Civil Liability Issues

Causation

In civil wrong/ tort claims, the claimant must show that the defendant’s actions have caused him loss and damage in order to recover damages. Even, if the defendant can be shown to have caused the loss, the consequences of the defendant’s actions must not be too “remote” to be the subject of compensation. Some consequences of the same action may be too remote while others are not.

In the context of an injunction, prospective or apprehended loss, as well as actual loss, is sufficient. The principles of causation and remoteness also apply. Further specific criteria apply to injunctions. Unlike damages, an injunction is not granted as of right.

The issue of cause and effect (so-called causation) will usually be straightforward. However,  in some cases, difficulties may arise. In the first instance, causation is a matter of “fact” (commons sense reality). Although in a sense, every event has multiple causes, the courts take a pragmatic approach and look at the matter from a commonsense point of view.

The first and most basic test considers whether the particular loss would have occurred, but for the negligence or breach of duty etc.. If the defendant’s conduct was not a real material and substantial factor, then he will not generally be liable from a factual point of view.

Intervening Act of Another

If the incident or accident would have occurred in any event, the defendant may be held not to have caused it. However, where there are multiple causes, it is possible that each person will be deemed to have caused the loss. Each person at fault may be held liable. The law makes provision for contribution in proportion to the relative level of fault or wrongdoing of each.

Where other deliberate human intervention is involved, it is more likely to be regarded as breaking the causal link, than surrounding or background circumstances. If, for example, a matter is due to a combination of weather and the driver’s negligence, it is more likely that the driver will be found negligent. If however, the weather is so extreme that no reasonable driver could manage, the driver may not be deemed the cause of the loss.

Where a new matter act or event happens, which supervenes the previous act, questions arise as to whether the original act caused the defendant’s loss or damage. A third party’s intervention may, but will not necessarily, break the chain of causation.

If the new third-party act is wholly unforeseeable and is the effective cause, then the original defendant will not be liable.  If the third-party act is an unintended inevitable response to the defendant’s act or is very likely, then the defendant is likely to be liable.

If the third party’s action is foreseeable, although not probable, the courts will look at the position more carefully. If the interveners act is criminal or reckless, it is more likely to be considered to break the causal link.

Proving Cause

Complex causation issues are often dealt with in a pragmatic way. The courts take a common-sense view of who caused the accident and who should be legally liable for it.

There can be difficulties in proving that certain acts or omissions caused the loss or damage concerned. Where facts are proved which tend in the ordinary course of things to be the cause of other events or circumstances, it may be inferred or presumed in some cases that the former caused the latter.

The principle of “res ipsa loquitur” (Latin for “the matter speaks for itself”), which applies to prove negligence, can assist the claimant in proving causation in some cases.  Where an event happens in the natural course of things from a particular cause, the courts may apply the principle to presume that the event was so caused.

The Civil Liability Act provides that where two or more persons are at fault and one is responsible and the other is free from responsibility, but it is not possible to establish which is the case, the two may be deemed concurrent wrongdoers in respect of the damage.

Remoteness

Remotenesss refers to the cut-off point, beyond which the defendant is not liable for the consequences of his fault, notwithstanding that he has caused them. An accident may have multiple knock-on consequences for a claimant. However, the defendant will not necessarily be liable for all of them. For example, a person may suffer an accident as a consequence of a third party’s negligence, causing him to lose his job, suffer a personality change and have his life fall apart.

The general principle is that a defendant is liable for the consequences of his negligence that are reasonably foreseeable. If a person causes a fire in a warehouse, it is usually foreseeable that there may be stock in it, which causes a loss of profits.

It will be reasonably foreseeable in many cases, that a rescuer may intervene. A person may be liable if he has negligently caused an accident and a rescuer is injured in dealing with it.

If damage or loss is caused by a  sequence of events some of which are predictable or foreseeable, and some of which are not, the defendant may be liable for the former, but not the latter. Difficult questions may arise in relation to categorising losses as foreseeable. Generally, a commonsense approach is taken in these types of cases. The courts distinguish broad categories of loss rather than precise types of loss.

The so-called “eggshell” rule has the effect that a claimant must be taken as he is found.  Therefore, if a claimant is particularly vulnerable (eggshell skull), then the defendant will be liable for the whole extent of his injuries.

A person will always be responsible for the damage which he intends. This principle will be relevant in situations of intentional wrongdoing. This will include deliberate wrongdoing, such as deceit, trespass (e.g. assault), liability for the escape of dangerous things and some types of nuisance.

In order to be liable damage or loss in some shape or form must be foreseeable. However, unlike the case with negligence and other “non-intentional” torts, the defendant is usually liable for the direct consequences of his actions.

Concurrent Wrongdoers I

Where more than one person is at fault in relation to an accident or incident,  each may be legally liable. Each will be partly responsible. The claimant cannot recover more than his total damage or loss and each should make a fair contribution.

The  Courts endeavour to ensure, that in so far as possible, all claims arising from single or connected incidents and events, should be litigated in a single legal action. For this reason, the Court Rules allow the claimant to sue multiple defendants. If a  defendant is sued, and he believes that another party is partly or wholly responsible, the third-party can be joined as a party to the legal claim by the defendant.

Concurrent liability can arise in a number of circumstances.

• an act may be committed by several persons, such as an assault;
• a person may be legally responsible for the actions of another, such as an employer for an employee and a car owner for a driver of a car;
• the claimant might be injured by the independent wrongdoing of two unconnected parties.

The Civil Liability Act provides that where two or more parties are responsible to a third party for the same damage, they are concurrent wrongdoers. Persons who breach a joint duty,  conspire or undertake a concerted action may be concurrent wrongdoers.

A person may be a concurrent wrongdoer (although he is not personally at fault) by reason of being vicariously liable for the wrong of another. Persons may be concurrent wrongdoers if their independent acts cause the same damage

A release or agreement with one wrongdoer only releases the other if there is a clear intention to do so in the agreement. Settling a claim against one wrongdoer, will therefore not of itself,  be a bar against a claim against others. However, the claimant cannot recover for more loss than he has suffered. The court may penalise a claimant if he takes multiple claims that could have been taken in a single set of proceedings.

Concurrent Wrongdoers II

Concurrent wrongdoers may not necessarily partake in contemporaneous acts or events. There may be successive acts that cause loss to the claimant. Concurrent wrongdoers are each liable for the whole of the loss and damage caused. Where persons cause independent types of damage, a court may apportion liability between them in such a manner as may be justified by the probabilities of the case.

Where the claimant is also at fault, the court will reduce the compensation proportionately. If the proper proportions cannot be determined, the liability for damages may be apportioned equally.

Legal action against concurrent wrongdoers can be brought against each of them or only one or more of them. Persons can be joined to legal proceedings as concurrent wrongdoers. Each concurrent wrongdoer may offer evidence against the other to show their respective degrees of fault.  Where there is a settlement, the parties may agree to an apportionment of the damages/compensation for which each is liable.

Where one wrongdoer pays the entire damages due to the claimant, it discharges all wrongdoers in so far as the claimant is concerned. Contribution is allowed where two or more wrongdoers are concurrently liable for the same damage. The wrongdoer may seek contribution from other concurrent wrongdoers.

No contribution is allowed where a person is obliged to indemnify that other person. An employer may be expressly or impliedly obliged to indemnify an employee. In this case, the employer would not be entitled to claim contribution from the employees.

The amount of contribution is that which the court determines to be just and equitable having regard to the relative degree of fault of the contributors. The court will look at the comparative blameworthiness. A person may be exempted entirely, in which event the contribution will lead to a complete indemnity.

A person may enforce contribution only if he has paid the sum due to the claimant. If the person is already a party to the claim, the contribution must be made in that claim. If the person is not a party, he should serve a third-party notice upon the prospective contributor as soon as reasonably possible.