Tort: Causation

Causation

The Two Kinds of Causation

To establish negligence, the claimant must show that the defendant caused the loss they are seeking to recover. There are two types of causation which must be proven: factual causation and legal causation.


Factual Causation

Establishing Factual Causation

Factual causation is established if ‘but for’ the breach the claimant would not have suffered the loss: Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428.

Loss of a Chance

Factual causation must be established on the balance of probabilities. If the claimant cannot establish that it is more likely than not that they would have avoided the loss but for the breach, the claim with normally fail: Wilsher v Essex [1988] 1 AC 1074.

It is not normally possible to argue that the claimant should be able to recover for the loss of a chance if they cannot establish ‘but for’ causation: Gregg v Scott [2005] 2 WLR 268.

However, it might be possible to recover for the loss of a chance where the breach causes the claimant to lose the chance to negotiate their way out of economic loss: Allied Maples v Simmons & Simmons [1995] 4 All ER 907.

Multiple Concurrent Causes

If a claimant is injured by one defendant (‘A’) and is later injured in the same way by another defendant (‘B’), A is only deemed to have caused the injury up until the date of the second injury: Baker v Willoughby [1970] AC 467.

However, it seems that if a defendant injures the claimant and the claimant would have subsequently developed that injury in any event due to natural causes, the defendant remains liable past the date of the natural cause: Jobling v Associated Dairies [1982] AC 794. 

Unknown Factual Causes

Causation rules apply differently in industrial disease cases where the claimant cannot show whether their injury was caused by negligent exposure or non-tortious exposure to a harmful substance. Instead, the claimant only needs to show that the employer ‘materially contributed’ to his injury by increasing the risk: McGhee v National Coal Board [1973] 1 WLR 1.

Where the claimant has been negligently exposed to a dangerous substance by multiple employers, each is fully liable if they materially contributed to the risk:  Fairchild v Glenhaven [2002] 3 WLR 89.

Outside of industrial disease cases, these principles do not seem to apply and normal ‘but for’ causation must be established on the balance of probabilities: Wilsher v Essex [1988] 1 AC 1074.


Legal Causation

Establishing Legal Causation

Legal causation is established if there are no subsequent acts which break the chain of causation. A break in causation is known as novus actus interveniens. What breaks causation depends on whether the subsequent act is an act of nature, a third-party or the claimant.

Act of Nature
Nature, lightning, sky, storm

A subsequent act of nature will break the chain of causation if it is unforeseeable: Nichols v Marsland (1876) 2 ExD 1.


Third-Party Act
Criminal, tort, illegal

The act of a third-party will break the chain of causation if it is unforeseeableHome Office v Dorset Yacht [1970] AC 1004. 

Act of the Claimant
Danger, risk, rock climbing

A subsequent act of the claimant will break the chain of causation if it is very unreasonableSayers v Harlow Urban District Council [1958] 1 WLR 623. 

‘Unforeseeable’ means improbable or beyond the types of risk which the defendant’s duty was supposed to guard against: Lamb v Camden LBC [1981] 2 All ER 408.

A subsequent act or event will not break causation if it is the kind of thing the defendant’s duty was designed to protect against. For example:

Suicide, self-harm, mental illness, distress

If the defendant has a duty to stop the claimant hurting themselves, then suicide or self-harm will not break causation: Reeves v Commissioner of Police of the Metropolis  [2000] 1 AC 360.

Teacher, children, control

If the defendant had a duty to control a dangerous third party or object, then that third party’s or object’s actions will not break causation: Home Office v Dorset Yacht Co Ltd [1970] AC 1004.


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Causation and Remoteness of Damage Quiz

Test yourself on the principles of causation and remoteness of damage.

1 / 15

If the defendant's negligence injures the claimant, but the claimant would have suffered the same injury later on, can the claimant establish factual causation after the date of the second, inevitable injury?

2 / 15

If the claimant suffers a greater degree of loss than normal because of a special condition, for what losses can they recover?

3 / 15

When will an act of the claimant break the chain of legal causation?

4 / 15

When will an act of a third party break the chain of legal causation?

5 / 15

If the claimant's chances of negotiating their way out of an economic loss have been reduced from 48% to 21% by the defendant's negligence, can they establish factual causation?

 

6 / 15

If an act of the claimant, nature or a third party was the kind of thing the defendant's duty was supposed to guard against, can it break the chain of legal causation?

7 / 15

What type of harm must a secondary victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote?

8 / 15

In industrial disease cases, what must the claimant show to establish factual causation?

9 / 15

When is the manner in which the harm was caused relevant to remoteness of damage?

10 / 15

When will an act of nature break the chain of legal causation?

11 / 15

What must the claimant show to establish that negligently inflicted harm is sufficiently non-remote?

12 / 15

What does unforeseeable mean for the purposes of legal causation in negligence?

13 / 15

How does a claimant establish factual causation in tort?

14 / 15

What type of harm must a primary or consequential victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote?

15 / 15

If the claimants chances of avoiding an injury have been reduced from 48% to 21% by the defendant's negligence, will they be able to establish factual causation?

 

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