My radio was off on the way back from Selesa Jaya. I was trying to think. I zoomed past traffic, half-way giving up maintaining a dismal 80km/h while wondering what he had told me.
What would lawyers say about proximate cause? As far as I understand it, proximate cause refers to the most immediate cause of a particular phenomenon, without which said phenomenon would not arise. That is to say, there is a direct causal and necessary relationship of events that have led up to a particular phenomenon.
Say, for example, a fire breaks out after a flashover. Now, in standard parlance, we say that the proximate cause of the fire damage or, fire, was the flashover. But there are antecedents to the flashover, of course. If we track back, for um.. other purposes, we could examine how the flashover occurred.
So, for example, a build-up of ambient moisture between copper busbars/phases under high current could have sufficiently created conditions for a spark to leap over phase-to-phase if, for example, the ambient moisture had sufficiently caused the sheathing of the busbar to deteriorate.
Or, the flashover could have occurred because the sheathes failed either because the sheathes became brittle over the years and fell away from at least one busbar (and an insufficiently earthed neutral would have caused a phase-to-ground flashover). Or, moisture between the sheath and the busbars within caused the sheathe to fail over time. The possibilities are varied.
When determining liability, I suppose, the question would be how far back would you have to go definitively?
When you’re talking about all risks, for example, wear and tear is a definite exclusion because, the theory goes, wear and tear is a natural consequence of operation, and therefore cannot be said to be unforseen so that any loss arising cannot be, strictly speaking, be said to be fortuitous. If there is no uncertainty, then logically, no transfer of risk is effected (in reference to certain do-able kinds of risk).
To say event A is caused by wear and tear, however, is insufficient in and of itself. The question that immediately arises is: is this wear and tear a “natural consequence of operation”? If it can be established that it is, then there is no dispute. That is to say, it must be established that the “natural consequence of operation” was the sufficient and only cause of the failure/damage (this is almost impossibly hard to do without a process of elimination).
If, however, one asks if the cause is an extraordinary case of wear and tear, one is actually asking if the wear and tear was due only to the “natural consequence of operation”.
So back to his case. Here, a bearing failed, causing the arm to lean against the sides of its sheath thus causing, during operation, damage.
The failure was discovered to be wear on said bearing. The question that’s arisen is: is this an extraordinary case of wear and tear?
Simply, this means moving back the causal chain and discovering how the wear and tear could have arisen.
This then is a whole slew of different questions, and a whole new set of problems. The bearing could have failed prematurely, which either means the manufacturer of the bearing is to blame, or the manufacturer of the machine is to blame, if the bearings were never changed.
Or the client’s staff could be at fault if they did not carry out maintenance promptly or well. Worse, if they were circumspect with maintenance and using the right bearings etc, then the question reverts to blame on the manufacturers.. which in this case would still mean that liability is in question.
All this hangs on obtaining a metallurgical report urgently, and I told him so over the phone when I reached home. Hmmm… something to watch out for, this case.
