Remoteness

Question 1

What is remoteness?

Answer 1

The basic position is that a claimant can only recover if they can show that the damage that they have suffered was reasonably foreseeable at the time that the defendant breached the duty of care they owed the claimant.

Question 2

Case authority for remoteness test

Answer 2

The Wagon Mound (No 1)

Question 3

Wagon Mound (no 1) Facts and Decision

Answer 3

FACTS: The defendants negligently caused oil to spill into Sydney Harbour. The oil spread a distance of 600 feet into the vicinity of a ship called The Corrimal which was berthed at the claimant’s wharf. Two days later welding operations on The Corrimal caused a spark to come into contact with harbour rubbish floating on the oil. The flames from the debris set the oil on fire. The resulting fire caused extensive damage to the claimant’s premises. The damage was a direct result of the defendant’s negligence, but the court nonetheless had to determine whether the damage was too remote to be recoverable.

HELD: it was not reasonably foreseeable damage. The welders on the Corrimal had noticed the oil and sought expert advice before welding. They were told that there was no risk of fire given that the type of oil spilled required an extremely high ignition point to catch alight. Damage by pollution was foreseeable, but damage by fire was not. Accordingly, the loss was too remote and the defendants were held not to be liable for the fire damage.

Question 4

The same kind/type of harm

Answer 4

The claimant can only recover if the defendant ought to have foreseen the ‘kind’ or ‘type’ of damage suffered by the claimant. If the claimant suffers a different kind of harm, it will not be recoverable.

Question 5

Case: The Wagon Mound (No 1)

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable):

Foreseeable damage:

Same type?

Answer 5

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable): Damage by fire.

Foreseeable damage: Damage by pollution.

Same type?: No, so too remote.

Question 6

Case: Tremain v Pike (farmer worker suffered injury)

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable):

Foreseeable damage:

Same type?

Answer 6

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable): Weil’s disease, a rare disease contracted through contact with rats’ urine.

Foreseeable damage: Injury caused by direct contact with rats (eg rat bite).

Same type?: No, so too remote.

Question 7

Case: Bradford v Robinson Rentals (employee suffered injury).

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable):

Foreseeable damage:

Same type?

Answer 7

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable): Frostbite

Foreseeable damage: Cold related injuries

Same type?: Yes

Question 8

Case: Page v Smith (road traffic accident)

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable):

Foreseeable damage:

Same type?

Answer 8

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable): Psychiatric harm

Foreseeable damage: Personal injury generally

Same type?: Yes - it was necessary to satisfy only the following test of foreseeability, ‘whether the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric’

Question 9

Case: Corr v IBC Vehicles

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable):

Foreseeable damage:

Same type?:

Answer 9

The damage suffered (itself unforeseeable, or allegedly / potentially unforeseeable): Suicide from depression

Foreseeable damage: Psychological symptoms as a result of the accident

Same type?: Yes – ‘where it is established that physical injury to the pursuer was foreseeable, it is unnecessary to ask whether it was foreseeable that he would also suffer psychiatric injury’

Question 10

Comparison of Tremain v Pike and Bradford v Robinson

Answer 10

Bradford v Robinson Rentals: the defendant employer knew the fan heater in the claimant’s van was not working which required the claimant to keep the window down to prevent his breath icing up the windscreen on a 20-hour journey! The claimant suffered from frostbite. The defendant argued frostbite was not reasonably foreseeable (very rare in the UK).

Held: the defendant exposed the claimant to a reasonably foreseeable risk of injury arising from exposure to severe cold. It was reasonably foreseeable that if the employer did not maintain their vehicles the employee could get some kind of cold related injury (ie the courts defined the type of harm that had to be foreseeable broadly). Frostbite fell within this class of injury.

Tremain v Pike: the claimant contracted Weil’s disease whilst employed by the defendant farmer. The claimant alleged that he became infected by handling hay and by using or washing in water that was contaminated by rats’ urine. Incidence of the disease on the farm was very rare and there was no evidence that the farming community knew or ought to have known that such a disease existed or that a person might get this disease by handling matter contaminated by rats’ urine.

Held: The type of damage that had to be foreseeable was disease contracted by contact with rat’s urine (ie the courts defined the type of harm n

Question 11

From the case law, what sort of approach do the judiciary tend to take to the type of damage that must be foreseeable, particularly in relation to personal injury.

Answer 11

A broad approach.

Question 12

How do we reconcile Bradford and Tremain?

Answer 12

In Bradford, the precautions that the defendant could have taken to prevent more common cold-related injuries (that were more likely/forseeable than frostbite) would also have protected the claimant from getting frostbite. Whereas in Tremain, the forseeable damage was injuries due to direct contact with rats eg. rat bites and the precautions needed to protect against those would be very different than the precautions needed to protect against Weil’s disease eg. would not be enough to simply reduce rat population, would also need protective clothing, system of washing facilities etc, which would have been out of proportion in cost and effort to the risk which had to be countered.

Question 13

Is there a need to see the exact way damage occurs?

Answer 13

No, once it has been established that the kind/type of damage is reasonably forseeable, there is no need to forsee the exact way that damage occurs.

Question 14

Authority for no need to see the exact way that damage occurs?

Answer 14

Hughes v Lord Advocate

Question 15

Hughes v Lord Advocate

Answer 15

FACTS: workmen negligently left oil lamps surrounding a hole in the road. The claimant, aged eight, picked up one of the lamps to explore the manhole and either knocked or dropped it into the manhole, where it exploded and caused the claimant to fall into the manhole suffering severe burns. The type of damage, being damaged from burns, was foreseeable – for example, it was foreseeable that the claimant might knock over and break the lamp, causing a burn. However, the events as they unfolded were probably not foreseeable. Was the damage too remote?

HELD: no. It was not too remote. As long as the kind / type of damage is reasonably foreseeable, there is no need to foresee the exact way in which the burns occurred.

Question 16

No need to foresee the extent of damage

Answer 16

Once the claimant suffers damage of the same kind or type as that which is reasonably foreseeable, the defendant is liable for the full extent of those damages, even if the extent is greater than that which would normally be expected.

This means that the defendant may be liable for huge losses if they damage a high wage earner or valuable property eg compare a road traffic accident in which a student breaks their leg with a professional footballer breaking their leg.

Question 17

Authority for no need to foresee the extent of damage

Answer 17

Vacwell Engineering v BDH Chemicals

Question 18

Vacwell Engineering v BDH Chemicals

Answer 18

the claimant suffered extensive damage following the defendant’s negligence in causing a chemical explosion. The Court held that it was reasonably foreseeable that an explosion of a minor kind could have occurred as a result of the defendant’s breach, and although the explosion that did occur was of a magnitude which was not reasonably foreseeable, it was caused by, and was the direct result of, the defendant’s breach. Therefore, the damage was not too remote for the claimant to recover the full extent of the loss. In short, the type of damage that was foreseeable was property damage caused by an explosion. It was irrelevant that the defendant could not foresee the magnitude of such an explosion and so they were liable for the full extent of the property damage.

Question 19

The ‘thin-skull’ rule

Answer 19

The defendant must take their victim as they find them. No need to forsee extent of damage even if the damage or extent of injury has been aggravated by the claimant’s own weakness.

Question 20

‘Thin skull’ rule authority

Answer 20

Smith v Leech Brain

the defendants negligently burned the claimant. The burn provoked the onset of a pre-existing malignant cancer from which the claimant subsequently died. Even though the claimant had a pre-disposition towards cancer, the defendants were held liable. The court held that if the defendant can foresee the original injury (in this case, burns), he is responsible for anything that flows from that injury even if the claimant suffers to a greater extent because of a pre-existing condition. The defendant was liable for all physical damage to the claimant (the type of damage) and this included the cancer and death (the extent of the damage)

Question 21

Rule that no need to foresee the extent of damage also applies even if the damage has been aggravated by the claimant’s own ‘impecuniosity’, ie lack of monetary funds.

Answer 21

Lagden v O’Connor
The claimant hired a vehicle on credit while waiting for the defendant’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. The defendant 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. The court reached this rule by applying the ‘thin skull’ rule – the defendant needs to take the claimant ‘as he finds him’.