Tort - Causation and Remoteness (2) Flashcards
What are causation and remoteness?
Causation and Remoteness: Claimants in negligence must establish that the defendant caused their harm ‘in fact’, and in law, dispelling intervening acts and issues of remoteness.
How is causation in fact proven?
Causation in Fact: The claimant must generally establish that, ‘but for’ the defendant’s act or actionable omission, their harm would not have occurred (Barnett v Chelsea).
(1) Burden of Proof: Must be established on balance of probabilities - if it is 75% likely it was the claimant’s fault, and 25% it was the defendant, then threshold is not met (Hotson v East Berkshire).
(2) Multiple Harms: Where multiple harms each contributed to the defendant’s harm, it may be possible to hold each liable.
Material Contributions
Material Contributions: Where multiple sources did contribute to the claimant’s harm, then negligent tortfeasors are liable on the divisibility basis (Bonnington v Wardlaw).
Material Increase In Risk
Material Increase In Risk: Where multiple sources increase the material risk of harm, but none can certainly be held as the defining cause, then negligent tortfeasors are liable on the divisibility basis (McGhee v National Coal Board).
(1) Restriction: It is thought the approach only applies to scientific uncertainty, namely the production of risk of mesothelioma (Sienkiewicz v Greif). For mesothelioma, tortfeasors are fully liable for all harm (Fairchild).
Multiple Injuries
Multiple Injuries: A claimant may be injured more than once. For example, a defendant bumps into their car, and later another does too. The latter is only liable to the extent of worsening damage, if determinable (Performance v Abraham).
What happens when harm derives from multiple sources?
Multiple Sources: Where harm derives from multiple sources, or is worsened by multiple tortfeasors, damages will be awarded on the ‘divisibility basis’, determined by the divisibility to which blame can be apportioned.
Divisible Injuries
Divisible Injuries: If the court can divide harm between defendants, it will apportion damages accordingly.
(1) Case Law: Employee’s asbestosis was materially contributed by multiple employers. Damages were apportioned in accordance to the length of time worked for each employer (Holtby v Brigham).
(2) In Practice: In practice, this is rare. For example, if a defendant breaks their leg in a crash caused by two defendants, blame cannot be apportioned, so either is fully liable.
Indivisible Injuries
Indivisible Injuries: Where two or more people are responsible for the same damage at generally the same time, damages may be jointly and severally apportioned between the tortfeasors (ss1-2 Civil Liability (Contribution) Act 1978).
(1) Position of Claimant: Claimant can still pursue both defendants for full extent of damage.
(2) Position of Defendants: Defendants can then pursue joint tortfeasors to contribute to the extent of that blame.
What are intervening acts?
Intervening Acts: Intervening acts may ‘break’ the chain of causation. For example, A breaks B’s leg, but then B is struck by lightning on way to hospital and dies. ‘But for’ harm, B is unharmed, but A is hardly responsible for their death.
Actions of Third Party
Actions of Third Party: The actions of a third party may or may not constitute an intervening act.
(1) Instinctive Intervention: Chain rarely ever broken by instinctive reactions.
Example: A threw firework at B. B instinctively threw it away, landing next to Y who was harmed. A remains liable, as instinctive reactions do not break chain (Scott v Shepherd).
(2) Negligent Intervention: Chain is unlikely to be broken by a negligent action which is objectively foreseeable to the defendant as a consequence of their negligence.
Example: A negligently crashed car. Police decided to drive against traffic and crashed. This was not objectively foreseeable, so A was not liable (Knightley v Johns).
Example: A negligently crashed lorry. B stopped to assist, but was negligently hit by C in the process. Both A and C were liable, as it was foreseeable that rescuers could be injured (Rouse v Squires).
Example: Negligent medical treatment is usually foreseeable, so will not break the chain unless grossly negligent.
(3) Reckless or Intentional Intervention: Chain is more likely to be broken by a reckless or intentional intervention of a third party.
Example: A damaged B’s house. B left the house unoccupied, and squatters further damaged it. A was not liable for further damage (Lamb v Camden).
Example: A left B’s house unlocked despite being told not to. Thief entered and stole property. A was liable, as he had not taken reasonable care to prevent thieves (Stansbie v Troman).
Actions of Claimant
Actions of Claimant: The claimant may cause further harm to themself, which may or may not break the chain.
(1) Unreasonable Acts: Unreasonable acts are more likely to break chain. They must be entirely unreasonable.
Example: Claimant decided to use steep staircase with no rail with broken leg, and further injured it - defendant not liable for further damage (McKew v Holland).
(2) Reasonable Acts: Reasonable acts less likely to break the chain.
Example: Claimant fitted with neck brace, making it difficult to see. They fell down and further injured themself - defendant liable for further damage (Wieland v Cyril).
(3) In Practice: In practice, defendant more likely to allege contributory negligence.
How is remoteness proven?
Remoteness: Only damage which is ‘reasonably foreseeable’ is recoverable in negligence (The Wagon Mound).
(1) Test: Damage must be of such a kind that the reasonable person would have foreseen it as a likely consequence of the negligent act.
(2) Provisos: The rules of remoteness are subject to the provisos of ‘similar in type’ and ‘egg-shell skull’.
Similar In Type
Similar In Type: If damage is reasonably foreseeable, the way in which it occurred is irrelevant.
(1) Example: Workers left manhole with exposed lamps on break. Child knocked lamp into hole, causing a huge explosion and burns. It was foreseeable that exposed lamps could cause burns, so the harm was recoverable despite the unusual sequence of events (Hughes v Lord Advocate).
(2) Foreseeable Damage: The type of damage itself must still be reasonably foreseeable. A allowed rats to breed on B’s ground. B contracted rare disease - though harm from bites was foreseeable, the disease was not, so B could not recover losses (Tremain v Pike).
Egg-Shell Skull
Egg-Shell Skull: Damage caused or exacerbated by a pre-existing condition, salary or religious belief of the claimant will not be ‘too remote’ to recover, as victims must be taken as found (Robinson v Post Office).
(1) Example: A breaks B’s leg. B reacts to anaesthetic during surgery and dies. As surgery was reasonably foreseeable, A is liable for the death.
(2) Example: A runs over B, a professional footballer. Loss of wages was reasonably foreseeable, so A is liable for the much higher damages than usual.
