Remoteness

Question 1

What do we mean by remoteness

Answer 1

The damage must not be too remote from the defendant;s breach.

Limits must be placed on the extent of loss recoverable

Question 2

Test of reasonable foreseeability

Answer 2

• Objective test
• A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant’s breach

Question 3

Legal test for remoteness est in

Answer 3

by the Privy Council in The Wagon Mound (No 1)
[1961)

Question 4

Facts: The Wagon Mound (No 1) [1961]

Answer 4

• Defendants negligently caused spill into Sydney Harbour
• Oil spread distance of 600 ft into the vicinity.
• The Corrimal caused a spark to come into contact with debris floating on the oil.
• Flames from debris set the oil on fire.
• Damage was too remote to be recoverable

Question 5

Held: The Wagon Mound (No 1) [1961]

Answer 5

• Damage was not reasonably forseeable
• Welders had sought expert advice - told that there was no risk
  Pollution damage was forseeable, fire damage was not - loss was too remote and defendants were not liable for the fire damage.

Question 6

Claimant can only recover if the defendant

Answer 6

• Claimant can only recover if the defendant ought to have forseen the type of damage
• Courts have got a varied approach however, some take a broad approach, Others take a narrow view.

Question 7

Facts: Bradford v Robinson Rentals 1967

Answer 7

• 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.
• Claimant suffered frostbite
• Defendant argued this was not reasonably forseeable

Question 8

Held: Bradford v Robinson Rentals 1967

Answer 8

Reasonably forseeable that if the employer did not maintain - then could incur a cold related injury - type of harm was defined broadly.

Question 9

Facts: Tremain v Pike 1969

Answer 9

Claimant contract Weils disease whilst employed by defendant farmer.
Incidence was very rare
No evidence that the farming community knew or ought to have know such a disease existed.
Or how it was contracted via urine

Question 10

Held: Tremain v Pike 1969

Answer 10

Injury from rat bites was forseeable
But not injury contracted by contact with rats urine
Courts defined the type of harm narrowly
Weils disease was a remote possibility

Question 11

How to reconcile the outcomes in Bradford and Tremain

Answer 11

• Decision was shortly after Wagon Mound - some uncertainty as to how to apply the test
• Policy. The steps needed to protect the claimant in the two cases are very different. The steps needed in Tremain would have been out of proportion to the cost and effort to the risk

Question 12

Case law on remoteness indicates

Answer 12

Prevailing attitude of the judiciary to take a broad approach to the type of damage that must be forseeable in relation to a personal injury

Question 13

Page v Smith 1996

Answer 13

Claimant suffered psychiatric harm following a road traffic accident.
The type of harm that had to be forseeable was personal injury, physical or psychiatric
* Claimant’s psychological symptoms were forseeable - therefore recoverable

Question 14

Case Law summary: Wagon Mound Num 1

Answer 14

• Damage by fire = actual
• Damage by pollution = forseeable
• Too remote

Question 15

Case Law Summary: Tremain v Pike

Answer 15

• Weil’s disease, rare disease contracted via contact with rats urine
• Injury caused by direct contact with rats
• too remote

Question 16

Case Law Summary: Bradford re Robinson Rentals

Answer 16

• Frostbite = actual
• Cold related injuries = forseen
• Yes, recoverable

Question 17

Case Law Summary: Page v Smith

Answer 17

• Psych harm = actual
• PI, physical or psyciatric = forseen
• Yes, recoverable

Question 18

There is no need to forsee…

Answer 18

There is no need to forsee the exact way in which damage occurred; or the extent of damages.

Question 19

Facts: Hughes v Lord Advocate 1963

Answer 19

• Workmen left oil lamps surrounding a hole in the road
• Claimant aged 8 picked one up and dropped in manhole
• Explosion and claimant suffered burns.
• Events not forseeable, burns were.

Question 20

Held: Hughes v Lord Advocate 1963

Answer 20

• No harm was too remote
• Damage is reasonably forseeable
• Do not need to forsee the exact way

Question 21

Defendant is liable for the full extent of damage

Answer 21

• If the damages were reasonably forseeable
• Even if the extent is greater than that which would normally be expected

Question 22

Facts: Vacwell Engineering v BDG Chemicals 1971

Answer 22

• Claimant suffered extensive property damage
• Negligence caused an explosion
• Irrelevant that the defendant could not forsee the magnitude

Question 23

Held: Vacwell Engineering v BDG Chemicals 1971

Answer 23

• Not too remote
• Claimant recover full extent of losses
• Irrelevant that defendant could not forsee the magnitude of loss

Question 24

Thin skull or Eggshell Skull Rule1

Answer 24

• “No need to forsee extent” principle
• Even if the extent of injury has been aggravated by the claimant’s own weakness.
  Smith v Leech Brain

Question 25

Facts: Smith v Leech Brain 1962

Answer 25

• Defendants negligently burned the claimant
• Burn provoked onsent of pre-existing malignatn cancer
• Claimant subsequently died

Question 26

Held: Smith v Leech Brain 1962

Answer 26

• If defendant can forsee the original injury
• The type of harm
• They are responsible for any injury that flows from it
• Defendant liable for all phys damage - including cancer and death

Question 27

Thin skull rule applies even if aggravated by lack of monetary funds

Answer 27

Impecuniosity

Question 28

Facts: Lagden v O’Connor 2004

Answer 28

• Claimant hired vehicle on credit while waiting for defendant insurers to pay car
• Charges greater on credit

Question 29

Held: Lagden v O’Connor 2004

Answer 29

• Reasonably forseeable that the claimant would have to borrow money
• Incure expenditure to mitigate his damages
• Defendant liable for full extent of economic loss
  Impecuniosity