Causation, Remoteness & Damages
An essential element of a claim in negligence is causation. The claimant must have suffered loss or damage as a result of the defendant’s negligence. The concept of causation, in a legal sense, is more complex and less transparent than first appears.
The concept of “remoteness” of damage, draws the limits of causation. Loss or damage may be caused by the defendant’s negligence, but may be too “remote” to be recovered. Such loss may be said not to be foreseeable. It may be said that it has not been caused by the negligent act, or that is not the “real” or proximate consequence of the negligence.
The is no liability in negligence unless the defendant in fact causes the damage or loss to the claimant. In most contexts, the cause, the effect and its consequence will be apparent. In most cases, for example with a typical road traffic accident, causation will generally be clear. Causation may be less obvious in the case of industrial diseases and medical negligence. It may require proof by way of expert evidence.
Concept of Cause
The ‘but-for’ test is generally employed as the basic test for causation in fact. The notion of “cause in fact” becomes difficult to apply in the case of omission. Omissions may be negligent where the defendant has a duty, such as in the case of an employer, who must provide a safe system of work and safe equipment.
The omission (e.g. the failure to provide a safe equipment) may not necessarily have prevented the accident. The court must make a judgment as to what would have happened in hypothetical circumstances. Where the defendant has been exposed to an increased risk of injury as a result of the defendant’s breach of duty, and the claimant suffers an injury that may have been a result of that risk, the modern approach shifts the burden onto the defendant to prove show that it was not his negligence which has caused the injury.
Many events have multiple causes. They may operate consecutively or at the same time. Some courts favour for a “substantial cause” or “substantial effective factor” test. They ask whether the defendant’s conduct was a substantial factor in causing the injury or damage. This test supplements the ‘but-for’ testy a test, in circumstances where there are factors, other than the defendant’s conduct, which might be said to be a cause, in the literal or factual sense.
The injury, loss or damage must not be too remote in time or space from the defendant’s conduct. The law draws limits in terms of remoteness, so as to limit the extent of the defendant’s liability for all subsequent consequences of an act. The concept of remoteness is also applied where the loss or damage follows relatively immediately from the defendant’s act,, but happens in an expected or wholly unforeseeable way.
Factual and Legal Cause I
Cause can be a very difficult concept to apply. In a sense all earlier acts cause later acts. A particular incidents or event can have multiple direct causes. The law seeks to take a common-sense approach by seeking to attribute consequences to causes, in a fair and just manner. Something may “in fact” be a cause, but considerations of what is just and reasonableness may not attribute liability for every factual consequence.
Every day concepts of causation do not necessarily coincide with the legal concept of cause. Legal causation involves the attribution of responsibility and liability for that which is justifiably the responsibility of the defendant. Issues of judgment and policy arise in the application of causation and remoteness in some circumstances
Although environmental and static factors may, in a sense be the substantial cause of a particular loss or damage, or may be the immediate cause in the “but for” sense, the courts tend to focus on the conduct of the parties in attributing cause. The courts are more likely to ascribe the cause to the conduct of persons than to a non-human agency.
In some cases, the courts find that there has been a break in the chain of causation, where a new cause arises and it operative. They hold that there is new or intervening act or force.
Factual and Legal Cause II
Questions of legal causation may involve implicit policy and factors. It is ultimately a matter of judgment in marginal and unusual cases, as to what extent a person should be liable for the consequence of his acts (and in some case omissions). There may be implicit considerations as to who should reasonably bear the loss and who is in best position to manage the risk and insure against it.
A defendant is more likely to be held liable for the consequences of his intentional and deliberate acts, in particular where there is greater fault and moral responsibility. This is reflected in the rules of remoteness that apply. In the case of torts which require intentional acts, the defendant is held responsible for the consequences that are thereby casued.
Where liability is based on negligence, the rules of remoteness limit liability to the loss that is reasonably foreseeable. Apart from the formal legal principles that apply, the courts are more likely to attribute consequences and responsibility where there is a greater fault or blameworthiness.
The loss or damage must relate to the fault, negligence or breach of duty, in question as the case may be. The law does not impose liability for loss and damage simply because it follows mechanically from the acts which are careless or in breach of duty. Where the law imposes strict liability, liability flows from cause alone rather than fault.
Cause, Proximity & Remoteness
The courts tend to hold that the defendant must be negligent in relation to the particular loss or damage that arises in consequence. This is expressed in terms of foreseeability. The unforeseeable claimant and unforeseeable consequences are said to be too remote. Causation may merge into foreseeability.
The fact that something is remote in time and space does not prevent it being sufficiently proximate in law, so as to establish liability. The manufacturer of a dangerous product may be held liable for injuries caused by defects in it, which become manifest many years later. However, the greater the remove in space and time, the more likely that loss or damage may be attributed to other intervening causes. The courts are more willing to hold that the voluntary conduct of third party severs the causal connection.
The fact that the particular foreseeable loss or damage occurs in a wholly extraordinary and unpredictable way, will not usually preclude liability in a claim for negligence In a personal injuries claim, the defendant who has breached his duty of care, is generally held liable for all types of unusual and unexpected consequences, such as development of diseases, consequences of an accident etc.
The courts are more willing to compensate claimants for personal injury and attendant loss that is the consequence of breach of duty, even where it involves stretching considerably, what is reasonably foreseeable. This is particularly so in circumstances where insurance is likely to be in place. This tendency has been shown in cases where defendants have been held liable for depression and suicide, arising from an initial accident or incident.
Where trivial or theoretical negligence causes serious loss and damage, the courts do not limit the extent of recovery that is awarded.
Contributory Negligence and Causation
Even if the defendant is found to be negligent and has caused the claimants’ injuries or damage in the factual and legal sense, the defendant may be denied part or all of an award, which he would otherwise have received, due to his own fault or misconduct in relation to the incident or accident concerned. In these cases, the relative fault of the claimant and defendant is appraised. The liability of each is referred to as contributory negligence.
The Civil Liability Act provides that contributory negligence is to be measured quantitatively. An award of damages is to be reduced in the proportion that the court considers just and equitable having regard to the claimant’s share of responsibility for the incident or accident concerned. Contributory negligence also applies where there are multiple defendants. A number of defendants may be jointly and severally liable to the claimant and there relative negligence may be apportioned between them and where the claimant is also at fault between them and the claimants.
At common law, there existed a wider defence of voluntary assumption of risk. This has been considerably narrowed in scope by the Civil Liability Act. Prior to these statutory reforms in the middle of the last century, contributory negligence was a complete defence to a civil claim. This was based on the notion that the claimant’s blameworthiness, even if partial, barred the claim entirely.
The claimant’s negligence or fault was looked at in terms of causation. The claimant was said to have caused the accident or incident, in some cases which might now be characterised as involving contributory negligence. In other cases, the claimant may have aggravated his injuries by failing to take steps to reduce them to such extent that he is partly or substantially liable.
The complete denial of recovery where there was some fault on part of the claimant, led the courts to mitigate the severe consequences of the principle. The so-called last opportunity rule in effect provided that the person at fault, who had the last opportunity to avoid the accident, would be held responsible. The negligent claimant could recover if he can show that the defendant had the last opportunity to avoid the accident.
The defendant could also use this doctrine as a defence. If the plaintiff has the last clear chance to avoid the accident, the defendant will not be liable. This rule was artificial and contrary to common sense in that it sought to attribute a sole cause to the accident..
The legislation on contributory negligence permitted the removal of such technical and artificial rules in relation to causation. It allows the court to make a fair and just appraisal of relative contributory and causation factors.
The effect of a finding of contributory negligence is to reduce the defendant’s liability and leave the claimant partly uncompensated. Those who have been found contributorily negligent, in effect, pay for their negligence. This liability is usually uninsured, unless there is a personal accident cover.
The courts appear to apply a more subjective test in relation to the contributory negligence of the claimant, than to the negligence of the defendant. Less this is expected of vulnerable claimants such as older or younger people.
It appears generally that the standard of care applied when dealing with negligence, is higher than when dealing with contributory negligence. Conduct may be deemed to be negligent when the same conduct is much less likely to be deemed contributory negligence.
A person who is injured without fault of the part of another recovers nothing. A person who is injured but is partly at fault, may recover in part. The principle may apply in many arbitrary ways depending on the circumstances.
Consent/ Assumption of Tax
The defence of voluntary assumption of risk was wider at common law than in its modern reformed terms.
An express agreement to exonerate the defendant from liability may be entered in a contractual relationship. In England and Northern Ireland, such clauses are deemed unlawful by Unfair Contract Terms legislation, in the case of negligence or personal injury. However, no equivalent legislation exists in the Republic of Ireland.
Mere knowledge of the risk does not imply a voluntary assumption of the risk. Where however the defendant runs an unjustified and unreasonable risk such that of which he has knowledge, he may be categorised as voluntarily assuming it. In effect, it leads to a 100% reduction in recovery.