Causation (Negligence, Tort) PDF

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Causation Duty of Care owed to P  Breach  Damage  Damage not too Remote  Defences A. Introduction to Causation - A necessary condition for negligence liability - Burden of proof on P on balance of probabilitiesB. Two Aspects for Causation “But for” Test – there must be physical cause and effect ...

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Causation Duty of Care owed to P  Breach  Damage  Damage not too Remote  Defences A. Introduction to Causation -

A necessary condition for negligence liability

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Burden of proof on P on balance of probabilities

B. Two Aspects for Causation 1. “But for” Test – there must be physical cause and effect (“but for” causation)  i.e. would the damage have occurred even if D not in breach?

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Barnett – causation not proved as the damage would have occurred even if D not in breach o

Worker drink tea and become sick and see the doctor; Patient is still dead after seeing doctor

 Court is satisfied that the man would die anyway even if all treatment were done 2. Effective Cause – Even if “but for” test satisfied, D’s negligence must be shown to be the effective cause of P’s injury  e.g. D’s negligence must be more than just the creation of an opportunity for damage

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Galoo o

D’s accountants were negligent in assessing P’s company’s financial health; D negligently rated P’s company positively, allowing P to continue to trade, incurring trading losses

 Did D’s negligence cause the trading losses? 

Is the “but for” test passed? Yes



Is D’s negligence an effective cause? No  remaining in business might make money but might also make a loss  created an opportunity to make a loss but did not directly cause the loss of money

 Effective cause is normally a matter of common sense, and in most cases follows the “but for” test 

Not always so where there are competing possible causes o

Novus Actus Interveniens – Legal principles applied to resolve the causation issue

C. Novus Actus Interveniens (New Intervening Act) -

Is D liable, on the basis of the “but for” test alone, if there is a subsequent, independent event that appears to be the immediate cause of P’s injury or worsening of his injury?  “but for” test may be satisfied but not conclusive

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Overriding question: Did the intervening event break the chain of causation, freeing D of liability for damage arising from intervening event? Or is the event merely a link in the chain off causation initiated by D’s negligence?

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Key determinant 1. Is the intervening event reasonably foreseeable by a person in D’s position?

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Oropesa – in general, depends on the degree of foreseeability of event (and the manner of occurrence  criminal acts are usually fresh cause) o

Ship collided and D was at fault, making P’s ship to sink; P had to emerge emergency vessels and lift lifeboats

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Can usually sue negligent intervener, so P can obtain remedy 3 types – (1) natural events, (2) P’s conduct, (3) third parties’ conduct

Review~ -

The question of reasonable foreseeability of intervening event is the key, but is an open question, on a case-by-case basis

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The case law provides general guidance

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Policy considerations are at play, often unspoken (eg, is it fair that D pay for all the damage? Is another D available for the claim for further damage?)

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Note how negligence has been held to be n.a.i., and not n.a.i.; similarly, criminal conduct

D. Natural Events [e.g. rain, wind] -

Hypothetical case (Carslogie Steamship v Royal Norwegian Government)

 Through its negligence, D damages P’s ship, causing delay in P’s departure to Port X to deliver cargo; P departs late and encounters storm, causing damage to ship  P claims against D for repair costs for storm damages  Might hold that it is a chain of causation and storm is reasonably forseeable E. Plaintiff’s Conduct [e.g. instinctive human responses]

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Chun Yat Nam



Specially trained police officer got shot in the head in shooting range and suffered from brain damage; became unable to take up his previous place and refused to participate in work that was less intense, finding it humiliating  Unsuccessful Novus Actus

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McKew – disregarding own safety post-accident

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Walked down steep stairs without assistance after injury and suffered from further injury

 Held: the negligence of P had broken the chain of causation VS contributory negligence (more lenient position) -

Keeling – hurt in limbs but still wander around

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Old lady tried to board a ship in Sai Kung by herself but injured; went to beach and stumbled + slipped in shower + other injuries post-accident  Held: the post-accident incidents are reasonably foreseeable and not a break in the chain of causation because people would not stay in bed their whole life after being injured

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Novus Actus or contributory negligence?

F. Third Parties’ Conduct -

Generally, act of third party breaks the chain of causation

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Knightley – Exception: circumstances may require more than negligence to break the chain o

D1’s negligent driving causes accident at tunnel exit; D2 [police inspector] sends P [police officer] into tunnel against traffic to close tunnel to traffic; P injured while attempting to close tunnel

 Held: encyclopaedia of wrongs made by D2 was too much and broke the chain of causation because the negligent order to drive down a one-way tunnel was unforeseeable



Ho Hing Mui – Exception: some negligent acts, e.g. medical treatment, may be considered foreseeable, and may not break the chain of causation (rare)

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Reckless acts of third party

 Generally, breaks a chain of causation because unforeseeable, not to be expected in ordinary course of event

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Wright v Lodge

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Criminal acts of third party  Generally, break chain of causation because unforeseeable  Even foreseeable criminal intervention may not be enough to impose liability on D 

Lamb o

D (local gov’t) negligently causes flooding and damage to P’s house; P re-locates; third party (criminals) move in, causing further damage

 Held: for D to be liable for another’s criminal act, criminal act must be “very likely to happen” 

All Link – Where criminal act is the “very thing”, D is under a duty to prevent

G. Problem Fact Patterns (1) Loss of a chance of recovery  Is proof that D’s breach of duty caused P a loss of a chance of recovery a sufficient proof of causation in a negligence action? 

Hotson o

If proper treatment is received, P has 25% chance of recovery; D’s negligent causes delay in treatment, removing any chance of recovery

 Held: not entitled to damages 

Gregg o

D’s failure to diagnose P’s cancer caused P’s chances of survival to be reduced from 42% to 25%

 Held: chance of recovery must be greater than 50% pre-negligence (more than likely he would recover if not for the negligence) (2) Multiple causes – an event of damage can have multiple causes -

Material contribution to injury  Bonnington o

silicon dust from “innocent” and “guilty” sources causing pneumoconiosis [longer the exposure, worse off you will be] divisible [accumulative] but concurrent

 a defendant will be found to have caused the injury if his negligence materially contributed to the occurrence of the injury -

Material increase of risk -

Substance causing the disease is known

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D’s negligent activity produces that substance

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There are multiple sources of the substance, and it’s not scientifically possible for P to trace the disease to D’s negligence

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In such cases, P can prove causation by proving that D’s negligence materially increased the risk of injury to P  D will be liable for all of the

damage  Has proof of D’s negligence materially increased P’s risk of getting the injury a sufficient proof of causation?  normally no but with exceptions



McGhee o

Workman working in environment full of coal dust and suffered from dermatitis

 Held: negligence in providing appropriate washing facilities although the consequence of long exposure to coal dust was unknown at the time  may have developed dermatitis with a small wound  could not satisfy “but-for” test > policy consideration – unknown reason + fairness  dermatitis was divisible as it gets worse overtime

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Fairchild o

P exposed to cancer-causing asbestos by multiple employers (Ds) and later suffered from mesothelioma; P can’t prove which employer he was working for when he got the disease  could not satisfy “but-for” test as mesothelioma was indivisible

 Held: material increase of risk of getting disease amounts to a sufficient cause  all Ds are liable for the full amount (jointly and separately liable)  policy considerations prevail  Applying Fairchild 

Baker v Corus (HK 2006) o

Mesothelioma and multiple employer [mesothelioma is indivisible]

 HL attempts to limit the reach of Fairchild which held all ex-employers jointly liable  liability for a whole amount was too harsh for short-term employers + P had to track all employers to get full compensation (apportion of liability puts a huge burden on P) 

Sienkiewicz v Greif (SC 2011) o

P was exposed to cancer-causing asbestos in general atmosphere and at work and died of mesothelioma; P’s exposure to the risk at

work created by employer’s negligence determined to be an 18% increase of risk  Held: causation still established although failed “but-for” test using the Fairchild principle -

Multiple possible independent causes – is it enough to show D caused a material risk of the injury?

 Wilsher – NO o

Baby born premature; D negligent in giving too much oxygen  P suffered blindness; excess oxygen is only one of many possible causes  failed “but-for” test + distinguished from McGhee as there was only one agent

 Held: D not liable -

Successive independent causes – is causation proved where P’s injury is overtaken before trial by an event unrelated to D’s negligence?

 Baker v Willoughby o

P’s left ankle severely injured by D’s negligence; before trial, P was shot by unknown attackers and got his left leg amputated  how far was D liable?

 D’s argument: “P could not run before the second injury, he cannot run now. But the cause is now quite different. The former cause was an injured leg, but now he has no leg and the former cause can no longer operate.”

 Jobling v Associated Dairies o

P’s back injured due to D’s negligence; P acquires a totally disabling disease before trial which is not attributable to D’s negligence  how far was D liable?

 Competing principles arises  Competing Principles Baker - Nature of supervening event:

Jobling - “Vicissitude of life”: in assessing

tortious vs non-tortious

amount of P’s continuing (future)

v When is an event a tort?

loss, court must take into account

Does the tort/non-tortious

chance of future mishaps –

distinction give rise to the

damages reduced by what

need for a trial within a

amount

trial? -

D “takes the victim as he finds him” when court determines

v Is an unexpected criminal attack not a vicissitude of life? v Is it not arbitrary if a disease

what loss D caused

is contracted a few days after

 P (earns $1M per year)

trial is not relevant?

injured by D1 (P can now

 P 20 years old at time of

earn $600k)  1 year

accident and the injury

later, P permanently and

terminates work career; P

totally injured by D2

would have worked till 60 with

 P sues D1 and D2

an annual salary of $1M

 D2 only liable for

 Damages for lost income is

additional damage he

not awarded at $30M (30

caused  $600k per year

years *$1M) but $28M 

 D1 should be liable for $400k per year for the rest

probability of other

of P‘s working life so P

accidents/diseases

could be fully

occurring before normal

compensated for the rest

retirement  “life is not

of his life

perfect”

 Disregard second



take into account statistical

 Second event is operative,

event, extent of D’s

closes period of liability;

liability unaffected by

D’s causation persists only

up to the second event subsequent event Restitutio in integrum: P entitled to full and fair compensation, but not more (Baker/Jobling)

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“the country should not speculate what it knows”

H. Remoteness of Damage -

Wagon Mound No.1 – reasonable foreseeability of kind of damage is a prerequisite for recovery  extent of damage need not to be reasonably foreseeable

 Similar facts as WM No.2 – P’s wharf was damaged by fire caused by careless oil leakage and falling of flammable substances

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Re Polemis – D can be liable for all consequences flowing from his negligent conduct  Rejected in this case

 Kind of damages = physical damage / financial loss / …

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When manner of occurrence of damage is not reasonably foreseeable…

 Hughes v Lord Advocate – D has a duty to protect P from foreseeable injuries or harm that are caused in a unique, unforeseeable manner if the damage falls within a “foreseeable class of harm”

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P played at an unattended site and knocked over a kerosene lamp then injured in the explosion caused. o

Donoghue was applied

 Held: where P’s injury is foreseeable, but the injury is caused in a unique way or manner which could not have been foreseen, the damage still falls within the chain of causation

 Doughty v turner Manufacturing 

P stood some distance away from a factory worker who accidentally caused spillage of hot acid which then caused a violent eruption. o

Hughes v Lord Advocate was argued to be applied

 Held: WM No.1 was applied instead because splashing, a physical displacement, was foreseeable, but the eruption was a chemical reaction, which is not the same kind of damage – damage caused by physical displacement

 Jolley v Sutton – only the kind of damage should be foreseeable, and not the specific outcome

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P found a boat on which a warning was put to tell others not to touch it and to tell D to move it away. The boat was never taken away and P started refurbishing it, during which he was injured.

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“In this corner of the law, the results of decided cases are inevitably very fact-sensitive.”

 Held: harm to children is foreseeable and it was unconvincing that harm to younger and older children playing amount to two different forms of harm -

When P’s predisposition causes unforeseeable kind of damage  “thin skull”

 Smith v Leech Brain 

Lip burn resulting in cancer and death

 Held: the burn was a foreseeable consequence of D’s negligence + unnecessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury  eggshell skull rule applies  a wrongdoer must take his victim as he finds him  D is liable

 Simmons v British Steel 

Injuries from fall at work due to employer’s negligence  P was very angry and aggravated skin condition  psychiatric illness

 Held: P is the primary victim regarding his accident and skin condition  no need to explore the possibility of foreseeability for his depression  D is liable...