Causation Development
Hindsight
When a person claims that he would have acted differently with hindsight and accordingly that failure to disclose a matter or negligent misrepresentation caused his loss, the court may judge this to be wishful thinking with the benefit of hindsight.
“When one is assessing a statement of a person as to what he would have done or not done, had matters developed differently to the way they actually developed, it is reasonable to consider, as a starting point, whether his claimed reaction would have been reasonable. It would [be] quite wrong, of course, to proceed on the basis that only a reasonable reaction was open to him because the Courts very often see instances where people react to particular developments in ways which are irrational, exaggerated, unduly bellicose or unduly timid, or otherwise improbable. But the learned trial judge’s finding here made every allowance for the capacity for odd reactions for subjective reasons and found that, though he did not accept Mr. McCaughey’s evidence that ‘I would not have invested’, that this reaction was subjectively genuine and ‘the product of hindsight and wishful thinking’, not of deliberate falsehood.”
Investment Factors
In McCaughey v Irish Bank Resolution Corporation [2013] IESC 17 above it was claimed that if the claimant had been aware of certain zoning restrictions, he would not have purchased certain property in New York
Birmingham J
“I do not, at all, believe that Mr McCaughey has been intentionally untruthful in making the statement that he has, but I do believe [that] that statement is the product of hindsight and indeed of wishful thinking. This statement is undermined by the fact that Mr. McCaughey has also said that had he known about the interest rate strategy and about the long term tenants, and the status of the renovation budget that he would not have invested. Indeed, it must be said the phrase ‘I would not have invested’ became something of a mantra. In my view no reasonable prudent investor who found the proposed investment otherwise attractive, is likely to have been dissuaded from investing by being told about the reality of the zoning issue.”
The Supreme Court
“I do not accept that this is a proper ground of criticism of the judgment. When one is assessing a statement of a person as to what he would have done, or not done, had matters developed differently to the way they actually developed, it is reasonable to consider, as a starting point, whether his claimed reaction would have been reasonable. It would [be] quite wrong, of course, to proceed on the basis that only a reasonable reaction was open to him because the Courts very often see instances where people react to particular developments in ways which are irrational, exaggerated, unduly bellicose or unduly timid, or otherwise improbable. But the learned trial judge’s finding here made every allowance for the capacity for odd reactions for subjective reasons and found that, though he did not accept Mr. McCaughey’s evidence that ‘I would not have invested’, that this reaction was subjectively genuine and ‘the product of hindsight and wishful thinking’, not of deliberate falsehood.”
Third Party & Intervening Event
In McCarthy v Kavanagh (t/a Tekken Security) [2018] IEHC 101, a customer was assaulted by a third party after being evicted from a shop and refused re-entry in circumstances where he was in danger of being assaulted by other customers. It was held the shop breached its duty of care and rejected the argument that the third party’s actions constituted a supervening cause.
Cross J.
“(i) If the third party’s act is wholly unforeseeable then the original defendant will not be liable.
(ii) If the third party’s act is intended by the original wrongdoer, or is as good as programmed by him, or if it is an inevitable response to the defendant’s act, or is very likely, then the original defendant is still considered the operative cause in law. The third party’s intervention in these circumstances is not a novus actus which would break the chain of causation between the plaintiff’s damages and the defendant’s conduct. This is more obviously true when the intervening event is not a voluntary act at all: where A pushes B against C.
(iii) If the third party’s action is foreseeable (though not probable or likely) then the courts will look especially closely at the nature of the intervener’s act in addressing this problem. If the intervener’s act is criminal or reckless in the subjective sense, then it is likely to be considered as a novus actus. Similarly, if the third party’s act is intentional in Lambe [v Camdon LBC [1981] QB 625] Watkins L.J. described the squatter’s acts as ‘unreasonable conduct of an outrageous kind’ when he held that the defendant wrongdoer could not be responsible for it. In Perl [(Exporters) Ltd v Camdon LBC [1983] 3 WLR 769], the act of thieves interposed between the defendant’s conduct and the plaintiff’s injury meant that the defendant was not liable. If the intervener’s act, however, is merely careless, negligence or perhaps even grossly negligent it may not be considered sufficiently strong to break the chain of causation between the original defendant and the plaintiff’s injury, although much will depend on the facts of the case in Crowley v AIB [[1988] ILRM 225] …
(iv) The defendant (i.e. the original wrongdoer) will not be relieved of responsible if the act or damage caused by a third party is ‘the very kind of thing which the defendant was bound to expect and guard against the resulting damage was likely to happen if he did not’.”
“It is the action of an incident. Though the precise nature of the vicious assault was not foreseeable, I hold that under subpara. (2) of the summary of the law as contained in McMahon and Binchy … that a response to the plaintiff being pushed over and knocking down Ms H was ‘very likely’. I also hold that the act or damage caused by Mr C is, indeed as per Clause 4 (above) ‘the very kind of thing which the defendant was bound to expect and guard against the resulting damage was likely to happen if he did not’.”
“He had already been assaulted both inside their premises and outside by his pursuers. The act of Mr C flows directly from the actions of the defendant. The defendants conceded that assuming they did have a duty of care to the plaintiff that they might be liable for any actions of Mr O’C, the O’M sisters or possibly Ms H, then it is entirely unrealistic and artificial to suggest that they are not liable for the actions of Mr C.”
….there is a seamless rapid, almost instantaneous connection between the acts and inactions of the defendants which I have held to constitute a breach of duty and, what occurred to the plaintiff at the hands of Mr C.
In order for liability to exist, the precise nature of the harm to the plaintiff does not have to be anticipated with particularity. What must, however, be clear is that when the plaintiff was denied re-entry to the premises and pushed back into the crowd, injury to him was ‘the very kind of thing’ which the defendants were bound to expect and to guard against. In the circumstances, the defendants knew or ought to have known that the plaintiff was being exposed to, not alone a risk but the essential likelihood of, an assault which is precisely the type of harm that he actually suffered and that the defendant had a duty to prevent.”
Accident & Garda Pursuit
In a case where an injured passenger in a car was injured in a road traffic accident following a high-speed Garda pursuit suit for breaching a speed limit some 23 miles before it the gardai and state was held not to be the cause of the accident and consequent injuries
“The only question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed, notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged, and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief. There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to take that risk, however urgent the police business might be.”
Quoting McMahon and Binchy the Law of Torts:
“… the courts are less likely to find that a novus actus is the sole cause of the plaintiff’s injury nowadays. It is only in very extreme cases that the nature of the third party’s act will break the chain completely between the defendant’s original conduct and the plaintiff’s damage.”
“In my view this is an extreme case. It is true to say that the motorcyclist asserted a belief that he was still being pursued by the garda vehicle [at a point ten miles before the accident occurred]. Even if that was his initial belief, he must have known that the garda vehicle, which had been caught up behind the articulated truck which presumably he himself had overtaken, was nowhere near him as he came to [close to the place where the accident occurred]. He was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever. Indeed after a pursuit distance of 28 miles it would be difficult to surmise that Mr Lynch could have been in a ‘panicked’ condition, if indeed he ever was in the first place. As we know the garda vehicle was behind by perhaps more than a mile at the stage when the accident occurred. Did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? It seems to me that any sensible application of the principles laid down in Conole v. Redbank Oyster Company [1976] I.R. 191 must lead to the conclusion that the effective negligence leading to the accident was that of the motorcyclist.”
“If there had been some want of care in the present case in continuing to follow the motor bike… I am nonetheless firmly of the view that it was not causative of the plaintiff’s injuries, nor did it contribute to them in any material way. Putting it another way, the driving of the garda vehicle may have been a causa sine qua non but the causa causans of the plaintiff’s injuries was Mr Lynch’s driving at the bend at [where the accident occurred]”.
“Given that the plaintiff in this case may well have been completely blameless (despite allegations of contributory negligence raised against her), it is worth considering whether policy considerations should encourage this Court to relax the requirements of establishing causation for that reason. In the instant case that would mean that the Court would have to infer that the mere fact of the garda pursuit is of itself and without more to be regarded as having made a material contribution to the plaintiff’s injuries. However, I think that would be a hazardous and dangerous course to adopt not least because there are in this case policy considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in upholding the law without undue fear or apprehension of sanctions for so doing. A high premium is placed on road safety in modern Ireland where there is an unacceptable level of road deaths many of which are caused by speeding. To hinder the gardaí in their efforts to prevent such offences by unduly relaxing the requirement to establish causation would offend those “just and reasonable” considerations to which Keane CJ adverted when considering the duty of care in Glencar Explorations p.l.c. v Mayo County Council (No 2) [2003] 1 I.R. 84.”
Hayes v Minister for Finance [2007] I.E.S.C. 8
The plaintiff was a pillion passenger on a motorbike driven by her boyfriend, which crashed into another vehicle. The bike had travelled at high speed through a speed trap, and the Gardai gave chase. The gardai vehicle was a minute and a half behind at the time of the crash.
A claim against the Minister for Finance based on the negligence of the gardai failed.
“The only question, as it seems to me, is whether it is reasonable for him in the particular circumstances to drive at a given speed, notwithstanding the risk of possibly injuring another road user. The answer to that question must depend on the circumstances, in particular those circumstances relevant to the urgency of the police business on which he is engaged, and those circumstances relevant to the degree of risk which he is taking. For example, in deciding whether it was reasonable for a police driver to drive at a given speed, and to take the concomitant risks as regards other road users, it might be relevant to know whether he was in pursuit of an escaping murderer or in pursuit of a motorist with defective lights; whether he was trying to get an injured man to hospital in time to save his life, or trying to catch a car thief. There will of course be circumstances where the risk to other road users is so high that it would not be reasonable to take that risk, however urgent the police business might be.”
“… the courts are less likely to find that a novus actus is the sole cause of the plaintiff’s injury nowadays. It is only in very extreme cases that the nature of the third party’s act will break the chain completely between the defendant’s original conduct and the plaintiff’s damage.”
Kearns J. observed:
“In my view this is an extreme case. It is true to say that the motorcyclist asserted a belief that he was still being pursued by the garda vehicle [at a point ten miles before the accident occurred]. Even if that was his initial belief, he must have known that the garda vehicle, which had been caught up behind the articulated truck which presumably he himself had overtaken, was nowhere near him as he came to [the accident]. He was not being driven at, intimidated or menaced by the garda vehicle in any way whatsoever. Indeed after a pursuit distance of 28 miles it would be difficult to surmise that Mr Lynch could have been in a ‘panicked’ condition, if indeed he ever was in the first place. As we know the garda vehicle was behind by perhaps more than a mile at the stage when the accident occurred. Did the garda vehicle in those circumstances cause or make any real contribution to what happened at the bend in the roadway? It seems to me that any sensible application of the principles laid down in Conole v. Redbank Oyster Company [1976] I.R. 191 must lead to the conclusion that the effective negligence leading to the accident was that of the motorcyclist.”
“I] there had been some want of care in the present case in continuing to follow the motor bike… I am nonetheless firmly of the view that it was not causative of the plaintiff’s injuries, nor did it contribute to them in any material way. Putting it another way, the driving of the garda vehicle may have been a causa sine qua non but the causa causans of the plaintiff’s injuries was Mr Lynch’s driving at the bend at where the accident occurred”.
“Given that the plaintiff in this case may well have been completely blameless (despite allegations of contributory negligence raised against her), it is worth considering whether policy considerations should encourage this Court to relax the requirements of establishing causation for that reason. In the instant case that would mean that the Court would have to infer that the mere fact of the garda pursuit is of itself and without more to be regarded as having made a material contribution to the plaintiff’s injuries. However, I think that would be a hazardous and dangerous course to adopt not least because there are in this case policy considerations of an even more compelling nature which require that the gardaí be permitted to carry out their discretionary powers in upholding the law without undue fear or apprehension of sanctions for so doing. A high premium is placed on road safety in modern Ireland where there is an unacceptable level of road deaths many of which are caused by speeding. To hinder the gardaí in their efforts to prevent such offences by unduly relaxing the requirement to establish causation would offend those “just and reasonable” considerations to which Keane CJ adverted when considering the duty of care in Glencar Explorations p.l.c. v Mayo County Council (No 2) [2003] 1 I.R. 84.”
Causation & Scope Duty
In Whelan v Allied Irish Banks Plc [2014] IESC 3 the Supreme Court rejected a claim for negligence against a solicitor who had mistakenly interpreted a message from the lender indicating that the loan was of a non-recourse character which was passed to the plaintiff.
“In circumstances where he had never been asked to advise on the nature of the facility, was aware that the loan at all times was a recourse loan and had never been told by anybody on the claimant’s side that only a non-recourse loan was acceptable to them, it is hard to see why it would be just and reasonable that his firm should be found to owe a duty of care such that they become liable to the plaintiffs in a sum of €25 million, less anything achieved on a sale of the lands. I would have to be satisfied that as a result of his clients’ instructions, or as a result of what he ought reasonably to have known or inferred from those instructions, or even the transaction generally, it was foreseeable that is his answer was incorrect, the plaintiffs would sign up to a loan which he knew or had reason to believe they never intended. I fail to see how that was reasonably foreseeable given the fact that he had never been given the information that a last minute decision had been made that they would not sign up to a recourse facility. I do not believe that when looked at objectively by a reasonable bystander, properly and fully informed of all relevant facts, such a consequence should or could have been foreseen.”
“In my opinion the trial judge was quite right to conclude that even though the relevant advice had been given on an occasion, and in relation to a matter outside the original retainer, there was sufficient proximity between the Lynchs and LK Shields to give rise to a duty of care, if all other requirements were satisfied. Similarly, it cannot seriously be doubted that if a duty of care arose, then the firm was in breach of that duty and negligent in advising that the alterations effected on the 7th February meant that the loan was non-recourse to all the borrowers. It is clear, therefore, that the plaintiffs’ claim against LK Shields failed because the trial judge considered that it was necessary to take at least one further step and establish that in addition to proximity and the lack of care, it would also be fair and reasonable to impose liability on the defendants. The finding that the damage was not foreseeable was based on essentially the same considerations”.