5 Causation within the scope and purpose of safety rules being violated
A matter of causation which is intrinsic to the concept of negligence as a basis of liability, concerns a delineation to be made as to whether the damage in question falls within the category of interest intended to be protected by the relevant safety rules.
The point can be briefly illustrated as follows: a) there is damage caused by the defendant, b) there is an instance of rule violation by the defendant, c) there is causation in the sense that had the rules not been violated, the damage would not have occurred. However, there may still be a limiting factor (of causation): did the damage happen in the direction of the interest intended to be protected by the violated rules?
A classic example is the English case Goris v. Scott(1) (1874) 9 LR Exch 125.from 1874. In that case, the safety rules for the carriage of live sheep as deck cargo required separation fences to be mounted on deck. The shipowner neglected to mount such fences. During the voyage much of the deck cargo was washed overboard as the ship encountered rough seas. This washing overboard would not had happened if separation fences had been mounted. The shipowner was nevertheless held not liable for the lost cargo since the interest intended to be protected by the rules was that of preventing spread of disease among the animals, not to protect them from being washed overboard.
By parity of reason it could perhaps be submitted that the safety rules in the Sunna requiring double watch keeping during night time sailing, had the purpose of ensuring satisfactory lookout (‘two pairs of eyes see better than one’), not the (primary) purpose of preventing officers on watch from falling asleep. Should the shipowner, perhaps, have been acquitted along this line of reasoning?
The answer seems clearly to be in the negative. Such an argument was not even raised by the shipowner before the Courts. The interest intended to be protected by the safety rules in the Sunna was accident prevention to ship and cargo, i.e. to prevent damage due to improper navigation of the ship – and in that sense to avoid the very type of damage which actually ensued. It would therefore be too artificial an argument to say – within such intended scheme of damage prevention by the rules – that the primary situation envisaged by the rules (to enhance the effect of lookout) was not causative of the way the damage occurred.
It is, moreover, an open question whether the type of principle of causation which was in play in the Goris v. Scott, would be applied as rigidly under Norwegian law as it was at the time under English law.(2) See e.g. Hagstrøm/Stenvik, Erstatningsrett, 2019, pp. 91-94. They point to the Supreme Court case in Rt. 1970.1452 (damage caused by high voltage electricity in private housing, attributable to insufficient isolation as part of wrongful installation work) which bears some resemblance to the said English case, but comment (p. 94): “Even if one has the more ordinary sequence of damage in mind through the formulation of the relevant rule of conduct, that is not the same as saying that it has been the intention to limit the scope of liability accordingly. On the contrary, the presumption must be that it is irrelevant how the damage occurs, when being caused by rule violating conduct.” (my translation)