Causation and Remoteness of Damage

How is it

Measured?

Causation in measured in 2 ways:

1. Causation in fact - established by applying the but for test

2. Causation in law - established by determining if damage is sufficiently proximate in law to hold the person responsible

Causation in Fact

The But For Test

C would not have suffered the damage BUT FOR the acts/omissions of D

Barnett v Chelsea Hospital Management - Nightwatchman died from arsenic poisoning after being refused treatment in A&E. Although clear breach of duty the hospital weren't liable as it was shown the man would have died even with treatment

There can be problems where courts can't pinpoint a precise cause...

McGhee v National Coal Board

C worked in brick kiln, a possible cause of his dermatitis. Employers held liable for increasing risk of disease by not providing adequate washing facilities, even though it couldn't be proved it would have prevented it. Their actions led to a material increase in risk.

But For Test

Application

Wilsher v Essex Area HA - when doctor administered excess oxygen to a baby who was later found to be nearly blind, HL held the hospital were not liable as it was only 1 of 6 possible causes

AO2 - harsh decision

Multiple

Causes

If damage is caused my multiple causes acting together, but for test doesn't provide an absolute test

Baker v Willoughby - C knocked down by car & suffered stuff leg so forced to take work at reduced income. C then shot in same leg & needed amputation. HL still held driver liable as loss of earnings permanaent and amputation hadn't altered this.

AO2 - policy decision? injustice if C not allowed compensation

BUT Jobling - C slipped at work causing injuries meaning he lost 50% of earning capacity. When he later developed back disorder unrelated to the fall, D was only liable for damages up to onset of the condition

Multiple

Causes

Where there are a number of Ds all contributing, a modified approach will be taken

Fairchild - 3 joined appeals where Cs had lung disease from asestos with a number of different employers. HL held employers had duty of care to take reasonable care to protect employees so imposed liability on ALL employers.

BUT

Barker v Corus - Barker died from lung disease contracted after exposed to asbestos whilst employes by two different people and when self-employed. HL held D could only be liable for share of damages equal to share of risk, so damages reduced accordingly.

Loss of

Chance

There is often an issue is some cases (mostly medical) where C has lost the chance (of % of chance) of recovery.

Hotson v East Berkshire HA - Young boy fractured hip and hopsital negligently delayed correct diagnosis. He later developed deformity but it was shown he would have had 75% chance of developing it even without failure to diagnose. CA awarded 25% of the damages. HA apealed to HL who would not consider slim chance of recovery as an issue so appeal was successful.

Gregg v Scott - Lump under C's arm wrongly diagnosed and 9 months later turned out to be cancer, by which time it had spread considerably. If he had been diagnosed first time he would have had 42% chance of survival but delay reduced this to 25%. HL on 3:2 split decision followed hotson and refused to award C compensation.

Novus Actus Interveniens

(Other Acts Intervening)

Chain of causation can be broken by a subsequent intervening act and if courts find this is the true cause of the damage, D may not be liable

Kirkham v Chief Constable of Greater Manchester - Police transporting prisoner failed to inform authorities he was known suicide risk and the prisoner committed suicide. Plea of NAI failed as he had clinical depression and not in full control.

Intervening Act of C...

McKew - C suffered injury to his leg leaving it seriously weakened and when he tried to climb steep steps without aid he fell and suffered more serious injury. D not liable for fall as C's act was NAI

Wieland v Cyril Lord Carpets - C suffered injury following D's negligence and had to wear neck brace. She wore bifocals and wearing the brace restricted head movement and imapired use of glasses. When she fell down flight of stairs and suffered futher injuries D was still liable as it was said the circumstances were forseeable.

Intervening Act

of Nature

A plea that an act of nature has broken chain of causation will rarely suceed, except where D can show the act of nature is unforseeable

Carslogie Steamship Co - C's ship damaged in collision that was D's fault. A delay in repairs caused the ship to embark on journey it would not have otherwise taken and suffered further damage in a storm. Argument D should be liable failed as there was a genuine break in chain of causation.

AO2 - generous decision as ship wouldn't have taken journey if it hadn't been damaged in first place.

Intervening Act

of Third Party

D must show that the act of the third party ws negligent and is of such magnitude it does break the chain of causation

Knightley v Johns - D drove negligently and crashed, blocking a tunnel. Police officer in charge negligently sent another officer against flow of traffic to block off traffic at other end. D not liable for injuries sustained as they were fault of police officer in charge.

Lamb v Camden Council - Council negligently broke water mian causing water to damage C's house so they had to move out. While they wereaway squatters moved in an caused further damage. Council not liable as actions of squatters were NAI and weren't forsseable.

Ward v Cannock Council - Council negligently allowed house to fall into general disrepair. Hosue adjoined C's house and when they were forced to move out, thieves/vandals broke in and damaged it. Vandals almost inevitable and no NAI so council liable.

Causation in Law &

Remoteness of Damage

Causation in law - otherwise known as remoteness of damage. The court will not want D to be infinitely liable for damage so will impose a cut off point.

Original test was C could recover losses that were a direct consequence of D's act, no matter how forseeable. This came from...

Re Polemis - 'if the actwould or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act.'

AO2 - this test was criticised for its failure to distinguish between degrees of negligence and for being to broad.

 The New

Test

The test was criticised for its failure to distinguish between degrees of negligence and for being too broad

The Wagon Mount (No1) - a new test was introduced to be liability only for damage that was a reasonably forseeable consequence

Applying

 the test

It is not necessary for the full extent of the damage to be forseen...

Bradford v Robinson Rentals - C suffered frostbite when sent on a long journey by his employers. D's argued the damage was too remote and unforseeable but court rejected this view as it was forseeable a cold-related illness was a possibility

D need only be aware of possibility of damage resulting...

Hughes v Lord Advocate - D was liable as the damage was a forseeable consequence of leaving the scene unattended so the fact the injuries came about in an unforseeable way didn't mean the damage was too remote.

Thin skull rule will also apply...

Smith v Leech Brain & Co -  an employee died of cancer in his lip which developed from a burn suffered following his employer's negligence. harm from the burn was unforseeable but death from cancer wasn't, but D still liable.

Applying

the Test

The test and personal injury...

Jolly v London Borough of Sutton - 14 year old boy injured on abandoned boat the council failed to move. HL held the boat was dangerous and it was forseeable children might be injured when coming into contact with it.

The test and property damage...

The Wagon Mound (No2) - Held that provided the type of damage was forseeable, liability must result and the degree of likelihood is irrelevant