Chinese University of Hong Kong

Faculty of Law

Principles of Tort
LAWS 6023 A, B, D
Negligence
Causation
Factual Causation
Intervening Acts (Novus Actus Interveniens)

Peter Rhodes
Gonzalo Villalta Puig
Term 2 - 2011 Topic 5

Principles of Tort Negligence - Causation (Interv

ening Acts) 2011
Causation
Interventions (Intervening Acts)
Breaking the Chain of Causation
 Where one act follows another the second act may be regarded as
the real cause of the plaintiff’s damage (injury) if it has “broken the
chain of causation” between the plaintiff’s damage (injury) and the
defendant’s breach of duty”
 The question is whether the second a (intervening) act is just a link
in the chain of causation starting from the defendant’s breach of
duty or if the second act breaks the chain of causation
 Foreseeability test to determine if there is a break in the chain of
causation. If the subsequent intervening event is reasonably
foreseeable it will usually not be treated as breaking the chain of
causation.

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Causation
Interventions (Intervening Acts)
Breaking the Chain of Causation
 If the second (intervening) act is a reasonably
foreseeable consequence of the defendant’s breach of
duty it will probably be regarded as a link in the chain of
causation
 If the second (intervening) act is just a link in the chain of
causation the defendant is liable for all the plaintiffs
damage (injury) caused by his or her breach of duty
 If the second (intervening) act breaks the chain of
causation the defendant is not liable for damage (injury)
consequent on the second (intervening) act
 Policy, as well as legal principle, is involved in
determining if there is a break in the chain of causation
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Causation
Novus Actus Interveniens

 New intervening act

 Common sense approach in deciding if a new
intervening act breaks the chain of causation

Alphacell Ltd v Woodward [1972] AC 824, 834

Lord Wilberforce
“In my opinion ‘causing’ here must be given a common sense
meaning and I deprecate the introduction of refinements, such as
causa causens, effective cause or novus actus.”

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Causation
Novus Actus Interveniens
 Generally “the greater the degree of foreseeability of the occurrence
of the intervening event following on the defendant’s negligent act,
the less likely it will be found to break the chain of causation”
(Glofcheski, Tort Law in Hong Kong (2007) 79)

The Oropesa [1943] 1 All ER 211

Lord Wright
“The question is not whether there was new negligence, but whether there
was a new cause…To break the chain of causation it must be shown
that there is something which I will call ultraneous, something
unwarrantable, a new cause which disturbs the sequence of events,
something which can be described as either extraneous or extrinsic”

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Causation
Types of Intervening Acts

Intervening Acts:
 Innocent

 Negligent

 Reckless

 Intentional or deliberate

 Plaintiff’s

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Causation
Innocent Intervening Acts
Instinctive or innocent intervening events or natural responses to an emergency
not likely to be treated as a novus actus – breaking the chain of causation

 Reeves v Commissioner of Police for the Metropolis [2000] 1AC 360

Lord Hobhouse (dissenting)

“Reasonable human responses to situations are not treated as causative; they

are normal consequences of the antecedent event and it is that event which is
described as the cause. Thus the reasonable response of a rescuer to an
accident caused by the negligence of another would not without more be
described as a cause of an injury suffered by the rescuer.”

 Scott v Shepherd [1773] 2 Wm. BI.892

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Causation
Innocent Intervening Acts
 Intervening acts of nature normally not treated as
breaking chain of causation as such acts are to be
expected as part of life
 Carlslogie Steamship Co v Royal Norwegian
Government [1952] AC 292

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Causation
Negligent Intervening Acts
 Difficult to predict when a negligent intervening act may break the
chain of causation
 Need to consider particular facts of the case and policy factors
 Knightley v Johns [1982] 1 All ER 851
 Rouse v Squires [1973] QB 889
 Roberts v Bettany [2001] EWCA C iv 109
 Leung Sin Fai v Perfect World [1998] 2HKLRD 115
 A-G v Ho Hing Mui [1982] HKC 424
 A-G v Yiu Yun [1990] 2HKC 238
 Hogan v Bentick West Hartley Colliery (Owners) Ltd [1949] 1 All
ER 588
 O’Brien v Lo Hoi Yin [2010] HKEC 1012
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Causation
Reckless Intervening Acts
 Reckless intervening acts not usually foreseeable so are more
likely to be treated as breaking the chain of causation
 Reeves v Commissioner of Police for the Metropolis
[2000] 1AC 360

Lord Hobhouse (dissenting)

“Careless conduct may ordinarily be regarded as being within
the range of normal human conduct when reckless conduct
ordinarily would not.”

 Knightley v Johns [1982] 1 All ER 851

 Wright v Lodge [1993] 4 All ER 299
 Mak Kit Ching & Another v Tsang Yiu Wing & Other [2006]
HKPI 811
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Causation
Intentional or Deliberate Intervening Acts
 Courts generally treat intentional or deliberate intervening acts as a
novus actus breaking the chain of causation
 Dense Billion Ltd v Hui Ting-Sung & Others [1995] HCA 2107
of 1993
 Topp v London Country Bus (South West) Ltd [1993] 1 WLR
976
 Particular circumstances of the case and policy issues may be
important (and not just foreseeability of the intervening act) in
determining if the intentional or deliberate act breaks the chain of
causation
 Home Office v Dorset Yacht Co Ltd [1970] AC 1004
 Lamb v Camden LBC [1981] QB 625
 Yuen Tat-cheong v Urban Council [1987] HKLR 723

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Causation
Intentional or Deliberate Intervening Acts
 Smith v Littlewoods Organisation Ltd [1987] 1 AC
214
Lord Goff
Liability in negligence for damage caused by acts of third parties
could only arise in the following situations:
 Where a special relationship existed between plaintiff and
defendant:
 Stansbie v Troman [1948] 2 KB 48
 Home Office v Dorset Yacht [1970] AC 1004
 All Link International Ltd v Ha Kai Cheong & Another [2005] 3
HKLRD 65
 Hui Kay Cheong Hermann v Chi Wo Properties Ltd [1992]
HKDCLR 51

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Causation
Intentional or Deliberate Intervening Acts

Lord Goff
 Where the defendant created the source of the damage and it
was reasonably foreseeable that the third party would extend the
risk:
 Haynes v Harwood [1935] 1 KB 146
 Where the defendant knows or ought to know that a third party is
creating a danger on his property and fails to take reasonable
steps to bring it to an end:
 Goldman v Hargrave [1967] 1 AC 645
 Clark Fixing Ltd v Dudley Metropolitan Borough Council
[2001] EWCA Civ 1898

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Intentional or Deliberate Intervening Acts
 Policy factors – reasonable foreseeability of the
intervening act may not always be the test for novus
actus
 Lamb v Camden [1981] QB 625
Lord Denning
“The truth is that all these three – duty, remoteness and causation –
are all devices by which the courts limit the range of liability for
negligence or nuisance…it is not every consequence of a
wrongful act which is the subject of compensation. The law has
to draw a line somewhere. Sometimes it is done by saying that
there is a break in the chain of causation. At other times it is
done by saying that the consequence is too remote to be a head
of damage. All these devices are useful in their way. But
ultimately it is a question of policy for the judges to decide…”
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Plaintiff’s Intervening Acts
 Plaintiff’s acts may, in certain situations, be regarded as breaking
the chain of causation so that the plaintiff and not the defendant is
treated as being the cause of his or her loss (damage).
 Test of whether plaintiff acted reasonably in the circumstances.
 Distinguish from plaintiff’s possible contributory negligence.
 If plaintiff’s act breaks the chain of causation the defendant is not
liable for the damage caused.
 If plaintiff’s act does not break the chain of causation, the defendant
remains liable but may raise the defence of contributory negligence.

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Causation
Plaintiff’s Intervening Acts
 Where plaintiff’s acts are a natural or instinctive response to a dangerous
situation created by the defendant, no break in the chain of causation, as
such conduct is reasonable. (Glofcheski, Tort Law in Hong Kong (2007)88)
 Where plaintiff’s conduct is unreasonable, then it may break the chain of
causation and be treated as a Novus Actus Interveniens

McKew v Holland Hannens and Cubitts (Scotland) Ltd [1969] 3 All ER

1621

Lord Reid
“But if the injured man acts unreasonably he cannot hold the defender
liable for injury caused by his own unreasonable conduct. His
unreasonable conduct is a novus actus interveniens. The chain of
causation has been broken and what follows, must be regarded as
caused by his own conduct and not the defendant’s fault or disability
caused by it.”
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Plaintiff’s Intervening Acts
 Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006
 Chun Yat-Nam v A-G [1995] 1 HKLR 390
 Keeling v Hebe Haven Yacht Club [2005] 4 HKC 277
 Cheng Kam Ian v Hong Kong Prime Printing Co
(2000) HCPI 143 of 1998

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Plaintiff’s Intervening Acts (Suicide Cases)

 Actions for damages have been brought under the Law

Amendment and Reform Consolidation Ordination
(LARCO) (Cap 23) and the Fatal Accidents Ordinance
(Cap 22) by dependants of persons who have committed
suicide following the negligent infliction of an injury on
the suicide victim by the defendant

Pigney v Painless Transport Services Ltd [1957] 1

WLR 1121

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Plaintiff’s Intervening Acts (Suicide Cases)
Corr v IBC Vehicles Ltd [2008] 2 WLR 499

Lord Bingham
“The rationale of the principle that a novus actus interveniens
breaks the chain of causation is fairness. It is not fair to hold a
tortfeasor liable, however gross his breach of duty may be, for
damage caused to the claimant not by the tortfeasor’s breach of
duty but by some independent, supervening cause (which may or
may not be tortious) for which the tortfeasor is not responsible. This
is not the less so where the independent, supervening cause is a
voluntary, informed decision taken by the victim as an adult of
sound mind making and giving effect to a personal decision about
his own future…In such circumstances it is usual to describe the
chain of causation being broken but it is perhaps equally accurate to
say that the victim’s independent act forms no part of a chain of
causation beginning with the tortfeasor’s breach of duty……

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Plaintiff’s Intervening Acts (Suicide Cases)

Lord Bingham (continued)

In the present case Mr Corr’s suicide was not a
voluntary, informed decision taken by him as an adult of
sound mind making and giving effect to a personal
decision about his future. It was the response of a man
suffering from a severely depressive illness which
impaired his capacity to make reasoned and informed
judgments about his future, such illness being, as is
accepted, a consequence of the employer’s tort. It is in
no way unfair to hold the employer responsible for this
dire consequence of its breach of duty, although it could
well be thought unfair to the victim not to do so…..”

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Causation
Plaintiff’s Intervening Acts (Suicide Cases)

 Actions for damages have been brought under the Law

Amendment and Reform Consolidation Ordination
(LARCO) (Cap 23) and the Fatal Accidents Ordinance
(Cap 22) by dependants of persons who have committed
suicide whilst in the custody of the police, prison service
or a hospital
 The authorities being sued for negligence in not
preventing the suicide, have raised the issue of
causation by focusing on the deceased’s act of killing
himself as breaking the chain of causation or being guilty
of contributory negligence

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Plaintiff’s Intervening Acts (Suicide Cases)

Reeves v Commissioner of Police for the Metropolis

[2000] 1AC 360

Lord Jauncey
“Where such a duty is specifically directed at the
prevention of the occurrence of a certain event I cannot
see how it can be said that the occurrence of that event
amounts to an independent act breaking the chain of
causation from the breach of duty, even though it may be
unusual for one person to come under a duty to prevent
another person deliberately inflicting harm on himself. It
is the very thing at which the duty was directed.”
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Plaintiff’s Intervening Acts (Suicide Cases)

Reeves v Commissioner of Police for the Metropolis

[2000] 1AC 360

 Majority of the House of Lords held that the plaintiffs

were entitled to damages for the defendant’s negligence
in failing to prevent the deceased’s suicide (not a novus
actus) but such damages were reduced by 50% for the
deceased’s contributory negligence

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Plaintiff’s Intervening Acts (Suicide Cases)
Orange v Chief Constable of West Yorkshire Police (2002) QB 347

Latham LJ
“There is no doubt that a custodian owes a duty of care to those taken into
custody…[T]he duty is to take reasonable care for that person’s health
and safety. In determining the extent of that duty, it is clearly relevant to
take into account the fact that there is an increased risk of suicide
amongst such prisoners. But that does not mean that suicide is a
foreseeable risk in relation to every prisoner….[S]uicide can be both
unforeseen and unforeseeable. Nor do we consider that it would be fair,
just and reasonable to impose upon either the police or the Prison
Authorities a general obligation to treat every prisoner as if he or she
were a suicide risk. The consequence would be an unacceptable level
of control and precaution, not only as an obligation placed upon the
authorities, but also as an imposition on the individual prisoner.”

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Plaintiff’s Intervening Acts (Suicide Cases)

 Kirkham v Chief Constable of Greater Manchester

[1990] 2 QB 283
 David Stuart & Another v Tania Kirkwood-Veenstra &
Another [2009] HCA 15

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Reading

Text Books
 Glofcheski Tort Law in Hong Kong, pages 78-93

 Winfield and Jolowicz on Tort, pages 353-363

 Lunney and Oliphant Tort Law: Text and

Materials, pages 248-267

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