CAUSATION IN LAW

NEGLIGENCE
 ELEMENTS OF NEGLIGENCE

DUTY OF CARE BREACH OF DUTY OF CARE D A MA G E

Plaintiff must prove that there exists a
duty of care on the part of the
Defendant
• The duty of care was not duly
performed or breached
• ie :by omission or commission of the
defendant
Damage occurred & suffered by
plaintiff due to the defendant's breach
of Duty of care
 CA U S AT I O N I N FA CT
Whether or not the defendant 's conduct has caused the damage suffered by the
Plaintiff

Whether or not the damage/injury would not have happened but for ("If not

CAUSATION caused by") the Defendant's breach of duty?

CA U S AT I O N I N L AW
Whether or not it is reasonably foreseeable that the defendant's conduct will
result in the damage / injury to the plaintiff?

D is not liable for damage which is too remote

 OLD TEST
Direct Consequence Test
Pigney v Pointer's
ie Re Polemis Application of Re Transport Service Ltd
Polemis Rule

NEW TEST
Reasonable Foresight Test Manner of Occurrence
• The Wagon Mound (No 1) • Hughs v Lord Advocate
• Gov of Malaysia v Jumaat b Mahmud

Reasonable Foreseeability of Injury Extent of Harm

• Vacwell Engineering Co Ltd v V
BDH Chemicals Ltd

Qualifications
SUMMARY
Eggshell Skull Rule

Maxim : A tortfeasor must take his victim as • Dulieu v White & Sons

OF he finds him • Smith v Leech Brain & CO Ltd

• Chin Keow v Gov of the Federal of Malaya
 OLD TEST
Direct Consequence Test
Pigney v Pointer's
ie Re Polemis Application of Re Transport Service Ltd
Polemis Rule

WHAT AMOUNTS TO REMOTENESS?

D is liable to P for all direct consequences suffered from any damage caused that he
would have foreseen as likely to result from his act

Liability arises no matter how trivial the negligence is and how

unreasonable or grave the damage is

REMOTENES
S Re Polemis
 OLD TEST
Direct Consequence Test
ie Re Polemis

TEST OF REMOTENESS : RE POLEMIS [1921] CA

• D chartered's ship loaded petrol in drums. when the ship encountered

bad weather & the petrol leaked.

• While docked in Casablanca, D's worker carelessly allowed a plank to fall

into the hold (lower deck) of the ship

Facts

REMOTENES • The plank struck something & caused a spark which in turn ignited patrol

S vapour in the hold

• The vapour caused a fire destroying the whole ship
 OLD TEST
Direct Consequence Test
ie Re Polemis

TEST OF REMOTENESS : RE POLEMIS [1921] CA

The fire was not a reasonably foreseeable consequence of allowing the plank
to fall. However, it was reasonably foreseeable that the falling plank would
cause some damage to the vessel.

Because of this, the court established D's negligence .Whether the particular
damage caused by the fire was recoverable depended solely on it being a
direct consequence of the negligent act
Held

REMOTENES Although the fire damage could have not been reasonably foreseen as a

S consequence of dropping the plank, D was however liable for the loss of the
ship by fire
 OLD TEST
Direct Consequence Test
ie Re Polemis Application of Re
Polemis Rule

Pigney v Pointer's Transport Service Ltd

• P suffered damages from an accident and damages was paid

• Due to the injuries, P developed depression and committed suicide 18 months
later

Held : The depression that led to P's suicide was tracable for his injuries.
Court followed Re: Polemis & held liable for P's death

REMOTENES
S
 NEW TEST

Reasonable Foresight Test

• The Wagon Mound (No 1)
• Gov of Malaysia v Jumaat b Mahmud

Qualifications

Reasonable Foreseeability of Maxim : A tortfeasor must take his

Injury victim as he finds him

Manner of Occurrence Eggshell Skull Rule

REMOTENES • Hughs v Lord Advocate

• Dulieu v White & Sons
• Smith v Leech Brain & CO Ltd
S Extent of Harm
• Vacwell Engineering Co Ltd v V
• Chin Keow v Gov of the Federal of
Malaya
BDH Chemicals Ltd
 NEW TEST

The Wagon Mound (No 1) : Case Facts

D carelessly discharged oil from their ship, The Wagon Mound, into
Sydney Harbor

Wind & tide carried oil beneath P's wharf where welding operations are being
carried.After being advised that they could continuously weld,they resumed their work

60 hours later, some molten metal set waste floating in the oil on fire.

REMOTENES
S The flames quickly developed into a large fire which severely damaged
the wharf
 NEW TEST

The Wagon Mound (No 1) : Held

Damage to the wharf by the pollution of P's slipways was

foreseeable, however damage by fire was not foreseeable

D not liable for the wharf but for the fouling on P's wharf

In order to recover damages, P must prove that the kind of

REMOTENES damage suffered was foreseeable

S
 NEW TEST

The Implementation in Malaysia :

Gov of Malaysia v Jumaat b Mahmud [1977]

Federal Court reversed the trial court's decision on D's liability &
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/ commission

REMOTENES
S Therefore, the damage suffered was considered too remote
 NEW TEST

Reasonable Foresight Test

Reasonable Foreseeability of Injury Test does not affect maxim

• Maxim : a tortfeasor must take his

• D must reasonably foresee the kind
victim as he finds him
of injury occurred

• thus, he cannot argue that he should

• However,he does not need to have
not be liable in cases involving P
foreseen the precise manner of
with unusually thin skull or weak
occurrence or the precise extent of
heart (Egg-shell skull rule)
the harm

REMOTENES
S

Manner of Occurrence
• The Post Office employees left open a manhole
covered by a canvas shelter
• They placed warning paraffin lamps around the
hole
FORESEEABILITY OF
INJURY
Hughs v Lord Advocate
• P (an 8 yr old) took one of the
lamps, played with it & fell into the
hole
• A violent explosion & P sustained
injuries
• The fact the lamp exploded was
unpredictable
• 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.
D was held liable
 FORESEEABILITY OF
INJURY
Extent of Harm Vacwell Engineering Co. Ltd. V BDH Checimals Ltd.

• D supplied chemical to P but carelessly failed to • Held: D was liable because he could foresee the
warn that it may explode when it comes into kind of damage although the extent of the
• Cause violent explosion and
contact with water damage was not foreseeable!
extensive damage.

• P’s employee placed consignment of the

chemical in the sink
D was held liable
 FORESEEABILITY OF
INJURY
Eggshell Skull Rule

(“If P is negligently run over or otherwise negligently injured in his body, it is no answer for the claim 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”).

Here D was liable for causing P (bar worker) shocked and to give a premature birth.
Dulieu v White & Sons [1901] Egg-shell skull rule applies.

P burnt his lip during work, due to the employer’s negligence. Due to his skin tissue condition,
Smith v Leech Brain & Co Ltd such burn injury was found as a “promoting agent” for the cancer which killed him 3 yrs later. D
[1962] was liable to compensate for the death.

Chin Keow v Govt. of the Fed. of Doctor was liable for giving a patient (allergic to penicillin) an injection of procaine
Malaya [1964] penicillin from which the patient died within an hour.
 DECISIONS WHERE DAMAGE WAS TOO
REMOTE
McKew v Holland & Hannen & Cubitts
Plaintiff
(Scotland) Ltd [1969]
Resulting from Plaintiff’s own
action
Wieland v Cyril Lord Carpets Ltd. [1969]

third party
Novus Actus Interveniens (New intervening act)
Resulting from third party’s action
Knightley v Johns [1982]

natural event
Carslogie Steamship Co. Ltd. V Royal
Resulting from natural cause
Norwegian Government [1952]

Plaintiff’s impecuniosity
Liesbosch Dredger v SS Edison [1933]
 DECISIONS WHERE DAMAGE WAS TOO
Plaintiff
REMOTE

Resulting from Plaintiff’s own

action

McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969]

Novus Actus Interveniens (New intervening act)
P sometimes loses control of his left leg because of injury suffered due to D’s
negligence

• he then descended a steep flight of steps

• his leg gave away and P jumped and landed on his right leg and
broken it

Court refused the claim on the right leg’s injury –

WHY?
 DECISIONS WHERE DAMAGE WAS TOO
Plaintiff
REMOTE

Resulting from Plaintiff’s own

action

Wieland v Cyril Lord Carpets Ltd. [1969]

Novus Actus Interveniens (New intervening act)

D had injured P by negligence – That injury required P to wear a neck-

collar that caused her difficulty in adjusting her spectacles

Next day, she fell down steps – P claimed for all the injuries
sustained.

Court awarded damages for the second injury – WHY?

WHY?
 DECISIONS WHERE DAMAGE WAS TOO
third party
REMOTE

Resulting from third party’s

action

Knightley v Johns [1982]

Novus Actus Interveniens (New intervening act) 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.

Was D2’s act to order P a break of causation of D1’s negligence?

Held: D2 was liable. D1 was not (due to an intervening act of D2).

 DECISIONS WHERE DAMAGE WAS TOO
third party
REMOTE

Resulting from third party’s Steven Phoa Cheng Loon v Highland Properties
action [2000]

P sued D (the owner of adjacent land) for causing (with other defendants) the landslide and
Novus Actus Interveniens (New intervening act) 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).
 DECISIONS WHERE DAMAGE WAS TOO
third party
REMOTE

Resulting from third party’s Steven Phoa Cheng Loon v Highland Properties
action [2000]

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
Novus Actus Interveniens (New intervening act)
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.
 DECISIONS WHERE DAMAGE WAS TOO
REMOTE
NATURAL CAUSE

Resulting from natural cause

Carslogie Steamship Co. Ltd. V Royal Norwegian Government [1952]

Novus Actus Interveniens (New intervening act)

D’s negligence caused damage to P’s ship

while going for repairs, the ship suffered further damage

caused by a violent storm

is D liable for the further damage?

House of Lords held that D were not liable for the damage caused by the storm. The storm
was an unforeseeable intervening act, unconnected with the D’s negligence.
DECISIONS WHERE DAMAGE WAS TOO
REMOTE
PLAINTIFF’S IMPECUNIOSITY

Liesbosch Dredger v SS Edison [1933]

D (ship owner) negligently sank a dredger in Greece – Owners of the dredger were too
poor to buy a replacement and had to hire a substitute to carry out an existing contract; it
would have been cheaper to buy, rather than hire.

Held: C’s damages were limited to the cost of the purchase and to damages for loss of hire
between the sinking and the date when a replacement (new dredger) would have been put
into service. Claim for entire loss of hire charges for a substitute dredger was rejected.
DECISIONS WHERE DAMAGE WAS TOO
REMOTE
PLAINTIFF’S IMPECUNIOSITY

Liesbosch Dredger v SS Edison [1933]

Lord Wright: The law cannot take account of everything that follows a
wrongful act; it regards some subsequent matters as outside the scope
of its selection, because "it were infinite for the law to judge the cause
of causes, or consequence of consequences.”
 THE CURRENT POSITION IN RELATION TO IMPECUNIOSITY
• In Langden v O’Connor [2004]
• The House of Lords overruled Liesbosch.
The current law-A defendant takes the plaintiff as he finds him, impecuniosity included.
i.e. A plaintiff may recover, as part of his damages, the additional cost incurred, if it is reasonably
forseeable that the plaintiff as part of the duty to mitigate his loss, incur additional cost.
 REVISIO
N
• What is meant by the requirement of ‘causation’?
• What is meant by ‘causation in fact’ and ‘causation in law’?
• How do you apply ‘but for’ test?
• What are other factors that help court in determining causation in fact?
• There are two tests in determining the remoteness of damage, what are they?
• What is meant by ‘eggshell skull rule’?
• When Is the chain of causation broken by an intervening act?
CONTRIBUTORY NEGLIGENCE