Remoteness
Encyclopedia
Remoteness in English law is a set of rules in both tort
and contract
, which limits the amount of compensatory damages for a wrong.
In negligence
, the test of causation
not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. As with the policy issues in establishing that there was a duty of care
and that that duty was breached
, remoteness is designed as a further limit on a cause of action
to ensure that the liability to pay damages
is fairly placed on the defendant.
[1921] 3 KB 560 while docked, workers employed to unload the ship negligently dropped a plank into the hold, which struck something, causing a spark that ignited petrol vapour lying in the hold. The fire destroyed the whole ship. The Lords held that although the fire was not a reasonably foreseeable consequence of the plank falling, there had been a breach of the duty of care and all damage representing a direct consequence of the negligent act was recoverable. It was determined that once some harm was foreseeable, the defendant would be liable for the full extent of the harm. That particular consequences are possible does not make them reasonably foreseeable. This will particularly be the case when there are a significant number of links constituting the chain. The more links, the less likely that consequence may be considered reasonably foreseeable.
replaced the direct consequence test with the requirement that, in order to be recoverable, damage must be foreseeable in all the circumstances, thus, although pollution was a foreseeable consequence of the spillage, an outbreak of fire was not. Viscount Simonds held at pp422-423:
He went on to say at p 423, that a man should be responsible for the necessary or probable consequences of his act (or any other similar description of them), "not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them."
In Hughes v Lord Advocate
[1963] AC 837 a child climbed down a manhole left uncovered and protected only by a tent and paraffin lamp. When he came out he kicked over one of the lamps, which fell into the hole and caused an explosion. The child was burned. Lord Reid said at 845,
The Wagon Mound (No 1) test is less generous to claimants than the direct consequence test because it may impose an artificial limit on the extent of damages that can be claimed. To mitigate some of the potential unfairness of the rule, the courts have been inclined to take a relatively liberal view of whether damage is of a foreseeable type. In Lamb v. London Borough of Camden [1981] QB 625 a water main maintained by the Council broke, which caused extensive damage to the claimant's house. Because of the damage, the claimant moved out and squatters moved in, causing further damage to the house. The court held that the secondary damage caused by the squatters was too remote. The council was liable for the damage caused by the broken water main, but the land owner is responsible for keeping trespassers at bay. Lord Denning said at p636 that remoteness of damages is just a question of policy with the element of foreseeability being determined by what is perceived to be instinctively just. This means that the reasonable foreseeability test is not always appropriate for cases where the acts of the claimant
may demonstrate some fault. Nevertheless, the courts can award damages based on foreseeability where public policy requires it, e.g. in the egg-shell skull cases such as Smith v Leech Brain & Co Ltd [1962] 2 QB 405.
Although some courts have on occasion adopted a more restrictive approach, the decision of the Lords in Jolley v Sutton London Borough Council [2000] 1 WLR 1082, suggests that the liberal approach is to be preferred. The Council
allowed an abandoned boat to remain on its land and, over a period of time, two boys began to paint and repair it. Unfortunately, the boat fell on one of the boys, seriously injuring him. The claimant's case was that the boat represented a trap or allurement. The Council accepted that it had been negligent in not removing the boat but that it had not been foreseeable that two boys would try to jack up the boat and so move it from the cradle upon which it lay. Lords Steyn and Hoffman stated that it is not necessary to foresee the precise injury that occurred, but injury of a given description. "The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk that ought to have been foreseen." (at para 37) So, in Hughes it was foreseeable that a child might be injured by falling in the hole or being burned by a lamp or by a combination of both. Although the injuries were not actually sustained in a foreseeable way, the injuries that actually materialised fell within the predictable range. Thus, the Wagon Mound No.1 and Hughes are compatible. The former alleged that damage by burning was not damage of a description that could reasonably have been foreseen, while the latter asserted that the injury was not reasonably foreseeable. In both cases, the claimants could recover damages.
English tort law
English tort law concerns civil wrongs, as distinguished from criminal wrongs, in the law of England and Wales. Some wrongs are the concern of the state, and so the police can enforce the law on the wrongdoers in court – in a criminal case...
and contract
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
, which limits the amount of compensatory damages for a wrong.
In negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
, the test of causation
Causation in English law
Causation in English law concerns the legal tests of remoteness, causation and foreseeability in the tort of negligence. It is also relevant for English criminal law and English contract law....
not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. As with the policy issues in establishing that there was a duty of care
Duty of care in English law
In English tort law, an individual may be owed a duty of care by another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the duty-ower, to compensate the victim for any losses they incur...
and that that duty was breached
Breach of duty in English law
In English tort law, there can be no liability in negligence unless the claimant establishes both that they were owed a duty of care by the defendant, and that there has been a breach of that duty...
, remoteness is designed as a further limit on a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
to ensure that the liability to pay damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
is fairly placed on the defendant.
Directness
The traditional approach was that once a breach in the duty of care had been established, a defendant was liable for all the consequent damage no matter how unusual or unpredictable that damage might be. In Re PolemisRe Polemis
Re Polemis & Furniss, Withy & Co Ltd [1921] 3 KB 560 is a famous United Kingdom tort case on causation and remoteness. The Court of Appeal held that a defendant can be held liable for all consequences flowing from the wrongful conduct regardless of how unforeseeable.-Facts:The defendant's employees...
[1921] 3 KB 560 while docked, workers employed to unload the ship negligently dropped a plank into the hold, which struck something, causing a spark that ignited petrol vapour lying in the hold. The fire destroyed the whole ship. The Lords held that although the fire was not a reasonably foreseeable consequence of the plank falling, there had been a breach of the duty of care and all damage representing a direct consequence of the negligent act was recoverable. It was determined that once some harm was foreseeable, the defendant would be liable for the full extent of the harm. That particular consequences are possible does not make them reasonably foreseeable. This will particularly be the case when there are a significant number of links constituting the chain. The more links, the less likely that consequence may be considered reasonably foreseeable.
- Greenland v Chaplin (1850) 5 Ex 243, Pollock CB advocated a foreseeability test for remoteness
- Smith v The London and South Western Railway Company (1870-71) LR 6 CP 14, seven members of Exchequer Court uphold directness rule
- Re Polemis & Furniss, Withy & Co Ltd [1921] 3 KB 560
- Glasgow Corp v Muir [1943] AC 448
Foreseeability
However, in the The Wagon Mound (No 1) [1961] AC 388 a large quantity of oil was spilt into Sydney Harbour from the Wagon Mound and it drifted under the wharf where the claimants were oxyacetylene welding. The resulting fire caused extensive damage to the wharf and to vessels moored nearby. The Privy CouncilJudicial Committee of the Privy Council
The Judicial Committee of the Privy Council is one of the highest courts in the United Kingdom. Established by the Judicial Committee Act 1833 to hear appeals formerly heard by the King in Council The Judicial Committee of the Privy Council (JCPC) is one of the highest courts in the United...
replaced the direct consequence test with the requirement that, in order to be recoverable, damage must be foreseeable in all the circumstances, thus, although pollution was a foreseeable consequence of the spillage, an outbreak of fire was not. Viscount Simonds held at pp422-423:
He went on to say at p 423, that a man should be responsible for the necessary or probable consequences of his act (or any other similar description of them), "not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them."
In Hughes v Lord Advocate
Hughes v Lord Advocate
Hughes v Lord Advocate [1963] is a famous Scottish delict case decided by the House of Lords on causation. It is also influential in the English law of tort.-Facts:...
[1963] AC 837 a child climbed down a manhole left uncovered and protected only by a tent and paraffin lamp. When he came out he kicked over one of the lamps, which fell into the hole and caused an explosion. The child was burned. Lord Reid said at 845,
The Wagon Mound (No 1) test is less generous to claimants than the direct consequence test because it may impose an artificial limit on the extent of damages that can be claimed. To mitigate some of the potential unfairness of the rule, the courts have been inclined to take a relatively liberal view of whether damage is of a foreseeable type. In Lamb v. London Borough of Camden [1981] QB 625 a water main maintained by the Council broke, which caused extensive damage to the claimant's house. Because of the damage, the claimant moved out and squatters moved in, causing further damage to the house. The court held that the secondary damage caused by the squatters was too remote. The council was liable for the damage caused by the broken water main, but the land owner is responsible for keeping trespassers at bay. Lord Denning said at p636 that remoteness of damages is just a question of policy with the element of foreseeability being determined by what is perceived to be instinctively just. This means that the reasonable foreseeability test is not always appropriate for cases where the acts of the claimant
Acts of the claimant
In the English law of negligence, the acts of the claimant may give the defendant a defence to liability, whether in whole or part, if those acts unreasonably add to the loss.-The principles:...
may demonstrate some fault. Nevertheless, the courts can award damages based on foreseeability where public policy requires it, e.g. in the egg-shell skull cases such as Smith v Leech Brain & Co Ltd [1962] 2 QB 405.
Although some courts have on occasion adopted a more restrictive approach, the decision of the Lords in Jolley v Sutton London Borough Council [2000] 1 WLR 1082, suggests that the liberal approach is to be preferred. The Council
Sutton London Borough Council
Sutton London Borough Council is the local authority for the London Borough of Sutton in Greater London, England. It is a London borough council, one of 32 in the United Kingdom capital of London. Sutton is divided into 18 wards, each electing three councillors...
allowed an abandoned boat to remain on its land and, over a period of time, two boys began to paint and repair it. Unfortunately, the boat fell on one of the boys, seriously injuring him. The claimant's case was that the boat represented a trap or allurement. The Council accepted that it had been negligent in not removing the boat but that it had not been foreseeable that two boys would try to jack up the boat and so move it from the cradle upon which it lay. Lords Steyn and Hoffman stated that it is not necessary to foresee the precise injury that occurred, but injury of a given description. "The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk that ought to have been foreseen." (at para 37) So, in Hughes it was foreseeable that a child might be injured by falling in the hole or being burned by a lamp or by a combination of both. Although the injuries were not actually sustained in a foreseeable way, the injuries that actually materialised fell within the predictable range. Thus, the Wagon Mound No.1 and Hughes are compatible. The former alleged that damage by burning was not damage of a description that could reasonably have been foreseen, while the latter asserted that the injury was not reasonably foreseeable. In both cases, the claimants could recover damages.
- Tremain v Pike [1969] 1 WLR 1556
- Smith v Leech Brain & Co Ltd [1961] 2 QB 405
- Bourhill v YoungBourhill v YoungBourhill v Young [1943] AC 92 is a Scottish delict case, on the subject of how extensive an individual's duty is to ensure others are not harmed by their activities. The case established important boundaries on the scope of recovery for bystanders, or those uninvolved with physical harm...
[1943] AC 92, 108
Novus actus interveniens
- Scott v ShepherdScott v ShepherdScott v Shepherd 96 ER 525 is an important English tort law case on remoteness and the principle of novus actus interveniens.-Facts:A larrikin tossed a lit firework into a market...
(1772) 95 ER 525 - King v Sussex Ambulance NHS Trust [2002] EWCA Civ 953
- McKew v Holland & Hannan Ltd [1969] 3 All ER 1621
Contract
- Hadley v Baxendale (1854) 9 Exch 341
- Fletcher v Tayleur (1855) 17 CB 21, a defendant who agrees to supply or repair a chattel obviously being used for profit making is liable for loss of ordinary profits as a result of failing to be on time.
- British Columbia and Vancouver Island Spa, Lumber and Saw Mill Co Ltd v Nettleship (1868) LR 3 CP 499
- Horne v Midland Railway Co (1873) LR 6 CP 131, stands for the proposition that the defendant assumed liability for the exceptional loss.
- Simpson v London and North Western Railway Co (1876) 1 QBD 274, the defendant must at least know of the special circumstances; also Seven Seas Properties Ltd v Al-Essa (No.2) [1993] 1 WLR 1083
- Hydraulic Engineering Co Ltd v McHaffie, Goslett & Co (1878) 4 QBD 670, McHaffie contracted to make a gun, known to form a part of a gunpowder pile driver, to be built for Justice. It was delivered late, and Justice refused to take it. Bramwell LJ held that Hydraulic could recover the expenditure in making other parts of the machine, ‘useless except as old iron’ because it was built specially, the cost of painting it to preserve and a reasonable net profit that they would have made on the contract with Justice. Brett LJ and Cotton LJ concurred.
- Balfour Beatty v Scottish Power plc (1994) SLT 807, one supplying a commodity for complicated construction projects will not be assumed to be aware of all little details.
- Victoria Laundry (Windsor) Ltd v Newman Industries LtdVictoria Laundry (Windsor) Ltd v Newman Industries LtdVictoria Laundry Ltd v Newman Industries Ltd [1949] 2 KB 528 is an English contract law case on the remoteness of damage principle.-Facts:...
[1948] 2 KB 528 - Koufos v Czarnikow Ltd or The Heron II [1969] 1 AC 350
- H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] 1 QB 791
- The Pegase or Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA [1981] 1 Lloyd’s LR 175
- Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64; noted by Treitel, 108 LQR 226
- South Australia Asset Management Co v York Montague [1996] 3 All ER 365
- Jackson v Royal Bank of ScotlandJackson v Royal Bank of ScotlandJackson v Royal Bank of Scotland [2005] is an English contract law case, which concerns remoteness of damage.-Facts:Mr James Jackson was a partner with Barrie Stewart Davies , trading under the name "Samson Lancastrian". They imported dog chews from Thailand and sold them to a firm called "Economy...
[2005] UKHL 3, Lord Walker says [46-9] the two limbs of Hadley are not ‘mutually exclusive’.
- The Achilleas [2008] UKHL 48
Contract and tort
- Henderson v Merrett Syndicates LtdHenderson v Merrett Syndicates LtdHenderson v Merrett Syndicates Ltd [1995] 2 AC 145 was a landmark House of Lords case. It established the possibility of concurrent liability in both tort and contract.-Facts:...
[1995] 2 AC 145, Lord Goff, 185, ‘the rules as to remoteness of damage… are less restricted in tort than they are in contract’.
- Brown v KMR Services Ltd [1995] 4 All ER 598, kind of loss must be foreseeable, not the extent of loss; Stuart Smith LJ, 620-1 and Hobhouse LJ, 640-3 distinguish Victoria Laundry, and criticise saying that the distinction between super profits and normal ones is just one of degree.
America
- Palsgraf v Long Island Railroad Co, 62 NE 99 (1928), relying on Thomas v Quartermaine (1887) LR 18 QBD 685
- William Prosser, ‘Palsgraf Revisited’ (1952) 52 Michigan Law Review 1