Discuss the extent to which the rules on causation and remoteness of damage are fair to both parties

An examination of the principles of causation shows that the principles are about making the defendant responsible for all foreseeable loss that he or she has caused.

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There are exceptions, such as in the case of strict liability, but tort liability is about establishing whether anyone is at fault or is to blame. The court ordinarily concerns itself with whether a breach of duty is shown to exist, and if so, to show liability that the defendant's act or omission caused the damage. The claimant must show a causal link. The law of tort is a civil set of rules so that the standard of proof is a balance of probabilities. This may seem relatively straight forward but things may not be that simple if there are multiple causes or the nature of the damage is out of the ordinary.

 

There are two types of causation and both must be proven. The two types are causation in fact and causation in law. The claimant must prove that the defendant's act or omission caused the damage or loss (causation in fact). That is not the end of the matter because it must also be shown that there is sufficient proximity between the act complained of and damage so as to make the defendant liable (causation in law).

 

The principle of causation is that it is based on the 'but for' rule under which the court asks itself the question – would the damage have occurred 'but for' the defendant's actions? The 'but for' test was aptly stated by Lord Denning in Cork v Kirby Maclean Ltd (1952) as 'if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.......'. The case involved damage said to have been caused by the overflow of polluted water into a river by the activities of the appellants. Lord Denning, whilst aware that there were other factors involved, seemed to have satisfied himself that the activities of the appellants were the cause of the overflow of the polluted water into the river.

 

Whilst the 'but for' test may be a traditional tool at the disposal of the courts it is not always sufficient and resort may have to be had to other means in more complex cases where there are multiple causes.

 

In Cutler v Vauxhall Motors ( 1970) the defendant company injured the claimant as a result of which he had to have an operation for varicose veins. It transpired that he would, as likely as not, have required the operation in a few years time in any event even if the injury had not happened. The majority of the Court of Appeal refused to allow the claimant's claim finding that the operation was not caused by the defendant's breach of duty. It is arguable that the answer may have been different had the breach caused the amputation of a leg even if the leg may have had to be amputated in the future anyway. The reason being that a claim for damages seems more just in such a situation as opposed to one where recovery is expected.

 

Problems may arise in apportioning responsibility where there were several concurrent causes. In Wilsher v Essex Area Health Authority (1988) such a problem arose. The defendant hospital negligently administered excessive oxygen during the post-natal care of a premature baby. The baby became blind afterwards but the excessive oxygen was only one of five possible causes that could have led to the blindness. When the matter reached the Court of Appeal the Court used the 'material increase of risk' test and found the hospital liable as it had breached its duty and by its acts increased the risk of harm.

 

The House of Lords were not convinced by the reasoning or the strength of the evidence about the primary cause and, by a majority, dismissed the appeal on the basis that they were not satisfied that the hospital had materially contributed to the injury.

 

The test had been used earlier in McGhee v National Coal Board (1972). In that case the former House of Lords held that where a breach of duty has a material effect on the risk of injury then any subsequent injury is said to have been caused by the breach. The facts of the case were that McGhee was employed to clean out brick kilns and developed dermatitis from the build up of coal dust on his skin. There had been no showers at his workplace and he had to cycle home each day still covered in the coal dust.

 

The issue became one of whether his employer's failure to provide washing facilities had caused the rash and that there had been a breach of duty. Lord Reid stated 'The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk'. The House decided that the risk of injury had been materially increased by the exposure with the effect that it was not necessary for the claimant to have to rely upon the 'but for' test.

 

The above modification of the 'but for' rule is similar to where the court decides that the breach 'materially contributes' to the harm so that the breach is one of other contributing factors and significantly contributes to the risk of harm or injury as in Fairchild v Glenhaven Funeral Services (2002). The case concerned mesothelioma, a deadly cancer caused by inhaling asbestos fibres. The House of Lords approved of the test of 'materially increased risk' as a variation of the traditional 'but for' test.

 

It has been seen that there can be consecutive causes of harm in which case the court may select the first as the 'cause' as in Performance Cars v Abraham (1962) which concerned consecutive collisions involving a Rolls Royce. This may still leave the question of how the courts approach the apportion of damages where there are consecutive causes. The issue arose in Baker v Willoughby (1970) where the defendant negligently damaged the claimant's leg in a road accident. The same claimant was later shot in the same leg by some robbers and his leg had to be amputated. The House of Lords decided that the correct approach was to assess damages on the basis that compensation was payable as if the second event had not occurred. The disability had been serious and he was entitled to be compensated without reference to the second accident and the amputation. This may seem harsh but it was decided that if the court had decided otherwise the claimant would not have been able to be properly compensated as he was unable to claim against the robbers to pay their share of the compensation. Such cases are obviously not easy to resolve and the decision was criticised in Jobling v Associated Dairies (1982) when the ruling in Baker was said by the House to be exceptional.

 

We have already seen that there must be established a causal link between the claimant's injury and the Defendant's act or omission giving rise to the breach of duty. It follows therefore that any break in the chain of causation caused by any new or intervening act (novus actus interveniens) will affect the causal link and some other party (or even the claimant themselves) may have to share responsibility.

 

The effect of a break in the chain of causation is normally to relieve the defendant of liability. This was shown in McKew v Holland & Hannen & Cubitts (Scotland) Ltd. (1969) where the claimant after suffering damage to his leg as a result of the negligence of the defendant, broke his ankle when descending a staircase without a handrail or help. The court took the view that such a person must act reasonably if they have a loss of mobility and in acting in the way he did the claimant had acted unreasonably and therefore the defendant was not responsible for the later injury.

 

The courts have also had to consider acts of nature as part of the equation of compensation (Carslogie Steamship Co v Royal Norwegian Navy(1952)), although this rarely succeeds, as well as acts of third parties (Knightley v Johns (1982)).

 

In the case of Barker v Corus (UK) Plc 2006 a new form of 'proportionate liability' came about. As in Fairchild, the claimants contracted mesothelioma after working for a number of different employers who had negligently exposed them to asbestos. In the intervening years (before the symptoms of the disease materialised) some of the employers had become insolvent. The issue arose as to whether it was right for the remaining employers to bear the whole of the cost or whether they were properly only responsible for a proportion. The House of Lords decided that it was not right for the solvent employers to meet the proportion of the damage for which the insolvent employers were responsible. This was not met with universal acceptance and it did not take Parliament long to pass the Compensation Act 2006 which effectively overruled the judgement of the House.

 

It has long been an established principle that a wrong doer must accept their victim as they find them (the 'eggshell skull' rule) so that if the claimant has some pre-existing condition and this exacerbates the injury then it is not the fault of the victim but should form part of the 'but for' rule and it becomes the responsibility of the defendant (Smith v Leech Brain).

 

Having worked through the 'but for' rule and any exceptions and variations, if a causal link is established, it is still necessary for the court to consider whether the damage is too remote a consequence of the breach to be allowed. The principle has its roots in policy considerations so as not to overburden the defendant.

 

Direct consequential loss has always been allowed. This is so even if the loss is not foreseeable (Re Polemis and Furness, Withy & Co (1921)).

 

Under the test of remoteness of damage, it is damage that is reasonably foreseeable that is recoverable Wagon Mound (No 1) (1961).

 

In practice it is the type of damage that must be foreseeable not the amount or extent of damage Bradford v Robinson Rentals (1967). In this remarkable case the claimant who was employed by the defendants suffered frostbite as a result of driving unheated vans over long distances and long periods. A broad approach was adopted by the court in the sense that they found that in calling upon the claimant to undertake the task the defendants had exposed him to extreme cold and fatigue and as such had exposed him to reasonably foreseeable risk of injury. The injury included frostbite which, although unusual, could be said to be of the kind foreseeable i.e. injury from exposure to the cold – it did not need to be shown that the precise injury itself was foreseeable.

 

This broad approach was supported with the decision in Hughes v The Lord Advocate (1963) when it was ruled that it is not necessary for the precise circumstances to be foreseen.

 

In the Wagon Mound (No 2) (1967), the defendant owned a freighter ship named the Wagon Mound. The ship was moored at a dock. The claimant owned two ships and these were moored nearby. At some point during this period the Wagon Mound leaked oil into the harbour. At the same time some welders were working on a ship. The sparks from the welders equipment caused the leaked oil to ignite. The subsequent fire destroyed all three ships. The trial judge had agreed that fire was possible but was too remote to be considered as part of the compensation. The appeal eventually reached the Privy Council. The Judicial Committee of the Privy council held that loss will be recoverable where the extent of possible harm is so great (as was the subsequent fire) that a reasonable man (in this case the ship's engineer) would guard against it (even if the chance of the loss occurring was very small). Liability was found against the defendant owner of The Wagon Mound.

 

In the case of property damage, we can see that a narrower approach is taken to the question of what can properly be said to reasonably foreseeable damage.

 

An examination of the principles of causation shows that the principles are about making the defendant responsible for all foreseeable loss that he or she has caused. It may therefore be said that the rules are fair to both the claimant and the defendant.

 

We have noted that the rule works well where there is a single cause. This is where the 'but for' rule comes into its own. It identifies fairly and quickly who is at fault. This is fair to the defendant and also assists the claimant because the claimant can be more certain about who is liable.

 

There may be occasions when the claimant is left without compensation as a result of the application of the 'but for' rule but this is likely to be limited to cases where it has not been shown that there is a causal link between the defendant's breach of duty and the harm suffered.

 

As we have seen, difficulties can easily arise where there are multiple causes. Can it be fair that a defendant escapes liability even though they are responsible for a breach? The traditionalists will say yes as this is largely how the law of tort has developed over the years. It is primarily aimed at fault liability. Some will say this is wrong especially as a claimant goes without compensation although in the claimant's eyes they have been injured and wronged. There have been few occasions when Parliament has thought to interfere. The Compensation Act 2006 is one such occasion. The inherent unfairness of the Barker v Corus ruling being that it excluded tortfeasors at the same time as acknowledging that what they did was wrong by ordering the 'surviving' solvent tortfeasors to bear the cost of their share of the compensation. The outpouring of objection to the original Barker ruling seems to have been about a principle and fairness.

 

The law seems to throw up anomalies even though the basis of the rules on causation are soundly founded, take the situation of consecutive causation and the fact that some defendants are not liable despite being at fault. This seems unfair when one considers that the law acknowledged the existence of contributory negligence many years ago and Parliament showed again that it was capable of rising to the occasion and legislating.

 

Some may argue that, having developed sound tests under the causation rules which can be varied to cater for complex situations, as shown by such cases as Baker v Willoughby, why are judges so pre-occupied with ways and technical arguments for limiting or fixing compensation? Surely this might be another area for Parliament to intervene on the grounds of fairness. Some might also argue that the rules on remoteness of damage are driven by policy considerations more than legal issues and as such they are unfair to claimants. In addition there are problems with consistency which could be argued to be unfair to both the claimant and defendants and their legal advisers whose job it may be to advise on possible outcomes of litigation. Different approaches seem to be taken by judges at times which may lead to harsh and unfair decisions (Doughty v Tuner Manufacturing; Tremain v Pike) which seem to differ from the approaches taken by liberal and progressive judges in Jolley v London Borough of Sutton.

 

There is also the issue of nervous shock and the apparent cautionary approach taken by the courts when addressing claims of this nature. Can any one deny the harm or injury suffered to individuals faced with expert medical advice? Should we not move with the times and act more fairly.

 

 

(Word count 2648) 

 

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