Causation

• Factual causation


  Showing the link between D's act or omission and the damage caused - it is based on the facts of the case
• Legal causation


  When D is legally responsible for the injury or loss
• Reasonable foreseeability


  Damage must not be too remote
• Establishing factual causation


  1. The "But For" Test

  2. Cl must prove that on the balance of probabilities, 'but for the breach the damage would not have happened, ie. it is the most likely cause and over 50% responsible for the damage
• Factual causation examples


  • Barnett v Chelsea & Kensington Hospital (1969)
  • Cork v Kirkby MacClean (1952)
  • McGhee v National Coal Board (1973)
• Remoteness of damage


  Damage sustained by the claimant must be reasonably foreseeable
• Establishing legal causation


  1. Re Polemis & Furness, Withy & Co Ltd [1921]

  2. Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or Wagon Mound (No. 1) [1961]
• Re Polemis [1921]
• Wagon Mound (No. 1) [1961]
• D will always be liable if the type/kind of damage/harm/injury was foreseeable even if the precise way in which it happened is not
• Hughes v Lord-Advocate (1963)


  • Workmen (Ds) had been working in a manhole and put up a tent to cover it when unattended they also surrounded the tent with paraffin lames. A 10-year-old child climbed in the hole and as he climbed out he knocked over the lamps causing a fire.
• Negligence Causation


  The claimant must show that the type (kind) of damage caused by the defendant's act or omission was reasonably foreseeable
• D was liable for the original damage (the oil spillage), as the reasonable person would reasonably foresee this as a consequence of the breach of duty, but not the fire damage (as a reasonable person would not reasonably foresee that two days later the oil would ignite and cause damage to property)
• The fire damage to the wharf and two ships was too remote
• D will always be liable if the type/kind of damage/harm/injury was foreseeable, even if the precise way in which it happened is not
• The type of damage was reasonably foreseeable, even if the precise manner in which it occurred was not
• However, sometimes the court will find the type/kind of harm/injury is NOT reasonably foreseeable
• Children can be expected to do the unexpected so their actions are more likely to be foreseeable
• Break in the Chain of Causation - Intervening Act


  D is NOT liable for damage/injury/loss after the break in the chain of causation. There are three categories which may break the chain: 1) Act of a third party 2) Act of the claimant 3) A natural but unpredictable event
• A natural but unpredictable event, such as a freak weather occurrence or earthquake, can also break the chain of causation
• The Eggshell Skull Rule


  D must take the victim (Cl) as they find them. Therefore, if the type/kind of damage/harm is reasonably foreseeable but it is much more serious because Cl has a pre-existing condition, D is liable for all the consequences
• Res Ipsa Loquitur


  The burden of proving negligence is on the Cl with proof being on the balance of probabilities. However, in some situations it is difficult for Cl to know exactly what happened even though it seems obvious that D must have been negligent. In such a situation, the rule of "res ipsa loquitur" (the thing speaks for itself) can be used - Cl must show: 1) D was in control of the situation which caused the injury, 2) the accident would not have happened unless someone was negligent, 3) there is no other explanation for the injury. If Cl can show all three points then the burden of proof moves to D who must prove that he was not negligent.