The question of whether the defendant’s acts or omissions have caused the claimant’s loss of damage, in the legal sense, is a matter of both fact and legal policy. Where loss or damage has been caused by the defendant but it is too far removed from the negligence or other civil wrongs to be the subject of compensation, it is said to be too remote.
The rules on remoteness are matters of law which seek to provide limits on the extent of the loss for which compensation which may be recovered. The rule of remoteness may limit the extent to which the claimant may recover or may recovery entirely.
Many incidents and events have multiple causes. The courts take a common sense approach.
In addition to the requirement for factual causation, the courts apply a material cause test. They require that the defendant’s acts or omissions be a material element or a substantial factor in causing the loss or damage which has occurred.
Where some new act intervenes between the negligent act and the damage, it may be deemed to have been the cause or sole cause of the damage. In other cases, the “original” wrongdoer may have foreseen the intervening act. It is relevant whether he intended, was careless or reckless as to that act.
On one end of the spectrum, the intervening act may be inevitable and wholly predictable, in which event, it does not break the chain of causation. Where something happens in the normal course of things that can be expected, the original wrongdoer will usually remain liable.
Acts of Third Parties
The intervening act may be the predictable act of a third person, such as an attempt to rescue. The chain of causation is not broken. Indeed, the defendant is likely to be liable also, to the rescuer. The intervener’s action will commonly be intentional or reckless, involving a conscious risk.
The defendant may be under a duty to take care to protect the claimant from the deliberate act, reckless or negligence of a third-party. The duty may be to prevent the very thing that constitutes the deliberate act. For example, there may be a duty to take care to protect against burglary and theft, notwithstanding that the burglary and theft are intentional acts of a third-party.
The fact that a person acts deliberately or intentionally, causing injury to himself and/or another, does not necessarily break the chain of causation if the deliberate act is affected or rendered more dangerous by prior negligence on the part of the defendant. For example, where an employee is negligent due to the absence of instruction or the failure to provide a safe system of work on the part of his employer, the employee’s actions do not constitute a break in causation and responsibility in relation to the employer’s negligence.
The action of a third-party may be a reflex or be inevitable, such as where the third-party is put in a dilemma and takes emergency action accordingly, by reason of the something caused by the defendant’s negligence. This does not break the chain of legal causation, even though the action taken by the third, may have caused the loss in a literal sense.
If the third party’s action is completely unforeseeable an is the cause of the loss or damage, then the defendant will not generally be liable. If those actions are intended, almost inevitable or likely, the defendant is deemed the cause. If the third party’s actions are foreseeable although not necessarily probable, the court will look at carefully at the circumstances and judge whether they break the chain of legal causation.
The Civil Liability Act allows for apportionment of fault and contribution, where the claimant and/or one or more defendants are at fault. This has reduced the need for courts to categorise one person or other as having caused the loss or damage.
Issues of Evidence
Causation may raise difficulties of evidence and proof. Expert evidence may be required to show a link between a particular act and consequence. Expert evidence may be given in complex cases, from which the court may deduce issues of causation, on the balance of probabilities. The question may be difficult and controversial in some cases, such as in Hanrahan v Merck Sharpe and Dohme, where the question arose as to whether the emissions from the defendant’s plant had caused damage to the claimant’s health and farm stock.
The res ipsa loquitur principle may assist the claimant in cases where causation in complex and denied. In effect, it creates a presumption of fault or negligence, that where an event or occurrence is such that as would not normally occur without fault. This, in effect, reverses the burden of proof. This may assist a claimant, in actions such as those for product liability, where the manufacturer or other defendant is better able to give evidence on the causation.
Ultimately, questions of causation may be determined by whether the loss of damage is more consistent with the defendant’s negligence than any other cause. This is a matter of factual inference. Negligence and causation may be inferred from facts which make it probable. Evidence may be called to support or contravene the inference.
The courts take a common sense approach to causation. The matter should not be approached in the manner in which a scientist or philosopher might approach the issue. Many incidents and accident occur as a result of multiple causes, attributable to several people. It does not follow that each such person may be deemed to have caused the accident from a legal perspective, for the purpose of liability in negligence.
In some cases, the sole cause loss or damage may be the defendant’s own negligence. The claimant may be contributorily negligent. See the sections on the Civil Liability Act, which provides for a reduction in damages where the claimant or defendants are partly at fault in and have thereby contributed to the loss or damage.
The defendant’s negligence may be a material cause of the accident. It need not be the exclusive cause, in order to establish the defendant ’s liability.
This issue has arisen in the number of cases involving personal injuries, where there were difficulties in proving that exposure to a particular harmful substance or circumstance while working for one of a number of employers in the same industry, caused the injuries in question.
Complex issues of causation and contribution may arise in exposure cases, where a number of defendant employers may have made a material contribution to the personal injury/condition. Under the Civil Liability Act, each may be fully liable subject to a right of contribution from other persons who are at fault.
The courts have been willing to hold each employer who is in breach of duty, liable in whole or in part, even if the claimant could not show that a particular employer, on the balance of probabilities was responsible. This principle is applicable only where the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent, which operated in a similar way.
Where two parties have caused loss, the courts endeavour to make an apportionment., without denying the claimant relief on the basis that he cannot establish precisely who caused the injury. The evidence called to enable the court to make a just apportionment should be proportionate to the level of loss and damage involved, and the uncertainties which are inherent in making a personal injuries award of damages.
Where damage is not cumulative but indivisible, apportionment is more difficult and may be impossible. Many occupational injuries are the result of cumulative factors, which develop over time. Others occupational injuries appear at once. Where there is an indivisible injury, the wrongdoer, who is the proximate cause, may be held liable in full for it. .
In some professional negligence claims, recovery for the loss of chance may be allowed. In this context, the loss of chance refers to the possibility that had the relevant work or service not been negligent there would have been a better chance / higher probability of an outcome favourable to the claimant.
In circumstances where it could not be proved, on the balance of probabilities that the outcome would be worse or better, the House of Lords confirmed the requirement for proof of legal causation in law. It reasserted that the claimant must prove on the balance of probabilities that the particular injury was caused by particular wrongdoing or breach of duty on the part of the defendant.
In professional negligence cases which turn on what the claimant would have done, had the there been no negligence and the correct advice had been given, causation requires the claimant to prove on the balance of probabilities, that he would have acted differently. The amount of damages is determined by the loss of the chance that the third party would have acted as alleged.
Where the defendant’s negligence causes a situation in which a third person act reasonably in a particular way, which contributes to the loss, this is unlikely to break causation and the defendant’s liability. It is a question for judgment in the circumstances, as to whether the intervening action is reasonable. The claimant’s loss may be the direct and natural consequence of the defendant’s fault or breach of duty, notwithstanding the intervention of human conduct whether by the claimant or a third-party.
The issue of causation may be linked with mitigation. The claimant is obliged to mitigate his loss. Where he acts reasonably in order to mitigate his loss, the chain of causation with respect to the defendant, will not be broken. On the other hand, where the claimant fails to mitigate, causation will be broken. Mitigation involves a duty to act reasonably.
Where there are separate and independent acts of fault by two or more parties, which would have caused similar damage, each is liable for the full amount suffered. Each has a causative effect.
A distinction is made between a supervening event which prevents an anticipated loss from occurring and a supervening event which causes a greater loss whether or not of the same kind. In the latter instance, the original loss is not reduced.
Where injuries are sustained in an accident caused by the defendant’s negligence in circumstances where it later emerges that the defendant was suffering from a debilitating unconnected illness, the defendant is liable to pay reduced damages, because the supervening event has not been caused by the further wrongdoing.
Where a careless act of two defendants has prevented the claimant from discovering whose negligence caused damage, then on a public policy basis, both may be held liable. There must be evidence from which negligence can be inferred on the part of each. This may occur where there was a collision in the centre of the road or at a crossroads, injuring a passenger who is not at fault.
Remoteness of damage.
Damages that are too removed from the negligence and breach of duty, may be denied recovery on the basis of remoteness. Traditionally, it has been said that there is liability for negligence where there is a breach of duty causing damage and the damage is not remote.However, these terms are to some extent labels. There may be an overlap between causation and remoteness. There may also be overlap with the issues of liability itself, as the breach of duty is based on foresight and proximity. In a novel case, the courts may disallow recovery on the basis of breach of duty, causation or remoteness.
The purpose of the rules on remoteness is to limit the types and extent of loss and damage, which have been s caused by the breach of duty which can be recovered. In the absence of such a limitation, the indefinite and open-ended consequences of a breach of duty/wrong would be the subject of compensation. This would be inappropriate from the perspective of common sense and public policy.
The question of whether the loss is too remote is a matter of law, to the determined by the judge, even in the limited categories of cases where there is a jury.
Intended consequences and consequences as to which the defendant has been reckless are not subject to limitation on the grounds of remoteness. Where a person deliberately does something dangerous, he is liable for the consequences notwithstanding that they may occur in an unexpected way.
Reasonable Foreseeability I
A wrongdoer is liable for loss or damage of a kind, that a reasonable man would have foreseen at the time of the act. If damage is caused by his negligence, then he is liable for its full extent, even though it might not have been anticipated or be capable of anticipation. Provided that the type of damage is reasonably foreseeable, it is not necessary that the manner in which it is caused is foreseeable.
Issues arise regarding the generality of the type of injury. Courts may differ as to how widely to categorise a particular class of loss. The courts may deem any type of personal injury or even a psychiatric injury to be foreseeable if some type of personal injury is foreseeable.
The eggshell rule applies in addition to requirement of foreseeability. The defendant must take the plaintiff has he finds him, with his particular vulnerabilities. Therefore, if it is predictable that some personal injury will ensue, the particular personal injury which arises due to the defendant’s particular weakness or vulnerability is not too remote.
The same principles apply to damage to property and economic loss. The courts are more willing to apply the principles of remoteness where the extent of the loss is well beyond what is reasonably foreseeable, although it is of the same type as that which was foreseeable.
In the case of financial loss, the defendant is accordingly liable to the extent that it is reasonably foreseeable. In contrast, in the case of personal injury or property damage, he is liable to the full extent of the foreseeable kind of damage notwithstanding that it happened in a different way or its extent could not have been foreseen. In all case,s the foreseeability must fall within the scope of the duty.
Reasonable Foreseeability II
The test of remoteness is based on reasonable foreseeability. The modern approach places responsibility on the defendant for the direct consequences of his acts and (in some cases) omissions.
A rescue may be reasonably foreseeable. The defendant may be responsible for injuries to a rescuer in this case provided that the rescue is reasonably foreseeable.
Where a defendant owes a duty to the claimant not to cause a particular type of damage, he may not be liable for other damage which is of a kind different to that which was reasonably foreseeable. The type of damage must be foreseeable. Difficult questions may arise in to categorising “types” of loss or damage for the purpose of foreseeability.
A person will be held liable for damage which he intends to cause. In this case, considerations of foreseeability do not arise.
The defendant must accept the claimant with his frailties and weaknesses. Even if he could not foresee that the particular defendant has certain weakness or predispositions, he will be liable nonetheless, for the consequences of (for example) an injury, even though it is greater than could reasonably be expected. The same principle has been applied where the financial consequences to the defendant are aggravated by his weak or vulnerable financial position.