Defences and Remoteness
- Elliot Tierney
- Jul 27, 2023
- 7 min read
Updated: Jul 31, 2023
Legal Causation (Remoteness):
Legal causation seeks to establish whether there is a sufficiently close link between the defendant's breach and the claimant's loss. Remoteness is concerned with the scope of liability that the defendant can be liable for the harms they cause.
2 Doctrines:
In both doctrines, even though the defendant breached a duty owed to the claimant and caused them injury, the law denies compensation for their injury.
Intervening Acts:
Novus actus interveniens are intervening acts which ‘break the chain of causation’.
After the defendant’s breach of duty, some other party (often a third party, but sometimes the claimant themselves) or natural event occurs that contributes to the claimant’s injury. When the intervening act breaks the chain of causation, the defendant is not liable.
The doctrine only applies where both the defendant’s breach and the intervening act / event are the ‘but for’ causes of the claimant’s injury.
If the defendant’s breach isn’t a ‘but for’ cause, the claim would’ve already failed on factual causation. Alternatively, if the intervening act makes no difference to the claimant’s injury, there is no reason for it to affect the defendant’s liability.
Actions of a Third Party:
The act of a third party will break the chain of causation if the third party’s actions was voluntary and unreasonable. This is a value judgement left to the judge’s discretion.
In Knightley v Johns, J negligently causes a car crash in a tunnel. Police (K) instructed to go to close the tunnel by a senior officer (T), travelling against the flow of traffic. K is involved in a crash and is injured. T’s instruction to go close the tunnel broke the chain of causation, so J was not liable.
The third party may also be liable for the claimant’s injury.
Exception:
Where it was the defendant’s responsibility to protect the claimant from being harmed by the third party, they cannot rely on this defence.
In Stansbie v Troman, a decorator is given the keys to the property while S leaves. T is instructed to lock the property when they leave. T doesn’t lock the door and the house is burgled. T held liable as their duty was to stop the harm of being burgled.
Actions of the Claimant:
Where the actions of the claimant partially break the chain of causation. This is most commonly dealt with the defence of contributory negligence.
EG: D causes a car crash, but C wasn’t wearing a seatbelt.
The actions of the claimant will only completely break the chain of causation, thus preventing liability altogether, where their actions are particularly unreasonable.
In McKew v Holland, H’s negligence caused M’s leg injury. As a result, M’s leg is unpredictably unstable and sometimes collapses. M goes down a steep staircase without a handrail or aid and falls, pushing himself forward. While H is a ‘but for’ cause (due to the prior injury), M’s actions were so unreasonable that H is not liable.
In Spencer v Wincanton, S sustains a leg injury from W’s negligence at work. The CA rules that the chain of causation is not broken when S falls, so W liable for contributory negligence.
Exception:
Where it was the defendant’s responsibility to protect the claimant from acting in this way, they cannot rely on this defence.
In Reeves v Police, R commits suicide in police custody. Police owed a duty to prevent inmates committing suicide, so are still liable.
Natural Events (‘Acts of God’):
EG: Earthquakes, tsunami etc.
Courts consider whether the defendant’s breach affected the likelihood of the claimant being harmed by such natural event.
In Carslogie v Royal Norwegian, 2 ships crash into one another. RN caused the crash and C has to deviate off course to get repairs. Upon setting off again, C is caught in a storm and sustains further damages. RN only liable for damages caused in initial crash as RN’s actions did not increase the likelihood of C being damaged in a storm.
Remoteness:
Even in the absence of an intervening act, the defendant won’t be held liable for losses resulting from their breach if the link between the breach and loss seems too remote.
In some circumstances, it would be unfair to hold the defendant liable for every consequence of their wrongdoing. This is because it would be disproportionate to the the defendant to make them pay damages.
Reasonable Foreseeability:
The defendant is liable only for losses of a kind which it was reasonably foreseeable that the claimant might suffer at the time they committed the tort. [1]
‘Eggshell Skull’ Rule:
It is the kind of loss that is relevant, not its extent. [2] So, long as the loss to the claimant was reasonably foreseeable, the fact that the damage was greater than the defendant expected is irrelevant.
The manner in which the claimant’s loss is caused is irrelevant.
In Hughes v LA, LA had been conducting repairs in a manhole. They take a break, put barriers around the hole and leave a paraffin lamp there. 2 boys go around the barrier and accidentally knock the lamp down the hole. This causes an explosion. H is burnt.
The HL still hold LA liable as the mere risk of burning, not the extent of the explosion causing the burn, was reasonably foreseeable.
Kinds of Losses:
Losses can be categorised in different ways. Some may be boarder or vaguer than others. EG: Personal Harm > Bodily Harm > Illness > Respiratory Disease > Influenza
If ‘kind of loss’ has a broad scope then fewer losses are too remote, but if ‘kind of loss’ has a narrower scope then too few claims can be brought.
In Tremain v Pike, T is working on P’s farm. The farm becomes infested with rats. T contracts Weil’s disease from handling products that had rat urine on them.
It was foreseeable that T might suffer bodily harm by being bitten by the rat, but not any other way. Court held loss to be too remote.
In Page v Smith, S causes a traffic accident and P is physically unharmed, but psychiatrically harmed. Evidence suggested that the crash triggered P’s psychological illness.
While it is entirely unforeseeable that S could’ve foreseen this, the mere foreseeability of some personal harm is enough to hold S liable. Trend towards boarder understanding.
Defences:
The defendant may have a counterargument to the claimant’s claim for negligence.
Defences either allow the defendant to avoid all liability or reduce their liability.
Contributory Negligence:
Contributory negligence occurs when the claimant’s own negligence contributed to the harm they suffered.
EG: D negligently crashes their car into C’s car, injuring them, but C wasn’t wearing a seatbelt.
Requirements:
The claimant's negligence (failure to take reasonable care).
Causation (of both the defendant and the claimant).
Law Reform (Contributory Negligence) Act 1945:
s1 - Damages are to be reduced ‘to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’.
Value judgement to courts on the ratio of overall liability between D and C.
‘Share’ means there is no possibility of 100% contributory negligence.
D still has some liability for their part.
Consent (volenti non fit injuria):
The claimant cannot bring a claim for injuries they consented to. This is a general defence to all torts.
Consent to the Defendant’s Specific Acts:
If the claimant agrees to the very action that the defendant does to injure the claimant, the defendant has a defence to any claim lodged by the claimant.
In ICI v Shatwell, D is employed in a quarry to prepare detonation devices. When the detonator is pressed, nothing explodes. When workers go to investigate, they do not follow proper safety protocols by returning to the allocated safe distance. There is an explosion and C is injured. As C had fully consented to everything that D did, D is not liable.
Consent to the Defendant’s Risky Conduct:
If the claimant consents to (or goes along with) some activity that poses a risk to themselves if the defendant is negligent, the defendant may have a defence.
In Morris v Murray, C and D had been drinking all day. D, who has a pilot’s licence, suggests they go for a flight and C agrees. The plane crashes, D dies and C is injured.
The court held that C had consented to going on the flight, but not the manoeuvre that resulted in the crash. The agreement to the dangerous activity of going on the flight was enough for the defence of consent, so D is not liable.
The claimant must know the risk and voluntarily take it.
Generally, this does not apply to rescue though; if the claimant was unable to recover damages for being injured while rescuing someone, then they wouldn’t attempt the rescue.
Depends on the gravity of the risk.
Exclusion of Liability:
Where the defendant and the claimant agree that the defendant will not be liable for their negligence, the defendant has a valid defence against a claim.
Such agreements are governed by UCTA 1977 and CRA 2015.
EG: contractual exclusion clauses.
This doctrine extends to cases where ‘true’ agreement has not been reached.
EG: notices excusing liability (‘Customers leave their belongings at their own risk’; ‘We accept no liability for any loss suffered on these premises’ etc.).
Illegality (ex turpi causa non oritur actio):
If the claimant is acting unlawfully when they are injured as a result of the defendant’s negligence, the defendant sometimes has a defence. It is unimportant whether the claimant’s unlawful conduct contributed to the injury they sustained.
When D has a Defence (Narrow Rule):
A claimant cannot recover losses resulting from the imposition of a criminal sanction.
In Gray v Thames Train, G is mentally injured in a train crash negligently caused by TT. A few years later, G kills someone (convicted of manslaughter under diminished responsibility and held in a medical institution). G sues for his loss of earnings and liberty.
The court does not hold TT liable to keep consistent with criminal law. There will be no recovery if C’s illegality is sufficiently closely connected to C’s harm.
In Corss v Kirkby, C turns up to a hunt with a baseball bat to try to prevent it from going ahead. K seizes the bat and hits C with it. Defence of illegality allowed as C was only injured because they brought the bat.
In Vellino v Chief Constable, V is a well-known criminal. The police are called to detain him. V jumps out of his 2nd floor flat window to try to escape capture. In attempting to escape, V was resisting arrest, so there is a close enough connection.
If the claimant could find recovery for damages caused by their unlawful actions, the criminal law would be undermined. The claimant cannot recover losses which result from their own unlawful conduct, if this would undermine the policy underlying the law they breached. [3]
Resources:
References:
[1] Wagon Mound (No. 2)) Overseas Tankship (UK) Ltd v The Miller Steamship Co [1966] UKPC 10, [1967] AC 617; [1967] 2 All ER 709 [2] Smith v Leech Brain & Co Ltd [1962] 2 QB 405 [3] Patel v Mirza [2016] UKSC 42
Cases Mentioned:
Knightley v Johns and Others [1982] 1 WLR 349
Stansbie v Troman [1948] 2 KB 48
McKew v Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All ER 1621
Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1414
Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292, [1952] 1 All ER 20, [1951] 2 Lloyd's Rep 441, 95 Sol Jo 801, [1951] 2 TLR 1099
Hughes v Lord Advocate [1963] AC 837
Tremain v Pike [1969] 1 WLR 1556
Page v Smith [1996] AC 155
Imperial Chemical Industries Ltd v Shatwell [1965] AC 656
Morris v Murray [1991] 2 QB 6
Gray v Thames Trains Ltd [2009] UKHL 33
Cross v Kirkby [2000] EWCA Civ 426
Vellino v Chief Constable of Greater Manchester Police [2001] EWCA Civ 1249; [2002] 1 WLR 218
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