Causation

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Having proved the existence of a duty of care and that the duty has been breached, the claimant must then prove causation - the direct link between the defendant’s negligence and the claimant’s loss. This concerns the legal tests of remoteness and foreseeability.

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The basic factual test for establishing causation is the "but-for" test in which the defendant will be liable only if the claimant’s damage would not have occurred "but for" his negligence. The defendant will not be liable if the damage would, or could on the balance of probabilities, have occurred regardless of his or her negligence. In Barnett v Chelsea Kensington Hospital, it was held that based on the ‘but for’ test, even if the deceased had been examined and admitted for treatment, there was still little or no chance that he would have survived. In McWilliams v Sir William Arrol & Co Ltd, the employers were not liable for the employee’s injury as it was held that even if safety harnesses were provided, they would have been worn. In Hoston v East Berks AHA, a 13-year-old boy who fell out of a tree was incorrectly diagnosed which led to the development of permanent disability. However, the hospital was not liable on the balance of probabilities that the defendant's breach of duty had caused the necrosis, as there was a 75% chance that it was caused by the fall and not the incorrect diagnosis. It was established that if the cause of damage is unknown, where a breach of duty has a material effect on the likelihood of injury then the subsequent injury will be said to have been caused by the breach.

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Decisions are not always clear-cut where the loss or damage flowing from an initial tort is overwhelmed by a more serious injury caused by a second tort or supervening illness or natural event. In Performance Cars v Abraham, the claimant’s car was damaged in an accident after the car was already involved in a prior accident which required the car to get resprayed. It was held that the defendant was not liable for the cost of the re-spray, as it had not contributed any further damage than the initial accident - if a claimant has already suffered the harm, a subsequent defendant is only liable to the extent that he makes the claimant's harm worse. In Baker v Willoughby, the claimant suffered injury when he was hit by the defendant’s car. Before damages were claimed, his leg was shot, and had to be amputated. It was held that the defendant was liable to pay full compensation for the injury he had caused, based on the claimant's losses beyond the time when his leg was amputated. But, when negligence is followed by a natural event that erases the physical effects of the original negligence, the defendant’s liability ceases at the moment in time when the supervening condition occurs. Therefore in Jobling v Associated Dairies, Jobling obtained a back injury that subsequently would reduce his working capacity to 50% for the rest of his life. However, afterwards Jobling developed an unrelated spinal disease that completely incapacitated him from work. The employer liability was limited to four years' loss of earnings because, whatever had happened, this illness would have caused the disability and was a “vicissitude of life”.

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If there are several possible explanations for the cause of the loss or damage, the burden of proof is on the claimant to prove whichever causes are alleged as the cause of action. However, in McGhee v National Coal Board, the Lords held that a breach of duty that materially increases the risk of injury also proves negligence, therefore employer was held liable for not providing shower facilities as it materially increased the risk of injury to the claimant. This was a fairly radical departure from the usual test of causation. In Wilsher v Essex, the hospital negligently administered excessive oxygen to a premature child who subsequently became blind. However, this act was one of five possible factors that could have led to blindness. The burden of proof fell onto the claimant who failed to establish that the defendant's negligence had caused, or materially contributed, to the injury and the claim was dismissed.

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Where the sequence of events leading to loss comprises of more than one cause, the process of separating and attributing liability becomes more complicated. Novus actus interveniens (literally new act intervening) refers to when exempts liability from the defendant where an intervening act breaks the chain of causation between the claimant’s negligence and the loss or damage. In the Oropesa, a collision occurred at sea between the Oropesa and the Manchester Regiment such that the captain and his crew rode a lifeboat to the Oropesa, which capsized. However, it was held that the captain's action was the natural consequence of the emergency placed by the negligence of the Oropesa, therefore the deaths of the seamen were a direct consequence the collision. To break the chain of causation there must "a new cause which disturbs the sequence of events (that is) unreasonable or extraneous or extrinsic.” In Haynes v Harwood, a child who threw a stone at a horse, causing it to bolt, was liable for the injuries policeman who attempted to stop it, as it is reasonably foreseeable that a rescuer would come to aid in an emergency situation. This contrasts with Cutler v United Dairies, where a man who was injured trying to restrain a horse was held to be volens because in that case no human life was in immediate danger and he was not under any compelling duty to act. In Knightley v Johns, in response to a car accident involving Johns, a police inspector sent a policeman to drive into the tunnel against the flow of traffic which resulted in a collision. The inspector was held liable as his act was a new intervening act which broke the chain of causation from the defendants accident. Similarly, in Wright v Lodge, the defendant had left her car on the lane, when it was hit by the second defendant’s car, making it swerve into the claimant’s car. While the first defendant was negligent, he was not liable as the second defendant’s reckless driving broke the chain of causation.

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In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. Remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong.

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Initially, the traditional approach was that a party will be liable for any harm that is a direct result of their conduct, regardless of how rare or unforeseeable it may be. In Re Polemis, the defendant's employees dropped a plank into the hold of the ship which caused a spark and ignited some petrol vapor, causing an explosion that sunk the ship. Although the fire was not foreseeable, it was held that the defendant would be liable for all direct consequences of his actions. This was disproved in Wagon Mound 1, where the vessel owners were not liable when furnace oil that leaked from their ship caught fire where the claimants were welding. The resulting fire causing extensive damage to the wharf and nearby vessels. The courts replaced the direct consequence test with the requirement that, in order to be recoverable, damage must be foreseeable in all the circumstances. Therefore in Doughty v Turner, the employer was not liable for the employee’s injuries from when a cement lid fell into a cauldron of molten hot liquid and caused an explosion as it was not foreseeable. In Wagon Mound 2, it was held that the ships engineer was negligent in allowing oil to be discharged from the vessel as if the potential damages is great, even a remote chance of an accident occurring is enough to impose a duty of care. The type of injury must also be foreseeable. In Tremain v Pike, the claimant contracted Weils disease after the defendant negligently allowed a rat infestation on his farm. However, as the disease was exceptionally rare, it was not a foreseeable result of the breach of duty.

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However, the eggshell skull rule is a doctrine which holds a tortfeasor is liable for all consequences resulting from his actions, even if the victim suffers an unusually high level of damage or has special sensitivities. In short, the defendant must ”take their victims as they find them”. In the case of Smith v. Lee ch Brain & Co., an employee in a factory was splashed with molten metal on his lip, which happened to be premalignant tissue. He died three years later from cancer triggered by the injury. The judge held that as long as the initial injury was foreseeable, the defendant was liable for all the harm. In Robinson v Post Office, en employee suffered a minor injury at work. After given an anti-tetanus injection, he contracted encephalitis due to an allergy. The hospital was negligent but not liable, since even the proper procedure would not have revealed the allergy. However the employer was liable for full consequential damages of the accident. It was determined that once some harm was foreseeable, the defendant would be liable for the full extent of the harm. In Bradford v Robinson, the employers were liable for the claimant’s frostbite when they ordered him to drive in a van without a heater during winter. In Page v Smith, the defendant was liable for worsening the claimant’s previous condition of ME during a car crash based on the eggshell skull rule. However, an intervening cause is typically the exception to the eggshell skull rule.

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Remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly placed on the defendant. The Wagon Mound (No 1) test is less generous to claimants than the direct consequence test because it may impose an artificial limit on the extent of damages that can be claimed. To mitigate some of the potential unfairness of the rule, the courts have been inclined to take a relatively liberal view of whether damage is of a foreseeable type. However, Lord Denning said at p636 that remoteness of damages is just a question of policy with the element of foreseeability being determined by what is perceived to be instinctively just, as in eggshell skull cases such as Smith v Leach Brain & Co.