THE TORT OF NEGLIGENCE - PART II

C)   CAUSALITY AND REMOTENESS OF DAMAGE

In order to justify an action in the tort of negligence, the claimant has to demonstrate not only that the defendant owed them a duty of care, but also that the defendant actually breached that duty of care, causing loss or damage to the claimant.

However, those two steps must be further supported by the claimant showing that the loss or damage suffered was a direct consequence of the breach of duty of care. This final aspect of demonstrating negligence is referred to as causation and the claimant to show that the injury loss or injury sustained was caused by the defendant’s negligence. This process is sometimes referred to as causation in fact. 

However, even where causation is proved, a negligence claim may still fail if the damage caused is held to be too remote. The issue of remoteness is sometimes referred to as causation in law. The test for remoteness is reasonable foresight as stated in The Wagon Mound (1961).

The ‘but for’ test is a way of determining whether the claimant’s loss or damage was caused by the defendant. In order to satisfy the test, the claimant must show that ‘but for’ the defendant’s actions, the damage would not have occurred. If the damage would have occurred irrespective of a breach of duty on the part of the defendant, then the breach is not the cause.

i)                  Single causes

For example, in Barnett v Chelsea and Kensington HMC (1969), a doctor in a hospital casualty department sent a patient home without treating him, telling him to go and see his own doctor. The patient subsequently died from arsenic poisoning. While it was held that the doctor had been negligent in not examining the patient, the evidence indicated that he would have died anyway. Consequently, the doctor’s conduct did not cause his death and he could not be held liable under the tort of negligence.

Also, in Cutler v Vauxhall Motors Ltd (1971), the plaintiff suffered a grazed ankle whilst at work, due to the defendant’s negligence. The graze became ulcerated because of existing varicose veins and the plaintiff had to undergo an immediate operation to remove the veins. It was held that the plaintiff could not recover damages for the operation, because the evidence was that he would have had to undergo the operation within five years anyway, irrespective of the accident at work. 

So, if the same result would have occurred regardless of the breach of duty, then the courts are unlikely to find that the breach caused the injury. This point is further supported by the case of Robinson v Post Office (1974), where a doctor failed to test for an allergic reaction before giving an anti-tetanus injection. However, it was held that the doctor would not be liable for the reaction of the patient, because the test would not have revealed the allergy in time.

ii)               Multiple causes

In relation to the ‘but for’ test, difficulties have arisen where there has been a number of potential causes of the injury or loss. In such a situation, the onus is on the claimant to show that the defendant’s breach was the material contributory cause of his or her injury. Consequently, where there are a number of possible causes, establishing causation may prove difficult, particularly in medical negligence cases. 

In Wilsher v Essex AHA (1988), the plaintiff was born three months premature. He suffered almost total blindness as a result of a condition known as retrolental fibroplasia. It was claimed on behalf of the plaintiff that this was caused by the negligence of the doctor, who had failed to notice that the device for adding oxygen to the blood had been wrongly attached, resulting in an excessive dose of oxygen. However, medical evidence showed at least six potential causes of the plaintiff’s blindness, the majority of which were inherent in premature babies. The House of Lords held that there was insufficient evidence to show which of the six caused the injury to the plaintiff. 

However, the courts on occasion have taken a more flexible approach, as may be seen in Fairchild v Glenhaven Funeral Services Ltd & Others (2002). In this case, the employees concerned had contracted mesothelioma due to a prolonged exposure to asbestos fibres gained during their employment with a number of different employers. It was therefore almost impossible to identify which period of employment was responsible for the employees contracting the disease. As the disease could be generated through exposure to just one fibre of asbestos – although the greater the exposure, the greater the chances of contracting the disease – the House of Lords was prepared to impose liability on all of the employers. It felt that all of the defendants, by failing to take reasonable care, had contributed to the risk. 

The ‘but for’ test cannot solve all questions of factual causation. Indeed, where there has been an omission to act, or an act which does not in itself have physical consequences, it may not be an appropriate test.

Novus actus intervieniens (new acts intervening)

Where there is a break in the chain of causation, the defendant will not be liable for damage caused after the break. The issues are whether the whole sequence of events is the probable consequence of the defendant’s actions and whether it is reasonably foreseeable that these events may happen. This break in the chain is caused by an intervening act and the law recognises that such acts fall into three categories, as follows:

i)                    A natural event

A natural event does not automatically break the chain of causation. If the defendant’s breach has placed the claimant in a position where the natural event can add to that damage, the chain will not be broken unless the natural event was totally unforeseeable. In Carslogie Steamship Co Ltd v Royal Norwegian Government (1952), a ship which was owned by Carslogie had been damaged in a collision caused by the defendant’s negligence. The ship was sent for repair and, on this voyage, suffered extra damage, caused by the severe weather conditions. This resulted in the repairs taking 40 days longer than anticipated. It was held that the bad weather acted as a new intervening act, for which the defendant was not liable. The effect of the new act in this case prevented the plaintiff from recovering compensation for the time that it would have taken to repair the vessel in respect of the collision damage, as the ship would have been out of use in any case, due to the damage caused by the weather.

ii)                  Act of a third party

Where the act of a third party, following the breach of the defendant, causes further damage to the claimant, such an act may be deemed to be a novus actus; the defendant will not then be liable for damage occurring after the third party’s act. In Lamb v Camden LBC (1981), due to the defendant’s negligence, a water main was damaged, causing the plaintiff’s house to be damaged and the house to be vacated until it had been repaired. While the house was empty, squatters moved in and caused further damage to the property. It was held that the defendant was not liable for the squatters’ damage. Although it was a reasonably foreseeable risk, it was not a likely event. Furthermore, it was not the duty of the council to keep the squatters out.

The third party’s act need not be negligent in itself in order to break the chain of causation, although the courts take the view that a negligent act is more likely to break the chain than one that is not negligent, as can be seen in Knightley v Johns (1982).

iii)               Act of the claimant

The action of the claimant may itself break the chain of causation. However, if the act is reasonable and in the ordinary course of things, the event will not break the chain. In McKew v Holland, Hannen and Cubbitts (Scotland) Ltd (1969), the plaintiff was injured at work. As a result, his leg sometimes gave way without warning. He was coming downstairs when his leg gave way, so he jumped in order to avoid falling head first and badly injured his ankle. It was held that the defendants were not liable for this additional injury. The plaintiff had not acted reasonably in attempting to negotiate the stairs without assistance and his actions amounted to a novus actus interveniens.