Remoteness of Damage

Remote and proximate damage

•The test of reasonable foresight
•The test of directness
He is liable only for those consequences which are not too
remote from his conduct. No defendant
can be made liabel for all the consequences which follow his
wrongful act
A line must be drawn somewhere, and certain kinds of
losses, though a direct result of defendant’s conduct, may
remain uncompensated.
Remote and proximate damage
We are to see whether the damage is too remote a
consequence of the wrongful act or not. If that is too remote, the
defendant is not liable. If on the other hand, the act and the
consequences are so connected that they are not too remote but are
proximate, the defendant will be liable for the consequences. It is not
necessary that the event which is immediately connected with the
consequence is proximate and that farther from it is too remote.
Scott v Shepard
Novus actus interviniens or remoteness of consequences.
Haynes v Harwood, 1935
Lynch v Nurdin, 1841
The test of reasonable foresight
If the consequences of a wrongful act could have been foreseen by a
reasonable man, they are not too remote. If on the otherhand, a
reasonable man would not have foreseen the consequences, they are
too remote.
The test of directness
A person is liable for all the direct consequences of his wrongful act,
whether he could have foreseen them or not, because
consequences which directly follow a wrongful act are not too
remote.
The only question which has to be seen in such a case is whether
the defendant’s act is wrongful or not, ie, if he could foresee some
damage? If the answer to the question is in the affirmative ie, if he
could foresee any damage to the plaintiff, then he is liable not
merely for those consequences which he could have foreseen but
for all the direct consequences of his wrongful act
Smith v London and south western Railwaysco,
Re polemis and Furness, withy & co. 1921

Leisbosch dredger v Edison, 1933

 
Remoteness of damage relates to the
requirement that the damage must be of a
foreseeable type. In negligence claims, once
the claimant has established that the
defendant owes them a duty of care and is
in breach of that duty which has caused
damage, they must also demonstrate that
the damage was not too remote. Remoteness
of damage must also be applied to claims
under the Occupiers Liability Acts and also to
nuisance claims.
 
Remoteness of damage is often viewed as an
additional mechanism of controlling tortious
liability. Not every loss will be recoverable in
tort law. Originally a defendant was liable for
all losses which were a direct consequence of
the defendant's breach of duty:
The test of reasonable foresight
Wagon Mound case
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co
Ltd (Wagon Mound No. 1) 1961, uk

Hughes v Lord Advocate, 1963

Doughty v Turner Manufacturing co. Ltd, 1964
The Privy Council found in favour of the defendant, agreeing with the expert witness
who provided evidence that the defendant, in spite of the furnace oil being innately
flammable, could not reasonably expect it to burn on water. The Board indicated
Morts would probably have been successful if they had claimed damages for direct
damage by the oil to the slipway but this was minor and not part of the damages
claimed (although success on this count may have saved Morts Dock and Engineering
the costs of all the litigation for both parties across all three levels of court). Viscount
Simonds,  in his delivery for the Privy Council, said that the Counsel for Morts had
discredited their own position by arguing that it couldn't have been bunkering oil
because it wouldn't burn on water. The Privy Council's advice soundly disapproved
the rule established in Re polimis, as being "out of the current of contemporary
thought" and held that to find a party liable for negligence the damage must be
reasonably foreseeable. The council found that even though the crew were careless
and breached their duty of care, the resulting extensive damage by fire was not
foreseeable by a reasonable person, although the minor damage of oil on metal on
the slipway would have been foreseeable.
Viscount Symonds delivered the judgment of the Board and said:
It is, no doubt, proper when considering tortious liability for negligence to analyse its
elements and to say that the plaintiff must prove a duty owed to him by the defendant,
a breach of that duty by the defendant, and consequent damage. But there can be no
liability until the damage has been done. It is not the act but the consequences on which
tortious liability is founded. ... Who knows or can be assumed to know all the processes
of nature? But if it would be wrong that a man should be held liable for damage
unpredictable by a reasonable man because it was "direct" or "natural," equally it would
be wrong that he should escape liability, however "indirect" the damage, if he foresaw or
could reasonably foresee the intervening events which led to its being done.
It is a principle of civil liability, subject only to qualifications which have no present
relevance, that a man must be considered to be responsible for the probable
consequences of his act. To demand more of him is too harsh a rule, to demand less is
to ignore that civilised order requires the observance of a minimum standard of
behaviour. [1]
Up until this time the leading case had been Re polemis where the central question was
that of the directness of the chain of events between the triggering act being examined
for negligence and the result. The Council decided that rather than go with precedent
(authority) they would determine a principle from a range of cases, in a similar way
as Lord Atkin did in Donogue v Stevenson, and their principle was primarily a single test
for foreseeability which they argued was a logical link between the damage and the
liability (culpability). Stated differently, foreseeability was the logical link between, and
the test for, breach of the duty of care and the damages. This is the supreme test, and
may be rephrased as "the liability of a consequence ... was natural or necessary or
probable." The Lords made reference to hindsight, indicating it is nothing like foresight
and should play no role in assessing negligence. There is authority to challenge this
view of hindsight; in page v smith Lord Lloyd stated: "In the case of secondary victims,
i.e. persons who were not participants in an accident, the defendant will not be liable
unless psychiatric injury is foreseeable in a person of normal fortitude and it may be
legitimate to use hindsight in order to be able to apply the test of reasonable
foreseeability.“
The Lords gave Morts the opportunity to sue in nuisance but there is no record of them
testing this action in that tort. The common law rules of causation have had their
importance lessened by the promulgation of statute law in Australia. Contributory
negligence is now essential for many determinations and are covered by statutes such
as the Civil Liability Act (1936) South Australia which has more recent counterparts in a
number of jurisdictions including New South Wales.