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Draft Causation and Fairness in the Law of Tort S H Bailey* Introduction

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Draft Causation and Fairness in the Law of Tort S H Bailey* Introduction Draft Causation and Fairness in the Law of Tort S H Bailey* Introduction 1. The purpose of this paper is to consider the role of what may be termed principles of “fairness, justice and reasonableness” in the law concerning causation in the law of tort, focusing in particular on the tort of negligence, in the light of some recent English cases. Context 2. We will start with some propositions about the law of causation in tort which should command general, although not necessarily universal support. 3. First, it seems generally recognised that a distinction is to be drawn between (1) the requirement that a tort claimant prove on the balance of probabilities that the defendant has in fact caused harm1 to him or her; and (2) the limitation that a tort defendant is not be held liable for all the consequences of his or her wrongful act or omission. Conventional terminology in English Law commonly characterises the first issue as one of “causation in fact” and the second as one of “remoteness of damage”.2 The standard phrase in US law equivalent to “remoteness of damage *Professor of Public Law, School of Law, University of Nottingham 1 In the case of many torts proof that harm of a relevant kind has been caused is an essential condition of liability. In the case of torts actionable per se this will commonly be needed as part of a claim for substantial damages. 2 Some accounts distinguish between “causation in law” (an exercise in identifying which one or more of two or more factual causes are to be regarded as the cause in law of the claimant’s damage) and “remoteness of damage”: see eg M.A.Jones, Textbook on Torts “ has been “proximate cause”. There are powerful arguments that labelling “remoteness of damage” or “proximate cause” as part of the law of causation is better avoided as it disguises the fact that the issues raised here are essentially ones as to whether the defendant ought to be held liable3 in the particular circumstances of the case.4 Nevertheless, it is difficult to escape the use of this language and its use is not really a problem if its limitations are properly borne in mind. 4. Secondly, the best starting point for an analysis of the structure of the law concerning remoteness of damage in tort is provided by the dicta of the late Lord Rodger in Simmons v British Steel plc:5 “These authorities suggest that, once liability is established any question of the remoteness of damage is to be approached along the following lines which may, of course, be open to refinement and development. (1) The starting point is that a defender is not liable for a consequence of a kind which is not reasonably foreseeable: M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Bourhill v Young 1942 SC (HL) 78, 85 per Lord Russell of Killowen; Allen v Barclay (1864) 2 M 873, 874 per Lord Kinloch. (2) While a defender is not liable for damage that was not reasonably foreseeable, it does not follow that he is liable for all damage that was reasonably foreseeable: depending on the circumstances, the defender may not be liable for damage caused by a novus actus interveniens or unreasonable conduct on the part of the pursuer, even if it was reasonably foreseeable: M’Kew v Holland & Hannen & Cubitts (Scotland) Ltd 1970 SC (HL) 20, 25 per Lord Reid; Lamb v Camden London Borough Council [1981] QB 625; but see Ward v Cannock Chase District Council [1986] Ch 546. (3) Subject to the qualification in (2), if the pursuer’s injury is of a kind that was foreseeable, the defender is (Oxford:OUP, 8th edn 2002), pp 250, 257-258; A.M.Dugdale and M.A.Jones, Clerk and Lindsell on Torts (London: Sweet and Maxwell, 19th edn, 2006), paras 2-69 – 2-151. 3 Or ought to be held liable for a particular head of damage. 4 See eg J. Stapleton “Unpacking Causation” in P. Cane and J. Gardner, Relating to Responsibility (2001), p.168 cited by Lord Nicholls in Kuwait Airways Corpn v Iraqi Airlines Co (Nos 4 and 5) [2002] UKHL 19, [2002] 2 A.C. 883, at paras [69] – [72]. 5 [2004] UKHL 20, [2004] I.C.R. 585 at para.[20]. liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen: Hughes v Lord Advocate 1963 SC (HL) 31, 38, 40 per Lord Reid. (4) The defender must take his victim as he finds him: Bourhill v Young 1942 SC (HL) at p 92 per Lord Wright; M’Killen v Barclay Curle & Co Ltd 1967 SLT 41, 42, per Lord President Clyde. (5) Subject again to the qualification in (2), where personal injury to the pursuer was reasonably foreseeable, the defender is liable for any personal injury, whether physical or psychiatric, which the pursuer suffers as a result of his wrongdoing: Page v Smith [1996] 1 A.C.155, 197F – H, per Lord Lloyd of Berwick.” This is helpful in setting out a relationship between the Wagon Mound principle (points 1 and 3) and issues arising from intervening causes (point 2). It is important to read point 4 in its context as a proposition that only concerns remoteness of damage and that only applies where the claimant has actually suffered damage that is in principle actionable;6 it does not apply so as to justify initial liability.7 Point 5 concerning Page v Smith needs rewording to make it clear that the Page v Smith principle can only come into play where it is reasonably foreseeable that the claimant might suffer physical as distinct from psychiatric injury.8 A further point that might usefully be incorporated separately9 is the proposition that a defendant is not to be held liable where his or her wrongful conduct has merely10 led to the claimant being at a particular place at a particular time where some harm is caused by a third force, this outcome being regarded as a “coincidence.”11 6 As in Smith v Leech, Brain & Co Ltd [1962] 2 Q.B.405. 7 This is the error made by the House of Lords in Page v Smith [1996] 1 Q.B.155, as demonstrated by Lord Goff in White v Chief Constable of South Yorkshire [1999] 2 A.C. 455, 475- 476. 8 See further S.H. Bailey and D. Nolan, “The Page v Smith saga” [2010] C.L.J.495. 9 The significance of this principle has perhaps been under-estimated in the courts; it has from time to time been applied without formal recognition. 10 In particular, where the defendant’s act has not increased the risk that such harm might be suffered. 11 See eg Lord Hoffmann in South Australia Asset Management Corp v York Montague Ltd. [1997] A.C.191, 213: “A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a 5. Thirdly, it is for the law to set out and define all the elements of a tort, and to determine whether establishment of any particular element is one of fact for the jury or judge (as trier of fact) or one of law for the judge. (It would be entirely understandable if, over time, the law were to adjust the content of a particular element to take account of the practical consequences of the change from trial by jury to trial by judge alone.) Accordingly, if it is indeed the case the courts determine causal questions on “common-sense principles”,12 then it is a rule of law that prescribes that approach. It is indeed reasonably common for courts to invoke “common-sense” as the explanation for at least some causal principles. However, the risks of such invocations have been recognised, for example by Lord Mance in ENF. Kos I Ltd v Peroles Brasiliero SA (No 2).13 “The selection of the proximate, determining or, in the more modern terminology, real or efficient cause for the purposes of an indemnity has traditionally been described as involving a ‘choice … to be made by applying common-sense standards as the man in the street or a business or seafaring man would apply them’ (see The Ann Stathatos (1949) 83 Ll. L. Rep. 228 at 236 per Devlin J, citing Lord Wright in Yorkshire Dale Steamship Co Ltd v Minister of War Transport, The Coxwold [1942] 2 All E.R. 6 at 15, [1942] AC 691 at 706)…. Such an approach does not, or should not, ‘conceal, or perhaps reveal’- in Lord Hoffmann’s extra-judicial words giving the Chancery Bar Association lecture in 1999 on ‘Common Sense and Causing Loss’-‘a complete absence of any form of reasoning’. Rather, it should involve superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee. On the Court of Appeal's principle, the doctor is responsible for the injury suffered by the mountaineer because it is damage which would not have occurred if he had been given correct information about his knee. He would not have gone on the expedition and would have suffered no injury. On what I have suggested is the more usual principle, the doctor is not liable.
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