In some of my earlier blog posts, we looked at the defences that can be used in response to a criminal trial, which you can read here and here. This time, we will be considering some of the defences that can be raised in tort proceedings, with another blog post to follow looking at the rest. In particular, we will be focusing on things that break the chain of causation.
Knowing about the defences available will help you to answer problem scenario questions, as it allows you to predict the outcome of a case more easily. In addition, having learnt about the defences will help you in essay style questions that cover the topic, as well as giving you better overall knowledge on how the law of tort operates.
Duty of Care
Before we consider the available defences, we will start by looking at how a claim under tort law can arise. For there to be any sort of case in tort, the court must first establish that a duty of care existed from the defendant to the claimant. Currently, this is done by using the principles established for that category or, if it is a new area, developing the law incrementally by analogy with established categories. One test that can be used for established categories is the Caparo test, which has three elements to it.
The first part of the Caparo test asks whether the harm was reasonably foreseeable. This looks at whether someone could reasonably predict the harm that the negligent act would cause. Next, the court will consider whether there was a relationship of proximity. This proximity can come from an existing relationship, closeness in physical space or simply the knowledge that the negligent act could affect the claimant.
Finally, the Caparo test asks whether it is fair, just and reasonable to impose liability on the defendant. This is quite a vague test that in reality seems to allow the court some judicial discretion to decide whether a duty of care should exist, allowing them to stop unreasonable claims that may otherwise have been upheld and become law due to the system of precedents used in both civil and criminal cases.
Causation
For there to be liability, there must also be causation, meaning that the defendant must have actually caused the loss suffered. There are two main tests for this: “but for” and remoteness of damage. If either of these cannot be proved, then there is no causation and so the defendant is not liable.
“But for” test
Simply put, the “but for” test asks whether the loss suffered would have occurred had the defendant not acted in the way they did. If the loss would have happened anyway, then the defendant’s action was not the thing that caused it and, even if there is a duty of care, the defendant cannot be liable for the loss. This type of causation is also called factual causation.
There are also a few extra thoughts to bear in mind. Firstly, there may be multiple causes of the loss the claimant suffered, either successive, meaning that the events that caused it happened one at a time, or concurrent, meaning that they all happened together.
If they are successive, it may be possible to find the factual cause of the damage, which would decide whether it was the defendant’s action or not. However, if the causes are concurrent, it is harder to distinguish the true cause of the loss. The claimant can try to prove that it was the defendant that caused the loss on the balance of the probabilities (meaning that there is a greater than 50% chance), but it can be impossible to show this.
Alternatively, there may be what is called novus actus interveniens, which means a new intervening act. This is an act that disrupts the chain of causation and may be done by the claimant or a third party.
If the new act is a third party’s, the test is whether or not it is foreseeable. If it was, then the chain of causation is unbroken, and the defendant will be liable. However, if it was not foreseeable, the act will break the chain of causation.
If the new act is the claimant’s, the test will be whether they acted reasonably in the circumstances. If they did, then the chain of causation is unbroken. On the other hand, their act being unreasonable would break the chain of causation and the defendant will not be liable.
Remoteness of Damage
Remoteness of damage requires that the type of damage is foreseeable. Originally, defendants were liable for any losses that were a direct result of their negligence, but this has now been changed to just include the foreseeable losses.
Note that the test is whether the kind of damage is foreseeable. The defendant will then be liable for the full extent of this kind of damage.
Finally, there is the thin skull rule, meaning that the defendant must take their victim as they find them. If the defendant is for some reason vulnerable to a particular type of damage which means that they suffered greater losses than would be expected, the defendant is still responsible for the full extent of these losses.
Wrapping Up
I hope that this helps you to understand some of the defences that can be used in a tort case. Next time, we will look at a few other defences, so come back in two weeks for that!
Want help proofreading your work? Contact Carmine Proofreading for a friendly, professional service from a qualified proofreader.
Email: CarmineProofreading@gmail.com
Twitter: https://twitter.com/CarmineProofed
Carmine Proofreading 
1 thought on “What are the Defences in Tort Law? – Part 1”