Remoteness Flashcards
Remoteness
As well as proving that the defendant’s breach of duty factually caused the damage suffered by the claimant, the claimant must prove that the damage was not too remote from the defendant’s breach.In other words, for how much of the claimant’s loss should the defendant be responsible?
The Remote Test
● the direct consequence test;
● the reasonable foreseeability test.
● the direct consequence test;
The traditional direct consequence test of whether damage was too remote was laid down in Re Polemis and essentially imposed liability for all direct physical consequences of a defendant’s negligence.
Re Polemis and Furness, Withy & Co Ltd [1921]
The charterers of a ship filled the hold with a cargo including a number of containers of petrol. These filled the hold with petrol vapour which ignited when a heavy plank was dropped into the hold by a stevedore whilst the ship was unloading, destroying the ship.The defendants were liable for all damage which resulted from the breach of duty, regardless of whether that damage was foreseeable by the defendant.
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) [1961]
Due to the negligence of the defendants’ employees, some oil from the ship leaked into the water. The oil spread to the claimants’ wharf, causing damage to the slipway, but then, further damage was caused when the oil was ignited by sparks. The trial judge found that the damage to the slipway was reasonably foreseeable but, given that the oil needed to be raised to a very high temperature before it would catch fire, the fire damage was not reasonably foreseeable. Nevertheless, as the Australian courts were following Re Polemis, the defendants were liable for both type of damages. The Privy Council, however, stated that Re Polemis was no longer good law. The new test of remoteness was the foresight of the reasonable person: was the kind of damage suffered by the claimant reasonably foreseeable at the time of the breach of duty? Under this test, the defendants were only liable for the damage to the slipway, and not for the fire damage.
(Type of damage)
Under the reasonable foreseeability test as laid down in Wagon Mound No 1 , a defendant will only be liable if it was reasonable to foresee the type of damage that in fact happened – in Wagon Mound No 1 , it was clear that this covered the damage to the slipway, but not the fire damage. However, this has led to some difficult distinctions in other cases, as the contrasting decisions in
Doughty v Turner Manufacturing Co (1964) and Hughes v Lord Advocate (1963) show.
Doughty v Turner Manufacturing Co(Type of damage)
The claimant was injured when an asbestos cover fell into hot liquid. The chemical reaction caused the liquid to erupt from the vat, burning the claimant. The reaction was not foreseeable, but the claimant argued that it was foreseeable that the lid falling in would cause some liquid to splash out. The court disagreed, as an eruption was different in kind from a splash, so the damage was too remote.
Hughes v Lord Advocate (Type of damage)
Post office employees opened a manhole in the street. An eight-year-old boy knocked a lamp into a manhole, causing an explosion in which the boy fell into the hole and was badly burnt. The defendants claimed that although they could foresee a risk that someone might be burnt, they could not have foreseen injuries caused by an explosion, and so the damage was too remote. The court rejected this: if it was reasonably foreseeable that the damage would be burning, it did not matter that the burns were produced in an unforeseeable way.
Page v Smith (No 2) (Type of damage)
It was argued that where some form of personal injury was foreseeable, both psychiatric and physical types of injury were foreseeable.
Margereson v J W Roberts (Type of damage)
The claimants had contracted mesothelioma as a result of playing near the defendant’s asbestos factory as children. The court held that it was not necessary for mesothelioma to be a reasonably foreseeable result of the exposure, it was sufficient that some form of lung damage was reasonably foreseeable.
Conflicting between the two cases
[Diplock states that in Doughty the ratio of Wagon Mound must be applied. Although this is similar to Hughes, there is a crucial difference. In that case the boy was injured as a result of the defendants’ negligently leaving the manhole uncovered. Although the specific injury was unforeseeable, the negligent act directly led to it. In this case, the only duty owed to Doughty was to ensure that he would not be injured if the top fell in the molten liquid and splashed some over the side. This was prevented – the only reason he was injured was because of the unforeseeable explosion. Turner did not have a duty to protect Doughty from this, as they could not have foreseen it.]
(Extent of damage)
The eggshell-skull rule states that defendants will be liable even if the reason why the damage is more serious than could be expected is due to some weakness or infirmity in the claimant.
Smith v Leech Brain (Extent of damage)
The claimant was burnt on the lip as a result of the defendant’s negligence. He had a pre-cancerous condition, which became cancerous as a result of the burn, and the defendant was held liable.
Liesbosch Dredger v SS Edison (Extent of damage)
Traditionally, it was considered that the eggshell-skull rule did not apply in economic loss.
The defendants negligently sank the claimants’ ship and the claimants had to hire another ship to do the work. It would have been cheaper to buy another ship, but the claimants could not at that point afford this. They claimed for the cost of a new ship plus the cost of the hired ship. The court refused to compensate them for the cost of the hired ship, as this loss was caused by their own financial circumstances and was not foreseeable by the defendants.
Lagden v O’Connor (2003),(Extent of damage)
The House of Lords confirmed that the ‘thin skull’ principle now applies to economic loss as well as to physical. The claimant was involved in a car accident which was the fault of the defendant and needed a replacement car. Since the claimant was unemployed and poor, he could not afford to pay to hire a car, so he could only replace his car through a credit hire, which was more expensive. The court held that since the test for remoteness was now reasonable foreseeability, the defendants had to take claimants as they found them, including their financial situation. Hence, the defendant was liable for the extra costs.
