The effect of the Claimant's own actions on causation
Causation is a key element of a Claimant proving liability in a negligence claim – the Claimant must show that the Defendant's negligence caused the injury or damage for which compensation is being claimed.
Despite its importance it is often something of a background issue, frequently because the causative link between negligence and damage is in fact obvious. For example if a householder knows that their dog has a tendency to bite postmen, but the dog is left loose in the front garden when the postman is due to call, it will not be difficult for the postman to establish that their ensuing bite injury was caused by the householder's failure to keep the dog indoors.
But what happens to the question of causation when the Claimant's own actions cause or contribute to their injury? Would the householder be held responsible if the postman strayed into the road whilst trying to run away from the dog, and was hit by a car, causing much more serious injuries?
The significance of this sort of intervening act on the Claimant's part was considered recently in the case of Craig Sparrow v Arnaud Andre.
The Claimant suffered serious injuries in an unfortunate and, frankly, quite bizarre episode which took place in a car park in West London.
At the time of the incident, the Claimant was stationary in the car park when the Defendant's vehicle hit his car. The Claimant got out of his car to speak to the Defendant, but unfortunately did not place his car in "park". As a result his car, with his children still inside, began rolling down a very gradual incline, towards a building which housed a number of propane canisters.
The Claimant attempted to hold the car back, but unfortunately it crushed his leg against a metal pole. As a result of his injuries, the Claimant's leg had to be amputated.
The Defendant accepted that the initial incident was caused by his negligence. The main issue before the Court was whether the Claimant's failure to leave the car with the brake on amounted to an act which broke the chain of causation.
The first point the Court considered was the "but for" test, and specifically whether, but for the initial minor collision, the subsequent serious injury would have occurred? Unsurprisingly, the Judge ruled that it would not have occurred had the original collision not happened.
Next, the Court had to consider foreseeability. In this context, the Judge concluded that the Court only had to consider whether the broad type of damage, namely an injury to the Claimant, was foreseeable as a result of the original incident. Unsurprisingly, as the injury stemmed from a collision between two vehicles the Claimant was able to pass this test, as the Judge decided that personal injury of some sort was foreseeable, even if the precise, and serious, nature of the injury (ie eventual amputation of the Claimant's leg) was not.
Thirdly, and most importantly, the Court had to consider whether by leaving the car without its brake on, the Claimant created a break in the chain of causation. Having considered previous cases on the issue, the Judge noted that an action would only be considered to be a break in the chain of causation if that action was unreasonable, to the extent that it would not then be fair, just and reasonable for the Defendant to be considered liable for the ensuing damage.
In this case the Judge concluded that although the Claimant had been negligent, his conduct was not so unreasonable as to break the chain of causation. The Claimant's negligence was: "…secondary to, and arose in the context of, the Defendant's primary breach of duty."
The Claimant's damages were however reduced by 60% to reflect his contributory negligence.
This case shows that it can be difficult to prove that a Claimant's questionable own actions constitute a break in the chain of causation.
In the hypothetical example above, where the postman is struck by a car whilst running away from the householder's dog, the "but for" test is satisfied (the postman would not have run into the road but for the dog biting him). Furthermore the type of damage – namely personal injury - was foreseeable, even if the nature and extent of those injuries were far more severe than would have been anticipated from a dog bite.
Finally, it is likely that a Court would conclude that the postman's actions were a reasonable reaction to being bitten by the dog, and that they constituted part of the same set of events that were set in train by the householder's failure to keep the dog indoors.
The householder's insurers could of course argue for contributory negligence on the basis that the postman should have taken more care not to run into the road. The car driver's insurers may also have to contribute to the claim, depending on the standard of their driving.
Another hypothetical example, this time involving property damage, would give rise to a more arguable situation. If a householder knew that a redundant chimney stack on their property was in danger of collapsing, but did nothing to alleviate the danger, there will be little sympathy for an argument that their failure to take action did not cause damage to their neighbour's roof which ensued when the chimney collapsed.
But what if the neighbour decided, a couple of weeks later, to fix the damage to his roofing felt himself, using a blowtorch borrowed from a friend, and set fire to the roof? The "but for" test would still be passed, but the insurers of the defendant householder could mount a good argument that the type of damage which occurred (ie fire damage) was not a foreseeable consequence of the collapse of a redundant chimney.
However the strongest argument on causation would be one of reasonableness; would it be fair, just and reasonable to hold the Defendant responsible for his neighbour setting fire to his own roof? Every case will turn on its own facts, and here in particular the neighbour's previous experience of using a blowtorch will be central to an assessment of the unreasonableness of his actions, but this scenario could well constitute a break in the chain of causation.