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214 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NEGLIGENCE

not to be a cause of the death because, even if the deceased had been examined and treated with proper care, the probability was that it would have been impossible to save his life by the time he arrived at the hospital. The claimant's claim therefore failed.²* However, care rnust be taken to determine for causation purposes what the law regards as loss Thus, if D converts C's goods that makes him liable for their value and he cannot escape by showing that, even if he had not done so, the goods would have been destroyed by some other agency.²⁷

Multiple causation

6.7 Although the but-for test is a useful rule of thumb,²* its application leads to results which appear to defy common sense where there is morę than one cause which alone would be sufficient to produce the result, as where A and B at the same moment inflict fatal injuries upon C.²⁹ In such a case, there is no doubt that, however we justify it,³⁰ each wrongdoer is liable in fuli for the loss, subject to the right of contribution against the other (a matter which does not concern the claimant).³¹ The position is the same where the injury is produced by a combination of the defendant's tort and some innocent cause, as where the claimant contracted a lung condition from the combination of dust which the defendants had created in breach of safety regulations and other dust which was an inevitable accompaniment of the activity.³² The same approach to multiple causes underlies the law where the claimant is partly to blame for his own loss, save that there the damages are reduced in proportion to his share of the blame.³³ In all these cases we can say that the defendant's act madę a materiał contribution to the claimant's loss and that is all that is required.³⁴ There may now be a greater willingness than in the past to accept that an injury is divisible and that each defendant is liable to the claimant only for that portion of the harm that he caused and this is

Sec also McWilliams r. Sir William Arrol & Co. Ud [1962J 1 W.LR. 295. Weir. Casebook on Tort (9th ed), p. 211 (death by falling; breach of employer's duty to provide safety harness; evidence showed that deceased would not have used it).

Kuuait Airways Corp v. traą Airways Ce. (Nos. 4 and 5) (20011 3 W.LR. 1117. para 17.27. below. So also if C's consent to a trespass to his person is obtained by a misrepresentation by D which is sufficient to yitiate C's consent. it is irrelevant that C would have consented had he known the truth: Chatterton : Gerson |1981) Q.B. 432. Trespass to the person is actionable per se, but it seems that the hypothefical issue is inrelevant even to a claim for actual damage suftered.

"Although it often yields the right answer, (it] does not always do so": Lord Słeyn in Smith New Court Securities Ud v. Scrimgeour Vickers (Asset Management) Ud 11997) A.C. 254 at 285.

**On one view of the facts Roberts v. j.W. Word & Son (1981) 126 S.J. 120 involved two errors by the defendants which were both fatal to the claimants contract but only one of which was negligent. The CA said that in this event the defendants would not be allowed to set up their innocent error to escape the consequences of their negligence. Nor can a defendant say that his breach of duty A was not a cau-e of the claimanfs injury because anyway he would have committed breach of duty B which would ha" had the same effect: Botitho v. City and Hackney H.A. (19971 A.C. 232 at 240. ^v’See Wright, "Causation in Tort Law" (1985) 73 Cal. L.Kev. 1735 and Honore, loc. cit.

See Chap. 21, below.

^M Bonnmgton Castingu Ud v. Wardlaw (1956) A.C. 613.

"See para. 6.39, below.

^w For a useful review. see Athey r. Leoitati (19%) 140 D.L.R. (4th) 235.

jiscussed in Chapter 21. However, as a matter of principle no one denies that an indivisible loss may have two sufficient causes.

Matters become morę complicated where the claimant is affected by tvvro successive events or where the act of the defendant precludes the ₀peration of some other cause which would otherwise have taken effect. If D injures or kills C then it is of course obvious that C would have one day died anyway and the law, therefore, limits the damages recoverable hy C or his dependants by reference to Cs pre-accident life expectancy: if D kills a person who is very old or who is suffering from a terminal disease he is undoubtedly liable for the death, but the damages will be _much lower than they would be in the case of a young, healthy victim.^ So also if D seriously injures C and, before Cs action comes to a trial, C dies from some wholly unrelated cause, the damages payable by D will be limited to those representing the loss incurred before the death.¹' But in other cases it may not be so easy to determine whether the later event obliterates the causative effect of the defendants act.

In Baker u. Willoughby,³⁷ as a result of the defendants negligence, the claimant suffered an injury to his left leg and, taking both past and futurę losses into account, the judge assessed his damages, on the basis of fuli liability,³⁸ at £1,600. Before the trial, however, and while the claimant was working at a new job he had taken up after his accident, he was the victim of an armed robbery in the course of which he suffered gunshot wounds to his left leg of such severity that the leg had to be amputated. The defendant therefore argued that his liability was limited to the loss suffered before the datę of the robbery: all loss suffered thereafter was merged in and flowed from the robbery.³^ This argument was rejected by the House of Lords because it produced a manifest injustice. Even if the robbers had been successfully sued to judgment,⁴⁰ they would only have been liable to the claimant for depriving him of an already damaged leg⁴¹ and the claimant would, therefore, have been left uncompensated in the period after the robbery for the "difference" between a sound leg and a

1

Smith dl Cawdlc Fen Commissioners (1938] 4 All E.R. 64 at 71; Dilloit v. Twin State Cas and Electric Co. 163 A. 111 (N.H. 1932).

^H A well known conundrum is the following: D injures C in a road accident while C is on the way to the airport. crippling him for life. The aireraft on which C was booked crashcs, killing all on board. We cannot, without a degree of fiction, escape by saying that C might not have taken the flight, but there a reluctance to accept that D escapes liability for losses after the nodonal death.

*(19701 A.C 467.

The claimant was 25% contnbutorily negligent.

Notę that in a purely factual sense the accident was a cause of the injury in the robbery sińce the claimant changed his job as a result of the accident. But it could not possibly be contended that the defendant was liable in law for the shooting: Carslogie 5.5. Ce. Ltd v. Roual NoruYgian Gmrentment (19521 A.C. 292 and para. 6.33, below.

The speeches do not disclose whether the claimant madę any claim under the Criminal Injuries Compensation Scheme.

*' Performance Cnr> Ud v. Abraham |1962] 1 Q.B. 33; Baker v. Willoughby |1970| A.C. 467 at 495. An argument that the robbers would in theory be liable for the whole of the daimant's loss because they had reduced the value of his right of action against the defendant was rejected: ibid., at 496. cf. Griffiths v. Commonwealth (1983) 50 A.C.T.K. 7. However, an award ot this naturę was madę in the fatal accident case of Singli v. Aitken 119981 P.I.Q.R. Q37, though Baker v. Willoughby is not mentioned in the judgment In any event, to have held that the claimant had a complete remedy against the robbers would have brought him little comfort, though it would inerease a criminal injuries compensation claim on such facts