Negligence: Causation & Remoteness

How does Jane Stapleton (2003) describe causation and remoteness? (3)

• Jane Stapleton describes causation and remoteness as 2 hurdles that the C has to overcome to prove a nexus between the breach of duty and the damage.

• 1st hurdle = Factual causation (aka ‘causation’). → Involves establishing a historical connection between the D’s negligence and injury by applying the ‘but for’ test.

• 2nd hurdle = Legal causation (aka ‘remoteness’) → Involves determining whether the damage falls within the scope of liability for consequences, including asking if the damage was reasonably foreseeable and if there was an intervening act by C or a 3rd party breaking the chain of causation. → Sometimes limits are placed on D’s liability for policy reasons.

What do courts do where ‘but for’ test cannot be answered or seems contrary to common sense?

Where the question cannot be answered due to insufficient evidence or where the result seems contrary to common sense, courts create exceptions to the rule on policy grounds.

What is the but-for test?

To establish factual causation, C must prove that ‘but for’ the breach of duty by the D, the C would not have suffered the damage he did.

What standard of proof applies to the but-for test?

‘But for’ test must be proven on a balance of probabilities, i.e. greater than 50% chance that ‘but for’ the negligence, the C would not have suffered damage — Barnett v Chelsea Hospital

What are the facts and decision in Barnett v Chelsea Hospital? (2)

• Facts = Night watchmen turned ill and were turned away by the hospital. → One died from arsenic poisoning.

• HELD = Hospital was NOT liable because, on the balance of probabilities, the antidote could not have been delivered in time even if admitted.

What evidential standard applies in civil law generally?

Balance of probabilities throughout civil law, as opposed to beyond reasonable doubt in criminal law.

How can characterisation of the breach affect the ‘but for’ test? (2)

• Sometimes, how the breach of duty is characterised can affect the outcome of the ‘but for’ test.

• Courts will characterise the breach in the way most favourable to Ds. — The Empire Jamaica

What are the facts and decision in The Empire Jamaica? (3)

• Facts = An unlicensed shipmate fell asleep and crashed the ship. → Owners were sued for permitting an unlicensed mate.

• 2 characterisations were possible (ship should not have sailed at all; OR mate should have been certified).

• HELD = HOL adopted the latter, more favourable to Ds, since competence was not affected by licence.

What if damage pre-existed the D’s breach?

Where damage already existed due to an event preceding the breach, there is no but-for causation — Performance Cars v Abraham

What are the facts and decision in Performance Cars? (2)

• Facts = D’s car collided with C’s but C’s car had already had its paint job damaged in a prior accident.

• HELD = D was not liable for that damage.

What issue arises if D causes injury but a later event would have caused the same loss anyway? (2)

• If a 3rd party, disease or natural occurrence after D’s tort would have caused the same loss, should D’s liability be reduced to losses until the second cause, OR should it cover all losses for the rest of D’s life?

• Two leading cases give opposing answers.

What are the facts and decision in Baker v Willoughby? (2)

• Facts = Supervening tortious event (robbery causing amputation) after D’s negligent injury to the same leg.

• HELD = HOL held damages should cover C’s losses for the rest of life. → Concurrent causes of final injury meant D’s liability was not reduced. → Lord Reid reasoned that practical justice required full compensation.

What are the facts and decision in Jobling v Associated Diaries? (2)

• Facts = Non- tortious disease later totally disabled the C.

• HELD = HOLD held C only entitled to damages for injury up until onset of disease — rejected Lord Reid’s concurrent causes theory.

How have academics tried to reconcile Baker and Jobling? (2)

• Some suggest Baker concerns a tortious supervening event (so damages not discounted) while Jobling concerns a non-tortious subsequent event (so damages reduced).

• HOL cautioned against fixed rules and emphasised practical issues (e.g. possible Criminal Injuries Compensation Board payments causing over-compensation).

Is loss of chance recoverable? (2)

• General rule = No recovery for loss of chance — Gregg v Scott

• Attempts to compensate proportionate to lost chance have largely failed.

What are the facts and decision in Hotson? (2)

• Facts = C fractured hip leading to necrosis. → Evidence that 25% chance of saving leg existed without negligent delay.

• HELD = Trial judge awarded 255 of loss but HOL rejected.

What are the facts and decision in Gregg v Scott? (2)

• Facts = C alleged loss of a 45% chance to avoid diminished life expectancy due to negligent delay in cancer treatment.

• HELD = HOL (3-2) rejected claim.

How does contract law differ regarding loss of chance?

In contract law, loss of chance can be recoverable

s there an exception for professional advice involving pure economic loss? (2)

• YES — where chances involve pure economic loss in professional negligence, it is enough to show on balance of probabilities that C would have taken the advice that was negligently withheld.

• C can recover for loss of chance IF the chance is substantial — Perry v Raleys Solicitors

What are the facts and decision in Perry v Raleys? (2)

• Facts = Negligent advice of solicitors led to loss of chance to make a workplace injury compensation claim under a government scheme.

• HELD = Recovery for loss of chance was allowed because C would have brought the claim if properly advised.

What was held in Perry v Raleys? (2)

• D (solicitors) liable for failing to advise on deletion of a warranty.

• C would have followed advice on a balance of probabilities — recovery not requiring proof the counterparty would have given warranty.

What is a divisible injury?

An injury that worsens with cumulative exposure and can be divided up and attributed to various sources of exposure (e.g., pneumoconiosis, radiation poisoning).

When different factors cumulatively cause a divisible injury, it is enough to show that…

A factor materially contributed to the injury, not that it was the probable cause of the whole injury — Bonnington Castings Ltd v Wardlaw

What was held in Bonnington?

Employer liable for tortious dust from negligently maintained grinders as it materially contributed to C’s lung disease alongside non-tortious sources.

What are the facts and decision in Holtby v Brigham Cowan (Hull) Ltd? (3)

• Facts = C’s asbestosis caused by dust from various employers.

• HELD = Ds liable for its contribution and damages awarded proportionately on a time-exposure basis.

• Holtby overruled the earlier awarding of full damages in Bonnington.

How does material contribution apply to divisible injuries in relation to ‘but for’?

Material contribution test applied to divisible injuries is an application of the ‘but for’ test asking whether, but for the breach, the relevant portion of the divisible injury would have resulted.

Has the material contribution test been extended to indivisible injuries? (3)

• YES — Bailey v Ministry of Defence extended material contribution to some indivisible injuries where negligence materially contributed to an incremental development of a condition.

• Williams v Bermuda Hospital also applied this logic.

• Damages for indivisible injuries are awarded in full.

What are the facts and decision in Bailey v MoD? (2)

• Facts = Patient’s pancreatitis and negligent clinical care together made C too weak to clear vomit, causing brain damage.

• HELD = Court found doctor’s negligence materially contributed to the weakened state and was liable for the indivisible brain damage. → Damages awarded in full.

What are the facts and decision in Williams v Bermuda Hospital? (2)

• Facts = Sepsis from appendicitis plus negligent delay led to damage to C’s heart and lungs.

• HELD = Negligence materially contributed to sepsis so hospital liable.

How do courts justify extending material contribution to indivisible injuries? (2)

• Waller LJ in Bailey saw it as justified where but-for causation cannot be established because of medical limits.

• Lord Toulson in Williams argued it is orthodox BUT this is debated because indivisible-injury causation cannot be proven medically.

What is the Fairchild exception?

In Fairchild v Glenhaven, it was held that where:

1. C exposed to multiple sources of an agent causing disease, one source due to D’s breach;

2. Scientific uncertainty exists on causal mechanism; and

3. Breach materially increased the risk of developing disease,

D will be liable without proving ‘but for’ causation.

What are the facts and decision in Fairchild v Glenhaven? (2)

• Facts = Cs exposed to asbestos from different employers developed mesothelioma. → Mechanism unknown (single fibre vs cumulative) .

• HELD = Each employer liable for materially increasing risk.

How does increase in risk differ from contribution to injury? (2)

• Increasing risk does not equal actually causing disease.

• You can raise likelihood without actually being the cause (e.g. more frequent outings increase covid risk but single exposure may cause actual infection).

What key requirement underpins Fairchild?

Medical/scientific uncertainty about how the agent causes disease — impossible to attribute injury to a particular source when multiple exposures existed.

How do Courts feel about extended Fairchild?

Cautious about extending Fairchild beyond mesothelioma

Fairchild also applies where…

Only a single wrongful exposure occurred and rest were innocent sources — Barker v Corus

Should Fairchild apply where multiple different agents could have caused disease? (2)

• NO — Fairchild should only apply where a single agent could have caused disease, not where multiple agents exist — Wilsher v Essex AHA

• Barker distinguished Wilsher on this basis.

What threshold constitutes a material contribution?

Material means anything more than de minimis — Sienkiewicz v Greif (UK) Ltd

How has Parliament responded to Fairchild?

s3 Compensation Act 2006 codifies the common law Fairchild principles BUT only for mesothelioma caused by asbestos exposure.

How are damages allocated for mesothelioma under s3(2) CA 2006? (3)

• Each D to a mesothelioma claim is liable for full amount of damages on a joint and several basis, following HOL approach in Fairchild.

• Employers may seek contributions from one another.

• Outside s3 mesothelioma cases, damages are apportioned by relative contribution to risk (Barker v Corus and affirmed in IEG v Zurich).

What did Barker v Corus hold about apportionment? (2)

• Departed from Fairchild by treating damage as creation of risk (divisible) — apportionment by relative contribution.

• IEG v Zurich affirmed apportionment outside mesothelioma cases.

What was held in Chester v Afshar? (3)

• Negligent failure to warn of risks in medical procedures leads to liability even if causation cannot be proven on balance of probabilities.

• Courts modified causation principles to give the duty to warn practical content and vindicate patient autonomy.

• Even if patient would have undergone treatment anyway, D still liable.

What must be true for damage to be actionable as not too remote?

Damage must be reasonably foreseeable — Wagon Mound (No 1)

What was the earlier, broader rule about remoteness in Re Polemis and why changed? (2)

• Re Polemis held that any direct consequence would be recoverable if any form of damage was foreseeable.

• It is now clear the particular damage claimed must be reasonably foreseeable.

When can the precise manner of injury be irrelevant?

Hughes v Lord Advocate — if D negligently created a known source of danger, and an accident and resulting damage occur (not reasonably foreseeable) but the damage is of the same kind as damage from a foreseeable accident, the damage is recoverable — manner need not be foreseeable.

What are the facts and decision in Hughes v Lord Advocate? (2)

• Facts = Boys climbed into an uncovered manhole and were burned when a paraffin lamp was knocked over.

• HELD = Recoverable — Though precise accident unforeseeable, burns were of the same kind as foreseeable injuries from known danger.

What was held in Jolley v Sutton LBC regarding children? (2)

• Precise manner and extent need not be foreseeable for children — it was foreseeable some physical injury might occur from an abandoned boat, so council liable when C attempted repairs and was paralysed.

• Lord Hoffmann noted children’s ingenuity justifies this approach.

What does the Thin Skill rule state?

D must take victim as found — if victim has precondition leading to unforeseeable severe injury, tortfeasor is nonetheless liable.

What are the facts and decision in Smith v Leech Brain? (2)

• Facts = C splashed on lip by molten metal. → Burn activated pre-cancerous condition and C died.

• HELD = Court held D liable despite unusual predisposition.

What are intervening acts (novus actus interveniens)? (2)

• Acts by 3rd parties or the C that led to damage.

• Such acts can break the chain of causation and relieve D of liability if they are sufficiently unforeseeable/unreasonable.

When will a 3rd party act break causation? (2)

• A 3rd party act must be unreasonable to break the chain — The Oropesa

• If the 3rd party acted reasonably, D remains liable.

What are the facts and decision in The Oropesa? (2)

• Facts = Master and crew died trying to board the Oropesa to help salvage it.

• HELD = Their acts were reasonable so Oropesa’s owners were liable for their deaths.

What does Knightley v Johns show?

Negligent or positive acts are more likely to break causation than innocent acts.

When is there no break in chain of causation because defendant’s duty covered the 3rd party act?

If D had a duty to guard against the 3rd party act, there is no break in chain of causation — Stansbie v Troman

What are the facts and decision in Stansbie v Troman? (2)

• Facts = Decorator failed to lock the house.

• HELD = Burglary was the very act he ought to have guarded against. → No break in chain of causation.

How do C’s acts affect causation? (2)

• C’s acts must be unreasonable to break causation — McKew v Holland and Hannen

• If not sufficiently unreasonable, courts apply contributory negligence instead — Spencer v Wincanton Holdings (damages reduced by one-third).

What are the facts and decision in McKew v Holland and Hannen? (2)

• Facts = C with weak leg descended steep staircase without handrail and broke ankle.

• HELD = Chain of causation broken.

What about rescuers injured while rescuing from danger C created?

Whether chain is broken depends on whether rescuer’s act was reasonable — wanton disregard can break causation — Knightley v Johns

What must an act be to break causation?

The act must be informed, not merely deliberate and conscious — Corr v IBC Vehicles

What was held in Corr v IBC Vehicles? (2)

• Facts = Suicide during depression.

• HELD = No break in causation because uninformed.

Can a deliberate, informed act still not break chain?

YES — if D had duty to guard against C’s very act (e.g. duty to prevent suicide), chain not broken — Reeves v Commissioner of Police for the Metropolis (police liable though damages reduced for contributory negligence).

What can D do if they fail to prove a break in causation?

D may still plead contributory negligence to reduce damages.

What is the SAAMCO principle?

Distinction between:

• (a) Advisers of a course of action — liable for all foreseeable consequential loss from that course (but-for causation limited by remoteness); and

• (b) Providers of information — liable only for foreseeable loss attributable to incorrect information (a legal, not factual, causation test).

What was held in SAAMCO?

D (valuer) liable only for overvaluation amount, not for subsequent investment losses from market fall — valuer acted as provider of information.

How has SAAMCO fared in later cases? (3)

• BPE Solicitors v Hughes-Holland affirmed SAAMCO.

• BUT Manchester Building Society v Grant Thornton rejected SAAMCO’s rigid distinction, holding scope of adviser’s duty should be determined objectively by purpose of the duty.

• Khan v Meadows also followed the purpose-based approach. → Practically, SAAMCO and the new purpose test often yield similar results because advice’s purpose is typically either information or a suggested course of action.

What was held in Manchester BS v Grant Thornton regarding SAAMCO? (2)

• Accountants who wrongly suggested accounts could be prepared to permit interest-swap contracts were held liable for overall net loss (subject to contributory negligence).

• SC rejected rigid SAAMCO distinction and favoured purpose-based scope of duty.

What are the facts and decision in Khan v Meadows? (2)

• Facts = Doctor negligently told claimant she was not a carrier of haemophilia gene. → C passed gene to child who also had autism.

• HELD = C recovered costs for haemophilia (purpose of advice) but not autism — scope limited by purpose of advice.

Do the new purpose-based approach and SAAMCO often differ in result?

Practically, they normally yield the same results since professional advice’s purpose is typically either to provide information or to suggest a course of action.