Reasonable foreseeability

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Reasonable foreseeability is a mechanism which limits the type of plaintiffs, risks or damages which the defendant is liable for. It operates differently for the different areas of tort law.

Contents

Foreseeability of a plaintiff

See: duty of care

A defendant will only owe a duty of care to plaintiffs who are reasonably foreseeable. Anyone likely to be affected by the actions or omissions of the defendant will be regarded as a reasonably foreseeable plaintiff.[1]

Foreseeability of a risk

See: breach of duty

When determining whether a defendant breached his duty of care by acting below the standard of care, the court first determines whether the risk was foreseeable. Obviously, if it is unreasonable to foresee that a risk exists, the defendant will not be required to take measures to prevent it. For example:

  • A visits B's house. Whilst in the house, he decides to climb onto a table and jump to another. He doesn't land properly and injures himself gravely in the eye on a glass bottle that was on the table.
  • In terms of a duty of care, A is reasonably foreseeable. B owes a duty of care to A because A is in his house, and it his reasonably foreseeable that his negligence could injure A.
  • However, it is not reasonably foreseeable that a risk is created by leaving a glass bottle on a table. Thus, reasonable foreseeability will not be satisfied for breach of duty.

The reasonable foreseeability test was discussed in Wyong Shire Council v Shirt:

  • Reasonable foreseeability is given a broad scope.
  • To be foreseeable, a risk does not have to be probable or likely to occur. That is a probability question and is applied later. An unlikely risk can still be foreseeable.
  • To be foreseeable, the risk merely has to not be "far fetched or fanciful".
    • "...when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful[2]."

In addition, the old question regarding whether the specific set of events or merely the general character of them needed to be foreseeable arose in Doubleday v Kelly:

  • "The actual events as they happened are not the circumstances to which consideration of foreseeability of risk of injury is applied; what is to be considered is foresight in more general terms of inquiry[3]."

Foreseeability of damages

See: remoteness

A defendant will only be liable for damages which are reasonably foreseeable (in other words, not 'too remote'). Damage is only 'not reasonably foreseeable' if it was thought to physically impossible or so 'far fetched' that a reasonable person would completely disregard it.[4]

As always, only the general type of the damage needs to be foreseeable, not the manner of its occurrence or its extent.[5]

  • The eggshell-skull rule still applies, meaning that:[6]
    • The defendant would be liable for any subsequent injuries directly caused by the initial injury owing to the fragility or state of the victim.
    • The subsequent injuries do not have to be reasonably foreseeable.

End

This is the end of this topic. Click here to go back to the main subject page for Torts.

References

Textbook refers to Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009).

CLA refers to Civil Liability Act 2002 (NSW)

  1. Donoghue v Stevenson [1932] AC 562, 580
  2. (1980) 146 CLR 40, 44
  3. [2005] NSWCA 151, 11
  4. Wagon Mound No 2 [1967] 1 AC 617
  5. Hughes v Lord Advocate [1963] AC 837
  6. Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152
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