3.2.2 Intervening Acts and Remoteness Lecture


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.

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