Sally Russell

Stage 2 – causation

The third matter that must be proved is causation.  C not only has to prove that damage occurred, but must also prove D was the cause of that damage, both in fact and in law.

causation in fact: the ‘but for’ test

The courts ask whether ‘but for’ D’s breach of duty would the harm have occurred?
If the answer is “no” then D is liable.  However, if the damage would have happened regardless of the negligent act or omission, D will not be liable for it.
In Barnett v Chelsea & Kensington HMC, 1968, (another case of medical negligence) a man died of arsenic poisoning after being sent home from hospital without being examined.  The hospital was not liable because he would have died regardless of whether he had been treated.

successive and multiple causes

In cases where there is more than one possible cause, a claim could fail if causation could not be proved in respect of any particular D.  In Fairchild v Glenhaven Funeral Services Ltd, 2002, the HL made clear that the ‘but for’ test is necessary but not always conclusive, and modified the rules.

Key case

The facts of Fairchild were that C became ill after exposure to asbestos dust in the course of successive employments.  The CA had held that he could not recover damages from any of the employers, since he could not establish which period of employment had caused his illness.  This seemed unfair to C, because each of the employers could be shown to be in breach of duty.  It just wasn’t clear which particular breach was the cause of the illness.  The HL reversed the CA’s decision and held that if C could show that D had ‘materially increased the risk’ of harm then the causation test could be satisfied.  In Barker v Corus 2006, the HL said that in such cases damages should be apportioned between the D’s.

Causation in law: remoteness of damage

If the loss or damage is not foreseeable it is said to be ‘too remote’ from the breach.
This was established in The Wagon Mound, 1961 (full name Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co, 1961), where oil which was negligently spilt by the Ds caused a fire that damaged C’s wharf two days later.
They were not liable because it was not believed that this type of oil could catch fire on water.  The damage to the dock by oil was foreseeable, so this could be claimed for, but not damage caused by the later fire.  That damage was too ‘remote’ because D is only liable for the foreseeable consequences of any breach of duty.

Task: Apply causation in fact and law to the facts of Donoghue

Make some notes on a piece of paper and then click here.

intervening act

Sometimes something happens between D’s negligent act and C’s injury.  This is referred to by the Latin tag ‘novus actus interveniens’ or in modern parlance, ‘new act intervening’.  Such an act may sometimes break the chain of causation between D’s act or omission and the harm to C.
In Smith v Littlewoods 1987, an owner of a disused cinema had left his property unsecured and vandals broke in.  They caused a fire which spread to a neighbour’s property.  The neighbour sued the cinema owner.  The claim failed.  D successfully argued that the act of the vandals had broken the chain between the omission (not locking up properly) and the damage.
An example of the argument failing can be seen in a case we looked at earlier, Reeves v MPC.  The police argued that the prisoner’s suicide was an intervening act, which broke the chain of causation.  The HL did not accept this.

type of damage

If the type of damage is foreseeable, then the fact that it occurred in an unforeseeable way, or that the consequences were more extensive than could be foreseen, will not affect liability.  In Hughes v Lord Advocate 1963, a child knocked over a paraffin lamp which caused an explosion.  He was very badly burnt.  The court found that the type of injury was foreseeable (burns) even though the way this had occurred (an explosion) was not.  D was liable.

The principles of both The Wagon Mound and Hughes were confirmed by the HL in Jolley v Sutton LBC, 2000.

Key case

In Jolley, a 14-year-old boy was badly injured when working with a friend on an abandoned and derelict boat on council land.  The CA had held that although it may be foreseeable that children might play on such a boat, it was not foreseeable that they would attempt to repair it, so the council were not liable.
The HL reversed the decision and made the point that the ingenuity of children ‘should not be underestimated’.  It was foreseeable that children would meddle with the boat in some way and this was enough; it did not matter that they had been repairing it rather than playing on it.

Law and fact

the thin skull rule

This is a common law rule that D must take the victim as he or she is found.
It is called the ‘thin’ or ‘egg shell’ skull rule because it applies where V is more vulnerable to harm than other people.  It means that if the victim suffers greater harm, or even dies, due to having a particular disability, D is still liable, even though a person without that disability would not have been so seriously harmed.
An example is Smith v Leech Brain, 1962, where an employer’s negligence caused a small burn, which activated a latent cancer from which an employee died.  His wife sued the employer and the court held that his particular vulnerability (the pre-existing cancer) did not affect liability.

Task: Click here to do two small exercises.

Note that foreseeability comes into all 3 areas, but becomes more specific at each stage.

Duty	was it foreseeable that someone might be harmed by D’s actions?  Donoghue / Caparo
Breach	was the risk of harm foreseeable?  Roe / Bolton
Causation	was the type of harm foreseeable?  The Wagon Mound / Hughes / Jolley

Having revised the law in relation to duty for physical harm you should now be ready to see how it applies to cases where the harm is not physical, but is either economic or psychiatric.  The law on breach and causation applies to these areas in the same way as it does for cases of physical harm; it is only the duty of care that is different.

As a final task look back at the three diagrams on duty, breach and causation and make one of your own with all three together, adding a case for each point.  Keep this for revision purposes.

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