CAUSATION 2

Two types of Causation

Causation in Fact • Whether or not the defendant’s conduct has in fact

caused the damage suffered by the plaintiff?

• Whether or not the damage/injury would not have

happened but for (“if not caused by”) the defendant’s
breach of duty?

Causation in Law • Whether or not it is reasonably foreseeable that the

defendant’s conduct will result in the damage/injury to
the plaintiff?

• D is not liable for damage which is too remote!

What amounts to
‘Remoteness’?

Old test: Direct • D is liable to P for all direct consequences suffered from
consequence test any damage caused that he would have foreseen as
likely to result from his act.

• Liability arises no matter how trivial the negligence is

and how unreasonable or grave the damage is.

• Re Polemis

Test of Remoteness

Re: Polemis [1921] CA Facts:

  D chartered a ship, had loaded it with petrol. They put
in its hold(cargo deck) drums of petrol.

 The ship encountered bad weather and the petrol leaked.

 While docked at Casablanca, D's worker carelessly

allowed a plank to fall into the hold (lower deck) of the
ship.

 The falling plank struck something and thereby caused a

spark which in its turn ignited petrol vapour in the hold.

 The vapour caused a fire which destroyed the whole

ship

Held:

 The fire was not a reasonably foreseeable consequence

of allowing the plank to fall.
 However, it was reasonably foreseeable that the falling
plank would cause some form of damage to the vessel.
 Because of this, the court established D’s negligence.
 Whether the particular damage caused by the fire was
recoverable depended solely on it being a direct
consequence of the negligent act.
 Although the damage by fire could not have reasonably
been foreseen as a consequence of dropping the plank,
D was however liable for the loss of the ship by fire.

The Application of Re:

Polemis Rule

Pigney v Pointer’s Facts:

Transport Services Ltd.
• P suffered injuries in an accident – D paid damages to P
 [1957] – Due to the injuries, P developed depression and 18
months later committed suicide.

Held:

• the depression that led to P’s suicide was traceable to

his injuries.

• Court followed Re: Polemis and held D liable or the P’s

death.

Present test: Reasonable • The rule in Re Polemis was too harsh.

Foresight Test
~ Why? ~

• “It goes against current ideas of justice or morality that

for an act of negligence, however slight or venial, which
results in some trivial foreseeable damage the actor
should be liable for all consequences however
unforeseeable and however grave, so long as they can
be said to be direct.” (The Wagon Mound No. 1)

• Under the present test:

• P must prove that the kind or type of damage that he

suffered was foreseeable!

The Wagon Mound (No.1) Facts:

[1961]
• D carelessly discharged oil from their ship, the Wagon
Mound, into Sydney Harbour.

• The wind and tide carried the oil beneath P's wharf
where welding operations were being carried on by P's
employees.
 • After being advised that they could safely weld, P's
employees continued their work.

• Some 60 hours after the original discharge, molten

metal set some waste floating in the oil on fire. The
flames quickly developed into a large fire which
severely damaged the wharf.

Held:

• Damage to the wharf by the pollution of P's slipways

was foreseeable, however damage by fire was not
reasonably foreseeable.

• D not liable for the fire but liable for the fouling
(polluting) on P’s wharf.

• In order to recover damages, P must prove that the kind

of damage that he suffered was foreseeable!

The implementation in
Malaysia

Govt. of Malaysia v. Jumat • The Federal Court reversed the trial court’s decision on
bin Mahmud [1977] the D’s liability and held that the injury sustained by the
student (R) was not the kind/type of class reasonably
foreseeable as a result of the teacher’s act/omission.

• Therefore the damage suffered was considered too

remote!

Qualifications(conditions) TWO important rules:

to the Reasonable
1. Defendant must reasonably foresee the kind of injury
 Foresight Test that occurred.

– However he does not need to have foreseen the

precise manner of occurrence or the precise
extent of the harm

2. This test does not affect the maxim/rule that ‘a

tortfeasor must take his victim as he finds him.’

– Thus he cannot argue that he should not be liable

in cases involving P with unusually thin skull or
weak heart (Egg-shell skull rule)

Manner of occurrence

Hughes v Lord Advocate Facts:

[1963] AC 837
• The Post Office employees left a manhole open,
covered only by a canvas shelter. They placed warning
paraffin lamps around the unattended shelter.

• P (8yr boy) took one of the lamps into the shelter,

played with it, then stumbled over it and fell into the
manhole.

• A violent explosion followed and P sustained injuries.

Held:

• The fact that the lamp exploded was unpredictable.

• Court: “the resulting damage, though severe, was not

greater than or different in kind from that which might
have been produced had the lamp spilled and produced
a more normal conflagration* in the hole.”

• D was held liable.

 *large & destructive fire

Extent of harm

Vacwell Engineering Co. Facts:

Ltd. V BDH Chemicals Ltd.
• D supplied chemical to P but carelessly failed to warn
[1971] 1 QB 88
that it may explode when it comes into contact with
water

• P’s employee placed consignment of the chemical in the

sink, causing violent explosion and extensive damage.

Held:

• D was liable because he could foresee the kind of

damage although the extent of the damage was not
foreseeable!

Eggshell Skull Rule “If P is negligently run over or otherwise negligently injured in
his body, it is no answer for the claim that he would have
suffered less injury, or no injury at all, if he had not had an
unusually thin skull or an unusually weak heart”

Dulieu v White & Sons • Here D was liable for causing P (bar worker who was
[1901] pregnant) shocked and to give a premature birth.

• Egg-shell skull rule applies.

Smith v Leech Brain & Co • P was burnt in his lip during work, due to the
Ltd [1962] employer’s negligence.

• Due to his skin tissue condition, such burn injury was

found as a “promoting agent” for the cancer which
 killed him 3 yrs later.

• D was liable to compensate for the death.

Chin Keow v Govt. of the • Doctor was liable for giving a patient (allergic to
Fed. of Malaya [1964] penicillin) an injection of procaine penicillin from
which the patient died within an hour.

Decisions/Circumstances
where damage was too
remote…

1. Novus Actus • of the Plaintiff

Interveniens (New
• of a third party
intervening act)

• of natural even

2. New intervening cause • Impecuniosity* of the Plaintiff

• *penniless/lack of money

Novus Actus Interveniens

(NAI)
Resulting from Plaintiff’s
own action

McKew v Holland & Facts:

Hannen &
• P sometimes loses control of his left leg because of the
Cubitts (Scotland) Ltd injury suffered due to D’s negligence
[1969]
• He then descended a steep flight of steps.
 • His leg gave away so he jumped and landed on his right
leg and broken it.

• P claimed damages against D for injuries caused to both

legs.

• Court refused the claim on the right leg’s injury –

WHY?

Wieland v Cyril Lord Facts:

Carpets Ltd. [1969]
• D had injured P by negligence

• That injury required P to wear a neck-collar that caused

her difficulty in adjusting her spectacles

• Next day, she fell down steps

• P claimed for all the injuries sustained.

• Court awarded damages for the second injury – WHY?

Held:

• The claimant’s reasonable act did not break the chain of

causation when recovering from an injury, the original
tortfeasor was still liable for the further injury

Novus Actus Interveniens

(NAI)
Resulting from third
party’s action
Knightley v Johns [1982] Facts:

• D1 caused accident on the exit of a one-way tunnel

• D2 (Police inspector) ordered P to go back to the tunnel

to close the traffic

• P went in against the flow of traffic; collided with

another car and was injured

• P sued D1 and D2 for negligence.

• Was D2’s act to order P a break of causation of D1’s

negligence?

Held:

• D2 was liable.

• D1 was not liable (due to an intervening act of D2).

Steven Phoa Cheng Loon v Facts:

Highland Properties
• P sued D (the owner of adjacent land) for causing (with
[2000]
other defendants) the landslide and also for the
vandalism and theft occurred on the properties.

• Was D liable for the theft and vandalism, considering

that it may be too remote as a damage?

• The test: whether the vandals and thieves was a

reasonably foreseeable consequence of one of more of
the breaches of duty committed by the council
(defendant).
 • “…Considering the local condition, I find that when
disaster strikes in our country, such as a road accident or
when a fire gutters a building, there will be certain
uncivil and contemptuous elements who take advantage
of such commotion to rob, steal and plunder.

• The Highland Tower tragedy was no exception.

– Lack of security strength

– Limited safeguard to daylight hours

– Plaintiff cannot afford their own security

measures…

• ….All these, I find, were reasonable consequence of the

landslide that brought down Block 1 caused by the acts
of the fifth defendant as well as all other defendants
who contributed to this”.

• Reversed in: Arab-Malaysian Finance Bhd v Steven

Phoa Cheng Loon [2003] 1 MLJ 567

• Compare: Stansbie v Troman [1948] 2 KB 48 -

Decorator left house unattended with door unlocked;
whether liable when house burgled

Stansbie v Troman [1948] Facts:

2 KB 48
• Stansbie was decorating at Troman’s home.

• He was alone at the property and left the house to

purchase some wallpaper.

• He left the door unlocked and was absent from the

house for two hours.
 • During his absence, a thief entered the house and stole
several items of value.

Held:

• Stansbie was liable for the cost of the stolen items.

• He was under a duty to take reasonable care when he

left the premises unoccupied.

• Leaving the house unoccupied for two hours with the

door unlocked amounted to a failure to take reasonable
care and as a direct result, Troman suffered losses for
which Stansbie was liable.

Novus Actus Interveniens

(NAI)
Resulting from natural
cause

Carslogie Steamship Co. Facts:

Ltd. v
• D’s negligence caused damage to P’s ship.
Royal Norwegian
• While going for repairs, the ship suffered further
Government [1952]
damage caused by a violent storm.

• Was D liable for the further damage?

Held:

• D were not liable for the damage caused by the storm.

• The storm was an unforeseeable intervening act,

unconnected with the D’s negligence.
Plaintiff’s impecuniosity

Liesbosch Dredger v SS Facts:

Edison [1933]
• D (ship owner) negligently sank a dredger in Greece

• Owners of the dredger were too poor to buy a

replacement and had to hire a substitute to carry out an
existing contract;

• it would have been cheaper to buy, rather than hire.

Held:

• C’s damages were limited to the cost of the purchase

and to damages for loss of hire between the sinking and
the date when a replacement (new dredger) would have
been put into service.

• Claim for entire loss of hire charges for a substitute

dredger was rejected.

• Lord Wright: The law cannot take account of everything

that follows a wrongful act; it regards some subsequent
matters as outside the scope of its selection, because "it
were infinite for the law to judge the cause of causes, or
consequence of consequences.”

Revision 1. What is meant by the requirement of ‘causation’?

2. What is meant by ‘causation in fact’ and ‘causation in

law’?

3. How do you apply ‘but for’ test?

4. What are other factors that help court in determining
causation in fact?

5. There are two tests in determining the remoteness of

damage, what are they?

6. What is meant by ‘eggshell skull rule’?

7. When is the chain of causation broken by an intervening

act?