Causation and Remoteness Tort

1. Factual Causation- But For Test. Breach of Duty must have caused the damage

   Annotations:

   • The Breach of duty must be the factual cause of the damage. The general test used is the BUT FOR TEST 
   • -Cork v Kirby MacLean Ltd  -Barnett v Chelsea and Kensington Hospital Management Committee 
   1. Problems
      1. Multiple Causes
      2. Lost Chances

         Annotations:

         • Chance has some value in itself. Courts reluctant to impose liability where the negligence of the defendant caused the claimant to lose a chance of avoiding physical injury.  - Hotson v East Berkshire Area HA

         Attachments:

         • Gregg v Scott
      3. Multiple Consecutive Causes

         Annotations:

         • -Performance Cars Ltd v Abraham 
         1. Defendant's breach must be the substantial cause of the damage
            1. Following Barker,where defendantsare being held liable on Fairchild basis, each defendant is only liable to the extent to which they increased risk to the claimant- Proportionate liability

               Annotations:

               • Proportionate Liability.
               1. Reversed by S3 Compensation Act 2006. Provides that all defendants are jointly and severaly liable. In Asbestos cases
                  1. Claimant establish liability by demonstrating that the defendant had been in breach of duty by exposing hhim to asbestos fibres and had thereby materially increased the risk of developing asbestos cancer

                     Annotations:

                     • Sienkiewicz v Greif
         2. Material Increase of Risk-McGhee Test

            Annotations:

            • McGhee v National Coal Board - Test was used in favour of the claimant in Fairchild  Case. Further Discussed in Barker
         3. Multiple causes

            Annotations:

            • Where there is more than one possible cause of harm to the claimant, the claimant does not have to show that the defendants breach of duty was the only cause of damage or even the main cause of damage.  - Bonnington castings v Wardlaw  - Wilsher v Essex -McGhee v National Coal Board
         4. But for test is applied to the Original defendant.
2. Novus Actus Interviens

   Annotations:

   • A new act intervenes. An intervening act may break the chain of causation between the defendant's breach of duty and the loss or damage suffered by the claimant.  - If the NIA is sufficient to break the chain, then the defendant may not be laible despite being breach of the Duty of Care.  - For the courts to decide whether an event will break the chain of causation -jobling v associated dairies
   1. Third Party acts

      Annotations:

      • -Baker v Willoughby- -
      1. Original Defendant will be liable where the intervening act does not cause the loss. The original defendant will be responsible for 'injury and damage which are the natural and probable results of the initial wrongful acts- Knightley v Johns
      2. original defendant will be liable where the intervening act is one that should have been foreseen- Lamb v Camden LBC
   2. Act of the Claimant

      Annotations:

      • C responsible for his own damage. -in order for a NIA to succeed by act of claimant, it must be entirely unreasonable in all the cirucmstances.  - May be considered as a defence, of contributory negligence, leading to a reduction in the claimant's damage.  - Corr v IBC vehicles. - McKew v Holland & Hannen  
   3. Acts of nature

      Annotations:

      • Intervening acts of nature will generally not break the chain of causation, However, the defendant will not normally be liable where the intervening act of nature is unforeseeable and seperate from the initial negligent act or omission.  - Carslogie Steamship v Royal Norwegian Govt

Annotations:

• For how much of the Claimant's loss should the defendant be responsible

1. Test of Remoteness - the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant - Wagon Mound No1

   Annotations:

   • Test in  Re Polemis and Furness, Withy & Co.  and in Wagon Mound 1 - The tests cannot be reconciled. Re Polemis test has never been overruled, thus BOTH TESTS remain good law.  Does not limit liability for the direct consequences of a negligent act, however severe or unforeseeable those consequences may be. It has been criticised for unfairness in that respect - Re Polemis. 
2. Impecunious Claimant

   Annotations:

   • Egg shell skull rule may not apply when the claimant's losses result from the claimant's lack of means.  Discussed in Liesbosch Dredger v SS edison . Distinguished by CA in cases relating to mitigation of loss ( Perry v Sidney Phillips & Son ). Subsequently only considered to apply in exceptional circumstances - (Mattocks v Mann).  - PUT TO REST IN Lagden v O Conner . 
3. Egg-shell skull rule

   Annotations:

   • Take victim as they are - liable for all of the losses.  Also relates to psychiatric injury. - Brice v Brown . Smith v Leech Brain 
4. Remoteness in psychiatric injury cases

   Annotations:

   • Degree of foreseeability needed depends on whether victim is primary or secondary. 
   1. Primary Victim

      Annotations:

      • Defendant must or should have foreseen some physical injury to claimant Even if no physical injury occurs, but psychiatric injury does, defendant is still liable.
   2. Secondary victims

      Annotations:

      • Psychiatric injury must be foreseeable in a person of reasonable fortitude in the circumstances