Remoteness Flashcards
What do we mean by remoteness
The damage must not be too remote from the defendant;s breach.
Limits must be placed on the extent of loss recoverable
Test of reasonable foreseeability
- Objective test
- A claimant can only recover if the type of damage suffered was reasonably foreseeable at the time the defendant’s breach
Legal test for remoteness est in
by the Privy Council in The Wagon Mound (No 1)
[1961)
Facts: The Wagon Mound (No 1) [1961]
- 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
Held: The Wagon Mound (No 1) [1961]
- 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.
Claimant can only recover if the defendant
- 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.
Facts: Bradford v Robinson Rentals 1967
- 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
Held: Bradford v Robinson Rentals 1967
Reasonably forseeable that if the employer did not maintain - then could incur a cold related injury - type of harm was defined broadly.
Facts: Tremain v Pike 1969
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
Held: Tremain v Pike 1969
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
How to reconcile the outcomes in Bradford and Tremain
- 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
Case law on remoteness indicates
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
Page v Smith 1996
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
Case Law summary: Wagon Mound Num 1
- Damage by fire = actual
- Damage by pollution = forseeable
- Too remote
Case Law Summary: Tremain v Pike
- Weil’s disease, rare disease contracted via contact with rats urine
- Injury caused by direct contact with rats
- too remote
Case Law Summary: Bradford re Robinson Rentals
- Frostbite = actual
- Cold related injuries = forseen
- Yes, recoverable
Case Law Summary: Page v Smith
- Psych harm = actual
- PI, physical or psyciatric = forseen
- Yes, recoverable
There is no need to forsee…
There is no need to forsee the exact way in which damage occurred; or the extent of damages.
Facts: Hughes v Lord Advocate 1963
- 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.
Held: Hughes v Lord Advocate 1963
- No harm was too remote
- Damage is reasonably forseeable
- Do not need to forsee the exact way
Defendant is liable for the full extent of damage
- If the damages were reasonably forseeable
- Even if the extent is greater than that which would normally be expected
Facts: Vacwell Engineering v BDG Chemicals 1971
- Claimant suffered extensive property damage
- Negligence caused an explosion
- Irrelevant that the defendant could not forsee the magnitude
Held: Vacwell Engineering v BDG Chemicals 1971
- Not too remote
- Claimant recover full extent of losses
- Irrelevant that defendant could not forsee the magnitude of loss
Thin skull or Eggshell Skull Rule1
- “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
Facts: Smith v Leech Brain 1962
- Defendants negligently burned the claimant
- Burn provoked onsent of pre-existing malignatn cancer
- Claimant subsequently died
Held: Smith v Leech Brain 1962
- 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
Thin skull rule applies even if aggravated by lack of monetary funds
Impecuniosity
Facts: Lagden v O’Connor 2004
- Claimant hired vehicle on credit while waiting for defendant insurers to pay car
- Charges greater on credit
Held: Lagden v O’Connor 2004
- 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