How to determine the dominant cause of delay ? Is it simply first event dominates until overtaken and therefore substituted by subsequent events.

Question

Andrew Crawford · Answer

Tom

The short answer to your question is no it is not that the first event dominates until overtaken by the a subsequent event.

This subject has been discussed in many thesis and extensive law reports. I would suggest that for those who are members of the SCL or if not, then join the SCL and you can read the paper given by Vincent Moran QC , titled Causation in Construction Law: The Demise of the Dominant Cause Test, November 2014, paper 190, as a starting point.

Back in 2003 I produced as part of my MSc course a dissertation with the topic of "Concurrent Causation: a critical analysis of the methodology used for the assessment of remedies in the UK & USA"

An extract from that paper on the dominant cause approach in relation to your question is listed below:

"This method of dealing with cases involving concurrent causation stems from the House of Lords decision in the case of Leyland Shipping Company Limited v Norwich Union Fire Insurance Society Limited[1]. The case involved a claim by a ship owner against the underwriters to a marine insurance policy in respect of the total loss of a ship sinking. The ship was on a voyage from South America to Havre and was torpedoed by a German submarine not too far from her destination, leaving a hole in the port side of approximately 3m x 2m, but with the aid of tugs, the ship was towed to shore in Havre. Whilst in the outer harbour, a gale forced the ship against the quay, the harbour authorities fearing that the ship would block the quay, directed the ship to berth inside the outer breakwater where the ship finally sank. The insurance policy excluded consequences of hostilities and warlike operations, but covered the usual marine perils of the sea.

The central issue in this case was whether the effect of the torpedo damage was the cause for the sinking of the ship, or whether when the ship bumped against the quay during the gale, introducing a new cause, was this cause responsible for the total loss of the ship? Their Lordships unanimously found in the favour of the former, as the bumping of the ship against the quay, was not seen as ‘novus actus interveniens’, as the ship was never out of danger from the time of the first injury to the final loss. As stated by Lord Dunedin, ‘The solution will always lie in settling as a question of fact, which of the two causes was ……………the dominant cause of the two’. Here we have the principle that even though the ship suffered damage as a result of the second cause, the bumping of the ship on the quay, regardless of this damage, the ship would still have suffered the total loss from the first cause."

[1] [1918] AC 350

How to determine the dominant cause of delay ? Is it simply first event dominates until overtaken and therefore substituted by subsequent events.

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