Causation and remoteness of damage — practice questions

This scenario is based on Overseas Tankship (UK) v Morts Dock (The Wagon Mound No 1) [1961].

1. Factual Causation: The 'but-for' test is applied: 'But for' the negligent oil spill, would the fire damage have occurred? No. The oil provided the fuel for the fire. Therefore, factual causation is established.

2. Legal Causation (Remoteness): The key issue is whether the fire damage was too remote. The test from The Wagon Mound is whether the type or kind of damage was reasonably foreseeable.

• Defendant's Argument: The only foreseeable damage from an oil spill was 'fouling' damage (i.e., the wharf getting coated in oil). Fire damage was not foreseeable, according to scientific opinion at the time.
• Court's Analysis: The Privy Council agreed with the defendant. It held that the test for remoteness is the reasonable foreseeability of the kind of damage. Since fire damage was considered unforeseeable, it was too remote from the original negligent act.
• Conclusion: Under the rule in The Wagon Mound (No. 1), the defendant would not be liable for the fire damage, only for the foreseeable fouling damage. This overruled the old Re Polemis test, which would have made D liable for all direct consequences.

Evaluation: This case establishes the modern test for remoteness. Liability is limited to the foreseeable consequences of a negligent act, creating a fairer and more predictable system than the previous 'direct consequence' test.

1. Identify the Initial Tort and Damage: David's negligent driving caused Priya's initial leg fracture. This is a breach of the duty of care owed by one road user to another.

2. Factual Causation ('But For' Test): 'But for' David's negligence, Priya would not have suffered the initial leg fracture and the associated £20,000 loss. Factual causation for the initial injury is clearly established.

3. Analyse the Intervening Act (Novus Actus Interveniens): The key issue is whether Priya's act of going skiing breaks the chain of causation for the more severe injury.

• The act is by the claimant herself. The test is whether her act was so unreasonable as to be unforeseeable. See McKew v Holland.
• Priya went skiing 'against her doctor's explicit advice'. This is a highly unreasonable and reckless act for someone recovering from a leg fracture.
• Therefore, her decision to go skiing constitutes a novus actus interveniens. It breaks the chain of causation between David's initial negligence and the subsequent amputation.

4. Calculate the Damages: Because the chain of causation is broken, David is only liable for the damage that occurred before the intervening act.

• Initial Injury Loss: The foreseeable loss from the original fracture was £20,000.
• Subsequent Injury Loss: The additional loss of £230,000 (£250,000 total - £20,000 initial) was caused by Priya's own unreasonable act, not David's negligence.
• Calculation:
  • Total potential claim: £250,000
  • Loss caused by novus actus: £230,000
  • Damages payable by David = Total Claim - Loss from Novus Actus
  • $£250,000 - £230,000 = £20,000$

5. Final Answer: David is liable to pay Priya £20,000 in damages. He is not liable for the additional harm resulting from her unreasonable decision to go skiing.