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, before a valid claim can be made (this is sometimes referred to as 'legal causation'.)
The original position was far more open, as in Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560. The owners claimed against the charterers of a ship whose cargo included a number of petrol containers. This led to petrol vapour accumulating in the hold of the ship. This petrol ignited when the charterers’ stevedores dislodged a heavy plank into the hold, creating a spark as it struck something below. This destroyed the ship. The defendants argued that it was unforeseeable that a spark would have occurred from the plank, and that therefore no liability arose. The courts however rejected this argument, holding that although some damage had to be foreseeable for the act to be negligent, the particular kind of damage did not. It was sufficient that the damage was a direct consequence of the defendant's negligent act. The claim therefore succeeded.
Fortunately, the law has now developed to demand that the kind of damage must be reasonably foreseeable in negligence. See The Wagon Mound (No. 1).
Case in Focus: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No. 1) [1961] AC 388
The defendants negligently leaked some oil into Sydney harbour from their tanker. This oil then drifted to the claimant's wharf, where it mixed with various flotsam, including some cotton wadding. Welding was taking place on the wharf, and so the claimants sought assurances that it was safe for them to continue, and resumed work believing it was safe, with instructions to prevent inflammable material falling into the oil. However, molten metal from the wharf ignited waste floating on debris under the wharf, which in turn set the oil alight, causing a fire which spread to two ships and damaged the wharf itself.
It was ruled that the defendants were not liable for the fire damage - on the facts found in this case, it was not reasonably foreseeable that the oil would catch fire on the water.
Exam Consideration: Whilst The Wagon Mound (No. 1) has become the currently applicable rule, it should be noted that Re Polemis was not technically overruled in the strict sense of the judicial hierarchy, since that decision was from the Court of Appeal, and The Wagon Mound was a Privy Council case. However, the Privy Council expressly disapproved Re Polemis, and subsequent English courts have consistently applied the foreseeability test from The Wagon Mound. For all practical purposes, Re Polemis is no longer followed.
As such, in order for a valid claim to be made there must be a duty, a breach, factual causation, and, as per The Wagon Mound (No. 1), the kind of harm must be reasonably foreseeable. There is a separate question whether the harm resulted from the risk against which the defendant owed the duty of care (Khan v Meadows [2021] UKSC 21). However, 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 (The Wagon Mound) (No. 2) [1967] 1 AC 617. The facts are as above, but this time the claimants were the owners of the two ships damaged at the wharf. It should be noted that different evidence was submitted to the court in this latter case (which helps to explain the differing decisions.) The court held that as long as a particular type of damage is foreseeable, then it will not be too remote, even if it is unlikely. Thus, because there was a slim, but entirely foreseeable risk of the oil igniting on the water, it was not too remote. Avoiding the spill would have cost the defendants nothing, and there was no justification for running even this small risk. The ship owners were therefore able to recover.
Refining Foreseeability - The Way the Damage is Done
The courts have further refined the concept of foreseeability to dictate that whilst the nature of the harm caused must be foreseeable, the exact series of events leading up to it need not be.
This principle can be seen to be in effect in Hughes v Lord Advocate [1963] AC 837. The claimant was a young boy who came across a manhole which had been left uncovered by the defendant, protected only by a small tent and paraffin lamps. The child descended into the hole uneventfully, but after climbing out tripped over one of the paraffin lamps, which fell into the hole. An explosion followed and the child fell in and was burned. The defendants argued successfully in the First Division of the Court of Session in Scotland that whilst a child being burned by an unsupervised paraffin lamp was foreseeable, the sequence of events which led to the child being burned in the case at hand was not, and that therefore the claim was invalid by reason of remoteness. This decision was reversed upon appeal to the House of Lords - it was held that since the child's burning through contact with one of the lamps was foreseeable, this was sufficient to establish legal causation, and thus the claim succeeded. It can thus 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 defendant was a borough council who left a damaged boat on a piece of its land for over two years. The claimant and a friend took it upon themselves to repair the boat back to working order. The boys propped the boat up to work on it. It collapsed, trapping the claimant and causing him serious spinal injury. The Court of Appeal took an event-based perspective of the matter, ruling that it was not foreseeable that an accident would occur as a result of the boys deciding to work on the boat. Again, as in Hughes, the House of Lords rejected this stance, and instead ruled that since it was foreseeable that some harm would occur to children as a result of their meddling with the boat, the claim should succeed, subject to a 25% reduction for contributory negligence.
The courts have at times been willing to stretch the Hughes principle rather far, and this has produced some striking results. Bradford v Robinson Rentals Ltd [1967] 1 All ER 267 provides one such example. The claimant was employed by the defendants as a radio service engineer. One day, he was tasked with exchanging an old, dilapidated work van for a newer vehicle. This involved a long drive, and conditions were extremely cold, to the extent that a weather warning had been issued, advising drivers not to make any unnecessary journeys. Neither van was heated, but despite the claimant's request that the journey be postponed, his employers insisted. As a result of this combination of factors, the claimant suffered frostbite, and thus sued his employers. The courts upheld his claim. Whilst it is apparent from Hughes that odd circumstances will not form an obstacle to a claim, there also remains a requirement that the type of damage be foreseeable. The court treated injury from exposure to cold as the foreseeable type of damage. Frostbite itself did not have to be foreseeable, given its rarity within the temperate UK climate.
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 claimant, an employee of the defendants, was injured when the asbestos cement cover from a vat of molten liquid was tipped into the vat itself. This caused a chemical reaction, resulting in an explosion which seriously burned the claimant. The courts held that whilst a splash burn from the molten liquid was foreseeable, a burn from an explosion was not, and the claim therefore failed.
Although it is difficult to reconcile Hughes and Doughty, both can be considered to turn on the concept of kinds of damage. In the former case, the foreseeable kind of damage was 'burns that might foreseeably be caused by an unsecured paraffin lamp', and thus included both burns from direct contact, but also explosions. In the latter, the kind of damage was 'burns that might foreseeably be caused by molten liquid', and thus included splash damage, but not the eruption from a previously unknown chemical reaction which injured the claimant.
The same principle can be seen to be applied in Tremain v Pike [1969] 1 WLR 1556. The claimant was employed as a herdsman on a farm by the defendants. He contracted leptospirosis (a bacterial infection) through exposure to rats’ urine. The judge found no breach of duty. Even assuming the farmers ought to have dealt with the infestation, the disease was a different kind of injury from the rat bites or food poisoning a reasonable farmer could have foreseen at the time. This can be contrasted with cases such as Jolley v Sutton London Borough Council - it is hardly novel medical science that children can be crushed by a falling boat.
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, and this point can be illustrated through an examination of the US case of Palsgraf v Long Island Railroad Co. 162 NE 99 (1928). The claimant was waiting for a train at the defendant's train station. As another train was pulling away, a passenger attempted to climb aboard. Two train guards attempted to help the passenger on board, and in doing so knocked a package he was carrying from his arms. Nothing about the package indicated that it contained volatile fireworks, and when the package hit the rails, the fireworks ignited. This caused an explosion which knocked scales at the far end of the platform onto the claimant, injuring her.
Exam Consideration: It should be noted that the claim failed (on the basis that, under the majority’s approach to duty in the New York Court of Appeals, the claimant was not owed a duty of care by the railway). Nevertheless, the facts provide a key example of how Hughes deals with unlikely series of events.
Under the old Re Polemis test the question would have been whether the damage was a direct consequence of negligence. Applying Hughes to the question of remoteness, the injured party would have to show that physical injury of that kind was reasonably foreseeable from the guards’ handling of the passenger and his package. The precise sequence involving the scales need not have been foreseeable. When this distinction is considered, further advantages emerge. We don't want defendants to prevent specific series of events from occurring; rather, we want them to take the proper precautions to prevent a potentially harmful object from harming anybody, regardless of the cause. Consider a grand piano secured with the thinnest and most fragile of wires above a busy thoroughfare. One day, a passer-by loses their glasses. It is a sunny day, and the glasses focus the sunlight onto a pile of leaves, and start a small fire. This fire startles a bird, which then flies off haphazardly and clips the piano, causing it to fall and crush another passer-by. This precise series of events is unforeseeable, but injury to a passer-by from the falling piano is foreseeable.
Consider the same setup, but this time it simply rains. The extra weight on the piano causes the wire to snap, dropping the piano onto a passer-by. This is far more foreseeable, and a claim would likely succeed. Regardless, the owner of the piano has been extremely careless in both scenarios, and so it would be nonsensical to let the first claim fail just because the entirely foreseeable harm of the piano falling was caused by an unforeseeable chain of events. We don't want the piano owner to take precautions just to avoid foreseeable chains of events - we want them to secure the piano full stop, so as to negate the general danger it presents. This is the benefit of the Hughes approach - it does not discriminate against claimants who are unlucky enough to be injured through odd circumstances. Instead, the claimant can recover compensation for injury of the foreseeable kind - a far more pragmatic formulation of tort law, which acts to minimise harm. At the same time, all it asks of defendants is that they take reasonable care against foreseeable harm, rather than all of the harms which might occur from a given object or activity - as seen in Doughty.
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. The defendants supplied volatile chemicals to the claimants without a warning that they would explode when in contact with water. One of the claimant's employees dropped a container of the chemical into a sink, where it broke. The explosion shattered other containers in the water and seriously damaged the claimant’s laboratory and equipment. Since it was foreseeable that, without sufficient warning, the chemical could cause an explosion on contact with water, the defendant was liable for the full extent of the damage.
Extensive damage will not be regarded as being too remote, even if that damage has unfolded in a unique or eccentric manner. Thus, in The Trecarrell [1973] 1 Lloyd’s Rep 402, an employee of a contractor working on the ship negligently dropped a barrel of flammable lacquer into the ship's hold. This severed an electric cable, which then shorted in the spilt contents of the barrel, causing an electrical fire. The defendants were liable for the full extent of the damages caused, since it was foreseeable that dropping a barrel of flammable lacquer might cause fire damage. This is essentially the same reasoning as seen in Hughes.
This stance reflects how we'd want tort law to operate - we would find it absurd for someone who negligently starts a fire to argue that they are only responsible for burning down the first two houses in a terrace, but not the third or fourth. Similarly, we would find it unjust if a drunk driver who caused a pileup could claim that they only foresaw creating a minor accident, but not a major one. Thus, at least in cases of physical damage or injury, defendants are responsible for the full extent of the damage they cause, even if that damage has unfolded in an unforeseeable 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 non-actionable harms. This can be seen in Crossley v Rawlinson [1981] 3 All ER 674. A lorry caught fire whilst travelling to its destination (the fire was caused by the defendant's negligence). The lorry's driver then pulled over onto the side of the road. The claimant, an AA patrolman, saw the fire from a nearby AA service centre, picked up a fire extinguisher, and ran towards the lorry to extinguish the fire. He caught his foot in a concealed hole, fell, and was injured. He brought a claim against the defendants on the basis that he was on the way to deal with the danger they had created. The claim, however, failed. On these facts the judge held that it was foreseeable that someone might be hurt dealing with the fire, but not that this patrolman would be injured running along the rough path towards it. Thus, the courts drew a distinction between the events of the fire itself (and anyone who was hurt in dealing with the fire directly) and the claimant's injuries.
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 applied an egg-shell skull rule for claimants, as per Smith v Leech Brain & Co Ltd [1962] 2 QB 405. The claimant’s husband was splashed with molten metal on his lip due to the defendant's negligence. His lip happened to be pre-malignant, and the burn caused cancer to develop, which then killed him. The defendant argued that, under The Wagon Mound (No. 1), this was not foreseeable, and so liability should not be imposed. However, the courts rejected this argument - it was foreseeable that some harm would occur from the burn.
Consider the difference between The Wagon Mound and Smith - in the former case, fire damage from the oil spill was unforeseeable on the evidence in that case, whilst in the latter case, harm was foreseeable, even if the exact extent of the harm was not. As such, the egg-shell skull rule dictates that defendants must take their claimants as they find them.
The physical surroundings may also increase the extent of property damage. One illustration is the Canadian contract case of Great Lakes Steamship Co v Maple Leaf Milling Co [1924] 41 TLR 21. The defendants were contracted to remove weight from a docked ship at a particular time. They failed to do so, and when the water level dropped, the ship was grounded and damaged (had the ship been light enough, it would have been higher in the water and saved from harm.) The damage was particularly extensive because, unbeknownst to the defendants, a large anchor was submerged below the ship. Nevertheless, the defendants were held to be liable for the full extent of the damage - in effect, the defendants had to take the external circumstances of the claimant as they found them.
For a period of time this rule did not apply to the financial circumstances of claimants, as in Liesbosch Dredger v SS Edison [1933] AC 449. The defendant negligently sank the claimant's dredger. Because of the claimant's financial situation, they could not afford to replace it, and so had to hire a replacement at a high cost. It was ruled that the claimant could not recover the additional hire charges attributable to their lack of funds as these did not stem from the defendant's negligence, but rather the claimant's own financial situation (their impecuniosity).
This exception has since been overruled in Lagden v O'Connor [2003] UKHL 64. Here, the defendant damaged the claimant's car, and the claimant had to rent a replacement. Because of the claimant's poor financial situation, they had to hire on credit, which was more expensive than paying for the hire outright. The House of Lords ruled that reasonable additional hire costs could be recovered where the claimant could not afford to hire without credit. It was foreseeable that an injured party might lack the means to pay in advance. The Liesbosch principle was held to be no longer good law.
A related question is whether a claimant acted reasonably in delaying expenditure on repairs. This is illustrated in Dodd Properties (Kent) Ltd v Canterbury City Council [1980] 1 WLR 433. The defendants erected a car park using a pile driver, and in doing so caused damage to the claimant's neighbouring property. The claimant opted to wait until the case had been decided before embarking on repairs. The case took some 8 years to be decided, and in that time inflation had increased the cost of repair. This left the court to decide which amount of damages was appropriate - the smaller cost of repair shortly after the damage occurred, or the greater cost of repair now that the case had been decided.
The courts ruled that the later value was the correct measure of damages - the claimant had acted reasonably in waiting until the outcome of the litigation before undertaking expensive repairs, given the substantial outlay while liability and the necessary works were disputed. It should however be noted that claimants must still act reasonably under this principle - they cannot, for example, refuse to undertake a £20 repair if this would prevent £20,000 of damage. It should also be noted that the general rule for assessing damages is that they are calculated at the date of the damage in tort, but the court may depart from this where justice requires it.
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. Consider a situation in which a car is damaged by a negligent driver, who pays compensation. The next week, the same car is negligently crushed into a cube by a parking official. The driver who merely damaged the car might argue that they should only have to pay compensation to cover one week's worth of damage, since the original damage to the car was overtaken by the act of crushing it. But the second accident does not cancel the loss in value the first driver had already caused.
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 defendant tossed a small lit firework into a crowded marketplace. It landed on a seller's market stall, where a man tossed the firework away to protect himself and the goods. It landed on another seller's stall, who then also tossed the firework away, where it hit the claimant, exploded, and blinded him in one eye. 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 natural and instinctive consequences of the original harmful act.
The same principle can be seen to be applied in The Oropesa [1943] 1 All ER 211. The Manchester Regiment was badly damaged in a collision with the Oropesa. The captain of the damaged ship attempted to travel across to the other ship to discuss how to save his vessel. The boat he was in overturned, and nine men died, including the engineer whose parents brought the claim. 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 may break the chain of causation. See Knightley v Johns and Others [1982] 1 WLR 349. The defendant negligently caused a car accident. In dealing with the accident, a senior police officer neglected to close the tunnel in which the accident had occurred. He then ordered two motorcycle officers to ride against traffic up the tunnel to close it. One of them was involved in another collision, and was badly injured. The court ruled that the original defendant was not liable for this injury - the inspector’s order to ride against traffic in breach of standing instructions broke the chain, and the inspector was liable for the motorcyclist's injuries. The same question can arise where the third party provides medical treatment. In Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB), the High Court rejected a fixed rule that the treatment must be grossly negligent before it can break the chain. The issue depends on the circumstances.
It is also possible for liability to be apportioned between the original wrongdoer and the third party. In Wright v Lodge & Shepherd [1993] 4 All ER 299 a driver broke down on a busy road, and failed to move her car off the carriageway in thick fog. This caused a lorry to crash into it. The lorry driver, driving recklessly in the fog, swerved onto the other side of the road, causing another crash to occur. The courts ruled that whilst the lorry driver had acted unreasonably, the first driver’s negligence in failing to move her car was also a cause of her passenger’s injuries. Responsibility for the passenger’s damages was apportioned 10% to the first driver and 90% to the lorry driver. The lorry driver alone was liable for the casualties on the opposite carriageway.
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 case went to trial, the claimant was the victim of an armed robbery at work, during which he was shot in the same injured leg. This meant his leg had to be amputated.
The House of Lords ruled that although the original injury was 'overtaken' by the new injury, this did not constitute an intervening act within tort. It was instead ruled that the original claim for compensation should remain in place - the robbers would only be liable for the additional loss caused by the shooting, so ending the first driver’s liability would leave part of the claimant’s loss uncompensated. 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.
This is arguably a logical position - compensation claims may include future losses. They then involve roughly ascertaining the loss to the claimant over the course of their lifetime, and then compensating the claimant accordingly. If claims were able to be changed based on things that happened to the claimant after the court's decision, then this would potentially open up all claims to re-evaluation.
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 claimed damages. 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 House of Lords ruled that the disease would have ended the claimant’s working life even without the injury. His employer was therefore only liable for loss of earnings during the three years between the injury and the onset of the new disease.
Whilst the House of Lords fell short of overruling Baker, they were critical of the decision, suggesting that Jobling represents the generally applicable law. The distinction appears to be that Baker involved a tortious intervening act (the shooting), where the second wrongdoer would be liable only for the additional loss, whereas Jobling involved a natural event (disease) which was not attributable to any tortfeasor. The principle from Jobling is that where a supervening illness or natural event, unconnected to the original tort, effectively overwhelms the original injury before trial, damages must reflect the loss the claimant would have suffered anyway.
Exam Consideration: The uncertain position regarding third party acts is somewhat problematic when it comes to finding the correct law to apply. In general, where the intervening event is a natural occurrence such as a disease, this will fall under Jobling. Where it is a tortious act by a third party, then Baker will likely apply, particularly where reducing the original defendant's liability would leave the loss caused by the first injury uncompensated. Regardless, such situations are rare - remember, the second harm has to occur pre-trial to be considered, since the courts will rarely go back to modify compensation agreements after the trial process has concluded.
Claimant Acts
There also exists the possibility for claimants 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.
Case in Focus: McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
The claimant was injured at work due to negligence on the part of his employer. This left him with a variety of minor temporary issues, including a weakened leg, which was prone to giving way. Three weeks later, when viewing a flat to rent, he attempted to descend a flight of stairs which did not have a handrail. The claimant's leg gave out, and the claimant jumped down the remaining 10 steps (in order to land on his feet, rather than fall). This fractured his ankle and left him with a permanent injury. The claimant claimed damages from his employer for this injury as well, asserting that the new injury was a consequence of the old injury.
Whilst the defendant accepted liability for the original injury, it disputed liability for this second injury. The House of Lords agreed, ruling that the claimant had acted unreasonably in descending the stairs without taking proper precautions (i.e. using support or seeking the assistance available to him).
The decisive point was the unreasonableness of the decision to descend the stairs without support, not simply whether a fall was foreseeable. A claimant’s deliberate act does not always break the chain. In Corr v IBC Vehicles Ltd [2008] UKHL 13 the employee’s suicide resulted from severe depression caused by his workplace injury. In Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 the police owed a duty to guard against the very act of suicide. In neither case did the suicide break the chain.
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 claimant (the Royal Norwegian Government) had one of its ships damaged by the defendant in a collision (and the defendant admitted fault). Temporary repairs in the UK made the ship seaworthy and she sailed to the US on hire. During the crossing, the claimant's ship sustained further damage when it was caught up in a storm. The collision and storm damage were repaired together. The claimants sought compensation for loss of use during the ten days allocated to the collision repairs.
The House of Lords rejected the claim for loss of use. The storm was an independent event, often described as a novus actus interveniens. Its damage alone would have kept the ship in dock for 30 days, including the ten days spent on collision repairs. Those repairs therefore caused no additional loss of earnings.
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