Remoteness Flashcards
What’s the basic position for remoteness?
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 - objective test.
Key case for remoteness?
The Wagon Mound (No 1) [1961]
Facts for The Wagon Mound (No 1)?
Ds caused oil spill Sydney Harbour.
Into vicinity of ship called The Corrimal - at C’s wharf.
Two days later - welding caused spark to contact rubbish floating in oil - caused fire and damage to C’s premises.
Causation established, but remoteness?
HELD: not reasonably foreseeable damage. Damage by pollution foreseeable, but not by fire. Loss too remote.
What is meant by ‘the same kind or type of harm’?
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.
Have the courts always taken the same approach with remoteness?
No - sometimes broad and sometimes narrow.
Two key comparable cases?
Tremain v Pike [1969] (Weil’s disease, rats urine - too remote) and Bradford v Robinson Rentals [1967] (frostbite, cold related injuries - yes same type).
Two cases that show examples of harm being same type? (psychiatric harm/suicide)
Page v Smith [1996] (necessary only to satisfy test of foreseeability) and Corr v IBC Vehicles [2008] (suicide from depression - physical injury of some kind foreseeable)
Why were Bradford and Tremain found differently?
The courts defined the type of harm that had to be foreseeable in different ways - one broadly and one narrowly.
In Bradford, ‘some kind of cold related injury’ had to be foreseeable. In Tremain, the damage that had to be foreseeable was ‘disease contracted by rat’s urine’
Why were the decisions of Bradford and Tremain found differently?
- Possibly - found shortly after The Wagon Mound (No1), uncertainty about how to apply the test?
- Policy - the precautions needed to be taken in each case were very different…
Once the ‘foreseeability of damage’ test is fulfilled, what next?
- No need to foresee the exact way damage occurs
2. No need to foresee extent of damage
What’s the key case for ‘no need to foresee the exact way the damage occurs’?
Hughes v Lord Advocate [1963]:
Claimant (8) knocked oil lamps into manhole and fell in, causing explosion and suffering burns.
Not too remote - as long as kind/type of damage foreseeable. No need to foresee exact way in which burns occurred.
What’s the key case for ‘no need to foresee the extent of damage’?
‘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.’
Vacwell Engineering v BDH Chemicals [1971]: extensive damage to C following huge chemical explosion. Court held minor explosion foreseeable, but as the explosion was caused by the breach, didn’t matter that i was much larger. Damage not too remote. Irrelevant that D could not foresee magnitude of explosion: liable for full extent.
Does the ‘no need to foresee the extent of damage’ rule apply even if the damage or extent of injury has been aggravated by the claimant’s own weakness?
Yes - known as the ‘thin skull’ or ‘egg shell’ rule: D must take victim as they find them.
Smith v Leech Brain [1962]: Ds burned C. Provoked onset of pre-existing malignant cancer; died.
Ds liable: if D can foresee original injury, responsible for anything that flows from it. (see also Robinson v Post Office)
Does the ‘no need to foresee the extent of damage’ rule apply even if the damage has been aggravated by the claimant’s own ‘impecuniosity’ i.e. lack of monetary funds?
Yes - Lagden v O’Connor [2004].
- C hired vehicle on credit -D argued that losses caused by C’s need to borrow money that these were too remote. Court held reasonably foreseeable that C would have to borrow money and therefore D was liable for full extent of economic loss. applied ‘thin skull’ rule - D has to take C as he finds him.
