Remoteness of Damage

Question 1

ALLAN v BARCLAY (*)

Answer 1

FACTS: Pursuer’s employee suffered accident. Sued. Could not rely on employee. Engine belonging to defender broke down. Left along road, could have been moved to side where it would have done no damage. Carter in horse and cart came opposite. Frightened. Carter and cart into ditch. Personal injuries and horse/cart damaged. Harm too remote.
POL: “May reasonably be supposed to have been in the view of the wrongdoer” - secondary injury not enough. Need to naturally and directly arise. Cannot be held und to have surmised the secondary injuries.
TWO ELEMENTS: 1) Damage directly and naturally arising 2) Reasonably foreseeable.

Question 2

RE POLEMIS AND FURNESS WITHY & CO (*)

Answer 2

FACTS: Ship. Cargo loaded negligently. Carried petrol. Petrol spills. Filled with petrol vapour. In harbour makes effort to fix. Wooden plank falls into hold. Causes spark, ignites vapour, total destruction. Don’t normally cause sparks. Not reasonably foreseeable but connection obvious so direct consequence.
POL: “Directly caused” - foreseeability determines if negligent or innocent. If particular damage recoverable depends on this. DIRECT CONSEQUENCE REQUIREMENT.

Question 3

THE WAGON MOUND (*)

Answer 3

FACTS: Loading with bunker oil. Spills onto water. Wind carry oil under Wharf. In Wharf some serious work including sparks flying. Recognise danger of sparks but decide that bunker oil spread on water does not light. However, bit of cotton there which ignites. Spreads to oil. Destroys Wharf. Analysis accepted. Direct consequence (liable) but reasonable foreseeability (not liable). Against Re Polemis logic.
POL: “unforeseeability of damage is relevant to liability or compensation. There can be no liability until the damage has to be done; it is not the act but the CONSEQUENCES on which tortious liability is founded.” FORESEEABILITY REQUIREMENT

Question 4

MCKILLEN v BARCLAY CURLE AND CO LTD (*)

Answer 4

FACTS: Plumber falls from height and hits head. Liability as work environment unsafe. Claimed he had tuberculosis previously which he regained. Direct consequence? express disagreement with Re Polemis. Won cause but not through foreseeability either.
POL: “never been the case.. only liable… a reasonable man would foresee as likely to follow.” May be applied in determining liability- No relevance after this. DIFFERENT DUE TO THINK SKULL RUKLE- “Damages sustained by the individual who has been injured.”
RECONCILING WAGON MOUND AND THIS- “the doctrine of reasonable foreseeability does extend to the measure of damage and can be invoked by a defender if the damages are too remote but not in the case of person injury.” view of LORD MIGDALE.

Question 5

SIMMONS v BRITISH STEEL PLC (***)

Answer 5

FACTS: falls and suffers injury. Caused depression which contributed to skin problems. Sides with WAGON MOUND.
POL: “Function to play as to questions as to the remoteness of damage as well as to liability.”- LORD HOPE.
“the ultimate test is whether the damage was reasonably foreseeable.” LORD RODGER
LAW FOR REMOTENESS IN SCOTLAND (LORD RODGER): 1) reasonably foreseeable 2) not liable if novus or unreasonable conduct by pursuer 3) liable even if damage greater than foreseeable or caused in not foreseen manner. 4) take victim as they find them 5) liable for all personal injury if it is at all foreseeable.