Lecture # 5 Causation

Transcription

1 Lecture # 5 Causation Introduction By: Salik Aziz Vaince [ ] In Negligence, a claimant must prove that the defendant's breach of duty owed caused the damage or injury suffered. The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. In order to establish negligence, it must be proved that the defendant s breach of duty actually caused the damage suffered by the claimant, and that the damage caused was not too remote from the breach. The rules on causation covered in this lecture also apply to every other tort where proof of damage is required. In practice, the rules are also applied in torts which are actionable per se (which means actionable merely because they have been committed, whether or not damage is caused) because where no damage is caused, compensation is usually a token amount, known as nominal damages, so most cases are likely to involve damage of some kind and to require proof of it. Meaning The act of causing something to happen. Connection between two events or states such that one produces or brings about the other; where one is the cause and the other its effect. Causation It is obvious that in order to blame an individual for their actions, there must be some link between the action and the damage caused; we cannot blame someone completely unconnected with the damage. This link is what causation seeks to establish. Direct causation can be established by using the 'but-for' test. But for, or put otherwise, except for the action of the defendant, could the harm have occurred? Factual (i.e. direct) causation is proved when the answer is, yes, the damage could only have because of the Defendant. However, while the basic test is a simple one, the situation becomes more complex when there are multiple causes of an injury, or where an action intervenes between the Defendant's action and the ultimate damage. Thus a second type of causation exists in these more complex situations, known as legal causation or remoteness. In those cases, the Defendant may have been the direct (factual) cause of the accident but they will not be held liable since the court considers that the injury was too remote. Cases involving legal causation remain difficult to decipher (Convert code into ordinary language) in some situations though the general principles are clear. To demonstrate causation in tort law, the claimant must establish that the loss they have suffered was caused by the defendant. In most cases a simple application of the 'but for' test will resolve the question of causation in tort law. i.e. 'but for' the defendant's actions, would the claimant have suffered the loss? If yes, the defendant is not liable. If no, the defendant is liable. Causation may be VLC Publishers Page 1

2 problematic where there exists more than one possible cause. Various formulations have evolved to ease the burden of proving causation in such situations. Factual causation: the 'but for' test The But-for test is the basic causation test in negligence claims. The object of the test is to evaluate whether the Claimant's injury would have occurred without the defendant's actions. The question is: can we suggest that the injury would not have occurred to the Claimant except for the action of the Defendant. An important preliminary point to note is that the cause of the injury is to be judged on a balance of probabilities i.e. what is more likely. Thus, as long as it is more likely than not (even if only 51% vs. 49%) that but-for the Defendant's action the injury would not have occurred, it will be held that the But-for test is satisfied. The idea of how much an action caused an injury is usually best explained in percentages, thus the cases will often speak in these terms. An example of the but-for test is: Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428 A night watchman had gone to the Defendant's hospital after drinking some tea and becoming ill. One of the doctors told the night watchman to go home and consult his own doctor. A few hours later the man died from arsenic poisoning. The judge said that it was negligent to send him away but questioned whether the negligence caused the death: but-for the Defendant sending the man away, would he have lived? The medical evidence was that the night watchman was at the hospital by 8.10am, he could have been admitted by 11am and it was possible that a diagnosis could have been made by 12.30pm. However, if the night watchman was not treated before 12pm, the chances of his survival were not good. The court refused to impose liability on the basis that, by the time a diagnosis and treatment could be administered, it would have been too late to save the man's life. Thus it could not be said that only because of the negligence (but-for the negligence) the man would have survived as even if there had been no negligence he would have died anyway. ISSUE: Did the defendant's negligence cause the victim's death? HELD: The defendant s negligence did not cause the victim's death, the arsenic was the cause. This decision established the but for test: But for the defendant's breach of duty, would the harm to the claimant have occurred? If yes, as in this case, the defendant is not factually liable. However, if the answer is no, then factual causation is satisfied. So, the basic principles are: - There must but-for causation, or in other words, only because of the negligence the Claimant suffered injury, - The court will make decisions of fact on a balance of probabilities. Thus, the court in Barnett found that the watchman probably wouldn't have survived even if there was no negligence; it did not find that he definitely wouldn't have survived, simply that the chance of him not surviving was higher than 50%. The but-for test is simple and therefore very useful. However, it becomes more problematic in cases where there is a lot of uncertainty as to how much the defendant contributed. Thus, what happens in situations where the court cannot say that the Defendant caused the injury on a balance of probabilities? VLC Publishers Page 2

3 There must be a factual determination as to whether the defendant's actions caused the claimant's harm. This is often referred to as the chain of causation. MC WILLIAMS (CUMMINGS) V ARROL & CO [1962] 1 WLR 295 FACTS: The plaintiff was the widow of the victim, who fell to his death while working as the defendant's employee. The victim had been working at seventy foot and the defendant did not provide a safety harness (support), despite a statutory duty to do so. However, there was evidence that the victim would not have worn a harness even had it been provided. ISSUE: Did the defendant's breach of duty cause the victim's death? HELD: The House of Lords found that the defendant was not liable as causation was not satisfied. The evidence that the victim would not have worn the safety harness meant but for the defendant's actions the victim would still have died. The claimant must prove that harm would not have occurred 'but for' the negligence of the defendant. It is possible to apply the 'but for' test where there is speculation as to how the claimant would have behaved in a given situation. The question of causation may also arise where there is a dispute about what the defendant would have done in a given situation. Sometimes, it may be clear that the defendant's breach of a duty did not actually cause the harm suffered by the claimant. Factual causation: proof The claimant must prove, on the balance of probabilities, that the defendant's breach of duty caused the harm. The defendant does not have to provide an explanation for the cause of harm but a failure to do so may be a factor in deciding whether the claimant's explanation of the cause should be accepted. A claimant must prove that, on the balance of probabilities, their harm was caused by the defendant's breach of duty. HOTSON V EAST BERKSHIRE AREA HEALTH AUTHORITY [1987] AC 750 FACTS: The plaintiff fell from a tree and his injuries were then wrongly treated at the defendant's hospital. The plaintiff was left permanently disabled. The defendant admitted negligence but denied liability. Evidence showed that there was a seventy five percent chance that the plaintiff's medical condition would have been the same even if he had received the correct treatment. ISSUE: Did the defendant's negligence cause the plaintiff's injury? HELD: Causation could not be established and the claim failed. There was only a twenty five percent chance that the negligent medical treatment affected the claimant's prognosis. Therefore, it did not satisfy the balance of probabilities burden, which would require more than a fifty percent chance. This is known as the all or nothing approach. Factual causation: clinical negligence Clinical negligence claims may lead to complex causation issues. WILSHER V ESSEX AREA HEALTH AUTHORITY [1988] AC 1074 VLC Publishers Page 3

4 FACTS: The plaintiff, a premature baby, received negligent treatment at the defendant's hospital and was left blind. However, there were four other different, independent possible causes of his blindness; each alone could have been the cause. ISSUE: Did the defendant's negligence cause the plaintiff's injury? HELD: It was for the plaintiff, on a balance of probabilities, to show that the defendant's negligence caused the damage, which he could not do. Statistically each possible cause represented a twenty percent chance of actually being the cause. The House of Lords ordered a retrial on the issue of causation. BOLITHO V CITY AND HACKNEY HEALTH AUTHORITY [1998] AC 232 FACTS: The plaintiff was the mother of the victim, a two year old child, who suffered serious brain damage following respiratory failure and eventually died at the defendant's hospital. The child was taken to the hospital, however a doctor did not attend (due to a technology failure) until after the victim died. The plaintiff argued that the doctor should have attended and carried out a specific procedure, which would have saved the victim's life. The doctor testified that she would not have carried out the procedure even if she had attended and her evidence was backed by a number of medical professionals. ISSUE: How did the but for test apply? HELD: The defendant's negligence was based on an omission to act. Therefore, the court had to consider the but for test in a hypothetical situation. Generally, the courts are cautious about finding against medical professionals for policy reasons. If patients often succeeded in Negligence claims then it may affect a doctor's willingness to treat patients, pioneering new procedures would be unlikely to be tried and the cost of medical care would increase due to higher insurance premiums. Factual causation: multiple causes Where there exist two or more causes which operate concurrently it may be factually impossible to determine which one was the cause. This has proved problematic not least because it is the claimant's responsibility to establish which one was the cause. On general principles the burden of proving this is on the balance of probabilities i.e. the claimant has to demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant. Where there are two causes this means the burden of proof is impossible to discharge leaving the claimant uncompensated often for an obvious breach of duty. Various formulations have arisen to beat the strict approach. However, the claimant does not have to prove that the defendant's breach of duty was the main cause of the damage provided that it materially contributed to the damage. It may be sufficient for the claimant to show that the defendant's breach of duty made the risk of injury more probable. Where there are a number of possible causes, the claimant must still prove the defendant's breach of duty caused the harm or was a material contribution. Where the claimant's case is based on proving a material contribution to the damage, the defendant is responsible only for that part of the damage to which his negligence has contributed. The case of McGhee has also been applied to a case where there were three possible causes of injury. VLC Publishers Page 4

5 If there are several possible alternative causes then a claimant must show that his harm was caused by the defendant's breach, as in Wilsher v Essex Area Health Authority [1988]. However, cases often involve harm which may have been caused by a combination of a number of factors. Material contribution approach The courts have developed the material contribution approach in order to help determine causation where multiple causes contributed to the claimant's harm. Where there are two successive causes of harm, the court may regard the first event as the cause of the harm. However, it is possible for a second supervening event to reduce the effect of a tort. Where a tort is submerged in a greater injury caused by (a) another tort or (b) a supervening illness or non-tortious event. BONNINGTON CASTINGS LTD V WARDLAW [1956] AC 613 FACTS: The plaintiff, a steel worker, had contracted a disease caused by exposure to dust from a pneumatic hammer and swing grinders. The defendant was in breach of a statutory duty to maintain the swing grinders. Therefore, the defendant could only be liable in Negligence if the swing grinders were the cause of the plaintiff's disease. ISSUE: What was the cause of the plaintiff's disease? HELD: It was held that, on the balance of probabilities, dust from the swing grinders had materially contributed to causing the plaintiff's disease and on that basis causation could be established. Lord Reid:.. It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease... [the plaintiff] must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury... BAILEY V MINISTRY OF DEFENCE [2008] EWCA CIV 883 Facts: The claimant had suffered brain damage following cardiac arrest after inhaling vomit. She had inhaled her vomit because she was in a very weakened state. Two causes had contributed to her weakness, one tortious, the other not. The judge below held that the tortious cause had made a material contribution to the weakness and the claimant succeeded in full. The employer appealed. Held: The appeal failed. It was not possible to say with any confidence whether, without the tortious contribution, the claimant would have been so weak as to inhale her vomit. It was not suggested either in this court or below that the damages should be apportioned (Given out in portions). Waller LJ said: I would summarise the position in relation to cumulative cause cases as follows. If the evidence demonstrates on a balance of probabilities that the injury would have occurred as a result of the non-tortious cause or causes in any event, the claimant will have failed to establish that the tortious cause contributed. Hotson exemplifies such a situation. If the evidence demonstrates that but for the contribution of the tortious cause the injury would probably not have occurred, the claimant will (obviously) have discharged the burden. In a case where medical science cannot establish the probability that but for an act of negligence the injury would not have happened but can establish VLC Publishers Page 5

6 that the contribution of the negligent cause was more than negligible, the but for test is modified, and the claimant will succeed. MCGHEE V NATIONAL COAL BOARD [1973] 1 WLR 1 FACTS: The plaintiff contracted dermatitis due to exposure to dust, when cleaning brick kilns for the defendant. Medical evidence suggested that the only way to avoid the dust abrasions was thorough washing of the skin immediately after contact. The defendant negligently did not provide washing facilities on site. However, the medical evidence did not establish whether the lack of washing (which the defendant was liable for) or more generally the exposure (which the defendant was not liable for) was the cause. ISSUE: Was sufficient causation proved? HELD: Under the strict all or nothing approach the plaintiff could not prove the defendant caused his dermatitis (Hotson v East Berkshire Area Health Authority [1987]). The plaintiff was also unable to prove that defendant's failure to provide onsite washing facilities materially contributed to his dermatitis (Bonnington Castings Ltd v Wardlaw [1956]). However, the House of Lords found that the defendant's failure to provide onsite washing facilities was a material contribution to the risk of injury and that was sufficient to prove causation. Therefore, the courts have modified the but for test. This means that a claimant must establish the defendant's negligence either: materially contributed to the harm (Bonnington Castings Ltd v Wardlaw [1956]) or materially contributed to the risk of harm (McGhee v National Coal Board [1973]). In Wilsher v Essex Area Health Authority [1988], the defendant could only be held responsible for one of the possible risk factors and it could not be shown that this increased the risk of the claimant suffering the harm. Therefore, despite the widening of the but for test the claimant was still unable to satisfy the causation requirement. Divisible injury The issue arises: to what extent is a defendant who is found to have either materially contributed to the harm or materially contributed to the risk of the harm, liable for damages? HOLTBY V BRIGHAM & COWAN (HULL) LTD [2000] 3 ALL ER 421 FACTS: The claimant suffered asbestosis due to exposure to asbestos at work. The asbestosis was a cumulative condition, which got progressively worse the longer the exposure continued. Over a period of time, the claimant had been carrying out the same work for several employers, including the defendant. ISSUE: To what extent was the defendant liable? HELD: The claimant succeeded in demonstrating a material contribution from the defendant's negligence. The defendant would be responsible for a proportion of the harm suffered by the claimant. Therefore, damages were apportioned between the defendant and the other employers (the tortfeasor s) according to the length of time the claimant worked for each employer. The claimant must make a claim against all the tortfeasor s in order to recover full damages. VLC Publishers Page 6

7 Indivisible injury In some cases more than one defendant has made a material contribution to the claimant's harm but it is not divisible. For example, in a road traffic accident a single injury suffered may be the result of two different defendant's negligence. CIVIL LIABILITY (CONTRIBUTION) ACT 1978 S1 Entitlement to contribution (1).. any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). S2 Assessment of contribution (1).. in any proceedings for contribution under S1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that persons responsibility for the damage in question. Under S1(1) of the Civil Liability (Contribution) Act 1978, the defendants are jointly and severally liable for the full damages owed to a claimant. This means a claimant may bring a claim for full damages against only one of the defendants. It aids a claimant to recover full damages even if one of the other defendants is insolvent or untraceable. In addition, under S2(1), the courts can apportion liability for damages between the defendants according to their share of responsibility for the harm caused. Recent developments A recent decision has been criticised for weakening the test for factual causation and therefore, leaving employers and insurers vulnerable to large claims. However, it can also be seen as providing just recourse for claimants who have suffered serious harm. FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD [2003] 1 AC 32 FACTS: The claimants had developed mesothelioma, a cancer, caused by exposure to asbestos. The claimants had worked for several employers and were exposed to asbestos in each job. The defendants were some but not all of the employers. Medical evidence failed to show which of the employers had been responsible for the exposure which led to the cancer. Each defendant argued that the but for test was not satisfied as their breach may have not been responsible for triggering the cancer. ISSUE: Could the defendants be held responsible? HELD: The Court of Appeal found that the lack of medical certainty meant that causation could not be proved. However, the House of Lords approved the approach in McGhee v National Coal Board [1973], finding that the defendants had materially contributed to the risk of the claimants contracting the cancer. It also found that mesothelioma was an indivisible injury and therefore, the defendants were jointly and severally liable. Another controversial decision followed, which appeared to retract the scope of the decision in Fairchild v Glenhaven Funeral Services Ltd [2003]. BARKER V CORUS [2006] 2 AC 572 FACTS: The claimants contracted mesothelioma working for a number of employers. However, when the case was brought the defendant was the only employer still trading. The defendant argued that if was unfair to impose joint and several liability when their breach had only contributed to the risk of VLC Publishers Page 7

8 harm. The defendant argued liability should be proportionate only to the extent to which they contributed to the risk (the time that they had employed the claimants and exposed them to the asbestos). ISSUE: Could the defendant be held jointly and severally liable? HELD: The House of Lords (majority) held that liability for mesothelioma under Fairchild v Glenhaven Funeral Services Ltd [2003], was for the risk of harm and therefore a defendant's liability should be in proportion to the contribution he has made to the risk of the harm occurring. Furthermore, although mesothelioma was an indivisible injury, the risk of it was divisible and should be reflected in a defendant's liability. The decision in Barker v Corus [2006], was heavily criticised for limiting a claimant's ability to receive damages in full. Parliament passed the Compensation Act 2006 which effectively reversed the decision for claimants suffering mesothelioma. However, it remains unclear whether the decision will be followed in cases where causation is based on a material contribution to the risk of harm. Factual causation: loss of chance Where the claimant submits the defendant's conduct lost them a chance of avoiding harm or injury as opposed to causing the harm or injury itself, the courts have been reluctant at imposing liability. This most commonly comes up in relation to medical negligence whereby a failure to diagnose a condition correctly may prevent the claimant from receiving vital treatment which may have saved their life or avoided a deteriation in their condition. The House of Lords has twice considered this issue of causation and on each occasion has refused to impose liability: A claimant may lose because of a solicitor's negligence an opportunity to bring legal proceedings, or because of a doctor's negligence a good chance of recovery. Loss of chance is actionable in contract (Chaplin v Hicks [1911] 2 KB 786) but its extent in tort is unclear. The House of Lords have held that questions of loss of chance do not arise where there are positive findings of fact on the issue of causation. Such a case may be an 'all or nothing' case. Where the claimant's loss resulting from the defendant's negligence depended on the hypothetical action of a third party, either in addition to action by the claimant or independently of it, see the decision of the Court of Appeal. The Court of Appeal has followed the approach adopted in Allied Maples in two later cases: In Stovold v. Barlows (1996) PNLR 91 a solicitor acting for a vendor failed to use the appropriate system for sending the title deeds to a purchaser. Consequently, the claimant lost his chance to sell the property at a higher price. But damages were reduced by 50% as the court held that the purchaser might have bought another property even if the documents had arrived on time. In First Interstate Bank of California v Cohen Arnold & Co. (1996) PNLR 17 the claimant bank had loaned money to a client of the defendant accountants who negligently overstated the net worth of their clients. The bank then became concerned about the amount of the loan outstanding but, relying on the representations made by the defendant accountants, the bank delayed in calling in the loan. As a result of the delay in placing the property on the market, the price obtained was 1.45 million whereas the bank contended that it could have realised 3 million in an earlier sale. The Court of VLC Publishers Page 8

9 Appeal valued the chance at 66.66% on the assumption that but for the negligence, the property would actually have been sold for 66.66% of 3 million. The loss of chance concept applies to cases where a claimant is arguing that the defendant's breach caused the claimant to lose a chance, rather than the defendant's breach being a cause of the harm. Therefore, the courts must focus on the outcome of events not the damage which occurred. In Hotson v East Berkshire Area Health Authority [1987], where the defendant's omission to treat the claimant may have lessened his chance of recovery, the House of Lords decided to use the all or nothing approach. However, it refused to rule out the possibility of successful loss of chance cases in different circumstances. GREGG V SCOTT [2005] WL FACTS: The claimant had a lump (enlargement) under his arm which the defendant doctor negligently diagnosed as benign (not dangerous to health). Therefore, the cancer was left untreated and spread to other parts of the claimant's body. Medical evidence, suggested that if the misdiagnosis had not have occurred the claimant would have had a forty five per cent chance of recovery. ISSUE: Was the defendant liable for the claimant's loss of chance? HELD: The House of Lords (majority) applied Hotson v East Berkshire Area Health Authority [1987] and confirmed the all or nothing approach. Factual causation: multiple injuries If a claimant has suffered one injury or loss followed by another and they are relevant to one another, causation issues can arise. PERFORMANCE CARS V ABRAHAM [1962] 1 QB 33 FACTS: The defendant negligently hit the claimant's car and the car required a re-spray. However, two weeks earlier the claimant's car had been hit by another negligent driver. The initial incident meant that the car was in need of a re-spray prior to the incident involving the defendant. ISSUE: Could the defendant be liable for the damage? HELD: The Court of Appeal found that the defendant was not liable for the cost of the re-spray because the defendant's breach had not caused the need for the re-spray. Therefore, if a claimant has already suffered the harm, a subsequent defendant is only liable to the extent that he makes the claimant's harm worse. Similarly, issues can arise in relation to personal injuries. RAHMAN V AREAROSE LTD [2001] QB 351 FACTS: The claimant had suffered physical injuries after a vicious assault at work, which employer, the first defendant, had negligently failed to protect him from. Subsequently, the claimant was left blind in one eye after receiving negligent treatment, in the second defendant's hospital. Furthermore, the claimant suffered severe continuing psychiatric injury as a result. Medical evidence showed that the complex psychiatric injury could be attributed to the two separate tortious incidents. ISSUE: To what extent was each defendant liable? HELD: The claimant's employer was solely responsible for the initial injuries and loss of wages resulting from the attack. The hospital was solely responsible for the blindness. The court found that both were VLC Publishers Page 9

10 liable for the psychiatric injury. On the basis of the medical evidence, the psychiatric injury was found to be divisible and therefore, the damages were apportioned between the employer and the hospital. Legal causation: intervening acts Where there is a new intervening act this may break the chain of causation removing liability from the defendant. The legal test applicable will depend upon whether the new act was that of a third party or an act of the claimant. Both factual causation and legal causation must be proved in order to make a claim in Negligence. For the chain of causation to be proved the defendant's breach of duty must have caused or materially contributed to the claimant's injury or loss. However, the chain may be broken by an intervening event. In these cases, as opposed to the cases just considered, the Defendant's negligence is not sufficient by itself to cause the injury. Rather the injury is caused by a supervening event. The negligence, however, creates the opportunity for the injury to occur. The Latin phrasenovus actus interveniens is used to describe the intervening act. Hoffman in Empress Car v National rivers [1992] 2 AC 22 A factory owner leaves an oil drum in a dangerous place and a worker comes by, lights a cigarette and throws it towards the barrels causing a fire. It would be the owner's fault for leaving the barrels in a dangerous place where an accident was likely to happen. If, however, the workman knew that the barrels were flammable and still threw a match, it would be difficult to say that the factory owner caused the fire. Similarly, if the drum had been struck by lightning it would be hard to say that the owner caused it. It should be clear from the examples that the question of whether a novus actus breaks the chain of causation will depend on the duty of care of the Defendant. If the factory owner had a duty of care to protect the barrels from lightning then there would be causation if lightning caused the fire. It is only because lightning striking the barrel is such a rare occurrence that we can say it broke the chain of causation between the owner's negligence (leaving the barrels in an unsafe place) and the damage by fire. Knightley v Johns [1982] 1 WLR 349 The 1st Defendant caused an accident in a tunnel. The police were called but the officer in charge forgot to close the entrance of the tunnel so cars couldn't continue to enter. This was in breach of police codes. The officer in charge then sent two police constables down the tunnel against the flow of traffic in order to close the tunnel. They did so though it was in breach of codes for them to do so. One of the constables was injured by an oncoming car (through no fault of the driver's) and he sued. The trial judge found that 1st Defendant, the driver of the car which originally causes the need for the police to be called out, was liable and the failures by the officer in charge and Claimant himself did not break the chain of causation. The Court of Appeal held that the chain was broken by the officer in charge. They said that the question of when a novus actus break the chain of causation is a matter of common sense but it did enunciate some principles of wider application. The Court asked whether the injury was a probable and foreseeable result of the actions of officer in charge. The answer was yes and thus the chain was VLC Publishers Page 10

11 broken. In addition, negligent conduct is more likely to break the chain of causation than non-negligent conduct. It is important to note that when we talk about a novus actus by the Claimant himself, the court will usually deal with this by contributory negligence, rather than saying that the Claimant's action broke the chain of causation. This is, however, something which is considered in the Defences. This won't be the case when a duty of care is owed. Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 The House of Lords held that the suicide of a prisoner in a police cell did not break the chain of causation as the police had a duty to watch the prisoner. The police knew that the prisoner had suicidal tendencies and the police owed him a duty of care to stop him committing suicide. The act of the Third party Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third party was foreseeable, the defendant remains liable and the chain of causation remains intact. If the act of a third party is not foreseeable this will break the chain of causation and the defendant is not liable for the actions of the third party: The intervening act of a third party may break the chain of causation. A third party act will not break the chain of causation if the defendant is under a legal duty to prevent that act. STANSBIE V TROMAN [1948] 2 KB 48 FACTS: The claimant had property stolen from her house, when the defendant, a decorator, left the house unoccupied and unlocked. The defendant was under at duty to secure the property if he left the house. ISSUE: Did the intervening act break the chain of causation? HELD: The chain of causation was not broken, the actions of the thief, was the very reason the defendant was under a duty to secure the property. A third party act will break the chain of causation if it is an unforeseeable consequence of the defendant's own negligence. KNIGHTLEY V JOHNS [1982] 1 WLR 349 FACTS: The defendant was driving negligently which led to his car turning over near the exit from a one-way tunnel. The police officer who arrived at the scene negligently directed the plaintiff to drive back up the tunnel. The plaintiff collided with an oncoming vehicle and was injured. ISSUE: Did the intervening act break the chain of causation? HELD: The chain of causation was broken. It was foreseeable the police would attend as a result of the defendant's negligence. However, the gross negligence of the officer was not foreseeable. A negligent act of a third party is more likely to break the chain of causation, but not definitely because some errors of judgment are foreseeable. Stephenson LJ:.. mistakes and mischances are to be expected... Therefore, the question of foreseeability, even if the third party was negligent will be decided on the facts of each case. VLC Publishers Page 11

12 ROUSE V SQUIRES [1973] QB 889 FACTS: The defendant's careless driving resulted in his lorry skidding and blocking two lanes of the motorway. The plaintiff's husband stopped to help the defendant. Another lorry driver, who was also driving negligently, failed to see the blockage soon enough and killed the victim. ISSUE: Did the intervening act break the chain of causation? HELD: The Court of Appeal found that the chain of causation was not broken, as it was reasonably foreseeable that other drivers may arrive at the scene too fast to stop. Both the defendant and the second driver had made a material contribution to the indivisible injury. Under the Civil Liability (Contribution) Act 1978 the court apportioned liability between them. An instinctive intervention, by a third party, may not break the chain of causation if it is a foreseeable reaction. SCOTT V SHEPHERD (1773) 2 WM BL 892 FACTS: The defendant threw a lighted squib (Firework) into a crowded market. Two other individuals picked the squib up and threw it away from themselves and their stalls. The squib eventually exploded in front of the plaintiff, who lost his eye. ISSUE: Did the intervening acts break the chain of causation? HELD: The intervening acts did not break the chain of causation, as the third parties were acting instinctively to the danger posed by the defendant's act. De Grey CJ:.. all that was done subsequent to the original throwing as a continuation of the first force and first act.. any innocent person removing the danger from himself to another is justifiable... acting under a compulsive necessity for their own safety and self-preservation... Act of the Claimant Where the new intervening act is that of the claimant, the test is whether the claimant acted reasonably in the circumstances. If the claimant's actions are deemed reasonable the chain of causation remains intact and the defendant is liable for the actions of the claimant. If, however, the claimant's actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant: A claimant's own act may break the chain of causation. A claimant s own act may be a novus actus interveniens if he acts unreasonably. MCKEW V HOLLAND & HANNEN & CUBITTS [1969] 3 ALL ER 1621 FACTS: The plaintiff injured his leg at work, due to his employer's negligence (the defendant). A few days later, the plaintiff was descending some steep steps without a handrail. He lost control of his leg and fell down the stairs, severely fracturing his ankle. ISSUE: Did the plaintiff's intervening act break the chain of causation? HELD: The plaintiff's act did break the chain of causation because he took an unreasonable risk. 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 novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct... A claimant's act of carelessness may not always be considered so unreasonable as to break the chain of causation. However, it may be viewed as contributory negligence on the claimant's part. VLC Publishers Page 12

13 SPENCER V WINCANTON HOLDINGS LTD [2009] EWCA 1404 FACTS: The claimant was injured at work, resulting in his leg being amputated. The defendant was liable was for this injury. Several months later, the claimant had an accident, trying to use his new prosthesis, which meant that he would be permanently confined to a wheelchair. ISSUE: Did the claimant's intervening act break the chain of causation? HELD: The claimant's act did not break the chain of causation. However his damages were reduced as contributory negligence was accepted as a partial defence. Lord Sedley:.. Like the amputation, the fall was... an unexpected but real consequence of the original accident, albeit one to which [the claimant s] own misjudgment contributed... Remoteness and foreseeability Remoteness is often called legal causation, and does not concern itself with deciding whether there is causation as a matter of fact, but rather is concerned with whether it is fair to impose liability. It has already been established in these cases that factual causation exists, the issue is whether it is fair to impose liability. The issues in remoteness are therefore largely to do with policy. The idea is similar to the concepts encountered in duty of care topic, where the court will only impose liability if it is just and reasonable. The general question is: was it foreseeable that that type of harm would occur? Should a defendant be liable for all the consequences of his or her actions, no matter how unlikely or unpredictable it is that those consequences manifested themselves? Remoteness is a legal principle that serves to limit the potential liability of a tortfeasor in practice (Elliot and Quinn, (2007), p104 et seq). The issue of remoteness arises on consideration of the fundamental question of legal causation, which involves an analysis of the operative cause of the harm suffered by the claimant in law. As Horsey and Rackley comment: When a court asks whether a harm was too remote a consequence of the defendant s negligence (breach of duty), what is essentially being asked is whether the consequences of the negligent action were so far removed from it as to have been unforeseeable by the defendant (Horsey and Rackley, (2009), p247). In this context the foresight and perspicacity of the defendant is judged on the basis of the objective standard of the notional reasonable person at the moment that the tortious act or omission occurred (Cooke, (2007), p177 et seq). Remoteness test A claimant must prove that the damage was not only caused by the defendant but that it was not too remote. The remoteness of damage rule limits a defendant's liability to what can be reasonably justified, ensures a claimant does not profit from an event and aids insurers to assess future liabilities. The courts have developed tests in order to determine if the damage is too remote. RE POLEMIS AND FURNESS, WITHY & CO [1921] 3 KB 560 FACTS: The plaintiffs chartered a ship and due to bad weather the cargo had leaked, releasing some gas below the deck. On unloading the ship one of the defendant's workers knocked down a plank, creating a spark, which ignited the gas and burnt the ship. ISSUE: Was the defendant liable for the damage? VLC Publishers Page 13

14 HELD: The defendant was liable for all the loss which flowed from his conduct. The Court of Appeal applied a direct causation test which means that foreseeability is only relevant in determining culpability (A state of guilt) not compensation. Overseas Tankship v Morts Dock (The Wagon Mound (No 1)) [1961] AC 388 FACTS: The respondents were ship-builders; they owned a wharf with tools on it. A ship was docked along the wharf and was being worked on by the respondents. The Appellants had control of a ship called the Wagon Mound which was docked about 600 yards away. The Wagon Mound was unloading gasoline which negligently allowed getting into the water and spreading over to the respondent's wharf. The Respondent's manager became aware of the spill and told his workmen not to do any welding. He asked the owner of the dock where the Wagon Mound was docked whether it was safe to weld, and after receiving an affirmative answer he told his workmen that they could weld but to be cautious. Some sparks from the welding fell into the water and caused a fire. The trial judge found that some cotton was floating on a piece of debris under the wharf and that sparks from the welding fell onto this. The judge said that the appellants could not have known that it was possible for the gasoline to burn when floating on water. ISSUE: Was the damage too remote? HELD: The court held that the Appellants were not liable as the damage by fire was not a reasonably foreseeable consequence. The court overruled an earlier case called Re Polemis in which it was held that the Defendant is liable for all damage as long as it is a direct result of their actions, regardless of whether it was foreseeable. The defendant was found not liable, because it was not reasonably foreseeable that the oil might ignite on water in these circumstances. The Privy Council applied a reasonable foreseeability test. Although, damage by oil was foreseeable the damage by fire was too remote to be foreseeable. Essentially, the test means that if a reasonable person would not have foreseen the damage it cannot be recovered. The two tests cannot be reconciled. The Wagon Mound (No 1) [1961] decision, did not explicitly overrule the Re Polemis and Furness, Withy & Co [1921] test. Therefore, both tests may still be applied although courts have tended to use the approach taken in The Wagon Mound. JOLLEY V SUTTON [2000] 3 ALL ER 409 FACTS: The claimant, a child, was injured when playing on a boat which had been abandoned on the defendant's land. Older children had attempted to repair the boat and therefore it was left in a very precarious position, when it fell on the claimant. ISSUE: Was the injury too remote? HELD: The House of Lords approved The Wagon Mound test and found that the damage was reasonably foreseeable and therefore the defendant was liable. Similar-in-type rule An injury is not too remote if the type of injury is reasonably foreseeable, even if the precise way in which the injury was caused was not foreseeable. HUGHES V LORD ADVOCATE [1963] 1 ALL ER 705 FACTS: The defendant, left a manhole covered by a small tent with a paraffin lamp at each corner, unattended. The plaintiff, one of two boys aged 8 and 10, took a lamp inside the tent, he tripped, VLC Publishers Page 14

15 causing the lamp to fall into the manhole and this created a large explosion. The plaintiff suffered serious burns. ISSUE: Was the injury too remote? HELD: The House of Lords found that the defendant was liable because the accident was caused by a known source of danger; therefore, injury by burning was foreseeable, even though the way in which it happened was unexpected. Lord Morris:.. there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage the precise concatenation of circumstances which led up to the accident... The House of Lords have taken a narrow view in interpreting the meaning of similar type. TREMAIN V PIKE [1969] 3 ALL ER 1303 FACTS: The plaintiff contracted Weil s disease working on the defendant's farm. The defendant had negligently allowed a rat infestation on his farm. The plaintiff's rare disease was caused by contact with rats' urine. ISSUE: Was the injury too remote? HELD: The defendant was not liable. An injury caused by rat bites was foreseeable but the plaintiff's disease was so unusual that it was not foreseeable, even using the similar-in-type proviso. However, more recently the courts have taken a broader approach to construction and widened the scope of losses for which a defendant can be held liable. JOLLEY V SUTTON [2000] 3 ALL ER 409 FACTS: The claimant, a child, was severely injured when playing on a boat which had been abandoned on the defendant's land ISSUE: Was the injury too remote? HELD: The House of Lords took a wide view of the type of injury. It was foreseeable that injuries such as bruises or even fractures may be sustained but the claimant suffered severe crushing injuries which left him disabled. Using The Wagon Mound test and following the approach in Hughes v Lord Advocate [1963], the court found that it was not necessary to distinguish between the different types of physical injuries, because the precise nature of the injury does not need to be foreseeable. Egg-shell skull rule The egg-shell skull rule applies in cases where the type of injury is foreseeable but the claimant's special characteristics make the extent of the injury unforeseeable. The rule is also referred to as take your victim as you find him. SMITH V LEECH BRAIN & CO [1962] 2 QB 405 FACTS: The victim suffered a burn on his face after being slightly splashed by molten metal when working for the defendant. The incident would not have happened but for the defendant's negligence. The burn aggravated the victim's unknown pre-existing cancerous condition and he died. ISSUE: Was the victim's death too remote? HELD: The court found that the defendant was liable because although the cancer was an unforeseeable injury the defendant's negligent act led to the cancer developing. The court explicitly VLC Publishers Page 15

16 followed The Wagon Mound test: the burn injury was foreseeable and the fact that the extent of the injury was not, did not prevent liability. Lord Parker :.. If a man is negligently run over... it is no answer to the sufferer's claim for damages that he would have suffered less injury... if he had not had an unusually thin skull or an unusually weak heart... ROBINSON V POST OFFICE [1974] 1 WLR 1176 FACTS: The plaintiff slipped at work, due to the defendant's negligence, and suffered a minor injury to his leg. The plaintiff went to hospital and was given an anti-tetanus injection and then he suffered a severe allergic reaction to the injection. ISSUE: Was the second injury too remote? HELD: The defendant was liable for both injuries. It was reasonably foreseeable that the plaintiff would require medical treatment as a result of the original injury and therefore, the defendant was liable for the consequences of the treatment, despite the reaction being unforeseeably severe. Claimant's impecuniosity Another element of taking your victim as you find him, relates to the extent that a claimant's lack of resources may mean that he is unable to ameliorate (To make better) the loss suffered due to the defendant's negligence. LAGDEN V O'CONNOR [2004] 1 ALL ER 277 FACTS: The claimant's car was damaged when the defendant negligently crashed into the parked vehicle. The claimant's car required extensive work and he needed a temporary replacement. The claimant was only able to obtain a hire car on an expensive credit arrangement. ISSUE: Was the credit agreement payment too remote? HELD: The defendant was liable for the cost of credit because the claimant had to take out the expensive agreement as a result of the damage caused by the defendant's negligence. Essentially, the court applied the principle that a defendant must take his victim as he finds him. Is Foreseeability The Right Test? As in this lecture should foreseeability continue to be the applicable test for remoteness? There is at first sight a tempting argument to the contrary. If a defendant s negligence sets in train a course of events that result in wide ranging and far reaching damage why shouldn t that defendant be made liable for all that damage? Why is it deemed appropriate to limit the defendant s liability only to those consequences that might have been reasonably foreseen at the point of the negligent action or omission? Viscount Simmonds evokes the notion of current ideas of justice and morality, but surely fundamental justice and basic morality dictates that individuals are held responsible for all the consequences of their actions. In terms of their strict definitions the concepts of justice and morality do not contain opt-out clauses, exclusions or caveats in relation to foreseeability, which is an entirely separate issue. Presumably Viscount Simmonds uses the word current to suggest that the law had evolved over forty years of the twentieth century, from its application in Re Polemis in 1921 to reach a state by the time of the Wagon Mound No.1 decision in 1961 in which it was deemed appropriate to incorporate a VLC Publishers Page 16