CAUSATION AND REMOTENESS

OF DAMAGE
I
Prepared by Ms. Julia Farhana Binti Rosemadi
 TOPIC OUTLINE
1. Types of Causation
a. Causation in Fact
b. Causation in Law
2. Relevant factors associated with Reasonable
Foreseeability
Test
3. Intervening Acts
DUTY BREACH CAUSATIO
N

CAUSATION CAUSATION
IN FACT IN LAW
CAUSATION IN FACT

1. THE ‘BUT-FOR’ TEST.

◦Question: But-for the D’s breach of duty, would P have suffered the
injury?
◦Would the plaintiff suffered harm if the defendant had not been
negligent?
◦Yes – D’s breach did not cause P’s injury
◦No – D’s breach caused P’s injury
Case: Barnett v Chelsea & Kensington Hospital
Management Committee [1969] 1 QB 428
Three security guards went to the hospital when they started
vomiting after drinking some tea, however the doctors were not
there. The nurses who were on duty, after consulting the doctors on
the phone, told the three guards to go home and call their own
doctors. However, one of the guards who is the plaintiff’s husband
died of arsenic five hours later, thus the plaintiff sued the hospital for
negligence in failing to treat her husband.
◦ The court held that there is a breach of duty of care for not treating
the patient, however the breach did not caused the plaintiff’s death.
There was evidence that even though the patient was treated, the
patient would still have died. Thus, the defendant was not liable.
Dr Noor Aini Hj Saari v Sa-Art Sae Lee
[2016]
◦ P was pregnant of twins and developed a number of complications.
◦ One of the twins died in utero and it led to caesarean section to
deliver the other twin.
◦ The other twin subsequently developed cerebral palsy (CP) and it
was contended it was caused by D’s negligence including failure to
detect the death of the other twin sooner
◦ H – even if there had been early detection, the other twin’s CP
could have occurred anyway. Early diagnosis was not a but-for
cause of the disability
James Kenneth Eng Siew Goh v Lee King
Ong [2014]
◦ The deceased complained of palpitations and been prescribed Blocadren by he
D
◦ Later, she suffered breathing difficulties which led to her death
◦ D contended causation has not been proved because the deceased has also been
prescribed with other drugs by another doctor
◦ However, the deceased has almost immediately suffered an adverse reaction to
Blocadren and there was no evidence of such reaction to other drugs
◦ Moreover, Blocadren was contra-indicated for asthma patients like the
deceased
◦ H – but-for Blocadren, the deceased would not have suffered the complications
Swamy v Matthews & Anor [1968] 1 MLJ 138

◦ The plaintiff sued the doctor for negligence due to the fact that the
plaintiff suffered paralysis on hands and legs after the doctor had
given him an injection of 5 cc acetylarsan.
◦ Federal Court held: The plaintiff had failed to establish that the
injection had caused paralysis.
2. MULTIPLE CAUSES
◦ A person’s negligence may combine with another factor to cause harm.
◦ Case: McGhee v National Coal Board [1972] 3 All ER 1008
◦ Court held: The defendant was held liable because lack of shower
materially contributed to the risk of contracting dermatitis. The plaintiff
was not required to prove that the dust was the sole or main cause of the
illness. Hence, by virtue of this case the court came up with the material
contributory test.
Wilsher v Essex Area Health Authority [1988] 1
All ER 871
◦ House of Lords: The doctors accepted that they owe a duty of care and
breached the duty of care when they placed the baby in the incubator.
However, the doctors claimed that there are a number of other factors which
causes the blindness, not necessarily the incubator. In this case, since it was
not proved that the plaintiff’s blindness was caused by the failure to prevent
excess oxygen being given to him, the plaintiff had failed to discharge the
burden of proof, thus the defendant was not liable.
Dr KS Sivananthan v the Government of Malaysia
& Anor [2000] 4 AMR 3767
◦ The plaintiff suffered injury and sought treatment at Hospital A
where a plaster of paris was applied to him. He then discharged
himself and seek treatment at Hospital B. The doctor at Hospital B
split the plaster of paris and performed an operation on the
plaintiff’s leg. A week later, the plaintiff received further treatment
by way of internal fixator from the same doctor. The leg had to be
amputated nine months later due to ischaemia.
Held

◦ Since the plaintiff’s leg was at the severe stage of ischaemia when
he was admitted to Hospital B, the attending doctor could not be
held liable for negligent in delaying the treatment. The method of
treatment was a recognized choice of treatment. Wilsher was cited
in approval, stating that where a plaintiff’s injury was attributable
to a number of possible causes, one of which not included the
defendant’s breach of duty, thus the defendant had not caused the
injury.
3. TWO DEFENDANTS INJURED THE
PLAINTIFF/CONCURRENT CAUSES
◦ When there are two or more tortious act which resulted in the same
damage, the defendants are each liable for the whole damage.
◦ Case: Fitzgerald v Lane [1988] 2 All ER 961
Held: All parties will only be liable if it can be established that the
defendant had caused the act. Thus both the first and second
defendant was held jointly liable which materially contributed to
the risks. However the damages awarded were reduced as there was
contributory negligence on the part of the plaintiff.
4. CONSECUTIVE CAUSES
a)Pre-existing condition
◦Case: Performance Cars Ltd v Abraham [1962] 1 QB 33
◦Court held: The defendant was not liable for the cost of respraying
as he had damaged a car which was already damaged. Therefore, his
negligence had not caused the damage.
 b) Two consecutive causes which causes the same
injury.
◦ Baker v Willoughby [1969] 3 ALL ER 1528
◦ P’s legs were injured due to D’s negligence an P had to look for
anor job. He was later shot by some robbers in the same leg, which
consequently had to be amputated.
◦ Court held: The first tortfeasor is responsible for the amputation
because the defendant had deprived him of a good leg. The court
took the view that if Mr Willoughby had not been negligent in his
driving to begin with, the complainant would not have lost his leg.
◦ The second injury did not lessen his suffering, thus it should not
wipe out the D’s liability
◦
c) Two consecutive events only one is tortious.
◦ Case: Jobling v Associated Diaries Ltd [1981] 2 ALL ER 752, HL
◦ In 1973, the plaintiff suffered back injury through the fault of his
employer which meant that he was only capable of light work in the
future. In 1976, the plaintiff contracted myelopathy which was in no way
related to the first accident. The defendant claimed that his liability for
losses wiped out when the plaintiff contracted the disease.
◦ House of Lords: The plaintiff is only entitled to damages from 1973 until
1976 up to the point when the plaintiff contracted the disease as the
second injury was through natural causes and was not tortious.
CAUSATION IN LAW/REMOTENESS OF
DAMAGE
◦ Issue: Whether the loss, in which the plaintiff sustained, is not too
remote?
◦ A defendant will only be liable if it is reasonably foreseeable that
his conduct will result in some damage to the plaintiff.
◦ 2 test for remoteness of damage
a) Direct consequence test
b) Reasonable foresight test
DIRECT CONSEQUENT TEST (TEST NO. 1)

◦ Re Polemis and Furness, Withy & Co Ltd (1921) 3 KB 560

◦ The defendants are charterers of a ship belonging to the plaintiff.
When the ship anchored at Casablaca, the defendant’s servant
carelessly allowed a plank to fall into the hold of the ship. The hold
of the ship contained petrol vapour. Due to the fall of the plank, it
caused a spark which ignited the vapour which caused a big fire and
the ship was totally damaged.
Held:

As the fall of the plank was due to the negligence of the

defendant, the defendant was liable for the direct
consequence of negligence which amounted to US$1
million even though the loss could not be foreseen. Thus,
the defendant was held liable for the fire caused.
2 stages of Direct Consequence test

◦ A) First stage: Whether damage is foreseeable as a

consequence of the defendant’s conduct. If yes…
◦ B) Second stage: Even though the damage was
unforeseeable, the defendant will be liable for all the direct
consequence of his conduct.
REASONABLE FORESEEABILITY TEST (TEST
NO. 2)
◦ Question: Is the damage of such kind as the reasonable man should
have foreseen?
Case: Wagon Mound No. 1 ( 1961) AC 388
◦ The defendants are charterers of a ship. Due to the carelessness of the
defendant’s servant, oil was spilled into the Sydney harbour. The oil
spread to a jetty owned by the plaintiff where the plaintiff’s workers
were carrying out welding operations. The plaintiff’s manager upon
seeing the oil, seeked advise from C Oil Co on whether it was safe to
continue with the welding. It was advised that the plaintiff’s workers
are allowed to continue with the welding because oil on water will not
ignite. However, some cotton debris became embroiled in the oil and
sparks from some welding works ignited the oil which caused fire.
The plaintiff’s jetty was extensively damaged.
Held:
◦ The Re Polemis test would no longer apply. The defendant was not
liable for damage caused by fire since it was not a foreseeable
consequence of breach of their duty.
◦ Test – whether a reasonable man in the D’s position would foresee
that the damage that has occurred.
◦ First, the damages must be foreseeable as a consequence of the
defendant’s conduct;
◦ Secondly, the type of damage must be foreseeable. If the damage
that occurs is of a different nature than what is foreseeable, the
defendant will not be liable.
RELEVANT FACTORS ASSOCIATED WITH
REASONABLE FORESEEABILITY TEST
◦ A) The type of damage must be foreseeable
◦ General rule: the damage must be of the same type, kind or class as
what is foreseeable.
Bradford v Robinson Rentals Ltd [1967] 1 All ER
267
◦ The plaintiff, an employee of the defendants, was requested by his
employer to assist a colleague to repair a vehicle. The trip to repair the
vehicle was during cold winter which took about 20 hours of driving,
where both the vehicle that the plaintiff was driving and the vehicle that
the plaintiff was driving to, was lacking any form of heating function.
Because of the cold weather, even though the plaintiff had took
reasonable caution to dress warmly, the plaintiff suffered frostbite.
◦ Held: In assessing harm, the precise injury need not have been
anticipated so long as the defendant is able to foresee that an injury of
that kind occurring. Since the injury resulting from the cold weather is
foreseeable, the defendant was held liable.
B) Extent of damage:
i)Egg shell skull rule
◦ The tortfeasor takes the victim as he finds him.
◦ Initially, it shall be established that D has breached his DOC, then that
the type of harm is foreseeable as a consequence of that breach.
◦ Then the eggshell skull rule operates to render the D fully liablefor that
harm, even if it was much more serious than expected due to some
weakness of the P
◦ Case: Smith v Leech Brain & Co [1962] 2 QB 405
◦ The plaintiff suffered burn on his lower lip as a result of the defendant’s
negligence. The burn was the promoting agent of cancer which
developed into a cancerous growth from which the plaintiff died three
years later.
Held
◦ The risk of receiving a burn from a molten metal was one which the
employer should have reasonably foreseen and the defendant, in
failing to provide adequate protection, was guilty of negligence.
◦ The test is whether the defendant could reasonably foresee the type of
injury sustained namely the burn where cancer was an extension of
the burn and the defendant should have reasonably anticipated.
◦ It was not necessary to show that death by cancer was foreseeable, nor
that an ordinary person would not have died from the injury. The egg
shell skull rule applies and the defendant must take his victim as he
finds him. The defendant is liable.
ii) Extent of damage: The plaintiff’s impecuniosity
◦ Case: Liesbosch Dredger v Edison SS [1933] AC 449 HL
◦ The plaintiff claimed for several type of losses when the defendant,
through his negligence, had caused the plaintiff’s dredger to sink.
The plaintiff had a contractual relationship with a third party.
◦ Three types of losses claimed:
1.The cost of hiring another dredger;
2.The loss of profit for failing to complete their contractual
obligation with a third party;
3.The loss of their dredger.
Held:

◦ The House of Lords only allowed for the second and third
claim. The first claim was related to the plaintiff’s own
impecuniosity which was an external factor and was not in
any way an immediate effect of the defendant’s
negligence.
C) The method by which the damage occurs is
irrelevant
◦ Case: Hughes v Lord Advocate [1963] AC 837
◦ The explosions by itself was not foreseeable but burning by
explosions is foreseeable. It is foreseeable that children might play
with the lamps and getting injured. It is sufficient that the damage is
of a kind within the general range of what is reasonably
foreseeable.
Intervening Act

◦ “Novus actus Interveniens”

◦ If the defendant can prove that the chain of causation is broken by
an intervening act, the defendant might not be liable.
◦ If there is an intervening act, it is said that the intervening act will
break the chain of causation, therefore the defendant will only be
liable for such damage up to the intervening event.
Three types of Intervening Act

1. Intervening natural event

2. Intervening Act of third party
3. Intervening Act by the plaintiff himself
1. Intervening Natural Event

◦ Natural event beyond human control.

◦ Case: Carslogie Steamship Co Ltd v Royal Norwegian
Government [1952] AC 292
◦ The plaintiff’s ship collided with the defendant’s ship where it was
admitted that the defendant were to be blamed. However, the
defendant was not liable for the damage caused by the bad weather.
The second damage was an intervening act therefore the defendant
was held not liable.
2. Intervening Act of a third party

◦ Where the defendant’s breach of duty is followed by an act

by a third party which is also the cause of the plaintiff’s
damage, the court has to determine the extent of the
defendant’s liability.
◦ If the act of the third party is held to be a novus actus
interveniens, the defendant will not be held liable for any
damage occurring after the act.
Case: Lamb v London Borough of Camden [1981]
2 All ER 408
◦ The defendant, a local council, broke a water main near the
plaintiff’s house, causing damage to the plaintiff’s house and thus
inhabitable. The house was subsequently inhabited by squatters,
where the squatters caused substantial damage to the house. The
plaintiff sued the defendant for the act of the squatters. Would the
defendant be held liable?
◦ Held: The defendant was held not liable based on a policy whereby
squatters are not the responsibility of the defendant and evicting
them is the householder’s own obligation.
3. Intervening act by the plaintiff himself

◦ Rule: Where it is the plaintiff’s act or omission which in

combination with the defendant’s breach of duty has
brought about the damage (contributory negligence)
therefore in such situations, the plaintiff’s claim will be
reduced proportionately.
Case: McKew v Holland & Hannen & Cubitts
(Scotland) Ltd [1969] 3 All ER 1612
◦ Issue: Whether the respondents were liable for the injuries caused
by the second accident?
◦ House of Lords: The act of the appellant in attempting to descend a
steep staircase without a handrail in the normal manner and without
adult assistance when his leg had previously given way on
occasions was unreasonable; accordingly the chain of causation was
broken and the respondents were not liable in damages for his
second injury.
Case: Wieland v Cyril [1969] 3 All ER 1006

◦ The plaintiff suffered an injury caused by the admitted

negligence of the defendants. After attending the hospital
she felt shaken and the movement of her head was
constricted by a collar which had been fitted to her neck.
As a result, she was unable to use her bi-focal spectacles
with her usual skill and the fell while descending stairs,
sustaining further injuries.
Held:

◦ The injury and damage suffered because of the second fall were
attributable to the original negligence of the defendants so as to
attract compensation from them
◦ Chain of causation is not broken.
List of cases
◦ Lim Kar Bee v Abdul Latif b Ismail [1978] 1 MLJ 109
◦ Periasamy v Suppiah [1967] 1 MLJ 19
◦ Chang Kan Nan v Ludhiana Transport Syndicate [1950] MLJ 299
◦ Kanagasabapathy v Narasingam [1979] 2 MLJ 68
◦ Goh Beng Seng v Dol bin Dollah [1970] 2 MLJ 95
◦ Siva Kumaran & Ors v Yu Pan & Anor [1955] 1 MLJ 13
◦ Hussaina Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor[1997] 3 CLJ 500
◦ Tan Ah Kau v The Government of Malaysia (1997) 2 CLJ Supp 168
◦ Lew Thai v Chai Yee Chong (1982) 2 MLJ 124 FC
◦ Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000] 3 AMR 3567 (HC)
◦ Megat Najmuddin Megat Khas & 2 Ors v Perwira Habib Bank Malaysia Berhad [2003] 3 CLJ 816 (CA)
◦ Chong Kok Weng & Anor v Wing Wah Travel Agency Sdn Bhd & Anor [2003] 5 MLJ 550
Cont…
◦ Chai Yee Chong v Lew Thai [2004] 2 MLJ 465
◦ Mohd Zulkhairi Abd Ghapar v Quek Chiam Kee [2004] 5 MLJ 6
◦ Public Bank Berhad v Anuar Hong & Ong [2005] 4 MLJ 184
◦ Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006] 2 MLJ 389 (FC)
◦ Sarawak Shell Bhd v The Owners or other persons interested in The
◦ Ship or Vessel The 'Red Gold' and another action [2011] 1 MLJ 239 (HC)
◦ Choy Meng Heng & Anor v Immediate Strategy Sdn Bhd & Anor [2010] 7 CLJ 1000 (HC)
◦ Chua Seng Sam Realty Sdn Bhd v say Chong SB & Ors [COA 7-9-2012] [Civil Appeal: W-02-1731-
2009]
Cont…
◦ Khoo Teng Bin v Khoo Theng Seong [High Court 7-4-2012] [S6-221073-2006]
◦ Ahmad Jaafar Abdul Latiff v Dato Bandar Kuala Lumpur [2014] 9 CLJ 861 [Federal Court]
◦ Ng Siew Lan v John Lee Tsun Vui & Anor [2017] 2 MLJ 167
◦ Raymond Cheah Choon Sing v Jurutera Daerah, Jabatan Kerja Raya
◦ Seberang Perai Tengah & Ors [2018] 1 MLJ 362KPS-HCM Sdn Bhd v Shahrul Izewan Mat Husin & Ors
[2018] 6 CLJ 772 [High Court]
THANK YOU