Introduction

A claimant must prove that the damage was not only caused by the defendant but that it was not too remote. The remoteness of damage rule limits a defendant's liability to what can be reasonably justified, ensures a claimant does not profit from an event and aids insurers to assess future liabilities.

Remoteness test

The courts have developed tests in order to determine if the damage is too remote.

• Re Polemis and Furness, Withy & Co [1921] 3 KB 560

  Facts:

  The plaintiffs chartered a ship and due to bad weather the cargo had leaked, releasing some gas below the deck. On unloading the ship one of the defendant's workers knocked down a plank, creating a spark, which ignited the gas and burnt the ship.

  Issue:

  Was the defendant liable for the damage?

  Held:

  The defendant was liable for all the loss which flowed from his conduct. The Court of Appeal applied a direct causation test which means that foreseeability is only relevant in determining culpability not compensation.

• The Wagon Mound (No 1) [1961] AC 388

  Facts:

  The defendant carelessly allowed oil to be discharged oil from a ship and the oil floated on the water towards the plaintiff's wharf. The plaintiffs were welding and sparks from the equipment ignited cotton waste mixed up in the oil and then oil caught fire. The plaintiff's wharf was destroyed by the fire.

  Issue:

  Was the damage too remote?

  Held:

  The defendant was found not liable, because it was not reasonably foreseeable that the oil might ignite on water in these circumstances. The Privy Council applied a reasonable foreseeability test . Although, damage by oil was foreseeable the damage by fire was too remote to be foreseeable. Essentially, the test means that if a reasonable person would not have foreseen the damage it cannot be recovered.

The two tests cannot be reconciled. The Wagon Mound (No 1) [1961] decision, did not explicitly overrule the Re Polemis and Furness, Withy & Co [1921] test. Therefore, both tests may still be applied although courts have tended to use the approach taken in the The Wagon Mound.

• Jolley v Sutton [2000] 3 All ER 409

  Facts:

  The claimant, a child, was injured when playing on a boat which had been abandoned on the defendant's land. Older children had attempted to repair the boat and therefore it was left in a very precarious position, when it fell on the claimant.

  Issue:

  Was the injury too remote?

  Held:

  The House of Lords approved The Wagon Mound test and found that the damage was reasonably foreseeable and therefore the defendant was liable.

Similar-in-type rule

An injury is not too remote if the type of injury is reasonably foreseeable, even if the precise way in which the injury was caused was not foreseeable.

• Hughes v Lord Advocate [1963] 1 All ER 705

  Facts:

  The defendant, left a manhole covered by a small tent with a paraffin lamp at each corner, unattended. The plaintiff, one of two boys aged 8 and 10, took a lamp inside the tent, he tripped, causing the lamp to fall into the manhole and this created a large explosion. The plaintiff suffered serious burns.

  Issue:

  Was the injury too remote?

  Held:

  The House of Lords found that the defendant was liable because the accident was caused by a known source of danger, therefore, injury by burning was foreseeable, even though the way in which 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....

The House of Lords have taken a narrow view in interpreting the meaning of similar type.

• Tremain v Pike [1969] 3 All ER 1303

  Facts:

  The plaintiff contracted Weils disease working on the defendant's farm. The defendant had negligently allowed a rat infestation on his farm. The plaintiff's rare disease was caused by contact with rats' urine.

  Issue:

  Was the injury too remote?

  Held:

  The defendant was not liable. An injury caused by rat bites was foreseeable but the plaintiff's disease was so unusual that it was not foreseeable, even using the similar-in-type proviso.

However, more recently the courts have taken a broader approach to construction and widened the scope of losses for which a defendant can be held liable.

• Jolley v Sutton [2000] 3 All ER 409

  Facts:

  The claimant, a child, was severely injured when playing on a boat which had been abandoned on the defendant's land

  Issue:

  Was the injury too remote?

  Held:

  The House of Lords took a wide view of the type of injury. It was foreseeable that injuries such as bruises or even fractures may be sustained but the claimant suffered severe crushing injuries which left him disabled. Using The Wagon Mound test and following the approach in Hughes v Lord Advocate [1963], the court found that it was not necessary to distinguish between the different types of physical injuries, because the precise nature of the injury does not need to be foreseeable.

Egg-shell skull rule

The egg-shell skull rule applies in cases where the type of injury is foreseeable but the claimant's special characteristics make the extent of the injury unforeseeable. The rule is also referred to as take your victim as you find him.

• Smith v Leech Brain & Co [1962] 2 QB 405

  Facts:

  The victim suffered a burn on his face after being slightly splashed by molten metal when working for the defendant. The incident would not have happened but for the defendant's negligence. The burn aggravated the victim's unknown pre-existing cancerous condition and he died.

  Issue:

  Was the victim's death too remote?

  Held:

  The court found that the defendant was liable because although the cancer was an unforeseeable injury the defendant's negligent act led to the cancer developing. The court explicitly followed The Wagon Mound test: the burn injury was foreseeable and the fact that the extent of the 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:

  The plaintiff slipped at work, due to the defendant's negligence, and suffered a minor injury to his leg. The plaintiff went to hospital and was given an anti-tetanus injection and then he suffered a severe allergic reaction to the injection.

  Issue:

  Was the second injury too remote?

  Held:

  The defendant was liable for both injuries. It was reasonably foreseeable that the plaintiff would require medical treatment as a result of the original injury and therefore, the defendant was liable for the consequences of the treatment, despite the reaction being unforeseeably severe.

Claimant's impecuniosity

Another element of taking your victim as you find him, relates to the extent that a claimant's lack of resources may mean that he is unable to ameliorate the loss suffered due to the defendant's negligence.