Causation in English law

Last updated

Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law.

Contents

In the English law of negligence, causation proves a direct link between the defendant’s negligence and the claimant’s loss and damage. For these purposes, liability in negligence is established when there is a breach of the duty of care owed by the defendant to the claimant that causes loss and damage, and it is reasonable that the defendant should compensate the claimant for that loss and damage.

Public policy

Policy at this level is less than ordre public, but nevertheless significant. The policy is to give bound to the scope of people who can claim damages, how much they can claim, and within what timeframe.

The claimant must prove that the breach of the duty of care caused actionable damage. The test for these purposes is a balance between proximity and remoteness:

To clarify the nature of the judicial process, in Lamb v Camden LBC (1981) QB 625, Lord Denning said:

"The truth is that all these three – duty, remoteness and causation – are all devices by which the courts limit the range of liability for negligence . . . All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide."

In other words, the court's main task is to do justice as between these parties in their present situation. For this purpose, a weighing evaluative process is required, rather than a clear-cut rule of law. For example, in Meah v McCreamer and others (No. 2) (1986) 1 AER 943, the claimant suffered head injuries and brain damage as a result of the defendant's negligent driving, which led to a personality disorder. Four years later, he sexually assaulted and raped three women. The illegal nature of his conduct was not raised at the civil trial, and the claimant was held entitled to damages to compensate him for being imprisoned following his conviction. In separate proceedings, the three women assaulted obtained a judgment for compensation, so he sought indemnification from the negligent driver and his insurers for the amounts he had been ordered to pay. This was not a claim for his own personal injuries nor direct financial loss, but indirect loss. The three women could not have sued the driver directly because they were not foreseeable and so no duty of care was owed to them. The question was whether a person convicted of a crime was entitled to be indemnified against the consequences of that crime. Woolf J. held that the action would be dismissed on two grounds. First, the damages were too remote to be recoverable and, if such actions were to be allowed, it would leave insurers open to indefinite liability for an indefinite duration. Secondly, as a matter of policy, defendants should not have a right to be indemnified against the consequences of their crimes. In Clunis v Camden and Islington Health Authority (1998) QB 978 the claimant had been discharged from hospital where he had been detained under s3 Mental Health Act 1983. He was to receive aftercare services in the community under s117 Act 1983, but his mental condition deteriorated and, two months later, he fatally stabbed a stranger at a London Underground station. He pleaded guilty to manslaughter on the ground of diminished responsibility and was ordered to be detained in a secure hospital. Subsequently, he brought an action against his local health authority for negligence. The health authority applied to strike out the claim as disclosing no cause of action on two grounds. First, that the claim arose out of the health authority's statutory obligations under s117 Act 1983 and those obligations did not give rise to a common law duty of care. Secondly, that the claim was based on the plaintiff's own criminal act. In the Court of Appeal, the health authority's appeal was allowed on both grounds.

The factual test of causation

The basic test for establishing causation is the "but-for" test in which the defendant will be liable only if the claimant’s damage would not have occurred "but for" his negligence. Alternatively, the defendant will not be liable if the damage would, or could on the balance of probabilities, have occurred anyway, regardless of his or her negligence. To understand this, a distinction has to be made between cause and a precondition for the events. Lord Hoffmann in South Australia Asset Management Corp v York Montague Ltd [1] gave a classic example.

"A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee."

The doctor's negligence does result in the mountaineer running a risk which he otherwise would not have done, but this is insufficient to incur liability. The purpose of the doctor's duty to take care is to protect the mountaineer against injuries caused by the failure of the knee, not rock falls. Even though the injury might be reasonably foreseeable, the doctor is not liable. In The Empire Jamaica (1955) 1 AER 452, the owners sent their ship to sea without properly licensed officers. The pilot fell asleep, and a collision occurred. Though the pilot was negligent at the time, he was generally competent. Thus the question for the courts was: were the owners liable for the collision because they sent their ship to sea without properly licensed officers? Or was the factual precondition superseded by the question as to the competence of the pilot? There is no question that sending the ship to sea is "a cause" of the collision. The legal question is whether it is "the cause". This is a question that the courts treat as objective, addressed by evidence and argument. Hart and Honoré (1985) describe the process for establishing legal causation as constructing a parallel series of events (counterfactual situation), and comment: "the parallel series is constructed by asking what the course of events would have been had the defendant acted lawfully." Thus, the owners were not liable. Although they sent the ship to sea without licensed officers (what actually transpired) rather than with licensed officers (the lawful course), the cause of collision was failing to navigate a safe passage. As to the pilot, his lack of licence did not bear on his general competence. The significant factor was the pilot's negligence at the time, and the pilot's lack of license made no difference there. Had the pilot been licensed, he would have been no less likely to sleep. The license would not have awoken him. The owners were, therefore, exonerated on grounds that whether or not the pilot held a license made no difference to the real cause, which was not the pilot's general level of competence, but rather his negligence at the time.

Similarly, in Christopher Andrews v Barnett Waddingham LLP and RAJ Waddingham (2006) EWCA Civ 93, the claimant transferred from a "safe" employer's pension scheme to a commercial scheme on the advice of a firm of financial advisers. The breach of duty alleged was confined to advice about the protection afforded by the Policyholders Protection Act 1975 to "with-profits" annuities, and this duty was found to be breached by the first instance judge. The claimant would not have chosen the Equitable Life with-profits annuity if he had been given correct advice, but that did not entitle him to recover the loss he had sustained as a result of his acquiring the annuity. The 1975 Act would have applied if Equitable Life had become insolvent. That was not the case. The real cause of the loss was that the terminal bonuses were not guaranteed and were adversely affected by the downturn in Equitable Life's fortunes. So the negligence as pleaded and as found by the judge did not relate to the fact that the terminal bonuses were not guaranteed.

Multiple potential causes

The general legal framework for consideration of causation where several competing causes have been put forward involves the following principles:

The case of Rhesa Shipping Co SA v. Edmunds (1985), [3] records the above as general propositions. Sir Colin Mackay, in Joseph Simon Love v Halfords Ltd. (2014), relies on them, noting that they have been "often-cited". [2] [4]

In Pickford v Imperial Chemical Industries (1998) 1 WLR 1189 the Lords were asked to determine the cause of repetitive strain injury endured by a typist. Lord Steyn posed the question, "That immediately raises the point that there must be an explanation for the fact that she contracted PDA4. What was the cause of her PDA4? There really was no alternative on the evidence to concluding that this condition was caused by Miss Pickford's typing work." But alternative explanations are that typing might aggravate an inherent condition or generally be an unsuitable occupation for someone with a predisposition to that condition, and neither proves the legal cause. In all cases, the burden of proof is on the claimant to prove the cause as pleaded. There is no burden on the defendant to prove an alternative explanation of the cause of any loss or damage, but a failure to do so may be a factor in deciding whether the claimant's explanation of the cause should be accepted. This test works well in straightforward situations, but it proves less successful in establishing causation in more complex situations where a number of actual or potential causes operate either consecutively or concurrently. For example, in Robinson v Post Office (1974) 1 WLR 1176 following an accident at work, the claimant had an anti-tetanus injection. Nine days later, there was an adverse reaction to the serum and brain damage resulted. No matter what tests the doctor might have performed, there would have been no sign of an adverse reaction within a reasonable time (see the Bolam Test). The doctor's reasonable decision to provide the standard treatment was therefore not the relevant cause of the brain damage because the claimant would not have been injected "but for" the defendant's negligence. Thus, in deciding between sequential contributions to the final result, the court must decide which is the more substantial contribution.

In the High Court case of Ide v ADB Sales Ltd. (2007) and subsequent appeal (2008), regarding a mountain bike accident, two explanations had been put forward in court. One explanation was rejected by the judge, leaving the alternative explanation to be accepted and allowing the judge in accepting the second explanation to reach the conclusion that this followed from "the totality of the evidence", in this case that the bicycle was defective and the supplier was liable under the Consumer Protection Act 1987. [5] [6]

Breaking the chain of causation

Acts of a third party

Whether the acts of a third party break the chain of causation depends on whether the intervention was foreseeable. [7] The general rule is that the original defendant will be held responsible for harm caused by a third party as a direct result of his or her negligence, provided it was a highly likely consequence. So, for example, where the defendant has control over the third party, or where the third party is faced with a dilemma created by the defendant, the chain of causation is unlikely to be broken and the defendant will normally be liable to the claimant for the damage caused: Home Office v. Dorset Yacht Co Ltd. [1970] AC 1004. The continuity of liability is not imposed merely because the original negligence makes damage by the third party foreseeable, but where the defendant’s negligence makes it very likely that the third party will cause damage to the claimant: Lamb v. Camden LBC [1981] QB 625. In practice, however, the requirement that the third party intervention will usually break the chain and, at the very least, the liability to pay compensation representing the totality of the loss or damage will be apportioned between the two or more tortfeasors. So, for example, if A injures V, it is foreseeable that an ambulance will be called, that paramedics will lift and carry V, and that there will be a journey back to the hospital. This cycle of intervention is continued in the hospital. None of this activity affecting V would arise "but for" the original negligence so A will remain liable unless and until either an unforeseeable B intervenes (e.g. negligently drives his car and collides with the ambulance), or a paramedic or member of the hospital staff is so seriously negligent that it becomes a new cause of action.

Acts of the claimant

Loss of a chance

In loss of chance cases, the court is invited to assess hypothetical outcomes, either affecting the claimant or a third party where the defendant's negligence deprived the claimant of the opportunity to obtain a benefit or avoid a loss. Although it has been relatively unsuccessful in cases of medical negligence, it does provide a remedy in professional negligence generally.

Loss of a right

Recent medical negligence cases suggest tacit recognition of a more rights-based approach to damage.

Causation: law and science compared

Science and law have different functions but share striking similarities. Both purport to provide rational, reasoned, independent, unbiased processes concerned with the objective assessment of evidence. There are also striking differences. Scientific assertions compared with determinations of legal causation have the following characteristics:

The major distinction between legal determinations and scientific assertions lies in the concept of certainty. The legal concept of causation is deterministic: it is an expression of the fiction of certainty, an absolute concept. The scientific concept of causation is probabilistic: it is an expression of the uncertainty of truth, an asymptotic concept.

See also

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but-for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

Delict is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of wrongful conduct.

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

In law, liable means "responsible or answerable in law; legally obligated". Legal liability concerns both civil law and criminal law and can arise from various areas of law, such as contracts, torts, taxes, or fines given by government agencies. The claimant is the one who seeks to establish, or prove, liability.

<span class="mw-page-title-main">English tort law</span> Branch of English law concerning civil wrongs

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

Negligence in employment encompasses several causes of action in tort law that arise where an employer is held liable for the tortious acts of an employee because that employer was negligent in providing the employee with the ability to engage in a particular act. Four basic causes of action may arise from such a scenario: negligent hiring, negligent retention, negligent supervision and negligent training. While negligence in employment may overlap with negligent entrustment and vicarious liability, the concepts are distinct grounds of liability. The doctrine that an employer is liable for torts committed by employees within the scope of their employment is called respondeat superior.

<span class="mw-page-title-main">Causation (law)</span> Causal relationship between conduct and result

Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

<span class="mw-page-title-main">Canadian tort law</span> Aspect of Canadian law

Canadian tort law is composed of two parallel systems: a common law framework outside Québec and a civil law framework within Québec. Outside Québec, Canadian tort law originally derives from that of England and Wales but has developed distinctly since Canadian Confederation in 1867 and has been influenced by jurisprudence in other common law jurisdictions. Meanwhile, while private law as a whole in Québec was originally derived from that which existed in France at the time of Québec's annexation into the British Empire, it was overhauled and codified first in the Civil Code of Lower Canada and later in the current Civil Code of Quebec, which codifies most elements of tort law as part of its provisions on the broader law of obligations. As most aspects of tort law in Canada are the subject of provincial jurisdiction under the Canadian Constitution, tort law varies even between the country's common law provinces and territories.

In English tort law, an individual may owe a duty of care to another, in order to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability will be imposed upon the tortfeasor to compensate the victim for any losses they incur. The idea of individuals owing strangers a duty of care – where beforehand such duties were only found from contractual arrangements – developed at common law, throughout the 20th century. The doctrine was significantly developed in the case of Donoghue v Stevenson, where a woman succeeded in establishing a manufacturer of ginger beer owed her a duty of care, where it had been negligently produced. Following this, the duty concept has expanded into a coherent judicial test, which must be satisfied in order to claim in negligence.

Breaking the chain refers in English law to the idea that causal connections are deemed to finish. Even if the defendant can be shown to have acted negligently, there will be no liability if some new intervening act breaks the chain of causation between that negligence and the loss or damage sustained by the claimant.

In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.

In English law, remoteness between a cause of action and the loss or damage sustained as a result is addressed through a set of rules in both tort and contract, which limit the amount of compensatory damages available for a wrong.

<i>Re Polemis & Furness, Withy & Co Ltd</i> English legal case involving negligence

In RePolemis & Furness, Withy & Co Ltd (1921) is an English tort case on causation and remoteness in the law of negligence.

<i>Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd</i>

Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon Mound , is a landmark tort law case, which imposed a remoteness rule for causation in negligence. The Privy Council held that a party can be held liable only for loss that was reasonably foreseeable. Contributory negligence on the part of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's legal significance.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

South Australia Asset Management Corporation v York Montague Ltd and Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd [1996] UKHL 10 is a joined English contract law case on causation and remoteness of damage. It arose out of the property crash in the early 1990s, whereby banks were suing valuers for overpricing houses in order to recover the lost market value. Owners themselves often had little or no money, since they had fallen victim to negative equity, so mortgage lenders would pursue a valuer instead to recover some losses. The legal principle arising from the case is often referred to as the "SAAMCO principle".

Smith v Leech Brain & Co [1962] 2 QB 405 is a landmark English tort law case in negligence, concerning remoteness of damage or causation in law. It marked the establishment of the eggshell skull rule, the idea that an individual is held responsible for the full consequences of his negligence, regardless of extra, or special damage caused to others.

The civil liability of a recreational diver may include a duty of care to another diver during a dive. Breach of this duty that is a proximate cause of injury or loss to the other diver may lead to civil litigation for damages in compensation for the injury or loss suffered.

<i>Chapman v Hearse</i> Judgement of the High Court of Australia

Chapman v Hearse is a significant case in common law related to duty of care, reasonable foreseeability and novus actus interveniens within the tort of negligence. The case concerned three parties; Chapman who drove negligently, Dr Cherry who assisted him on the side of the road, and Hearse who, in driving negligently, killed Dr Cherry while he was assisting Chapman. In the Supreme Court of South Australia, Hearse was found liable for damages to Dr Cherry's estate under the Wrongs Act 1936. Hearse sought to reclaim damages from Chapman due to his alleged contributory negligence; Chapman was found liable to one quarter of the damages. Chapman appealed the case to the High Court of Australia on August 8, 1961, but it was dismissed as the results of his negligence were deemed reasonably foreseeable. A duty of care was established between Chapman and the deceased and his claim of novus actus interveniens was rejected. Dr Cherry was considered a 'rescuer' and his respective rights remained.

References

Notes

  1. (SAAMCO) [1997] AC 191, 214
  2. 1 2 England and Wales High Court (Queen's Bench Division), Joseph Simon Love v Halfords Ltd. [2014] EWHC 1057, paragraph 20 delivered 8 April 2014, accessed 22 December 2023
  3. 1 WLR 948
  4. Oddy, A. and McDonald, A., The burden of proof and competing theories on causation, Herbert Smith Freehills, published 27 February 2013, accessed 22 December 2023
  5. England and Wales High Court, Ide v ATB Sales Ltd., 17 July 2017, accessed 10 November 2022
  6. Crown Office Chambers, Richard Lynagh KC, accessed 10 November 2022
  7. "Causation in English Tort Law". IPSA LOQUITUR. Retrieved 22 October 2019.