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In the tort of law, the claimant has to establish that the defendant’s tortuous action caused the injury when claiming damages. It is one of the common elements in all three branches of torts. The claimant must prove that he suffered loss that arose out of the defendant’s wrongful act or omission. As discussed by Hart and Honore[1], Causation entails two major components causation in fact [2] and legal causation also known as ‘proximate cause[3]’
Causation in fact addresses the question whether the defendant’s act or omission should be excluded from events which contribute to the occurrence of the plaintiff’s loss. On the other hand, if the conclusion reached upon investigation is that the defendant’s act or omission was the cause of the plaintiff’s loss, it may still not be possible to hold the defendant liable because there are other causes of the loss. This is what is referred to as legal causation – the legally effective cause amongst a complex web of possible causes.
Legal causation has also been referred to as proximate caus. The basic illustration of this principle is in cases of multiple causes which we shall revert to later. In Kuwait Airways Corporation v Iraqi Airways Co[4]Lord Nicholls, talking about causation in fact and causation in law stated as follows:
The law has to set a limit to the causally connected loss for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause, or because the loss was the product of an intervening cause. The defendant’s responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.
In order to establish causation in fact the court tends to apply the ‘but for’ test or ‘causa sine qua non or condition sine qua non’ which was clearly illustrated inBarnett v Chelsea & Kensington Hospital [5] If the result complained of would not have occurred but for the defendant’s wrong, then the act or omission is the cause. If the damage would have been sustained anyway, irrespective of the defendant’s wrong, there will be no liability. This test is somewhat a crude device and does not provide a satisfactory solution.
In this case Barnett[6], the plaintiff’s husband, who was a night watchman, arrived at the defendant’s hospital early in the morning complaining of vomiting after taking tea. He was told to go home and consult his own doctor later, which amounted to a breach of the hospital’s duty of care. Later that day, the plaintiff’s husband died of arsenic poisoning. It was indeed confirmed that this was a case of murder by unknown people and that the hospital was not liable as the doctor’s failure to examine the patient did not cause his death.
However in, Chester v Afshar [7] The claimant asked about the potential risks of an operation and the surgeon failed to warn about the 1% chance of being permanently paralysed. He became parlyased after undergoing the surgery. The courtwas held that claimant did not need to prove that the operation would not have taken place if relevant advice had been given. However, Dissent from Lord Hoffman and Lord Bingham, claiming that the case was a coincidence case and advice of warning would only have delayed the date of the operation, in which paralysis would still have occurred.
Causation may be problematic where there exist two causes occurring in succession. It may be possible to identify the factual cause of the damage. However, some policy factors may come into play as illustrated in Performance Cars Ltd v Abraham[8], The appellant hit the claimant’s car as a result of his admitted breach of duty. Two weeks prior to this incident the Rolls Royce had been in a previous incident whereby another negligent driver had hit the car. As result of the previous incident the car required a re-spray. The claimant claimed £75 for the re-spray for the prior incident and obtained judgment by default. However, the claimant has never received the sum. The claimant sought to claim the £75 from the appellant. It was conceded that the claimant could not recover the same loss twice. The question for the court was which defendant should pay or whether they should be jointly liable. It was held that the first defendant was responsible for the whole amount. The appellant was therefore absolved from all liability to pay.
This was similarly applied in Baker v Willoughby[9] The claimant suffered an injury to his leg when the defendant ran into him in his car. He suffered pain and loss of amenity and had to take a lower paid job. He tried various different employments some of which he had to discontinue because of his injury. He was employed sorting through scrap metal when he sustained a further injury to his leg. He was on his own when two men came in and demanded money. When he refused they shot him in his injured leg. As a result of the shooting, the claimant had to have his leg amputated. The defendant argued that the second injury removed the very limb from which the earlier disability had stemmed, and that therefore no loss suffered thereafter can be attributed to the defendant’s negligence. He attributed his whole predicament to the second injury. The trial judge rejected this argument which he said was more ingenious than attractive. But it was accepted by the Court of Appeal where it was held the defendant remained liable for the loss of amenity and lower earning capacity even after the amputation
Where there exists two or more causes which operate concurrently it may be factually impossible to determine which one was the cause. This has proved problematic not least because it is the claimant’s responsibility to establish which one was the cause. On general principles the burden of proving this is on the balance of probabilities and the claimant has to demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant. Where there are two causes this means the burden of proof is impossible to discharge leaving the claimant uncompensated often for an obvious breach of duty. Various formulations have arisen to circumvent the strict approach.
In McGhee v National Coal Board,[10] the plaintiff had contracted dermatitis through working in some brick kilns belonging to his employers. He claimed that they had been negligent in not installing shower facilities. The state of medical knowledge concerning dermatitis at the time meant that the court could not determine whether the taking of showers after work would have prevented the plaintiff from contracting the disease. The lower court found the employers to be in breach of statutory duty by not providing adequate washing facilities, but said there was no tortious liability for the disease because the plaintiff could not show that the breach of duty had caused his injury. Nevertheless, the House of Lords held the defendants liable.
InWilsher v Essex,[11] a prematurely born baby had developed a condition, typically found in premature babies who have been given too much oxygen, known as retrolental fibroplasia (RLF), which had serious consequences for his sight. One of the possible causes of the condition (out of five) was the negligent insertion of a catheter and monitoring of his arterial blood oxygen levels, the result of which was that those levels were too high. The Court of Appeal held the defendant liable even though, as the court observed, “the extent of the contribution made by breach cannot be ascertained.” The House of Lords reversed the finding of the Court of Appeal and held that in cases of negligence, it is for the plaintiff to establish (prove) causes. The House of Lords held that it could not be inferred from the simple fact that excess oxygen could prove cause. The house of Lords, held that it could not be ineferred from simple fact that excess oxygen could cause the claimant’s condition that it must therefore have made a material.
Novus actus interveniens meaning new intervening act. This principle dictates that the claimant must show there was no break in chain of causation removing liability from the defendants. The legal test applicable will depend upon whether the new act was that of a third party or an act of the claimant. Where the new act is of a third party, the test is whether the act was foreseeable. If the act of the third party was foreseeable, the defendant remains liable and the chainofcausationremainsintact. If the act of a third party is not foreseeable this will breakthechainofcausation and the defendant is not liable for the actions of the third party.
In Topp -v- London Country Bus (South West) Ltd.2 the Plaintiffs action against the owners of the vehicle, a bus, was dismissed by May J. The Court of Appeal dismissed the appeal on the basis that the Defendant owed no duty of care to the Plaintiffs wife because the vehicle did not fall within the special category of risk as a source of danger on the highway, since the acts of the wrongdoer were to be regarded as a novus actus interveniens which broke the chain of causation. Where the act of the third party was negligent, this is more likely to break the chainofcausation as illustrated in Knightley v Johns & Ors[12] A car crash in a tunnel resulted in the police attending. An inspector, who failed to seal off the tunnel immediately, ordered an officer to ride his motorcycle against the flow of traffic. The motorcyclist collided with an oncoming vehicle and was injured. The inspector was held liable for the injuries sustained by the motorist as his order was a novus actus intervenies which negative the car driver liability is thus leading to his negligence.
However, where the new intervening act is that of the claimant, the test is whether the claimant acted reasonably in the circumstances. If the claimant’s actions are deemed reasonable the chain of causation remains intact and the defendant is liable for the actions of the claimant. If, however, the claimant’s actions are unreasonable in the circumstances the chain of causation is broken and the defendant is not liable for the actions of the claimant.
In some instances, where the claimant submits the defendant’s conduct lost them a chance of avoiding harm or injury as opposed to causing the harm or injury itself, the courts have been reluctant at imposing liability. This most commonly comes up in relation to medical negligence whereby a failure to diagnose a condition correctly may prevent the claimant from receiving vital treatment which may have saved their life or avoided a determination in their condition. The House of Lords has twice considered this issue of causation and on each occasion has refused to impose liability as established in Hotson v East Berkshire Area Health Authority and [13]
Gregg v Scott[14] However, outside the context of medical negligence the courts have been more willing to accept loss of a chance as an actionable head of damage.
References
.A Hart & Tony Honore, Causation in the law, 2d ed. 91985)
Charles E., Carpenter Concurrent Causation, 83. PA, L. rev. 941, 941 (1935)
Barnett v Chelsea & Kensington Hospital, [1969]1 QB 428
Chester v Afsha, [1962] 1 QB 33
Hotson v East Berkshire Area Health Authority, [1987] AC 750
Gregg v Scot, [2005]2 WLR
Performance Cars Ltd v Abraham, [1962] 1 QB 33
Baker v Willoughby, [1970] AC 467
McGhee v National Coal Board,[1972]3 ALL ER 1008
Wilsher v Essex Area Health Authority, [1988]1ALL ER 871
Kuwait Airways Corporation v Iraqi Airways Co,[1969]1 QB 428
Knightley v Johns & Ors, [1982]1 WLR 349
[1]L.A Hart & Tony Honore, Causation in the law (2d ed. 1985)
[2] Charles E., Carpenter Concurrent Causation, 83. PA, L. rev. 941, 941 (1935)
[3] ibid
[4] . (Nos 4 & 5) [2002] UKHL 19; [2002] 2 AC 883
[5] [1969] 1 QB 428
[6] ibid
[7] [2004] 3 WLR 927
[8] [1962] 1 QB 33
[9] [1970] AC 467
[10] [1972]3 All ER 1008
[11] [1988]1 All ER 871
[12] [1982] 1 WLR 349
[13] [1987] AC 750
[14] [2005] 2 WLR 268
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