Legal causation
Introduction
To determine if there is the necessary link between a breach of duty by a defendant and
damage suffered by a claimant, two points must be considered:
(a) Factual causation; and
(b) Legal causation.
Factual causation deals with establishing the link between the breach and the damage,
whereas legal causation involves considering whether there are any grounds upon which
the link should be regarded as having been broken.
Factual consideration is not considered in this element. However, once factual causation
has been established, it is then necessary to see whether, as a matter of law, the
defendant may be held liable. The defendant is not liable for absolutely everything that
follows from his breach. A line has to be drawn and certain subsequent events that
occur after the breach may break the chain of causation. This is the principle of novus
actus interveniens ie an intervening act. Whether a subsequent event breaks the chain or
not will depend on the nature of what occurs.
There are three types of intervening or novus actus events to consider
Acts of God or Acts of third Acts of the
natural events parties claimant
Acts of God or natural events
An act of God breaks the chain of causation if it is some exceptional natural event.
Natural events can include, for example, being struck by lightning, drowning in a flood, or
the onset of disease.
In Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292 the
claimant’s vessel was damaged in 1941 in a collision with the defendant’s ship, for which
the defendant admitted liability. The repairs were not immediately necessary, and the
vessel was taken to the US for repair. On the way the vessel suffered heavy storm
damage necessitating immediate repairs. The initial repairs took 10 days to fix, the storm
damage 51 days. The defendant was liable for damages arising from the first collision but
not the storm damage; the storm was held to be a novus actus interveniens.
Natural events will not break the chain of causation if they could have been foreseen and
the defendant should have taken them into account as events that were likely to happen.
There are three types of intervening or novus actus events to consider
Acts of God or Acts of third Acts of the
natural events parties claimant
Acts of third parties
Where the subsequent event is the act of a third party, the courts have viewed it as
breaking the chain of causation if it was highly unforeseeable (something that was very
unlikely to happen as a result of the defendant’s negligence).
In Knightley v Johns [1982] 1 WLR 349, the first defendant caused a road traffic accident.
Subsequently, a police inspector negligently handled traffic control following the accident.
This negligence led to the claimant, a police officer, being killed (he had been ordered to
travel down a tunnel against the flow of oncoming traffic). The first defendant successfully
argued that the negligent handling by the police inspector broke the chain of causation
between his negligence and the death of the officer. The police inspector's actions were
highly unforeseeable.
The effect of a novus actus interveniens
The effect of a novus actus is, as we have mentioned, that it breaks the chain of
causation. The defendant will still be responsible for any loss before the novus actus
event, but will not be responsible for any loss after it.
Let us consider Knightley v Johns as an example.
Novus actus
Chain of events
This Policeman
Policeman
Defendant causes ordered to
Police hit by car
crashes his injuries to travel wrong
attend. and suffers
car his way down the
injury
passengers tunnel
The defendant is The defendant is not
liable for these liable for these
losses (eg the injury losses (eg the injury
to the passengers) to the policeman)
The same principle applies for all types of novus actus interveniens.
If the third party has acted instinctively (as in 'the heat of the moment'), then there will be
no break in the chain of causation (Scott v Shepherd (1773) 2 Wm.BC.892).
As a matter of policy, the courts are also reluctant to hold that medical treatment breaks
the chain of causation. When a defendant causes injury, he takes the risk that the
claimant may not respond well to medical treatment or that the medical treatment may
not be perfect. The medical treatment will not break the chain unless it is so gross and
egregious as to be unforeseeable.
In Robinson v The Post Office [1974] 2 All ER 737 the claimant was injured through the
defendant's negligence and was given an anti-tetanus injection, to which he proved
allergic (causing the claimant to suffer to a greater extent than he otherwise would have
done). The doctor should have carried out an allergy test before administering the anti-
tetanus injection. This did not break the chain of causation as it was not regarded as
'palpably wrong' (and would not have been necessary had it not been for the defendant's
negligence in the first place). The doctor's actions were foreseeable. Moreover, the
negligent administration of the anti-tetanus injection was not a 'but for' cause of the
claimant's injury (since it would still have been administered even if the doctor had done
an allergy test first) so it could not break the chain of causation. The defendant was
therefore liable for the claimant's initial injuries and the extent to which they were made
worse by the doctor's subsequent actions.
There are three types of intervening or novus actus events to consider
Acts of God or Acts of third Acts of the
natural events parties claimant
Acts of the claimant
Sometimes, the courts will be required to consider whether the claimant's own actions
break the chain of causation. There is a balance to be struck between allowing claimants
to lead their own lives free from criticism and imposing too onerous a liability on
defendants.
The legal test for an act of the claimant breaking the chain of causation is that the act
must be highly unreasonable (more than mere unreasonable conduct). It is rare for the
claimant’s unreasonable behavior to break the chain of causation as this would normally
be dealt with under the defence of contributory negligence. This produces a fairer result,
whereby the defendant is still liable for the claimant's loss, but the claimant's damages
are reduced to reflect the extent to which they contributed to their loss. Contributory
negligence is not considered in detail in this element.
Acts of claimant: comparison of case law
In McKew v Holland & Hanmen & Cubitts In Wieland v Cyril Lord Carpets [1969] as
(Scotland) Ltd [1969] 3 All ER 1621 the a result of the defendant’s negligence, the
claimant suffered a leg injury at work due claimant had to wear a neck brace. This
to his employer’s negligence, which restricted her ability to use her glasses
resulted in stiffness and impaired mobility. properly with the result that she fell down
Subsequently he went to inspect a flat some stairs and injured her ankle. The
which could only be accessed by a steep court found that the claimant had been as
staircase without a handrail. As he was careful as she could (she had help from
going down the stairs his leg buckled, he her son when descending the stairs) and
fell down and broke his ankle. The her actions did not break the chain. The
claimant argued that the defendant should defendant was therefore liable for her
be liable for the broken ankle as it was an ankle injury.
extension of the original injury. The House
of Lords rejected his claim; he had acted
negligently (ie very unreasonably) and that
broke the chain of causation.
A helpful case on this issue is Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404.
Due to the defendant’s negligence, the claimant had a prosthetic leg. He failed to secure
his prosthetic leg when he stopped to refuel his car. He fell over, making his injuries even
worse and was confined to a wheelchair. The Court of Appeal found that the case was
not like McKew in that Spencer had not acted so unreasonably that he had broken the
chain of causation; contributory negligence was more appropriate.
Lord Justice Sedley stated that the question of where to halt liability is governed, overall,
by the concept of fairness:
Fairness, baldly stated, might be thought to take things little further than
reasonableness. But what it does is acknowledge that a succession of
consequences which in fact and in logic is infinite will be halted by the law when
it becomes unfair to let it continue. In relation to tortious liability for personal
injury, this point is reached when (though not only when) the claimant suffers a
further injury which, while it would not have happened without the initial injury,
has been in substance brought about by the claimant and not the tortfeasor.
In Emeh v Kensington and Chelsea Health Authority [1985] QB 1012, the defendants
negligently performed a sterilisation operation on the claimant who later fell pregnant and
refused to have an abortion. She sued for the cost of bringing up her child. The
defendants argued that her refusal to have an abortion broke the chain of causation. The
court held that the claimant had not acted unreasonably and, therefore, her refusal did
not break the chain. Note that following McFarlane v Tayside Health Authority [2000] 2
AC 59, so-called 'wrongful life' claims such as Emeh have been severely restricted and it
is unlikely that a claim resulting from the birth of a healthy baby following a failed
sterilisation would succeed if it were to be brought today. However, in McFarlane, all five
Law Lords confirmed that the decision of a mother not to undergo a termination of a
pregnancy could not amount to a novus actus breaking the chain of causation.
The actions of the claimant will not be treated as a novus actus where the duty of care on
the defendant requires them specifically to prevent the claimant from taking such an
action. In Reeves v MPC [2000] 1 AC 360, the House of Lords decided that the
Metropolitan Police were under a duty to ensure that a prisoner, who was a known
suicide risk, did not take his own life while he was in their custody. As a result of failings
by the custody officers, the prisoner was able to kill himself. The House of Lords held that
an argument that the prisoner's action amounted to a novus actus would, in effect,
remove the impact of imposing the duty of care on the defendant. Thus the argument was
not successful.
The effect of the suicide of the victim was also considered in Corr v IBC Vehicles [2008] 2
WLR 499. Unlike Reeves, the duty of care owed by the defendant in this case did not
relate specifically to a responsibility to prevent the claimant's suicide. Mr Corr suffered a
severe head injury in an accident at work. This not only caused physical injuries but also
led to significant psychological symptoms, including post-traumatic stress disorder
(PTSD) and depression. Six years after the accident, he killed himself. Defence counsel
argued that, except where the defendant had a specific responsibility to prevent the
claimant from actively harming himself, the act of the injured person in taking his own
life would amount to a novus actus unless he or she was legally insane and therefore not
in control of his actions. The House of Lords rejected this approach.
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 [per Lord Bingham].
Summary
• Legal causation involves considering whether there are any grounds upon which the
link between breach and loss should be regarded as having been broken.
• The defendant is not liable for absolutely everything that follows from his breach. A
line has to be drawn and certain subsequent events that occur after the breach may
break the chain of causation. This is the principle of novus actus interveniens.
• There are three types of novus actus interveniens; acts of God, acts of third parties
and acts of claimant.
• Acts of God will break the chain of causation if they are some exceptional natural
event.
• Acts of third parties will break the chain of causation if they are highly unforeseeable
(something very unlikely to happen as a result of the defendant’s negligence).
• If the act of third party is medical negligence, this will only break the chain of causation
if it is so gross and egregious as to be unforeseeable.
• Acts of claimant will break the chain of causation if they are highly unreasonable
(more than mere unreasonable conduct). It is rare for the claimant’s unreasonable
behavior to break the chain of causation as this would normally be dealt with under
the defence of contributory negligence.
