Principles of Tort Law

INTRODUCTION

In most cases, C will have to prove a causal link between D's breach and his own damage on the balance of probabilities. In rare cases, something less than proof on the balance of probabilities will be sufficient to fix D with liability in negligence for causing C physical, property or economic damage.

A few introductory points will predicate the difficult issues which arise under this element.

Principles, with a splash of ‘common sense’

Causation is, arguably, the most doctrinally complex of the elements of negligence. In most cases, the application of causation principles is straightforward. In other cases, however, some judicial statements verge on the despairing, when discussing the area's difficulties. Recently, in Zurich Ins plc v UK Branch v Intl Energy Group Ltd, Lord Mance admitted that ‘the courts are still working out the implications’ of previous appellate rulings on causation, whilst in Sienkiewicz v Greif (UK) Ltd, Lady Hale ‘pit[ied] the practitioners, as well as the academics, who have to make sense of our judgments in difficult cases’ in this nook of the law.

Indeed, at one end of the spectrum, some senior appellate judges have described causation as a question of mere pragmatism and ‘common sense’. In BAI Run-Off Ltd v Durham (the Trigger Litigation), Lord Mance noted that causation ‘[n]ormally … reflect[s] a common sense understanding of what is ordinarily understood when we speak of a cause’; in Stapley v Gypsum Mines, Lord Reid said that causation ‘must be determined by applying common sense to the facts of each particular case’; while in McGhee v National Coal Board, Lord Wilberforce decried that causation ‘is not based on logic or philosophy, [but] on the practical way in which the ordinary man's mind works in the everyday affairs of life’.

At the other end of the spectrum, however, some judges have vigorously disagreed with that notion. In Six Continents Retail Ltd v Carford Catering Ltd, Laws LJ said that ‘an appeal to common sense is sometimes apt to be little more than an alibi for want of principle’, and likened causation to ‘metaphysics’.