CAUSATION AND REMOTENESS

OF DAMAGES
Definitions
Causation in Fact – single cause, multiple causes
& consecutive /successive causes
Intervening Acts – novus actus interveniens
Causation in Law/ Remoteness of Damages DEFINITIONS

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DEFINITIONS
• A chain of causation
Causation between the breach
and the damage
in Fact

Single Cause
• Remoteness of
Causation damage – concerned
with the legal
CAUSATION IN FACT
in Law consequences of the
defendant’s act

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CAUSATION IN FACT CAUSATION IN FACT

Single Cause Single Cause
• The most widely used concept to establish the • In Barnett v Chelsea & Kensington Hospital
cause of the damage is the ‘but-for test’. Management Committee [1968] 1 All ER 1068,
the plaintiff’s husband arrived at the casualty
What is the ‘but-for test’?
department and complained of vomiting after
drinking tea. When the nurse called the
The damage to the plaintiff casualty doctor, he refused to examine the
would not have taken place patient asking him to go home and to call his
but for the defendant’s own doctors. The patient left and a few hours
breach of duty later he died from what was found to be
arsenic poisoning.
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 CAUSATION IN FACT CAUSATION IN FACT
Single Cause – Barnett’s case Single Cause
• Although the judge found that the hospital • In Ang Chai Ha & Ors v Sri Jaya Transport Co
was negligent in refusing to admit and treat (PTM) Bhd [1974] 1 MLJ 87, the defendant’s
the patient, the claim failed on the evidence bus collided with the plaintiff’s car which
that even if he had been admitted and treated caught fire. The plaintiff died due to extensive
with all due care, he would have died. burns. The defendant admitted negligent
driving but contended that the death was
neither caused by nor the direct consequence
of the collision.

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CAUSATION IN FACT CAUSATION IN FACT

Single Cause Single Cause – Jumat’s case
• In Government of Malaysia & Ors v Jumat bin • Raja Azlan Shah J. held that:
Mahmud & Anor [1977] 2 MLJ 103, the plaintiff – “…there is no factual basis of the causal
injured his right eye when another pupil pricked
connection between the step the trial judge was
his thigh with a pin causing him to turn round and
entitled to think the teacher ought, in the
the eye came into contact with the sharp end of
performance of her duty of care, to have taken
the pencil which the pupil was holding.
Subsequently, the eye had to be removed. and the injury of which the plaintiff sustained…”
• The plaintiff brought an action claiming that there
was lack of supervision by the teacher that
resulted in the accident which caused the injury.

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CAUSATION IN FACT
Single Cause
• The previous case of Jumat must be
distinguished from the case of Mohamed
Raihan & Anor v Government of Malaysia &
Ors [1981] 2 MLJ 27.
Multiple Causes

CAUSATION IN FACT

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 CAUSATION IN FACT CAUSATION IN FACT
Multiple Causes Multiple Causes
• If the ‘but-for test’ is applied to a case where the • McGhee v National Goal Board [1972] 3 All ER 1008
plaintiff’s injury is caused by a number of factors, • In this case, the plaintiff worked in a brick kiln under
hot and dusty condition in which brick dust adhered to
the defendant could escape liability by arguing
his sweaty skin. There was no washing facilities and
that the damage is not caused by his negligence. after work, he cycled home everyday with his body still
• Since there is another set of circumstances in caked in brick dust. It was accepted that brick dust
existed at that time which would cause the could cause dermatitis.
damage independently, the argument could be • The House of Lords held that the defendant was liable
for increasing the risk of dermatitis and this type of
accepted and the plaintiff might be left without a damage had in fact occurred.
redress.

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CAUSATION IN FACT
Multiple Causes
• The principle was distinguished in the case of
Wilsher v Essex Area Health Authority [1988] 1
All ER 871
• The trial judge and a majority of the Court of
Appeal held that the defendant was liable but
Consecutive/Successive Causes
when the case went to the House of Lords, the
judge allowed the defendant’s appeal on the CAUSATION IN FACT
issue of causation.

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CAUSATION IN FACT CAUSATION IN FACT

Consecutive/Successive Causes Consecutive/Successive Causes
• In Performance Cars v Abraham [1962] 1 QB The House of Lords refused to apply the ‘but-for test’ in Baker v
33, the Court of Appeal held that the necessity Willoughby [1970] AC 467 in which the plaintiff’s left leg was
for respraying was not the result of the second negligently injured by the defendant in a car accident which
occurred in 1964. Lord Pearson said that: the supervening event
defendant’s negligent because that necessity has not made the plaintiff less lame nor less disabled nor less
already existed and the damage claimed did deprived of amenities. It has not shortened the period over which
not flow from his wrongdoing. His negligence he will be suffering. It has made him more lame, more disabled,
more deprived of amenities.
had not caused the need for a respray.

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 CAUSATION IN FACT CAUSATION IN FACT
Consecutive/Successive Causes Consecutive/Successive Causes
• The reasoning in Baker was severely criticised • Lord Wilberforce stated that:
by all the members of the House of Lords in – In the present case, the Court of Appeal reached
Jobling v Associated Diaries Ltd [1981] 2 All ER the unanswerable conclusion that to apply Baker v
752. Willoughby to the facts of the present case would
• It was held that the spinal disease could not produce an unjust result and I am willing to accept
be ignored in assessing compensation after the collorary that justice, so far as it can be
taking all relevant factors in consideration and perceived, lies the other way and that the
it was a relevant factor that the disease would supervening myelopathy should not be
have overtaken the plaintiff in any event. disregarded.

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INTERVENING ACTS
Novus Actus Interveniens
• Although the ‘but-for test’ of causation between
the defendant’s negligence and the plaintiff’s
damage is satisfied, the plaintiff will be denied
recovery if the defendant could prove a new
intervening act which breaks the chain of
causation.
• The chain of causation could be broken by 3
events:
INTERVENING ACTS – Intervening act of the plaintiff
– Intervening act of the third party
– Intervening natural event – act of God

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INTERVENING ACTS INTERVENING ACTS

Intervening Act of the Plaintiff Intervening Act of the Plaintiff
• If the defendant’s negligence and the • In McKew v Holland, Hannen & Cubitts
plaintiff’s act or omission both contribute to (Scotland) Ltd [1969] 3 All ER 1621, the House
the plaintiff’s injury, then the issue is one of of Lords held that the unreasonable act of the
contributory negligence and the damages plaintiff putting himself in a situation of
emergency as a result of which he sustained
awarded to a contributorily negligent victim of further injury amounted to a novus actus
a tort will be reduced in proportion to his interveniens.
blame. • This case can be compared with Wieland v
Cyril Lord Carpets Ltd [1969] 3 All ER 1006.

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 INTERVENING ACTS INTERVENING ACTS
Intervening Act of the 3rd Party Intervening Act of the 3rd Party
• It is a common law principle that an individual • To break the chain of causation, the intervening
ought not to be held responsible for the act of act of the third party must be voluntary and must
a third party. be independent of the breach of duty.
• Where the defendant’s negligence is followed • For example, the act of master in The Oropesa
by the act of a third party causing further [1943] 1 All ER 211, in launching a lifeboat after
damage to the plaintiff, the defendant will not his ship collided with another ship was held to be
be liable for this damage if he can prove that a reasonable act directly caused by the accident.
the intervening act of the third party was a • Compared to
novus actus interveniens. – Knightley v Johns [1982] 1 WLR 349
– Rouse v Squires [1973] 1 QB 889

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INTERVENING ACTS
Intervening Natural Event – Act of God
• A good example of a case in which damage
caused by a natural event amounting to a
novus actus interveniens is Carslogie
Steamship Co. Ltd. v Royal Norwegian
Government [1952] AC 292.
• The House of Lords held that the weather
damage was not connected with the collision
damage. It was a novus actus interveniens for
CAUSATION IN LAW
which the defendant could not be held liable.

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CAUSATION IN LAW
CAUSATION IN LAW
Tests on Remoteness
• Even if the plaintiff could prove that the
Direct Reasonable
defendant’s negligence caused the injury in Consequence Foreseeability
question, damages may still be denied by Test Test
saying that the breach of duty was not the
Re Polemis The Wagon
legal cause or that the damage was too (1921) 3 KB Mound [1961]
remote. 560 AC 388

Based on fault Damage of a

rather than particular kind
compensation is foreseeable

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 CAUSATION IN LAW CAUSATION IN LAW
Application of the Tests The Extent of the Injury
• Hughes v Lord Advocate (1963) AC 837 • A) Extensive Damage
• Government of Malaysia & Ors v Jumat bin • Bradford v Robinson Rentals Ltd. [1967] 1 All
Mahmud & Anor [1977] 2 MLJ 103 ER 267
• Doughty v Turner Manufacturing Co. Ltd.
[1964] 1 QB 518 • B) Egg Shell Skull Rule/Thin Skull Rule
• Smith v Leech Brain & Co. Ltd. (1962) 2 QB
405

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END OF CAUSATION OF DAMAGES

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