CAUSATION

Elements of Negligence

 1. DOC – Prox, foresee, jf&r

 2. Breach – objective standards
 3. Causation
 4. Damage
What is causation?
 Pf must prove that it is the Df’s breach that
has caused the damage

• Causal link between the breach and damage

• That causal link must be present,
unbroken and not too remote.
• In other words, it must be proven that
the defendant’s negligent act or omission
was the effective cause of the injury or
damage suffered by the plaintiff!
Causation in fact
 Qn - Whether or not the
defendant’s conduct has in fact
caused the damage suffered by
the plaintiff?
Causation in law (remoteness)
 Qn – Is the defendant liable for all
the loss that flows after his breach?

 Law only allows remedy for damage

that is not too remote
Eg: Pf injured by Df
 C in Fact  C in Law
 1.loss of income
 Pf to prove that the injury  2.medical
would not have happened but  3.Nursing
for the negligence o the Df.  4.wheel chair
 5.Pain and
 Looking at facts  suffering
 6. loss of the limb
 Pf was standing – side  7. divorce
 Df moved diagonally  8. children’s
 Speeding performance in
 Slept off at wheel – hit Pf school bad
 Hospital  9. closure of his
 Leg amputated business
10. Suicide
 IS DF LIABLE ???? TO WHAT EXTENT IS THE DF
LIABILITY
 CAUSATION IN FACT (factual
causation)
 From the facts, it is proved that it
was the Df’s breach that caused the
damage / injury to the Pf
 CAUSATION IN LAW
 The law allows recovery for the type
of damage that is not too remote
CAUSATION IN FACT
Vermont v.
Prye River Dock

 Df negligently repaired the Pf’s boat

but the repairs involved the part
above the waterline of the boat –
indeed it hastened the sinking BUT
was NOT THE CAUSE OF THE
SINKING
 Held : that it must be shown by the Pf
that the Df’s breach was the prime
cause of the damage.
Dominic Puthucheary v. Dr Goon
Siew Fong & Anor
 Pf claimed that the death of the deceased was caused by
the doctor’s negligence.
 Deceased was found in a drain and brought to GHKL at
6.45am and pronounced dead by 10 am
 Qn before the court was;
1. whether the Dr was negligent
2. even if they were, was it the cause of the death
 Dr had seen, examined, put drip, sent for X-ray
 But Pf alleged Dr failed to diagnose it as a spinal injury
and that caused cardiac arrest – death
 COA that there was no evidence of spinal injury and Pf
(theory) could not prove that it was the doctor who
caused the death.
 In deciding whether there is a
factual causation, the courts usually
use the “but for” test.
THE “BUT FOR” TEST
 Ld Denning in Cork v Kirby;
 “Causation is a question of fact. If
the damage would not have
happened BUT FOR a particular
fault, then that fault is the cause of
the damage, if it would have
happened just the same, fault or no
fault, the fault is not the cause of
the damage.
Barnett v Chelsea

 Patient went to
hospital – stomach pain
 Sent home without medication
 Died of arsenic poisoning
 Although hosp admitted negligence
 They were not liable
 Why?
What was the cause of the death
 Was it the fault of the Df that
caused it?
 Or was it the arsenic poisoning
itself?
 From the facts, it was the arsenic
poisoning that killed him and even if
the Dr had treated him he would
still have died of arsenic poisoning
APPLY “BUT FOR” TEST
 If the damage would not have happened
BUT FOR a particular fault, then that fault
is the cause of the damage, if it would
have happened just the same, fault or no
fault, the fault is not the cause of the
damage.
 DOC, BOD, Causation
 Dr not liable – not the cause of death
Difficulties in applying the “But For” test
 When there is one cause of the injury, the
‘But For’ test is very suitable
 However, when there is more than 1
reason for the injury to the Pf or more
than 1 defendant, it becomes difficult to
apply – Eg:
 1. Several successive causes
 2. Simultaneous / concurrent events
 3. Multiple causes
1. Several successive causes

 Performance Cars Ltd V Abraham

 Df’s car collided into Pf’s car-required re
spraying
 But before this, the same part of the car
was damaged in another accident and not
repaired yet
 The courts have to determine which of
these causes had caused damage to the Pf
(difficult to use the but for test)
 Df not liable for the cost of respraying as he
had hit an already damaged car
 Jobling v Associated Dairies
 1973 Pf sustained back injuries at work
due to the Df’s breach of Stat Duty
(slipped and injured)
 had to take another job – lower pay
 1976 – discovered that the Pf suffering
from myelopathy, and was totally
incapable of working
 However, it was not related to the
injury by the Df – natural causes
 Pf sues the Df for loss earnings
 Held:
 Df not liable for the loss of earnings
suffered by Pf after 1976
 Scrutiny of all the possible causes
are needed to determine ‘causation’
 ‘But for’ test is not suitable
2. Simultaneous causes

Fitzgerald v Lane
 Pf – crossing road
 1st Df hit him and he impact threw him on the
bonet and back onto the road
 2nd Df struck him
 Severely injured
 Could not be determined which of the 2 cars had
caused him the severity of the injury
 The “but for” test cannot be
strictly followed here because of
the simultaneous events, where
each equally contributed to the
injury.

 Held: Both D1 & D2 were jointly

liable for P’s injuries, but after
reducing the damages to half due
to P’s own fault.
 If ‘but for’ test is used, it would cause
complications… eg:
 The damage would not have happened
‘but for’ D1’s fault
 If answer Yes, D1 liable not D2
 The damage would not have happened
‘but for’ D2’s fault - ?
 If answer yes, D2 liable, not D1
 Effect – negation of liability
3. Multiple causes
 Sometimes the Pf’s injury can be caused
by a number of factors.
 Example: premature baby’s death could
be caused by :
 i) ill formed organs
 ii) Dr’s attempt to rescue might have
been faulty
 iii) Lack of oxygen
 iv) others
 ‘But for’ test is not suitable to be
applied
 The cause of the damage has to be
determined strictly on the
independent facts of the case,
evaluating all the possible causes.
Guan Soon Tin Mining v Wong
 There was no evidence whatsoever that the
death of any of the fish was due to pollution of
water by the appellants' mining operations
(discharge of tailings)
 It might have been by poisoned by poachers,
an epidemic or the water might have been
polluted by numerous and diverse means"
 Fed Ct : Pf Failed to prove factual causation
 Mere possibility was not enough as “there was no
positive proof that the discharge from D’s mine
had anything to do with the death of the fish.
 ‘But for’ test not suitable.
Mc Ghee v National Coal Board
(1972)
 Pf required to work in clouds of brick dust
– dermatitis
 Pf stated the Df should have provided
facility for washing
 But medical evidence could not establish
conclusively the cause of dermatitis and if
it would not had developed if he had
washed himself immediately
 Held :
 It is sufficient to prove that the Df’s
breach had ‘materially increased’
the risk of injury (wide approach)
 Df liable
 However, this decision distinguished
in the case of Wilsher
Wilsher v Essex AHA
(1986)

 Baby born premature

Suffering from 02 difficiency
 Dr gave excessive 02 - which the Pf
alleged made the baby almost blind
 It was difficult to say that the
doctor was the cause for the
blindness – multiple causes
 Blindness could have been due to 5
other reasons – even pre-matureness
being one of them
 Not enough to prove that the Df had
materially increased the risk of injury
 BOP remained on the Pf to prove that
the Dr’s negligence was the material
cause of the injury.
 Pf failed to discharge the burden.
 Wilsher tried to restrict or narrow
the path opened by McGhee, which
made the test for determining
causation easier for the Plaintiff as
he need not prove that the Df did in
fact cause the damage.
Omission
 Bolitho v City & Hackney HA [1997]
 P (2yrs-old) suffered from croup (cough & difficult breathing)
had two cyanotic episodes (blueness). D was called failed to
attend.

 P then suffered an episode of respiratory failure and cardiac

arrest half an hour after the second episode. P was
resuscitated (revived) but had suffered severe brain damage
and subsequently died.
 The Df had breached her duty but was the damage due to the
breach.

 Childs mother said, If intubated before the third episode the

cardiac arrest would not have occurred.

 D said that even if she had attended she would have decided
not to intubate. A reasonable body of medical opinion agreed.
HELD:
 The failure to attend to the P was a breach of duty of
care. However, in light of the medical evidence, a
decision not to intubate P would not have been
negligent.

 Given the latter finding, it was not possible to

establish that the breach of duty (i.e. failure to attend
P) was the cause to the cardiac arrest. This would
have occurred in any case had P attended and then
decided not to intubate.

 P’s claim failed on causation

CAUSATION IN LAW
CAUSATION IN LAW –
Remoteness of damage

 As a matter of LAW, although the Df

is liable, he might not be liable for
ALL THE LOSS THAT FLOWS AFTER
THE BREACH.
 Qn – To what extent will the
Defendant be liable ?
 The Df will not be liable for
damages that are too remote.
Test of Remoteness
 “RESONABLE FORESIGHT TEST” (RFT)
formulated in the The Wagon Mound
 -The Df is only liable for the loss or
damage that is reasonably
foreseeable.

 Note : the old test is the ‘Direct

Consequence Test’ (Re Polemis)
The Wagon Mound
 ‘Wagon Mound’ –
 Df’s ship
 Df’s servants had negligently spilled oil
while bunkering in the Sydney harbour.
 Due to the wind and tide, The oil
floated towards the Pf’s wharf where
welding was taking place . Later the oil
ignited with the sparks - fire
 Pf’s Wharf and ships - damaged
Df –
liable or not liable?
Privy Council

 Df – not liable
 Because they could not have
reasonably foreseen a fire.
 Pollution /soiling was foreseeable
 In the RFT the Kind or Type of Harm
must be reasonably foreseeable
 In this case, the kind of harm that was
reasonably foreseeable was soiling
and not a fire.
 RFT – also applied in GOM v Jumat bin
Mahmud (Federal Court)

 The Federal Court reversed the trial court’s

decision on the D’s liability and held that the
injury sustained by the student (R) was not the
kind/type of class reasonably foreseeable as a
result of the teacher’s act/omission.

 Therefore the damage suffered was considered too

remote!
Qualifications of the Reasonable
Foresight Test (RFT)

TWO important rules:

1. Pf must prove that the Defendant must reasonably
foresee the kind / type of injury that occurred.
 However he does not need to have foreseen the
precise manner of occurrence or the precise
extent of the harm

2. This test does not affect the maxim/rule that ‘a

tortfeasor must take his victim as he finds him.’
 Thus he cannot argue that he should not be
liable in cases involving P with unusually thin
skull or weak heart (Egg-shell skull rule)
Qualifications of the RFT
 1. Manner of occurrence
As long as the KIND of
damage is foreseeable,
how it happened need
not be foreseeable.
Hughes v Lode Advocate
 Some employees left a man hole
open and went for tea break.
They had erected a tent and put
some parafin lamps around it.
 10 year old boy (Pf) – took one of
the lamps with him and climbed
down the man hole
 Lamp fell – explosion occurred – Pf
badly burned
 Pf sued
 Df said explosion too remote.
 HOL – as long as injury by burning
was foreseeable, it did not matter in
which manner it came about.
 Court: “the resulting damage,
though severe, was not greater
than or different in kind from
that which might have been
produced had the lamp spilled
and produced a more normal
conflagration in the hole.”
And Chai Ha v Sri Jaya Transport
 Collision involving car and bus.
 Deceased died – of extensive burns
when the car caught fire after the
accident
 Facts- the Deceased was carrying
11 tins of petrol in his car !!!
 Is the death of the deceased too
remote?
 RFT –
 Death of the deceased not too
remote
 Df liable
ii. Extent of harm

 Once the KIND OF

DAMAGE is reasonably
foreseeable, the extent of
the injury need not be
foreseeable
Vacwell Engineering Co Ltd v
BDH Chemicals

 Df sold a chemical to Pf
 Df did not tell Pf that if it came into
contact with water, it would explode
 Pf used the chemical and placed it
in the sink to be washed
 Huge explosion
 Killed the Pf and destroyed the Lab
 Df said too remote, because the
huge explosion was not foreseeable
although a small explosion was
foreseeable
 Qn – Do you think that the Df liable
for all the consequences of his
breach?
Held
 Df Liable even though the damage
was far more serious than what was
initially foreseeable.
 Why ?
 As long as the Df can reasonably
foresee the KIND of damage – he is
liable regardless of its extent or the
manner in which it came about
iii) “Egg Shell Skull” Rule
Egg shell skull rule / thin skull rule

 TheDf must take the Pf

as he finds him (relates to
extent of harm)
 The same injury may cause
different degrees of injury to
different persons due to a person’s
condition.
 However, the DF must take the Pf
as he finds him.
DULIEU V WHITE
 “If a man is negligently run over or
otherwise 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”
 - Kennedy J.
 Here D was liable for causing P
(bar worker) shock and
consequently a miscarriage
 (Egg-shell skull rule applies)
Smith v Leech Brain & Co. Ltd
 Pf’s husband working with molten
metal in Df factory
 Negligence of Df – molten metal
splashed out and burnt his lip.
 Pf had a tendency to contract
cancer
 The burn induced the cancer
 Pf’s husband died
 Df liable even though an ordinary
healthy man would not have
developed cancer.
 You have to take the Pf as you find
him
 Test - If he could reasonably
foresee the KIND of Injury - by
burning (he also be liable for the
extent of harm)
Sivakumaran v Yu Pan & Anor
 Pf’s Husb – seriously injured in a collission
with lorry
 9 months later – committed suicide
 Df stated – Suicide is too remote as it is
not foreseeable
 Pf argued it fell within the Egg Shell Skull
Rule
 Ct said that deceased had no psychological
disorder before the accident– rule not
applicable.
Malcolm v Broadhurst
 After accident, Pf’s personality
changed
 Couldn’t go to work for 7 months
 However, She did have a pre-existing
nervous disturbance B4 accident
 Ct held: Df Liable : There is no
difference between egg shell skull
and egg shell personality
 Those are the Qualifications of the
RFT in remoteness of damage
 Pf – Prove – Df could have
reasonably foreseen the Kind of
Damage, he will be liable, although
the manner in which it occurred and
extent (incl egg shell skull) of the
harm is not foreseeable.
Damage too remote in the following
cases:

 1. New intervening Cause

(Novus causa interveniens)

 2. New intervening Act

(Novus actus interveniens)
Novus Causa Interveniens - new
intervening cause

 This is where there are other

independent causes or external
factors that cause the Pf to suffer
more injury.
 Df will not be liable for this extra
injury
 Eg – Impecuniosity of the Pf (having
little or no money)
Liesbosch Dredger v Edisson SS
Liesbosch Dredger v Edisson SS
 Edisson by negligent navigation sank the
Liesbosch.
 Liesbosch had a contract with a 3rd party
to complete work within a certain time
 They were unable to buy a new dredger –
too poor
 So they hired a dredger at a high rate –
 Then, the Harbour Board bought another
dredger and sold it back to them at
installment rate.
In a claim for damages;
 Df admitted liability
 But a claim for the hiring of the
dredger which was due to the
impecuniosity of the Pf – the Df
contended, was too remote
HOL held : Pf can recover
 1. market price of a new dredger
 2. cost of transporting the dredger
 3. compensation for loss of carrying
out the contract
 But not for – cost of hiring another
dredger - the intervening cause (the
impecuniosity)was an extraneous
matter which made the claim too
remote
However,
 Trend today is that the courts are
moving away from this
 Egg shell skull rule
 You must take the Pf as you find
him

 Dodd Properties Ltd v Canterbury

City Council
Novus Actus Interveniens ( new
intervening act)

 An event that breaks the chain of

causation or –
 Breaks the causal connection
between the breach and subsequent
happenings
 After the intervening act – the Df is
not liable for the subsequent
happenings
Breaking the chain of causation

Natural event
Intervening Act
Third party

Df’s Breach Pf himself

 The novus actus interveniens may
be caused by;
 1. a natural event
 2. an act of a third party
 3. the act of the Pf himself
1. Intervening Natural
Event

 Carslogie Steamship Co Ltd v Royal

Norwegian Govt.
 PF ship damaged by the Df ship in a
collision. They did temporary repair
and proceeded to the US for
permanent repair.
 On the way, there was violent storm
and Pf’s ship further damaged
 Pf seeks all damage.
 Held:
 Df not liable for the extensive
damage caused by the storm which
was an unforeseeable novus actus
intervenience unconnected with
their initial act of negligence.
 Df only liable for their damage
caused
2. Intervening Act of a third party

 The Orepesa
 The Orepesa (O) and the
Manchester Regiment (M) collided

O Capt of MR M
 Capt of MR went in a life boat with 9 crew
members to discuss rescue operations. All the 9
died –rough sea
 Damages claimed against the Orepesa for the
death
 Qn – Was Orepesa(Df) liable for the damage to
MR and the death of the 9 crew members?
 Df claimed that the Capt’s act was a NAI
 Court said it was not a NAI – Capt was acting
reasonably- there was no new act that disturbed
the sequence of events/ broke the chain of
causation.
 It was stated that in order to break
the chain of causation, it must be
proven that the second incident was
an independent and separate act
that was not a normal consequence
of the initial breach, something that
was unreasonable.
Novus Actus Interveniens (NAI)
Resulting from third party’s action
Steven Phoa Cheng Loon v Highland
Properties [2000]

 P sued D (the owner of adjacent land)

for causing (with other defendants) the
landslide and also for the vandalism and
theft occurred on the properties.

 Was D liable for the theft and vandalism,

considering that it may be too remote as
a damage?

 The test: whether the vandals and

thieves was a reasonably foreseeable
consequence of one of more of the
breaches of duty committed by the
council (defendant).
 Considering the local condition, I find that when disaster strikes in
our country, such as a road accident or when a fire gutters a
building, there will be certain uncivil and contemptuous elements
who take advantage of such commotion to rob, steal and plunder.

 The Highland Tower tragedy was no exception.

 Lack of security strength
 Limited safeguard to daylight hours
 Plaintiff cannot afford their own security measures

 All these, I find, were reasonable consequence of the landslide that

brought down Block 1 caused by the acts of the fifth defendant as
well as all other defendants who contributed to this.

 Reversed in: Arab-Malaysian Finance Bhd v Steven Phoa Cheng

Loon [2003] 1 MLJ 567
 Compare: Stansbie v Troman [1948] 2 KB 48
Stansbie v Troman
 Facts ???

 Was the act of the thief

a NAI?
 No.
 It was a foreseeable result of the
Df’s omission
 Knightley v Johns

 D1 caused accident on the exit of a one-way tunnel – D2

(Police inspector) order P to go back to the tunnel to close the
traffic – P went in against the flow of traffic – P collided with
another car and was injured – P sued D1 and D2 for
negligence.
D2 - Inspector

Pf

D1 caused
D3
Accident at exit

traffic flow
 Pf sues D1, D2 and D3.
 Held : the instructions of D2 was a
NAI by a third party that broke the
chain of causation between D1 and
Pf.
 D2 was held negligent for not
closing the tunnel and asking the Pf
to go against the traffic
iii. Intervening Act by the Pf himself

McKew v Holland
 Pf was injured by Df
 Caused him to
occasionally lose control of his left leg
 Despite that he went to inspect some
flats
 He went down a steep staircase with no handrail
without help in spite of being offered help by his
Brother in law and wife
 Fell and broke his ankle
 Held : NAI by the Pf – broke the chain of causation
 Df not liable for ankle injury
Wieland v Cyril Lord
Carpets

 Df caused Pf a neck injury

 She had to wear a
surgical collar.
 Affected her eyesight – as she wore bi-
focal spectacles. Due to a misjudgment
she fell from a staircase and injured her
ankle
 Is the Df to be liable for the ankle injury
as well or is it a NAI by the Pf?
 Held : Not a NAI, as her actions
were reasonable and necessary in
the circumstances.
 No break in the chain of causation
 Df liable for the 2nd injury as well.