The concept of causation is one of which tries to explain a chain of events that occurred due to an action which later led to an injury or a casualty i.e. “causal relationship between conduct and result”. For example, person A drops a banana peel on the ground person B unknowingly trips on this peel and is injured, person A’s action is the event that led to the injury.1 “The reasonable man” is an idea that is preludes most concepts In The law of Torts, liability in most cases is accrued as a result of an individual acting in a way not becoming of the reasonable man which causing injury to another person, such a person should be held responsible for his actions.2
In some cases, mens rea may apply, a person intention e.g. someone collapses the middle of the road, seeing this Mr A abruptly stops his car causing a series of injuries. Mr A’s actions / conduct caused the result which was the injuries this is a source of contention on the matter of the reasonable man …” what would the reasonable man do”.3
Many tools have been invented over the years to make it easier to determine cause, these have been introduced by judges to provide certainty and consistency on the law of causation. Some of these concepts include the ‘but-for’ test in which the claimant has to prove the injury suffered or affliction is directly related to the action of the defendant.4 the novus actus invterveniens rule, literally translates to new act intervening; It counts as a new factor that needs to be considered or breaks the chain of causation, remoteness of damage which involves establishing the foreseeability of the damage that occurred to the defendant at the time of the negligence , the ‘egg-shell skull’ rule states that a defendant must take his victim as he found him, the frailty of the injured victim is not a defence.
When talking about causation we can acknowledge such things as the butterfly effect and acknowledge one event could have multiple infinite causes, that all events started when Adam eating the apple in the garden of Eden; The law has to be considered practically, thus the courts cannot afford to think about so intricately or philosophically, we must take a more pragmatic approach. The rule used to clarify relevant causes is the “but for test” states that if not for a certain action a certain result wouldn’t have been derived e.g. But for the act or omission “x”, the result “y” would not have happened. but for X spilling water on the floor Y would not have fallen and broken his back. Barnett v Chelsea & Kensington Hospital 19695 1 QB 428, Mr Barnett was vomiting, and he had some pains in his stomach. The doctor on duty was notified that he was there. the doctor refused to see him, and he was told to go home .5 hours later he was pronounced deceased.
Even if the doctor had attended to him he would have still died because it would have been too late .So it was held that the hospital was not liable as he would have still died .This was the case that introduced the but for rule as it tested if the doctor’s omission or non-action would have saved the man’s life in that scenario i.e. would the result have occurred but for the act or omission of the defendant? In this case yes so, the defendant was not liable as even if he did the man would have died. That was a case where the plaintiff claimed that the injury was caused by the defendant’s failure to act.
Kenny v O’Rourke the plaintiff,6 who was a painter employed by sub-contractors, fell off a ladder and was injured in the process of painting. the ladder was faulty even with that fact, the his employees were held not liable on this account as the plaintiff testified the reason for him falling was because he lent to far . His fall was not caused directly by the ladder. The ladder in this case was proven to be faulty giving a worker that type of ladder in its self is a negligent act, the claimant must prove, on the balance of probabilities, that the defendant’s breach of duty caused the harm which can be very hard to prove in certain cases as the defendants action may not be the main cause but could have contributed to the result i.e. in the O’Rourke case there is a high possibility he lent over so far because the ladder was faulty.
when there are multiple causes it must still be proven that there is a link between the result and the action or the omission of the defendant; “the material contribution test”. Where the claimant’s case is based on proving a material contribution to the damage, the defendant is responsible only for that part of the damage to which his negligence has caused.7 Performance Cars Ltd v Abraham 1962 1 QB 33 Court of Appeal8. The defendant hit the plaintiff’s car, as a result of his admitted breach of duty. Two weeks before the incident the car had been in a previous incident in which another negligent driver had hit the car.The car already neede a new paintjob because of the earlier altercation. The claimant claimed £75 for the re-spray for the prior incident and obtained judgment by default. However, the claimant has never received the sum. The claimant sought to claim the £75 from the appellant. It was conceded that the claimant could not recover the same loss twice. The question for the court was which defendant should pay or whether they should be jointly liable. Held: The first defendant was responsible for the whole amount. The appellant was therefore absolved from all liability to pay.
The but for test is really only helpful when the event or injury only has one cause, with multiple causes or successive causes it must be modified as a result of the fact that the cause does not stem from one source e.g. two fires converge simultaneously on the plaintiff’s property destroying the plaintiffs’ property the but for test in this would mean no one would be responsible for the fire as it does not source from a single cause. In cases where a breach of duty consists of an omission to act also economic loss.9
The chain of causation between the results of the defendant’s actions and the result could be broken by a third party or an unexpected event. If this sudden unexpected act is seen to be a Novus actus interveniens, then that act will be the new cause of the plaintiff’s injury and the previous cause will be forgotten or absolved. The intervening act may be committed by a third party, the plaintiff himself, or by an intervening act of nature. In McKew v. Holland and others 1969 3 All ER 162 the House of Lords held that the plaintiff should have not gone down the steep flight of stairs unaided, this was unreasonable and broke the chain of causation. Lord Reid said, “if the injured man acts unreasonably, he cannot hold the defendant liable for injury caused by his own unreasonable conduct.”10 A rather harsh application of the novus actus interveniens principle occurred in the case of Felloni v. Dublin Corporation 1998 1 ILRM 13311 (HC) where Morris J. considered the failure of the occupier (the plaintiff’s aunt) to inform the defendant landlord of the defect to be a novus actus interveniens.
Connolly v South of Ireland Asphalt Co. Ltd 1977 I.R 99(SC)12 The high court held that the novus actus was constituted by the fact that the driver had been grossly been grossly negligent in failing to observe the cyclist and to brake in time, and therefore the driver had constituted a novus actus. However, the Supreme Court unanimously disagreed. The gross negligence of the driver did not in this case render him a novus actus for an accident that was clearly foreseeable from its perspective. Although it could not necessarily be said that the sequence of events leading to the plaintiff’s injuries was reasonably foreseeable, the type of injury that occurred had been a foreseeable consequence of the third party’s neglect. (Company causing the pot holes in the road by driving on it with Lorries.)
If the intervening act is foreseeable then it will not be considered a new cause of the damage, thereby absolving the original wrongdoer e.g. if one were to throw a person’s dog into a river, it is foreseeable that the owner will jump in after him. The defendant will be liable for the damage caused to the plaintiff. It was foreseeable that the owner would act in such a manner and therefore it was a predictable outcome for which the defendant should be made liable. In Breslin v. Corcoran & MIBI (27th March 2003, Supreme Court)13 Fennelly J. Stated; “A person is not normally liable, if he has committed an act of carelessness, where the damage has been directly caused by the intervening independent act of another person, for whom he is not otherwise vicariously responsible. Such liability may exist, where the damage caused by that other person was the very kind of thing which he was bound to expect and guard against and the resulting damage was likely to happen, if he did not.
Novus actus intervenines is an example of a legal principle. In deciding legal causation, the courts use legal principles to attribute responsibility where it ought to lie, this needs to be questioned where does responsibility lie, does the intervening act diminish the responsibility, as mentioned earlier every man is responsible for his actions, from an early age we are taught consequences flow from physical acts and omissions. if a person inflicts damage on another person should they still not be held for the damage they inflicted on that person even though there was an unforeseen intervening act (Novus actus interviniens); “the common law only succeeds in replicating its confusion”.
To establish the cause, we have to take the remoteness of damage into consideration (which involves establishing whether the damage that occurred was foreseeable to the defendant at the time of the negligence).14one must be able to reasonably foresee the act, not its extent. It must also be taken into consideration if any intervening acts (if anything of significance happens prior to the defendant’s breach) it breaks the chain of causation .in this case the, the defendant will not be liable.
The principles of remoteness of damage is laid down by the two landmark decisions of the twentieth century: Re Polemis and The Wagon Mound. Both of which have been the vocal point of much discussion, through literature and academic writings; the subsequent divergence and/or diffusion of the two tests of foreseeability namely ‘reasonable foreseeability’ and that of ‘direct consequences’ presents a mountain’s worth of material from which space permits, what is comparatively, a ‘molehill’ of a chapter.15
Re Polemis & Furness Withy & Company Ltd. 1921 3 KB 56016. Some Stevedores carelessly dropped a plank of wood into the hold of a ship. The plank struck something as it was falling which caused a spark. The spark was ignited by petrol vapours resulting in the destruction of the ship. The arbitrator held that the causing of the spark could not have been anticipated and therefore no liability arose. The claimant appealed. The court held, here was no requirement that the damage was foreseeable. The defendant was liable for all the direct consequences of their action, this overruled in the wagon mound case.
The Wagon Mound no 1 1961 AC 388 17House of Lords, the defendant’s vessel, the Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf the courts held: Re Polemis should no longer be regarded as good law. A test of remoteness of damage was substituted for the direct consequence test. The test is whether the damage is of a kind that was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.
Egg shell skull rule is the Doctrine that makes the defendant liable for the magnified results of the his or her actions / the defendant’s negligent or intentional tort. If something happens due to defendant’s actions against the plaintiff without a complete defence, the defendant becomes liable for any injury that is magnified by the plaintiff’s peculiar characteristics.i.e. a defendant must take his victim as he found him, the frailty of the injured victim is not a defence. Smith v Leech Brain 1962 2 QB 405 18.A widow brought a claim against the defendant under the Fatal Accidents Act for the death of her husband. The defendant employed the husband. As a result of their negligence he incurred a burn to his lip. The lip contained pre-cancerous cells which were triggered by the injury sustained. He died three years later from cancer.
The burn was a foreseeable consequence of the defendant’s negligence and this resulted in the death. The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies, and the defendant must take his victim as he finds him.
5 Barnett v Chelsea & Kensington Hospital 1969
8 Cars Ltd v Abraham 1962 1 QB 33 Court of Appeal
11 Felloni v. Dublin Corporation 1998 1 ILRM 133
12 Connolly v South of Ireland Asphalt Co. Ltd 1977 I.R 99(SC)
16 Re Polemis & Furness Withy & Company Ltd. 1921 3 KB 560
17 The Wagon Mound no 1 1961 AC 388