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210 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NHGI IGENCE

Terminology

Although the generał principles of the law dealt with in this chapter a_rę elear enough, the topie is difficult to expound because, as is so often th_e case, our terminology is not consistent. The first part of this chapt_er "Causation in Fact", is concerned with a question which arises (at least in theory) in every case, that is to say, whether the defendant's aet (_0r omission) should be exeluded from the events which contributed to the oceurrence of the claimant's loss. If it is so excluded, that is the end of the case, for if there is no connection between the defendant's aet and the loss there is no reason for a private law system of liability to operate with regard to him. It is conceivable that in another society or another time or in a different context it might be regarded as a good reason for saying that A must pay for damage suffered by B, that A was rich and B was poor, or that A was head of B's elan; or we might, as to some extent we do, decide that soeiety as a whole should pay for B's loss. But to our way of thinking the necessary bedrock of tort liability is at least a causal connection between A's aet and B's loss,*’ and if what A did madę no contribution to the situation in which B now finds himself the connection is absent, whatever other legał sanctions (the criminal law, professional discipline) may be directed at A's behaviour. At this stage we are not concerned with whether the defendant's act was the cause (or even an important cause) but whether it was a cause, whether it is relevant to B's loss. If we conclude that it was, we move on to consider whether it was a sufficiently legally effective cause among the complex of other causes (and there may be many) to justify imposing tort liability on the defendant. Suppose D leaves a loaded gun in an unlocked cupboard, X steals it and uses it to murder C. D's breach of duty in failing to lock up the gun was a cause of C's death in the sense used at this first stage because had the gun not been available X would not have used it to kill C (though he might of course have done so at another time with another weapon). But a court is likely to say that if X is an adult of sound mind, then X, not D, is responsible for Cs death and to speak in terms of X's act being "the cause" or of X's act having "broken the chain of causation" between D's negligence and C s death/ The first stage of causation is primarily⁸ a matter of historical mechanics (though it necessarily involves hypothetical questions about what would have happened in different circumstances—"but for the defendant's act would the damage have occurred?"). At the second stage.

" Sindeti v. Abbot Lnborałorit*s 607 P. 2d 924 (1980), where a Californian court imposed a "market share proportion” liability upon manufacłurers of a generic drug when the claimant could not show which manufacturer produced the batch in question may be regarde<l either as extreme modifkation ot private law principles to cope with damage done by one of a group, or as an ad hoc, judicially created and industry based social security system.

See also Lord I loffmann's illustration of the theft of a car radio in F.mrironninit Ageitcy v. Etnptrss O' Ca (Abtrlillcry) Lid |1999| 2 A.C. 22 at 29, where he points out that the meaning of "cause", like that of most words, depends on the conteM in which it is used. While at the trial of the thief we would unhesitatingl) say that his act caused the loss of the radio, the owner's spt>use might also properly sav by way of complaint. that the owner's negligence in leaving it in the car had caused its loss.

' Though not entirely, see below.

though there is a tendency to use mechanical metaphors about chains links, the issue is essentiaily one of fairness and of legał policy: if a ^ild had taken the gun in our example and shot C while playing with it, would probably readily agree that Cs death was well within the risk o^ated by D's negligence in leaving it about, but sińce X used it wilfully ₀ur notions of individual responsibility push us towards the condusion that what X did overwhelms D's fault and renders it part of the historyk

6.4

There are two reasons why the statenients about causation in the case j_aw are not easy to reconcile and one of them really concerns terminology rather than substance. In the first place, there is a practice of using the phrase "remoteness of damage" to describe the problem in many cases which fali within the second stage, remoteness being determined in most cases by a test of foreseeability, and one can get the impression that remoteness and causation in this second stage sense are two distinct things.¹⁰ Thus, in the wharf fire case referred to above, the Privy Council, in adopting a test whereby the defendants' liability for the fire turned on whether it could reasonably have been foreseen, said that in this way we could avoid the "never ending and insoluble problems of causation".ⁿ Yet, an examination of the judgment shows that it is replete with causal language. A consequence is a correlative of a cause and to say that the defendant is liable for the foreseeable consequences of his actions is simply to set the criterion of foreseeability for the issue of a legally operative cause, just as directness of consequence was used in earlier cases. The spilling of the oil undoubtedly was a cause of the fire but in the court's view the fact that the consequential fire was unforeseeable meant that it was not a cause which should be treated as an operative one in law for the purpose of imposing liability. It may well be true that it is morę natural to speak in direct and unambiguous causal terms in certain types of case (for example where some intervening act¹² or event comes on the scene after the defendant has committed the breach of duty) but this should not obscure the fact that remoteness is essentiaily an aspect of causation. It might be better if we abandoned the language of remoteness

■ Set* Etmironment Agency v. T.mpress Car Co. (Abertillery) Lhl, above at [1999| 2 A.C. 30. This is not to say. of course. that a negligent D can never be liable for wilful harm inflicted by another para. 6.35, below.

¹⁰ See, e.g. Staughton L.J. in Wright v. Lixige [19931 4 Ali E.R. 299 at 309 (which is plainly a case about whether the gross negligence of the second defendant bmke the chain of causation): "Causation is not fhe same as remoteness of damage. Foreseeability may be a useful guide, but it is by no means the true criterion." See also the same judge in the context of contract in Total Transport Corporation v. Arcadia Petroleum l.td. The Times, December 16, 1997: "the word 'remoteness' is often used to refer both to causation and to the ojuestion whether loss was foreseeable or within the reasonable contemplation of fhe parties. It was so used by Rix J. in the present case at (19961 2 Lloyd's Rep. 423, following McGregor on Damages (198$) para. 131. Withouł entering upon the nghts and wrongs of the matter, I propose to ose remoteness to describe only the issue whether loss is outside the scope of recoeery because it was not within the reasonable contemplation of the parties." cf. Lord Steyn in Smith Kac Court Securities Ud p. Scrimgeour Vickers (Asset Management i l.td, 11997| A.C. 234 at 284 who seems to use "causation" onl v •n the sense of the first stage.

“U9611 A.C.at 423.

Wright v. Lodge, above, was a case of this type.