bits of law

TORT | Negligence

Damage:
Remoteness
Revision Note | Degree
18 APRIL 2013

Introduction
claimant (C) must prove: damage was caused by defendant (D) & it was not too remote
remoteness rule: limits D's liability to what can be reasonably justified, ensures C does not profit & aids future
liabilities assessment

Remoteness test
courts developed tests to determine if the damage is too remote

RE POLEMIS AND FURNESS, WITHY & CO [1921] 3 KB 560

FACTS:
plaintiffs (P) chartered ship & due to bad weather the cargo leaked, releasing gas
unloading the ship D knocked down a plank, creating a spark, which ignited the gas & burnt the
ship
ISSUE:
was D liable for the damage?
HELD:
Court of Appeal: D liable for all loss which flowed from his conduct
direct causation test: foreseeability is only relevant in determining culpability not compensation

THE WAGON MOUND (NO 1) [1961] AC 388

FACTS:
D carelessly discharged oil from ship & oil floated towards P's wharf

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 Ps were welding & sparks ignited the oil & destroyed the wharf
ISSUE:
was D liable for the damage?
HELD:
Privy Council: D not liable because damage by oil was foreseeable but damage by fire too remote
to be foreseeable
reasonable foreseeability test: if reasonable person would not have foreseen the damage it
cannot be recovered

tests cannot be reconciled: The Wagon Mound (No 1) [1961] did not explicitly overrule Re Polemis and
Furness, Withy & Co [1921] test
both tests may still be applied although courts tend to use The Wagon Mound

JOLLEY V SUTTON [2000] 3 ALL ER 409

FACTS:
C was seroiusly injured when playing on an abandoned boat on D's land
older children attempted to repair the boat & therefore it was in a very precarious position, when it
fell on C
ISSUE:
was the injury too remote?
HELD:
House of Lords: D was liable: approved The Wagon Mound test & found the damage was
reasonably foreseeable

Similar-in-type rule
an injury not too remote if the type of injury is reasonably foreseeable, even if precise way caused was not

HUGHES V LORD ADVOCATE [1963] 1 ALL ER 705

FACTS:
D left unattended manhole covered by small tent with paraffin lamps at each corner
P, a child, took lamp inside tent, tripped, causing lamp to fall into manhole & a large explosion
P suffered serious burns

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ISSUE:
was the injury too remote?
HELD:
House of Lords: D liable because accident caused by known source of danger
injury by burning was foreseeable, even though way it happened was unexpected
Lord Morris: '.. there was a duty owed by the defenders to safeguard the pursuer against
the type or kind of occurrence which in fact happened and which resulted in his injuries,
and the defenders are not absolved from liability because they did not envisage the
precise concatenation of circumstances which led up to the accident...'

House of Lords have taken narrow view interpretation to meaning of similar type

TREMAIN V PIKE [1969] 3 ALL ER 1303

FACTS:
P contracted rare Weils disease working on D's farm, caused by contact with rats' urine
D negligently allowed a rat infestation on his farm
ISSUE:
was the injury too remote?
HELD:
D not liable: injury from rat bites was foreseeable but P's disease so unusual that it was not, even
using the similar in type proviso

more recently courts have taken broader approach to construction & widened scope of losses D can be liable
for

JOLLEY V SUTTON [2000] 3 ALL ER 409

FACTS:
C was severely injured when playing on an abandoned boat on D's land
ISSUE:
was the injury too remote?
HELD:
House of Lords: wide view of type of injury & D liable
bruises or fractures foreseeable injuries but C suffered severe crushing injuries which left him
disabled

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 using The Wagon Mound test & approach in Hughes v Lord Advocate [1963]: not necessary to
distinguish between different physical injuries, because precise nature of injury does not need to
be foreseeable

Egg-shell skull rule

egg-shell skull rule means 'take your victim as you find him'
applies where type of injury is foreseeable but C's special characteristics make extent of injury unforeseeable

SMITH V LEECH BRAIN & CO [1962] 2 QB 405

FACTS:
V suffered burn after being splashed by molten metal due to D's negligence
burn aggravated V's unknown pre-existing cancerous condition & he died
ISSUE:
was V's death too remote?
HELD:
D liable: although the cancer was unforeseeable injury, D's negligence led to cancer developing
explicitly followed The Wagon Mound test: burn injury was foreseeable & fact that extent of injury
was not, did not prevent liability
Lord Parker: '.. If a man is negligently run over... it is no answer to the sufferer's claim for
damages that he would have suffered less injury... if he had not had an unusually thin skull
or an unusually weak heart...'

ROBINSON V POST OFFICE [1974] 1 WLR 1176

FACTS:
P slipped at work, due D's negligence & suffered a minor leg injury
P went to hospital, was given an anti-tetanus injection & suffered severe allergic reaction
ISSUE:
was the second injury too remote?
HELD:
D liable for both injuries.: reasonably foreseeable P would require medical treatment as result of
original injury & D liable for consequences of treatment, despite reaction being so severe

Claimant's impecuniosity
taking your victim as you find him includes C's lack of resources (which may increase cost of loss)

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LAGDEN V O'CONNOR [2004] 1 ALL ER 277

FACTS:
C's car was damaged by D's negligent driving
C's car required extensive work & he was only able to obtain temporary hire car on an expensive
credit arrangement
ISSUE:
was the credit agreement payment too remote?
HELD:
D liable for cost of credit because C had credit agreement as result of damage caused by D's
negligence

This article can be found online at www.bitsoflaw.org/tort/negligence/revision-note/degree/remoteness-of-damage where links to further resources
are available.

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