Negligence - Causation and Remoteness of Damage - Topic Outline

Structure for Tort: Negligence – Causation in fact and law answering
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Negligence – Causation in fact and Causation in law
THE BASICS
1. Make sure you have identified how the defendant has breached his duty of care (this becomes relevant
to establishing whether that breach is the factual and legal cause of the claimant’s harm)
2. Identify what harm the claimant alleges to have sustained as a result of the defendant’s breach of duty
FACTUAL CAUSATION
3. The ‘But for’ test:

a. The usual test is the ‘but for’ test
b. ‘But for’ the defendant’s breach of duty would the claimant have suffered the harm which he
complains about?
c. Better answers link to the specific breach of duty and the specific harm sustained
d. It is rarely necessary to depart from the ‘but for’ test
e. Avoid irrelevant discussions of alternatives to the ‘but for’ test (unless necessary)
f. The ‘but for’ test is usually met easily
4. There are some circumstances where the courts have developed principles allowing for departure from
the ‘but for’ test
a. There is a ‘scientific or evidentiary gap’ which means that the claimant is unable to satisfy the
usual ‘but for’ test and it is fair to apply a different test:
i. Material contribution to damage:
o the defendant’s breach of duty has materially contributed to the damage sustained by
the claimant (i.e. based on severity)
o the damage is more than minimal (‘de minimis’)
o the claimant cannot prove that the claimant would not have sustained the harm had
the defendant not breached the duty
o if this test is met, the defendant is liable to the extent that their contribution can be
attributed to the claimant’s damage (subject to any contributory negligence by the
claimant). Sometimes the contribution cannot be measured and the claimant
recovers damages in full.
ii. Material increase in the risk of harm:
o the defendant’s breach of duty has materially increased the risk of the claimant
sustaining by the claimant (i.e. based on likelihood of harm)
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o the Tort: Negligence – Causation in fact and law increase in
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risk is more than
minimal (‘de minimis’)
o if this test is met, the defendant is liable in full (subject to any contributory
negligence by the claimant)
iii. Multiple causes: ‘the Fairchild’ approach (‘indivisible injuries’ only)
o the claimant’s harm could have been caused by a breach of duty by one or more of
several defendants
o certain types of physical conditions only (typically mesothelioma)
o ‘interests of justice’ justify departure from the ‘but for’ test
o if this test is met, the defendant is liable in full (subject to any contributory
negligence by the claimant)
iv. Apportionment (‘divisible injuries’ only)
o the claimant’s harm could have been caused by a breach of duty by one or more of
several defendants
o the severity of the claimant’s harm depends on the contributions made by different
causes
o the contributions made by different causes can be measured
o if this test is met, a defendant is liable to the extent that their contribution can be
attributed to the claimant’s damage (subject to any contributory negligence by the
claimant)

b. Contributory Tort: Negligence – Causation in fact and law negligence
i. Harm Structure for answering a problem question contributed
to by the defendant’s breach of duty and the claimant’s failure to take reasonable care for
himself.
ii. Law Reform (Contributory Negligence) Act 1945
iii. Court has discretion to reduce damages. See ‘Defences’
LEGAL CAUSATION / ‘REMOTENESS’
5. There are several inter-related principles:

a. Type or kind of harm: the defendant is not liable for a consequence of a type or kind which is
not reasonably foreseeable
i. Judged at the time of the defendant’s breach
ii. A broad approach to ‘type’ is usually taken – test is easier to meet
iii. Some cases have adopted a narrow approach – test is harder to meet
b. If the type or kind of harm which the claimant eventually sustains is reasonably foreseeable at
the time of the defendant’s breach, then:
i. The defendant must take the actual claimant as he finds him (the ‘thin skull’ or ‘eggshell
skull’ rule applies) - the defendant remains liable even if the extent of the claimant’s actual
harm is greater than that which was reasonably foreseeable – because of the claimant’s
pre-existing vulnerability;
ii. The extent of the harm is irrelevant - the defendant remains liable even if the extent of the
claimant’s actual harm is greater than that reasonably foreseeable – because of something
other than the claimant’s pre-existing vulnerability;
iii. The way in which the harm is caused is irrelevant - the defendant remains liable even if the
damage was caused in a way not reasonably foreseeable;
For each of the above, Identify the test, Define it (with authority), Explain how it applies (e.g. how that
factor operates on the topic of legal causation), and Apply to the facts (identifying any
differences/similarities with authorities)

INTERVENING ACTS Tort: Negligence – Causation in fact and law
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6. Intervening acts: the defendant is not liable for damage caused by an intervening act or highly
unreasonable conduct by a claimant
a. Intervening act by a third party (i.e. other than the defendant or claimant), such as medical
treatment, intentional wrongs, negligence
b. Highly unreasonable conduct by the claimant (e.g. taking unreasonable risks, rescuers (unlikely))
i. relationship with contributory negligence as an alternative
ii. relationship with failure to mitigate as an alternative
c. An act of nature
7. An intervening act:
a. must be beyond the scope of the duty owed by the defendant to the claimant
b. will break the chain of causation between the defendant’s breach of duty and the harm to the
claimant that results from that breach of duty
c. is an ‘all or nothing’ approach in relation to that harm – there is no apportionment
MULTIPLE ‘SUFFICIENT’ SUCCESSIVE CAUSES
8. Where a defendant breaches a duty to the claimant, and causes some harm to the claimant, but then a
later event also causes similar harm to the claimant, should the original defendant remain liable?
9. Before the later event
a. The test for factual causation is met against the original defendant
b. The original defendant will remain liable for harm caused up until the later event
10. After the later event – has the later event ‘obliterated’ the original defendant’s liability?
a. Later torts which would have caused the same eventual harm - the defendant
i. possibly remains liable to the claimant
ii. may be able to claim a contribution from a later defendant
b. Later events other than torts (e.g. natural causes) which would have caused the same eventual
harm - the defendant is no longer liable after the later event
NOW MOVE ON TO CONSIDER DEFENCES

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Structure for Tort: Negligence – Causation in fact and law answering

a problem question on Structure for answering a problem question

Negligence – Causation in fact and Causation in law

3. The ‘But for’ test:

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5. There are several inter-related principles:

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NOW MOVE ON TO CONSIDER DEFENCES

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