Causation and Remoteness in Negligence Claims

• Causation and remoteness are critical elements in establishing negligence claims in tort law.
• To succeed in a negligence claim, must be shown that D owed C a duty of care, D breached that duty, D's breach caused C's loss, and that there were no applicable defences.
• Causation ensures liability is imposed only on those who changed the course of events for the worse.
• It establishes whether and why the defendant should compensate the claimant.
• Accidents or injuries often have multiple causes, necessitating identification of legally relevant ones.

Two Types of Causation

• Factual causation determines whether D's breach contributed to C's loss or injury, assessing if C would have suffered the same loss regardless.
• Legal causation determines if the law should make D bear the loss when D's breach contributed to C's loss.

The Causation Question

• Causation inquiry focuses on whether D's negligence (i.e., their breach of duty) caused the harm.
• Asks if the identified negligent act or omission is a "real" cause of the harm, acknowledging that multiple causes may exist.

Further Questions for Causation

• Was D's action or inaction a necessary precondition for the harm to occur (factual causation)?
• Is D's act the relevant or 'real' cause of the harm (legal causation), justifying liability?
• Basic 'but for' causation means the harm would not have occurred if D had not breached their duty
• It must be D's breach, not simply their actions, that caused the harm.

Burden of Proof

• C must demonstrate it is "more likely than not" that D's breach caused the harm. Would C have suffered the loss if not for D's breach?

Barnett v Chelsea and Kensington Hospital [1969]

• Claim failed because, even with prompt treatment, the arsenic poisoning would have proved fatal.

"But For" Causation

• There are multiple situations where factual causation is particularly complicated including:
• Multiple potential causes, where limited scientific or forensic knowledge can make establishing a definite factual cause impossible, like in complex car accidents or medical situatio
• Multiple sufficient causes, where multiple Ds act, and the first D claims a subsequent party's action absolves them of blame.
• Unjust results, where the 'but for' test identifies a factual cause that seems unjust and it is then rejected.
• Indeterminate causes or ‘overdetermination’, where there are multiple negligent Ds, but none can be definitively proven as the cause of the harm.
• Loss of chance, where C claims a loss of opportunity to avoid injury due to D's negligence, recoverable in some economic loss cases.

Multiple Potential or Sufficient Causes

• Multiple potential causes arise when a lack of scientific or forensic knowledge makes it impossible to establish factual causation.
• Multiple sufficient causes occur when multiple Ds act, and the first argues that a subsequent party's action absolves them.

Wilsher v Essex Area Health Authority [1987]

• The excessive oxygen was one of six possible causes of blindness, and C could not establish on the balance of probabilities he would not have gone blind but for D's breach.

"Why Me?" Argument in Causation

• Causation is the connection between the D and the loss C suffered, and D must compensate C's losses that they caused.
• In the absence of causation, D's breach and C's damage are coincidental, and there is no connection between the two.

Divisible and indivisible injuries

• A divisible injury is cumulative; greater exposure to a harmful agent worsens the overall condition.
• An indivisible injury is binary one either has it, or does not, such as mesothelioma or other cancers.

Performance Cars v Abraham [1962]

• Decision: D should be taken to have injured a vehicle already requiring respraying, not liable for the respray

Lord Devlin in Dingle v Associated Newspapers [1961]

• A second wrongdoer is liable only for the excess of damage they inflict.

Baker v Willoughby [1970]

• D remained responsible for the initial injury's ongoing effects, despite a later, more serious injury to the same area

Jobling v Associated Dairies Ltd [1982]

• Damages were limited to the point before the unrelated disease, due to the consideration of life's 'vicissitudes' in damages.

Lord Pearson in Baker

• The supervening event has not made him less lame, disabled, and deprived of amenities.

Material Contribution to Injury

• When an injury is 'indivisible' or causal factors are not independent, determining causation by D is challenging.
• Focus shifts to whether D's breach contributed materially to C's injury.
• Material contribution means more than a negligible impact on C's harm.
• Material contribution to the risk of harm is distinct from material contribution to the injury.

Bonnington Castings Ltd v Wardlaw [1956]

• It was enough to show that D's negligence made a material contribution to the condition.

Jane Stapleton on Bonnington

• Bonnington represents a departure from the orthodox approach where the victim's total condition is divisible but, there is no acceptable evidentiary basis on which the disability could be apportioned to the individual sources.

Williams v The Bermuda Hospitals Board (Bermuda) [2016]

• The negligent diagnosis & treatment delay materially contributed to the injury.

Michael Holmes v Poeton Holdings Ltd [2023]

• The material contribution test applies to cases of indivisible injury/disease.

Indeterminate Causes and Unjust Results

• Unjust results are rejected when a factual cause emerges that seems unjust and this is rejected.
• Indeterminate causes/overdetermination arise when multiple negligent Ds exist, but none is provably the cause.

Two Negligent Hunters

• Applying the 'but for' test wouldn't work, as it would render neither party liable.

Fitzgerald v Lane [1987]

• Fitzgerald v Lane [1987]; using the McGhee ‘material increase in risk' principle, found each defendant liable

Unjust Results & The Fairchild Exception

• This is a very specific exception to ‘but for' causation if there is a link between D’s breach of duty and C’s damage where actions may have materially increased the risk of C’s damage occurring.
• Is is not applicable EVERY time 'but for' causation cannot be established.

McGhee v National Coal Board [1973]

• HL held that D's failure to provide showers had "materially contributed" to the increased risk of C's dermatitis.

Fairchild v Glenhaven Funeral Services [2002]

• Each employer was jointly and severally liable for C's losses, even if the fatal fibre was not shown to be caused by negligence.

Joint and Several Liability

• When two or more Ds act with a common goal, each will be jointly liable for the entirety of the losses for all of the parties.
• Tortfeasors can then seek contributions among themselves
• Civil Liability (Contribution) Act 1978 s1(1)

Basis of the Fairchild Exception

• The "but for" rule is the normal test of causation, with Fairchild representing a special, limited case.
• C can sue the employer for ALL the loss

SO FAR IN LAW: WHERE WE’VE GOT TO..

• Cases reviewed include McGhee, Fairchild, and Wilsher, each highlighting different challenges in establishing causation and the courts varying approaches

Barker v Corus PLC [2006]

• D employers were liable, but only proportionately to their asbestos exposure.

Significance of Barker

• Barker both extends and narrows Fairchild and the Barker extension of Fairchild remains good law in relation to all cases including mesothelioma cases.

Compensation Act 2006 S3

• A responsible person is liable in tort, by virtue of the exposure mentioned in connection with damage cause to the victim by the disease.

Sienkiewicz v Grief (UK) Ltd [2011]

• The Fairchild exception applies to cases of mesothelioma involving a single D and that there is no requirement for C to show that D's breach of duty doubled the risk of developing the disease.

Lord Phillips in Sienkiewicz

• The Fairchild exception was created only because of the present state of medical knowledge.

When does the the Fairchild Exception Apply?

• It only applies on a narrow set of facts, including indivisible injuries, multiple sources of a single causal agent and an evidentiary risk.

Lord Mance in Durham V BAI (RUN-OFF) LTD [2012]

• The actual developing of mesothelioma is an essential element of the cause of action.

Lord Brown in Sienkiewicz

...

• Mesothelioma cases are in a category of their own, and they may be justified.

Lord Rodger in Fairchild:

• The Fairchild cannot apply where the claimant has merely proved that injury could have been caused by different events.

Legal Causation

• Legal causation involves remoteness and intervening acts.

Remoteness

• C can recover so long as the losses of injury where of that kind of D failed to take reasonable case, per Wagon Mound No1
• This only applies to the type of damage, not the impact

Overseas Tankship [1961]

• PC held that a reasonable person could not have foreseen fire damage as a possible consequence of negligent action.

Doughty v Turner MANUFACTURING CO [1964]

• C's harm was not was too remote as an eruption of boiling liquid was different from being splashed by liquid.

Hughes v Lord Advocate [1963]

• The court took a middle course and identified the relevant kind of loss as burns were foreseeable, and so C was successful.

Back to Foreseeability

• Foreseeability is relevant at all stages of the negligence inquiry:
• Duty
• Breach
• Remoteness

Identification of Relevant loss

• There is not clear cut method of identification.
• The courts define the relevant kind of loss effectively based on is is thought that the D should be held liable.

Corr V IBC VEHICLES LTD [2008]

• Suicide was not an uncommon manifestation of depression and since depression was foreseeable, there was evidence to suggest suicide was foreseeable, therefore there was no need to establish suicide itself was a foreseeable incident.

Eggshell Skull Rule: Limits on the foreseeability rule

• The eggshell skull rule stipulates that when an injury occurs the D will he held liable for all the consequences of the injury occurred including damage, type and extent
• Smith V Leech Brain*
• So long as physical injury has occurred it does not matter about extent or susceptibilities

Intervening Acts

• D will not be liable for harms if there is some intervening act that breaks the chain of causation also known as "Novus Actus Interveniens"

Knightley v Johns [1982]

• Police instructions were sufficient to break chain of causation between driver's original negligence and results injuries

Break the Chain? OR Doesn’t Break?

• Break the chain through
• Natural occurrences
• Unreasonable Actions
• It doesn't break through
• Medical Negligence
• D owed C to prevent Actions