The concept of causation is one of which tries to explain a chain of events that occurred due to an action which later led to an injury or a casualty i.e. “causal relationship between conduct and result”. For example, person A drops a banana peel on the ground person B unknowingly trips on this peel and is injured, person A’s action is the event that led to the injury. “The reasonable man” is an idea that is preludes most concepts In The law of Torts, liability in most cases is accrued as a result of an individual acting in a way not becoming of the reasonable man which causing injury to another person, such a person should be held responsible for his actions.
In some cases, mens rea may apply, a person intention e.g. someone collapses the middle of the road, seeing this Mr A abruptly stops his car causing a series of injuries. Mr A’s actions / conduct caused the result which was the injuries this is a source of contention on the matter of the reasonable man …” what would the reasonable man do”.
Many tools have been invented over the years to make it easier to determine cause, these have been introduced by judges to provide certainty and consistency on the law of causation. Some of these concepts include the ‘but-for’ test in which the claimant has to prove the injury suffered or affliction is directly related to the action of the defendant, the novus actus invterveniens rule, literally translates to new act intervening; It counts as a new factor that needs to be considered or breaks the chain of causation, remoteness of damage which involves establishing the foreseeability of the damage that occurred to the defendant at the time of the negligence , the ‘egg-shell skull’ rule states that a defendant must take his victim as he found him, the frailty of the injured victim is not a defence.
When talking about causation we can acknowledge such things as the butterfly effect and acknowledge one event could have multiple infinite causes, that all events started when Adam eating the apple in the garden of Eden; The law has to be considered practically thus the courts cannot afford to think about so intricately or philosophically, we must take a more pragmatic approach. The rule used to clarify relevant causes is the “but for test” states that if not for a certain action a certain result wouldn’t have been derived e.g. But for the act or omission “x”, the result “y” would not have happened. but for X spilling water on the floor Y would not have fallen and broken his back. Barnett v Chelsea & Kensington Hospital 1969 1 QB 428, Mr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him. The hospital was not liable as the doctor’s failure to examine the patient did not cause his death. This was the case that introduced the but for rule as it tested if the doctor’s omission or non-action would have saved the man’s life in that scenario i.e. would the result have occurred but for the act or omission of the defendant? In this case yes so, the defendant was not liable as even if he did the man would have died. That was a case where the plaintiff claimed that the injury was caused by the defendant’s failure to act.
Kenny v O’Rourke the plaintiff, who was a painter employed by sub-contractors, was injured when he fell of the ladder which was provided by the general contractors on the building site. Although the ladder was defective, the general contractors were held not liable on this account as the plaintiff testified that he fell because he lent to far. His fault was in no was caused by the ladder. The ladder in this case was proven to be faulty giving a worker that type of ladder in its self is a negligent act, the claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm which can be very hard to prove in certain cases as the defendants action may not be the main cause but could have contributed to the result i.e. in the O’Rourke case there is a high possibility he lent over so far because the ladder was faulty.
In a situation where there is more than one cause of it must still be proven that there is a link between the result and the action or the omission of the defendant ;”the material contribution test”. Where the claimant’s case is based on proving a material contribution to the damage, the defendant is responsible only for that part of the damage to which his negligence has contributed. Performance Cars Ltd v Abraham 1962 1 QB 33 Court of Appeal. The appellant hit the claimant’s car (a silver cloud Rolls Royce) as a result of his admitted breach of duty. Two weeks prior to this incident the Rolls Royce had been in a previous incident whereby another negligent driver had hit the car. As result of the previous incident the car required a re-spray. The claimant claimed £75 for the re-spray for the prior incident and obtained judgment by default. However, the claimant has never received the sum. The claimant sought to claim the £75 from the appellant. It was conceded that the claimant could not recover the same loss twice. The question for the court was which defendant should pay or whether they should be jointly liable. Held: The first defendant was responsible for the whole amount. The appellant was therefore absolved from all liability to pay.
The but for test is really only helpful when the event or injury only has one cause, with multiple causes or successive causes it must be modified as a result of the fact that the cause does not stem from one source e.g. two fires converge simultaneously on the plaintiff’s property destroying the plaintiffs’ property the but for test in this would mean no one would be responsible for the fire as it does not source from a single cause. In cases where a breach of duty consists of an omission to act also economic loss.
The chain of causation between the defendant’s original negligence and the plaintiff’s injuries may be broken by an intervening act of a 3rd party. If this intervening act is found to be a novus actus interveniens, then it will be taken to be the new cause of the plaintiff’s injuries and the defendant will be absolved of liability. The intervening act may be committed by a third party, the plaintiff himself, or by an intervening act of nature. In McKew v. Holland and others 1969 3 All ER 162 the House of Lords held that the plaintiff’s conduct in going down the steep flight unaided was unreasonable and had the effect of breaking the chain of causation. Lord Reid stated, “if the injured man acts unreasonably, he cannot hold the defendant liable for injury caused by his own unreasonable conduct.” A rather harsh application of the novus actus interveniens principle occurred in the case of Felloni v. Dublin Corporation 1998 1 ILRM 133 (HC) where Morris J. considered the failure of the occupier (the plaintiff’s aunt) to inform the defendant landlord of the defect to be a novus actus interveniens.
In Connolly v South of Ireland Asphalt Co. Ltd 1977 I.R 99(SC) the High Court ruled that the no contribution lay since the driver had been grossly negligent in failing to observe the cyclist and to brake in time, and therefore the driver had constituted a novus actus. However, the Supreme Court unanimously disagreed. The gross negligence of the driver did not in this case render him a novus actus for an accident that was clearly foreseeable from its perspective. Although it could not necessarily be said that the sequence of events leading to the plaintiff’s injuries was reasonably foreseeable, the type of injury that occurred had been a foreseeable consequence of the third party’s neglect. (Company causing the pot holes in the road by driving on it with Lorries.)
If the intervening act is foreseeable then it will not be considered a new cause of the damage, thereby absolving the original wrongdoer e.g. if one were to throw a person’s dog into a river, it is foreseeable that the owner will jump in after him. The defendant will be liable for the damage caused to the plaintiff. It was foreseeable that the owner would act in such a manner and therefore it was a predictable outcome for which the defendant should be made liable. In Breslin v. Corcoran & MIBI (27th March, 2003, Supreme Court) Fennelly J. Stated; “A person is not normally liable, if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.
Novus actus intervenines is an example of a legal principle. In deciding legal causation, the courts use legal principles to attribute responsibility where it ought to lie, this needs to be questioned where does responsibility lie, does the intervening act diminish the responsibility ,as mentioned earlier every man is responsible for his actions, from an early age we are taught consequences flow from physical acts and omissions. if a person inflicts damage on another person should they still not be held for the damage they inflicted on that person even though there was an unforeseen intervening act (Novus actus interviniens); “the common law only succeeds in replicating its confusion”.
Tests for cause in law encompass a remoteness test (which involves establishing whether the damage that occurred was foreseeable to the defendant at the time of the negligence). It is the type of harm that must be foreseeable, not its extent. The last part of the test is to ask whether any intervening acts (acts that occurred after the defendant’s breach) broke the chain of causation. If so, the defendant will not be liable.
Remoteness of damage is analysed with particular regard to the two landmark decisions of the twentieth century: Re Polemis and The Wagon Mound. Both of which are the ’cause’ of a vast amount of literature on the topic; and the subsequent divergence and/or diffusion of the two test of foreseeability namely ‘reasonable foreseeability’ and that of ‘direct consequences’ presents a mountain’s worth of material from which space permits, what is comparatively, a ‘molehill’ of a chapter.
Re Polemis & Furness Withy & Company Ltd. 1921 3 KB 560. Some Stevedores carelessly dropped a plank of wood into the hold of a ship. The plank struck something as it was falling which caused a spark. The spark was ignited by petrol vapours resulting in the destruction of the ship. The arbitrator held that the causing of the spark could not have been anticipated and therefore no liability arose. The claimant appealed. The court held, here was no requirement that the damage was foreseeable. The defendant was liable for all the direct consequences of their action, this overruled in the wagon mound case.
The Wagon Mound no 1 1961 AC 388 House of Lords ,the defendant’s vessel, the Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf the courts held: Re Polemis should no longer be regarded as good law. A test of remoteness of damage was substituted for the direct consequence test. The test is whether the damage is of a kind that was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.