#4666 - Remoteness - GDL Tort Law

• Concerned with what damage one can actually claim for – the consequences from a breach

• Sometimes the law says that the damage is ‘too remote’ - and because of this it is irrecoverable

• To claim for damages it must be within the range of remoteness

• Judge decides where to draw the line

Two tests of recovery

1. The Test of Directness (Old test)

• Claimant can claim for all the damage which is a direct result of the breach – if you could chain it back to the original breach then you can claim for everything: Re Polemis

  • No attempt to define directness in the case: most people regarded it as extension of causation – no NAI - unfair on D leading to crushing liability

2. The Test of Reasonable Foreseeability

The Wagon Mound (No 1) (1961)

• TEST OF REASONABLE FORESEEABILITY : all the damage which is reasonably foreseeable from the breach

• Fire damage was not reasonably foreseeable – because an expert had been asked and told them not to worry - oil involved was heavy oil – hard to ignite – the expert had in fact been correct

• But the pollution damage was reasonably foreseeable

The Same Kind of Harm

• Courts vary their approach - some cases taking generously broad – whereas have been more restrictive or narrow view as the kind of harm that is foreseeable

Contrast:

Narrow view

• Tremain v Pike: C worked on a farm with cattle – sued his employer because he contracted weil’s disease: one of the ways you get it is through rat’s urine – if you work on a farm then you come into contact with rats urine – when it went to court a very narrow view was taken – not reasonable – if he had been bitten by a rat then he would have been able to claim (apparently rat bite would have been reasonable) but the disease was rare and not reasonable – this decision was heavily criticised -lots of industries knew about the disease

Wide view

• Bradford v Robinson Rentals : C sued employer for giving him defective van – windscreen couldn’t be demisted – the only way he could drive was to leave the window open – as a result he got frostbite: court took wide approach to remoteness– any type of damage from coldness was reasonably foreseeable

• Margereson v JW Roberts: C was diagnosed with mesothelioma: many years previously when they had been a child, they would regularly play by the D’s factories – thought they were playing with snow but it was in fact white asbestos – D argued that the kind of lung cancer that the plaintiff got was unusual – but courts said ‘is it reasonably foreseeable that a kind of respiratory illness will occur?

Risk of Damage

• So long as the type of damage is foreseeable, it will not be too remote even if the chances of it happening are minimal: Overseas Tankship (UK) v Miller Steamship Co; The Wagon Mound (No. 2)

No need to foresee exact way damage occurs

• Hughes v Lord Advocate: workers had left manhole up and left it – group of children decided to explore: C was only 8 - played with the lamp and dropped it in the hole, where it exploded, causing severe burns – court felt that damage by fire was foreseeable and , there, there was no need to foresee the exact way in which is occurred (an explosion) – not sure exactly what happened – but either the lamp got caught or he dropped it

  • Clear that the burns were reasonably foreseeable

    • But it was argued that how the burns occurred was not reasonably foreseeable

    • Court – you do not have to foresee exactly how the damage occurred

  • D said they would only pay damages for a small burn - as this was not reasonably foreseeable – the extent of the damage

    • Court rejected this too – once the damage is reasonably foreseeable then the D is liable for the full extent of the damages – all the money for the full extent of the damage

  • Generous decision – courts trying to use mechanisms to get pragmatic justice

• Cases which don’t follow the usual route: BLIP CASES

  • Doughty v Turner Manufacturing CO Ltd: plaintiff suffered burns at work due to an explosion – sued – evidence that the reason for the explosion was that they had been moving a massive asbestos lid to a cauldron – in the cauldron there were chemicals – somehow the lid slid into the cauldron and there was a chemical reaction which led to the explosion – but no one knew there was going to be this reaction – unusual reaction – Court denied claim for damage suffered – said it was not reasonably foreseeable – so not reasonably foreseeable – but said however, if the lid had fallen into the liquid rather than slid – then it would have splashed and then he could have claimed – but because it slid it wasn’t foreseeable - heavily criticised (vs. Hughes)

  • Crossley v Rawlinson: AA case – plaintiff was an AA control-man – in his patrol vehicle – saw a lorry on fire – had been caught on fire negligently – he tried to help – parked his vehicle – grabbed the fire extinguisher – ran towards the fire, then tripped up on a pothole because he got to the fire – sued the D’s lorry – was his damage (broken arm) reasonably foreseeable – they said no -said that if he had been burned then he could have claimed (said that if he had tripped up and fallen into the fire then he could have claimed – burn damage) – goes vs. the usual way law treats rescuers - but low level case in divisional court

Why the contrast btw Hughes and Doughty?

• Both cases decided in the 2 years after The Wagon Mound – judges struggling to implement the new law – or because in Hughes the plaintiff was a child

• Today unlikely that a court would follow Doughty – usually interprets type of injury in a broad sense – so the extent of the harm or the exact way in which it was caused poses no problems to claimants – might also explain decision to include psychiatric harm with physical injury under more generous title of ‘personal injury’ - Page v Smith, Simmons v British Steel plc

Occupiers Liability

• Jolley v London Borough of Sutton: Jolley (14 years old) and friends saw abandoned boats on Sutton Council – the Council knew about it – Jolley and friends decided to do it up and then put it on the Thames and sail to Cornwall: they all went home to get tools/equipment (including a car jack!) – started working – Jolley decided to go underneath the boat – but someone else jumped on top of it – the jack gave way and the boat fell on Jolley – he broke his back - sued the council: HL – no one should ever underestimate children’s attempts to mimic the behaviour of adults – foreseeable that they would do this and be damaged thereof

Consequential economic loss

Allied Maples Group Ltd v Simmons & Simmons: you can claim so long as there is a real/substantial chance of suffering the loss

• Signing of a business contract - he would have made loads of money – but he couldn’t because of the negligence of the solicitors

• Nearer you are to fruition then the more likely you will get the money

No need to foresee extent of damage

• As in Hughes above - once it is established that the claimant has suffered the same kind of damage as...