Chapter 4: Remoteness Flashcards
- Introduction
Once causation has been established it is necessary to examine the extent of the defendant’s liability. Although the defendant may be the cause of the claimant’s loss, policy dictates that limits must be placed on the extent of loss recoverable. Effectively, the damage must not be too
remote from the defendant’s breach.
Test for reasonable forseability
The test of reasonable foreseeability: A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant breached their duty of care. This is an objective test: what was reasonably foreseeable.
This legal test for remoteness was established by the Privy Council in The Wagon Mound (No 1) [1961] AC 388.
Key case: The Wagon Mound (No 1) [1961] AC 388
Facts: The defendants negligently caused oil to spill into Sydney Harbour. The oil spread a distance of 600 feet into the vicinity of a ship called The Corrimal which was berthed at the claimant’s wharf. Two days later welding operations on The Corrimal caused a spark to come into contact with debris floating on the oil.
The flames from the debris set the oil on fire. The fire caused extensive damage to the claimant’s premises. The damage was a direct result of the defendant’s negligence, but the court had to determine whether the damage was too remote to be recoverable.
Key case: The Wagon Mound (No 1) [1961] AC 388 Judgement
Held: The damage was not reasonably foreseeable. Welders on The Corrimal noticed the oil and sought expert advice before welding. They were told that there was no risk of fire given that the oil spilled required an extremely high ignition point to catch alight. Pollution damage was foreseeable, but fire damage was not. The loss was too remote and the defendants were not liable for the fire damage.
1.1 The type of harm
The claimant can only recover if the defendant ought to have foreseen the ‘type’ of damage
suffered (hence in the Wagon Mound, despite pollution damage being foreseeable, fire damage was not, and so the type of harm suffered was not foreseeable). The courts have varied their approach to the type of damage that has to be foreseeable, with some cases taking a broad approach, whereas others have taken a narrow view as to the type of harm that is foreseeable.
Key case: Bradford v Robinson Rentals [1967] 1 All ER 267
Facts: The defendant employer knew the fan heater in the claimant’s van was not working which required the claimant to keep the window down on a 20-hour journey! The claimant suffered from frostbite. The defendant argued frostbite was not reasonably foreseeable (very rare in the UK).
Held: It was reasonably foreseeable that if the employer did not maintain their vehicles the employee could get some kind of cold-related injury (ie the type of harm that had to be
foreseeable was defined broadly). Frostbite fell within this type of injury.
Key case: Tremain v Pike [1969] 1 WLR 1556
Facts: The claimant contracted Weil’s disease whilst employed by the defendant farmer. He
alleged that he became infected by having contact with rats’ urine. Incidence of the disease on the farm was very rare and there was no evidence that the farming community knew or ought to have known that such a disease existed or that a person might get this disease by handling matter contaminated by rats’ urine
Held: Injury from rat bites was foreseeable but not injury contracted by contact with rats’ urine (ie the courts defined the type of harm narrowly). Weil’s disease was a remote possibility which the defendant could not reasonably foresee.
Reconcile the outcomes in Bradford and Tremaine
(a) The two decisions were made shortly after Wagon Mound. Perhaps there was some
uncertainty as to how to apply the test?
(b) Policy. In Bradford, the precautions needed to protect the claimant from common coldrelated injuries were the same as those needed to protect the claimant from frostbite. In contrast, in Tremain the steps that were needed to prevent Weil’s disease were very different to those needed to protect from injuries due to direct contact with rats.
1.2 No need to foresee the exact way damage occurs
Key case: Hughes v Lord Advocate [1963] AC 837
Facts: Workmen negligently left oil lamps surrounding a hole in the road. The claimant, aged
eight, picked up one of the lamps and dropped it into the manhole, where it exploded, causing the claimant to fall into the manhole and suffer severe burns.
The type of damage, being damaged from burns, was foreseeable – for example, it was foreseeable that the claimant might knock over
and break the lamp, causing a burn. However, the events as they unfolded were probably not foreseeable.
Held: The harm was not too remote. As long as the type of damage is reasonably foreseeable, there is no need to foresee the exact way in which the burns occurred.
1.3 No need to foresee the extent of the damage
Key case: Vacwell Engineering v BDH Chemicals [1971] 1 QB 88
Facts: The claimant suffered extensive property damage following the defendant’s negligence in causing a chemical explosion. A minor explosion was reasonably foreseeable as a result of the defendant’s breach. However, the explosion that did occur was of a magnitude which was not reasonably foreseeable.
Held: The damage was not too remote for the claimant to recover the full extent of the loss. The type of damage that was foreseeable was property damage caused by an explosion. It was irrelevant that the defendant could not foresee the magnitude of such an explosion and so they were liable for the full extent of the property damage.
1.4 ‘Thin skull’ rule
The ‘no need to foresee the extent’ principle applies even if the damage or extent of injury has been aggravated by the claimant’s own weakness. This is the ‘thin skull’ or ‘eggshell skull’ rule; the defendant must take their victim as they find them.
The ‘thin skull’ rule also applies even if the damage has been aggravated by the claimant’s own ‘impecuniosity’, ie lack of monetary funds.
Key case: Smith v Leech Brain [1962] 2 QB 405
Facts: The defendants negligently burned the claimant. The burn provoked the onset of a preexisting malignant cancer from which the claimant subsequently died.
Held: If the defendant can foresee the original injury ie the type of harm (here, burns), they are responsible for anything that flows from that injury even if the claimant suffers to a greater extent because of a pre-existing condition. The defendant was liable for all physical damage to the
claimant (the type of damage) and this included the cancer and death (the extent of the
damage).
Key case: Lagden v O’Connor [2004] 1 AC 1067
Facts: The claimant hired a vehicle on credit while waiting for the defendant’s insurers to repair his car – ‘on credit’ meaning he did not have enough to pay the hire charges, so he agreed to pay
them later, and this made the overall charges significantly greater.
Held: It was reasonably foreseeable that the claimant would have to borrow money or incur some other kind of expenditure to mitigate his damages, and therefore the defendant was liable for the
full extent of the claimant’s economic loss, even though he had suffered to a greater extent
because of his impecuniosity. The court reached this rule by applying the ‘thin skull’ rule – the
defendant needs to take the claimant ‘as they find them’.
1.5 Summary
Test for remoteness: the type of damage suffered must have been reasonably foreseeable at
the time of the breach:
- If the specific damage suffered was reasonably foreseeable, this is easily established.
- If the specific damage suffered was not reasonably foreseeable, then the claimant will still
succeed if they can show that damage of the same ‘type’ was foreseeable: ‘type’ can be
narrowly or broadly construed (mostly broadly). - Once it is established that the ‘type’ of damage was foreseeable, then:
- The claimant will succeed even if the precise way the damage occurred was not reasonably foreseeable.
- The defendant must take the claimant as they find them.
