LAWS1113 Lecture 10

Negligence: Causation & Remoteness

Causation – General

  • Need to establish causal link between wrong and harm
  • Legal responsibility needs a definitive answer regarding liability
  • CLA still preserves factual causation and scope of liability (aka remoteness)
  • Value judgements are required – “should the defendant be liable for x?”

What is a legal “causative” factor?

  • “The one thing that made the difference”
  • “but for” the factor, the accident would not have occurred
  • Barnett – arsenic poisoning would have been fatal anyway, so negligence was not a legal causative factor
  • March v Stramare – “but-for” the driver being drunk and “but-for” the truck being illegally parked, the accident would not have happened – 2 causative factors, ergo 70/30 split
  • Statements by plaintiff regarding “what they would have done” are not admissible under the CLA, must be determined independently
  • Standard of proof – burden is on the plaintiff to prove that the event was caused by the defendant, and that it happened the way they claim
  • In limited (particularly medical) cases, exposure to the risk/increasing the risk is considered to materially contribute, even though it can be impossible to identify that it directly caused the damage
  • Tubet v Gett – “loss of chance to avoid” requires proving that it had a greater than 50% chance of being avoided (not applicable to personal injury) – probably due to a policy decision to not make doctors practice even more defensive medicine

Attributive causation

  • Goal is to attribute responsibility to particular events/actions
  • More than one cause can be used as “but-for” legal causes
  • Killing a terminal patient will not be considered to have caused the death itself, merely accelerated it – only liable for the acceleration
  • In the case of additional sufficient causes, where either would have been sufficient to cause the injury, both causes are considered liable – can sue both
  • Jobling v Associated Dairies – when a later natural condition subsumes damage caused by the defendant, they are no longer liable
  • If 2 wrongful acts occur, with one subsuming the other, both ARE still liable (as per Baker v Willoughby) but possibly not in Australia
  • Nilon v Bezzina – attempt to appeal claiming that the 2nd car accident subsumed the spinal damage suffered in the first, was held to have contributed separate spinal damage

Intervening Causes (Novus Actus Interveniens)

  • “severing of the causal chain by a third party”
  • If action was foreseeable, it cannot be an intervening act (Chapman v Hearse)
  • If not foreseeable, especially if criminal, it can be considered to have severed the causal chain, after which the defendant cannot be liable for anything that occurs
  • First party intervention – plaintiff is also negligent – severs even if it was foreseeable
  • If first party actions are ‘unreasonable’, there is no further responsibility – disclaimer: suicide is normally unreasonable, but committing suicide while a suicide watch is in place does not break the causal chain, as it is clearly foreseeable


  • Only responsible for events that are “reasonably foreseeable”
  • Type of harm needs to be foreseeable, exact method of harm need not be
  • Have to take the victim as you find him (no hypersensitivity in negligence) – aka. “thin skull rule”

Relevant Cases

Barnett v Chelsea & Kensington HMC: If identical damage would have occurred regardless of a breach of duty, no negligence occurred (but-for test). Arsenic poisoning would have been fatal regardless.

March v Stramare: If multiple breaches of duty were required to cause an event, both factors are considered causative and both will be liable. Drunk driver and a negligently parked truck.

Fairchild v Glenhaven Funeral Services: In the case of diseases where causation is difficult, materially contributing factors can sometimes be considered a legal cause. Asbestos related cancer when plaintiff was exposed on multiple times by different employers

Tabet v Gett: Loss of a chance of a successful procedure is only negligence if the chance would have been greater than 50% (balance of probabilities) if no negligence had occurred. No CT scan increased the chance of brain damage, but did not cause it.

Jobling v Associated Dairies: If a natural cause later subsumes damage caused by a negligent act, the negligent party ceases to be liable from that point on. Spinal damage caused at work was subsumed by a natural spinal conditional 4 years later.

Baker v Willoughby: If a second tortious offense subsumes damage caused by a negligent act, the negligent party remains liable. Leg injured in car accident then later shot by robbers – had to be removed. Note: This may not be the case in Australia.

Nilon v Bezzina: If a second tortious offense is held to have caused distinct damage to the first, then both parties remain liable for all damage caused by their particular offenses. Successive car accidents.

Chapman v Hearse: If an action is a reasonably foreseeable consequence of negligence (eg. Someone having to come to your rescue) you are liable for any damage suffered as a result of that consequence.

Lamb v Camden LBC: Damage must be a reasonably foreseeable consequence of the breach to be considered caused by the breach. Damage caused by flooding was considered consequential, damage caused by squatters during the repair period was held not to be.

McKew v Holland, Hannen & Cubitts: Unreasonable actions on the part of the plaintiff serve to break the causal chain. Choosing to descend a steep staircase without assistance after having her leg negligently damaged was sufficiently unreasonable that the further damage that suffered was considered independent of the original negligent act.

Haber v Walker: An unreasonable act that was nonetheless a foreseeable consequence of a negligent act does not break the causal chain. Plaintiff suffered depression and committed suicide as a direct result of injuries caused by a driver’s negligence.

Reeves v Metropolitan Police Commissioner: Unreasonable actions on the part of the plaintiff can still engender liability if the defendant has a duty to prevent that specific action. A man killed himself while under police guard/suicide watch, was held the police had a duty to prevent it that they had failed in, causing his death.

The Wagon Mound (No 1): The consequence must be a reasonably foreseeable one for liability to attach. Oil that cannot burn except when exposed to very high temperatures was vented into the harbour, where a rag floating in it caught fire, eventually setting fire to the oil – was held not to be reasonably foreseeable.

Hughes v Lord Advocate: Only the general type of damage need be foreseeable, not the specific circumstances. If fire damage was foreseeable due to the lit lamps, then one of the lamps cracking and exploding after falling down the manhole was not too remote or distinct.

Smith v Leech Brain: In negligence claims for personal injury, you must take your victim as you find them. If they suffer additional harm due to a unique personal weakness, you are still liable for the entirety of their injury. (“thin skull rule”). Minor injury caused the plaintiff to contract fatal cancer and die – held responsible for death.

Relevant Statute sections of the CLA

s11:(1) For an act to be considered a cause, it must be a necessary condition (but-for) and appropriate to hold the defendant liable for it (remoteness)
(2) If the but-for test is insufficient, a common-sense approach should be used
(3) When deciding what would have happened if the breach hadn’t occurred, you cannot take the plaintiff at their word unless their claim is against their own interests.
(4) Must consider why the defendant should be held responsible

s12: Onus of proof always falls on the plaintiff except under exceptional circumstances.