CAUSATION IN FACT

BUT FOR TEST

 The claimant must prove that harm would not have occurred 'but for' the negligence of the
defendant.
 Sometimes, it may be clear that the defendant's breach of a duty did not actually cause the
harm suffered by the claimant.
 Also known as causa sine qua non
 If a result would not have happened but for a certain event then that event is a cause; contra-
wise, if it would have happened anyway, it is not a cause
PROOF OF CAUSATION
 The claimant must prove, on the balance of probabilities, that the defendant's breach of duty
caused the harm. The defendant does not have to provide an explanation for the cause of harm
but a failure to do so may be a factor in deciding whether the claimant's explanation of the
cause should be accepted.
MULTIPLE CAUSES
 Where there are a number of possible causes, the claimant must still prove the defendant's
breach of duty caused the harm or was a material contribution.
 Where the claimant's case is based on proving a material contribution to the damage, the
defendant is responsible only for that part of the damage to which his negligence has
contributed.
 The case of McGhee has also been applied to a case where there were three possible causes of
injury.
CAUSATION IN LAW
• Issue of fairness and legal policy. Gun example pg. 162
ACTS OF THIRD PARTIES
The defendant may be responsible for harm caused by a third party as a direct result of his negligence,
provided it was a highly likely consequence.
ACTS OF THE CLAIMANT
If the claimant suffers further injury as a result of his own actions, there will be a break in the chain of
causation only if the claimant acted unreasonably.
A defendant may be responsible where the claimant commits suicide following the defendants'
negligence. However, damages will now be apportioned under the Law Reform (Contributory
Negligence) Act 1943.
REMOTENESS OF DAMAGE
THE CONTRASTING APPROACH OF THE APPELLATE COURTS
The opinion of the Court of Appeal was that a defendant was liable for all the direct consequences of
his negligence, no matter how unusual or unexpected:
Re Polemis [1921] 3 KB 560
The opinion of the Privy Council was that a person is responsible only for consequences that could
reasonably have been anticipated.
MANNER OF OCCURRENCE
If harm is foreseeable but occurs in an unforeseeable way there may still be liability.
However, there are two cases which go against this decision:
TYPE OF HARM
The damage must be of the same type or kind as the harm that could have been foreseen.
Note that only personal injury of some kind needs to be reasonably foreseeable where a primary
victim suffers psychiatric harm.
EXTENT OF HARM
The defendant will still be liable, provided the type of harm and its manner was reasonably
foreseeable, if the extent of the harm was not foreseeable.
EGGSHELL SKULLS
It is well-established that 'The tortfeasor must take his victim as he finds him'. The defendant will be
responsible for the harm caused to a claimant with a weakness or predisposition to a particular injury
or illness.
• The rule states that, in a tort case, the unexpected frailty of the injured person is not a valid defense
to the seriousness of any injury caused to them.
FAIRCHILD EXCEPTION
The Fairchild exception is a relaxation of the normal test for causation. A mesothelioma victim is
able to prove that a particular exposure to asbestos caused the mesothelioma by proving that the
exposure was such as to create a "material increase in risk" of the victim contracting the disease.
Fairchild experiment applies to ‘single exposure’ cases
• In other cases it was appropriate to apply ‘the doubling of risk’ test
• Unreliability or inadequacy of the data currently available on the incidence of the risk
• Cases of ‘single exposure’ raised exactly the same issue of the impossibility of proof of
causation and therefore the same policy justification for the application of the
Fairchild exception
Is the Fairchild exception limited to cases of ‘single agency’?
• C must have contracted the disease in question and it must be impossible to prove on the balance of
probability that D’s breach of duty caused the disease or made a material contribution to it
• Fairchild- single agent/multiple agents operating in the same way
Fairchild exception limited to mesothelioma cases?
Advances in medical science
• ‘single fibre’ theory in Fairchild has been discredited
Remoteness of Damage (Scope of Liability)
• No D is responsible ad infinitum for all the consequences of his wrongful conduct, however remote
in time and however indirect the process of causation, for otherwise human activity would be
unreasonably hampered
The Wagon Mound Test
Two competing views
• (1) consequences are too remote if a reasonable man would not have foreseen them
• (2) if a reasonable man would have foreseen any damage to C as likely to result from his act, then
he is liable for the direct consequences of it suffered by C
Re Polemis
Wagon Mound Test
• Following the Wagon Mound no 1 the test for remoteness of damage is that damage must be
of a kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant
 is liable for the full extent of the damage no matter whether the extent of the damage is
foreseeable.
• Fairness- hard on negligent D that he should be held liable for unexpectedly large damages, but it’s
not fair if C is left without any redress
• Simplicity
Scope of the Wagon Mound test
• Foreseeability is relevant not only for the purpose of asking whether a duty of care is owed and
whether D breached that duty but also in relation to remoteness of damage
• Wagon Mound No 2- foreseeability is the test for remoteness of damage in cases of nuisance also,
and, though they pointed out that liability in many cases of nuisance depends on fault and thus
on foreseeability, they stated that the same test must apply where this is not so
The competing rules compared
• Wagon mound has made little difference to law in terms of practical result
Simplicity
• Difficulties in directness test. But how is foreseeability test any easier?
• Change from one to another raise the question of the meaning of the ‘kind’ of damage which must
have been foreseeable
• ‘gets rid of the difficulties of determining causal connection by substituting the difficulty of
determining the range and extent of foresight of the hypothetical reasonable man
• No substitute for looking at all the facts.
Fairness
• The test of directness works unfairly according to the privy council
• If D harms an object of very high value, he can’t argue that he wasn’t aware of the high losses he
would have had to incur- some say this is unfair
Application of Foreseeability
Precision unnecessary as to the extent of damage or the manner of its infliction
• It is not necessary that the precise concatenation (series/succession) of circumstances should be
envisaged. If the consequence was one which was within the general range which any
reasonable person might foresee (and was not of an entirely different kind which no one
would anticipate) then it is within the rule that a person who has been guilty of negligence is
liable for the consequences
Pecuniary amount of the damage
• If D harms an object of very high value, he can’t argue that he wasn’t aware of the high losses he
would have had to incur
The same ‘kind’ of damage
• Three kinds of damages: injury to person, damage to property, pure financial loss
Wide meaning of ‘foreseeable’
• ‘foreseeable’ is very far removed from ‘probable’ or ‘likely’
• Reasonable man’s understanding
Foreseeability a relative concept
Claimant’s Lack of Means
The Liesbosch decision: no liability for loss due to claimant’s lack of means
Lagden v O’ Connor: no bar to recovery of loss due to claimant’s lack of means
• Changed Liesbosch precedent
A question of remoteness, or of mitigation?
• Placing of the burden on D to show that C had a realistic choice between taking an ordinary hire car
and using credit hire matches to approach mitigation, and subsequent decisions have regarded
it as a question of mitigation
• Mitigation in law is the principle that a party who has suffered loss (from a tort or breach of
contract) has to take reasonable action to minimize the amount of the loss suffered. ... The
onus on showing a failure to mitigate damages is on the defendant.
Further Principles
Remoteness not simply a question of foreseeability
• Wagon Mound Test should not mislead that foreseeability is all there is to law of remoteness
• D is not liable for a consequence of a kind which is not reasonably foreseeable; it doesn’t follow
that he is liable for all damage that was reasonably foreseeable
• Sometimes policy comes to the surface and a loss is dismissed as too remote simply because the
court does not think it reasonable or desirable to impose it on D

• Intended Consequences and Intentional Wrongdoers

• The intention to injure C disposed of any questions of remoteness of damage

• Intervening Acts or Events

• Consequence is too remote if it follows a ‘break in chain of causation’ or is due to a nova causa
interveniens
• This means that although D’s breach of duty is a cause of C’s damage in the sense that it satisfies
the ‘but-for’ test of causation in fact, nevertheless in the eyes of the law some other
intervening even is regarded as the sole effective cause of that damage
• Three classes of case fall to be considered:
• Where a natural event occurs independently of the act of any human being
• Where the event consists of the act/omission of a third party
• Where the event consists of the act/omission of C himself
• Does not mean that both can’t be the causes. C can recover damages from either/both
Intervening natural event
Intervening act of a third party
• If D’s breach of duty has done no more than provide the occasion for an entirely independent act by
a third party and that act is the immediate cause of C’s damage, then it will amount to a nova
causa interveniens and D will not be liable
• Novus actus interveniens is a Latin term which means a new intervening act. It is an act or event
that breaks the causal connection between a wrong or crime committed by the defendant and
subsequent happenings. The new event relieves the defendant from responsibility for the
happenings. The term is different from nova causa interveniens, which means a new
intervening cause.
The intervening act of a third party need not be tortious
• A wholly unpredictable but non-tortious intervention may break the chain of causation in one case
while in another even deliberate tortious conduct may not do so, though as a general
proposition it is probably correct to say that the further along the scale from innocent mistake
to willful wrongdoing the third party’s conduct moves the more likely it is to terminate D’s
liability
Negligent medical treatment
• Read from book 7-053
Intervening willful wrongdoing
• Even though A is in fault, he is not responsible for injury to C which B, a stranger to him,
deliberately chooses to do. Though A may have given the occasion for B’s mischievous
activity, B then becomes a new and independent cause
• Conduct of third party must be something very likely to happen if it is not to break the chain of
causation
Where defendant is under a duty to guard against intervener’s wrongdoing
• A bailee is under a duty to safeguard his bailor’s goods, is just as much liable where, by his default,
they are stolen by a burglar as he is where they are destroyed in a fire
Intervening act of the claimant
• Contributory negligence
Intervening willful conduct of the claimant
• Scope of Duty

• It has been emphasized that in deciding the scope of D’s liability for the consequences of his wrong
it is necessary to consider the nature of the loss against which the legal rule in question is
designed to keep the claimant harmless
SAAMCO
“Information”, or “advice”?
• SAAMCO was concerned with an obligation to provide info on the basis of which C could take a
decision. The position is said to be different where D undertakes to “advise” generally upon
the wisdom of entering into a transaction for he will then be liable for all foreseeable
consequences of it
Limits of the distinction between “information” and “advice”
• Unhelpful, doctor example (7-061)
Chester v Afshar
• A doctor owes a patient a duty to inform him of certain risks attached to treatment and it is clear
that if he breaches this duty

IMPORTANT CASES

• Chester v Afshar
• The claimant had suffered back pain for 6 years. This became quite severe and at times she
was unable to walk or control her bladder. An MRI scan revealed that there was disc
protrusion into her spinal column and she was advised to have surgery. The surgery carried a
1-2% risk that even if it was performed without negligence the operation could worsen rather
than improve her condition. Her consultant neurosurgeon Mr Afshar was under a duty to warn
her of this risk although he failed to do so. The claimant had the operation and unfortunately
 it worsened her condition. The trial judge found that the surgeon had not been negligent in
performing the operation but his failure to warn her of the risk was a breach of duty. The
claimant argued that if she had been warned she would not have taken the decision to have the
operation straight away but would have taken time to consider other options and discuss the
risks with her family and would thus not have had the surgery on the day which she did have
it. She did not say she would never have had the operation. The judge held that if she had the
operation on another occasion it may have been successful. He therefore found for the
claimant. The defendant appealed. The Court of Appeal dismissed the appeal and the
defendant appealed to the House of Lords on the grounds of causation in that she was likely to
have consented to the operation and that even if it had been on a different occassion it carried
the same risk.
• Held:3:2 decision (Lord Bingham & Lord Hoffman dissenting) appeal dismissed.
• Emeh v Kensington and Chelsea and Westminster Health Authority
• A sterilisation operation had been performed negligently and failed and the claimant was
born. 
 Held: The birth of a child with congenital abnormalities was a foreseeable
consequence of the surgeon’s careless failure to clip a fallopian tube effectively. The
authority could not expect her to terminate the pregnancy. The mother was entitled to recover
damages, including damages for her future loss of earnings, following the birth of a child with
congenital abnormalities who required constant medical and parental supervision.
• Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd (or SAAMCO)
• The plaintiffs were mortgagees. The defendants were valuers. The defendants negligently
over-valued properties and the plaintiffs then accepted mortgages of the properties. Later the
property market collapsed and the various borrowers defaulted and on sale the plaintiffs
obtained substantially less than the sums they had advanced. The relevant question was
whether the plaintiffs could include in their damages the difference in the value of the
properties between the time of entering into the mortgages and the sale of the properties. 

Held: Damages payable to a secured lender for a negligent valuation included losses
attributable to general market. Discussing liability where two causes contributed to the
damages: ‘the event which the plaintiff alleges to be causative need not be the only or even
the main cause of the result complained of: it is enough if it is an effective cause’
• Baker v Willoughby
• 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. Arguing that the second injury submerged or obliterated the effect of the first and
that all loss thereafter must be attributed 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.
• House of Lords held: The defendant remained liable for the loss of amenity and lower earning
capacity even after the amputation.
• Jobling v Associated Dairies Ltd
• Mr Jobling, a butcher, slipped on the floor at his place of work due to his employer's
negligence. He injured his back which caused him to reduce his earning capacity to 50% of
what it was. He then developed an independent back condition which was unrelated to the
injury which left him unable to work. The trial judge applied Baker v Willoughby and held
that the claimant was entitled to recover damages beyond the onset to the back condition. The
employer appealed.
 • Held: The House of Lords distinguished Baker v Willoughby and stated where the victim is
overtaken before trial by a wholly unconnected and disabling illness, the decision had no
application. The House of Lords were critical of the decision in Baker v Willoughby but
stopped short of overruling it.
• policy. Furthermore, that policy is not based upon a single justification but on a group of
reasons, which vary in different situations.’
 Lord Brown said: ‘The law cannot at one and
the same time incarcerate someone for his criminality and compensate him civilly for the
financial consequences.’
• Fairchild v Glenhaven Funeral Services Ltd
• This was a conjoined appeal involving three claimants who contracted mesothelioma, a form
of lung cancer contracted by exposure to asbestos. Mesothelioma can be caused by a single
fibre of asbestos. The condition does not get worse the greater the exposure. Once the fibre
has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour
which can then take 10 years to kill. It will be only the last 1-2 years where a person may
experience symptoms. By this time it is too late to treat. Each of the claimants had been
exposed to asbestos by a number of different employers. They were unable to demonstrate,
and medical science was unable to detect, which employer exposed each of them to the one
fatal fibre.
• If the claimants could demonstrate that one employer had materially increased the risk of
contracting mesothelioma they were entitled to claim full compensation from that one
employer.
• McGhee v NCB
• The claimant worked at the defendant's brick works. His normal duties did not expose him to
much dust but he was then asked to work on the brick kilns in a hot a dusty environment. The
defendant was in breach of duty in not providing washing and showering facilities. The
claimant thus had to cycle home still covered in the brick dust. The claimant contracted
dermatitis. There were two possible causes: the brick dust he was exposed to during the
course of his employment which was not attributable to a breach of duty and the brick dust he
was exposed to on his journey home which was attributable to a breach. The defendant sought
to distinguish Wardlaw's case by arguing that it was proved that every particle of dust inhaled
played its part in causing the onset of the disease whereas in this case it is not proved that
every minor abrasion played its part.
• The claimant only had to demonstrate that the dust attributable to the breach of duty
materially increased the risk of him contract dermatitis.
• .
• Sienkiewicz v Grief (UK) Ltd
• Following Fairchild, a defendant to a mesothelioma claim is liable if the negligent exposure
materially increased the risk of the claimant developing the disease. This exception to normal
causation principles applied whether there was a single defendant or multiple defendants.
• Gregg v Scott
• The claimant found a lump under his arm. He Consulted his doctor who negligently
diagnosed it as innocuous when in fact it was cancerous. This lead to a nine month delay in
the claimant receiving treatment. During this period the claimant's condition deteriorated and
the cancer spread. This reduced his prospect of disease free survival from 42% to 25%. The
delay also caused the claimant to undergo immediate high dose chemotherapy. The claimant
brought an action based on his loss of a chance of a disease free survival.
• Held 3:2
• Loss of a chance is not a recoverable head of damage in medical negligence claims. Hotson v
East Berkshire affirmed.
• Re Polemis
• Some Stevedores carelessly dropped a plank of wood into the hold of a ship. The plank struck
something as it was falling which caused a spark. The spark was ignited by petrol vapours
resulting in the destruction of the ship. The arbitrator held that the causing of the spark could
not have been anticipated and therefore no liability arose. The claimant appealed.
 • There was no requirement that the damage was foreseeable. The defendant was liable for all
the direct consequences of their action.
• The Wagon Mound 1
• The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour.
Some cotton debris became embroiled in the oil and sparks from some welding works ignited
the oil. The fire spread rapidly causing destruction of some boats and the wharf.
• Re Polemis should no longer be regarded as good law. A test of remoteness of damage was
substituted for the direct consequence test. The test is whether the damage is of a kind that
was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full
extent of the damage, no matter whether the extent of damage was foreseeable.
• Court held in favor of D
Two key findings:
1. It was unforeseeable that fuel oil spread on water and would catch fire. Some foreseeable
damage was caused to C’s wharf from the spillage of the oil as the oil had got on to the
slipways and interfered with their use.
2. Re Polemis rule shouldn’t be regarded as good law. ‘Direct’ should be substituted with
‘reasonably foreseeable’.
• The Wagon Mound 2
• The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour
due to the failure to close a valve. Some cotton debris became embroiled in the oil and sparks
from some welding works ignited the oil. The fire spread rapidly causing destruction of some
boats and the wharf.
• Held: The defendants were in breach of duty. Although the likelihood of harm was low, the
seriousness of harm was high and it would have cost nothing to prevent it.
• Lord Reid: In the present case the evidence shows that the discharge of so much oil on to the
water must have taken a considerable time, and a vigilant ship's engineer would have noticed
the discharge at an early stage. The findings show that he ought to have known that it is
possible to ignite this kind of oil on water. and that the ship's engineer probably ought to have
known that this had in fact happened before. The most that can be said to justify inaction is
that he would have known that this could only happen in very exceptional circumstances. But
that does not mean that a reasonable man would dismiss such a risk from his mind and do
nothing when it was so easy to prevent it. If it is clear that the reasonable man would have
realised or foreseen and prevented the risk then it must follow that the appellants are liable in
damages. The learned Judge found this a difficult case: he says that this matter is "one upon
which different minds would come to different conclusions". Taking a rather different view of
the law from that of the learned Judge, their Lordships must hold that the respondents are
entitled to succeed on this issue.
• Court held in favor of C