Re-looking at causation in Common Law Tort cases

In this post I will primarily evaluate and critique the causation principle (or lack thereof) used by courts in certain common law cases of negligence. Causation as defined in Winfield, reads as a causal link based on a 'balance of probabilities' between the loss suffered and the defendant’s wrong. A test that is often used when trying to establish causation is called the ‘but-for’ test. However, the but-for test fails when there are multiple causations because not a single event or act causes the injury or the damage. Then the way causation is established is to establish that the defendant’s act(s) (among a host of other acts, one of whom might be the claimants’ own negligence) materially contributed to the claimant’s injury. The standard rule is that the material contribution should be towards the injury and not towards merely increasing the risk of the injury. However there are a few exceptions to this rule that I will critique later in this post. I mainly argue that the courts should not take to vague mentions of policy considerations when trying to escape the common law tests laid for establishing causation and reasonable foresight, for this not only sets a bad legal precedent, but also prejudices a certain class of litigators before the court and thus hampers in dispensation of justice.

Causation conundrums

The law of causation dictates that for a defendant to be held liable for the plaintiff’s injury, it has to be established that the injury was caused by the defendant’s negligent act. In Baker V Willoughby the facts were such that a pedestrian had been knocked down by defendant driving a car negligently which caused serious injury to him. Due to such injury, his earnings had reduced. Before the trial for the case, the plaintiff became the victim of an armed robbery in which he suffered gunshot wounds to the same leg, and as a result of which his leg had to be amputated. The plaintiff's case was that the defendant should be held liable for the losses suffered from the shooting since it was him who had caused the initial injury which lead to the subsequent infirmity which in turn increased the chances of the leg to be amputated when being shot at.

The court held Willoughby (the defendant) to be liable for all of the damages since if it wasn’t for his negligence, Baker wouldn’t have lost his leg. This logic fails on two counts, firstly on the account of the intervening act of the armed robbers that broke the chain of causation, and secondly by applying the the but-for test. The second injury i.e. the gunshot clearly breaks the chain of causation for it was a Novus actus interveniens, done willfully and voluntarily by the armed robbers and thus made the robbers liable for all of the damages from that point onwards. Secondly, by applying the but-for test on the gunshot – but for the gunshot, Baker would still have a leg, although injured; we can establish that the amputation of leg and all the loss of amenities that flowed out of the injury made the robbers liable for the damages, and not the respondent. As pointed out by Lord Reid in his judgement for the case – a person is not compensated for the injury but for the loss of amenities thus caused by the injury. For this statement to be true, the implicit assumption is the existence of the very injury from which the loss of amenities flow out of. In this case, after the gunshot caused the leg to be amputated, the very injury that was caused by the respondent did not remain and thus there can’t be any loss of amenities flowing out from it for which the respondent can be held liable. The second injury obliterated the first injury. To not just hold the respondent liable for the fictitious loss of amenities flowing out of a non-existent injury, but also for the loss of amenities arising from the amputation caused by someone else’s act; is not only illogical but also manifest injustice. In the judgement Lord Reid opines that not holding the respondent liable would be unjust to the appellant, but in my opinion what is more unjust is to hold someone liable for acts that he did not commit. The judges wrongfully extended the policy consideration by holding the appellant liable for all of the damages; for then the law assumed that the act of causing the initial injury and the gunshot were committed by the same person to generate collective liability, which is both unfair and illogical. The appellant should have been held liable for only the damages sustained from the date of the first incident up to the date of the armed robbery. Thus in my opinion, principles of causation suffered at the hands of public policy and sympathy for the victim.

Another case in which the court erred in establishing causation was in McGhee V NCB. The prolonged exposure to abrasive dust due to the act of not providing washing facilities was held to be the negligent act that caused the claimant’s injury i.e. Dermatitis. To better understand the problem with this judgement let’s first dissect the definition of negligence. It is negligence only if the act is a breach of duty that results in some injury to the plaintiff; and not merely increases the risk of an injury. The chain of events is as thus, negligent act – results in breach of duty – causes an injury to the claimant – liability is established on the defendant’s part. In this case, the medical evidence only showed that the sweat inducing hot conditions of the workplace along with the flying abrasive dust could have resulted in Dermatitis. Considering this evidence, it can only be argued that the presence of abrasive dust and the absence of washing facilities contributed to increasing the risk of the injury and it can’t be said that they caused that very injury, for there did not exist any medical backing for that claim. It is important to note that merely increasing the risk of an injury does not invite liability under tort law. In this case, the trial judge had correctly pointed out that causation cannot be established between the defendant’s ‘negligent’ act and the claimant’s injury by testing it against both, the but-for test and on evaluating it on a balance of probabilities. The but for test failed because the plaintiff couldn’t prove that but for the negligent act of not providing washing facilities, the plaintiff wouldn’t have suffered the injury. Secondly, on a balance of probabilities, due to the lack of medical evidence in proving disease causation, it couldn’t be proved that the defendant’s breach of duty caused the claimant’s injury. The appellant court erred in conflating causation with probable attribution. It is important to restate that intuition of causation is not causation. 

In Fairchild, Lord Hoffman recognized that sometimes judges have a tendency to vaguely refer to policy considerations in order to avoid explaining intuitive reasons for not adhering to the common law. Thus the court wrongfully took a leap of faith by amounting an increase in the risk of injury to be the same as causing the injury. Another problem that arises out of such policy arguments is that such policy says nothing more than ‘injured claimants should recover’ and therefore it is too wide a precedent to be set in an absence of boundaries. It can be used in any case where the judges want to divert from the casual requirements of the common law. In McGhee V NCB, Lord Wilberforce said, “It is the creator of the risk, who ex hypothesi must be taken to have foreseen the possibility of damage and should thus bear its consequences”. I argue that since the court assumes increasing the risk of injury to be the same as causing the injury in such cases, no matter what precautions the employer (creator of risk) undertakes, given that there are always going to be certain occupational hazards associated with the job (asbestos dust, or abrasive materials); in any employee litigation regarding disease causation, some or the other act of the employers can be termed as negligent and thus causation will be assumed, notwithstanding whether the employer’s actions actually caused the injury or not. This unreasonably prejudices the employers in dispensation of justice, and thus in my opinion is both a bad legal precedent and policy. The precedent set in Fairchild was wrongly used in Sienkiewicz to hold the employer liable for all of the damages sustained by the deceased, even though 85% of the disease (Mesothelioma) was attributed to the deceased’s home environment and not the place of employment. This case (among others) shows how cases like Fairchild and McGhee have set an unsound precedent of causation in the common law jurisprudence.

Conclusion: 

Lord Phillip famously said, “The law of causation does not deal in certainties, it only deals in probabilities”. But, it is imperative that we probe the limits of these probabilities. We cannot apply a mechanical test to establish causation in every situation but dilution of causal standards without strong justification to do the same is a bad precedent, for it shows that the common law jurisprudence can be replaced by judge’s subjective views on justice.