#2351 - Remoteness Of Damage - Tort Law

Remoteness of Damage

Old Law

• Re Polemis

  • Two interpretations you can take from the decision

    • First interpretation

      • That as long as some damage of the relevant kind was reasonably foreseeable

        • D liable for all damage of that kind.

        • Giliker: thus Lords only drew distinction between property damage and other kinds of damage (i.e. economic loss, personal injury)

    • Second interpretation (supported by Authority):

      • As long as some damage foreseeable from D’s action

        • D would be liable for all damage that resulted from that

      • E.g. dropping plank of wood = scratched paint = reasonable foreseeable

        • So if plank was dropped and set ship on fire owing to unknown petrol vapour leak

          • Then D liable for all direct results of conduct.

Modern Law

• The Wagon Mound (1) – D negligently spilt oil into the water from his ship, which spread out among the harbour. After leaving with no attempt to do anything, some welders on the quay were welding. A spark ignited some cotton waste that was floating in the water, which in turn ignited the oil and caused considerable damage to the equipment and wharf.

  • Viscount Simonds

    • If it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them)

      • the answer is that it is not because they are natural or necessary or probable,

      • but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them

        • the test for the liability for fire is foreseeability of injury by fire

Principles set out

• Need only be foreseeability of the “kind of damage” that eventuates – no need to foresee the exact way the harm comes about

  • Hughes v Lord Advocate [1963]:C, 8yo boy, takes paraffin lamp from unattended open manhole cover and goes down into the area to explore. Owing to complicated scientific reasons, this triggers an explosion and C is badly burnt.

    • Lord Morris: Damage by burning was the “kind” of damage in question

      • And no distinction between burning caused by flame of lamp and burning caused by unforeseeable explosion.

        • Would be overly pedantic

        • And unjust to say can only have damages if spilled lamp and burnt child

          • Not if lamp exploded in child’s face causing burns while he was playing with it

  • Giliker: damage to property will be divided into different kinds of damage e.g. “damage by fire”, “damage by fouling”

    • Page v Smith [1996]

      • Personal injury is generally treated as indivisible

• Is foreseeability of the “way the damage is caused” a relevant factor?

  • Giliker: much depends on the facts of the case which way the Judges will swing.

    • Hughes v Lord Advocate

      • Lord Reid: fact that lamp acted in unpredictable way

        • And child was burned owing to unforeseeable explosion

        • Does not mean D can escape liability

      • Lord Morris: would be manifestly unjust if this was the case.

  • Otherwise = too remote.

    • Doughty v Turner Manufactuaring Ltd [1964]:

      • D’s not liable b/c risk was very substantially different from any that could be foreseen.

  • General approach = more liberal however

    • Jolley v Sutton LBC [2000]

    • Lord Steyn:

      • Court has to judge nature of the risk which ought to be foreseen

      • Owing to circumstances – inquisitive nature of children, fact boat could have been easily moved and Council said was under duty to remove it

        • Adopted much more broad view of risk

        • Was it foreseeable that children would meddle with the boat causing some physical injury?

          • Not just “was it foreseeable that children would suffer minor injuries owing to rotting boards?”

• Need not foresee “extent” of the damage for D to be liable.

  • Hughes v Lord Advocate

    • Lord Reid: defendants can be liable even when damage of greater extent not foreseeable, but damage of the same kind but minor is foreseeable, and greater damage results

      • Only way to escape liability is show it is damage of a different type.

  • Jolley v Sutton LBC [2000]:

    • Lord Hoffman:

      • If X determines a minor risk (e.g. minor scratches, broken leg)

        • And then a wider risk materialises (e.g. broken back)

        • the wider risk would also fall within the scope of the duty unless

          • it was different in kind from that which should have been foreseen AND

            • either wholly unforeseeable (as the fire risk was assumed to be in The Wagon Mound No. 1 )

            • OR so remote that it could be “brushed aside as far-fetched”

    • Lord Steyn:

      • Need not even show that type of injury is foreseeable

        • If you ought to see a reasonably foreseeable risk of personal injury to C

        • Then you are liable regardless of extent of that injury (i.e. major rather than minor)

  • Eggshell Rule

    • Generally held that although damage owing to D’s thin skull is not reasonably foreseeable

      • Tort law makes D take C as he finds him.

      • Thus, if minor damage owing to D’s negligence is reasonably foreseeable

      • And this brings on a heart attack

        • D will be liable for C’s death, despite lack of reasonable foresight

• Stapleton: Just foreseeability?

  • Concern with attenuation of responsibility

    • Lamb v Camden LBC [1981]:

      • Lord Denning: often, foreseeability is not a useful guide

        • Because the amount of damage that can arise from a foreseeable act of negligence

          • Does not always stop at the instant act of negligence

            • It can go on an awful long while.

            • E.g. Home Office allow through negligence, a youth offender to escape

              • Are they to be responsible for the damage the offender does 6 years in advance?

    • Kuwait Airways Corp v Iraqui Airways

      • Lord Nicholls:

        • The question to ask is to what extent ought D be held liable?

          • This, thought not always openly acknowledged by the courts, involves a value judgement

          • Writ large, the second inquiry of remoteness asks to what extent D ought fairly or reasonably or justly to be held liable for.

  • Concern with disproportion

    • Some people set scope of liability

    • E.g. New York

      • Only liable for next house along burning down to your negligent fire in your house

      • Not the entire block

        • Otherwise you’d be liable a little more than you should.

  • Reasonable person could have done no more to prevent eventual consequence

    • Chester v Ashar

      • Lord Hoffmann:

        • Doctor X negligently advises C to go skiing on a broken leg

          • Kind of damage – physical injury – is foreseeable.

            • But what if C is not injured skiing, but is killed by an avalanche?

        • Doctor X’s negligence has no relation to the act that killed C

          • Even though physical injury was reasonably foreseeable from Doctor X’s negligent advice.

  • Stapleton: essentially, Remoteness is much more than “is the kind of damage foreseeable”

    • Lord Denning: It also has a number of policy decisions swinging around that Judges are aware of even if they don’t articulate that they exist.

  • Question to answer = how much damage ought we hold D liable for, considering

    • Foreseeability of kind of damage

    • The need not to impose disproportionate liability

    • What actions and consequences D ought reasonably be held responsible for

    • Whether the link between causation and damage is tenuous or not

What should our calculation of remoteness be based on?

• Direct consequences?

  • Hart + Honore: in many cases where courts hold damage to be too remote, we would also refuse as a matter of ordinary speech to say that such conduct caused the damage in question.

  • Staunch: BUT the rule is unfair for a number of reasons

    • 1. The factual inquiry involved helps eliminate faulty conduct by D which on closer inspection turns out not to have played a necessary part in the harm.

      • But what it doesn’t do it strike out faulty conduct that has played a part but, given the very unexpected events subsequently, it strikes us unfair to impose liability.

    • 2. The faultiness of D’s conduct – as in Re Ptolemis - is not really relevant to the damage.

      • All we can say is that D is at least in fault in some way – but should the argument come down to who is the better person out of C and D?

    • 3. When we use tort in negligence, unlike where intentional harm has been caused, D is penalised for falling short of a general idea of a rational agency

      • Thus, when the risk that materialised was not reasonably foreseeable, than a reasonable person would’ve acted no differently than an unreasonable person

        • The partial authorship of D is absent

• Risk Theory?

  • Central tenant is that D should be liable only for harm that is “within the risk” that made his conduct a breach of duty

    • We should ask if the risk of the harm in suit would have deterred a reasonable person from engaging in such conduct

      • i.e. was the risk of harm reasonably foreseeable?

  • Two main advantages over direct consequences rule:

    • 1. Eliminates unfairness

    • 2. Allows single direct enquiry by law

  • Staunch: But the main problem here:

    • 1. Finding some objective method of defining the harm, the risk of which made D’s conduct negligent.

      • Viscount Simonds talked of the risk of the kind of harm being RF

        • But whether harm was RF will ultimately turn on specificity of description applied by judge.

        • This is borne out in the contrast between Hughes and Doughty

        • Sometimes we only need the harm to be vaguely foreseeable, other times that the particular harm be specifically foreseen.

  • Thus the accusation is that it comes down to a matter of policy.

• Expanded Risk Theory

  • When talking about the risk of something happening, we don’t say that if X, then Y – that is a factual claim

  • We’re concerned with risk claims – whether some course of action is risky

• Thus, we use causal risk recipes

  • Generalisations which are useful because while...