Negligence: Causation and Remoteness

• Negligence is comprised of Causation and Remoteness
• The module organiser is Nicola Tully

Causation

• It is up to the pursuer to prove that the breach of duty caused the harm complained of
• Mixed questions of fact and law are involved
• Pursuers must prove or infer from facts a causal connection, as it's not assumed
• Factual causation: Causa sine qua non, that the harm would not have occurred 'but for' the breach
• Legal causation: Causa causans, immediate, dominant or effective cause
• Both factual and legal causation are necessary for causation to be established
• A new intervening act, novus actus interveniens must disturb the sequence of events to break the chain of causation, is described as unreasonable/extraneous or extrinsic, and is unwarrantable

Factual Causation

• The loss or harm must have been caused by the defender's wrongful or negligent conduct
• Two main tests used are 'But for' and material contribution
• 'But for' test: the loss would not have occurred but for the defender's conduct
• Material contribution test: asks if the defender's breach of duty made a material contribution to the pursuer's loss, or materially increased the risk of harm to the pursuer

Factual Causation (Causa Sine Qua Non)

• McWilliams v Archibald Arrol & Co (1962) SC (HL) 70: Was the breach (failure to provide safety belt) the causa sine qua non of his death?
• Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428: Was the failure to treat the causa sine qua non of his death? Or did the arsenic poisoning 'cause' the death?
• Kay’s Tutor v Ayrshire & Arran HB (1987) SC (HL) 145: Was the overdose the causa sine qua non of the child’s deafness?
• McTear v Imperial Tobacco Ltd (2005) 2 SC 1: Was the spouse able to show that her husband would not have died of lung cancer had he not smoked the defender’s brand of cigarettes?

Factual Causation - Material Contribution

• McGhee v National Coal Board 1972 SC (HL) 37: involved "material reduction of risk” and "substantial contribution to the injury”
• Wardlaw v Bonnington Castings SC (HL) 26: involved "What is a material contribution must be a question of degree"
• Fairchild v Glenhaven Funeral Services [2002] UKHL 22: did Exposure to asbestos, spanning career/succession of different employers/different workplaces, mean all employers materially increase the risk?

Legal Causation

• The defender’s breach of duty must be the legal cause of harm, in addition to being the factual cause
• Whether or not the breach of duty is the causa causans is determined by the foreseeability flowing from the original wrongful act/omission
• Sayers v Harlow UDC [1958] 2 ALL ER 342: reasonably foreseeable conduct of victim (no novus actus interveniens)
• McKew v Holland Hannen & Cubitts 1970 SC (HL) 20: unreasonable conduct of victim (is novus actus interveniens)

Remoteness

• There may be breach of duty but the claim may be 'too remote' from the breach
• Remoteness of damage is connected with the extent of liability (reparation)
• Lord Kinloch’s dictum in Allan v Barclay (1864) 2 M 873, 874, states that damages can only be claimed for losses that naturally and directly arise out of the wrong done, and may reasonably be supposed to have been in the view of the wrongdoer
• This approach equates direct consequence with those that are reasonably foreseeable
• Simmons v British Steel plc (2004) SC (HL) 94 limits liability to foreseeable consequences

Remoteness - Loss of chance

• 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

Knowledge

• One should be aware of the principles on 'causation' and 'remoteness' and how these related to liability
• There are a number of defences available to a defender, depending on the situation, liability can negated or reduced