A defendant is not liable in Negligence unless Plaintiff’s lose (damage) has been caused by the negligence of the defendant.
There are 2 types of causation:
1. Causation in fact
2. Causation in law (remoteness of damages)
* Causation of Facts – Whether as a matter of facts, the D’s negligence was a cause of the P’s loss.
The ‘but for’ Test
The damage to plaintiff would not have taken place ‘but for’ the defendant’s breach – most widely used concept to establish the damage is.
Govt of Malaysia v Jumat b. Mohamed – Even if the teacher had provided sufficient supervision, still the injury would have taken place. P injured his right eye due to mischievous act of pupil. Therefore, teacher is not liable.
Barnett v Chelsea H.M.C. - even if the doctor had examined her husband and treated him, her husband would still have died from the poisoning. Doctor’s negligence was not the cause of her husband’s death.
Mohamed Raihan & Anor v Govt of Malaysia – P was accidently strucked with cangkol during practical gardening session in school. His scull fractured. Federal Court held that giving warning not to fool around is insufficient especially went handling cangkul. Fail to take all reasonable and proper steps to prevent injury. D is liable.
Ang Chai Ha & Ors v Sri Jaya Transport – D’s bus collided with P’s car and caught fire. P died due to burn. D contends that he was negligence but the fire was due to petrol found in P’s car. Since the petrol were intact and the actual cause was the spark produced by the collision and so D is negligence.
Scope of ‘but for’ Test
Materially increasing the risk of injury
If it is unclear whether or not the damage to the Plaintiff has been caused by the Defendant, then it is enough for P to proof on the balance of probabilities that D has increased the risk.
Mc Ghee v National Coal Board – The P claimed damages in respect of his employers fault in failing to provide adequate washing facilities. It was held that D’s breach of duty had increased the risk.
Multiple Causes
Where there is more than one cause of the damage to P, the ‘but for’ test run into difficulties. D can escape liability.
Wilsher v Essex AHA – P who was born prematurely received oxygen therapy during the first 30 hours of his life and was almost blind. There were 5 possible causes including excess oxygen tension in blood. House of Lords : D is not liable. (please also refer Kay v Ayrshira)
Problem with ‘but for’ Test
Negligence Omission
In cases of negligent omission, the ‘but for’ test deny the P’s claim.
Mc Williams v Sir William Arrol Co. – Even id D had supplied the safety belt, P would not have worn it and so would have fallen to his death. Here the court will infer from the situations.
Successive Torts
If the P suffers 2 successive injuries the second tort feasor is free from blame.
Baker v Willoughby – D negligently injured the left leg of P in car accident. Later P sustained a gun shot at robbery at the same leg and it must be amputated. D argued that he is only liable until the shooting. House of Lord disagree with D because the supervene event has not made P less lame nor less disable etc.
Jobling v Associated Diaries Ltd. – P suffers injury at back at work in 1973 due to D’s breach of statutory duty. In 1976 P suffers disease which makes him totally unfit for work. House of Lord held that D is not liable for loss of earning suffered by P after 1976. Contrast with Baker’s case.
See further Baker's and Jobling's case.
There are 2 types of causation:
1. Causation in fact
2. Causation in law (remoteness of damages)
* Causation of Facts – Whether as a matter of facts, the D’s negligence was a cause of the P’s loss.
The ‘but for’ Test
The damage to plaintiff would not have taken place ‘but for’ the defendant’s breach – most widely used concept to establish the damage is.
Govt of Malaysia v Jumat b. Mohamed – Even if the teacher had provided sufficient supervision, still the injury would have taken place. P injured his right eye due to mischievous act of pupil. Therefore, teacher is not liable.
Barnett v Chelsea H.M.C. - even if the doctor had examined her husband and treated him, her husband would still have died from the poisoning. Doctor’s negligence was not the cause of her husband’s death.
Mohamed Raihan & Anor v Govt of Malaysia – P was accidently strucked with cangkol during practical gardening session in school. His scull fractured. Federal Court held that giving warning not to fool around is insufficient especially went handling cangkul. Fail to take all reasonable and proper steps to prevent injury. D is liable.
Ang Chai Ha & Ors v Sri Jaya Transport – D’s bus collided with P’s car and caught fire. P died due to burn. D contends that he was negligence but the fire was due to petrol found in P’s car. Since the petrol were intact and the actual cause was the spark produced by the collision and so D is negligence.
Scope of ‘but for’ Test
Materially increasing the risk of injury
If it is unclear whether or not the damage to the Plaintiff has been caused by the Defendant, then it is enough for P to proof on the balance of probabilities that D has increased the risk.
Mc Ghee v National Coal Board – The P claimed damages in respect of his employers fault in failing to provide adequate washing facilities. It was held that D’s breach of duty had increased the risk.
Multiple Causes
Where there is more than one cause of the damage to P, the ‘but for’ test run into difficulties. D can escape liability.
Wilsher v Essex AHA – P who was born prematurely received oxygen therapy during the first 30 hours of his life and was almost blind. There were 5 possible causes including excess oxygen tension in blood. House of Lords : D is not liable. (please also refer Kay v Ayrshira)
Problem with ‘but for’ Test
Negligence Omission
In cases of negligent omission, the ‘but for’ test deny the P’s claim.
Mc Williams v Sir William Arrol Co. – Even id D had supplied the safety belt, P would not have worn it and so would have fallen to his death. Here the court will infer from the situations.
Successive Torts
If the P suffers 2 successive injuries the second tort feasor is free from blame.
Baker v Willoughby – D negligently injured the left leg of P in car accident. Later P sustained a gun shot at robbery at the same leg and it must be amputated. D argued that he is only liable until the shooting. House of Lord disagree with D because the supervene event has not made P less lame nor less disable etc.
Jobling v Associated Diaries Ltd. – P suffers injury at back at work in 1973 due to D’s breach of statutory duty. In 1976 P suffers disease which makes him totally unfit for work. House of Lord held that D is not liable for loss of earning suffered by P after 1976. Contrast with Baker’s case.
See further Baker's and Jobling's case.
