Remoteness of Damages

8 August 2016

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.

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Originally a defendant was liable for all losses which were a direct consequence of the defendant’s breach of duty: Re Polemis & Furness Withy & Company ltd. [1921]3 KB 560 This was largely considered unfair as a defendant could be liable for damage which was not foreseeable and therefore could not take steps to prevent it. The direct consequence test was overruled in the Wagon Mound no 1 and replaced with a new test for deciding if damages are too remote: The Wagon Mound no 1 [1961] AC 388 Following the Wagon Mound no 1 the test for remoteness of damage is that damage must be of a kind which was foreseeable.

Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable. The Wagon Mound test was considered and applied in: Hughes v Lord Advocate [1963] AC 837 Doughty v Turner Manufacturing Company [1964] 1 QB 518 There has been some confusion as to whether for remoteness of damage, in addition to being damage of a type which is foreseeable, the damage must occur in a foreseeable manner. Hughes v Lord Advocate suggests not but see: Tremain v Pike [1969] 1 WLR 1556 Jebson v Ministry of Defence [2000] EWCA Civ 198 Jolley v Sutton [2000] 1 WLR 1082 The Egg shell skull rule.

 A final aspect of remoteness of damage is the egg shell (or thin) skull rule. This means a defendant must take their victim as they find them. Ie if the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury: Smith v Leech Brain [1962] 2 QB 405 Page v Smith [1996] 1 AC 155 Corr v IBC Vehicles Ltd [2008] 2WLR 499 Cases Re Polemis & Furness Withy & Company Ltd. [1921] 3 KB 560

Some Stevedores carelessly dropped a plank of wood into the hold of a ship. The plank struck something as it was falling which caused a spark. The spark was ignited by petrol vapours resulting in the destruction of the ship. The arbitrator held that the causing of the spark could not have been anticipated and therefore no liability arose. The claimant appealed. Held: There was no requirement that the damage was foreseeable. The defendant was liable for all the direct consequences of their action. NB This was overruled in Wagon Mound No 1 The Wagon Mound no 1 [1961] AC 388 House of Lords

The defendant’s vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf. Held: Re Polemis should no longer be regarded as good law. A test of remoteness of damage was substituted for the direct consequence test. The test is whether the damage is of a kind that was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.

Doughty v Turner Manufacturing Company [1964] 1 QB 518 few moments later an explosion occurred. The claimant was standing close by and suffered burns from the explosion. The explosion occurred as a result of the asbestos reacting with the chemicals in the liquid in the high temperature. At the time of the incident it was not known that the asbestos could react in that way. Held: The damage was too remote. It was not foreseeable that an explosion would occur. Whilst it may be foreseeable the lid may have caused a splash resulting in a scold, it was not foreseeable that an explosion would occur resulting in burns.

Hughes v Lord Advocate [1963] AC 837 House of Lords Two boys aged 8 and 10 went exploring an unattended man hole. The man hole had been left by workmen taking a break. It was surrounded by a tent and some paraffin lamps were left to warn road users of the danger. The boys took a lamp down the hole. One of them dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns. Held: The damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable.

Jolley v Sutton [2000] 1 WLR 1082 Two 14 year old boys found an abandoned boat on land owned by the council and decided to do it up. The boat was in a thoroughly rotten condition and represented a danger. The council had stuck a notice on the boat warning not to touch the boat and that if the owner did not claim the boat within 7 days it would be taken away. The council never took it away. The boys had been working on the boat for 6-7 weeks when one of them suffered severe spinal injuries, resulting in paraplegia, when the boat fell on top of him.

The boys had jacked the boat up to work on the underside and the jack went through the rotten wood. The claimant brought an action under the Occupiers Liability Act 1984. The trial judge found for the claimant. The Court of Appeal reversed the decision, holding that whilst it was foreseeable that younger children may play on the boat and suffer an injury by falling through the rotten wood, it was not foreseeable that older boys would try to do the boat up. The claimant appealed. House of Lords held: The claimant’s appeal was allowed.

The risk was that children would “meddle with the boat at the risk of some physical injury” The actual injury fell within that description. Lord Steyn: “The scope of the two modifiers – the precise manner in which the injury came about and its extent – is not definitively answered by either The Wagon Mound (No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case. ” age v Smith [1996] 1 AC 155 House of Lords The claimant had suffered from ME over a period of time and was in recovery when he was involved in a minor car accident due to the defendant’s negligence.

The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and permanent so that he was unable to return to his job as a teacher. He was successful at his trial and awarded ? 162,000 in damages. Held: Provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric. There was thus no need to establish that psychiatric injury was foreseeable. Also the fact that an ordinary person would not have suffered the injury incurred by the claimant was irrelevant as the defendant must take his victim as he finds him under the thin skull rule.

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