Remoteness

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Remoteness is a mechanism which limits the ability of a plaintiff to recover damages to only those which were reasonably foreseeable consequences of the negligent act. A defendant will not be liable for damages which are too remote (outside the scope of liability), even if his negligence did cause them.[1] The test for remoteness is as follows:

  • Damages will be too remote when the damage suffered was not 'reasonably foreseeable' by the defendant.[2]
    • 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.[3]
    • Only the general type of the damage needs to be foreseeable, not the manner of its occurrence or its extent.[4]
    • The eggshell-skull rule still applies, meaning that:[5]
      • 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.

Damages which satisfy these requirements and are thus not considered remote will be recoverable by the plaintiff. Damages which are considered remote will not be recoverable.

Note that remoteness is termed in the Civil Liability Act 2002 (NSW), s 5D as scope of liability.

This article is a topic within the subject Torts.

Contents

Required Reading

Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. 518-531 [13.170-13.215].

Introduction

[6] The traditional test for remoteness was that of 'direct consequence' from Re Polemis & Furness, Withy and Co Ltd[7]. However, this was overturned in Wagon Mound No 1 in favour of the test of reasonable foreseeability (see below):

  • The test of direct consequence yields unjust result - trivial negligence causes massive damages which could not have been anticipated.
  • Liability of negligence only exists where the damage could have been reasonably foreseen by the defendant. That is the test for remoteness.

Reasonable foreseeability in damages

Dedicated article: Reasonable foreseeability

As noted before, the application of reasonable foreseeability changes according to the stage of the inquiry. In damages, reasonable foreseeability refers to whether the damage caused was reasonably foreseeable, rather than the type of plaintiff (duty of care) or whether the behaviour was risky (breach of duty). The meaning of reasonable foreseeability of damages was discussed in Wagon Mound No 2, the follow-up case to the previous one:

  • Damage is reasonably foreseeable as long as it cannot be brushed off as "physically impossible or because the possibility of its happening would have been regarded as so fantastic or farfetched that no reasonable man would have paid any attention to it."

Type of injury and manner of its occurrence

In Hughes v Lord Advocate[8], it was established that it does not matter whether the actual harm (or the extent of it) was foreseeable, as long as the type of harm was.

  • This means that if it was reasonably foreseeable that a person might be burnt because of the defendant's negligence, it does not matter if the burns occurred in an unforeseeable set of events (as long as they are still caused by the defendant, of course) or if the burns were more severe than could be expected.

This rule was reaffirmed in Jolley v Sutton London Borough Council[9]. This case also reaffirms the previous rulings in a succinct way:

  • A kid was trying to fix and abandoned boat, it collapsed on him and he sustained injuries.
  • "the present law is that unless the injury is of a description which was reasonably foreseeable, it is (according to taste) 'outside the scope of the duty' or 'too remote.'"
  • "It is also agreed that what must have been foreseen is not the precise injury which occurred but injury of a given description. The foreseeability is not as to the particulars but the genus."
  • In determining reasonable foreseeability, there are considerations, for example: "Whether avoiding the risk would have involved the defendant in undue cost or required him to abstain from some otherwise reasonable activity."
  • If not, as in this case, then "the defendants will be liable for the materialisation of even relatively small risks of a different kind."
  • Also, special care should be taken around children. (attractive nuisance, see below)
  • In this case, the general type of risk was foreseeable and it would have costed nothing to remove the risk. The defendant is liable.

Attractive nuisance

The doctrine of attractive nuisance specifies that it is reasonably foreseeable that children may harm themselves in situations wherein it is not reasonably foreseeable that adults would. In effect, it means that it is more likely that damage would be foreseeable (not too remote) in the case of a child.

The eggshell-skull rule

The eggshell-skull rule says that you have to take the victim as you find them. It means that one is responsible for the damage he caused, even if the victim was extraordinarily fragile and thus suffered greater or unforeseeable damage.

  • The defendant would be liable for any subsequent injuries directly caused by the initial injury.
  • The subsequent injuries do not have to be reasonably foreseeable.

For example:

  • If you give someone a small punch in the arm and his arm breaks because he has extremely soft bones, you are still liable for the injury although he is more vulnerable than expected.
  • If you cut someone and he has a special susceptibility towards infection and he gets an infection and dies, you will be liable although it was not foreseeable he would die from a small cut.
  • Alternatively, if you injure someone in a way which makes him unable to work, and he happens to make $10,000 a day, you will be liable for that amount regardless of the fact you didn't expect it.

In Stephenson v Waite Tileman Ltd[10], it was decided that the eggshell skull rule applies even after the decisions in the Wagon Mound cases:

  • "Although the broad basis of the rule is that it would be unjust to hold a wrongdoer liable for damage of a kind which he could not reasonably foresee, nevertheless the rule accepts the position that there are many matters of detail which nobody could predict but for which the wrongdoer nevertheless remains liable."
  • "The eggshell skull rule remains part of our law notwithstanding the decision in The Wagon Mound (No 1)."
  • "In such cases [wherein there is a vulnerable or fragile victim] the question of foreseeability should be limited to the initial injury."

The eggshell skull rule also takes into account the social, economic or religious attributes of the plaintiff, which might make him more susceptible to injury.[11]

Multiple risks

Sometimes, a defendant's negligence created multiple risks, some foreseeable and some not.

  • There will only be liability for harm caused by a foreseeable risk (no foreseeability, no liability).[12]
  • There will be no liability if the defendant is reasonably ignorant of the relationship between his negligence and the plaintiff's harm.[13]

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. CLA, s 5D (1)(b).
  2. Wagon Mound No 1 [1961] AC 388
  3. Wagon Mound No 2 [1967] 1 AC 617
  4. Hughes v Lord Advocate [1963] AC 837
  5. Stephenson v Waite Tileman Ltd [1973] 1 NZLR 152
  6. Textbook, pp. 518-9 [13.170]
  7. [1921] 3 KB 560
  8. [1963] AC 837
  9. [2000] 3 All ER 409
  10. [1973] 1 NZLR 152
  11. Nader v Urban Transit Authority of NSW (1985) 2 NSWLR 501; Kavanagh v Akhtar (1998) 45 NSWLR 588.
  12. Tame v New South Wales (2002) 211 CLR 317
  13. Wagon Mound No 1 [1961] AC 388
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