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Causation & Remoteness of Damages

2 Types of Causation.
1. Causation in Fact- 4 Types of Causation in Facts
Question arises on whether the Defendant’s conduct has in fact caused the damage suffered by the
Plaintiff. For example, BUT FOR the Defendant’s breach of duty, would the Plaintiff have suffered the
damage?
I. “But for test”
In Barnett v Chelsea & Kensington Hospital Management Committee, three security guards when to
the Defendant’s hospital when they started vomiting after drinking some tea in the early morning.
However, the doctors were not there. The nurses who were on duty, after consulting the doctors on the
phone, told the three guards to go home and call their own doctors. Later, one of the guards who is the
plaintiff’s husband died of arsenic five hours later, thus the plaintiff sued the hospital for negligence in
failing to treat her husband.
The court apply the “BUT FOR TESR” and held that there is a breach of duty of care for not treating the
patient, however the breach did not cause the plaintiff’s death. There was evidence that even though the
patient was treated, the patient would still have died. Thus, the defendant was not liable.
In Swamy v Matthews & Anor, the Plaintiff went to see the First Defendant, who was employed by the
Second Defendant for an itch on his hands and legs. He was given an injection of 5 cc acetyl Arsan which
later was alleged to have caused paralysis of the hands and legs.
The court held that by applying “BUT FOR TEST”, the Plaintiff would have to prove to the court that the
negligence of the Defendant has directly caused the damage to the Plaintiff. In this case, The plaintiff had
failed to establish that the injection had caused paralysis.
2. Multiple Causes
In literal meaning, this means that multiple causes had contributed to the damage of the Plaintiff. The
causes may happen on the same time.
Bonnington Castings Ltd v Wardlaw, the Plaintiff contracted pneumoconoiosus due to inhaling slica
dust at his place of work. The dust came from a pneumatic machine of the Defendant and from a grinding
machine of the Defendant which fails to ensure that the absorber machine was functioning properly. The
Plaintiff failed to prove to the court that he would not have contracted the disease if the dust-absorber was
functioning. He cannot use the “BUT FOR TEST”.
House of Lord held that although the Plaintiff have failed to prove for “BUT FOR TEST”, nevertheless,
the Defendant is still liable. The Plaintiff has proved to the court that the dust from the grinding machine
was an important cause of the disease on a balance of probabilities. There might be multiple causes for
the damage of the Plaintiff, but the Defendant is still liable for the damage of the Plaintiff.
McGhee v National Coal Board, the plaintiff suffered dermatitis as a result of exposure of brick dust.
Due to inadequate washing facilities at the Defendant’s factory, the Plaintiff is still in contact with the
dust while he was cycling home. The Plaintiff failed to prove through “BUT FOR TEST” but can prove
through balance of probabilities.
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The court held that the defendant was held liable because lack of shower materially contributed to the risk
of contracting dermatitis. The plaintiff was not required to prove that the dust was the sole or main cause
of the illness.
Wilsher v Essex Area Health Authority, the Plaintiff has turned blind and the Plaintiff claimed that it
was caused by the negligent of the doctor as they failed to prevent excessive oxygen flowing into the
baby incubator. The Defendant claimed that there are 5 other factors which may cause the blindness of
the Plaintiff.
The House of Lords held that the burden of proof shall lies on the Plaintiff that the negligent of the doctor
has caused the blindness of the Plaintiff. The Plaintiff has failed to discharge the burden of proof and
hence, the Defendant is not liable.
Dr KS Sivananthan v the Government of Malaysia , the Plaintiff was injured in an accident and sought
treatment at Hospital A where a plaster of paris was applied to him. He was dissatisfied with Hospital A,
then discharged himself and seek treatment at Hospital B. The doctor at Hospital B split the plaster of
paris and performed an operation on the plaintiff’s leg. A week later, the plaintiff received further
treatment by way of internal fixator from the same doctor. The leg had to be amputated nine months later
due to ischaemia.
The court held that since the plaintiff’s leg was at the severe stage of ischaemia when he was admitted to
Hospital B, the attending doctor could not be held liable for negligent in delaying the treatment. The
method of treatment was a recognized choice of treatment. Thus, the defendant had not caused the injury.
3. Two Defendants injured the Plaintiff (Concurrent Causes)
When there are two or more tortious act which resulted in the same damage, the defendants are each
liable for the whole damage.
Fitzgerald v Lane, the Defendant hit the Plaintiff as he was crossing a pelican crossing. The impact has
thrown the Plaintiff onto the bonnet of the car and back onto the road where the Second Defendant has hit
him.
All parties will only be liable if it can be established that the defendant had caused the act. Thus, both the
first and second defendant was held jointly liable which materially contributed to the risks. However, the
damages awarded were reduced as there was contributory negligence on the part of the plaintiff.
4. Consecutive Causes (EXCEPTION)
a. Pre-existing Condition
Performance Cars Ltd v Abraham, the appellant hit the claimant's car (a silver cloud Rolls Royce) as a
result of his admitted breach of duty. Two weeks prior to this incident the Rolls Royce had been in a
previous incident whereby another negligent driver had hit the car. As result of the previous incident the
car required a re-spray. The claimant claimed £75 for the re-spray for the prior incident and obtained
judgment by default. However, the claimant has never received the sum. The claimant sought to claim the
£75 from the appellant.
The court held that the defendant was not liable for the cost of respraying as he had damaged a car which
was already damaged. Therefore, his negligence had not caused the damage. The Plaintiff could not
recover the same loss twice.
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b. Two consecutive causes which causes the same injury. (Two torts and two tortfeasor)
Baker v Willoughby, The Plaintiff’s leg was injured due to the Defendant’s negligence, and the Plaintiff
had to look for another job. He was later shot by a robber in the same leg which eventually caused his leg
to be amputated. The Plaintiff sued the Defendant for his negligent, which caused injured to his leg. The
Defendant claimed that it should be the liability of the robbers who shot the Plaintiff’s leg.
The House of Lords held that although the Plaintiff has amputated his leg, the second injury which is
caused by the Robber does not wipe out the liability of the Defendant which causes the injury. Hence, the
Defendant is still liable,
c. Two consecutive events only one is tortious.
Jobling v Associated Diaries Ltd, In 1973, the plaintiff suffered back injury through the fault of his
employer which meant that he was only capable of light work in the future. In 1976, the plaintiff
contracted myelopathy which was in no way related to the first accident. The defendant claimed that his
liability for losses wiped out when the plaintiff contracted the disease.
House of Lord held that the plaintiff is only entitled to damages from 1973 until 1976 up to the point
when the plaintiff contracted the disease as the second injury was through natural causes and was not
tortious.
2. Causation in Law (REMOTENESS OF DAMAGE) (2 TEST available)
A Defendant will only be liable if it is reasonably foreseeable that his conduct will result in some damage
to the Plaintiff. The law places a limit and the problem has always been the determination of the limit. No
specific guidelines may be given and the final decision is ultimately in the hands on the judge. Hence, the
court came out 2 tests.
1. Direct Consequence Test
Re Polemis and Furness, Withy & Co Ltd, the defendants are charterers of a ship belonging to the
plaintiff. When the ship anchored at Casablaca, the defendant’s servant carelessly allowed a plank to fall
into the hold of the ship. The hold of the ship contained petrol vapour. Due to the fall of the plank, it
caused a spark which ignited the vapour which caused a big fire and the ship was totally damaged.
The Court of Appeal held that as the fall of the plank was due to the negligence of the defendant, the
defendant was liable for the direct consequence of negligence which amounted to US$1 million even
though the loss could not be foreseen. Thus, the defendant was held liable for the fire caused.
Weld-Blundell v Stephens, Lord Reid laid out two stages of the Direct Consequence Test. Firstly,
whether the damage is foreseeable as a consequence of the defendant’s conduct. If yes, the second stage
of the test will come into effect. The second stage is that even though the damage was unforeseeable at
that moment, the defendant will be liable for all the direct consequence of his conduct.
2. Reasonable Foreseeability Test
By applying this test, the court would raise out a question, whereby Is the damage of such kind as the
reasonable man should have foreseen?
Wagon Mound No. 1
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The defendants are charterers of a ship. Due to the carelessness of the defendant’s servant, oil was spilled
into the Sydney harbour. The oil spread to a jetty owned by the plaintiff where the plaintiff’s workers
were carrying out welding operations. The plaintiff’s manager upon seeing the oil, seek advice from C Oil
Co on whether it was safe to continue with the welding. It was advised that the plaintiff’s workers are
allowed to continue with the welding because oil on water will not ignite. However, some cotton debris
became embroiled in the oil and sparks from some welding works ignited the oil which caused fire. The
plaintiff’s jetty was extensively damaged.
The court held that the defendant was not liable for damage caused by fire since it was not a foreseeable
consequence of breach of their duty. By applying this test, the court would determine several factors.
First, the damages must be foreseeable as a consequence of the defendant’s conduct; Secondly, the type
of damage must be foreseeable. If the damage that occurs is of a different nature than what is foreseeable,
the defendant will not be liable.
Bradford v Robinson Rentals Ltd, the plaintiff, an employee of the defendants, was requested by his
employer to assist a colleague to repair a vehicle. The trip to repair the vehicle was during cold winter
which took about 20 hours of driving, where both the vehicle that the plaintiff was driving and the vehicle
that the plaintiff was driving to, was lacking any form of heating function. Because of the cold weather,
even though the plaintiff had taken reasonable caution to dress warmly, the plaintiff suffered frostbite.
The court held that in assessing harm, the precise injury need not have been anticipated so long as the
defendant is able to foresee that an injury of that kind occurring. Since the injury resulting from the cold
weather is foreseeable, the defendant was held liable.
Extent of Damage
1. Egg Shell Skull Rule
The extent of damage is irrelevant as long as the type of damage us foreseeable in the circumstances.
Sometimes, a defendant’s conduct results in a much more sever damage to the Plaintiff than it is
reasonably anticipated. The court would apply the Egg shell skull rule, whereby the defendant cannot
argue that the Plaintiff’s injury would be less if the Plaintiff has a stronger skull or body. All Plaintiff
would be deemed as a weak man.
Smith v Leech Brain & Co, The plaintiff suffered burn on his lower lip as a result of the defendant’s
negligence. The burn was the promoting agent of cancer which developed into a cancerous growth from
which the plaintiff died three years later.
The court held that the risk of receiving a burn from a molten metal was one which the employer should
have reasonably foreseen and the defendant, in failing to provide adequate protection, was guilty of
negligence.
It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not
have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he
finds him. The defendant is liable.
2. The Plaintiff’s impecuniosity (Lack of Financial Resources)
Liesbosch Dredger v Edison SS, the Defendant through his negligence, caused the Plaintiff’s dredger to
sink. The plaintiff had a contractual relationship with a third party. The Plaintiff claimed for three types of
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losses, namely, The cost of hiring another dredger; The loss of profit for failing to complete their
contractual obligation with a third party; The loss of their dredger.
House of Lord allowed the second and third claim but not the first claim. The first claim was related to
the plaintiff’s own impecuniosity which was an external factor and was not in any way an immediate
effect of the defendant’s negligence.
3. The Method by which the damage occurs is irrelevant.
Hughes v Lord Advocate, due to the negligence of a post office workers, a manhole was left uncovered.
A boy played with a lamp and the lamp fell into the manhole and caused loud explosion and the biy was
seriously burnt.
The court held that the explosions by itself was not foreseeable but burning by explosions is foreseeable.
It is foreseeable that children might play with the lamps and getting injured. It is sufficient that the
damage is of a kind within the general range of what is reasonably foreseeable. The Defendant is liable.

EXCEPTION
Intervening Act. “Novus actus Interveniens” If the defendant can prove that the chain of causation is
broken by an intervening act, the defendant might not be liable. If there is an intervening act, it is said that
the intervening act will break the chain of causation, therefore the defendant will only be liable for such
damage up to the intervening event.
3 types of Intervening Act – 1. Intervening Natural Event
Natural Event in this case shall be deemed as event that are acted beyond human control.
Carslogie Steamship Co Ltd v Royal Norwegian Government, The plaintiff’s ship collided with the
defendant’s ship where it was admitted that the defendant were to be blamed. However, the defendant
was not liable for the damage caused by the bad weather. The second damage was an intervening act
therefore the defendant was held not liable.
3 types of Intervening Act – 2. Intervening Act of Third Party
Where the defendant’s breach of duty is followed by an act by a third party which is also the cause of the
plaintiff’s damage, the court has to determine the extent of the defendant’s liability.
If the act of the third party is held to be a novus actus interveniens, the defendant will not be held liable
for any damage occurring after the act.
Lamb v London Borough of Camden, the defendant, a local council, broke a water main near the
plaintiff’s house, causing damage to the plaintiff’s house and thus inhabitable. The house was
subsequently inhabited by squatters, where the squatters caused substantial damage to the house. The
plaintiff sued the defendant for the act of the squatters.
The House of Lord held that the defendant was held not liable based on a policy whereby squatters are not
the responsibility of the defendant and evicting them is the householder’s own obligation.
3 types of Intervening Act – 3. Intervening act of the Plaintiff
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This would occur where it is the plaintiff’s act or omission which in combination with the defendant’s
breach of duty has brought about the damage (contributory negligence) therefore in such situations, the
plaintiff’s claim will be reduced proportionately.
McKew v Holland & Hannen & Cubitts (Scotland) Ltd, due to the Defendant’s negligence, the
Plaintiff sustained some injuries on his leg as he loss control and he fell. A few days later, the Plaintiff
went to a block of flats where the stairs have no handrail beside it. The Plaintiff eventually fell again and
fractured his leg.
House of Lord held that the act of the appellant in attempting to descend a steep staircase without a
handrail in the normal manner and without adult assistance when his leg had previously given way on
occasions was unreasonable; accordingly, the chain of causation was broken and the respondents were not
liable in damages for his second injury.
Wieland v Cyril, the plaintiff suffered an injury caused by the admitted negligence of the defendants.
After attending the hospital, she felt shaken and the movement of her head was constricted by a collar
which had been fitted to her neck. As a result, she was unable to use her bi-focal spectacles with her usual
skill and the fell while descending stairs, sustaining further injuries.
The court held that the injury and damage suffered because of the second fall were attributable to the
original negligence of the defendants so as to attract compensation from them Chain of causation is not
broken.

PROOF OF NEGLIGENCE
There are two stages in a civil trail- the determination of legal issues, and the facts of the case.
The judge will determine and conclude from the evidence tendered in court. Then, a prima facie
case exists.
Qualcast (Wolverhampto) Ltd v Haynes, the court state that Even though all issues of law and
fact must be taken into consideration in determining defendant’s liability in negligence, in the
end the reasonableness or otherwise of defendant’s act depends on the facts of each case. This
means that who to proof or standard of proof differs by cases and the court shall decide.
Burden of Proof
Section 101 Evidence Act 1950
The burden of proof lies on the plaintiff.
Case: Krishna Murthey & Anor v Law Lye Chua
The burden of proof lies on the shoulder who makes the claim
Standard of Proof
United Asian Bank Bhd v Tai Soon Heng Construction Sdn Bhd the court ruled that the
standard of proof is on the balance of probabilities, meaning the Plaintiff would have to submit
evidence whereby there is a high probability on the negligent of the Defendant to cause the
damage of the plaintiff. If the plaintiff fails the reach the standard, the plaintiff’s claim would
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fail. If the evidence against the defendant is equally balanced, then the plaintiff would still be
considered as failing to establish his case.
Res Ipsa Loquitor (Discharge the Burden of Proof of Plaintiff)
In order to discharge the burden of proof, the plaintiff must prove that the Defendant has acted in
a particular way or that he was omitted to do something. When the plaintiff raises the maxim Res
Ipsa Loquitor, the Plaintiff has prima facie proven to the court that the Defendant is negligent.
Purpose of maxim is to avoid injustice to the plaintiff as otherwise the plaintiff would be
required to prove the details of the cause of accident, which he may not know.
The court may draw inference of negligence even though there is no outright evidence as to
defendant’s act or omission.
Presumption of negligence where defendant is to rebut the presumption, give evidence that his
act was reasonable in the circumstances.
Henderson v Henry E Jenkin & Sons, The plaintiff’s husband was killed in an accident due to
the dysfunctional brake of a lorry when descending a hill. The failure to brake the lorry was
probably due to the dysfunction in the hydraulic brakes of the defendant’s lorry.
The defendant claimed that the damage was latent and would not have been discovered even if
reasonable inspection had been made.
House of Lords: Liable because the defendants failed to rebut the interference of negligence
raised against them and the defendants had failed to show that they had made reasonable
inspection of the heavy lorry, which was regularly sent on a journey of steep hills.
Scott v London & St Katherine Docks Co, the plaintiff who was standing near the door of the
Defendant’s warehouse was injured when several sugar fell on him.
The court held that the Defendant was liable and laid out three requirements in order to apply the
maxim.
Three requirements for the application of the maxim:
(a) the thing that causes the damage must be under the control of the defendant;
(b) the damage is something that will not ordinarily happen if the defendant takes
adequate precaution; and
(c) the cause of accident is not known.
(a). Control
Just a mere control or actual control of the events leading to the injury by the Defendant is
sufficient.
Gee v Metropolitan Ry Co, the plaintiff fell out of the train when the door that he was leaning
on suddenly opened when the train moved. The Defendant had control over the door of the train.
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The court that The Defendant was liable.

Easson v LNE Ry Co, the maxim was raised when a four year old girl fell off a train when the
doors suddenly opened seven miles after the last stop.
Held: It was unreasonable to expect that the train had to be under the control of the defendant for
the whole journey as it might be caused by the defendant or other passengers on the train.
Ward v Tesco Stores Ltd, the plaintiff slipped on some spilt yoghurt at defendant’s
supermarket. The court held that the maxim applied even though there was no evidence as to
how long the yoghurt had been on the floor.
(b). If the Defendant had taken adequate Precaution
Chaproniere v Mason, the Plaintiff bought a bun from the Defendant. Subsequently, he was
injured in aresult that a stone was found in the bun. The court ruled that the negligent of
Defendant for not taking adequate precaution has caused the damage of Plaintiff. Hence, the
Defendant is liable.
Byrne v Boadle, A bag of flour fell from a factory window injuring the plaintiff. The court then
noticed that the Defendant did not taken any adequate precaution or safety measure in the
factory. The court held that the Defendant is liable as this would not have happened without any
negligence on the part of the defendant.
(c). the cause of the accident is not known
Barkway v South Wales Transport Co Ltd, the plaintiff who was a passenger on the
defendant’s bus was killed when the bus was involved in an accident. However, the cause of the
accident was a faulty tyre which might have been discovered if the defendant had frequently
required the drivers to make relevant reports.
House of Lords held that Res ipsa loquitor does not apply as the cause of the accident is clearly
been identified in this case.
Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor, there was a collision between a
truck driven by the Defendant and a car driven by the plaintiff’s husband, who died in the
tragedy. The court held that the maxim does not apply in this case as the cause of the accident is
known in this case. The maxim is only applicable when the cause of accident is not known.

Defences to Negligence
1. Volenti non fit injuria (Plaintiff has consented)
Lee Geok Theng v Ngee Tai Hoo & Anor, the court explains that Volenti non fit injuria simply means
that to which a man consents cannot be considered an injury. No act is actionable as a tort at the suit of
any person who has expressly or impliedly assented to it. No one can enforce a right which he has
voluntarily waived or abandoned. Consent must be real and given without force, fear or fraud. Mere
knowledge of a risk does not amount to consent.
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The Defendant must prove to the court that the plaintiff understood the risk of injury and voluntarily be
responsible for the risk. The Plaintiff shall show the Defendant that he has consented to it.
The ELEMENTS of Volenti Non Fit Injuria
1. Plaintiff had full knowledge of the risk
Lee Geok Theng v Ngee Tai Soo, the plaintiff was a pillion rider of a motorcycle which was involved in
an accident. The Plaintiff claimed for general and special damages against the first and second
defendants, who were the registered owner and rider of the motorcycle, The Defendant raised the Defence
of volunti non fit injuria.
The court held that the defendant was negligent beyond reasonable doubt. Every rider of a motorcycle
owes a primary duty of care to his pillion unless the plaintiff expressly waived his right.
2. Consent must be Freely and Voluntarily Given
Slater v Clay Cross Co ltd, the Plaintiff was walking along a tunnel on a railway trach which was owned
by the Defendants. Due to the negligent of the Defendant, the Plaintiff was injured. The court held that
the Plaintiff is voluntarily accepted the risk of danger, but she could not be said to have agreed to the risk
of negligence by the driver.
Bowater v Rowley Regis Corporation, it was held that a person is said to be voluntarily assuming the
risk if he is in a position where he has a choice. He must have full knowledge of the circumstances so that
he can make reasonable choices.
3. The defendant must show that the plaintiff had agreed to take the risk (consent/assumption of risk)
There must be an agreement which shows that the plaintiff had consented to the risk of injury.\
2. Contributory Negligence
It is usually raised in the case where the plaintiff had breached a duty of care for his own safety, in that he
has failed to take reasonable care for himself or his property which consequently resulted in his injury.
England: Law Reform (Contributory Negligence) Act 1945
Section 1(1) provides that;
Whenever a person suffers injuries due to his own fault as well as others, his claim will not fail, but the
amount of compensation he receives will be reduced to an amount that is considered just and reasonable,
taking into consideration his contribution to the final damage.
Malaysia: Civil Law Act 1956
Section 12(1):
Where any person suffers damage as the result partly of his own fault and partly of the fault of any other
person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the
person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such
extent as the Courts thinks just and equitable having regard to the claimant’s share in the responsibility
for the damage.
The ELEMENTS OF CONTRBUTORY NEGLIGENCE
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1. The plaintiff is not required to have a duty of care to the defendant. The duty of care is upon himself to
act reasonably so as to avoid damage to himself
2. The plaintiff has ‘breached’ this duty of care by behaving unreasonably
3. The act or omission must be the cause of his injury, which must be of a type reasonably foreseeable
from his act or omission.
Froom v Butcher, The plaintiff’s car was in collision with the defendant’s car. At the time of the
accident, the plaintiff was not wearing any seat belt. The Plaintiff suffers serious injury and sued the
Defendant for negligent. The court held that the damages should be reduced by 20% as a prudent man
would wear a seat belt unless there was exceptional circumstances.
Jones v Livox Quarries Ltd, the plaintiff was warned by the Defendant to not ride on the back of
traxcavator. However, he insisted on riding it. The Plaintiff suffers serious injury. The court held that
Since the plaintiff disobeyed his employer by riding on the back of traxcavator, which later resulted in the
plaintiff’s injury, the plaintiff was held to be contributory negligent.
Gough v Thorne, the court ruled that A very young child cannot be guilty of contributory negligence. An
older child may be; but it depends on the circumstances. A judge should only find a child guilty of
contributory negligence if he or she is of such an age as reasonably to be expected to take precautions for
his or her own safety. He or she is not to be found guilty unless he or she is blameworthy.
3. Illegality.
Basically, the plaintiff cannot sue the Defendant for negligent due to an act of illegality.
Pitts v Hunt The court held that since the plaintiff encouraged the defendant to do an illegal act, his
claim was defeated by the maxim ex turpi. An action cannot be founded on a bad cause