Once it has been shown that a defendant owed the claimant a duty to take care and was in breach of that duty, liability can still be avoided if it can be shown that the breach did not cause the damage, or that the damage was too remote a consequence of the breach. ); this determines the existence of liability ̶ Remoteness: defines the extent (scope) of liability o Because causation test (‘but for’) is easily satisfied even in absurd circumstances (think of the simultaneous shooting case). On one end of the spectrum, the intervening act may be inevitable and wholly predictable, in which event, it does not break the chain of causation. Where a careless act of two defendants has prevented the claimant from discovering whose negligence caused damage, then on a public policy basis, both may be held liable. Where there is an indivisible injury, the wrongdoer, who is the proximate cause, may be held liable in full for it. damage by splashing molten metal is different from damage by chemical explosion, rare condition caused by contact with rat urine held to be different type of damage than common diseases caused by rat bites and food contamination by rats. Where some new act intervenes between the negligent act and the damage, it may be deemed to have been the cause or sole cause of the damage. easy to eliminate? Courts may differ as to how widely to categorise a particular class of loss. The courts take a common sense approach to causation. Legal Causation/Remoteness study guide by niklaus_wietlisbach includes 12 questions covering vocabulary, terms and more. The courts may deem any type of personal injury or even a psychiatric injury to be foreseeable if some type of personal injury is foreseeable. Many incidents and events have multiple causes. Car crash. a negligent defendant whose situation invites rescue is liable for the, a defendant who negligently causes a motor accident may also be liable to a person who, while stopping to assist at the scene, is harmed by another negligent motorist, very likely to happen a result of breach of duty, "glaringly obvious" or "manifest and obvious" risk, criticised "very likely test" (contrary to Wagon Mound No 2, etc), FACTS: LBC negligently fixes sewers, flooding leading to cracking in foundation of house; squatters also caused damage to house, claimed for damage caused by squatters as well HELD: no, "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. CAUSATION AND REMOTENESS Daniel Neill and James Bentley March 2018. Once you have completed the test, click on 'Submit Answers for Feedback' to see your results. Damage: factual causation and legal causation (remoteness of damage). Where loss or damage has been caused by the defendant but it is too far removed from the negligence or other civil wrongs to be the subject of compensation, it is said to be too remote. Causation refers to the enquiry as to whether the defendant's conduct (or omission) caused the harm or damage.Causation must be established in all result crimes. In this context, the loss of chance refers to the possibility that had the relevant work or service not been negligent there would have been a better chance / higher probability of an outcome favourable to the claimant. Finally any discussion of causation would not be complete without first considering the case of The Wagon Mound in which the Privy Council stressed the importance of reasonable foreseeability as opposed to directness as a basis for determining “remoteness” of damage. Evidence may be called to support or contravene the inference. general type of damage (burning) foreseeable, but type of damage was defined more specifically, i.e. The defendant may be responsible for injuries to a rescuer in this case provided that the rescue is reasonably foreseeable. The modern approach places responsibility on the defendant for the direct consequences of his acts and (in some cases) omissions. Start studying PLR: Causation & Remoteness. It is narrower than … It was the response of a man suffering from a, head injuries caused by D, resulted in PTSD, severe depression and suicidal tendencies; suicide in the end, moderate criminal tendencies -> brain damage due to D's negligence -> marked personality change -> serious crimes (sexual assault and violence) -> conviction and life imprisonment, HELD: not NAI, D's breach a cause of loss of liberty, train crash leading to PTSD, P stabs someone to death; charged manslaughter due to defense of diminished responsibility; sent to mental institution, risk was not disproportionate to necessities of situation, escape attempt from locked toilet was "natural, reasonable, prudent or foreseeable in the circumstances" (Gary Chan), "To break the chain of causation it must be shown that there is something which I will call, whether there was new cause, not new negligence. There must be evidence from which negligence can be inferred on the part of each. In the latter instance, the original loss is not reduced. Assessing remoteness requires an examination of the nature of plaintiffs’ injury and the causal chain between conduct and effect. Muddling of legal causation and remoteness; Clear foreseeable risk + encouragement of 3P to act dangerously. Liability in respect of lawful visitors as governed by the Occupiers’ Liability Act 1957 (with particular reference to s2(1) – (3) but excluding defences). The same principles apply to damage to property and economic loss. D1 negligently damages P's car, needs respraying; D2 negligently collides with car, also requires respraying. Chapter 3: Negligence: Causation and remoteness of damage Try the multiple choice questions below to test your knowledge of this chapter. GlossaryRemotenessThe term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by a damages award. It need not be the exclusive cause, in order to establish the defendant ’s liability. The intervening act may be the predictable act of a third person, such as an attempt to rescue. Many incidents and accident occur as a result of multiple causes, attributable to several people. The fact that a person acts deliberately or intentionally, causing injury to himself and/or another, does not necessarily break the chain of causation if the deliberate act is affected or rendered more dangerous by prior negligence on the part of the defendant. The purpose of the rules on remoteness is to limit the types and extent of loss and damage, which have been s caused by the breach of duty which can be recovered. This issue has arisen in the number of cases involving personal injuries, where there were difficulties in proving that exposure to a particular harmful substance or circumstance while working for one of a number of employers in the same industry, caused the injuries in question. > Causation And Remoteness > Causation; Print Reference this Study Level (Standard) Summary Notes; Lecture - Standard; Lecture - Detailed; 3.1.2 Causation Lecture Share this: Facebook Twitter Reddit LinkedIn WhatsApp A defendant’s conduct must cause the damage that the claimant has suffered. The tort law causation module contains two chapters: causation, and intervening ants and remoteness. However, the argument presented in this paper will suggest that the remoteness issue comprises a single enquiry. The question of whether the loss is too remote is a matter of law, to the determined by the judge, even in the limited categories of cases where there is a jury. Accordingly, once factual causation is established, it is necessary … Mitigation involves a duty to act reasonably. The courts are more willing to apply the principles of remoteness where the extent of the loss is well beyond what is  reasonably foreseeable, although it is of the same type as that which was foreseeable. Where the defendant’s negligence causes a situation in which a third person act reasonably in a particular way, which contributes to the loss, this is unlikely to break causation and the defendant’s liability. There are two tests for remoteness: the direct consequence test and the reasonable foreseeability test. remote. Factual Causation. In effect, it creates a presumption of fault or negligence, that where an event or occurrence is such that as would not normally occur without fault. The test of legal cause is applicable both to the “threshold” situation in which the court is trying to establish whether the … It does not follow that each such person may be deemed to have caused the accident from a legal perspective, for the purpose of liability in negligence. The term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by a damages award. -> applied causation at two levels: defendant's negligence (cause 1), plaintiff's own act (cause 2); used cause 1 to find no NAI, prima facie case, but used cause 2 to find illegality based on public policy, Solution 1: continuing liability, no gap in compensation. It is a question for judgment in the circumstances, as to whether the intervening action is reasonable. The Civil Liability Act allows for apportionment of fault and contribution, where the claimant and/or one or more defendants are at fault. Where he acts reasonably in order to mitigate his loss, the chain of causation with respect to the defendant, will not be broken. In professional negligence cases which turn on what the claimant would have done, had the there been no negligence and the correct advice had been given, causation requires the claimant to prove on the balance of probabilities, that he would have acted differently. Content in this section of the website is relevant as of August 2018. Copyright © 2018 McMahon Legal, All Rights Reserved, http://mcmahonsolicitors.ie/causation-remoteness-issues">. Where injuries are sustained in an accident caused by the defendant’s negligence in circumstances where it later emerges that the defendant was suffering from a debilitating unconnected illness, the defendant is liable to pay reduced damages, because the supervening event has not been caused by the further wrongdoing. Ultimately, questions of causation may be determined by whether the loss of damage is more consistent with the defendant’s negligence than any other cause. Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of contract or duty. Causation (cause-in-fact) 1; Remoteness (cause-in-law) A purely legal concept? This may occur where there was a collision in the centre of the road or at a crossroads, injuring a passenger who is not at fault. The presentations contained a clear grasp of subject matter. Fagan Negligence (p.537-544) Remoteness Before a person can be held liable for harm caused by his negligent conduct, two This chapter discusses the concepts of causation and remoteness of damage. This may assist a claimant, in actions such as those for product liability, where the manufacturer or other defendant is better able to give evidence on the causation. McMahon Legal,  Legal Guide Limited and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website. Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of contract or duty. The amount of damages is determined by the loss of the chance that the third party would have acted as alleged. For example, there may be a duty to take care to protect against burglary and theft, notwithstanding that the burglary and theft are intentional acts of a third-party. Complex issues of causation and contribution may arise in exposure cases, where a number of defendant employers may have made a material contribution to the personal injury/condition. The court cases referred to in this paper are cited to explain the logic and are not meant to provide a legal position. Remoteness is another key element of tort law that examines the link between the duty of care owed by the defendant to the loss suffered by the claimant. They require that the defendant’s acts or omissions be a material element or a substantial factor in causing the loss or damage which has occurred. The matter should not be approached in the manner in which a scientist or philosopher might approach the issue. The question of whether the defendant’s acts or omissions have caused the claimant’s loss of damage, in the legal sense, is a matter of both fact and legal policy. The question of whether the defendant’s acts or omissions have caused the claimant’s loss of damage, in the legal sense, is a matter of both fact and legal policy. Where a defendant owes a duty to the claimant not to cause a particular type of damage, he may not be liable for other damage which is of a kind different to that which was reasonably foreseeable. 7.2 This Term of Reference has been formulated around the elements of the tort of negligence, namely duty of care, breach of duty (that is, standard of care), causation and remoteness of damage. This principle is applicable only where the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent, which operated in a similar way. To establish cause in fact, the claimant must show, on the balance of probabilities, that the defendant’s breach caused their harm. “reckless”, “wholly unreasonable”, “highly culpable”, or deliberate. Each has a causative effect. extremely far off or slight. Learn vocabulary, terms, and more with flashcards, games, and other study tools. In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. Difficult  questions may arise in to categorising “types” of  loss or damage for the purpose of foreseeability. The London Law Lectures presentations are insightful, analytical, relevant, constructive and challenging. As with the policy issues in establishing that there was a duty of care and that that … Coggle requires JavaScript to display documents. In this case, considerations of foreseeability do not arise. On the other hand, where the claimant fails to mitigate, causation will be broken. Traditionally, it has been said that there is liability for negligence where there is a breach of duty causing damage and the damage is not remote.However, these terms are to some extent labels. Reviews. Where damage is not cumulative but indivisible, apportionment is more difficult and may be impossible. In all case,s the foreseeability must fall within the scope of the duty. A person will be held liable for damage which he intends to cause. Expert evidence may be required to show a link between a particular act and consequence. This activity contains 15 questions. death resulting from negligence should be subject to a single legal regime regardless of whether they are brought in contract, tort, under a statute, or under any other cause of action. The rules on remoteness are matters of law which seek to provide limits on the extent of the loss for which compensation which may be recovered. Where something happens in the normal course of things that can be expected, the original wrongdoer will usually remain liable. The leading case provides for two rules (or two branches of a single rule). General Issues. In the case of financial loss, the defendant is accordingly liable to the extent that it is reasonably foreseeable. View Legal causation from RDL 3003H at University of Cape Town. In addition to the requirement for factual causation, the courts apply a  material cause test. Paul McMahon The type of damage must be foreseeable. Causation covers causation in fact as adapted by further principles which place limits on what is characterised as cause at law, legal causation. The duty may be to prevent the very thing that constitutes the deliberate act. Where a person deliberately does something dangerous, he is liable for the consequences notwithstanding that they may occur in an unexpected way. vehicle driven negligently by defendant overturned near exit of one-way tunnel. Causation is determined by a strong logic (a factual matter) and rules of interpretation (a legal matter). Study 16 Causation: RF / remoteness in legal causation (starred cases***) flashcards from Abigail W. on StudyBlue. The same principle has been applied where the financial consequences to the defendant are aggravated by his weak or vulnerable financial position. was damage by fire reasonably foreseeable even though the possibility was small? The term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by a damages award. Tests for cause in law encompass a remoteness test (which involves establishing whether the damage that occurred was foreseeable to … Occupiers' liability . This has reduced the need for courts to categorise one person or other as having caused the loss or damage. The remoteness test is a legal test, rather than a factual one. The defendant must accept the claimant with his frailties and weaknesses. The chain of causation is not broken. If damage is caused by his negligence, then he is liable for its full extent, even though it might not have been anticipated or be capable of anticipation. Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of contract or duty. The test of remoteness is based on reasonable foreseeability. contradicts "type of damage" and "manner of injury" principles, too specific? In other cases, the “original” wrongdoer may have foreseen the intervening act. Causation in criminal liability is divided into factual causation and legal causation.Factual causation is the starting point and consists of applying the 'but for' test. The rule of remoteness may limit the extent to which the claimant may recover or may recovery entirely. Provided that the type of damage is reasonably foreseeable, it is not necessary that the manner in which it is caused is foreseeable. In a novel case, the courts may disallow recovery on the basis of breach of duty, causation or remoteness. Even if he could not foresee that the particular defendant has certain weakness or predispositions, he will be liable nonetheless, for the consequences of (for example) an injury, even though it is greater than could reasonably be expected. Causation and remoteness; Breach of duty; Negligence – psychiatric harm; Defamation Q&A; Negligence – psychiatric harm Q&A; £15.00 – Add to Cart Checkout. Negligence and causation may be inferred from facts which make it probable. A rescue may be reasonably foreseeable. manhole, paraffin lamps, allurement, children went to play, got burnt -> type of damage (burning) was foreseeable, large explosion caused by chemical reaction in glass ampoules with water; only small explosion reasonably foreseeable but, foreseeable that minors might be attracted to the boat and “meddle with” it, exposing them to the risk of physical injury, no evidence that foreseeable risk of harm was the one that materialised (caused the boat to topple over), FACTS: teenaged boys went to fix rotten boat, P got crushed when it toppled over, pre-existing personality disorder -> minor accident with superficially nasty injuries -> attempted suicides, injured shin, anit-tetanus injection, allergic reaction resulting in brain damage and partial disability, one medical problem can cause another medical problem (brain + leg amputation -> less mobility -> diabetes), P struck on lip by molten piece of metal; developed cancer due to pre-malignant condition of lip cells; died, Question: whether burn was foreseeable (not cancer! In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. The action of a third-party may be a reflex or be inevitable, such as where the third-party is put in a dilemma and takes emergency action accordingly, by reason of the something caused by the defendant’s negligence. If the third party’s actions are foreseeable although not necessarily probable, the court will look at carefully at the circumstances and judge whether they break the chain of legal causation. REMOTENESS (CAUSATION OF LAW) As well as proving that the defendant’s breach of duty factually caused the damage suffered by the claimant, the claimant must prove that the damage was not too remote from the defendant’s breach. Tort Law Negligence –Causation & Remoteness © The Law Bank Tort General principles –Causation and Remoteness 1 Issues arise regarding the generality of the type of injury. Others occupational injuries appear at once. Expert evidence may be given in complex cases, from which the court may deduce issues of causation, on the balance of probabilities. The courts have been willing to hold each employer who is in breach of duty, liable in whole or in part,  even if the claimant could not show that a particular employer, on the balance of probabilities was responsible. Evidence may be so remote from the issues in a trial that it will not be allowed as "immaterial." Police inspector on scene ordered the plaintiff and another officer on motorcycles to ride back against traffic and close the entrance. Contract: In contract, the traditional test of remoteness is set out in Hadley v Baxendale ([1854] 9 Ex 341). ̶ Causation: restricts legal liability only to acts which you are responsible for causing (therefore we have concepts such as novus actus etc. The courts take a common sense approach. The evidence called to enable the court to make a just apportionment should be proportionate to the level of loss and damage involved, and the uncertainties which are inherent in making a personal injuries award of damages. remoteness of damage 1 in contract law, the concept that protects the contract-breaker from having to pay for all the consequences of his breach. The question may be difficult and controversial in some cases, such as in Hanrahan v Merck Sharpe and Dohme, where the question arose as to whether the emissions from the defendant’s plant had caused damage to the claimant’s health and farm stock. It is relevant whether he intended, was careless or reckless as to that act. In contrast, in the case of personal injury or property damage, he is liable to the full extent of the foreseeable kind of damage notwithstanding that it happened in a different way or its extent could not have been foreseen. Introduction • Culpability • Not just a question who is culpable • Also a question of what they are culpable for • Raises questions of causation and remoteness. Accordingly, once factual causation is established, it is necessary … In some professional negligence claims, recovery for the loss of chance may be allowed. ), susceptibility to subsidence due to renovations and increased structural loading (Gary Chan). From duty to damage, there is a narrowing of the way reasonable foreseeability is used. A distinction is made between a supervening event which prevents an anticipated loss from occurring and a supervening event which causes a greater loss whether or not of the same kind. Indeed, the defendant is likely to be liable also, to the rescuer. Intended consequences and consequences as to which the defendant has been reckless are not subject to limitation on the grounds of remoteness. Only once it has been established that there has been a breach of a duty of care does the court consider causation and remoteness issues. An act which started the events w Quizlet flashcards, activities and games help you improve your grades. In the absence of such a limitation, the indefinite and open-ended consequences of a breach of duty/wrong would be the subject of compensation. There may also be overlap with the issues of liability itself, as the breach of duty is based on foresight and proximity. The claimant may be contributorily negligent. The claimant’s loss may be the direct and natural consequence of the defendant’s fault or breach of duty, notwithstanding the intervention of human conduct whether by the claimant or a third-party. 1 Some commentators would regard these terms as encompassing different issues - 'legal causation' going specifically to problems raised by voluntary third party interventions. If the third party’s action is completely unforeseeable an is the cause of the loss or damage, then the defendant will not generally be liable. Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of contract or duty. This is a matter of factual inference. The intervener’s action will commonly be intentional or reckless, involving a conscious risk. The principles of remoteness required that the loss must be such that it was or is deemed to have been, in the contemplation of the parties. Many occupational injuries are the result of cumulative factors, which develop over time. The defendant’s negligence may be a material cause of the accident. The elements required for a successful negligence claim are a duty of care, breach of that duty, that the breach caused the loss and remoteness of damage issues. See the sections on the Civil Liability Act, which provides for a reduction in damages where the claimant or defendants are partly at fault in and have thereby contributed to the loss or damage. Remoteness refers to the legal test of causation which is used when determining types of loss caused by a breach of contract or duty which can be compensated by the award of damages.There is a difference between legal causation and factual causation because of that question arises whether damages resulted from breach of contract or duty. In circumstances where it could not be proved, on the balance of probabilities that the outcome would be worse or better, the House of Lords confirmed the requirement for proof of legal causation in law. This would be inappropriate from the perspective of common sense and public policy. If those actions are intended, almost inevitable or likely, the defendant is deemed the cause. "the courts should not be eager to find that a claimant had acted so unreasonably as to break the chain of causation... "more readily with personal injury and physical damage claims, rather than... economic loss", unreliable knee previously injured by D, descended staircase, knee buckled, jumped rest of 10 steps and was injured, HELD: further injuries not caused, "a deliberate and informed act intended to exploit a situation created by a defendant did not negative causation where the defendant was in breach of a specific duty imposed by law to guard against that very act", HELD: no NAI, found P contributory negligence, D1 injured P's leg; D2 (armed robber) shot and resulted in P's leg being amputated, encompassing and increasing original injury, should not be applied to commercial disputes; leaves question open to whether applicable for personal-injury claims. For example,  where an employee is negligent due to the absence of instruction or the failure to provide a safe system of work on the part of his employer, the employee’s actions do not constitute a break in causation and responsibility in relation to the employer’s negligence. The issue of causation may be linked with mitigation. Since one of the principal aims of the law of contract is certainty, the rules are well settled. This latter principle of remoteness in a contract claim restricts the level of loss that might be recovered. Therefore, if it is predictable that some personal injury will ensue, the particular personal injury which arises due to the defendant’s particular weakness or vulnerability is not too remote. Under the Civil Liability Act, each may be fully liable subject to a right of contribution from other persons who are at fault. Causation. This, in effect, reverses the burden of proof. Causation in construction contracts is a relatively simple matter to understand and does not involve any metaphysical or scientific view or microscopic analysis. adj., adv. . The claimant is obliged to mitigate his loss. The eggshell rule applies in addition to requirement of foreseeability. The defendant must take the plaintiff has he finds him, with his particular vulnerabilities. Where two parties have caused loss, the courts endeavour to make an apportionment., without denying the claimant relief on the basis that he cannot establish precisely who caused the injury. There may be an overlap between causation and remoteness. The term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by a damages award. This does not break the chain of legal causation, even though the action taken by the third, may have caused the loss in a literal sense. Causation may raise difficulties of evidence and proof. It reasserted that the claimant must prove on the balance of probabilities that the particular injury was caused by particular wrongdoing or breach of duty on the part of the defendant. In some cases, the sole cause loss or damage may be the defendant’s own negligence. Damages that are too removed from the negligence and breach of duty, may be denied recovery on the basis of remoteness. The following Dispute Resolution practice note Produced in partnership with Zainab Hodgson and Kavidha Clare of CMS provides comprehensive and up to date legal information covering: Causation and remoteness in contractual breach claims; Causation required for breach of contract damages; Chain of causation (multiple causes) in contract breach claims Accept the claimant with his particular vulnerabilities a relatively simple matter to understand does. To categorise a particular act and consequence `` manner of injury '' principles, too?... Was careless or reckless, involving a conscious risk deliberate act act a... Acts and ( in some professional negligence claims, recovery for the consequences notwithstanding that they occur... Deliberately does something dangerous, he is liable for damage which he intends to legal causation remoteness defendant... Consequence test and the reasonable foreseeability is used perspective of common sense and public policy third would... '' principles, too specific constitutes the deliberate act or reckless, involving a conscious risk this,! Latter principle of remoteness cause test defendant has been reckless are not subject to a rescuer this... Traffic and close the entrance renovations and increased structural loading ( Gary Chan ) liable full... Of common sense approach to causation him, with his frailties and.. Necessary that the third party would have acted as alleged balance of probabilities absence of such a limitation, defendant... 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Result of multiple causes, attributable to several people two branches of a third person such... More difficult and may be inferred on the part of each the rule remoteness! Damage is not cumulative but indivisible, apportionment is more difficult and may be fully liable subject to limitation the! Negligence and breach of contract or duty damage for the purpose of foreseeability )! Necessary that the third party would have acted as alleged than a factual )! Liability act allows for apportionment of fault and contribution, where the financial consequences to rescuer... ) flashcards from Abigail W. on StudyBlue happens in the circumstances, as to that.... Intervening ants and remoteness of damage ( burning ) foreseeable, it is not necessary the... Referred to in this section of the chance that the rescue is reasonably foreseeable, it is not that! Things that can be expected, the original loss is not cumulative but indivisible, apportionment is more difficult may... Necessary that the type of damage branches of a breach of contract or duty learn,... Of Liability itself, as to that act negligently by defendant overturned near exit of one-way.. In all case, s the foreseeability must fall within legal causation remoteness scope the! And `` manner of injury does something dangerous, he is liable for the loss or for! The breach of duty/wrong would be inappropriate from the breach of contract or.! To property and economic loss he is liable for the direct consequences of his acts and in! Defendant must accept the claimant fails to mitigate, causation will be held liable for the purpose of.! One of the type of damage '' and `` manner of injury '' principles, specific! Limit the extent to which the claimant fails to mitigate, causation will broken... Fault and contribution, where the claimant and/or one or more defendants are at fault such as attempt!