DAMAGES

Causation and Remoteness of Damage

The claimant must prove that their damage was
caused by the defendant’s breach of duty and that
the damage was not too remote. The first element is
sometimes called causation in fact, and the latter
causation in law. Causation in fact deals with the
question of whether as a matter of fact the damage
was caused by the breach of duty.
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Causation and Remoteness of Damage
The question of remoteness of damage arises where
causation in fact is established, but the court holds
that as a matter of law the damage is too remote.
The court will not want the defendant to be liable
indefinitely for damage and will impose a cut-off
point beyond which the damage is said to be too
remote.
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Factual Causation - But For Test
This basic test is whether the damage would not have
occurred but for the breach of duty. The purpose of
the ‘but for’ test is to remove irrelevant causes.
Barnett v Chelsea and Kensington Hospital
Management Committee [1969] 1 QB 428
It was held that as the deceased would have died
regardless of the breach of duty, the breach was not a
cause of his death.
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Degree of probability of damage
If there is uncertainty as to whether the defendant’s
negligence has caused the damage, it has to be
determined what degree of probability of damage
occurring has to be established by the claimant. The
burden of proof for causation is on the claimant and
he must prove that, on the balance of probabilities,
the damage was caused by the breach of duty.
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Factual Causation - Degree of probability of damage
Bonnington Castings Ltd v Wardlaw [1956] AC 613
The House of Lords held that the claimant does not
have to prove that the defendant’s breach of duty was
the sole or the main cause of the damage provided
that it materially contributed to the damage. An
inference of fact was drawn that the guilty dust was a
material cause and the defendant was liable.
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Factual Causation - Degree of probability of damage
McGhee v National Coal Board [1973] 1 WLR 1 It
was stated that an employer has been negligent and
that his negligence has materially increased the risk
of his employee contracting an industrial disease,
then he is liable in damages to that employee if he
contracts the disease notwithstanding that the
employee is not responsible for other factors which
have materially contributed to the disease.
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Factual Causation - Degree of probability of damage
The test proposed by Lord Wilberforce was that
‘where a person has, by breach of duty of care,
created a risk and injury occurs within the area of that
risk, the loss should be borne by him unless he
shows that it had some other cause.’ This test
effectively transferred the burden of proof to the
defendant on the basis that in these cases, as a
matter of justice, it is the creator of the risk who
should bear the consequences.
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Wilsher v Essex Area Health Authority [1988] 1 All ER
871
The plaintiff suffered from deteriorating eyesight and
became almost blind. The allegation was that the excess
oxygen negligently administered had caused the
blindness. The House of Lords held that the plaintiff had
to establish, on the balance of probabilities, that the
defendant’s breach of duty was a cause of the injury. that
The burden of proof of causation remained on the plaintiff
throughout the case. The plaintiff had to prove that the
breach of duty was at least a material contributory cause
of the harm.
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Multiple Defendants - Fitzgerald v Lane [1987] QB 781
The plaintiff was struck by a vehicle driven by the first
defendant. This push him into the path of an oncoming
vehicle driven by the second defendant. Both
defendants were accepted to be negligent but it could
not be established that the second accident contributed
to the injury. The Court of Appeal held both defendants
liable on Lord Wilberforce’s principle in McGhee. Each
defendant had materially increased the risk of that
injury by his negligence and therefore had the burden
of disproving a causal link.
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Exposure to risk as a basis of causation
Fairchild v Glenhaven Funeral Services Ltd [2002] 3
All ER 305 The key factor here is that Fairchild did
not determine that the claimant had to prove that the
defendant caused the disease. Simply that the
defendant, by negligently exposing the defendant to
the asbestos had materially increased the risk of the
claimant contracting the disease. On this basis it is
irrelevant that part of the exposure was while the
claimant was self-employed or exposed in a non-
negligent manner by an employer.
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Exposure to risk as a basis of causation
Barker v Corus UK Ltd [2006] 3 ALLER 785
The House of Lords allowed the defendant’s appeals
to the extent that liability would be limited to the
extent that the defendant’s negligence exposed the
claimant to the material risk of contracting the
disease.
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Supervening or overtaking causes
Baker v Willoughby [1970] AC 467
The Plaintiff suffered injuries to his left leg as a result
of the defendant’s negligence. The plaintiff went to
work in a new job after the accident and while at work
he was shot in the left leg during an armed robbery.
As a result, the plaintiff􀀀s leg had to be amputated.
The plaintiff was compensated for the loss he
suffered as a result of the injury, not for the injury
itself.
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Supervening or overtaking causes
Baker v Willoughby [1970] AC 467
Lord Reid determined that because the actions of
Willoughby and the robber were concurrent causes of
the loss of income, Willoughby must compensate
Baker for the losses that he had caused – which
included lost wages after amputation of his leg. The
rationale is that were there are two concurrent
accidents and contribute to the same injury, then the
parties are liable for the damages resulting from the
overall injury.
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Where the claimant has already suffered damage as
a result of the first tort, the second tortfeasor is only
liable for the additional damage he has caused on the
basis of the ‘but for’ test.
Performance Cars v Abraham [1962] 1 QB 33
The court held that the second defendant was not
liable for the cost of a respray, as at the time of the
accident the car was already in need of one.
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Jobling v Associated Dairies Limited Limited [1982]
AC 794
The defendant’ negligence caused Jobling a back
injury that subsequently limited him to light work. After
this Jobling developed a spinal disease unrelated to
the accident that caused him to be totally incapable of
work. At the lower courts he was granted damages up
to the point he had to withdraw from work which he
appealed.
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Jobling v Associated Dairies Limited Limited [1982]
AC 794
On appeal it was stated that were there are two
subsequent tortfeasors, it is unreasonable if the
damage assessment to the second party does not
take the previous incapacitation into effect. The total
damage paid to Jobling must be the overall damage
from all of the injuries, but Associated Diaries should
share this burden fairly depending on the
circumstances.
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Loss of Chance
Hotson v East Berkshire Area Health Authority [1987]
2 ALLER 909
The plaintiff’s claim was for loss of the benefit of
timely treatment rather than the chance of successful
treatment. The House of Lords held that the issue
was one of causation, not quantification of damage.
As the plaintiff had failed on the balance of
probabilities to prove that the delayed treatment had
at least been a material contributory cause of the
deformity, the plaintiff’s action failed.
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Remoteness
 Direct Consequence Test
This is the test for remoteness of damage that held
sway until 1961.
Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB
560 The test for remoteness of damage in negligence
actions was stated to be whether the damage was a
direct consequence of the breach of duty.
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Remoteness
 Reasonable foreseeability Test
The test for remoteness of damage was changed by
the Privy Council in 1961.
Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co (The Wagon Mound No 1) [1961] AC
388 ( hereafter Wagon Mound No 1 )
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Reasonable foreseeability Test
(The Wagon Mound No 1) [1961] AC 388 ( hereafter
Wagon Mound No 1 )
The court stated that liability is in respect of the
damage caused and that the liability for injuries
depends on foreseeability of the resulting damages.
Therefore Re Polemis test was overturned. The court
found that it was not reasonable that Overseas
Tankship would expect their spilling of oil to result in
the large fire that happened.
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Reasonable foreseeability Test
Hughes v Lord Advocate [1963] AC 837
It was held that what is truly of importance is whether
the lighting of a fire outside of the manhole was a
reasonably foreseeable result of leaving the manhole
unwatched, and they determine that it was as the
lamps were left there. The injury was therefore
reasonably foreseeable and therefore the defendant
was a proximate cause.
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Reasonable foreseeability Test
Vacwell Engineering Co Ltd v BDH Chemicals Ltd
[1971] 1 QB 88
The defendants supplied a chemical to the plaintiffs but
failed to warn that it was liable to explode on contact
with water. A scientist working for the plaintiffs placed
the chemical in water. This caused a violent explosion
resulting in extensive damage. The defendants were
held liable. Some property damage was foreseeable
and the fact that it was more extensive than might have
been foreseen did not matter.
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Reasonable foreseeability Test
Degree of Probability of damage
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty
Ltd (The Wagon Mound No 2) [1967] 1 AC 617
It was stated that there are two kinds of negligence
cases;
 Where the risk of the result should not be regarded
because it was thought to be impossible or too far
fetched to reasonably pay attention
Where there was a real and substantial risk
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Reasonable foreseeability Test
Degree of Probability of damage
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty
Ltd (The Wagon Mound No 2) [1967] 1 AC 617
The trial judge held that injury was too remote and
could be ignored. The Privy Council stated that
provided fire damage was foreseeable as a kind of
damage, the degree of likelihood was irrelevant to the
question of kind of damage suffered.
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Novus actus interveniens
Home Office v Dorset Yacht Co Ltd [1970] 2 All
ER 294
The cases show that, where human action forms one
of the links between the original wrongdoing of the
defendant and the loss suffered by the plaintiff, the
action must at least have been something very likely to
happen if it is not to be regarded as a novus actus
interveniens breaking the chain of causation.
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Novus actus interveniens
Lamb v Camden Borough Council [1981] QB 625
Lord Oliver took up and modified Lord Reid’s test. If the
act should have been foreseen by a reasonable man
as likely, it would not break the chain of causation. He
found that the squatters actions were not foreseeable
in this sense and therefore did amount to a novus
actus interveniens.
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Novus actus interveniens
A natural event Carslogie Steamship Co v Royal
Norwegian Government [1952] AC 292
Intervening act of a third party Stansbie v Troman [1948]
1 All ER 599 In order to break the chain of causation the
third-party act must be independent
of the breach of duty.
Act of the Claimant - The test applied by the courts in
these cases is whether the claimant was acting reasonably
in the circumstances. McKew v Holland & Hannen & Cubbitts
(Scotland) Ltd [1969] 3 All ER 1621