Remoteness of Damage | Law Notes


Negligence is one of those torts in which damage must be proved. Once a breach of duty has been established, the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue). You will understand what is meant by 'sufficiently closely connected' in the particular context of negligence after studying this chapter.

Causation and remoteness are the essential links between the breach of the obligation imposed by law and the damage. It is commonly said that causation is essentially factual and logical the question, but that remoteness is a legal question, based on policy considerations about the appropriate extent of a defendant's liability. In broad terms this is true, but Lord Hoffmann has recently stated that 'the rules laying down causal requirements are… creatures of the law' and that 'it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability' (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]).

1.1 Causation

Causation is relevant to all torts in which proof of damage is essential. The problem is usually discussed in detail in the context of negligence, but the principles apply more broadly, and some of the cases referred to in this section involve claims in other torts as well as in negligence. You must always remember to link the tort (i.e. the breach of duty in the case of negligence) and not merely the defendant to the damage. An example will illustrate the importance of this.
A baby has brain damage: it has recently been vaccinated. If there is a claim for compensation, it will always be necessary to establish (on scientific evidence) that the vaccine caused the damage. If the claim can be brought within a tort of strict liability, nothing more need to be proved in terms of causation.
This is not so if the claim is in negligence, e.g. alleging that a doctor in breach of the duty of care failed to carry out proper tests to discover whether the baby had an allergy to the vaccine. It will then be necessary, in addition to showing that the vaccine caused the damage, to show that the breach of duty caused the damage. If the proper tests carefully administered would not have revealed the allergy, then the baby would still have been damaged and the breach of duty would not be a cause of the brain damage.
You will find that the causation issue sometimes (though exceptionally) gives rise to difficult questions, but the underlying idea is very simple. We use the language of causation every day without much difficulty, and we understand that the language of causation is used in different ways in different contexts. We may, for instance, say, 'I was late for work to-day because the 7.30 train was cancelled'. Here we know that the cancellation made lateness inevitable. But we do not know for certain that we would have been on time if the train had been running. Something else might have happened to delay us. On the other hand, we often hear about research into the causes of disease. Advertisements for cigarettes may carry a warning that 'smoking
causes lung cancer', but we know that here there is no inevitability: many non-smokers develop cancer and many smokers do not. We need more information before we can talk of the cause of the disease in any particular sufferer. You should make use of your knowledge of the ordinary usage of the language of causation in analysing problems.
1.1.1 The basic rule
The basic rule may be stated positively or negatively. If the damage would still have occurred, even if the defendant had not broken the duty of care, then the breach did not cause the damage. If the damage would not have occurred but for the defendant's breach of duty, then the breach of duty is a cause of the damage. For this reason, the basic rule is often referred to as the 'but for test'. Its main purpose is to exclude things that have no bearing on the damage. It is for the claimant to show that the breach of duty was the cause of the damage, and not for the defendant to show that
the breach of duty was not the cause of the damage.
We know in a common-sense way that it is rarely possible to be absolutely certain about such matters, and the law does not demand such certainty. It is sufficient to show that on a balance of probabilities the breach was the cause of the damage, or that it is
more likely than not that the breach was a cause of the damage. In
principle, it is an 'all or nothing' question. If it is more probable than not that negligently administered drugs caused the claimant's
deafness, then the claimant recovers in full for the deafness. If it is not more probable than not, even if it is a possibility, then the claimant recovers nothing.
In many cases the causation issue raises no problems at all: this is particularly true where the defendant has been guilty of some positive wrongdoing, such as overtaking a vehicle at a blind corner or administering the wrong dosage of a drug. Usually, it is very clear whether or not the act has caused the damage. There is likely to be more difficult in those cases where the defendant's breach of duty consists of a failure to do something that should have been done. Here it is necessary to speculate about what would have happened if the defendant had not been guilty of this failure. There are several different situations to consider:
(i) There may be doubt about what the natural course of events would have been if the defendant had behaved properly.
For example, the defendant doctor failed to diagnose the claimant as having an illness in need of treatment. Was it so serious that the defendant would have died even if the proper diagnosis or treatment had been given? See: Barnett Kensington and Chelsea Hospital [1969] 1 QB 428.
The claimant fell overboard into the icy water. The defendant's rescue effort was inadequate. Would the claimant have perished in the cold water before even a competent rescuer could have saved her? See: The Ogopogo [1971] 2 Lloyd's 410.
(ii) There may be doubt about how the defendant would subsequently have behaved if he had done what he should have done in the performance of the duty.
Look again at Bolitho v City and Hackney Heath Authority [1998] AC 232 . You will see that the doctor in breach of her duty failed to attend a patient, but she successfully argued that the action she would in fact have taken if she had attended would not have been negligent (because it was in accordance with a respectable body of
professional opinion) and would not have saved the patient. The child would therefore still have been dead even if she had performed her duty by attending. Therefore her culpable failure to attend was not a cause of the death.
(iii) There may be doubt about how the claimant would subsequently have behaved if the defendant had done what should have been done.
The defendant doctor may have failed to warn the patient about the risks of treatment: would the patient have decided to have the treatment anyway? If so, the failure to warn cannot be a cause of the damage if one of the risks occurs. The defendant employers may have failed to provide safety equipment for their employees: would the deceased employee have used it if it had been provided? If not, then the failure to provide it was not the cause of the injuries. See: McWilliams Sir William Arrol [1962] 1 All ER 623.
This issue has recently been considered by the House of Lords in Chester v Afshar [2004] UKHL 41 [2005] 1 AC 134 where a majority of the House of Lords took a view very favourable to the claimant. You must address the policy reasons for this view. The surgeon had advised the claimant to undergo surgery but in breach of duty had failed to advise her of the risk. The claimant did not show that she would probably never have had the operation, but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on a particular day that she did have it. The House of Lords held that she had therefore established that the breach of duty was a cause of her injury. Notice however that the sort of injury was something that happened on very rare occasions for no very obvious reason. The result would surely have been different if
the injury had been due to some previously unknown peculiarity of the claimant, so that it might well have happened to her even if the operation had been postponed and performed on a different day.
Note that in cases (ii) and (iii) it is particularly important to scrutinise the evidence given by the defendant and (if living) the claimant because their view of how they would have behaved may be coloured by what has now happened. It may seem harsh that the claimant in McWilliams had to prove that the deceased would have worn the safety harness if it had been provided, but it should be noted that the evidence was in fact very strongly to the effect that it was highly unlikely that he would have done so.

1.1.2 Damages for loss of a chance
So far it has been assumed that we know what is meant by the damage. There is sometimes room for argument on this point. This is illustrated by Hotson v East Berkshire Area Health Authority [1987] AC 750.
Hotson injured his hip in a fall (no tort was involved). The hospital failed correctly to diagnose and treat his injury for some days. In due course, he suffered a wasting (necrosis) of the hip leading to permanent disability. This was caused by the original injury, but was it caused by the negligent failure to treat him immediately?
The judge (unusually) assessed the chances. There was a 25% chance that he would have recovered if treated properly, but a 75% chance that he would not. He and the Court of Appeal awarded him 25% of the damages that would have been payable if the hospital had caused the necrosis. The House of Lords disagreed and awarded him nothing (apart from a small sum for the pain suffered during the days of delay).
If the damage is the necrosis, this decision is in line with the normal rule described above and is similar to Barnett v Kensington and Chelsea Hospital, if it was possible to say immediately after the accident, 'Hotson's injuries are of such severity that he personally has only a 1 in 4 chance of avoiding necrosis'. An alternative argument is that, at that time, Hotson was a boy with an injured hip and also with a 1 in 4 chance of recovery. The hospital negligently destroyed his chance, and that chance had been worth something to him. The House of Lords refused to apply that analysis to the facts of Hotson's injury and applied the general principle described earlier in this chapter. The House did accept that the loss of a chance could sometimes be recoverable in
damages, but did not explain in what circumstances that would be
the case. A majority of the House of Lords in Gregg v Scott [2005] UKHL 2: [2005] 2 WLR 268 reaffirmed that the general approach in Hotson's case should be followed and declined to depart radically from its principles.
When then are damages for loss of a chance recoverable?

Sometimes this is allowed in breach of contract actions (Chaplin Hicks [1911] 2 KB 786). It is also clear that when the courts have identified an item of damage as being caused by tort, then the measure of damages (the amount of money awarded in compensation) reflects the loss of future chances. For instance, if the claimant has proved that the tort caused physical injuries leading to permanent unemployment, then the amount of money paid in compensation will be based on the chances of future
employment, and not on proof that on a balance of probabilities he would have had a particular career. A similar approach seems to
have been taken in Spring v Guardian Assurance plc [1995] 2 AC
996 (see details in Chapter 5), where Lord Lowry thought that the claimant would not have to prove that the negligent reference supplied to prospective employers caused him not to be appointed to a post, but that he would be compensated for the loss of a chance of future employment. See also Allied Maples v Simmons & Simmons [1995] 1 WLR 1602. In both cases, the loss was economic rather than physical damage. That may explain the difference. Another explanation may be that what was in question was how other people (e.g. the prospective employer in Spring) would have behaved, and there would be no evidence on this point.
It may be therefore that in cases under (iv) above the damage is properly to be regarded as the loss of a chance, and that it is not necessary to prove on a balance of probabilities that the other people would have behaved in a particular way.
The decision in Hotson is consistent with an earlier decision of the
Court of Appeal in Cutler v Vauxhall Motors [1970] 2 All ER 56. The defendants injured the claimant who as a result had an operation for varicose veins. He would, more likely than not, have required such an operation in a few years' time even if the injury had not occurred. Therefore the majority of the court held that the operation was not caused by the defendants' breach of duty.
Students often unthinkingly misapply this case. It can be relevant only where the damage is a 'one-off' event such as an operation from which the claimant fully recovers. If the breach of duty causes the claimant, for example, to lose a leg which would probably have had to be amputated in a few years anyway, the claimant is certainly entitled to damages at least for the additional years without a leg.

1.2 Causation: special problems: multiple causes
In a number of situations the application of the 'but for' test would lead to outcomes that would be absurd or arguably unjust. The courts have in some of these cases been prepared to abandon or
modify that test. There are many variations in the possible facts, and it is important that you analyse correctly and carefully the leading cases and any problems that you are asked to consider.
1.2.1 Two separate causes of the same damage
Suppose that David and Daniel acting independently at the same moment shoot Conrad, who dies instantly: either shot would have been fatal. Logically each assailant could say that he was not the cause of death, because, even if he had not been there, the other shot would still have killed Conrad. On this reasoning neither defendant would be liable. Such a result would be absurd. In such a case the court would hold that both David and Daniel were liable, leaving them to contest the matter between themselves. That situation is, of course, most implausible. What can and does occur is that two successive actions may independently bring about the same damage. This is associated with two important decisions of the House of Lords. These are often misunderstood by students and applied where they should not be. It is therefore important first to understand the situation in which it is appropriate to refer to them. The present problem arises where there are two unconnected events (one or both a tort), each of which would in the absence of the other have caused a particular item of damage. An example will make it clearer. Imagine a professional sporting star with a large income and valuable sponsorship deals. Let us call him Edward. In January Edward is injured in a road accident and loses both legs. Six months later in an entirely separate and unconnected event someone throws acid in his face and blinds him. Three months after that, you meet him and say, 'Hullo, Edward. Are you still playing football?' He replies, 'No, I am not, because…' How would you finish the sentence for him? Is it because he has no legs, or because he is blind?
On those facts both events were torts. Would it make a difference to the way in which you think you would finish the sentence if either Edwards's blindness or the loss of his legs was the result of a natural disease? The problem can also be presented in this way.
In the following diagram, the claimant was originally earning £40,000 per year. As a result of an accident he has to take a lighter job earning £15,000 per year. Six months later he suffers a further (unrelated) accident and is unable to work ever again.
1st event 2nd event

The damages in the box marked 1 are attributable only to the first the event, those in the box marked 2 only to the second event. The problem lies with the damages in the shaded area, since either the first or the second event would, in the absence of the other, have
brought about that damage. One thing is clear. If the first event is a natural occurrence such as a disease, then the tortfeasor responsible for the second event 'takes the victim as he finds him' i.e. as a person earning £15,000 per year and cannot be liable for the damages in the shaded area. But what if the first event was a tort and the claim is against that tortfeasor? Does the tortfeasor continue to be liable for the loss in the shaded area even after the occurrence of the second event, which would independently cause the same loss?
The House of Lords has considered this problem in Baker Willoughby [1970] AC 467 and Jobling v Associated Diaries Ltd [1982] AC 794. It is best to start with Jobling. He had been injured in an industrial accident and permanently disabled. Some years later, before damages had been assessed, he was found to be suffering from a disabling disease that rendered him unfit for work. The House decided that the defendant was not required to compensate for the losses after the onset of this disease. The House was critical of (but did not overrule) the earlier decision in Baker. Baker's leg had been permanently damaged in a road accident. He had to change his job and was shot by robbers (who were, of course, tortfeasors but were never found) and as a result, his leg was amputated. The House had held that the damage was not subsumed in the new tort, but the negligent motorist continued to be answerable for the damage to the leg (and its continuing economic and other consequences).
There would be an obvious harshness if Baker were to lose his damages because he was the victim of two torts and not just one, but it is not easy to formulate a principle explaining why Baker's claim was not extinguished, but Jobling's was. It is necessary to stress again that both cases were concerned with continuing liability for the consequences of the original injury and not with liability for the additional consequences of the second injury. It was not for instance argued that the defendant in Baker was liable for the amputation. We will consider that kind of situation later. Damages are assessed once and for all so that if they are calculated and the case disposed of by settlement or by litigation before the second event occurs, the assessment will not be reopened (see

1.2.2 Uncertainty of the facts
In the previous section, the facts were not in doubt. The problem was a logical one. In this and the next section, the problem is one of the uncertainties of the facts. Two or more people in breach of their duty of care cumulatively cause harmful fumes to afflict the claimant and cause the onset of a disease, i.e. the disease is one in which, the greater the exposure to the fumes, the worse the disease is likely to become. In such cases the court is likely to hold both defendants liable. It is held that it is sufficient to show that the
defendant's breach of duty materially contributed to the damage, and that it is not necessary to show that the defendant's fumes caused the damage.
This approach has been extended to situations where tortiously produced fumes have combined with non-tortiously produced fumes, at least where all the fumes came from the same source. See: Bonnington Castings Ltd v Wardlaw [1956] AC 613.
Now go back to the situation described at the start of Section 1.2.1, but vary the facts in one respect. Only one shot hits Conrad and the other misses, but it is impossible to tell which is which. He was, therefore, the victim of a tort, but it is impossible to say who the tortfeasor was. This situation arose in the Canadian case of Cook Lewis [1951] SCR 830, and the decision in effect was that both defendants should be liable unless either could show that his shot was not the fatal one. Here is another situation in which it seems wrong to deny the claimant recovery because in effect he was the victim of two torts and not one. After all, one defendant actually hit the claimant and the other by firing carelessly made it impossible to identify the killer.
This is one illustration of a difficult problem, which arises where:
(a) the defendant has been guilty of negligence
(b) there has been damage of a kind which it is known can be caused by the negligence of that kind, and
(c) there is no evidence as to whether in this case, the damage was
in fact, caused by the negligence.
This lack of proof maybe because something else happened at the
same time which obscures the position, or because medical science has not reached the point where it can be certain of the causation of the disease.
This has most recently been considered by the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. You must study this case carefully and identify the facts. The reasoning can then be tested against some important earlier cases that are discussed in the speeches.
This case illustrates a problem that has for long caused difficulty. The House surveys the way it has been dealt with in a large number of countries around the world and also reviews it historically as far back as the classical Roman jurists of the second century AD. Nevertheless, the House emphasises that it is deciding what should happen only on the precise facts of this case, and is not laying down universal rules. It is therefore vital to be clear about the crucial facts, and then to think about how many of these are present in other cases, and also to consider how the absence of one of these factors or the presence of others might lead to a different outcome. 
There are five speeches all reaching the same result. Lord Hutton's reasoning was however rather different from that of the other judges. The other speeches, though differing in detail, are very similar in approach. The House heard appeals arising out of three separate cases, all with identical facts. The claimants all suffered from a form of cancer undoubtedly caused by asbestos dust. The dust does not operate cumulatively as described in 1.2.2. The process by which the asbestos-caused the cancer was not entirely understood, but it might be that one fibre or group of fibres triggered cancer, perhaps some years later: if so, once the triggering had occurred, exposure to other fibres would not make matters any worse, and stopping the exposure to asbestos would not make matters any better. The claimants had all worked for more than one employer over many years. All the employers had in breach of their duty exposed the claimants to asbestos fibres. It was impossible to form any view about whose fibres had triggered cancer. The Court of Appeal held that none of the employers was liable because the claimants could not prove against any of them that their fibres had caused the cancer: the House of Lords held that they were all liable, so long as the evidence remained inconclusive.
You will also have to consider two other decisions of the House of
Lords analysed in Fairchild. These are McGhee v National Coal
Board [1972] 3 All ER 1008 and Wilsher v Essex Area Health Authority [1988] 1 AC 1074. The Court of Appeal decision in Wilsher has already been explained. The health authority had failed to detect that the catheter had been wrongly inserted and therefore the premature baby received too much oxygen. That was held to be negligent. The health authority did not ask the House of Lords to reverse that decision. It did, however, concentrate on the problem of causation. Excess oxygen can cause blindness in premature infants. It is however only one of several causes. Had it been the cause in the case of Wilsher? The House of Lords held that this had not been established on the balance of probabilities and that the case had to be retried in order that the court applying the proper balance of probabilities test could decide the matter.

The fundamental rule is that the tort must cause the damage, i.e. if the tort had not occurred the claimant would not be in the same position. This must be shown on a balance of probabilities. There are however difficult situations where there are competing causes and the fundamental rule has to be abandoned or modified in order to prevent injustice.
1.3 Remoteness: the basic rule
Even if the tort caused the damage, that is not the end of the story. A breach of duty may considerably change the course of subsequent events, but the defendant will not be liable for everything that can be traced back to the original wrongdoing. The
remoteness issue limits the extent of the defendant's liability. This too can be illustrated by our ordinary use of language.
Claudia travels to work in London: the only convenient way is by train from her local station. One day she finds that a train has been derailed outside the station and blocked the line. She therefore has to return home. During the morning an intruder breaks in and
shoots her in the leg. It would be natural for her to say, 'I was absent from work yesterday because my train was derailed.' But it would not be natural for her to say, 'I was shot in the leg yesterday because my train was derailed'. Yet it is true that, if there had been no derailment, she would not have been at home and would not have been shot. There is however a feeling that the link between the shooting and the derailment is not close enough. In legal language, the shooting is too remote a consequence of the derailment.
Like causation, the remoteness issue is relevant to all torts in which
proof of damage is essential, or in which the claimant is seeking compensation for specific losses. The test of what consequences are too remote, however, is not formulated in the same way in all torts.
In every tort involving damage, you will have to learn what the test of remoteness of damage is. Later in this chapter we will consider the way in which the test is formulated in the tort of negligence. The main purpose of the rules of causation is to exclude those things that are not the cause of the damage. If the same damage would have been suffered even if there had been no breach of a duty of care, then the claimant loses. But the opposite is not true. Even if the damage would not have been suffered without the breach of duty (i.e. the breach of duty is a cause of the damage), it does not follow that the defendant is liable. The breach of duty may
initiate a whole chain of further events – but some of these will be
treated as too 'remote' from the original negligence for it to be
appropriate to hold the defendant answerable for those distant
At one time the test of remoteness of damage in the tort of
negligence was said to be whether the damage was the
the consequence of the breach of duty. If it was merely indirect,
particularly if there was something which 'broke the chain of
causation', then the defendant was not liable. This test was
particularly associated with the decision of the Court of Appeal in
Re Polemis
[1921] 3 KB 560.
The acceptable test: foreseeable consequences
Since 1964 the accepted test has been that the defendant is liable
for damage only if it was the
foreseeable consequence of the breach
of duty. The Privy Council so decided in
The Wagon Mound (No 1)
[1961] 1 AC 388.
Furnace oil had been negligently spilled from a ship in Sydney
Harbour. The oil had been carried to nearby docks where welding
operations were in progress. A piece of cotton waste caught fire, the
temperature was raised sufficiently to ignite the oil and the
resulting fire destroyed the docks and ships moored there. The New
South Wales courts, applying the English rule of the time, held that
(on the evidence presented) the great fire was not foreseeable, but
that it was the direct consequence of the spillage and therefore the
defendants were liable. The Privy Council disagreed. The
defendants should be liable only for what could reasonably have
been foreseen. The Privy Council gave two reasons. A test of
foreseeability was (a) simpler and (b) more just, because it was
unfair to hold a careless defendant liable for more than could have
been foreseen when and if he thought about the consequences
before committing the act of negligence. 'It is hoped that the law
will thereby be simplified and that, in some cases at least, palpable
injustice will be avoided.' (per Viscount Simonds)

1.4 Qualifications of the basic test
Viscount Simonds certainly thought that the substitution of the new
the test would not affect the outcome of many cases. Foresight is not a
a term that can be applied mechanically. The way it is used can be
understood only by examining a selection of cases in which it has
been considered. A very narrow test would mean that the
the defendant would be liable only if the very thing which happened
was what would be expected and therefore foreseen: a very wide
the interpretation would suggest that the defendant would be liable for
everything that you could imagine happening unless it was utterly
far-fetched. The approach in the cases decided since 1961 falls
between these two extremes, but is probably closer to the latter.
The following are reasons why the effect has not been great:
(a) How much is foreseeable?
The significance of the new test was considered by the House of
Lords in
Hughes v Lord Advocate [1963] AC 837.
More recently the House has again considered the problem and
analysed both the
Wagon Mound (No 1) and Hughes v Lord Advocate
Jolley v Sutton London Borough Council [2000] 1 WLR 1082. This  
is, in fact, a case based on the Occupiers' Liability Acts (see Chapter
6), but the common law principles were discussed and applied.
These cases show that it is not necessary to foresee precisely what
happened. In particular, it is not necessary to foresee either (i) the
severity of the damage or (ii) the precise manner in which it
occurred. It is sufficient if the injury is of the type that could be
foreseen, even it came about in an unexpected way or was much
more severe than expected.
This can be illustrated by the facts of
Jolley. The defendant council
had in breach of duty failed after several months to remove a
derelict cabin cruiser that had been abandoned on its land. The
the issue was whether the council could foresee only that small
children would be injured by clambering over it, or whether (as
actually happened) teenaged children would be injured by jacking
it up and working underneath it in order to make it seaworthy. This
is, in the end, a matter of judgment – the Court of Appeal
unanimously held that the accident was not foreseeable, the House
of Lords unanimously held that it was.
The following case also illustrates the difficulty in drawing the line:
v Turner Metal Manufacturing Company [1964] 1 QB.
(b) The egg-shell skull cases
Before 1961 the courts had recognised what was called the 'eggshell
skull' cases, and, after some hesitation it has been held that
the principle of these cases had survived the introduction of the
new rule for remoteness.
This looks like the issue discussed in Section 3.2.1 and the case of
v London Electricity Board) but must be sharply distinguished
from it. This is a common source of confusion for students. In the
kind of case the defendants had behaved in a way that
presented no danger to most people: only a person with a particular
susceptibility would have been in any real danger of injury at all.
Our present rule may be expressed this way: where (i) the defendant is in breach of duty to the claimant
and (ii) it was foreseeable that the claimant would suffer some
physical injury
and (iii) the particular claimant has a particular susceptibility
or abnormality and as a result suffers more serious injury or
injury of a different type from that which was foreseen, then
the defendant is liable for that further injury.
The obvious situation is this: the defendant has carelessly struck the
claimant on the head. It is foreseeable that the claimant will suffer
cuts and/or bruises. The particular claimant however has an
exceptionally thin skull (an 'egg-shell' skull) and sustains a
fractured skill and serious brain damage. That was not foreseeable,
but the defendant is still liable for it.
There is a good example in
Robinson v Post Office [1974] 2 All ER
Notice that this case involves both a true causation point and an
egg-shell skull point. The defendant was liable for the negligent
grazing of the claimant's shin. The claimant had an unforeseeable
allergy. The hospital administered an antitetanus injection without
carrying out the appropriate tests. Robinson had an allergy to the
injection and the reaction caused brain damage. There were two
elements to the decision:
The evidence was that, even if the proper tests had been
carried out, the allergy would not have been detected.
Therefore the hospital's negligence was not a cause of the
brain damage (i.e. the 'but for' test (see 4.1.1) was not
Once the hospital's negligence was out of the way, the allergy
was the equivalent of an egg-shell skull and, though it was
unforeseeable, the defendant was nevertheless liable for it.
(c) Financial weaknesses
What happens if the claimant has a financial rather than a physical
If the defendant injures a claimant who happens, however
unforeseeably, to be a leading soccer star whose career is ruined,
then the defendant has, as with the egg-shell skull cases, 'to take
the victim as he finds him', i.e. to compensate the claimant for his
actual loss. What has to be foreseen is physical injuries that resulted in loss of employment. Once that has happened, the
defendant has to compensate for the actual loss suffered.
The position used to be less clear where the claimant suffers
additional damage because of poverty. The leading case was
Liesbosch Dredger
v SS Edison [1933] AC 448 and many attempts
have been made to explain and distinguish it. The House of Lords
has however now decided that dicta in the Liesbosch case should
not be followed.
See also
Lagden v O'Connor [2003] UKHL 64 [2004] 1 All ER 277
[see from [45]-[62]).

1.5 New and intervening cause
1.5.1 General
A particular problem of remoteness arises in the following
D negligently collides with C's car and injures him. On the way to
the hospital the ambulance driver X crashes into a tree and causes
C severe injuries. Or at the hospital a nurse Y administers to C the
wrong dose of the drug and causes brain damage. Or a patient Z
goes berserk and stabs C repeatedly. Is D liable not only for the
original injuries but also for the more serious later injuries caused
by X, Y or Z? This is the problem of the new and intervening cause
(in the cases this is often expressed in Latin as
nova causa
or as novus actus interveniens). Clearly if it had not
been for D's negligence C would not have been in the ambulance or
in the hospital and would not have suffered further injuries.
Therefore they were in a factual sense caused by the original
negligence: but were they too remote?
A word of warning: students often find it difficult to distinguish
between this problem and that described in 4.2.1. It is now possible
to make the distinction more fully. Think of the facts in the last
paragraph. C may have been a professional footballer. The injuries
sustained in the original car accident may have ended his career.
We may be interested in knowing whether D continues to be liable
for those consequences even after the stabbing which would
independently have destroyed his career. That is the problem dealt
with in 1.2.1 and associated with cases such as
Baker v Willoughby.
The problem now being considered arises if it argued that D is also
liable for the additional consequences resulting from the stabbing.
The triangular situation just described should remind you of the
case of
Dorset Yacht Co v Home Office [1970] (see Chapter 3). That
case is usually analysed in terms of whether the borstal officers
owed a duty of care to the owners of the yacht. Lord Reid reached
the same conclusion by considering whether the acts of the boys
were a new and intervening cause and deciding that they were not.
He held that the original tortfeasor could be liable for intervening
human conduct, whether that was criminal, negligent or innocent,
but only if it was 'something very likely to happen: a mere
the foreseeable possibility was not enough'. That phrase has been
considered in a number of later cases.
C (injured) X (intervening
D (negligent)
1.5.2 Intervening criminal conduct
The following cases are relevant:
Lamb v Camden London Borough
[1981] QB 625; Perl v Camden London Borough Council
[1984] QB 342;
Smith v Littlewoods Ltd [1987] AC 241.
In all these cases the claim failed. The
Littlewoods case is
particularly instructive: note that there are two leading speeches,
those of Lord Mackay of Clashfern and Lord Goff of Chieveley, but
they followed different lines of reasoning. Lord Goff's will be
considered under the heading of liability for omissions (Section
5.3). Lord Mackay's reasoning relates more closely to the issues
discussed in this chapter.
Sometimes intervening criminal conduct, even though surprising, is
not too remote if it is closely related to the risk posed by the
defendant's conduct:
Al-Kandari v Brown [1988] QB 665.

1.5.3 Intervening negligent conduct
There could be many situations in which the subsequent
carelessness of some third party has caused new injuries. One
example is
Knightley v Johns [1982] 1 WLR 399.
The most likely situation relates to medical treatment administered
to the victim.
Cindy is injured by the negligence of Daphne. She is taken to
hospital and as the result of her treatment her injuries are worse
than they were otherwise expected to be. Daphne has brought
about the need for hospital care. Does that mean that she has to be
answerable in law for the further medical complications or is she
entitled to assume that Cindy will receive proper care and pass on
responsibility to the hospital for the aggravation of the injuries?
The law is not entirely separated, but the following would seem to
be relevant distinctions.
(a) The hospital is not negligent, or, as in
Robinson v Post Office
(see 1.4) the hospital's negligence fails the 'but for' test (see 1.1). In
that case Daphne is likely to be liable for all the subsequent
(b) Gross negligence by the hospital unconnected with the initial
injury (e.g. amputating the wrong leg). The implication of
Post Office is that in such cases the defendant would not be liable
for the aggravation of the injuries.
(c) Where the hospital's negligence falls between those two, it is
likely that it would not break the chain of causation, but that both
the original defendant and the hospital would be jointly liable for
the consequences. There is not conclusive authority on that point.
Note: This is a striking example of a case
in which the Court of Appeal went
through each of the elements of the
negligence action, i.e. duty, breach and
remoteness, one after the other.

1.5.4 Intervening conduct by the claimant
So far it has been assumed that the new and intervening acts were
perpetrated by a third party: sometimes, however, subsequent
conduct by the claimant is in issue. Where the defendant is being
asked to take responsibility for the claimant's own failures, there
are several conceptual mechanisms to be considered.
(i) Did the defendant owe a duty to protect the claimant against the
claimant's own stupidity? See the discussion in Section 3.2.
(ii) Did the claimant's own conduct break the chain of causation? It
is certainly likely that, where the defendant had a duty to protect
the claimant against an identified risk (e.g. that the claimant would
commit suicide), then the risk, if it materialises, cannot be a new
and intervening cause. (See the
Reeves case below.)
(iii) Are any of the defences of voluntary assumption of risk,
contributory negligence or illegality available so as to defeat the
claim or reduce the damages available?
Examples of where the claimant's subsequent actions are careless
McKew v Holland & Hannen & Cubitts [1969] 3 All ER 162;
v Cyril Lord Carpets [1969] 3 All ER 1006.
Examples of where the claimant's subsequent actions are deliberate
Kirkham v Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of Police for the Metropolis

For New Case on the Remoteness of Damage See Post 

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