By Law Teacher
3.2.1 Intervening Acts and Remoteness – Introduction
Welcome to the second lesson of the third topic in this module guide – Intervening Acts and Remoteness! Intervening acts can break the chain of causation between a defendant’s act and the final outcome. Alternatively, negligence that results in an unanticipated outcome may cause damage that is very remote from the defendant’s act. Either scenario may mean that legal causation cannot be established, even where factual causation can be.
At the end of this section, you should be comfortable understanding and applying the rules relating to legal causation. In particular you should understand how foreseeability relates to issues of remoteness, and how the concept has been defined by the courts in a range of factual scenarios. You should be able to address the range of situations that may involve an intervening act or event, and you should be able to determine whether the chain of causation has been broken regarding the defendant.
This section begins by defining the concept of remoteness and then exploring in depth the various rules relating to the necessary foreseeability that have developed in the case law. The latter part of the section defines the various types of intervening act that may negate legal causation in a range of scenarios, including acts of third parties, the claimant and acts of nature.
Goals for this section:
- To be able to understand and apply the rules relating to legal causation.
Objectives for this section:
- To know that harm must not be too remote from the original negligence to be legally cause by it.
- To understand how foreseeability relates to the remoteness of harm, and to know how the courts have defined the concept.
- To be able to apply the rules relating to various types of intervening acts relating to legal causation.
CAUSATION AND REMOTENESS. Theoretically, the consequence of any conduct may be endless but the defendant is not liable for all the consequences that flow from his/her tortuous act, however remote in time and however indirect the process of causation, for otherwise human activity would be unreasonably hampered. The law therefore place a limit in liability.
3.2.2 Intervening Acts and Remoteness Lecture
Remoteness
It is not enough for a harm to be merely caused by a defendant. It is also a requirement that the causal link between defendant action and claimant harm is sufficiently close.The law has developed to demand that damage must be foreseeable before it is actionable, The Wagon Mound(No. 1). The concept of foreseeability has been further refined in a number of cases, as detailed below.
Refining Foreseeability – Type of Harm
As long as a particular type of harm is foreseeable, it will not be too remote, even if the likelihood of that harm materialising is small. This principle can be seen in the follow-up case to The Wagon Mound (No. 1) – Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. 2) [1967] 1 AC 617.
Refining Foreseeability – The Way the Damage is Done
The exact series of events leading up to it need not be foreseeable. This principle can be seen to be in effect in Hughes v Lord Advocate [1963] AC 837. It can be concluded that remoteness is based on something being foreseeably harmful, even if the exact series of events which might lead to that harm occurring is itself not foreseeable. The same principle can be seen at play in Jolley v Sutton London Borough Council [2000] 1 WLR 1082.
The courts have at times been willing to stretch the Hughes principle rather far, and this has rendered some strange rulings. Bradford v Robinson Rentals Ltd[1967] 1 All ER 267provides one such example. It should be kept in mind, however, that the courts appear to have placed emphasis not simply on whether an object or practice is foreseeably harmful, but also on the specific way an object or practice might be harmful. This can be seen in Doughty v Turner Manufacturing Co. Ltd [1964] 1 QB 518.The same principle can be seen to be applied in Tremain v Pike [1969] 1 WLR 1556.
Although the courts have meandered in their application of the Hughes principle, the general principle is clear: the courts will not ask whether a specific series of events is foreseeable when examining remoteness; rather they will simply ask whether a general category of harm is foreseeable. This is arguably a simpler and more effective approach to take towards remoteness.
Refining Foreseeability – Extent of Damage
As long as a type of damage is foreseeable, then defendants will not be able to argue that they did not foresee the extent of damage caused. This principle can be seen in Vacwell Engineering Co v BDH Chemicals Ltd. [1971] 1 QB 88.
Extensive damage will not be regarded as being too remote, even if that damage has unfolded in a unique or eccentric manner, The Trecarrell. This is essentially the same reasoning as seen in Hughes, except Hughes refers to an odd series of events unfolding and causing harm, whereas The Trecarrell refers to a pedestrian event causing harm which then unfolds in a unique or unlikely manner.
However, it should be noted that the courts have seen fit to place a perimeter around a harmful event in order to distinguish between actionable and inactionable harms. This can be seen in Crossley v Rawlinson [1981] 3 All ER 674. So, whilst the courts will hold defendants responsible for the full extent of the damages they have caused, they can be seen to place a limit on the types of harm which can be said to emanate from an instance of negligence.
The Egg Shell Skull Rule
As in criminal law, the courts have instituted an egg-shell skull rule for claimants, as per Smith v Leech Brain & Co Ltd [1962] 2 QB 405. The egg shell rule dictates that defendants must take their claimants as they find them.
This rule applies not only to claimants themselves or their property, but also to the environment surrounding their property. This was the ruling in Great Lakes Steamship Co v Maple Leaf Milling Co [1924] 41 TLR 21.
For a period of time this rule did not apply to the wealth of claimants, as in Liesbosch Dredger v SS Edison [1933] AC 449. This exception has since been overruled in Lagden v O’Connor [2003] UKHL 64. Furthermore, the rule also applies to claimant’s pecuniousity (their willingness to spend money). This is illustrated in Dodd Properties (Kent) Ltd. v Canterbury City Council [1980] 1 WLR 433. It should also be noted that the general rule for assessing damages is that they are calculated at the time of breach.
Intervening Acts (Or Novus Actus Interveniens)
It is also possible for certain events to break the chain of causation between the defendant’s actions and the claimant’s injuries. There are three varieties of intervening acts. Those taken by third parties those taken by the claimant themselves, and those which are acts of nature.
Third Party Acts – As Consequences of the Original Harm
Third party acts take place after the original harm to the claimant or their property, but can be thought of as disrupting the claim in some way. The general rule involves asking whether the third party’s acts can be tied to the original harm, as seen in Scott v Shepherd [1773] 96 Eng. Rep. 525. The court held that the defendant was responsible for the claimant’s injuries – although there had been intervening third party acts, they could be considered consequences of the original harmful act.
The same principle can be seen to be applied in The Oropesa [1943] 1 All ER 211. The claimant’s ship was damaged in a collision with the defendant’s ship. As was usual practice, the captain of the damage ship attempted to travel across to the defendant’s ship to discuss the collision. The boat he was in overturned, and he was killed along with several members of his crew. The court ruled that this was still a consequence of the original harm – it was reasonable and foreseeable that the captain would make the journey.
However, if an unreasonable act is undertaken by a third-party in response to a negligent harm, that will break the chain of causation. See Knightley v Johns and Others [1982] 1 WLR 349.
It is also possible for liability to be apportioned between the original defendant and the third party. In Wright v Lodge & Shepherd [1993] 4 All ER 299 the courts ruled that whilst the defendant had acted unreasonably, the ultimate cause was the first driver’s negligence, and so split the cost of damages 10%/90%, between the first driver and the defendant.
Third Party Acts – Unrelated to the Original Harm
The general rule is that whether an act or occurrence is severe enough to constitute a novus actus interveniens depends largely on the circumstances of the case itself. This can be seen in Baker v Willoughby [1970] AC 467. The claimant was originally knocked down by a negligent driver, and was suffering from permanent stiffness in his leg as a result. Before the cause went to trail, the claimant was involved in an armed robbery, during which he was shot in the same injured leg. This meant his leg had to be amputated.
The courts ruled that although the original injury was ‘overtaken’ by the new injury, that this did not constitute an intervening act within tort. It was instead ruled that his compensation for the original injury should remain in place – the robbers had never been caught, and thus could not be sued, so to end the original compensation claim would leave the claimant without remedy. It was held that the original claim for loss of earnings still stood – the claimant still could not work properly, even if a new injury was now the prevailing cause of this.
However, the position in Baker is not necessarily applied consistently. See Jobling v Associated Dairies Ltd [1982] AC 794. The claimant had an original slip and fall injury due to his employer’s negligence, resulting in a back injury. This led to a loss of 50% in his earning capacity, for which he was compensated. Three years later (but still before trial!) the claimant independently developed a spinal disease called spondylotic myelopathy, leaving him completely unable to work. In contrast to Baker, the courts ruled that the new disease constituted an intervening act, breaking the chain of causation and leaving the claimant’s employer only liable for the three-years between the injury and the new disease.
Claimant Acts
There also exists the possibility for the claimant’s themselves to take an intervening act, breaking the chain of causation between the defendant’s acts and the eventual injury. This took place in McKew v Holland & Hannen & Cubitts.
Acts of Nature
There also exists a third category of intervening acts – not those taken by the claimant themselves, nor by any third party, but instead acts which are due to nature itself (sometimes referred to as ‘acts of god’). Such an act can be seen in Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292. The courts rejected the claim, and so the defendant was only held liable for damages arising from the first collision, and not the subsequent storm damage – the storm was held to be a novus actus interveniens, and so the claim was based on a faulty reading of causation. In particular, the courts noted that the storm damage was incidental – it could have happened to any ship on any voyage, and thus could not be held to be a consequence of the original collision.
3.2.3 Intervening Acts and Remoteness Lecture – Hands on Example
It is October the 31st – Bonfire Night. Beatrix and Bill decide to attend a bonfire organised by their local council on a village green. The event is well-attended, and large crowds gather around the centre-piece: a large bonfire, some 12ft high. There is no safety fence around the bonfire, nor is there a limit to the number of people allowed onto the green. Spectators gather close to the bonfire for warmth.
The council have also organised a fireworks display. Everything is going well until the time comes to set off the fireworks. Although they have been set up correctly, in a freak accident two of the fireworks collide in mid-air and spin-off sideways. They travel half a mile, towards a nearby site owned by the Ministry of Defence, used for storing the components used in manufacturing munitions. Earlier in the day, a window of the factory was broken, and it is in the course of being repaired. Whilst a cover was placed over the window earlier, it has been temporarily removed so that the new window can be installed. The errant fireworks, which are now on their descent, unfortunately fly through this broken window. This causes a massive explosion, destroying the factory. Debris is spread far and wide. A crate of white phosphorus – a component of tracer rounds – is catapulted by the force of the explosion into the air. It flies all the way over to the village green, and lands square in the middle of the bonfire. This dislodges a log which tumbles from the top of the bonfire, and lands on Bill’s leg, causing him severe burns. The crate of phosphorus then ignites. It burns with an intensely piercing white light. Beatrix, who is not expecting this, is looking at the fire when this happens. As a result of the dazzling light, she suffers permanent retina damage, and is left partially blind.
Beatrix’s doctor advises her that had she been just a few yards further away from the bonfire, her sight would have likely been unaffected. Bill’s doctor advises him not to drive for the next month – the burn has damaged the nerves in his leg, and this will affect his ability to brake quickly.
Two weeks later, Bill is late for work. In a panic, he attempts to drive himself to work. He comes to a junction but is aghast to discover that he has lost feeling in his leg as he attempts to brake. This causes a crash in which Bill’s car is written off.
Four weeks after the bonfire incident, Beatrix is diagnosed with a rare form of rapid onset macular degeneration – a condition unrelated to the damage sustained from the bonfire incident, and something which would have occurred regardless. This unfortunately leaves her blind. It is still two months before her claim against the council will be heard by a court.
Both Bill and Beatrix have sought some precursory legal advice.
Bill wishes to claim for the burns he has suffered, and also for the crash, which he says was a result of his injury.
Beatrix wishes to claim for her partial blindness.
They are advised by their lawyer that their claims are perhaps invalid because the damage they have suffered is too remote. They’ve come to you for a second opinion.
Advise Bill and Beatrix on whether their claims are valid or not, concentrating on matters of remoteness.
Answer:
Bill is likely to be able to lodge a successful claim against his local council. As per Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No. 1) [1961] AC 388, in order for a claim to be valid the damage must be reasonably foreseeable. In Bill’s case, it arguably is reasonably foreseeable – the council have taken no precautions to ensure spectators do not get too close to the bonfire. Bill is injured by a log which has rolled from the top of the bonfire. This is not an unlikely event by any means – bonfires by their very nature tend to collapse, and this creates a risk of debris falling from them. The council might argue that the damage is too remote – after all, the chain of events which cause the log to roll off of the bonfire is extremely unlikely, requiring a fireworks accident, a broken window and for the crate of phosphorus to have taken an extremely unlucky trajectory. However, as per Hughes v Lord Advocate [1963] AC 837, remoteness depends not on the foreseeability of the exact series of events which cause harm, but instead on the foreseeability of the nature of the harm itself. Since a log rolling from a bonfire and burning someone who is allowed to stand too close is entirely foreseeable, the claim will likely stand.
Although Bill’s car crash can be described as being caused by his burn, and thus the bonfire incident, his decision to drive himself is likely to be seen as an intervening act (or novus actus interveniens). Much like McKew v Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All ER 1621, Bill has autonomously made a poor decision in light of his injuries, and this has caused further harm – in this case damage to Bill’s car. Despite being advised not to drive, he has decided to do so anyway. It would be inequitable to hold the council responsible for Bill’s poor decision making, and so the claim for the damage to his car will likely fail.
Regarding Beatrix’s partial blindness, this is arguably too remote. Again, as per Hughes, remoteness is based on foreseeable harm. Whilst a bonfire burning someone is foreseeable, it burning with a chemical brightness which is intense enough to blind someone is not foreseeable at all. As such, Beatrix’s case can be likened to Doughty – the harm she has suffered is not of a foreseeable nature, and so her claim is likely too remote.
Furthermore, the fact that Beatrix has fallen prey to an unfortunate illness is likely to form as obstacle to her claim. As in Jobling v Associated Dairies Ltd[1982] AC 794, Beatrix has a negligently caused injury which is then ‘overtaken’ by a natural illness. Following this precedent, this means that even if her claim succeeds, her damages are likely to be severely limited to reflect the fact that she was only affected for the four weeks before the onset of macular degeneration.