Negligence - Legal Causation
Introduction
Distinction between Factual and Legal Causation:
• Factual Causation = demonstrating that D’s breach of duty is causally related to C’s actional damage. It doesn’t
have to be the only, or main, cause. Factual causation is just about filtering out irrelevant causes to C’s harm
suffered.
• Legal Causation = this is assessing whether the factual connection is strong enough, in terms of moral fairness, to
warrant the burden of responsibility on D. Multi-factual causation needs to be narrowed down by applying legal
causation.
Legal Causation
Legal Causation: Remoteness and New Intervening Acts (NIA)
Legal causation is concerned with testing how strong the factual link is and whether it warrants the fair imposition of
liability. Are there any other factors that can sever the causal link? Considerations include fairness, blameworthiness
and policy.
Terminology:
• 2nd stage of causation test = legal causation or textbooks may call it ‘remoteness’.
1. Remoteness
Remoteness: The Wagon Mound test applied to test for reasonable foreseeability of the type of harm
Concerned with trying to ensure proportion between the degree of D’s fault and consequences with imposing liability.
Looks at cases were D’s fault was minor and if liability was imposed, it would be a huge burden on them. Look at
outside forces that might mean it is unfair for D to take the full burden. If courts find the harm caused by D’s
negligence is so unexpected that nobody could have predicted it, it is not fair to make D liable for his fault. In other
words, if the harm is too remote to be attributable to D to satisfy legal causation, the harm C suffers cannot be too
remote from D’s breach of duty. It is defendants who will have to satisfy this.
➢ Overtime, this test has become harsher on defendants and kinder to claimants, which contradicts its purpose.
Remoteness and the ‘thin skull’ rule:
• The Wagon Mound (No.1) [1961] = this case establishes that the test for causation is one of reasonable
foreseeability of the type of harm. ‘Was the kind of damage suffered by the C reasonably foreseeable at the time
the breach occurs?’ Only the type of damage must be foreseeable, not the extent.
o Was the type of harm C suffered reasonably foreseeable when D breaches his duty? D must show that the
harm was unexpected and that is too remote.
o In this case, the privy council thought that the Re Polemis test was too harsh and were concerned about
cases where D’s fault was very minor. Under common conscious, the ordinary person would not expect D to
take responsibility for such unpredictable and disproportionate consequences.
o E.g. Negligent Driving = Foreseeable Risk of Physical Injury = Liable for All Physical Consequences.
Facts of case:
o D’s in breach of duty of care discharged oil from their ship into the harbour and left. C’s were owners of a
wharf in the harbour, at the time, they were welding when they noticed the oil. After reassurance that the oil
wouldn’t ignite, they carried on working. The oil did catch on fire due to cotton being in the water. A huge fire
destroyed part of the harbour. C’s sued D for dame to wharf arguing if they hadn’t discharged the oil, no fire
would have occurred.
o Under old Polemis approach, D would have been held liable for all the harm caused which the courts though
was unforeseeable. Therefore, under the new rules, the damages has to be a certain type that is reasonably
foreseeable for D to be liable. In this case, the harm had was too remote as damage by fire was not
foreseeable.
o Held that nobody knew the cotton waste would ignite the oil, thus no foreseeability, thus the harm was too
remote.
Introduction
Distinction between Factual and Legal Causation:
• Factual Causation = demonstrating that D’s breach of duty is causally related to C’s actional damage. It doesn’t
have to be the only, or main, cause. Factual causation is just about filtering out irrelevant causes to C’s harm
suffered.
• Legal Causation = this is assessing whether the factual connection is strong enough, in terms of moral fairness, to
warrant the burden of responsibility on D. Multi-factual causation needs to be narrowed down by applying legal
causation.
Legal Causation
Legal Causation: Remoteness and New Intervening Acts (NIA)
Legal causation is concerned with testing how strong the factual link is and whether it warrants the fair imposition of
liability. Are there any other factors that can sever the causal link? Considerations include fairness, blameworthiness
and policy.
Terminology:
• 2nd stage of causation test = legal causation or textbooks may call it ‘remoteness’.
1. Remoteness
Remoteness: The Wagon Mound test applied to test for reasonable foreseeability of the type of harm
Concerned with trying to ensure proportion between the degree of D’s fault and consequences with imposing liability.
Looks at cases were D’s fault was minor and if liability was imposed, it would be a huge burden on them. Look at
outside forces that might mean it is unfair for D to take the full burden. If courts find the harm caused by D’s
negligence is so unexpected that nobody could have predicted it, it is not fair to make D liable for his fault. In other
words, if the harm is too remote to be attributable to D to satisfy legal causation, the harm C suffers cannot be too
remote from D’s breach of duty. It is defendants who will have to satisfy this.
➢ Overtime, this test has become harsher on defendants and kinder to claimants, which contradicts its purpose.
Remoteness and the ‘thin skull’ rule:
• The Wagon Mound (No.1) [1961] = this case establishes that the test for causation is one of reasonable
foreseeability of the type of harm. ‘Was the kind of damage suffered by the C reasonably foreseeable at the time
the breach occurs?’ Only the type of damage must be foreseeable, not the extent.
o Was the type of harm C suffered reasonably foreseeable when D breaches his duty? D must show that the
harm was unexpected and that is too remote.
o In this case, the privy council thought that the Re Polemis test was too harsh and were concerned about
cases where D’s fault was very minor. Under common conscious, the ordinary person would not expect D to
take responsibility for such unpredictable and disproportionate consequences.
o E.g. Negligent Driving = Foreseeable Risk of Physical Injury = Liable for All Physical Consequences.
Facts of case:
o D’s in breach of duty of care discharged oil from their ship into the harbour and left. C’s were owners of a
wharf in the harbour, at the time, they were welding when they noticed the oil. After reassurance that the oil
wouldn’t ignite, they carried on working. The oil did catch on fire due to cotton being in the water. A huge fire
destroyed part of the harbour. C’s sued D for dame to wharf arguing if they hadn’t discharged the oil, no fire
would have occurred.
o Under old Polemis approach, D would have been held liable for all the harm caused which the courts though
was unforeseeable. Therefore, under the new rules, the damages has to be a certain type that is reasonably
foreseeable for D to be liable. In this case, the harm had was too remote as damage by fire was not
foreseeable.
o Held that nobody knew the cotton waste would ignite the oil, thus no foreseeability, thus the harm was too
remote.
