Remoteness

Question 1

What is meant by remoteness?

Answer 1

Policy that dictates that damage must not be too remote from D’s breach

Question 2

What is the test for remoteness?

Answer 2

Reasonable forseeability

Question 3

Which case set out the test for reasonable forseeability?

Answer 3

The Wagon Mound No 2 [1961]

Question 4

General principle in the Wagon Mound?

Answer 4

Damage by pollution was forseeable, but they had sought expert advice and were not told about any risk of fire damage = too remote

Question 5

Why were D not found liable in the Wagon Mound (No 2) [1961]?

Answer 5

The damage was not of the same type as the damage that was reasonably forseeable

Question 6

What approach have the courts taken with same type of damage?

Answer 6

Varied, at times very broad and other times somewhat narrow

Question 7

Case for same type of damage (narrow approach by court)

Answer 7

Tremain v Pike [1969]

• Harm caused by rat bite would’ve been foreseeable
• Rare disease caused by contact from rat urine ruled a different type of har

NOT LIABLE

Question 8

Case for same type of damage (broader approach from court)

Answer 8

Bradford v Robinson Rentals [1967]

• Cold related injuries were foreseeable (although frostbite was unlikely)
• Frostbite is a cold related injury = same type as foreseeable injury

LIABLE

Question 9

What is the case on whether or not psychiatric injury is reasonably foreseeable?

Answer 9

Page v Smith [1996]

confirmed by

Corr v IBC Vehicles [2008]

Question 10

What did Page v Smith [1996] confirm about psychiatric injury foreseeability?

Answer 10

‘whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric’

Question 11

Which two cases are good to compare around same type of harm remoteness?

Answer 11

Tremain v Pike (not liable) and Bradford v Robinson (liable)

Question 12

Why was D liable in Bradford?

Answer 12

Defendant could have taken precautions to prevent cold-related injuries. The precautions needed to protect the claimant from more common cold-related injuries were the same as those needed to protect the claimant from frostbite.

Question 13

Why wasn’t D liable in Tremain?

Answer 13

Steps that were needed to prevent Weil’s disease were very different to those needed to protect from injuries due to direct contact such as rat bites (which were foreseeable). The court commented that if the D had to take effective precautions against Weil’s disease, it would not have been sufficient to keep the rat population in check. A rat population of varying size would still have remained on the farm. It would have been necessary to introduce protective clothing, checks upon cuts and abrasions and a system of washing facilities and hygiene which would be out of proportion in cost and effort to the risk which had to be countered (the court also held that there was no breach of duty).

Question 14

Once it has been established that the damage was reasonably foreseeable, does it matter under what circumstances it happens?

Answer 14

No, if the damage was foreseeable the circumstances don’t matter

Question 15

Important case for circumstances not mattering once damage has been reasonably forseen?

Answer 15

Hughes v Lord Advocate [1963]

Question 16

Hughes v Lord Advocate [1963]

Answer 16

C was burned very severely after knocking an oil lamp down a manhole, the risk of burns were foreseeable from the lamp but not in such a way.
Held it didn’t matter how, the burns were foreseeable so D was liable

Question 17

Is D liable for the full of extent of the damages, even if it is greater that what would be expected?

Answer 17

Yes - D is liable for the full extent

Question 18

Case for D being liable for a huge loss even if extent is greater than normally expected?

Answer 18

Vacwell Engineering v BDH Chemicals [1971]

explosion was reasonably foreseeable, but not one of the magnitude that occurred

Question 19

What if C makes the damage worse due to their characteristics?

Answer 19

D is still liable as they must take their victim as they find them (eggshell skull rule)

Question 20

Which cases demonstrate the eggshell skull rule?

Answer 20

Smith v Leech Brain [1962]

Robinson v Post Office [1974]

Question 21

What happened in Smith v Leech Brain [1962]?

Answer 21

C was negligently burned by D - C had a predisposition to cancer which provoked the onset of a cancer htat killed them. D held liable for all

Question 22

When else does the eggshell skull rule apply (other than physical characteristics)?

Answer 22

The rule also applies even if the damage has been aggravated by the claimant’s own ‘impecuniosity’, ie lack of monetary funds.

Question 23

Case for D still being liable despite C’s impecuniosity?

Answer 23

Lagden v O’Connor [2004]

Question 24

What happened in Lagden v O’Connor [2004]

Answer 24

C hired a car on credit while waiting for D’s insurers to repair his car – ‘on credit’ meaning he did not have enough to pay the hire charges as he wanted, so he agreed to pay them later, and this made the overall charges significantly greater.

D argued that to the extent that the losses were caused by the claimant’s need to effectively borrow money to pay the hire charges, these were too remote.
The court held that 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