Flashcards in Negligence: Legal Causation Deck (22)
Gray v Thames Trains (2009)
This case provides an example of a supervening act which disrupts legal causation. The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under PTSD, the claimant had gone on to kill another person, and he had been detained under section 41. He now sought damages for his loss of earnings through detention in prison and mental hospital. Lord Brown posits this question: "...on what disabling supervening events is the initial tortfeasor entitled to rely to reduce or extinguish the consequences of his tort?" .
It was eventually held that damages cannot be claimed once C was convicted. Simply put, we cannot ignore reality; to allow C to 'pass on' the loss of liberty is inconsistent with policy. To hold otherwise would have forced D to pay C damages since but for D's negligence, C would have been able to work - yet in actuality, he would be in detention for the foreseeable future (see Lord Rodger at [75-6]).
Lord Rodger goes on to criticise Baker v Willoughby: "The claimant's approach is, to say the least, unreal. If that were the worst that could be said against it, it might stand in the uncomfortable company of [Baker]" [75-6].
Baker v Willoughby (1970)
In this heavily-criticised case, Lord Pearson held that damages should not be reduced just because C's situation has worsened due to a subsequent event (C was shot in the injured leg (due to D's negligence) and had to have it amputated); it should thus be 'ignored'. He believed that if successful, D's argument would produce "manifest injustice" (p. 495).
Jobling v Associated Dairies (1982)
Mr Jobling, a butcher, slipped on the floor at his place of work due to his employer's negligence. He injured his back which caused him to reduce his earning capacity to 50% of what it was. He then developed an independent back condition which was unrelated to the injury which left him unable to work. The trial judge applied Baker v Willoughby and held that the claimant was entitled to recover damages beyond the onset to the back condition. The employer appealed.
The House of Lords distinguished Baker v Willoughby and stated that where the victim is overtaken before trial by a wholly unconnected and disabling illness (i.e., a 'naturally occurring' condition), then the decision had no application. The House of Lords was critical of the decision in Baker v Willoughby but stopped short of overruling it - see below:
"My lords, it is a truism that cases of cumulative causation of damage can present problems of great complexity. I can formulate no convincing juristic or logical principles supportive of the decision of this House in Baker v Willoughby, and none were there propounded" (Lord Edmund-Davies at p. 808-9)
However, Lord Keith took a different view: "In proceedings against the first tortfeasor alone, the occurrence of the second tort cannot be successfully relied on by the defendant as reducing the damages which he must pay. That, in substance, was the decision in Baker v Willoughby, where the supervening event was a tortious act, and to that extent the decision was, in my view, correct" (at p. 815). Thus, the distinction in this case was that the supervening event was not a tortious act.
Empress Car Co. v National Rivers Authority (1999)
This case provides explains how a 'new intervening act' can affect legal causation within negligence. Lord Hoffmann writes that there is a difference between acts/events that, whilst not necessarily foreseeable, are normal facts of life - versus certain events which are "abnormal and extraordinary" (implying that the latter presents a novus actus interveniens) (p. 34).
Carslogie Steamship Co. v Royal Norweigan Government (1952)
This case provides an example of how natural events can substantiate an 'intervening act' that breaks the line of causation.
The owners of the Carslogie were held liable only for the loss suffered by the Heimgar which was a direct result of the collision with the Carslogie. The House of Lords held that the storm was a novus actus interveniens that broke the chain of causation. The defendant was not liable for any subsequent loss that arose from the storm encounter. As Lord Normand states: "...if the fact is that one of two casualties made the vessel unseaworthy and the other did not, the problem of liability is solved and the time sequence is irrelevant" (p. 311)
Rubenstein v HSBC (2012)
This case discussed whether the term 'natural event' could be expanded to the 2007/08 financial crash, seeing as it was completely unforeseeable. At First Instance, the Court held that this indeed did break the chain of causation flowing from the negligent financial advice provided by D. However, this argument was rejected by the CoA; since we are concerned with legal responsibility, it is important to realise that C did not want any exposure to market forces in the first place (he did not want any risk on his capital). As such, the fact that the losses he suffered were greater in extent than normal does not mean that the financial crisis 'broke' the chain of causation. The very point of the duty owed was not to expose C to any risk in the first place (Rix J at ).
Lamb v Camden LBC (1981)
This case illustrates how the intervention of a third party could constitute an intervening act that breaks the line of causation in negligence.
C rented a house to a tenant. The Council was carrying out works in a nearby site. Contractors negligently caused water main to burst, which undermined the foundations of C's house. The tenant was therefore forced to move out. C made arrangements for this to be sorted out but then moved back to New York - leaving the house empty. As squatters came in, and whilst initially evicted, more kept on coming and eventually caused extensive damage to the property.
The Council admits liability in nuisance (regarding the water mains), but the key issue surrounded whether its liability should extend further to the actions of third parties (i.e. the squatters).
Lord Denning writes that the elements of duty, remoteness, and causation all serve as 'controlling mechanisms' for a claim in negligence. However, this was ultimately a policy question for the Courts to decide (p. 636-7). Lord Oliver writes how what is 'reasonably foreseeable' is sometimes a difficult question to answer, as all humans sometimes behave in an irrational manner, and that in itself is a prima facie foreseeable possibility. However, the question of foreseeability is not merely what is a possibility, but "what would the reasonable man actually foresee if he thought about it" (p. 642). The claim eventually failed as it was not up to the Council to protect C from the acts of third parties.
Knightley v Johns (1982)
This case highlights how it is easier to break the chain of causation if the contested action was, in itself, negligent.
D overturned car due to negligent driving at a tunnel. C is a police officer on a
motorbike and responds to the scene. Inspector in charge of the scene initially
forgot about closing off the tunnel, and negligently ordered C to drive through; this caused injury.
C sues police and D who caused the original accident. The 'but for' test passes. D argues that what the police inspector did broke the chain of causation. Stephenson LJ writes that "negligent conduct is more likely to break the chain of causation than conduct which is not; positive acts will more easily constitute new causes than inaction...the inspector's negligence was not a concurrent cause running with the first defendant's negligence, but a new cause disturbing the sequence of events leading from the first defendant's overturning of his car to the plaintiff's accident and interrupting the effect of it" (p. 366-7). The inspector's negligence thus constituted a novus actus interveniens.
McKew v Holland (1969)
In the course of his employment, the complainant had suffered injuries, which meant his left leg could give way underneath him. A few days after the incident and while in his recovery, the complainant tried to come down a set of steep steps, which did not have a handrail. His injured leg gave way beneath him and he attempted to jump the remaining 10 steps. However, he fell down the stairs and suffered injury. He severely fractured his ankle and was left with a disability.
The Courts held that:
a) It was not negligent to jump, given the situation;
b) But it was negligent in the first place to go down stairs that had no handrail.
Lord Reid states that given the situation, C should have acted "reasonably and carefully...[If] the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee" (p. 1623).
Wieland v Cyril Lord Carpets (1969)
C was injured on a bus as a result of a collision. He was fitted with a neck collar which resulted in a limited field of vision. C subsequently went down a flight of stairs, accompanied by his adult son. He tripped and fell, causing further injury. It was held that this was not a break in the chain of causation; what D did limited the ability of C to cope with going down stairs - even whilst holding the arm of his adult son. We, therefore, have to always access the character of C's act. Eveleigh J states, at p. 1010-11: "It can be said that it is foreseeable that one injury may affect a person's ability to cope with the vicissitudes of life and thereby a cause of another injury and [as such, whether] foreseeability is required...foreseeability of this general nature will, in my view, suffice."
Reeves v Commissioner of Police of the Metropolis (2000)
C was a known suicide risk. It was accepted that the police owed him a particular duty to protect C from himself (but were negligent in doing so). However, the police argued that suicide is an international act that breaks the chain of causation. This was rejected, as the whole point of the police's duty of care, in this case, was to take reasonable steps to prevent C from killing himself. Despite it being an unusual duty, once such a duty is established you cannot escape from its responsibilities (Lord Jauncey at p. 374). For an intervening act to break the chain, it must be from outside "the contemplated scope of events to which the duty of care was directed" (p. 374).
Corr v IBC Vehicles (2008)
C suffered from clinical depression due to a negligent accident and eventually committed suicide. The estate sues the employer for the accident that led to the depression. D argued that they shouldn't be liable for his death, but this was rejected. The very reason C committed suicide was because of the depression caused by the accident. Thus the chain of causation following from the accident was not broken by the suicidal act (Lord Scott at ).
Spencer v Wincanton Holdings (2009)
The claimant suffered injury for which he sought compensation from his employers. He later had to have his leg amputated as a consequence, but then through his own inadvertence suffered further injury to his other leg and a complete loss of mobility. He said that he would not have suffered a further injury but for the original one. Sedley LJ introduces the 'fairness' argument, where you examine whether the further injury was caused by C himself, or due to some previous negligent action. This perhaps goes a bit further than 'reasonableness', but acknowledges that "a succession of consequences which in fact and in logic is infinite will be halted by the law when it becomes unfair to let it continue. In relation to tortious liability or personal injury, this point is reached when (though not only when) the claimant suffers further injury which, while it would not have happened without the initial injury, has been in substance brought about by the claimant and not the tortfeasor" .
The Court eventually ruled for C: like the amputation, the fall was an unexpected but real consequence of the original accident, albeit one to which Mr Spencer’s own misjudgement contributed.
Clay v TUI UK (2018)
C was enjoying a drink on the balcony, which was accessible via a lockable sliding door when it unexpectedly locked upon closing. For 30 minutes he tried to attract attention without success (although admittedly not shouting too loudly as it was late at night), so he attempted to step across onto the balcony of the adjacent room, which his family also occupied. He stepped onto a ledge underneath the balcony and it gave way causing him to fall and fracture his skull.
C tried to argue that it was the hotel's negligence which caused the injury, but this failed. The judge balanced the degree of inconvenience vs. the risk of injury and ruled that C 'broke' the chain via his careless act (Kitchin LJ at ).
Overseas Tankship v Morts Dock and Engineering Co. (The Wagon Mound No. 1) (UKPC)
This case establishes a reasonable foreseeability test regarding the remoteness of causation (i.e. liability to the extent of damages suffered):
"For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them" (Viscount Simonds, at p. 423).
Therefore, the essential question is: 'Was the damage of such a kind that the reasonable man should have foreseen it?' This rejected the 'directness' theory associated with Re Polemis, which regarded unforeseeability as irrelevant if the damage was direct (p. 426).
Hughes v Lord Advocate (1963)
'Was the damage *of such as kind* that the reasonable man should have foreseen it?'
In this case, ann eight-year-old wandered into a tent and caused a lamp to fall into a hole - leading to an explosion which made the boy fall into the hole (causing injury). This was a very unlikely thing to happen.
What, therefore, has to be foreseen? Lord Reid writes that D is liable even if the harm caused is greater than expected, and D is only absolved of duty if damage can be regarded as "differing in kind from what was foreseeable..." (p. 845). In this particular case, he believes that the "accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and, in my judgement, that affords no defence" (p. 847). What seems to be important, then, is that the source of danger was previously known.
Jolley v Sutton LBC (2000)
In this case, two boys attempted to fix a stranded boat and got injured in the process. It was foreseeable that children would play in the boat, but not that the would try to repair it. However, this argument by the Council was rejected.
One must focus on the circumstances of each case; here, D should have been prepared for the 'ingenuity' of children. Lord Steyn approves of Lord Reid's approach in Hughes:
"The speech...is in harmony with the other judgements. It is not in conflict with The Wagon Mound No. 1. The scope of the two modifiers - the precise manner in which the injury came about and its extent - is not definitively answered by either The Wagon Mound No. 1 or Hughes v Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case" (p. 1090).
Smith v Leech Brain (1962)
This case concerns the thin-skull rule and how it affects the remoteness of damage.
The complainant was employed as a galvaniser of steel for the defendants, Leech Brain & Co Ltd. He had been working and operating a machine in the workplace when a piece of molten metal burnt his lip after he stepped out from behind the protective shield. Although the burn was treated, he developed cancer and died three years later. The complainant had a pre-cancerous condition before the burn had taken place. When he died, his widow brought a claim against Leech Brain & Co Ltd under the Fatal Accidents Act.
It was argued by D that it was not reasonably foreseeable that a thin-skull scenario was apparent. However, it is ruled that The Wagon Mound No. 1 implied the continued existence of this rule (Lord Parker CJ at p. 414). As long as it is foreseeable that 'some' actual injury could be caused, it does not matter to what extent.
SAAMCO v York Montague Ltd. (1996)
This case concerns policy limitations and how it affects legal causation. Here, surveyors negligently valued properties. The Cs were finance organisations who lent money based on these valuations. When the borrowers defaulted, the properties sold for less than the valuation. However, there was a separate, unconnected fall in the property market. Lord Hoffmann writes that rules which make the wrongdoer liable for every consequence of his wrongful conduct must be justified by special policy since normally you are only liable to those consequences attributed to the wrongful act (i.e. in this case the consequences of the information given being inaccurate) (p. 213). He goes on to say:
"A duty of care which imposes upon the informant responsibility for losses which would have occurred even if the information which he gave had been correct is not in my view fair and reasonable as between the parties. It is therefore inappropriate either as an implied term of a contract or as a tortious duty arising from the relationship between them" (p. 214). Thus, D was not liable for all the losses suffered by C.
BPE Solicitors v Hughes-Holland (2017)
This case reaffirms the approach taken in SAAMCO; one cannot blame D for all losses - only losses that are attributable to the negligent information provided. Lord Sumption writes that D would thus only be liable "for the financial consequences of [the material provided] being wrong and not for the financial consequences of the claimant entering into the transaction so far as these are greater" - even if D knew that the information being provided was crucial to C entering into the transaction in the first place .
Applied to the facts, C's money was actually used to purchase property but this development failed and he lost most of his investment. By virtue of BPE Solicitor’s negligence, C thought his money was being used to develop the property, rather than purchase it. However, he still would have lost all of his money because the project was discovered to be unviable (he would never have received any of his investment back). Because there was no difference in value of what C received and what he *expected* to receive, C could not recover any losses from the defendant.
In sum, a claimant must show that the defendant caused them a loss which was within the scope of their duty.
Calvert v William Hill (2009)
C lost £2.1m to William Hill after the bookmaker had failed to implement their own 'self-exclusion' policy. His claim fails not because his action of gambling constituted an intervening act (after specifically asking to be excluded), but because it was not within the scope of D's duty to prevent C from gambling at all; it is likely he would have simply gone and gambled elsewhere. As such, the quantification of his loss "cannot ignore other gambling losses which the claimant would probably have sustained but for their breach of duty" (Sir Anthony May P at ).