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DR. RAM MAHOHAR LOHIYA NATIONAL LAW UNIVERSITY

LAW OF TORTS
PROJECT ON:
(FINAL DRAFT)

Role of Causation and Remoteness in Tortious Liability

SUBMITTED BY:

UNDER THE GUIDANCE OF:

KARTIKEY PANDEY

Dr. R K YADAV

ROLL NO: 069

ASST. PROF. (LAW)

SECTION A

DR. RAM MANOHAR LOHIYA

B.A. LL.B (Hons.), SEMESTER II

NATIONAL LAW UNIVERSITY

Kartikey Pandey---BA LLB (hons.)---Sem. 2---069

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ACKNOWLEGMENT
On the very outset of this project, I would like to extend my sincere and heartfelt obligation
towards all people that have helped me in this endeavor.
I am forever indebted to Dr. RAJNEESH KUMAR YADAV Sir for her continuous guidance
and for being such a great mentor to me.
I am extremely thankful to the Librarian and the faculty present at the library who have
enabled me to pursue my research efficiently.
I also acknowledge with a great sense of reverence my gratitude towards my parents who
have supported me both morally as well as economically.
And last but not the least, my gratitude goes to all my friends and seniors who have directly
or indirectly contributed in helping me finish this project.
I also thank God Almighty without whom this project would never have achieved fulfilment.

Kartikey Pandey---BA LLB (hons.)---Sem. 2---069

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Table of Contents
ACKNOWLEGMENT...................................................................2
TABLE OF CASES.......................................................................3
INTRODUCTION........................................................................4
Tests of Causation and Remoteness........................................5
Test of causal Relationship......................................................5
Remoteness..............................................................................7
Foreseeability Test of Remoteness..........................................7
Alternatives to the Tests of Causation and Remoteness............9
Material Test as an Alternative to the BUT FOR TEST........9
Harm-within-the-risk test as an alternative to the
foreseeability.........................................................................10
Conclusion................................................................................13
BIBLIOGRAPHY........................................................................14
BOOKS...................................................................................14
Online Resources...................................................................14

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TABLE OF CASES
1. Baker v. Willoghby [1969] 3 All ER 1528
2. Clements v. Clements [2012] 2 SCR 181
3. Hughes v. Lord Advocate [1963] 1 All ER 705
4. Mc Manus v. Beckham [2002] 4 All ER 497
5. McGhee v. National Coal Board [1972] 3 All ER 1159
6. Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. [1961] 1 All ER
404
7. re Polemis and Furness, Withy & Co [1921] 3 KB 560 (CA)
8. Robinson v. Post Office [1974] 2 All ER 737
9. Wilsher v. Essex Area Health Authority [1988] 1 All ER 871

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INTRODUCTION
There are various wrongs on the part of a human being done to other human beings living in
the society which are not mentioned in criminal codes and other statutes. Are these wrongs
not punishable if they are not mentioned in the criminal codes? Then how to do justice to the
person who has suffered by other persons act which is not mentioned in criminal codes? The
answer to this very problem is Tort.
Tort is a civil wrong for which the remedy is common law action for unliquidated damages
and which is not exclusively the breach of contract or breach of trust or other merely
equitable obligation.1 Now how to determine these damages? There is often a situation when
there is unclear status regarding the damage and liability of a person. Remoteness and
Causation are the tools which help in ascertaining these damages.
Causation is concerned with a question which arises in every case, whether defendants act or
omission should be excluded from the events which contributed to the occurrence of the
claimants loss.2 Whereas remoteness is concerned with the question whether the harm in
respect of which he is sued was a foreseeable consequence of his negligent act.3
There are tests for determining causation and remoteness which are to be learned and
understood. In this research project, researcher will focus on these tests and their credibility
and different pros and cons related to these tests.

1 A LAKSHMINATH AND M SRIDHAR, RAMASWAMY IYERS THE LAW OF TORTS(10th edn, First reprint 2010,
LexisNexis Butterworths Wadhwa)

2 RATANLAL & DHIRAJLALS THE LAW OF TORTS(26th edn, First reprint 2011, LexisNexis Butterworths Wadhwa)
3Id.

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Tests of Causation and Remoteness

Causation is concerned with a question which arises in every case, whether defendants act or
omission should be excluded from the events which contributed to the occurrence of the
claimants loss.4 The most used test of causation is as follows:

Test of causal Relationship

The circumstances in which the trouble of causal connection can emerge are limitless and
changed that there can be no single, widespread test or equation that applies to every one of
them.5 In any case, courts have been known not certain controlling standards as surely
understood, general tests. These tests don't remain in all cases, however are quite often given
thought. They give help to the courts in their convoluted errand of deciding associations and
connections in tort cases. They are as follows:
But for Test
In coming to an answer the question whether the damage has been caused by the wrongful
act, the generally acceptable test is But For Test. This means that if the damage would not
have resulted but for the defendants wrongful act, it would be taken to have been caused by
the wrongful act.6
The rationale behind the test is as follows
Let us assume there are two events A and B. Now if B takes place, then A can merely be a
cause of B when we manifest that - for happening of B, the eventuality of A was necessary.
A case in which the But For Test was applied, Robinson v Post Office 7. Here the plaintiff
worked in a post-office. He hurt his leg while climbing down a ladder. The ladder was found
4 Ibid.
5 Supra note 1
6 Supra note 2
7 [1974] 2 All ER 737
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to be slippery owing to negligence of the post office. The plaintiff visited the doctor. He was
injected with small amount of a particular medication and seconds later gave the full dosage.
The normal practice while giving the said medicine was to wait for half an hour after the little
dose to check for any reactions. The plaintiff did not demonstrate any reaction for the initial
three days, however then contracted encephalitis. While the specialist had been careless in not
holding up before giving the full dosage, he wasn't held liable for plaintiffs disease in light
of the fact that regardless of the fact that he had waited, the condition wouldn't have created
up until three days. Here on the off chance that we said that the patient wouldn't have
experienced encephalitis but for the Doctor's carelessness then we would not be right.
Henceforth the patient would have gotten the ailment anyway.
While the 'but for' test is generally utilized while managing causation, there are circumstances
when this test has been ignored.
Complaints have been raised against this test predominantly on the grounds that it considers
what might have happened in hindsight. Thus in that sense its nature becomes hypothetical in
nature. What might be the outcome without an occasion can keep running into the zone of
mystery and guess and undermine the requirement for sureness.
In McGhee v. National Coal Board8, the 'But for' test was disregarded keeping in mind the
end goal to give a fair choice. Here the plaintiff worked in the defendant's brick kilns. The
defendent hadn't gave any washing means close to the kilns, so consistently the defendant had
to go home unwashed. The defendant contracted dermatitis. While it was not proven whether
he had dermatitis because of the working conditions in the kiln, it was realized that absence
of washing means elevate its danger extraordinarily. Liability was imposed on the employers
even though the But For Test supported them. Consequently we see a test's confinement in
that it may not generally give us a cohesive solution.

8 [1972] 3 All ER 1159

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Problems regarding causation also arise where the events which are looked into for finding
out a cause are successive or simultaneous.9 10 Here it is difficult to point out the exact cause
when using the but for test.
There is no conclusive test of causation and the law is that each tortfeasor must compensate
the injured party in respect of the loss or damage for which he shall be justly held responsible
and that elusive notion of causation should not be fixed into constricting rules.11

Remoteness
Remoteness is concerned with the question whether the harm in respect of which the plaintiff
is sued was a foreseeable consequence of his negligent act or not.12

Foreseeability Test of Remoteness

This test emphasizes on the foresight of a prudent man. The act isnt remote if the
consequences of a wrongful act could have been foreseen by a reasonable man. They are said
to be remote if the results of the act could not have been foreseen. 13In the Wagon Mound case
(A landmark judgement which established the test of foreseeability) principle of liability for
negligence was laid down, the damage which is complained of should be of such a nature that
a man of reasonable prudence could have foreseen it.14
This was a case between Overseas Tankship (U.K.) Ltd. (defendant) and Morts Dock
Engineering Co. Ltd. (plaintiff). A ship belonging to Overseas Tankship Ltd. was loading fuel
9 Wilsher v Essex Area Health Authority[1988] 1 All ER 871
10 Baker v Willoghby [1969] 3 All ER 1528
11 Mc Manus v Beckham [2002] 4 All ER 497
12Ratanlal & Dhirajlals The Law of Torts(26th edn, First reprint 2011, LexisNexis Butterworths Wadhwa)

13 R.K.Bangia, Law of Torts (23rd edn, 2013, Allahabad Law Agency )

14 Overseas Tankship(U.K.) Ltd. v Morts Dock and Engg. Co. Ltd. [1961] A.C. 388
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when huge quantity of oil leaked in the sea due to the negligence of their servants. At some
distance, there was a wharf owned by Morts Dock Engineering Company where some repair
work including the welding of a ship was being carried out. While welding, some molten
metal fell in water which was covered with coasting cotton waste. Meanwhile, oil spread to
the wharf. The cotton waste acting as a wick was ignited by the metal. Thus there was a
gigantic fire which immersed the ship and in addition the wharf.
While the Privy Council recognized that the servant' carelessness was the immediate cause
for the harm, it said that no prudent man could have seen such outcomes. Thus the dependent
wasn't held liable.
What was deduced from this case and what shaped the test's premise of reasonable
foreseeability was that A plaintiff can recover damages for the defendant's negligence only
if that damage was foreseeable by a reasonable man. It is insufficient that damage was an
immediate result of the negligent act. 15
In Hughes v. Ruler Advocate16 it was set out that when this test of foreseeability is utilized,
then the degree of actual damage brought about becomes insignificant. In this situation, the
wagon mound case was followed and it was set out that the extent of damages in such cases
becomes irrelevant. What is important is foresight of possibility of damage. In this case some
post office workers had left a manhole open. It was left covered by a tent and paraffin lamps
were put around it. A kid entered this tent with a lamp. The lamp fell into the manhole and
brought about a huge blast because of which the child endured serious burn injuries. The rule
that was set down here was that despite the fact that the massive blast couldn't be foreseen,
there was a possibility of the child entering the tent with a light and getting harmed. On this
thinking the respondents were held at liable.
The two decisions are in themselves contradictory to each other in the first case, defendants
act was direct cause of the result even then it was held that if a reasonable person could not
have foreseen the results of his act he would not be liable whereas in the second case even
though the explosion which took place could not have been foreseen the decision was given
15 Ibid.
16 [1963] 1 All ER 705
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on the basis that there was a chance of the boy entering the tent with lamp and getting injured
and the defendants were held liable .
There is a confusion regarding the foreseeability test as there are cases which contradict each
other and disables people from getting a clear concept of foreseeability test.

Alternatives to the Tests of Causation and Remoteness

Material Test as an Alternative to the BUT FOR TEST

Causation is central to liability: a defendant is only liable for causing injury to the plaintiff.
As affirmed by Chief Justice McLachlin in Clements v. Clements17, the general rule of legal
causation is that but for the defendants act or omission, the plaintiff would not have been
exposed to injury, or risk of injury.18 The but for test is a factual determination made on a
balance of probabilities. It does not require proof that rises to a scientific level of certainty,
and a judge may appropriately infer that a breach of duty leading to injury was caused by the
defendants negligence.19
The material contribution testor all the more fittingly, the material contribution to hazard
methodologyis a departure from this fundamental rule, as well as an exception to it. As per
the Supreme Court of Canada, the test is properly restricted to situations where there are
various actors and it is not possible to identify, on a balance of probabilities, which actor
brought on the injury. The fundamental objective of corrective justice would in any case hold
all such actors liable on the premise that each actor unreasonably exposed the plaintiff to a
danger. As indicated by the Chief Justice, the material contribution test permits plaintiff to

17 [2012] 2 SCR 181

18 Emir Crowne & Omar Ha-Redeye, "Clements v. Clements: A material contribution to the jurisprudence - The Supreme
Court ofCanada clarifies the law of causation", (2012) 2:2 online: UWO J Leg Stud
1<http://ir.lib.uwo.ca/uwojls/vol2/iss2/1>.

19 Id.
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recover damages without demonstrating that one or more defendants brought about damage,
perceiving that it is difficult to tell which particular respondent really caused the damage.20
The Court demonstrated that the "But For" test require not oblige logical proof of exactness,
and the material commitment test is not just a default where investigative confirmation is
deficient medicinal negligence activities, (without a doubt, a huge part of material
commitment case before Clements was in therapeutic negligence), there are some vital
obstacles that offended parties will need to succeed. Causation under the "worldwide
however for" methodology would seem to oblige verification that these litigants owed an
obligation of consideration and ruptured the standard by acting carelessly.21 On the off chance
that an offended party neglects to illustrate carelessness with respect to any of these litigants,
they will have neglected to demonstrate causation on a "worldwide however for" premise.
This altogether duplicates the danger for offended parties at trial. Resistance legal counsellors
will likewise be enticed under these circumstances to cite proof about non-tortious reasons
that are more probable wellsprings of damage than the "Global But For" standard. Offended
parties in restorative negligence activities might subsequently discover the material
commitment test after Clements22 unfeasible and excessively hazardous, making it impossible
to utilize.23
Just like the unicorn, the "material contribution" test is a rare and "different beast", and given
the right set of circumstances, might be spotted one day in a courtroom, but every reported
sighting [at the Supreme Court level] so far has proven to be a hoax.24

20 Id.
21DEIGH & DOLINKO, THE OXFORD HANDBOOK OF PHILOSOPHY OF CRIMINAL LAW (2011)
22 supra note 15
23 Supra note 21
24 Id. at 182
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Harm-within-the-risk test as an alternative to the

foreseeability
The alternative to the foreseeability test is Harm-within-the-risk test .That is, in
circumstances where the defendant was blameable in intending, anticipating, or taking a
chance with some damage sort H, yet what his demonstration actually brought on was an
occurrence of damage sort J, the foreseeability test of lawful reason gets to be no redundant
the minute one confines it to asking whether J was foreseeable, a different inquiry that one
finds the matter of mens rea about H. Yet this is to take the necessary steps of the Harmwithin-the-risk test: settling what I should without further call the "fit issue" of mens rea.
Besides, it is to do such work badly. Foreseeability is not the right thing to ask with a specific
end goal to fit the damage actually created by a defendant to the kind of mischief she either
expected to accomplish, or anticipated that she would bring about, or risked. On the off
chance that the foreseeability test is to be limited to this non-redundant work, if the
foreseeability test is to be restricted to this non-redundant work, it is better abandoned for the
harm-within-the-risk test.25
Give us a chance to analyse, then, this fourth policy-based proximate cause test, the fairly
severely named "harm within the risk test." Like the foreseeability test, this test implies to be
a test of legitimate reason that is universally applicable to all tort and criminal cases. This
test, as well, is justified on arrangement grounds and does not put on a show to have anything
to do with fact based or scientific causation. However, doctrinally the test contrasts from a
straightforward foreseeability test.26

Consider first the coliseum from which the test takes its name, unlawful acts or torts of risk
creation. In the event that the defendant is accused of negligent death (or wrongful killing in
torts) for instance, this test obliges that the casualty's demise be inside of the risk that made
the performing actor's activity negligent. In the event that it was careless or negligent to drop
a container of nitro-glycerine in light of the fact that it may blast and kill the victim however
rather it executes him by cutting his toe and making him seep to death, that the damage which
25 Ibid. at 182
26 Id.
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happened (bleeding) was not inside of the risk of harm (blast) that made it careless to drop
the container. Likewise, if the charge is homicide (for which cognizance of the risk is needed
in a few jurisdictions), this test does require that the victims death be inside the risk of the
consciousness of which made the defendants activity reckless. 27

The primary issue for the Harm-within-the-risk test itself does not lie in any of the bearings
we have recently investigated concerning foreseeability as a test. The Harm-within-the-risk
test to is in the administration of an equity situated approach in its looking for of a genuine
desert-determiner and does not ask a redundant question. To review culpability by the mental
intention, foresight, and danger, we need to tackle the previously stated fit problem. The
genuine inquiry for the Harm-within-the-risk test is whether this grading by guilty mental
states is all that is or ought to be going ahead under the rubric or "lawful cause."28
Consider in such manner two well-known sorts of legal reason cases. It is a period regarded
saying of criminal and tort law that "you take the victim as you discover him." Standard
interpretation: regardless of how anomalous may be the victims susceptibilities to harm, and
regardless of how unforeseeable such wounds might in this way be, a defendant is held to
lawfully cause such injuries. Hit the slight skulled man or cut the famous haemophiliac and
you have lawfully brought on their deaths in the event that die, regardless of how uncommon
these conditions may be. This is difficult to square with the harm-within-the-risk test. A
defendant who plans to hit or to cut does not compulsorily (or even for the most part) intend
to cause death. A defendant, who can foresee that his demonstrations will utilize the sufferer
to be struck or cut, does not so much (or even normally) anticipate that the victim would be
killed. A defendant who carelessly risks that his demonstrations will bring about a casualty to
be struck or cut is not so much (or even normally) careless in light of the fact that he risked
death.29

27 Id.
28 Ibid. at 183
29 Id.
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The second kind of cases includes what are frequently called "intervening" or superseding"
reasons. Assume the defendant sets explosives by a jail wall meaning to blow the wall to get
certain prisoners out. He anticipates to a viable sureness that the blast will kill the gatekeeper
on the opposite side of the divider. He lights the wire to the bomb and clears out. As it
happens, the fuse goes out. However, a stranger goes by the wall sees the bomb, and relights
the circuit for the delight of seeing a blast; or a thief stops by, sees the bomb and tries to take
it, dropping it in the process and consequently blasting it; or lightning hits the wire, reigniting
it and setting off the bomb; etc. In all varieties, the gatekeeper on the opposite side of the
divider is murdered by the impact. Standard conventions of intervening causation hold that
the respondent did not lawfully bring about the guards death. Yet this is difficult to square
with the damage with the the harm-within-the-risk test. All things considered, did not the
respondent predict only the kind of damage a case of which did happen? As the Harm-withinthe-test asks a simple question- Was the particular harm that occurred is an example of the
kind of harm whose foresight by the defendant made him guilty- the test is blind to
freakishness of causal route.30
The harm-within-the-risk test may well ask a good question, in regard to crimes of intent,
knowledge, or recklessness, but it asks it in wrong place.31

Conclusion
Even though there is no universal formula for knowing the cause in particular, But for Test
remains to be acceptable test for determining causal relation, after all the criticism it faces and
drawbacks it has there is no superior alternative which can outmatch the But for Test. Material
test is looked upon as a potential alternative but it has its own limitations and the concept still has
to develop in the coming years to become a competitive alternative to the But for Test.32
30 Supra note 16
31 Supra note 21 at 184
32 Supra note 16
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All the tests have their own benefits and drawbacks as is here but we have to look at the balance,
the applicability that the test has. And in the present scenario But for Test remains to be a reliable
test as compared to the Materiality Test.

Whether a man with ordinary prudence would have foreseen the results of his act is what helps in
knowing whether the act was remote or direct. Even after facing various criticisms, it seems to be a
reliable test of determining the remoteness. We saw how harm within the risk is considered to be
one alternative to the foreseeability test but still has scope of development and its own limitations
as well. The concept is not yet properly and fully developed to be a reliable test for determining the
remoteness.
So in spite of the Harm-within-the-risk being a good and challenging test, foreseeability test still
remains to be a dependable test for determining remoteness.

BIBLIOGRAPHY

BOOKS

th

1. WINFIELD & JOLOWICZ TORT, 17

ed. 2006, Sweet and Maxwell,

London
th

2. RATANLAL & DHIRAJLAL, THE LAW OF TORTS, 26

ed. 2010,

LexisNexis Butterworths Wadhwa,

3. A Lakshminath & M Sridhar, RAMASWAMY IYERS THE LAW OF TORTS, 10th ed.
2007, LexisNexis Butterworths Wadhwa

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4. DEIGH & DOLINKO, THE OXFORD HANDBOOK OF PHILOSOPHY OF

CRIMINAL LAW (2011)
5. Whartons Law Dictionary, 16th ed., Universal Law Publishing Hous

Online Resources
1. www.lexisnexis.co. in
2. www.manupatra.com
3. www.scconline.co.in
4. www.westlaw.com

Kartikey Pandey---BA LLB (hons.)---Sem. 2---069