LLAW1005 LAW OF TORT I SEMESTER 1 2023

9. NEGLIGENCE: CAUSATION IN LAW

AND REMOTENESS

Dr Shane Chalmers
7 November 2023
Elements of Negligence

 Recognised harm
− (1) Did P suffer harm of a recognised kind?

 Duty of care and scope of duty

− (2) Did D owe P a duty of care?
− (3) Was the harm suffered by P within the scope of the duty owed by D?

 Breach of duty
− (4) Did D breach their duty of care?

 Causation and remoteness

− (5) Did D’s breach cause the harm suffered by P?
− (6) Was the harm too remote?
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Outline of Lecture

 causation in law
− general principles

 novus actus interveniens

− acts of P
− acts of a 3rd party
− natural events

 remoteness of damage
− “reasonable foreseeability” test
− “egg shell skull” principle
− “manner” in which damage is done
− “kind” of damage done 3
Causation in Law – Introduction

 situations in which there are sequential causes

− issue arises where there are separate causes that occur one after the other
− in this situation, the law treats the intervening occurrence as the only cause

 novus actus interveniens

− a “new act that comes between” the breach by D, and the harm suffered by P
− arguably three types:
(1) acts of P
(2) acts of a 3rd party
(3) natural events

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 Causation in Law – General Principles

 Clay v TUI UK Ltd [2018] 4 All ER 672

− relevant factors for determining whether there is a novus actus (Hamblen LJ):
1. the extent to which the conduct was reasonably foreseeable – in general, the
more foreseeable it is, the less likely it is to be a novus actus interveniens
2. the degree of unreasonableness of the conduct – in general, the more
unreasonable the conduct, the more likely it is to be a novus actus
interveniens and a number of cases have stressed the need for a high
degree of unreasonableness
3. the extent to which it was voluntary and independent conduct – in general,
the more deliberate the act, the more informed it is and the greater the free
choice involved, the more likely it is to be a novus actus interveniens

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 Novus Actus Interveniens – Acts of P (1)

 general principle
− P’s failure to take care not to exacerbate an injury caused by a breach of duty
on the part of D may be regarded as a novus actus interveniens

 McKew v Holland & Hannen & Cubitts [1969] 3 All ER 1621

− Lord Reid: “if the injured man acts unreasonably, he cannot hold the defender
liable for injury caused by his own unreasonable conduct. His unreasonable
conduct is a novus actus interveniens.”
− continues: D “is not liable for a consequence of a kind which is not foreseeable”
− also notes: “it does not follow that he is liable for every consequence which a
reasonable man could foresee… it is often easy to foresee unreasonable
conduct or some other novus actus interveniens as being quite likely. But that
does not mean that [D] must pay for damage caused by the novus actus.”
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Novus Actus Interveniens – Acts of P (2)

 Lam Chi Sang v Mo Yan Keung [2011] HKEC 83

− Chan J: “In a moment of emergency, I consider that it was not totally
unreasonable for Mr Lam to have reacted in the way he did, and his act of
stretching out his hands to stop the Vehicle cannot be said to be
‘disproportionate to the necessities of (his) situation’.”

 Keeling v Hebe Haven Yacht Club Ltd [2005] HKEC 1728

− Le Pichon JA: “The evidence did not support a finding that she had stepped
on ‘uneven surfaces’… rather, the evidence was that she had ‘stepped
over’… The evidence is clear that the plaintiff fell because her knee just went
‘sideways’. There is no basis for holding the plaintiff responsible at all for the
fourth fall.”
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Novus Actus Interveniens – Acts of a 3rd Party (1)

 general principles
− D will remain liable for harm if D can and should have anticipated the acts
of the third party

 The Oropesa [1943] P 32

− Lord Wright: “To break the chain of causation it must be shown that there
is something which I will call ultroneous, something unwarrantable, a new
cause which disturbs the sequence of events, something which can be
described as either unreasonable or extraneous, or extrinsic.”
− continues: “Here it may be said that, even if the master of the Manchester
Regiment was not doing quite the right thing, his mistake might be
regarded as the natural consequence of the emergency in which he was
placed by the negligence of the Oropesa” 8
 Novus Actus Interveniens – Acts of a 3rd Party (2)

 Mak Kit Ching v Tsang Yiu Wing [2006] HKEC 1932

− Carlson DJ: “the deceased was not paying any proper attention. He drove
straight on until just before the moment of impact. To have driven in this
manner… goes well beyond negligence… I am satisfied beyond any doubt, that
the sole cause of this tragedy was the deceased’s reckless driving at the time.”

 Baker v Willoughby [1970] AC 467

− Reid L: “[P’s] loss is not in having a stiff leg: it is his inability to lead a full life, his
inability to enjoy those amenities which depend on freedom of movement and
his inability to earn as much as he used to earn or could have earned if there
had been no accident… the second injury did not diminish any of these.”
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 Novus Actus Interveniens – Natural Events

 Jobling v Associated Dairies [1982] AC 794

− Lord Bridge: “the supervening illness or injury which is the independent cause of the
loss of earning capacity has manifested itself before the trial… even if [P] had never
sustained the tortious injury, his earnings would now be reduced or extinguished. To
hold the tortfeasor, in this situation, liable to pay damages for a notional continuing loss
of earnings attributable to the tortious injury, is to put [P] in a better position than he
would be in if he had never suffered the tortious injury.”
− cf Baker v Willoughby: why is subsequent illness, but not injury, a “vicissitude of life”?

 Carslogie Steamship Co v Royal Norwegian Gov’t [1952] AC 292

− Lord Normand: “the question is whether the owners of the detained ship suffered a loss
of earnings while she [the ship] was undergoing the collision repairs. The answer is
that they did not, because during the detention the ship… was necessarily disabled
from trading by the weather damage.” 10
Elements of Negligence

 Recognised harm
− (1) Did P suffer harm of a recognised kind?

 Duty of care and scope of duty

− (2) Did D owe P a duty of care?
− (3) Was the harm suffered by P within the scope of the duty owed by D?

 Breach of duty
− (4) Did D breach their duty of care?

 Causation and remoteness

− (5) Did D’s breach cause the harm suffered by P?
− (6) Was the harm too remote?
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Remoteness of Damage

 question of law
− whether the harm suffered by P was too far removed from D’s breach

 “reasonable foreseeability” test

− the damage must be of a kind that is “reasonably foreseeable”
− The Wagon Mound (No 1) [1961] AC 388

 “egg shell skull” principle

− it is immaterial that P suffers to a much greater extent than D may have
anticipated = D must take P as they are
− Smith v Leech Brain [1962] 2 QB 405
− Hughes v Lord Advocate [1963] AC 837
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Remoteness – “Kind” of Damage Done

 “kind” of damage done

− the damage must be of a kind that is reasonably foreseeable
− issue is how to define damage of a particular “kind”
− ie, where to draw the line between what is included within, and what
is excluded from, the category of harm

 Tremain v Pike [1969] 1 WLR 1556

 compare Jolley v Sutton LBC [2000] 1 WLR 1082

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Remoteness – “Manner” in which Damage is Done

 “manner” in which damage is done

− while the damage must be of a kind that is reasonably foreseeable, the
precise manner in which the damage is done need not be foreseeable

 Tsang Chung Wan v Li Ming [1998] 2 HKLRD 354

− Suffiad DJ: “the precise manner in which the damage was caused did not
have to be foreseeable… the plaintiff need not show that the first
defendant could have foreseen that the foot pedal of the steel bending
machine would fail to respond when stepped on by the plaintiff at the time
of the accident thereby… causing the injuries to the plaintiff.”

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