Damage, Causation and Remoteness

In one line

The plaintiff must show that the breach caused his damage and that the damage was not too remote a consequence of it.

In the wording a student can write in an exam: damage is the third essential of negligence, and it must be both caused by the breach and not too remote; causation is tested by asking whether the harm would have occurred but for the defendant's breach, subject to the rules on multiple causes and on a novus actus interveniens; remoteness limits liability to consequences of a kind that were reasonably foreseeable, which is the test of The Wagon Mound, preferred to the older test of direct consequences in Re Polemis.

Causation: the but-for test

Ask: would the harm have happened but for the defendant's breach? If it would have happened anyway, the breach did not cause it and the claim fails, however careless the defendant was.

Multiple causes. Where two causes each would have been sufficient, the but-for test breaks down and the courts ask instead whether the breach materially contributed to the harm.

Novus actus interveniens is Latin for a new act intervening. Where an independent act breaks the chain of causation, the defendant is not liable for what follows. The act must be truly independent: the intervention of a rescuer, of a doctor treating the injury, or of the plaintiff acting reasonably in the emergency the defendant created does not break the chain.

Remoteness: how far down the chain does liability run?

Every act has endless consequences. The law stops somewhere, and the two candidates for where are these.

The test of directness, associated with Re Polemis: a defendant is liable for all the direct consequences of his negligent act, whether or not they were foreseeable.

The test of reasonable foresight, associated with The Wagon Mound: a defendant is liable only for consequences of a kind that a reasonable person would have foreseen. This is the test now generally applied.

Two refinements matter.

The kind of harm, not its extent, must be foreseeable. If personal injury of some sort was foreseeable, it is no answer that the injury turned out far worse than expected.

The eggshell skull rule. A defendant takes his victim as he finds him. If a foreseeable blow causes far greater harm because the plaintiff has a thin skull, a weak heart or an unusual condition, the defendant is liable for the whole of it.

The Indian case decided on remoteness

Facts. Rajkot Municipal Corporation v. Manjulben Jayantilal Nakum, (1997) 9 SCC 552, decided on 17 January 1997. A pedestrian was killed when a roadside tree maintained by the Municipal Corporation fell on him. The trial court and the High Court held the Corporation liable on the footing that its power to maintain roadside trees carried an absolute duty to keep them safe.