Remoteness

Question 1

what are some rationales for remoteness (incl. case)

Answer 1

• balancing C’s interest in security and D’s freedom of action - not discouraging enterprise by tilting law too far towards C whilst not imposing disproportionate burdens on D
• a matter of ‘practical politics’ (Palsgraf v Long Island Railway Co, Andrews J)

Question 2

what is a mistake some lawyers take in their approach to remoteness?

Answer 2

• they conflate the concepts of remoteness and causation
• this approach can be seen in US tort law when invoking the doctrine of ‘proximate cause’

Question 3

how is remoteness assessed? (incl. case)

Answer 3

• Wagon Mound (No1) - reasonable foreseeability test

Question 4

comments on the Wagon Mound approach

Answer 4

• Viscount Simonds (in judgment): the test justly accommodates security and freedom of action
• ‘it is a principle of civil liability… that man must be considered to be responsible for the probable consequences of his act’
• emphasis on balancing of competing interests; conferral of discretion on judges

Question 5

academic commentary: judicial discretion in remoteness

Answer 5

Fleming: ‘Foreseeability is a criterion with a wide margin of tolerance, largely influenced by individual experience and imagination’ (judges attach importance to the features of a case that strike them as salient)

Question 6

what is the scope of the remoteness test? (incl. case)

Answer 6

Hughes v Lord Advocate - harm must be of a reasonably foreseeable type; the precise sequence of events does not have to be foreseeable

Question 7

cases which discuss harm of a reasonably foreseeable type (x3)

Answer 7

• Hines v Morrow and United Novelty Co v Daniels (American cases)
• Jolley v Sutton LBC - emphasis on the ‘scope’ of the risk; whether the type of harm is reasonably foreseeable depends on the circumstances of the case

Question 8

eggshell skull principle

Answer 8

you must take your victim as you find them; C has a particular weakness and D is hence held liable for unforeseeable losses

Question 9

cases in which the eggshell skull principle has applied (x3)

Answer 9

• Smith v Leech Brain & Co Ltd - molten metal splash onto C brought about an (unforeseen) increased susceptibility for cancer; D liable
• Sayers v Perrin - electric shock triggers (unforeseeable) polio; D liable
• Pigney v Pointers Transport Services - carelessness leads to (unforeseeable) melancholia and suicide; D liable

Question 10

what was the remoteness rule prior to Wagon Mound (No1)? (incl. case)

Answer 10

Re Polemis - direct consequences test (instead of reasonable foreseeability)

Question 11

what was said about the Polemis test in Wagon Mound?

Answer 11

Viscount Simonds: the direct consequences test was not ‘consonant with current ideas of justice or morality’

Question 12

academic commentary: criticisms about remoteness tests

Answer 12

Green: no formula can be devised that will yield uncontroversial answers to all proximate cause or remoteness questions; the result in hard cases depends on the exercise of judgment (discretion)

Question 13

suicide and reasonable foreseeability (incl. case)

Answer 13

Corr v IBC Vehicles - suicide is to be seen as a reasonably foreseeable act when C makes a ‘voluntary, informed decision’ (which C in this case did not)