Liability in Negligence
Damage caused by the
Defendant’s breach
Lesson Objectives
• I will be able to distinguish between
causation in fact and remoteness of
damage
• I will be able to distinguish between
damage and damages
• I will be able to state and explain factual
causation in negligence
• I will be able to state and explain the test
for remoteness of damage
General Principles
• If there is to be liability in negligence, the
broken duty must have caused the loss
complained of, and the loss must not be
too remote from the act
• This is often referred to as damage and
must be distinguished from damages
which is the amount of compensation
awarded
• There are two parts to damage: causation and
remoteness. Causation is the idea that the
defendant must have caused the loss
complained of – this is causation in fact (this is
the same concept as in criminal law, but it
illustrated by examples from the law of
negligence)
• If no loss is caused then there is no claim in
negligence
• Remoteness is concerned whether the loss is
reasonably foreseeable: causation in law
• Both must be proved following a broken duty of
care if there is to be liability for a claim in
negligence
Situation:
Defendant’s act or omission
Drives car into claimant’s car
Causation in fact:
Apply ‘but for’ test
Minor damage to car and whiplash injury to claimant
Causation in law:
Take your victim as you find him/unusual form of foreseeable injury
Claimant already has a weak neck from previous accident and in fact breaks neck
Causation in fact
• This is the starting point – if there is no causation in fact, there is no
point in considering whether there has been causation in law
• Causation in fact is determined by the ‘but for’ test – this test is
satisfied if it can be said that, but for the defendant’s act or omission
the claimant would not have suffered loss or harm
• A different way of stating the test is to ask whether the prohibited
result would have occurred if the defendant had not acted – if it still
would have occurred, even without the D’s actions, then factual
causation is not present
• Barnett v Chelsea and Kensington Hospital Management Committee
(1968) – this is an example where there was no causation in fact as
the hospital could not have done anything to save Barnett’s life. The
cause of the death was the original poisoning, not the hospital’s
failure to examine him properly
Multiple causes
• It is not always straightforward to establish that the
defendant’s act or omission caused the loss complained of
– sometimes there is more than one possible cause
• The courts have started to use a modified rule on the
grounds of public policy where there are ‘special
circumstances’
• Fairchild v Glenhaven Funeral Services Ltd (2002) – the
normal rule on causation in fact can be modified on policy
grounds where there are ‘special circumstances’. Here this
was because it is impossible to prove when asbestos
actually entered the system to cause illness
• Barker v Corus (2006) – this case modifies the ‘but for’ test
in asbestos cases only and should be seen as a special
exception to ensure some remedy for the victim
Intervening events
• As with criminal law, an intervening act can break the
chain of causation – novus actus interveniens (new act
intervening)
• The defendant’s act may be said to cause the claimant’s
damage, in that it satisfies the ‘but for’ test, but a second
factual cause is the real cause of the damage
• The principle that is applied is whether the resulting
damage was a foreseeable consequence of the original
act. The cases often appear to be decided on the basis
of producing a just result as each set of facts are very
different
• Smith v Littlewoods (1987) – vandals
breaking into an unoccupied, but secured,
building and setting fire to it was a new act
intervening when vandals were not
common in the area
• Corr v IBC Vehicles (2006) – depression
following a serious accident and
subsequent suicide is seen as a result of
the original accident and not as a novus
actus interveniens
Remoteness of damage –
the test of reasonable foreseeability
• Where there is factual causation, the claimant may still fail to win his
case, as the damage suffered may be too remote – the breach of
duty may have significant results, but the defendant will not be liable
for everything that can be traced back to the original act
• Clearly there are some far-fetched results that are not foreseeable
and therefore are not recoverable – example from the book
• The test is that the defendant is liable for damage only if it is the
foreseeable consequence of the breach of duty
• Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co. Ltd
(1961) – known by the ship’s name: The Wagon Mound – damage
by the spilt oil was foreseeable; damage by the fire was not
foreseeable and was therefore too remote
Remoteness of damage – the kind of
damage must be reasonably foreseeable
• The principle here is that as long as the type of
damage is foreseeable, it does not matter that
the form it takes is unusual
• Bradford v Robinson Rentals (1967) – as long
as the type of damage is foreseeable, it does not
matter that the form it takes is unsual. In this
case, frostbite was an extreme form of injury
from the cold
• Hughes v Lord Advocate (1963) – another
example of a claimant succeeding for injury
caused by an extreme type of harm (an
explosion and fire being an extreme type of a
burn)
• Doughty v Turner Asbestos (1964) – the
claimant was injured when a lid was knocked
into a vat of molten metal and the vat erupted.
Scientific knowledge could not predict the
eruption, so the event was unforeseeable. The
claim failed
Remoteness of damage –
take your victim as you find him
• This is similar to the concept in criminal law – a
person’s liability in negligence is not
extinguished or lessened because the claimant
had a pre-existing condition that made the
injuries worse
• Smith v Leech Brain (1962) – the claimant had a
pre-cancerous condition. He was splashed on
the lip by some molten metal. The burn turned
into a cancer as a result of his condition. His
claim succeeded
Remoteness of damage – a recent example
of how a judge should apply the principle of
reasonable foreseeability
• Gabriel v Kirklees Metropolitan Council
(2004) – this example of how a judge
should apply the reasonable foreseeability
test involved children playing on an
unfenced building site