Negligence: Information and Causation4th Year JurisprudenceProf O Sheils
Causation
The causation of negligence is the third critical element of the lawsuit. There are actually two elements of causation that must be shown: actual cause (sometimes referred to as "cause in fact") and legal cause (sometimes referred to as "proximate cause").
(a)Cause in Fact
Actual cause asks the question of whether the person being sued, the defendant, was the actual cause of injuries sustained by the person initiating the lawsuit, the plaintiff. A
"But-For Test" is generally employed which has four elements:
- Identify the injuries for which redress is sought;
- identify the wrongful conduct;
- mentally correct wrongful conduct to extent necessary to make it lawful, leaving everything else the same;
- ask whether the injuries would still have occurred if the defendant had acted correctly in this case.
The basic test for establishing causation is the "but-for" test in which the defendant will be liable only if the claimant’s damage would not have occurred "but for" his negligence. Alternatively, the defendant will not be liable if the damage would, or could on the balance of probabilities, have occurred anyway, regardless of his or her negligence.
To understand this, a distinction has to be made between cause and a precondition for the events. Lord Hoffmann (in South Australia Asset Management Corp. v York Montague Ltd (SAAMCO) (1997) A.C. 191 at para. 214) gave a classic example
"A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee."
The doctor's negligence does result in the mountaineer running a risk which he otherwise would not have done, but this is insufficient to incur liability. The purpose of the doctor's duty to take care is to protect the mountaineer against injuries caused by the failure of the knee, not rock falls. Even though the injury might be reasonably foreseeable, the doctor is not liable.
Injury caused by the breach
CAUSE IN FACT PROVED
•The "But for" test
•Generally "but for" test must be fulfilled
•But there have always been exceptions
•Summers v Tice and Cook v Lewis Hunters
•And material contribution sufficient in cumulative exposure cases (Bonnington Castings –pneumoconiosis)
•And material contribution equated with increased risk in single employer cases (McGhee - dermatitis)
•And now equated with increased risk in multiple employer cases (Fairchild)
Bonnington Castings v Wardlaw (1956) HL more recent Holtby- (proportionate recovery)
McGhee v National Coal Board (1972)HL
•The Chester v Ashfar case in England and
•Chappel v Hart in Australia,
•Geoghan v Harris [2000]IEHC]129; [2000] 3 I.R. 536 (Ireland)
•Rufo v Hosking (Australia)
Cause in fact not proved
•Several possible causes of which the breach is only one. (Wilsher)
•Where the breach results in a loss of a chance of a cure (Gregg v Scott) ,(Hotson),
Philp v Ryan[2004] 4 I.R. 241
•Where the breach results in unquantifiable damage
McFarlane (England)
(b)Proximate Cause
Proximate cause looks at the issue of foreseeability. When considering the event that has happened, it is asked whether or not the injuries sustained were foreseeable or too remotely connected to the incident to even consider. Only reasonably foreseeable damage may be recovered by an action in negligence. This means that at the time the tortfeasor committed the negligent act, it must have been reasonably foreseeable that damage of the same kind as the plaintiff suffered would ensue from it. The extent of the damage need not be foreseeable; and it matters not what the plaintiff in fact foresaw - the test is a purely objective one.
In the law of negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote.
As with the policy issues in establishing that there was a duty of care and that that duty was breached, remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly placed on the defendant.
Caparo test
- In 1990, the House of Lords revised Lord Atkin's "neighbour" principle to encompass public policy concerns articulated in Caparo Industries Plc. v Dickman ([1990] 1 All ER 568). The three-stage "Caparo" test requires: foreseeability of damage; a relationship characterised by the law as one of proximity or neighbourhood; and that the situation should be one in which the court considers it would be fair just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other.
"Fair just and reasonable“
Damage
Plaintiffs must have suffered damage - either physical (e.g. personal injury), economic (e.g. pure financial loss), or both (e.g. financial loss consequent on a personal injury) - from the negligent act if they are to have a cause of action against the tortfeasor (note, however, under English law at least, and derivatives thereto, no cause of action arises save for in a number of 'special' and clearly defined circumstances where the damage is purely financial).
Defences (Remoteness)
Notwithstanding that the plaintiff can prove elements (1) - (4), the tortfeasor may have a complete or partial defence to the tort. Where the defence is complete, the plaintiff will be denied any remedy - i.e. damages (on damages see below) - by the Court. Where the defence is partial, the plaintiff's award of damages will be reduced to the extent of the partial defence.
A common complete defence is where the tortfeasor proves that the plaintiff consented either expressly or implicitly to the risk of damage.
Another is where tortfeasors can show that by a notice, sign or otherwise, they have validly excluded liability for the damage the plaintiff is seeking a remedy for.
Contributory negligence is an absolute defence under the common law. This is where the tortfeasor proves that the plaintiff acted negligently and that this negligence contributed to the damage the plaintiff suffered from the tortfeasor's negligent act.
A simple example is where D's negligent driving caused P damage, but P's negligent driving also was a cause of that damage in part, in that, but for P's failure, his injuries would not have taken place or would not have been as severe as they in fact were.
In most common law jurisdictions it has been replaced judicially or legislatively by the doctrine of comparative negligence (often still referred to as contributory negligence), under which the court will reduce the plaintiff's damages by the degree to which the plaintiff's own negligence contributed to his loss.
Additionally if the plaintiff is involved in wrongdoing himself at the time the alleged negligence occurred, it is possible that this might reduce the defendant's liability:
Damages
Where plaintiffs prove (1) - (4), and the tortfeasor cannot prove a complete defence, they may recover damages (money) for their loss. It is the court that decides the amount of damages to be awarded.
Tortious damages are, in general, compensatory and not punitive in nature. This means that the award decided upon should be reflective only of the plaintiffs' actual loss - it should aim to compensate them fully for it, but not to punish the tortfeasor. The award should be sufficient so as to put the plaintiffs back in the position they were before the tort was committed, but must not go any further, otherwise the plaintiffs would actually benefit from the tort.
Points for Discussion
•Can recent cases that hinge on causation be reconciled?
•Are the restrictions to causation in fact legitimate, practical and fair?
•Are the restrictions to causation in law appropriate?
•Is there a better way of limiting liability for a medical accident?
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