Modeme, Lawrence, Modern Business Law: English Legal System and Obligations, available at: http://bookboon.com/en/english-legal-system-and-obligations-ebook
Chapter 10:6, and 7
Causation Overview
The defendant will not be liable unless their action/omission (on a balance of probabilities) caused the claimant a foreseeable harm.
Two Aspects of Causation
Causation has two aspects:
Factual causation
Legal causation
Factual Causation
Two key questions:
Did the claimant suffer any harm/loss/damage?
Did the defendant’s negligence cause the harm?
If the claimant did not suffer any harm/damage/loss, there will be no liability.
Rothwell v Chemical & Insulating Co. Ltd
If any harm/loss/damage suffered was not due to the defendant’s breach of duty, there will be no liability.
Examples of Harm
Personal Injury
Property Damage
Psychiatric Injury
Economic Loss
Two Tests for Causation
The "But For" Test
The Material Contribution Test
The "But For" Test
This is the general/residual test for causation.
It asks the question: “Would the damage have happened but for the defendant’s breach of duty?”
If YES, no causation.
If NO, causation.
Applicable Cases for "But For" Test
Barnet v Chelsea & Kensington HMC
Wilsher v Essex HA [1988]
The “but for” test is NOT suitable where there are multiple causes or causers of harm/loss/damage.
Material Contribution Test
Applies where there are:
More than one potential cause.
More than one potential causer or defendant.
It asks the questions:
Could the person/thing involved have been responsible for the damage/loss/harm suffered?
“Did the persons/things involved significantly contribute to the damage/harm done?”
If YES = causation
If NO = No causation
Bonnington Castings v Wardlaw [1956]
Claimant contracted pneumoconiosis at work through inhalation of silica dust.
The defendant employer had failed to provide adequate ventilation in the factory.
Held: Defendant had caused the damage and was liable in Negligence.
McGhee v National Coal Board [1973]
Claimant contracted dermatitis due to failure of Defendant to provide washing facilities.
Held: Defendant negligently caused the damage.
Apportionment of Liability
All persons who have contributed materially to the harm would be jointly and severally liable for it.
Fairchild v Glenhaven funeral Services [2002]
Proof of Factual Causation
Causation must be proved by the claimant on a balance of probabilities.
That is to say, it must be more probable than not that the damage was caused by the defendant’s breach of duty.
Legal Causation
Deals with the question: “Was the kind of loss/damage that occurred a foreseeable consequence of the defendant’s negligence?”
If YES = defendant would be liable
If NO = defendant would not be liable, as damage/loss would be remote
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd) (The Wagon Mound No 1) [1961]
Established the rule on legal causation
Hughes v Lord Advocate [1963]
Defendant’s workers left a manhole and Paraffin lamp on road works.
Claimants (children) played with the lamp.
Lamp fell into manhole and exploded, injuring them.
Held: Defendants negligent; harm of the foreseeable kind.
Jolley v Sutton LBC [2000]
Defendant council failed to remove a disused, rotten, and abandoned boat in a council estate.
Claimant and his friend (both aged 14 years) attempted to repair the ship.
While trying to repair the bottom of the boat which they had jacked up, the jack went through the boat which fell on the claimant, causing paraplegia.
Held: Defendant’s negligence had caused foreseeable injury to the claimant.
The "Egg-Shell Skull" Rule
Liability remains for the consequences of negligence even if the claimant was too sensitive or weak and suffered more harm as a result.
This is because the exact harm or the extent of the harm need not be foreseeable.
Dulieu v White [1901]
Kennedy J, at p. 679:
“If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.”
Smith v Leech Brain [1962]
Claimant’s husband was injured at work when liquid metal from welding fell on his lip.
Evidence showed that claimant had latent cancer cells in his lip.
Claimant developed cancer from the wound and died after three years.
Held: since the burn was foreseeable, the death from it was also foreseeable – the defendant must take his victim as they found him.
Robinson v Post Office [1974]
“In our judgment, the principle that a defendant must take the plaintiff as he finds him involves that if a wrongdoer ought reasonably to foresee that as result of his wrongful act the victim may require medical treatment he is, subject to the principle of novus actus interveniens, liable for the consequences of the treatment applied although he could not reasonably foresee those consequences or that they could be serious.”
Novus Actus Interveniens
This might make Claimant’s damage/harm remote and unrecoverable unless:
It was reasonably foreseeable or,
It was a consequence of the defendant’s breach of duty
This is an intervening act that adds to claimant’s damage or injury
Types of Intervention
By the Claimant
By a Third Party
By Act of Nature
Novus Actus Interveniens - Decision Tree
But for the defendant's actions, would the victim have died?
YES
The defendant is not the factual cause of the victim's death.
NO
The defendant is the factual cause of death. Consider legal causation.
Has there been an intervening event?
Act of God/nature
Act of the victim
Act of a 3rd party
Act of Claimant
A claimant breaks the chain of causation if:
He fails to take reasonable care not to aggravate his injury/loss; and
His behaviour was not compelled by the defendant’s breach.
Examples of Claimant's Actions
Suicide if foreseeable or necessitated by D’s negligence
An instinctive act of self-preservation
Act of claimant necessitated by defendant’s breach
McKew v Holland and Hannen and Cubitts [1969]
Claimant injured his back, hips and knees at work due to the negligence of the defendant
Because of the injury, claimant’s knees were prone to giving away.
Despite the injury claimant climbed a flight of steep stairs without handrail or assistance.
When his knees gave way, he jumped down ten steps, fractured his ankle, and suffered permanent disability.
Held: The defendant was not liable for the subsequent injury which was caused by the claimant.
Act of a Third Party
Intervention by a third party may break causation if:
It was not foreseeable or,
It was not a natural consequence of the defendant’s breach of duty.
Examples of Third Party Actions
A Necessary medical intervention that was not grossly negligent, inappropriate, or unusual.
A necessary and foreseeable rescue attempt, even if negligent.
Rouse v Squires [1973]
Defendant caused an accident on a motorway due to negligent driving
Defendant remained liable for the death from a subsequent accident, which was foreseeable.
Due to blockage of the road from the accident, another car hit and killed the claimant who was helping at the scene.
Knightley v Johns [1982]
The police attended an accident scene
A police motorcyclist rode against traffic and cause another accident.
Held: This broke causation in respect of the original accident caused by the defendant.
Act of Nature
A supervening natural event may amount to a novus actus interveniens if: