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
  • 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

  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
  • 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)

  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