Generally, anything more than probable is treated as a certainty (and vice versa) (Mallett v McMonagle [1970]).
Bonnington Castings Ltd v Wardlaw [1956]
This is authority for material contribution where claimant cannot establish ‘but for’ causation due to inability to quantify contribution to damage between possible causes. The HoL held that a claimant does not have to establish that the defendant’s breach of duty was the substantial cause of damage as long as they can prove, on the balance of probability that it materially contributed the disease.
The claimant contracted lung disease from inhaling dust-polluted air in his workplace. There were generally 2 kinds of dust – ‘innocent dust’ where there was no breach of duty on the part of the employers and ‘guilty dust’ where the employers had failed to maintain requisite dust extraction machinery, from different sources within the workplace. On evidence, there was no proportion of dust inhaled by the plaintiff and thus could not establish ‘but for’ causation, in the sense that it was more probable than not that had dust extraction machine worked efficiently he would not have contracted the disease. Nonetheless, the HoL drew inference of the fact that the ‘guilty dust’ was a contributory cause, holding the employers liable for the full extent of the loss. The plaintiff did not have to proof that the guilty dust was the sole or even the most substantial cause as he could show on a balance of probabilities (the burden of proof remaining with the plaintiffs), that guilty dust had materially contributed to the disease. Anything which does not fall within the principle of de minimis non curat lex would constitute a material contribution.
Subsequently, in Nicholson v Atlas Steel Foundry & Engineering Co. Ltd [1957], on virtually identical facts the HoL held the employers liable even though, in the words of Viscount Simonds, it was ‘impossible even approximately to quantify’ the respective contribution of guilty and innocent dust.
These cases are significant in easing the claimant’s burden of proof for 2 reasons:
- They represent a departure from ‘but for’ causation – the claimant does not have to prove that he would not have suffered the damage but for the breach of duty. What he has to be proved is redefined as ‘material contribution’ to the injury or illness. But notwithstanding that the courts redefine the ‘damage’ to which the claimant must establish a causal link in more limited terms than the outcome, the claimant still recovers damages for the whole loss.
- The courts are willing to draw an inference of facts that there had been a material contribution when it was in reality impossible to say whether there had been any such contribution.
McGhee v National Coal Board [1972]
The claimant contracted dermatitis from the brick kiln he worked in. Although the defendants were held not liable for the exposure to the dust, they were held liable for not providing washing facility because this increased the period of time during which the claimant was exposed to the dust while he cycled home. While it was agreed that the dust had caused dermatitis, they could not say whether it was probable that the claimant would not have contracted dermatitis if he had been able to take a shower after work. Thus, he could not establish ‘but for’ causation in respect of ‘guilty’ exposure’. At best, it could be said that failure to provide washing facilities materially increased the risk of the plaintiff contracting dermatitis. And it was practice in the industry to provide showers. The HoL held the defendants liable on the basis that it was sufficient for the plaintiff to show that the defendants’ breach of duty made the risk of injury more probable even though it was uncertain whether it was the actual cause. The majority of their Lordships treated a ‘material increase in the risk’ as equivalent to a ‘material contribution to the damage’. Lord Simon said ‘the failure to take a step which would bring about a material reduction of risks involves, in this type of case, a substantial contribution to the injury’. This outcome may also be attributed to policy reasons as per Lord Wilberforce. It is to be noted that inference to time of exposure could have been made; nevertheless, the HoL took a less probabilistic stance and this case is important in that the defendants were not under statutory duty to provide showers.
In McGhee, Nicholson and Bonnington, the ‘material contribution’ aspect is succinctly stated:
‘If it is established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue, and if the 2 parties stand in such a relationship that one party owes a duty not to conduct himself in that way, and if the other party does suffer injury of the kind to which the risk related, then the first party is taken to have caused the injury by his breach of duty, even though, the existence and extent of the contribution made by the breach cannot be ascertained.’
Wilsher v Essex Area Health Authority [1986]
This is authority for proof of causation where there are multiple potential causes to an eventuality, all having equal chance of being the cause but only one of them is the cause. There were five possible causes including one which was created by the defendant’s mistake that could have caused the eventual harm. And the claimant suffered from the harm but he could not, on he balance of probability, prove that ‘but for’ the defendant’s negligence, he would not be blind because there was a 4 out of 5 equal chances that he would be blind anyway. In the Appeal courts, applying McGhee According to Mustil (in the court of appeal): ‘what the defendants did was not to enhance the risk…but add to the list of factor which might do so’. Wilkinson took the position that: ‘this case is wholly different from McGhee. A failure to take preventive measures against one out of five possible causes are no evidence as to which of those five caused the injury’. Thus, the claimant failed.
Fairchild v Glenhaven Funeral Services Ltd [2002] (UKHL)
This is authority where claimant suffers a detriment (not cumulative) due to the breach of duty by the defendant but claimant, for good reason, could not identify which defendant it was.
C was employed by A & B. During his course of employment he caught a disease but does not know from A or B (due to lack of scientific development). Furthermore, the disease is not the ‘cumulative type’ and the nature of the disease is such that it is sparked off at a single point in time. Thus, if he caught the disease when with A then that would absolve B and vice versa. All defendants were indeed in breech of duty for not taking steps to limit the possibility of conditions leading up to the disease but it was only that the claimants could not identify whom.
The HoL held on the basis that in the special circumstances (and in no other circumstances) of this type, there should be a relaxation of the normal rule that the claimant must prove that ‘but for’ the defendant’s breach of duty, he would not have suffered the damage. Bingham LJ:
‘…there is strong policy argument in favor of compensating those who have suffered grave harm at the expense of the employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only be caused by the breach of the duty and when science does not permit the victim to attribute between several employers…such injustice as may be involved in imposing liability on the duty breaking employer in these circumstances is heavily outweighed by injustice of denying redress to the victims’.
Fairchild applies where there are multiple defendants in breach of a similar duty because it is unfair or unjust as a matter of policy to deprive claimant compensation because he is unable to prove the impossible.
Situation in which the ‘but for’ test could be dispensed with:
- C was employed at different times and different periods for both A and B.
- A and B were both subject to a duty to take reasonable care or to take all practical measures to prevent the known risk and hence C from suffering the consequences.
- Both A and B were in breach of the duty in relation to C during both the periods C was subjected to the harmful condition.
- C subsequently suffers (disease) from the harm that arises out of the conditions he was subjected to in both A and B.
- Any other source of C’s disease can be effectively discounted.
- C cannot, due to the limitations of science, prove, on the balance of probabilities, that disease was a result of conditions during his course of employment at A and b or both.
If each of these conditions were satisfied, and there in ‘no other case’ then it was just and in accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him.
On the facts of Fairchild the claimant was entitled to full compensation from the negligent defendants. Each defendant is jointly and severally liable for the full loss. Thus, if the extent of the defendant’s contribution is unknown then he is liable in full.
Therefore,
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Where there are multiple tortfeasors and they all add to the risk of damage caused by the same noxious agent then the principle of McGhee/Fairchild applies.
-
Where there are a number of ‘innocent’ possible causes of damage and D adds a further ‘guilty’ possible cause, the increase in overall risk cannot be equated with a material contribution to the damage. Wilsher
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McGhee/Fairchild may apply where there are multiple tortfeasors and they add to the risk of damage caused by different noxious agents, but by the same or broadly the same mechanism
Fitzgerald v Lane [1987]
Applying McGhee, the Court of Appeal held that both the defendants who caused the pedestrian to become tetraplegic were liable.
Thompson v Smiths Ship-repairers (North Shields) Ltd [1984]
If the extent of the defendant’s contribution is known, the defendant is liable to that extent and no more. Thus, in the defendant was held only responsible to the part of the deafness that occurred after the exposure to noise became breach of duty.
Here, the plaintiff suffered progressive hearing impairment due to industrial noise and it was held that the defendants were only liable for that part of the deafness accruing after the exposure became breach of duty.
In Performance Cars Ltd v Abraham [1962], the defendant was liable only the additional damage he caused to an already damaged car. Here, the defendant’s car was damaged by D1 and subsequently by D2. It was held that D2 was liable for that part of his damage.
Holtby v Bringham & Cowan (Hull) Ltd [2002]
The claimant suffered asbestosis which is a cumulative disease. The claimant had worked with the defendant for half his working life and in similar environment in other times. It was held that the defendant is only liable for the period of the breach of duty. Despite the material contributory nature of the defendant’s breach, unlike the other cases such as Bonnington, asbestosis was a ‘divisible’ damage as it is cumulative. It was also said that, strictly speaking, the claimant is only entitled to damages to the extent of the claimant’s breach. However, if the point is never raised by the defendant, the claimant will succeed in full.
In Allen v British Rail Engineering [2001], Holtby was applied even where it was impossible to be precise about the attribution, but the damage was nevertheless cumulative. The judge apportioned damages by reducing (1) a sum to represent damage sustained prior to the point in time at which the defendants were in breach of duty, (2) sum to represent damage sustained after the claimant ceased to be employed by the defendants (3) a sum to take account of the damage already suffered and the fact, that on the evidence the exercise of reasonable care by the defendants would only have reduced the claimant’s exposure by half.
Tahir v Haringey Health Authority [1998]
The claimant alleged that the delay in operating on him due to his condition had worsened his prospect of recovery. The court held that where there has been negligence resulting in delayed medical treatment it is not sufficient for the claimant to show that there was material increase in the risk or damage. He has to go further and prove that damage was actually caused. In the absence of findings of fact that identify or quantify the additional damage, it was not appropriate for a judge to adopt a proportionate approach by quantifying the total disability and then asking what proportion of the disability is attributable to the delay.
Causation in Law
‘Two causes may both be necessary precondition of a particular result – damage to X – yet the one may, if the facts justify that conclusion, be treated as the effective, and the other ignored for the purposes of legal liability (Stapely v Gypsum Mines Ltd [1953]). Having eliminated irrelevant factual ‘causes’ by the ‘but for’ test, the court must still decide which of the 2 or more factual causes are to be regarded as the cause in law of the claimant’s damage (i.e. the cause for the purpose of attributing legal responsibility).
Successive sufficient causes
When 2 independent events, each of which would be sufficient to cause the harm, occur simultaneously, the practical solution is to say both caused the harm (Cook v Lewis).
Performance Cars Ltd v Abraham [1962]
When 2 events are separated in time, generally, the first event should be treated as the cause. Certainly, this is so where the tort comes the second. This case is authority for cases where the claimant or his property is damaged in some ways; the defendant is responsible only for the additional damage that he has caused.
Here the defendant was held not liable for damaging the plaintiff’s car which was already damaged and required re-spray. But the negligence of the defendant did not necessitate a higher cost in repairs than what it would have cost him to repair if the second accident would not have taken place. Thus, the defendant was not liable.
Carslogie Steamship Co. Ltd v Royal Norwegian Govt. [1952]
This is authority for actus novus interviniens.
Even when the tort occurs first, the subsequent event may supervene, removing the causative potency of the original wrong
The plaintiff’s ship was damaged solely by the negligence of the defendants. It was then, to sail to the US for repairs and in its course, met a storm and suffered more damage. The collision damage and the heavy-weather damage were repaired together, taking 51 days. The collision damage alone would have taken only 10 days. HoL held that the plaintiffs could not claim for the loss of the use of the vessel for the 10 days attributable to the defendants as the ship was in any event out of use at that time for heavy-weather damage repairs. Thus, the whole loss was attributed to the subsequent innocent cause.
In Baker v Willoughby [1970]
The plaintiff’s leg was injured in a road accident caused by the defendant’s negligence. This affected his mobility and reduced his earning capacity. Subsequently, the plaintiff was shot in the same leg by robbers at his work place and had to amputate that leg. The defendant argued that he should only have to compensate for the loss up to the date of the robbery. HoL disagreed and held that the defendant remained responsible for initial disability after the amputation.
If the robbers had been sued, they would have been liable only for the additional loss that they had inflicted and not the whole disability. The defendant’s argument would have left the plaintiff under-compensated because he would not have been compensated at all for the original injury after the robbery occurred. It would have been clearly wrong that the plaintiff should fall between 2 tortfeasors in this way, receiving less in damages than he would have received had there been no interval between the 2 torts. Lord Reid said in the case: ‘a man is not compensated for the physical injury. He is compensated for the loss he suffers as a result of that injury. His loss is not having a stiff leg, it is in his inability to enjoy the basic amenities of life that depend on the freedom of movement and his inability to earn as much as he could have earned. The second loss did not reduce these losses, so it should not be obliterated’.
In Jobling v Associated Diaries Ltd [1982] the second successive sufficient causation was not a tort but a conditioned the plaintiff subsequently suffered. Thus the HoL apportioned the damages such that the defendants were only liable for the reduced earning of the plaintiff for the period before the intervening condition. After which the supervening disease terminated their responsibility. This result was decided not on the basis of causation but on the ‘vicissitude argument’
Vicissitude argument –
When assessing damages for the future loss of earning, the awarded is discounted for the possibility that other contingencies might, in any event, have reduced the claimant’s earning capacity or working life. A subsequent illness is one of the ‘vicissitude of life’ and, applying the principle that the court will not speculate about future events when the facts are known.
Heil v Rankin [2001]
Here, the claimant was involved, in the course of his employment, an even that triggered of post-traumatic stress disorder. As a result he was unable to continue being employed. The judge reduced the claimant’s award of damages on the basis that had he remained in employment and experienced another such (tortious) incident, he would have to give up work in any event.
The Court of Appeal held that when assessing damages for the future loss of earnings, where there was a risk that the claimant might become the victim of a tort in the future which would have caused him to give up work, that risk would be taken into account, thereby reducing the loss of future earnings claim. The court rejected Willoughby argument and applied the vicissitudes argument, on the ground that otherwise the claimant was likely to be over-compensated. If the claimant was to be compensated on the basis that he would have continued employment till retirement, but it was likely that future tortious acts would have caused him to give up employment, then it was ‘self-evident’ that he was being over-compensated.
Intervening Act
Sometimes, the defendant’s negligence forms part of a sequence of events leading to harm to the claimant. Where the act of another person, without which the damage would not have occurred, intervenes between the defendant’s negligence and the damage, the court has to decide whether the defendant remains responsible or whether the acts constitute a novus actus intervieniens - whether the subsequent act can be regarded as breaking the causal connection between the negligence and the damage.
There are 2 approaches to deciding if an event is an novus actus intervieniens:
The test asks whether the act was ‘reasonable’ in the circumstances (i.e. was it part of the ‘ordinary cause of things’ which flowed from the wrongful act). This has to be measured against the nature of the risk created by the defendant. ‘Reasonable’ in this context tends to relate to the voluntariness of the act. Not whether it was careless. The more voluntary the act the less reasonable it is and the more potent is its causative effect. Careless behavior will generally be less potent causally than a voluntary act, even if the act can be called ‘reasonable’.
Alston v Marine Trade Insurance Co. Ltd [1964]
The plaintiff was a victim of tort created by the defendants. In hospital, he ate cheese that reacted with the medicine he took which caused a stroke. The latter event was reasonable but the consequences were unforeseeable thus, the defendants were not liable for that.
The Oropesa [1943]
Here, 2 ships collided as the result of the defendant’s negligence. Despite bad weather conditions, the master of one ship sailed to the other ship to confer with the master and in the course of sailing, some crew in the lifeboat drowned. The plaintiffs (the parents of the drowned sailors) brought an action against the defendants who claimed that the master’s decision to sail was an novus actus intervieniens. The court disagreed. It said to constitute novus actus intervieniens the act must be ‘…ultroneous, something unwarrantable, a new sequence of events, something which can be described as unreasonable or extraneous or extrinsic.’
The fault approach turns on the foreseeability of the intervention.
Thus, the question is, was the defendant under a duty to prevent the very intervention that occurred? Where the defendant was under a duty to exercise reasonable care to prevent the very event that occurred, he cannot complain that the intervention broke the causal link since that would render the duty ineffective (Reeves v commissioner of Police for the Metropolis [1999]).
The 2 can overlap. The intervention was both reasonable and foreseeable; it will constitute an novus actus intervieniens. If it was both unforeseeable and unreasonable, it is not. But there can be a third possibility: intervention was reasonable but unforeseeable or, it may not have been possible to anticipate the consequences of otherwise reasonable actions (Robinson v Post Office [1974]). The following were noted:
- The intervention was reasonable arising in the ordinary course of events, and so did not break the chain of causation, or
- The unforeseen consequences of a foreseeable and reasonable intervention are within the risk created by the defendant’s negligence, or
- Some complication from the medical treatment is foreseeable and it is not necessary to foresee the precise manner of its occurrence.
- The intervening act was foreseeable but unreasonable. In some cases, foreseeable intervening acts, which are unreasonable or negligent, are regarded as breaking the chain of causation, whereas in other cases, even criminal acts may not absolve the defendant’s liability.
The general rule is that a person is not liable for harm caused by the deliberate action of another (Weld-Blundell v Stephens [1920]). A special relationship between the defendant and the claimant, or the defendant and a 3rd party may create a duty to prevent harm to the claimant. This however, is the exception. The classification of intervening acts ranges from involuntary (and therefore reasonable), through carelessness (which may or may not be reasonable depending on the circumstances), to the deliberate, in the sense that the act has not been forced upon the actor by the defendant’s negligence. There is no liability for deliberate intervention unless the defendant was under a duty to prevent that very occurrence.
Intervention by 3rd parties
Faced with an emergency created by the defendant’s wrong a reasonable response by a 3rd party will not constitute novus actus even though with hindsight, an alternative action might have been preferable. This applies not only to involuntary or instinctive reactions in the alarm of the moment (Scott v Shepherd (1773)) but also where there is an opportunity for a more considered action (The Oropesa [1943]).
Similarly, when the intervention is by a person who is not fully responsible for his actions such as a young child, where the child mischievously threw a stone at a horse which was left in the carriageway, the defendant is fully liable for the defendant’s damage sustained in bring the horse to a halt (Haynes v Harwood [1935]).
Perhaps, a deliberate and wrongful conduct on the part of an adult being held not to constitute an actus novus even though it was unforeseeable may not absolve the defendant’s liability (Philco Radio and Television Corporation of Great Britain Ltd v J. Spurling ltd [1949]).
Topp v London County Bus (South West) [1993]
The defendants had left a bus with keys in ignition and doors open at a location for 9 hours. The person who should have taken over the bus had failed to arrive. Joyriders took over the bus and killed Topp. The defendants were held not liable. It was held that no duty was owed.
Stansbie v Troman [1948]
The defendant contractor had left the plaintiff’s house door open and went away. A burglar came and stole a diamond bracelet. The criminal act was not considered a novus actus intervieniens. The defendant was held liable for the loss.
Knightly v John [1982]
An accident occurred due to the negligence of the plaintiff. The traffic policeman attended to the accident but had failed to close the gate at the tunnel. He asked another policeman to drive in the opposite direction of traffic to close the gates. This resulted in another accident with a stationery vehicle.
The Court said: the question to be asked is whether the whole sequence of events is a natural and probable consequence of the defendant’s negligence and whether it is reasonably foreseeable, not foreseeable as a mere possibility. In answering this question, it was ‘helpful but not decisive’ to consider which event were deliberate choices to do deliberate positive acts and which were mere omissions, which acts and omissions were innocent mistakes or miscalculations and which were negligent. ‘Negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction’.
Where the intervening conduct may be classified as reckless, it is far more likely to be considered a novus actus intervieniens (Wright v Lodge [1993]).
Intervening negligent medical treatment can, but will not necessarily, break the causal link between an initial injury and an aggravation of that injury due to the medical treatment. It requires a serious act of negligence by the medical staff (Rahman v Arearose Ltd), amounting to a completely inappropriate response to the patient’s condition, to break the causal link.
If the claimant acts reasonably, in seeking or accepting treatment, negligence in carrying out the treatment is not necessarily a novus actus intervieniens, which relieves the first tortfeasor from liability for the claimant’s subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given (Webb v Barclays bank plc and Portsmouth hospitals NHS Trust [2001]).
The foreseeability of an intervening act may be a useful guide to assessing comparative blameworthiness but it is not decisive. In Lamb v London Borough Council [1981] the court concluded that the defendants were held not liable for damage done by squatter subsequent to the negligence of the defendants. Nevertheless, in a very similar case of Ward v Cannock Chase District Council [1985] the defendants were held liable for damage done by thieves and vandals.
Intervention by Claimant
When it is the claimant whose act intervenes, the same principles apply, although the emphasis seems to be on whether he acted reasonably.
Summers v Salford Corporation [1943]
It will not be a novus actus intervieniens ‘even though the accident and the damage would not have happened but for some action of the plaintiff, so long as his action was in the ordinary course of things and, at least generally speaking was not blameworthy’
McKew v Holland & Hanmen & Cubbits (Scotland) Ltd [1969]
The HoL held that the plaintiff (who had a bad leg from a previous tort) whose actions of taking the stairs without assistance were unreasonable although it was the defendants who contributed to his problems in the first place.
Weiland v Cyril Lord Carpets Ltd [1969]
It was held that the defendants were liable for the fall sustained by the plaintiff since it was foreseeable that the neck injury caused by the defendants will restrict her visual scope though her bifocals
The usual technique for handling negligent claimants is the defense of contributory negligence which gives rise to the apportionment of damage.
Sayers v Harlow district Council [1958]
The plaintiff attempted to became trapped in the toilet cubicle. She attempted to escape by climbing our. She used the toilet-roll stand as support. It gave way and she sustained injuries. Her conduct was unreasonable and therefore, she assumed some part to her damage and was thus held contributory negligence.
As with intervention by a third party, once the court has determined that the defendant was in breach of duty to exercise reasonable care for the claimant’s safety, the claimant’s negligent conduct should not be treated as an actus novus but should be dealt with as a question of contributory negligence.
In the case of Mach v E. & M. H. Stramare Pty Ltd (1991) in Australia, the High Court held that the defendant owed a duty of care to all road-users, including the ‘inattentive and those whose faculties were impaired by alcohol’. The plaintiff’s negligence did not take him out of the class of persons to whom the defendant owed a duty of care. Once it is accepted that the defendant owed a duty of care to take reasonable precautions against negligent conduct by others, he cannot assert that the circumstances which give rise to a breach of duty constitute a novus actus intervieniens.
Thompson v Toorenburgh (1975)
The failure to provide a novus actus intervieniens which would have saved an accident victim’s life was not the same as committing a novus actus intervieniens that caused her death. The defendant who caused the accident was liable for her death.
Reasonableness’ is also used to indicate an element of involuntary conduct, as well as carelessness, when the claimant’s at intervenes.
Pigney v Pointer Transport Services Ltd [1957]
The defendants were held liable for the suicide of the claimant who suffered head injuries that resulted in such proclivities as the act in this case was not sufficiently unreasonable to constitute novus actus intervieniens.
Kirkham v Chief Constable of Greater Manchester Police [1989]
The defendants were held liable for the suicide of an accused. The Judge held that suicide was the very thing that they were supposed to prevent when accused are taken into custody. This was ratified by the HoL in Reeves v Commissioner of Police for the Metropolis [1999]. It was also said where the law imposes a duty to guard against loss caused by the fire, deliberate and informed act of a human being, it would be nonsense of the existence of such a duty if the law were to hold that the occurrence of the very act which ought to have been prevented negatived causal connection between the breach of duty and the loss. But by most objective criteria suicide is usually an unreasonable act.
Cutler v United Diaries (London) Ltd [1933]
A claimant injured in a rescue attempt is not novus actus interveniens, unless the emergency has passed. This can be justified on the basis that the rescue is foreseeable or it is a reasonable intervention.
Baker v T E Hopkins & Sons Ltd [1959]
A rescue will not necessarily be undertaken on the spur of the moment, but conscious deliberation will neither break the chain of causation nor render the rescuer volenti even when injury is inevitable.
McFarlane v Tayside Health Board [1999]
The refusal of a claimant who is pregnant, following a negligently performed sterilization operation, to undergo an abortion is not unreasonable and so does not constitute a novus actus intervieniens.
Sabri-Tabrizi v Loathian Health Board [1998]
A claimant who knew that she was not sterile after undergoing a failed sterilization operation, decided nonetheless to have unprotected sex did break the chain of causation between the negligent performance of the surgery and the subsequent birth of the child.
Loss of Chance
The valuation of a ‘lost chance’ would arise only once ‘causation’ had been established (appears so with the House of Lords decision on Hotson). Lost of chance is actionable in contract (Chaplin v Hicks [1911]). Damages are then discounted to reflect his chances of success in the original action. This applies notwithstanding that the claimant’s chance of success in the original action is put at less then 50% (Corfield v D.S. Bosher & Co. [1992]).
Kitchen v Royal Air Forces Association [1958]
This is a contract case. It was held that a client, in an action against a solicitor does not have to prove that he would have won the other case ‘merely that he has lost some right of value some chose in action of reality and substance’. Thus the lost of chance was recognized as actionable.
Allied Maples Group Ltd v Simmons & Simmons [1995] - Contract Case
In this case the negligence of the solicitors made their clients carry more liability. Suppose proper advice was given, there was a good possibility that the plaintiffs would have taken steps to limit the damage. Stuart-Smith LJ said: ‘the classification of the causation issue into all or nothing on the balance of probabilities or the quantification of the loss of a chance depends upon whether the negligence consists in some positive act, misfeasance, omission or nonfeasance.
1. In the case of positive facts of misfeasance, the question of causation is one of historical fact, which once established on the balance of probabilities is taken as true. The claimant recovers damage in full. Quantifying the claimant’s loss however, may depend upon uncertain future events, such as the degree to which his medical condition will deteriorate or improve, etc. These issues are dealt with on the basis of an assessment of the risk often expressed in percentage terms, that the event will or will not occur.
2. Where the defendant’s negligence consists of an omission (failure to provide equipment, good advice etc.), causation depends not on historical fact but on an answer to the hypothetical question: What would the claimant have done otherwise? This will be a matter of inference to be determined from all circumstances. Although the question is a hypothetical one, the claimant must prove on the balance of probability that he would have taken action to obtain the benefit or avoid the risk, and as with positive acts or misfeasance, if he does establish that, there is no discount of the damages because the balance is only just tied in his favor.
3. Where the claimant’s loss depends on the hypothetical action of an independent 3rd party, either in addition to action by the claimant or independently of it, the claimant does not have to prove on the balance of probability that the 3rd party would have acted so as to confer the benefit or avoid the risk to the claimant. The claimant succeeds if he shows that he had a substantial chance, as opposed to a speculative one, that he would have been successful in negotiating total or partial protection, the evaluation of the substantial chance being a question of quantification of damages. There is no difference in principle between the chance of gaining a benefit and the chance of avoiding a liability. Nor does it depend upon the claimant proving that the chance of success is over 50%.
Spring v Guardian Assurance plc [1994] - Tort Case
Lord Lowry:
‘Once the duty of care is held to exist and the defendant’s negligence is proved, the plaintiff only has to show that by reason of that negligence he has lost a reasonable chance of employment (which would have to be evaluated) and has thereby sustained loss…he does not have to prove that, but for the negligent reference, the third party would have employed him’.
In Davies v Taylor [1974] (HoL) – Tort Case
The plaintiff, widow of the deceased had left her husband 5 days before he died due to the negligence of the defendants. The defendants relied on the chance that they will not be together anyway, but the Court held that the defendant is liable to the widow.
Lord Reid:
‘…You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think that the law is so foolish as to suppose that you can. All you can do is valuate the chance. Some times it is 100% other times less….but I do not see the difference between 49% and 50%.’
The effect of the Court of Appeal’s approach is that where causation depends upon what the claimant himself would have done in a ‘past’ hypothetical situation the claimant has to establish this on the balance of probabilities. This is also the position where the question turns upon what the defendant would have done in a ‘past hypothetical situation’ (Bolitho). But where it depends on the independent act of a 3rd party the claimant needs only to establish that there was a chance. This could mean that in some cases causation depends upon both proof of what the claimant or defendant would have done in a hypothetical situation (on the balance of probabilities) and what an independent 3rd party would have done (was there a substantial chance).
Remoteness of Damage
Remoteness refers to the extent to which a defendant is liable for damage when the damage is created by his fault. There are 2 broad approaches:
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A defendant is liable for all the direct consequences of his negligence no matter how unusual or unexpected (This is essentially a test based on causation). Only a novus actus intervieniens would deem it indirect (Re Polemis [1921]).
- A person is responsible only for consequences that could reasonably have been anticipated.
Although in theory it is now accepted that foreseeability is the correct test, in reality decisions as to exactly how foreseeable the consequence must be, in combination with the principle that a tortfeasor must ‘take his victim as he finds him’ mean that the limits of actionability set by remoteness of damage lie somewhere between these 2 approaches.
Foreseeability and Directness
The Wagon Mound [1961] was a Privy Council case that obliterated the ratio of
Re Polemis [1921]. The new ratio was a defendant was not necessarily liable for all his direct and indirect consequences of his actions even if the actions were negligent. Rather, one is liable for the consequences that were reasonably foreseeable by the actions. It was stated:
‘It is not the act but the consequence on which tortious liability is founded...the defendant’s liability depends on the reasonable foreseeability of the consequent damage.’
Reasonable foreseeability said their Lordships, corresponds with the common conscience of mankind whereas the direct consequence test ‘leads to nowhere never ending and insoluble problems of causation’.
Thus, the courts subsequently adopted foreseeability as a test of remoteness of damage in negligence. For the purpose of remoteness, once it is established that the damage sustained by the claimant was foreseeable, the likelihood that it would have occurred it irrelevant. In the Heron II [1969] Lord Upjohn said: ‘…the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach however, unlikely it may be, unless it can be brushed aside as far-fetched’.
The likelihood of the occurrence or degree of foreseeability relates to the determination of whether the defendant acted carelessly in the face of the risk. And it appears that the Wagon Mound (No.2) has gone someway in restoring causation as the test of remoteness because many things which could be regarded unlikely are foreseeable and yet are not necessarily ‘far-fetched’.
Foreseeability too cannot be specified in exactitude. Thus, it gives the courts scope to manipulate the outcome of a particular case by defining what has to be foreseen either broadly or narrowly. The narrower the range of events or damage that must be anticipated, the more difficult it is for the claimant to overcome the remoteness hurdle. After the Wagon Mound, the courts quickly came to the conclusion that provided that the type of harm or damage sustained by the claimant could have been foreseen, it did not matter that its extent or the precise manner of its occurrence could not have been foreseen.
Manner of the Occurrence
Hughes v Lord Advocate [1963] – also Jolley v Sutton London Borough Council [2000]
Here 2 boys went into a manhole that was covered with canvas sheet with paraffin lamps found near the manhole. It was foreseeable that children may wonder into the manhole. An explosion took place and one of them was seriously injured.
The court held that fact that damage occurred in an unforeseeable way does not necessarily mean that it was not foreseeable. In that case, it was said that, it is not necessary that the precise details leading up to the accidents should have been reasonably foreseeable, ‘it is sufficient if the accident which occurred is a type which should have been foreseeable by a reasonably careful person’. Thus, the precise concatenation of events need not be anticipated if the harm is within the general range of what is reasonable foreseeable.
Doughty v Tuner Manufacturing Co. Ltd [1964]
An asbestos cover was knocked over into a bath of molten liquid. Due to a chemical reaction which was unforeseeable at that time an explosion took place and burned the plaintiff.
The HoL held that the asbestos falling and a subsequent splash were foreseeable and thus found for the victim.
Crossley v Rawlinson [1981]
The plaintiff was running towards a burning vehicle with a fire extinguisher. Unfortunately, he tripped in a concealed hole and was injured. It was held that because the plaintiff had not reached the scene of danger, the injury was unforeseeable and therefore too remote.
Type of Damage
The damage will be too remote if it is not of the same type or kind as the harm that could have been foreseen.
As far as harm to property is concerned, Rees J in Vacwell Engineering Co. Ltd v BDH Chemicals Ltd [1971] said:
‘It would also be foreseeable that some damage to property would or might result. In my judgment, the explosion and the type of damage being foreseeable, it matters not in the law that the magnitude of the former and the extent of the later were not’.
As far as harm to person is concerned:
Bradford v Robinson Rentals Ltd [1967]
It was held that frostbite as a consequence to exposure to extreme cold was foreseeable.
Tremain v Pike [1969]
It was held that although injury from rat-bites or contaminated food is foreseeable, this particular disease resulting from contact with rat’s urine was unforeseeable.
Draper v Holder [1972]
Davies LJ said: ‘the proper test in negligence is not whether the particular type of physical harm actually suffered ought reasonably to have been anticipated, but whether broadly speaking it was within the range of likely consequence.
Hepworth’s v Kerr [1995]
The anesthetic technique administered created a foreseeable risk of damage and although the injury that occurred was different from the damage that was foreseen, nevertheless, the courts held that the injury that occurred was but a ‘variant of the foreseeable’.
Page v Smith [1995]
The HoL held that if physical injury to the plaintiff was foreseeable the defendant was liable for psychiatric damage which the plaintiff sustained as a result of the defendant’s negligence, even though physical injury did not in the event occur and the psychiatric damage was itself unforeseeable. Lord Lloyd said: ‘there is no justification for regarding physical and psychiatric injury as different kinds of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff it matters not whether the injury in fact sustained is physical, psychiatric or both’. It is irrelevant that the illness takes a rare form or is of unusual severity. Any recognized psychiatric illness will be sufficient, and the defendant need not foresee the particular illness developed by the claimant.
Extent of Damage
If the type of harm and the manner of its occurrence was foreseeable, it is irrelevant that the physical extent of the damage was unforeseeable.
In Hughes v Lord Advocate [1963], Lord Reid said:
‘No doubt it will not be expected that the injuries would be as serious as those which the appellant in fact sustained. But a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable’.
This applies as much to psychiatric injury as it does to other types of personal injury and irrespective of any disposition on the claimant’s part which, unknown to the defendant, increases the likelihood of more extensive harm (Brice v Brown [1984]).
The same principles apply to property damage (Vacwell Engineering Co. Ltd v BDH Chemicals [1971]). It was held that it was irrelevant that the magnitude of the explosion and resulting damage was unforeseeable.
Liability for the unforeseeable physical extent of otherwise foreseeable harm should be distinguished from the measure of damages, in financial terms, required to compensate the claimant’s loss. If the defendant injures someone with a large income or damages very valuable property, he cannot object that the monetary cost of compensation is greater than if he had injured someone of lower income or property of less value (Smith v London & South Western Railway Co. (1870) – The Arpad [1934]).
The Trecarrell [1973]
The defendants were held liable for the extensive damage caused by the fire that resulted from the defendant’s employee dropping a barrel of highly flammable substance on a cable which ignited due to sparks from now cut cable. The defendant was held liable on the basis that dropping the drum created a foreseeable harm although the extent of the harm may not necessarily be as apparent.
The Eggshell Skull Rule
This rule basically requires the defendant to take his victim as he is. Thus, the defendant cannot absolve responsibility for unforeseen damage by blaming the plaintiff’s predispositions. The Eggshell Skull rule overlaps, but is not coextensive, with the general principle that the extent of the harm need not be foreseeable.
The rule applies almost to any predisposition including fragile scull (Owens v Liverpool Corporation [1939]), weak heart (Love v Port of London [1959]) etc.
Smith v Leech Brain & Co. [1962]
The court held that the defendants were liable for the death of the plaintiff who contracted cancer due to a premalignant condition which was exacerbated when a molten metal burnt him although he recovered from the burn itself. Lord Parker said:
‘The test is not whether the defendants could reasonably have foreseen that a burn would cause cancer and that the claimant would die. The question is whether these defendants could reasonably foresee the type of injury he suffered, namely the burn. What, in the particular case, is the amount of damage which he suffers as a result of the burn depends upon the characteristics and constitution of the victim’.
Robinson V Post Office [1974] - as above
The allergic reaction suffered by the claimant when a anti-titunus injection given was not deemed a novus actus intervieniens. The full damage including the allergic reaction was borne by the defendants although medical negligence nor its seriousness could not be foreseen.
McLaren v Bradstreet [1969]
However, the Thin Skull rule does not extend to the claimant’s family.
** The Thin Skull rule, ‘but-for’ test, material contribution to damage test as with all rules which function as guides to causation is concerned with the extent of the damage for which the defendant is liable for. When it comes to the assessment of damages as compensation for the damage caused by the defendant, an existing predisposition of the claimant to a particular injury may result in a reduction (i.e. discount) of damage awarded if there is evidence to show that the claimant would probably have developed the condition in any event.
Claimant’s impecuniosities
In the case Liebosch Dredger v SS Edison [1933], the HoL held that the defendants were not liable for the additional expense incurred by the claimant because it was not an immediate physical consequence of negligence; rather it was an extraneous matter. Accordingly, the plaintiff was not entitled to recover costs incurred. However, this stance has been attenuated since (as per Beldam LJ in Mattocks v Mann [1993]).
The Sivand [1998]
The plaintiff owned a marine terminal. The defendants negligently navigated an oil tanker and damaged it. The plaintiffs employed contractors to repair it. The work had to be delayed due to unforeseen conditions in the soil strata below. This led to additional costs that that the plaintiffs passed on to the defendants as part of overall cost of damage. The court of appeal held the defendants liable.
In Alcoa Minerals of Jamaica Inc. v Broderick [2000], Liebosch was further distinguished by the Privy Council. The Privy Council held that the cost of hiring a dredger was a separate head of damage from the cost of replacing the dredger, the cost of hiring being due to a separate cause, namely the plaintiff’s impecuniosity. But in Alcoa, there was only one head of damage, the cost of repairing the building. The need to repair the roof was a direct consequence of the tort and therefore, said the Privy Council; the real issue was whether the plaintiff had been in breach of his duty to mitigate the loss.
It seems that the plaintiff’s impecuniosities is within the ‘take your victim as you find him rule’.