Causation

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Causation limits a plaintiff's ability to recover damages to only those which were actually caused by the defendant's negligence. A plaintiff must establish that a defendant's negligence caused the damages it seeks to recover.[1] In determining causation, the court acts as follows:

  • In normal circumstances:
    • Apply a 'but-for' test - would the harm not have occurred but-for (if not for) the defendant's wrongdoing? If yes, causation is satisfied.
  • Where there is an intervening act, causation will be cut off:
    • An act qualifies as an intervening act if it is either:[2]
      1. A completely voluntary human action.
      2. An independent event which is so unrelated and unforeseeable (to the original tortfeasor's conduct) that it can be called a coincidence.
      • Note: aggravation of injuries through medical treatment will not be counted as intervening acts unless the medical treatment was 'inexcusably bad'.[3]
  • Where there are multiple sufficient causes:
  • Where there are successive causes causing similar damage:
    1. If the successive event was tortious, the original tortfeasor is liable for the losses he caused as if the successive event never happened.[5]
      • The successive tortfeasor will only be liable for the new damages which his act caused.
    2. If the successive event was natural , than the original tortfeasor will only be liable for the losses up to that event. [6]
  • In an exceptional case:
    • the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.[7]

If causation is satisfied, the damages will be recoverable. If the chain of causation is broken, the damages will not be recoverable.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 469-81 [13.05 -13.40].

Introduction

[8]To recover damages, causation requires that the plaintiff's harm was caused by defendant's wrongdoing. The general test for causation is called the but for test:

  • Would the harm not have occurred but for the plaintiff's wrongdoing? If yes, then causation is satisfied.

An example of how causation might prevent a plaintiff from recovering damages is shown in Barnett v Chelsea & Kensington Hospital Management Committee[9]:

  • A man was poisoned and she attempted to seek the help of a doctor. The doctor on duty refused to attend because he was unwell, and the man sought the help of another doctor, but by this point it was too late and the man died. His wife (the plaintiff) sued for negligence.
  • The court concluded that whilst the failure to treat was negligent, the treatment would not have saved the deceased's life and therefore did not cause the damage (the death of the man).
  • In terms of the but for test, the harm would still have occurred even if the defendant was not negligent. Therefore there is no causation.

However, the but for test raises problems if it used as an exclusive test of causation:

  • The but for test is unable to deal with multiple causes of causation
    • i.e. if a house is burnt down by two fires, it would have still burnt down 'but for' each of the fires (because of the other one), and the court could not determine causation.
  • The but for test is unable to deal with an intervening cause which breaks the chain of causation (a novus actus interveniens)
    • example needed

These problems were addressed by both the common law and legislation to develop the mechanism of causation.

Common Law

The common law struggled in formulating a definitive test for causation. The leading authority in this area is March v Stramare:

  • Mason CJ:
    • The 'but for' test fails on two accounts - cases which involve multiple causes and cases in which there is an intervening act. Thus, it is not an exclusive test of causation.
    • In such cases, a value judgment of common sense and policy considerations are needed to supplement the 'but for test'.
    • An act cannot be considered an intervening act (which breaks causation) if that act was also the result of the original tortfeasor's negligence.
  • McHugh J:
    • An application of the 'but-for' test in conjunction with “common sense” means the tribunal of fact apply their own idiosyncratic value judgements.
    • "the 'but for' test should be seen as the test of legal causation. Any other rule limiting responsibility for damage caused by a wrongful act or omission should be recognised as a policy-based rule concerned with remoteness of damage and not causation.[10]"

Intervening act

An intervening act or a novus actus interveniens is an event which breaks the chain of causation and entails that the original tortfeasor is no longer liable for the plaintiff's damages. It is usually hard to establish that an act is indeed an intervening act. An act will constitute an intervening act if:

  • It is a voluntary human act (either the plaintiff's or third party) which is free, deliberate and informed.
    • i.e. an act that is not a result of or influenced by the original tortfeasor's negligence.
  • Extraordinary coincidental event.

These issues were discussed in a variety of cases, including Chapman v Hearse:

  • If the subsequent act is a reasonably foreseeable consequence of the first act (such that would arise in the ordinary course of things), it would not be considered an intervening act.

And Haber v Walker[11]:

  • Negligence of the defendant caused severe physical and mental injuries to plaintiff's husband. Later on, the plaintiff's husband killed himself.
  • Plaintiff argued that the negligence of the defendant caused the subsequent suicide and thus her harm as a result.
  • The court found that in this case, the suicide cannot be considered as a voluntary act since it was a result of the negligence.
  • Thus, no intervening act and the defendant is liable.
  • "the intervening occurrence, if it is to be sufficient to sever the connexion, must ordinarily be either-
    (a) human action that is properly to be regarded as voluntary, or
    (b) a casually independent event the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence"

and Mahony v Kruschich Demolitions:

  • This case concerned a plaintiff who was injured by the negligence of the defendant. He then sought medical assistance which was also negligent, and further aggravated his injuries.
  • The defendant sought to limit his damages by saying that the negligence of the doctor constituted an intervening act.
  • The court held that negligent medical treatment does not constitute an intervening act.
  • Further harm through bad medical treatment is a reasonably foreseeable consequence of the original torfeasor's negligence and does not break the chain of causation.
  • However, the court also held that in cases where the treatment is 'inexcusably bad' or really inappropriate, then it will constitute an intervening act.

Multiple sufficient causes

[12] There are cases in which there are multiple causes to the plaintiff's harm ,and its hard or impossible to prove exactly which wrongdoing was directly responsible.

  • In the case of multiple sufficient causes, all negligent defendants will be held concurrent liability concurrently liable.[13]

Successive causes

Sometimes plaintiff suffers similar injuries from two or more successive injuries, each of which is capable of causing the harm. For example:

  • A car being damaged in the same spot on two successive occasions.

In such cases, the original tortfeasor will continue to be liable for his share of the damages, regardless of the fact that the harm would have happened anyway because of the second event. This was discussed in Baker v Willoughby:[14]

  • Facts: the plaintiff's leg was injured in a car accident due to the defendant's negligence. Later that same leg was shot and needed to be amputated as a result of a different event.
  • Held: the defendant is liable to the plaintiff for the loss of amenity and incapacity arising from the original damage to the plaintiff’s leg, even though he would have suffered that loss of amenity and incapacity in any event once the leg had to be amputated.
  • This is because of the eggshell-skull rule, which entails that the second tortfeasor would only be responsible for the damages his acts caused (thus not making him liable for the already existing problems caused by the the defendant).
  • Thus, unless the original tortfeasor is liable, the plaintiff would be unable to recover, and that is not just.

It was also discussed in Jobling v Associated Dairies Ltd:[15]

  • Facts: Plaintiff suffered back injuries as a result of the defendant's negligence, making him almost incapacitated. Later developed a back disease (unrelated to the injury) which made him completely incapacitated.
  • Held: if the second act is a natural event rather than tortious conduct, then the original tortfeasor will only be liable for the damages up to the second event. This is an example of discounting for vicissitudes

Therefore, the test for successive causes is as follows:

  1. If the successive event was tortious, the original tortfeasor is liable for the losses he caused as if the successive event never happened.[16]
    • The successive tortfeasor will only be liable for the new damaged which his act caused.
  2. If the successive event was natural , than the original tortfeasor will only be liable for the losses up to that event. [17]

Exceptional cases

s 5D (2) of the Civil Liability Act 2002 (2002) specifies that:

In determining in an exceptional case...the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

This confers upon the courts wider discretionary powers in determining causation.

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. CLA, S 5D (1)(a)
  2. Haber v Walker [1963] VR 339
  3. Mahony v Kruschich Demolitions (1985) 156 CLR 522
  4. Cook v Lewis [1951] SCR 830 [From the USA]
  5. Baker v Willoughby [1970] AC 467
  6. Jobling v Associated Dairies Ltd [1982] AC 794
  7. CLA, s 5D (2)
  8. Textbook, pp. 473-4 [13.25]
  9. [1969] 1 QB 428
  10. (1991) 171 CLR 506 at [21] (McHugh J)
  11. [1963] VR 339
  12. Textbook, pp. 485-6 [13.60]
  13. Cook v Lewis [1951] SCR 830 [From the USA]
  14. [1970] AC 467
  15. [1982] AC 794
  16. Baker v Willoughby [1970] AC 467
  17. Jobling v Associated Dairies Ltd [1982] AC 794
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