3.2.2 Intervening Acts and Remoteness Lecture
Harm is only legally ‘caused’ by a defendant where the causal link between the defendant action and the claimant harm is sufficiently close.
The damage must be foreseeable before it is actionable (The Wagon Mound (No 1)). Foreseeability, or remoteness, has been refined in the case law:
- 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 (The Wagon Mount (No 2)).
- Though the nature of the harm cause must be foreseeable, the way the damage is done does not need to be (Hughes v Lord Advocate ). However, the harm in such instances must be exactly that that is foreseeable, and not similar harm caused by other means (Doughty v Turner Manufacturing Co Ltd ).
- The extent of damage does not need to be foreseeable (Vacwell Engineering Co v BDH Chemicals ). However actionable damage will only be that which is actually caused by the relevant events (Crossley v Rawlinson ).
- It does not need to be foreseeable that the claimant may have an ‘egg-shell’ vulnerability if the initial harm is foreseeable (Smith v Leech Brain & Co Ltd ).
Intervening Acts (or Novus Actus Interveniens)
Certain events may break the chain of causation between the defendant’s actions and the claimant’s injuries. There are three distinct types of intervening act:
- Third party acts:
A third party act will not intervene where the acts can be said to be a consequence of the original harm (Scott v Shepherd ). Unreasonable and unforeseeable acts, however, will break the chain of causation (Knightley v Johns and Others ). It may also be that harm can be apportioned between the original defendant and the third party (Wright v Lodge & Shepherd ).
A third party act will not generally intervene, despite being unrelated to the original harm, where it ‘overtakes’ that original harm (Baker v Willoughby ). However, this decision has been criticised (Jobling v Associated Dairies ).
- Claimant acts:
Where the claimant acts unreasonably and without proper precaution, this may be enough to break the chain of causation between the defendant’s acts and the eventual harm (McKew v Holland & Hannen & Cubitts (Scotland) Ltd ).
- Acts of nature:
An act of nature may break the causal chain (Carslogie Steamship Co Ltd v Royal Norwegian Government ).
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