CAUSATION

_____________________________________________
LAW OF TORTS

Submitted by:
AKASH DEEP SRIVASTAVA
ROLL NO.:2013011
SEMESTER I
________________________________________________________________
DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY
Visakhapatnam
OCTOBER 2013

ACKNOWLEDGEMENT
I owe a great many thanks to a great many people who helped and supported me
during the writing of this project .My deepest thanks to Lecturer MISS MERCY
DEBORAH
the Guide of the project for guiding and correcting various documents of mine
with attention and care. He has taken pain to go through the project and make
necessary correction as and when needed. I express my thanks to the vice
chancellor

of,

[DAMODARAM

SANJIVAYYA

NATIONAL

LAW

UNIVERSITY, VIZAG], for extending his support. Thanks and appreciation to

the helpful people at [DSNLU Library ] for their support. I would also thank
my Institution and my faculty members without whom this project would have
been a distant reality. I also extend my heartfelt thanks to my family and well
wishers

TABLE OF CONTENTS

S. NO.
1

Particulars
Introduction

Page No.
3

2
3
4
6
7
8
9
10

Test of casual relation

Test of proximity
Test of directness
Test of forseeability
Different categories of causation
Test of causation
Conclusion
Bibliography

4
5
6
8
10
11
13
13

Books

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1-

INTRODUCTION

In an action for negligence the plaintiff should prove, besides negligence, its casual relation
to the harm complained of .However,it is not merely in this action that the question of casual
relation is material. It arises in case of intentional wrongdoing.In whatever context it arises
,the problem of causation is one of determining legal responsibility.It is solved by courts in
accordance with the ideas of justice, experience or policy even the prejudice prevalent at the
time.In ordinary speech, the word is often used to fix normal responsibility on some person
and naturally its meaning varies with the occasion and with the ideas of speaker.He would
select as the cause that among several causes contributing to a result which express his ideas
of right and wong.Obviously very great variation of openion can occur on this
subject.Sometime the words are used without any suggestion of human responsibility and for
expressing the sequence of natural events as where an excessive rainfall is said to be the
cause of flood and damage. A philosopher goes deeper into significance of these words and
may argue that casual relation exists only in mens mind and does not represent anything that
is genuinely to be found in physical world .So we must be on our guard and remembered that
when we speak of cause we are using a rather overworked phrase fr a special purpose in law
viz.,the purpose of indicating legal responsibility as a court conceives it.

2-

Test of casual relation

Court s have ,for a long time, attempted and really struggled to invent a working test to solve
the problems of casual relation which arise before them.However,the circumstances in which
those problems arise are so varied and infinite that no single test or formula will suffice.the
problem of causation is nothing more than the problem of liability or responsibility.How can
we have a single yardstick by which we can measure the responsibility of parties to pay
damages in the numerous variations of facts that may arise? The only way of solving problem
is to answer the question on the facts of each case,is it or not just on the facts in the case t
hold the defendant, the negligent actor by reason of his conduct,responsible for the harm
suffered by the plaintiff? This perhaps is an easier task than to discover a principle of general
applications which does not exist.the latter,however,is the couse that has been pursued by
judges for nearly a century and more in England.The method adopted has been first , t
describe or misdescribe ,in England. The problem of responsibility as one of causation or
cause and effect in other words to evade real issue ,and having done that ,to search for light
and guidance in the meaning of these words. Indeed they have sought the aid of quite a
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number of latin phrases and various adjectives have been brought in service for describing
causes and consequences. Thus the words direct, proximate, efficient, effective, immediate,
intervening and remote have been utilised to qualifying causes and similarly the words
natural,probable, direct as well as remote have been brought into play to depict
consequences.1
Courts have had resources to such Latin expressions as, causa cusans ,
causa sine qua non,and nova causa interveniens,also invoked the aid of metaphors about
causation such as chains, rivers, transmission gears, conduit pipes, nets, insulators. The result
has been confusion and conflict in the case law, to which another circumstance has also
contributed. Courts have split up the issue of responsibility of negligence into three different
issue, duty ,breach and causal relation and have tried to propound tests and rules for each
issue. However ,they are ,as already stated ,parts of a single issue and not easily separable.
Therefore ,the attempt to evolve separate rules for these issues has been far from successful.
The result is very confused state of law which judges and test writers have deplored. This
state of the law does not however prevent courts from doing justice in actual cases by facing
squarely the question of responsibility. We shall now proceed to refer to certain tests of
causation considered in the case-law.

A person becomes liable for the harm complained of, if his conduct is the proximate

cause of it.
He becomes liable if his conduct is the direct cause of the harm or the harm is the

direct consequence of his conduct.

He becomes liable if he could have, as a reasonable man foreseen such harm or
considered it as probable.In other words, the tests are proximity ,directness,and
foreseeability or probability.

The third test has now the support of high judicial authority in England and the other two
may be regarded as unacceptable.

3-

Test of proximity

The test of proximateness or proximity is of long standing and has the support of a maxim of
Bacon: In jure non remota causa ,sed proximia spectatur it were infinite for the lw to
judge the cause of causes,and their impulsions one of another; therefore it contented itself
1
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with the immediate cause and judgeth of acts by that without looking to any further degree. 2
It is no doubt true that generally speaking the conscious act of violation nearest in point of
time to the injury, is in law the responsible cause..However it is not always the sole of
deciding factor .A person who drives his car negligently and cause a street accident may be
liable to pay for the loss of limbs of the injured man though the proximate act which caused
the loss was the surgeons amputation. He may have to pay even if the surgeon made an
honest mistake; but it would be otherwise if the surgeon was guilty of negligence or bad faith.
The principle is that the defendant must take the plaintiff as he found him. In the absence of a
novus actus interveniens the defendant becomes liable for the consequences even though
they could not have been reasonably foreseen or they could be terrible as they in fact turned
out to be. This was a case where the plaintiff in the service of defendant slipped and fell
because of oil which was negligently allowed to escape on to a ladder. The injury sustained
by the plaintiff required medical treatment as a result of which the plaintiff developed
encephalitis. The defendants were held liable for the same. It has been recognised that injury
sustained in one accident may be the cause of a subsequent injury. In one case, the plaintiff, a
passenger in bus, suffered an injury caused by the admitted negligence of the defendant. After
finding hospital the plaintiff shaken and the movement of her head was constricted by a collar
which had been fitted to her neck. in consequence she was unable to use her usual skill and
she fell while descending stairs, sustaining further injuries .It was held that the injury and
damage suffered because of the second fall was attributable to the original negilence of the
defendants so as to attract compensation from them. The test of proximity is of no avail
where there is a duty to anticipate and guard against the intervention of other causes,eg.a
bailees negligence resulting in loss due to the goods being stolen by a thief. A jeep driver in
the course of his employment left the ignition keys in the jeep in his absence and caused the
accident . It was held that the negligence of the driver in leaving the ignition keys in the jeep
and not the driving by the third person was the effective and proximate cause of accident.

4-

TEST OF DIRECTNESS

The facts and decision of the court of appeal in the case of Re Polemis .which applied the
principle of directness have already been stated. The principle of directness was propounded
by scrutton.LJ, Once the act is negligent ,the fact that its exact operation was not forseen or
that the damage it in fact causes is not the exact kind of damage one would expect is
2 (1956)works, Speeding Ed XIV ,189
6

immaterial, as long as the damage is in fact directly traceable to the negligence act, and not
due to the operation of independent cause having no connection with the negligence act,
except that they could not avoid its results. According to the view taken in this and other case
following it, foresee ability is the test for deciding the issue of duty or breach of duty ,ie, the
question of negligence or unreasonable conduct of the defendant and not a test for deciding
the question of casual relation of the negligence to the damage. For deciding this question
the test is directness of cause or consequence. The mode of applying it was explained as
follows ; the negligence of the defendant is the direct cause of the damage complained of, if a
judge or jury would so regard it by looking back from the actual result of the negligent acr
and with the knowledge of forces that actually produced the result. The contrast between two
tests has been expressed thus : negligence depends on foresight remoteness on hindsight.
In other words, two different and in fact conflicting tests or criteria had to be applied for
deciding the issue in the same case viz, those of breach of duty and casual relation. After the
Polmis case the phrases direct cause and direct consequences became the approved
terminology in decisions and textbooks while previously the words natural or necessary
had been in vogue. The principle of directness had the support of judicial opinion at the time
and appeared to surpersede that of foreseeability which had been suggested by the dictaof
judges in earlier cases in last century. In couse of time, the polmis rule did not find
acceptance in some decisions and in 1960 the judicial committee deciding the wagon mound
An appeal from Australia declared that rule to be bad law. The judgement of Viscount
Simonds on behalf of the board in that case the following reasons for rejecting the test of
directness and upholding that of foreseeability.

Liability for negligence is based on a general public sentiment of moral wrongdoing

for which the defendant for which the defendant must pay and it is a departure from
the principle if his liability is made to depend on the damage being a direct or

natural consequences of his act.

It is a principle of civil liability that a man must be considered to be responsible for
the probable consequences of his act. To demand more of him is too harsh a rule ;to
demand less is to ignore that civilised order requires the observance of minimum

behaviour .
It is inconsistent with those principle to apply a double criterion for the issue is an
action of negligence.

The Polmis doctrine had no support in previous cases and has been departed from it
in later cases.

It is too soon to forecast the final result of recent decision in the development of English
case-law.

5-

TEST OF FORESEEABILITY

The decisions the judicial committee in the wagon mound delineating this test has already
been referred to. The principle laid down in them requires as an essential condition of liability
for negligence that the damage complained of such a kind as the reasonable man should have
foreseen It is not necessary-and it rarely happens-that the precise damage that occurred was
larger in extent or of greater gravity than could have been foreseen or expected, would not
absolve defendant from liability. The distinction between damage of same kind and one of a
different kind illustrated by the case of king v. Phillips3 . Forseeable damage of the same
kind but unforeseeable because ofits larger extent of area is illustrated by the case of an injury
inflicted negligently on a person becoming aggravated by complications due to a weak heart
or an unusually thin skull. However the phrase damage of same kind is rather vague and
indefinite in its important and may not be easy to apply in concrete cases. An important part
of judgement is its emphasis on the same test being applicable to the issue of breach of duty
and causal relation; the test being applicable to the issue of breach of duty and causal
relation ; the test being the reasonable mans standard of care and foresight. This has been the
basic docterine of the law of negligence since it was formulated more than a century ago in
blyth v Birmingham water works co4. .Therefore the judgements have done a service to this
branch of law by bringing it back to its moorings and away from deviation into channels of
legal enquiry in consistent with its basic doctrine. It may , however, be permissible to say that
foreseeability as an exclusive test of liability for the damage complained of is not likely to
remove the difficulties that have been experienced so far in this part of the law . The reason
may be stated thus:

Forseeability by the reasonable man is not in reality, a test for solving this or any
other problem . A test is usually a factual event which is provable or ascertainable.

3 Daughty v turner MFg co ltd (1964) 2 WLR 240 (CA)

4 (1856) 11 EX 781
8

Foreseeability is not a fact but but an opinion ,an inference or conclusion to be

deduced from facts. Whether the defendant actually foresaw the damage would be a
fact that can be proved ; the state of a mans mind is ,it has been said, as much a fact
as the state of his digestion . However ,foreseeability is not a factual test and
especially foreseeability by a notional person or abstract entity in the conception of
the judge or juror. On the other hand ,it would be noticed that the other two tests,,
proximity and directness ,though unacceptable on their merits , are factual tests.
Similarly , a persons possession of property is a conclusion which is reached by
ascertaining a fact such as his living in or paying tax forit however in determine a
persons responsibility for particular damage by the test of reasonable foreseeability

of it we are trying to reach one conclusion with the help of another.

The phrase Damage of same kind is rather vague and lacks precision. It would be
difficult to say in particular cases, whether the damage which actually occurred and
which was unforeseeable, was of the same kind but larger in extent or gravity than
what was foreseeable, or was of a different kind. It may be difficult also to explain
decisions in several cases in favour of the plaintiff on the basis of the above formula.
A recent decision of house of lords illustrates the difficulty just alluded to. The
defendants ,workmen who had ,during an evening which had become dark, placed red
warning lamps around a manhole in a street in Edinburgh had however left the spot
unguarded and unfenced. The plaintiff , a boy aged eight, and other boy went to place
when the workmen had gone for a little while to take tea. The plaintiff meddled with
one of the lamps and it fell into the manhole. The escape of the paraffin in the lamp
and its contract with the flame of the lamp caused an explosion ,the result of which
was that plaintiff fell down into the manhole and was severely burnt. The question for
decision was whether the explosion and the events that followed it were damage of of
the same kind that was foreseeable. The five law lords answered the question in
affirmative . They held that the workmen were in breach of a duty to safeguard to the
boy against this type of occurrence which, arising from a known source of danger ,the
lamp was reasonably foreseeable, although that source of danger acted in
unpredictable way . The two lower courts in Scotland took a different view and
among the judges of the lower appellate court ,there was dissent. They took the view
that the damage was not kind of that foreseeable . A phrase which occasions so much
difference of opinion among judges , can not be easy to understand and apply.

A decision on the subject of forseeability is in reality the courts opinion of what

should have or ought to have been foreseen by the defendant . In arriving at this
opinion on the facts considerations of justice appropriate to the case ,will also be
determining factors. Among them foreseeability or what an ordinary ,reasonable man
would usually contemplate is an important factor but there are other social or judicial
policy in particular types of cases, the preventive or punitive value of an award of
damages.

Different categories of causation

The damage that actually occurred was of a kind that should have been foreseen by
the defendant as a reasonable man. His conduct constitutes a breach of duty and is

legal cause of the damage complained of .

The damage that occurred was a kind that should have been foreseen but in quantum
and extent was greater than what could have been foreseen or could be expected. The
defendant is still liable .An illustration is physical injury inflicted by A on B and death
supervening on account of complications due to a weak heart of b which may not

have happened in another person.

The damage that occurred was not of a kind that should have been foreseen by the
defendant as reasonable man. The defendant is not liable . An illustration is the case of
nervous shock and illness resulting to the plaintiff who from her roadside flat saw her
child in danger of being run over by a negligent motorist. The motorist is not liable.

This is in reality an illustration of absence of duty rather than of casual relations.

The damage was not a kind that was foreseeable and followed from the defendants
conduct in natural sequence of events or forces and not due to the operaton of an
independent agency. According to the rule upheld in the wagon mound the defendant

is not liable.
The damage that occurred was a kind that was not foreseeable and was the result of
operation of extraordinary natural events, such as an act of god. The defendant would

not be liable. An instance is Blyth v. Birmingham water works co,

The damage that occurred was a kind that was not foreseeable and was the result of
intervention of human agency . He is liable if he could or should have foreseen such
intervention . If he could not have foreseen it, it is new and independent cause , or to
use a latin phrase , a novus actus interveniens , and he is not liable for the damage
due to it. Wherever any intervening factor as itself foreseen or foreseeable by the

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actor, the person responsible for the act which initiated the chain of causes leading to
final result , that intervening cause is not itself ,in the legal sense, novus actus
interveniens breaking the chain of causation and isolating the initial act from the final
result. 5
The problem is one of choosing the person who should be made to pay. The question is
whether is to be the defendant ,or the person who intervened ,or making both liable to
contribute to the compensation according to their respective degree of fault/Courts have ,for a
ong time, chosen the former course because of a rule of legal policy ,viz, that there can be no
contribution among joint wrongdoers. In making the choice and holding whether defendant
should be liable or not, consideration of justice very accordingly as the intervening agency is
a third party or the plaintiff himself. The rule against contribution between joint wrongdoes
was repealed in England by an act of 1935 .similarly in case of contributory negligence , an
act of 1945 has directed that plaintiff and defendant should bear loss according to their fault.
There is therefore no reason for not following a similar principle in case where the
intervening agency is third person . However , courts are still following older method of
considering the question as one of defendants responsibility or not. The rules on this questin
will now be considered.

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TEST OF CAUSATION

1. Test of Causation (Causa causans)

In deciding the question of whether the damage was caused by wrongful act of the defendant,
the appropriate test is known as but for test.
i)

This means that if damage would not have resulted but for the wrongful act of the
defendant, then damage is presumed to be caused by wrongful act.

ii)

But if defendants wrongful act is not cause of damage, if the same would have
happened notwithstanding the wrongful act or no wrongful act, then there is no
liability.
Robinson v. Post Office 6

5 Iron and steel holding and realisation agency v compensation Appeal tribunal and Cutts (1966)1 wlr
480, p492
11

Negligence would not justify award of damages on materialisation of the risk if it can
be shown that the person would have proceeded with the act even if informed of the
risk.
Mc Williams v. Sir Williams Aurol & Co. 7

Wrongful act of the defendant need not be the sole or principal cause of damage.
Defendant would be liable for damage if his wrongful act caused or materially
contributed to it notwithstanding that there were other factors for which s/he was not
responsible which had contributed to the damage.
Mc Ghee v. National Coal Board8

8-

Conclusion

its casual relation to the harm complained of .However,it is not merely in this action that the
question of casual relation is material. It arises in case of intentional wrongdoing.In whatever
context it arises ,the problem of causation is one of determining legal responsibility.It is
solved by courts in accordance with the ideas of justice, experience or policy even the
prejudice prevalent at the time.In ordinary speech, the word is often used to fix normal
responsibility on some person and naturally its meaning varies with the occasion and with the
ideas of speaker.He would select as the cause that among several causes contributing to a
result which express his ideas of right and wong.
9- Bibliography
Books.
1. RATANLAL & DHIRAJLAL. THE LAW OF TORTS. (26th ed., LexisNexis
Butterworths Wadhwa Nagpur, 2010)
2. Dr. R.K BANGIA, LAW OF TORTS, (22nd ed. Allahabad Law Agency 2010)

(1974) 2 All ER 737

7 (1962) 1 All ER 623

8 (1972) 3 All ER
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3. WINFIELD & JOLOWICZ, TORT, (18th ed. Sweet & Maxwell, 2010)
4. RAMASWAMY IYERS , THE TORT OF LAW, (10th ed. LexisNexis Butterworths
Wadhwa Nagpur, 2010)

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