the breach of duty.
• If the result would not have happened but for a certain event – then that event is a cause – contrariwise
– if it would have happened anyway – the event is not a cause.

• Barnett v. Chelsea and Kensington Hospital Management Committee case – the claimant’s
husband, a night watchman, arrived early in the morning at the defendant’s hospital; and
complained of vomiting after drinking tea. He was told to go home and consult his own
doctor later – which amounted to a breach of the hospital’s duty of care. Later that day the
claimant’s husband died of arsenic poisoning and the coroner’s verdict was of murder by
persons unknown. The hospital’s breach of duty was held not be a cause of death because,
even if the deceased had been examined and treated with proper care, the probability was that
the deceased would have died anyway.
• Multiple Causation
• Where there is more than one possible cause of injury, causation can be proved if the claimant can show
that the defendant’s negligence materially increased the risk of injury occurring. Did the accident – on the
balance of probabilities – cause or materially contribute to or materially increased the risk of the
claimant’s injury

• Claimant must prove – on a balance of probabilities – that the defendant’s negligence was a material
cause of that injury – not merely to increase the risk of injury/damages.

• Loss of a chance cases

• Whether the delay could have caused the patient not to have been cured or whether that would have been
the situation even if the doctor had not acted negligently.

• Intervening Event - Novus actus interveniens

• After the breach of duty has occurred – something else happens which makes the damage worse – where
such event is said to break the chain of causation – the defendant will only be liable for such damages as
occurred up to the intervening events.

• Intervening act by a third party which breaks the chain of causation only when its unforeseeable
• Intervening act by the claimant and not when it could reasonably be foreseen and fairly
guarded against or prevented.
• Remoteness of Damages [causation in law] [scope of liability]

• No defendant is responsible ad infinitum for all the consequences of his wrongful conduct,
however remote in time and however indirect the process of causation – for otherwise human
activity would be unreasonably hampered
• The claimant must prove that the damage was not too remote from the defendant’s breach.

• Dominant question in the determination of the scope of the defendant’s liability is

whether the harm in respect of which he is sued was a foreseeable consequence of his
negligent act.

• Reasonable foreseeable test – defendant will be liable for damage which was reasonably
foreseeable at the time – when the defendant breached their duty
• Damage must a type that a reasonable person would have foreseen and it does not matter
that the extent or amount of damage was not foreseeable.

• Reasonable Foreseeability – If there was a real and not a far fetched risk of damage and it
could be eliminated without any difficulty, disadvantage or expense, the defendant would
be liable.

• Egg Skull Rule – you must take your victim as you find him or her.

• Only type of damages must be foreseeable not extent – consequences were immaterial to
determine liability

• Hughes v. Lord Advocate

Note: Read the relevant (highlighted) paragraphs of the judgment

Source: http://www.nybarpicturebook.com/law-101/
Res Ipsa loquitur

• Things speak for itself

• Inference of negligence
• Creates a presumption of negligence on
the part of the person who controls the
instrument causing the injury.
• Burden of proof shifts from the plaintiff
to the defendant
• Must have three elements
• Type of injury did not occur except
for negligence
• Activity was under complete control
of defendant - ‘exclusive control’
• Plaintiff did not contribute to his own
injury
Source: http://www.nybarpicturebook.com/law-101/
• Municipal Corporation of Delhi v. Subhagwanti & Ors.

Note: Read the relevant (highlighted) paragraphs of the judgment

Sources:

Books:
1. Ratanlal & Dhirajlal, The Law of Torts, Lexis Nexis, 2016 (27th Edition.)
2. W.V.H. Rogers, Winfield and Jolowicz on Tort, Sweet & Maxwell, 2010 (18th Edition.)
3. Catherine Elliott and Frances Quinn, Tort Law, (Pearson; 10 editions, 2015)

Websites:
1. www.manupatra.com
2. www. westlaw.com