“Causation and Remoteness provide the link between the defendant’s negligent conduct and the harm done to the claimant.” Discuss.
This essay will discuss the legal concepts of causation and remoteness, showing how these provide the vital link between the conduct of the defendant, and the harm caused. These are relevant in cases in the tort of Negligence. The imposition of liability for the particular damage is only appropriate if they can said to have ‘caused’ the damage both in fact and in law.
Causation – Factual Causation
Causation is a legal concept which is also known as factual causation. It is concerned with whether the actions (or omissions) of the defendant, in breach of a recognised duty of care to the claimant, in fact caused the damage. The primary question the courts will ask is whether the damage would have occurred ‘but for’ the actions of the defendant, as per Cork v Kirby McClean .
In Barnett v Chelsea, the court held that a defendant will not be liable for actions in breach of a duty which correlate with damage which is would have happened anyway; in that case, a hospital was not liable for the death of a patient which it wrongly neglected to treat, as this would have happened regardless of medical intervention.
In practice, the majority of applications of this test are straightforward, on the facts of the case. However, there are a number of more complex situations in which case law has refined the test espoused in Cork.
When there are multiple causes of harm to a claimant, then it is relevant only that the defendant ‘materially contributed’ to the damage, under Bonnington Castings Ltd v Wardlaw, allowing the claimant to sue and recover in full from each defendant severally. Where there are multiple possible causes, the courts have shown that a balance of probabilities will be used to show whether the defendant ‘substantially contributed’ to the damage (Wilsher v Essex Area Health Authority).
In McGhee v National Coal Board, it was shown that the defendant may be liable for increasing the risk of the damage. This is particularly relevant involving cases where a defendant has been involved with causing an illness or diseases which may take years to develop, and where it is uncertain where the cause lies.
When there are a series of consecutive damages, the ‘but for’ test is applied to the original defendant. As decided in Performance Cars v Abraham, a second defendant was found not to be liable as the first had already caused the loss, materially changing the nature of the damaged property before the second defendant enacted further damage.
There are circumstances in which the chain of causation may be broken by a novus actus interveniens – an intervening act – by a third party, by the claimant themselves or through an act of nature. If an intervening act breaks the chain of causation, then the original defendant cannot be liable for damages resulting subsequently. The court must take into account all the circumstances of the facts. In Knightley v Johns, it was held that the defendant would be responsible for injury that is the “natural and probable result of the wrongful act”, and that an act of a third party will break the chain of causation only if it is an unforeseeable consequence.
Intervening acts by the claimant themselves may exonerate original defendant, but only if it is wholly unreasonable in all the circumstances (Corrs v IBC Vehicles). It is also possible that such an act which may not wholly preclude the defendant from liability may be classed as contributory negligence on the part of the claimant, with any award of damages reduced accordingly.
The law is also prepared to recognise the loss of chance as a head of damage in itself. In Hotston v East Berkshire Health Authority, the defendant hospital was in breach of duty regarding the misdiagnosis of an injury, resulting in complications. The chance that the hospital had contributed to the complications, which may have developed anyway, was not deemed to be sufficient to satisfy the balance of probabilities, of fifty percent. The claimant must show that the actions of the defendant caused the injury on the balance of probabilities.
This position was considered in detail in Gregg v Scott, causing a degree of dissent among the Law Lords. On a vote, the position in Hotston was narrowly upheld, but it is clear that this area of law may require further reform and refinement, arguably by Parliament.
Remoteness – Legal Causation
If the test of factual causation is met, then the court must consider whether the defendant caused the damage in law.
The concept of remoteness can be viewed as a policy based device to limit the liability of a defendant to that which is ‘fair’ to impose. The results of a particular action may be far more wide reaching in impact than it is reasonable to attribute to the defendant. In Re Polemis, the House of Lords decided that the liability of a defendant is not limited, that they are responsible for all damage resulting from the breach.
However, the Privy Council decided the later Waggon Mound No 1 case differently, and held that liability is limited to damage which is not ‘too remote’, that which is reasonably foreseeable type of damage as a result of the breach. In theory, both decisions are good law, although it is conventional to follow the Waggon Mound in negligence cases.
Both causation and remoteness are legal concepts which tie together the actions of the defendant and the damage suffered by the claimant. The necessary link between the two is a matter of determining cause and effect. Did the defendants breach of duty cause the damage in fact? And is it just to apportion liability for that damage to the defendant?
The protection afforded to the defendant by Waggon Mound remoteness is a necessary artifice of policy, limiting the liability of a defendant to what they should reasonably have foreseen. It seems unjust for someone to be ‘at fault’ for a limitless expensive chain of cause and effect, which may have resulted from a minor transgression.