Negligence: Causation and Remoteness in PLS II

• Negligence lecture covers:
• Causation
• Remoteness
• PLS II - LW12011
• Module organiser is Nicola Tully

Causation

• The pursuer has the burden of proving that the breach of duty caused the harm they're complaining about.
• This involves questions of fact and law.
• Determining the causal connection between the breach of duty and the harm falls under fact.
• Determining if the original negligence was an effective cause of the harm falls under law.
• A causal link can't be assumed and needs to be proven or inferred from the facts.

Factual vs. Legal Causation

• Factual causation: Causa sine qua non, meaning 'but for' the breach.
• Legal causation: Causa causans, immediate, dominant, or effective cause.
• Both factual and legal causation are needed to establish causation.
• A new intervening act, Novus actus interveniens can affect causation.
• It must be something considered an unwarranted new cause that disturbs the sequence of events and called ultroneous.
• It can be described as either unreasonable or extraneous or extrinsic

Factual Causation in Detail

• The loss or harm must be caused by the defender's wrongful (negligent) conduct.
• The 'But for' test can be used.
• For example, would the loss have occurred 'but for' the defender's conduct?
• A material contribution test can be used .
• Did the defender's breach of duty materially contribute to the pursuer's loss or increase the risk of harm?

Causa Sine Qua Non Examples

• McWilliams v Archibald Arrol & Co (1962) SC (HL) 70:
• Ask whether the failure to provide a safety belt was the causa sine qua non of the death.
• Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428:
• Enquire whether failure to treat was the causa sine qua non of death or if arsenic poisoning caused the death.
• Kay's Tutor v Ayrshire & Arran HB (1987) SC (HL) 145: Was the overdose the causa sine qua non of deafness?
• McTear v Imperial Tobacco Ltd (2005) 2 SC 1:
• Determine if the spouse could prove her husband wouldn't have died of lung cancer if he hadn't smoked the defender's brand of cigarettes.

Material Contribution Examples

• McGhee v National Coal Board 1972 SC (HL) 37; Wardlaw v Bonnington Castings:
• Considers material reduction of risk and substantial contribution to the injury, and defines that a material contribution must be a question of degree”
• Fairchild v Glenhaven Funeral Services [2002] UKHL 22: Considers exposure to asbestos across a career and whether all employers increased the risk.

Legal Causation

• Apart from factual cause, the defender's breach of duty must be the legal cause of harm.
• Whether the breach of duty is the causa causans will be determined by foreseeability from the original act/omission.
• In Sayers v Harlow, the reasonably foreseeable conduct of victim means there was no novus actus interveniens.
• In McKew v Holland Hannen & Cubitts, the unreasonable conduct of victim means there was a novus actus interveniens.

Remoteness

• There may be breach of duty, but the claim (or part of it) may be 'too remote' from the breach.
• Remoteness of damage is connected with the extent of liability (reparation).
• Direct consequences are equal to those that are reasonably foreseeable.
• Simmons v British Steel plc (2004) SC (HL) 94: Liability limited to foreseeable consequences.

Remoteness - Loss of Chance Examples

• Kyle v P&J Stormonth-Darling 1993 SC 57: "Deprivation of legal right".
• Campbell v F&F Moffat 1992 SLT 962 - "Utterly speculative”.
• Gregg v Scott [2005] 2 AC 176 – “no remedy simply for reduction in the chance of recovery from illness”.

Causation and Remoteness Awareness

• Be aware of the principles on 'causation' and 'remoteness' and how these relate to liability.
• Note there are several defenses available to a defender that can negate or reduce liability.