cls 106- lesson 2

LESSON TWO - NEGLIGENCE : CAUSATION AND REMOTENESS OF DAMAGE

2012

2.0 Introduction

Negligence is one of those torts in which damages must be proved. Once a breach of duty

has been established, the claimant must therefore also show that the breach has resulted in

injury of damage( the causation issue) and that the injury or damage is sufficiently close

connected to the breach( the remoteness issue).

Causation and remoteness are the essential links between the breach of the obligation

imposed by law and the damage. It is commonly said that causation is essentially a factual

and logical question, but that remoteness is a legal question, based on policy consideration

about the appropriate extent of a defendant’s liability. In broad terms this is true, but Lord

Hoffmann has recently stated that ‘ the rules laying down casual requirements are ….

Creatures of the law’ and that ‘ it is possible to explain their content on the grounds of

fairness and justice in exactly the same way as the other condition of liability’

The rule for assessing remoteness of damage often operate to limit the overall extent of the

defendant’s liability to the claimant. Where a further event occurs after the breach of duty

which contributes to the damage , this later even may amount to a novus actus interveniens.

It breaks the chain of causation and renders any new damage too remote from the

defendant’s breach of duty.

2.1 Causation

Causation is relevant to all torts in which proof of damage is essential. Ordinarily the

claimant must prove that the damage suffered was caused by the defendant’s breach of

duty and that it was not too remote. The former element is often referred to as causation in

fact and the latter as causation in law. Causation in fact is concerned with the question of

whether as a matter of fact the damage was caused by the breach of duty. If a person is

found dead on a railway crossing having been run over by a train, and a train has failed to

sound a warning before using the crossing, all the elements of negligence are present. The

railway company owe a duty of care to persons using the crossing. There is a breach of

duty by not sounding a warning. The claimant has suffered damage. But there is no

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negligence action until it is established that the train that ran over the claimant was the

one that failed to sound a warning

2.2 The Basic Rule ( the “ But for” test]

The basic rule may be stated positively or negatively. If the damage would still have

occurred, even if the defendant had not broken the duty of care, then the breach did not

cause the damage. If the damage would not have occurred but for the defendant’s breach

of suty, then the breach of duty os a cause for the damage. For this reason , the basic rule is

often reffered to as the ‘ but for test’.

Its main purpose is to exclude things that have no bearing on the damage. It is for the

claimant to show that the breach of duty was the cause of the damage, and not for the

defendant to show that the breach of duty was not the cause of the damage.

It is sufficient to show that on a balance of probabilities the breach was the cause of the

damage, or that it is more likely than not that the breach was a cause of the damage. In

principle it is “an all or nothing question”. If it is more probable than not that negligently

administered drugs caused the claimant’s deafness, then the claimant must recover in full

for the deafness. If it is more probable than not, even if it is a possibility, then the claimant

recovers nothing.

In many cases causation does not pose any problem , for instance when one is guilt of

commission of some positive wrongs , like overtaking a vehicle at a blind corner or

administering the wrong dosage of a drug. Usually it is would be very clear whether or not

the act has caused the damage. There is likely to be more difficulty in those cases where the

defendant’s breach of duty consists of a failure to do something that should have been

done. Here it is necessary to speculate about what would have happened if the defendant

had not been quilty of this failure. There are several different situations to consider:

(i) There may be doubt about the natural course of events would have been if the

defendant had behaved properly.

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In Barnett v Chelsea and Kensington Hospital Management Committee1 , the

claimant’s husband complained of vomiting pain when he attended the

defendant’s hospital. No examination was ordered and the was referred to his

own doctor. Five hours later he died of arsenic poisoning. The defendant was in

breach of duty by not examining him, but test showed that he would have died

even if the doctor had examined him. Diagnosis and treatment could not have

been effective in preventing the death. As the deceased would have died

regardless of the breach of duty, that breach was not a cause of his death.

(ii) There may be doubt about how the defendant would subsequently have

behaved if he had done what he should have done in performance of the duty.

( omission to act).

In Bolitho v City and Hackney Health Authority 2

A young child, who had a history of respiratory problems, was in hospital under

observation. The child went through two worrying episodes of difficulty in

breathing which were both observed by nursing staff, an the doctor on duty was

asked to attend. On both occasion the child appeared to recover quickly and the

doctor did not attend to him until a third, and subsequently fatal, episode

occurred. In this last episode the respiratory collapse wa total and the child

suffered brain damage. As a matter of fact it was found that a procedure to

provide an airway(intubation) would have ensured that the last episode was not

fatal if it had been done before the last attack started. The question arose as to

whether the doctor would or should have intubated if she had attended to the

child. The evidence was that the particular doctor would not have intubated had

this was supported by a respectable body of medical opinion. Therefore , her

negligent failure to attend to the boy did not cause his death.

(iii) There may be doubt about how the claimant would subsequently have behaved if

the defendant had done what should have been done.

The defendant doctor may have failed to warn the patient about the risk of

treatment: would the patient have decided to have the treatment anyway? If so,

1 [1969] 1 QB 4282? [1998] AC 232

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the failure to warn cannot be a cause of the damage if one of the risk occurs. The

defendant employers may have failed to provide safety equipment for their

employee: would the deceased employee have used it if it had been provided? If

not, then the failure to provide it was not the cause of the injuries. See

McWilliams v Sir William Arrol3

In Chester v Afshar,4 where a surgeon had advised the claimant to undergo

surgery but in breach of duty had failed to advise her of the risk. The claimant

did not show that she would probably never have had the operation, but she

did show that she would have taken her time and consulted her friends and

therefore would not have had the actual operation. On the particular day that she

did have it. The house of Lord held that she had establish that the breach of duty

was a cause of her injury.

In cases (ii) and (iii) it is important to scrutinize the evidence by the defendant and ( If living)

the claimant because their view of how they would have behaved may be colored by what

has now happened. It may seem harsh that the claimant in McWilliams had to prove that

the deceased would have worn the safety harness if it had been provided, but it should be

noted that the evidence was in fact very strongly to the effect that it was highly unlikely that

he would have done so.

2.3 Multiple Causes

In case of traumatic harm, such as injuries to a pedestrian caused by a car, the mere present

of the car on the road and the evidence of impact between car and the human being can be

treated as proof of the pedestrian’s injuries. The claimant faces greater difficulty when

there are multiple possible causes of the damage sustained.

Suppose that David and Daniel Acting independently at the same moment shoot Conrad, who

dies instantly: either shot would have been fatal. Logically , each assailant could say that he

was not the cause of death, because, even if he had not been there , the other shot would still

have killed Conrad. On this reasoning neither defendants would be liable. Such a result

3 [1962] 1 All ER 6234 [2004] UKHL 41 [2005] 1 AC 134

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would be absurd. Inn such a case the court would hold that both David and Daniel were

liable, leaving them to contest the matter between themselves.

That situation is of course not implausible. What can and does occur is that two successive

action may independently bring about the same damage. This is associated with two

important decisions of the House of Lords.

Suppose in January Edward who is a professional sporting star with a large income, is injured

in a road accident and loses both legs. Six months later in an entirely separate and

unconnected event someone throws acid in his face and blinds him. Three months after

that, you meet him and say, Hullo, Edward. Are you still playing football?’ He replies. ‘ No, I

am not, because………’ How would you finish the sentence for him? Is it because he has no

legs , or because he is blind?

Would it make a difference to the way in which you would finish the sentence if either

Edward’s blindness or the loss of his legs was the results of natural disease?

In McGhee v National Coal Board [1973] the claimant contracted dermatitis after cleaning

out the defendant’s brick kilns. No washing facilities were provided and the claimant had to

return home unwashed. The claimant was unable to show that washing would have

prevented the dermatitis, but was able to show that the absence of washing facilities

materially increased the risk of skin problems developing. The defendant’s negligence in not

providing washing facilities was held to be a cause of the claimant dermatitis.

The McGhee principle has been criticized because it appears to suggest “ that the defendant

was liable to a claimant where his conduct where his conduct enhanced an existing risk that

injury would ensure notwithstanding either that the conduct in question was merely one of

several possible risk factors any one of which might have caused the injury, or that existence

and extent of the contribution made by the defendant’s breach of duty to the claimant’s

injury could not be ascertained.”

Where there are a number of possible causes , one of which is the defendant’s breach of

duty, the onus of proof lies on the claimant to establish that the breach of duty caused the

harm.

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In Wilsher v Essex Area Health Authority [1988], the defendant admitted a breach of duty in

treating the claimant , who went blind. The infant claimant was born prematurely and was

cared for in a special baby unit. He was given excess oxygen and was later found to be

suffering from a condition which resulted in blindness. This particularly incurable condition

had occurred in other premature babies who had suffered from similar additional problems

to those which afflicted the claimant but who were not given excess oxygen. There were a

number of possible causes of the claimants’ blindness and the House of Lords Held that the

claimant had to prove on the balance of probabilities that the defendant’s breach of duty

was the cause.

Fairchild v Glenhaven [2002] 3 WLR 89 House of Lords

This was a conjoined appeal involving three claimants who contracted mesothelioma, a form

of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single

fibre of asbestos. The condition does not get worse the greater the exposure. Once the fibre

has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour

which can then take 10 years to kill. It will be only the last 1-2 years where a person may

experience symptoms. By this time it is too late to treat. Each of the claimants had been

exposed to asbestos by a number of different employers. They were unable to demonstrate,

and medical science was unable to detect, which employer exposed each of them to the one

fatal fibre.

Held:

If the claimants could demonstrate that one employer had materially increased the risk of

contracting mesothelioma they were entitled to claim full compensation from that one

employer.

Barker v Saint Gobain Pipelines [2004] EWCA Civ 545 Court of Apeal

Mr Barker contracted mesothelioma from exposure to asbestos. He worked for the

defendant between 1960-68. He worked for a different employer for 6 weeks where he was

also exposed to asbestos. After 1968 he became self-employed as a plasterer for 20 years.

Whilst self employed he was exposed to asbestos on three occasions. The defendant argued

that his exposure to asbestos whilst self-employed prevented him from being able to rely on

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the causation principle established in Fairchild v Glenhaven whereby the claimant is able to

demonstrate that the defendant's breach of duty materially increased the risk of contracting

the disease.

Held:

Fairchild did apply and the claimant was thus successful in establishing causation. His

damages would be reduced under the Law Reform (Contributory Negligence) Act 1945 to

reflect the periods where he exposed himself to risk during the course of his self-

employment.

Please read the following cases and write short notes on the same

Barker v Corus [2006]

Sienkiewicz v Greif [2011]

2.4 Multiple Successive Causes

Where the causes are successive and the breach of duty of the second defendant causes the

same type of damage as that of the first defendant, the “ but for” test will be applied in the

action against the second defendant.

In Performance Car Ltd v Abraham[1962], the second defendant car negligently collided

with the claimants car. The claimants claimed $ 75 as the cost of respray, but, at the time of

the accident , the car already required a re-spray as a result of a collision with the first

defendant. The second defendant was not liable, as the need for the re-spray did not arise

from his breach of duty.

The practice in this type of the cases is for the court to determine and decide the extent to

which the first defendant is legally responsible for the consequence of the second event.

In Webb v Barclays Bank plc[2001]. The claimant was already suffering from polio when

she fell whilst on her employer’s premises. A doctor employed by the second defendant

advised that the affected leg should be amputated, to which the claimant agreed. The trial

judge held that the hospital should pay 40% contribution for the harm suffered by the

claimant on the basis that the doctor was negligent in failing to consider alternative

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treatments and present an option to her. The court of Appeal did not disturb this

assessment and considered that the intervening negligence of the doctor did not break

the chain of causation, which went back to the employer’s negligence, and it would not be

just and reasonable to absolve the employer ‘s completely for its, greater , share of the

blame. The claimant was already vulnerable by virtue of the polio and it was foreseeable

that medical attention would be needed in the event of any accident in which she was

involved.

If the second defendant has caused damage of the same type to the claimant and the first

defendant is sued, a different approach is taken.

In Baker v Willoughby[1970], the claimant suffered injuries to his left leg as a result of the

defendants negligence. Before the trial, the claimant was shot in the left leg during an

armed robbery and had to have his left leg amputated. Even if the robbers could have been

identified and sued to judgment, they would only have been liable for depriving the

claimant of a damaged leg. The house of Lords held the defendant liable for the ongoing

disability caused by their earlier negligence, irrespective of the fact that the robbers had

deprived the claimant of the leg in question . Lord Pearson commented:-

“ the supervening event has not made the appellant less lame nor less disabled not less

deprived of amenities. It has not shortened the period over which he will be suffering. It has

made him more lame , more disabled, more deprived of amenities. He should not have less

damages through being worse off than might be expected.”

But where the defendants breach was followed by a natural event , a different approach

was followed.

In Jobbling v Associated Dairies Lts[1982], the claimant’s back was injured owing to the

defendants negligence. His earning capacity was reduced by 50%. Before the trial he was

found to have a spinal disease unrelated to the back injury, which rendered him totally

unfit for work. The Onset of this disease is seen as a vicissitude of life, for which no action

in tort arises. The “but for” test was applied to restrict the defendant’s liability for loss of

earnings to the period before the onset of the disease.

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Whilst Baker v Willoughby was accepted on its facts, the two decision of the house of Lords

remain difficult to reconcile .

See also Rahman v Arearose Ltd [2000]

2.5 Multiple causes - concurrent

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 ie 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 circumvent the strict approach.

Bonnington Castings Ltd v Wardlaw [1956] AC 613 House of Lords

The claimant contracted pneumoconiosis by inhaling air which contained minute

particles of silica during the course of his employment. The defendant was in breach of a

statutory duty in failing to provide an extractor fan. Had they installed an extractor fan the

number of particles of silica that the claimant was exposed to would have been reduced,

however, there would still be some particles present. There were thus two possible causes:

the guilty dust, which should not have been in the working environment and the innocent

dust, which would have been present in any event. The trial judge held that where the duty

arose by statute then it was for the defendant to show that his breach of duty (the guilty

dust) did not cause the disease. As the defendant was unable to do this they were liable. The

defendant appealed contending the burden of proof rests on the claimant.

Held:

The burden of proof remains on the claimant. However, the claimant only had to

demonstrate that the guilty dust had made a material contribution to the disease. He did not

have to demonstrate on the balance of probabilities that the guilty dust was the sole cause

of the disease.

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2.6 Novus actus interveniens (New intervening act)

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

action was by a third party or an act of the claimant

The defendant ‘s breach of duty may be the cause of the claimant’s damage in the sense

that it satisfies the “ but for” test, but some other factual cause intervening after the

breach may be regarded as the sole cause of all or part of the claimants damage. The

expression novus actus interveniens is often used to describe the “ second rule” cause

Illustration

If A negligently Knocks down B, who is subsequently run over by C driving the car behind, C’s

action is unlikely to break the chain of causation , as this is a risk to which A’s negligence

exposed B. But what would be the position if C has then stolen B’s wallet?

A novus actus interveniens may take one of the four forms

(i) It may be a natural event

The courts are reluctant to find that an intervening natural event breaks the

chain of causation because the claimant has no-one else to sue if the defendant

is not held to be responsible , but where the natural event causes the damage

simply because the defendants breach of duty placed the claimant or his

property in a position where that damage can be caused , the chain of causation

is broken, unless the natural event was likely to happen. If the claimant is injured

by the defendant’s negligence and then suffers further harm when the

ambulance taking him to hospital is struck by a falling tree, then the chain of

causation is broken , but where the defendant negligently starts a fire and strong

winds fan the blaze, causing it to spread to the claimant’s property, the winds do

not break the chain of causation.

(ii) Novus actus interveniens - Act of 3rd party

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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 in tact. 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:

In Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Court of Appeal

Mr Ward and Mr Wileman were employed by the defendant, Hopkins. They had been called

to clean out a well. The well was 50ft deep and 6ft wide. Hopkins tested the atmosphere in

the well by putting a lighted candle down the well. The candle returned still lighted and thus

he concluded the atmosphere was fine. He and Ward then took a petrol motored pump

down the well started it up and left the well leaving the engine running on its own. The

motor ran for 1 1/2 hours before it stopped of its own accord. Before leaving the site Mr

Hopkins told Mr Ward and Mr Wileman not to go down the well until the fumes have

cleared. The following morning Hopkins again told the two not to go down the well until he

had arrived on the site. In breach of these orders Mr. Ward went down the well and was

overcome by fumes. Mr Wileman called for assistance and went down the well after him.

The claimant, Dr Baker, then arrived on the scene. He too went into the well to seek to

rescue the two. Unfortunately all three died of carbon monoxide poisoning. The defendant

contended that the act of the doctor acted as a novus actus interveniens and sought to

invoke volenti non fit injuria.

Held:

The doctors actions were not a novus actus interveniens. It was foreseeable that if a

defendant by his negligence places another in peril that someone may come to his rescue

and the doctor's actions were not unreasonable in the circumstances. The Claimant's action

was not defeated by volenti non fit injuria. He was and as such his actions did not count as

freely and voluntarily accepting the risk.

Home Office v Dorset Yacht Co Ltd [1970] AC 1004 House of Lords

Some young offenders were doing some supervised work on Brown Sea Island under the

Borstal regime. One night the Borstal officers retired for the evening leaving the boys

unsupervised. Seven of them escaped and stole a boat which collided with a Yacht owned by

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the claimant.

Held:

The Home Office owed a duty of care for their omission as they were in a position of control

over the 3rd party who caused the damage and it was foreseeable that harm would result

from their inaction.

The following case suggests a high degree of foresight is required

Lamb v Camden LBC [1981] 2 All ER 408 Court of Appeal

The defendant council negligently fractured a water pipe outside the claimant's house. This

caused extensive damage and the property had to be vacated. One year later the council had

not undertaken the repairs. Squatters had also moved in and caused further damage. The

claimant arranged for repairs to be done herself and submitted a bill to the council for the

repairs and damage caused by the squatters.

Held:

The local authority was not liable for the acts of the squatters. It was not foreseeable that

squatters would move into an empty house in Camden and cause damage despite the

prevalence of such behaviour in Camden at the time.

(iii) Where the act of the third party was negligent, this is more likely to break the

chain of causation:

Knightley v Johns & Ors [1982] 1 WLR 349 Court of Appeal

As a result of Mr John's negligent driving his car overturned in a tunnel. Two police officers

on motorcycles arrived at the scene. The senior officer instructed them both to ride their

motorcycles to the other side of the tunnel and close the entrance to the tunnel as he had

forgotten to close it earlier. They took the decision of driving on through the tunnel on the

wrong side of the road on a blind bend rather than going the long way round. Unfortunately

one of the officers, Mr Knightly, was involved in a head on collision with an oncoming vehicle

driven by Mr Cotton and sustained serious injuries. He brought an action against Mr Cotton,

Mr John, the senior officer and the Chief Constable of West Midlands. The main contentious

point was whether Mr. John remained liable or whether the actions of the other defendant's

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and the claimant amounted to a novus actus interveniens.

Held:

The senior officer's instructions and failure to close the entrance to the tunnel were

negligent and broke the chain of causation. The claimant's decision in going through the

tunnel was not negligent. Thus the claimant was entitled to full damages from the senior

officer and Mr John was not liable.

(iv) Novus actus interveniens - 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 in tact 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:

McKew v Holland [1969] 3 All ER 1621

The claimant sustained an injury at work due to his employer's breach of duty. He strained

his back and hips and his leg was prone to giving way. Whilst in this state he attempted to

climb down a steep concrete staircase without a handrail unaided. He got part way down

and felt his leg give way so he jumped 10 steps to the bottom. He suffered a fractured right

ankle and was also left with a permanent disability. The defendant accepted liability for the

injury sustained during his employment but disputed liability for the second injuries resulting

from the claimant's action in jumping down the stairs.

Held:

The claimant's action amounted to a novus actus interveniens because his action in

attempting to climb the steps unaided knowing that his leg might give way was

unreasonable. The defendant was therefore not liable for the injuries resulting from the

incident on the stairs.

Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 House of Lords

Martin Lynch committed suicide whilst in a police cell. He had attempted suicide earlier that

day in the cells at the magistrates. He had also attempted suicide on previous occasions. He

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had been seen by a doctor at the police station on arrival who reported that he was not

schizophrenic or depressed but was a suicide risk. The custody officer checked him at 1.57

pm and left the hatch open. He was found at 2.05 pm having used his shirt as a ligature

secured by the open hatch. He was unable to be resuscitated and died a week later. The

defendant argued that as Lynch was of sound mind his voluntary and informed act of suicide

broke the chain of causation.

Held:

The act of suicide was the very thing that the police were under a duty to prevent to treat

this as a novus actus interveniens would deprive the duty of any substance. Therefore the

defendant was liable, however damages were reduced by 50% under the Law Reform

(Contributory Negligence) Act 1945.

2.7 Remoteness of damage

Illustration

Carol travels to work in Nairobi: the only convinient way is by train from har local station in

syokimau. One day she finds that a train has been derailed outside the station and blocked

the line. She therefore has to returnn home. During rhe morning an intruder breaks in and

shoots her in the leg. It woul be natural for her to say , ‘ I was absent from work yesterday

because my train was derailed.’ But it would not be natural for her to say, ‘ I was shot in the

leg yesterday because my train was derailed.’ Yet it is true that, if there had been no

derailment, she would not have been at home and would not have been shot. There is

however a feeling that the link between the shooting and the derailment is not close enough.

The shooting is too remote a consequences of the derailement.

Even where the defendant ‘s breach of duty is a cause in fact of the claimant’s damage,

damages may be denied for some or all of the claimant’s injuries on the grounds that the

breach of duty was not the legal cause of that damage. In this case the damage in question

is said to be too remote. He remoeness issue limits the extent of the defendant’s liability.

Remoteness of damage relates to the requirement that the damage must be of a

foreseeable type. In negligence claims, once the claimant has established that the defendant

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owes them a duty of care and is in breach of that duty which has caused damage, they must

also demonstrate that the damage was not too remote. Remoteness of damage must also be

applied to claims under the Occupiers Liability Acts and also to nuisance claims.

Remoteness of damage is often viewed as an additional mechanism of controlling tortious

liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all

losses which were a direct consequence of the defendant's breach of duty:

Re Polemis & Furness Withy & Company Ltd. [1921] 3 KB 560

Some Stevedores carelessly dropped a plank of wood into the hold of a ship. The plank

struck something as it was falling which caused a spark. The spark was ignited by petrol

vapours resulting in the destruction of the ship. The arbitrator held that the causing of the

spark could not have been anticipated and therefore no liability arose. The claimant

appealed.

Held:

There was no requirement that the damage was foreseeable. The defendant was liable for

all the direct consequences of their action.

NB This was overruled in Wagon Mound No 1

This was largely considered unfair as a defendant could be liable for damage which was not

foreseeable and therefore could not take steps to prevent it. The direct consequence test

was overruled in the Wagon Mound no 1 and replaced with a new test for deciding if

damages are too remote:

The Wagon Mound no 1 [1961] AC 388 House of Lords

The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour.

Some cotton debris became embroiled in the oil and sparks from some welding works

ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf.

Held:

Re Polemis should no longer be regarded as good law. A test of remoteness of damage was

substituted for the direct consequence test. The test is whether the damage is of a kind that

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was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the

full extent of the damage, no matter whether the extent of damage was foreseeable.

Following the Wagon Mound no 1 the test for remoteness of damage is that damage must

be of a kind which was foreseeable. Once damage is of a kind that is foreseeable the

defendant is liable for the full extent of the damage no matter whether the extent of the

damage is foreseeable.

The Wagon Mound test was considered and applied in:

Hughes v Lord Advocate [1963] AC 837 House of Lords

Two boys aged 8 and 10 went exploring an unattended man hole. The man hole had been

left by workmen taking a break. It was surrounded by a tent and some paraffin lamps were

left to warn road users of the danger. The boys took a lamp down the hole. One of them

dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns.

Held:

The damage was not too remote it was foreseeable that the boys may suffer a burn from the

lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the

type of damage being foreseeable.

Doughty v Turner Manufacturing Company [1964] 1 QB 518

An asbestos lid was accidentally knocked into a cauldron of molten liquid. A few moments

later an explosion occurred. The claimant was standing close by and suffered burns from the

explosion. The explosion occurred as a result of the asbestos reacting with the chemicals in

the liquid in the high temperature. At the time of the incident it was not known that the

asbestos could react in that way.

Held:

The damage was too remote. It was not foreseeable that an explosion would occur. Whilst it

may be foreseeable the lid may have caused a splash resulting in a scold, it was not

foreseeable that an explosion would occur resulting in burns.

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There has been some confusion as to whether for remoteness of damage, in addition to

being damage of a type which is foreseeable, the damage must occur in a foreseeable

manner. Hughes v Lord Advocate suggests not but see:

Tremain v Pike [1969] 1 WLR 1556

The farm labourer contracted leptosporosis from handling materials on which rats had

urinated.

Held:

The defendant was not liable. It was not known at the time that leptosporosis could be

transmitted in this way. Whilst it was foreseeable he may contract the disease by a rat bite

the way he contracted the disease was not foreseeable.

Jebson v Ministry of Defence [2000] EWCA Civ 198 Court of Appeal

The claimant, a soldier, suffered severe injuries after a night out drinking organised by the

MOD. The claimant was transported with 19 other soldiers in the back of an army vehicle

with a canvass roof. On the return journey the claimant and other soldiers were very drunk.

The senior officer travelled in the front of the vehicle and was unable to see what was going

on in the back of the vehicle. The claimant climbed on to the tailgate and attempted to climb

on to the roof. He fell and was struck by a lorry. The trial judge held that whilst it was

foreseeable that an injury may occur by high spirits and stumbling inside the vehicle it was

not foreseeable the claimant would attempt to climb on the roof and therefore the damage

was too remote as it had not occurred in a foreseeable manner.

Held:

It was foreseeable that injury (whether slight or serious) would occur as a result of the

drunken and rowdy behaviour of the passengers, including the danger that someone would

fall from the vehicle as a result, such wider risk being apt to include within its description the

accident which actually happened.

Jolley v Sutton [2000] 1 WLR 1082

Two 14 year old boys found an abandoned boat on land owned by the council and decided

to do it up. The boat was in a thoroughly rotten condition and represented a danger. The

council had stuck a notice on the boat warning not to touch the boat and that if the owner

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did not claim the boat within 7 days it would be taken away. The council never took it away.

The boys had been working on the boat for 6-7 weeks when one of them suffered severe

spinal injuries, resulting in paraplegia, when the boat fell on top of him. The boys had jacked

the boat up to work on the underside and the jack went through the rotten wood. The

claimant brought an action under the Occupiers Liability Act 1984. The trial judge found for

the claimant. The Court of Appeal reversed the decision, holding that whilst it was

foreseeable that younger children may play on the boat and suffer an injury by falling

through the rotten wood, it was not foreseeable that older boys would try to do the boat up.

The claimant appealed.

House of Lords held:

The claimant's appeal was allowed. The risk was that children would "meddle with the boat

at the risk of some physical injury" The actual injury fell within that description.

Lord Steyn:

"The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitively answered by either The Wagon Mound (No.1) or Hughes v. Lord Advocate . It requires determination in the context of an intense focus on the circumstances of each case."

The Egg shell skull rule or The “ Thin skull” rule.

A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This means a

defendant must take their victim as they find them. Ie if the victim is particularly vulnerable

or has a pre-existing condition resulting in them suffering greater injury than would be

expected in an ordinary person, the defendant remains responsible for the full extent of the

injury:

Smith v Leech Brain [1962] 2 QB 405

A negligent inflicted burn on the lips caused an employee to develop cancer. The employee

had a pre- malignant condition giving him a predisposition to develop the disease. The

defendant were liable for the damage resulting from the claimant’s death even though

death itself was not foreseable.

It is clear that this rule survives The “Wagon Mound” and will extend to situations where

negligently inflicted injury is exacerbated by medicaal treatment to which the claimant is

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allergic, as in Robinson v Post Office [1974]. The rule also applies in nervous shock cases.

See Page V Smith [1995]

Page v Smith [1996] 1 AC 155 House of Lords

The claimant had suffered from ME over a period of time and was in recovery when he was

involved in a minor car accident due to the defendant's negligence. The claimant was not

physically injured in the collision but the incident triggered his ME and had become chronic

and permanent so that he was unable to return to his job as a teacher. He was successful at

his trial and awarded £162,000 in damages.

Held:

Provided some kind of personal injury was foreseeable it did not matter whether the injury

was physical or psychiatric. There was thus no need to establish that psychiatric injury was

foreseeable. Also the fact that an ordinary person would not have suffered the injury

incurred by the claimant was irrelevant as the defendant must take his victim as he finds him

under the thin skull rule.

Summary

The standard approach to determining causation between breach of duty and

damage is the “ but for” test- but for the defendant’s negligence, would the claimant

have suffered the damage?

Where there are several possible causes, the burden lies on the claimant to prove

on the balance of probabilities that it was the defendant’s act which caused the

harm.

In certain limited circumstances the law might allow that where the claimant cannot

prove which of several event caused the damage, it will be sufficient to shoe that

the behaviour of the defendant materially increased the risk of harm.

The law is reluctant to compensate for “ loss of chance” of recovery in physical injury

cases. If the claimant cannot establish that the defendant’s negligent act was more

that 50 per cent likely to have, caussed the harm, he will receive no damages at all.

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Where there are multiple successive causes the court will apply the ‘ but for’ test to

each potential defendant or each potential cause.

The negligent or deliberate act of a third person might break the chain of causation

between the defendant’s act and the damage. Whether the defendant will be liable

for the act of the third party will depend on foreseeability of the act of the third

party. Where the act of the third party is a deliberate act, the court will also look at

the degree of control the defendant had over the third party.

The test of remoteness in most torts is a test of a reasonable foreseeability; what

damage should a reasonable person in the position of the defendant have foreseen

as a result of his negligent act?

The test of remoteness for some old torts, such as tresspass, is the “ direct

consequences” test: the defendant is liable for all the direct consequences of his

act.

Where the claimant suffers extra, unforeseeable damage because of a particular

sensitivity to harm on the part of the claimant, the “ thin skull” rule will apply- the

defendant must take the victim as he finds him.

Issues of policy will play a part in the determination of remoteness of damage and,

increasingly, policy has begun to determine the approach to factual causation.

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LAW OF TORT

cls 106- lesson 2

Documents

causation causation

injury of damage

defendants breach of

new damage

proof of damage

breach of duty os

remoteness of damage

defendants breach of