Viscount Simmonds evokes the notion of “current ideas of justice and morality”, but surely fundamental justice and basic morality dictates that individuals are held responsible for all the consequences of their actions. The question remains how much liability can be fixed, and what factor determines it. Presumably Viscount Simmonds uses the word “current” to suggest that the law had evolved over forty years of the twentieth century, from its application in Re Polemis in 1921 to reach a state by the time of the Wagon Mound No.1 decision in 1961 in which it was deemed appropriate to incorporate a foreseeability factor into what was hitherto open-ended liability. The defendants, while taking on bunkering oil at the Caltex wharf in Sydney Harbour, carelessly spilled a large quantity of oil into the bay, some of which spread to the plaintiffs’ wharf some 600 feet away, where the plaintiffs were refitting a ship. Relevant case law and pertinent authorities are considered and conclusions are offered against the backdrop of this legal matrix. The test of reasonable foresight seems to be well established and widely accepted by now to determine the question of the remoteness of damage, the facts of the case and the evidence present shall always be the priority determining factors for the fate of any case. On the third day, there was an outbreak of fire. The relevant … The doctrine of the remoteness of damages is one such principle. The rule of remoteness is familiar notion that a line must be drawn because it would be too harsh for the defendant or tortfeasor to accept every responsibility. Factual Causation – “But for” Test. Tests for cause in law encompass a … As Horsey and Rackley comment: ‘When a court asks whether a harm was too ‘remote’ a consequence of the defendant’s negligence (breach of duty), what is essentially being asked is whether the consequences of the negligent action were so far removed from it as to have been unforeseeable by the defendant’ (Horsey and Rackley, (2009), p247). The owners of Liesbosch required it for the performance of a contract with a third party, but since they were too poor to purchase a new one, they hired one at an exorbitant rate. negligence – breach, causation and remoteness of damage book. A child of eight years entered the tent and started playing with one of the lamps. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. *You can also browse our support articles here >. However, it is very important to stress that the decision in Wagon Mound No.2 did not vary or impact on the general test established in Wagon Mound No.1 in any substantive fashion. It is a balance struck between imposing appropriate liability but not doing so in a fashion that unduly impedes activity in society. This ensures that a defendant will be liable if a certain foreseeable type of damage is sustained even if the actual extent of that damage is not objectively foreseeable. Do you have a 2:1 degree or higher? The final element that needs to be established in a negligence case is that the defendant's breach of duty was the cause of the claimant's loss and that this loss was not too far removed or remote from the actions of the defendant. 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. Tests of Reasonable Foresight Tests of Directness Tests of Reasonable Foresight According to this test defendant is liable for only consequences which can be foreseen by a reasonable man because it is not too remote. As with the policy issues in establishing that there was a duty of care and that that … Looking for a flexible role? First Published 2009. It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. If the answer to this question is in the affirmative, i.e., if he could any damage to the plaintiff, then he is liable not only for those consequences which he could have foreseen but for all the direct consequences of his wrongful act. This could be physical injury, financial loss, etc. ... A
Reference > direct, indirect and consequential loss. In simple terms, if the Re Polemis test still existed, and defendants were liable for any and all consequences of their negligent actions, no matter how unforeseeable or unlikely those consequences might be, it is highly probable that activity in society would be quite drastically impaired, because potential tortfeasors (every member of society) would be intimidated by the potentially draconian and inestimable consequences of making a mistake. That is not to say that it is a panacea in every difficult case, such as Tremain v Pike [1969] 3 All ER 1303 (concerning the distinction between the foreseeable physical injury of a rat bite and the rare and unforeseeable disease suffered as a result of the bite). Helpful? 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. Now, the test is based on foreseeability. Owing to the negligence of the defendants’ servants, a plank fell into the hold, a spark was caused. In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. In this context the foresight and perspicacity of the defendant is judged on the basis of the objective standard of the notional ‘reasonable person’ at the moment that the tortious act or omission occurred (Cooke, (2007), p177 et seq). Wagon Mound the test for remoteness of damages is … Risk and Remoteness of Damage in Negligence. FACTS – The defendants chartered a ship. The claimant must prove that their injuries were caused by the defendant’s actions in both fact and law. In this case, the post office employees opened a manhole for the purpose of maintaining underground telephone equipment. Any test can be rendered ineffective and deleterious if blindly or mechanically applied. What the defendant might reasonably anticipate is only material with reference to the question, whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence. Remoteness of Damage . The test of reasonable foresight was, for the first time, laid down by Pollock, C.B., in his separate opinions rendered in two cases of the Court of Exchequer in 1850, the cases being Rigby v. Hewitt[3] and Greenland v. Chaplin[4]. Thus, on the basis of the foregoing analysis, Viscount Simmonds’ contention is supported. By Jason Lowther. Moreover there have been problems reconciling different rulings on foreseeability, as illustrated by Caledonian North Sea Ltd v London Bridge Engineering Ltd [2000] Lloyd’s Rep IR 249 IH, which highlighted the fact that foreseeability can be interpreted fairly loosely or more strictly in any given context. Held. One such justification is insurability. Introduction: (The Remoteness of Damages in law of torts.). Take a look at some weird laws from around the world! ... Remoteness of damage care; Negligence, causation and remoteness case; Criminal Law - Murder and Criminal … It is a well-established rule of law that no person can be held responsible for the doctrine of the remoteness of damages caused by his negligence or carelessness because there is no limit of results of any action. TEST FOR REMOTENESS 1. It is often easier and less confusing to treat it as a separate element. This is because whereas the Proximity of relationship test is a complete variant and changes in every circumstance, the foreseeability of damage is an objective test and therefore has a constant element. This balance is finessed by the fact that it is only the form of damage suffered that must be foreseeable, not the degree of harm actually sustained (Horsey and Rackley, (2009), p248). Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. A narrow definition was for example adopted to the advantage of the defendant in Doughty v Turner Manufacturing Co [1964] 1 All ER 98 (here the distinction was between a splash and an eruption of burning liquid), while in Hughes v Lord Advocate [1963] AC 837 a more generous definition was endorsed to the advantage of a child (and this may be significant) claimant. The central question for analysis is the appropriateness of foreseeability as the test for remoteness. The cargo to be carried by them included a quantity of Benzene and/or petrol in tins. To export a reference to this article please select a referencing stye below: If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: Our academic writing and marking services can help you! Remoteness of damage 1. which could be foreseen. In the real world there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound No.1. Thus, the claim after the time when a new dredger could have been reasonably purchased and put to work was rejected. the hire charges which they had to pay from the date of the sinking to the date they could actually purchase a new dredger. DOI link for NEGLIGENCE – BREACH, CAUSATION AND REMOTENESS OF DAMAGE. It was set on fire by the molten metal falling from the wharf. The elements required for a successful negligence claim are a duty of care, breach of that duty, that the breach caused the loss and remoteness of damage issues. It is submitted that the Wagon Mound No.1 ruling effectively curtailed the practical range of liability that had previously been established in Re Polemis and that Wagon Mound essentially overruled Re Polemis. Most negligence situations need damage to be proven. According to 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. negligence – breach, causation and remoteness of damage . Search for more papers by this author. 560, [6] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. This is not an example of the work produced by our Law Essay Writing Service. An event constituting a wrong can constitute of single consequence or may constitute of consequences i.e. It is this principle that Viscount Simmonds criticised in the quote featured in the title from the Wagon Mound No.1 decision. To establish cause in fact, the claimant must show, on the balance of probabilities, that the defendant’s breach caused their harm. Through the carelessness of their servants, a large quantity of oil was allowed to spill into the harbour. Though the first authority for the view if advocating the directness test is the case of Smith v. London & South Western Railway Company[6] where Channel B. said: where there is no direct evidence of negligence, the question what reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not…. remoteness of damage 1 in contract law, the concept that protects the contract-breaker from having to pay for all the consequences of his breach. If a defendant’s negligence sets in train a course of events that result in wide ranging and far reaching damage why shouldn’t that defendant be made liable for all that damage? It is often easier and less confusing to treat it as a separate element. As regards the second head of claim, the compensation allowed was for loss suffered in carrying out the contract with the third party from the date of the sinking of Liesbosch to the date when another dredger could reasonably have been put to work. And, a person shall be liable only for the consequences which are not too remote i.e. The oil film drifted to a nearby wharf where welding work was being carried out on a ship. For testing Remoteness of damage there are two tests. Learn how your comment data is processed. A claimant must prove that the damage was not only caused by the defendant but that it was not too remote. Thus, floating oil was set a fire and the wharf was severely damaged. Should these criteria vary depending on the relationship … Where there is factual causation, the claimant
may still fail to win his case, as the damage
suffered may be too remote. 1 0. Since a reasonable man could not foresee the damage caused, the appellants were held not liable, even though the negligence of the servants was the direct cause of the injury. It was held that the defendant was liable even though the horses had bolted when a child threw stones on them, because such a mischief on the part of the children in was anticipated. The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. Overall, the precedent bank in this area of law indicates that the foreseeability test almost always produces the fairest result in a case. THE MODERN LAW REVIEW Volume 25 January 1962 No. The trial as well as the Supreme Court followed the Polemis rule and held the defendant liable, with the reason that any reasonable man could form the chain of events deduce that the negligence of the defendant was the direct cause for the fire. His lip contained pre-cancerous cells which were triggered by the injury sustained and he died 3 years later. The issue of remoteness arises on consideration of the fundamental question of legal causation, which involves an analysis of the operative cause of the harm suffered by the claimant in law. An essential element of a claim in negligence is causation. This provides that the defendant is only liable for loss which was of a foreseeable kind. Law of Torts; Notes, Case Laws And Study Material, Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams, Relevancy of Motive in Tortious Liability, Essentials of the Law of Torts | Explained, Internship Opportunity in Gurgaon at Blackberrys; Stipend 8000 p/m. The reason why a new dredger could not be purchased by the plaintiffs was their poverty and the House considered the additional loss being due to the extraneous cause of poverty and as such too remote. Marc Stauch. Allahabad High Court UP HJS Recruitment 2021 | District Judge: Notification, Syllabus, Pattern, Interface between IPR and Competition Law. Tests of Reasonable Foresight; Tests of Directness; Tests of Reasonable Foresight. This chapter discusses the final ‘hurdle’ for the claimant to overcome in the tort of negligence—causation. Please sign in or register to post comments. The damage may be proximate or might be remote, or too remote. The Wagon Mound No.1 test maintains liability for foreseeable harm, but at least prevents the imposition of liability for the unforeseeable (and possibly very far-reaching) consequences of negligent action. Say for example, a solicitor’s wrongdoing causes you to lose a completely unconnected unusual but lucrative business opportunity. This paper concludes that foreseeability should remain the applicable test for remoteness. Once a breach of duty has been established, the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue). Remoteness of damage 1. Disclaimer: This work has been submitted by a law student. Damage. In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. Where there is factual causation, the claimant
may still fail to win his case, as the damage
suffered may be too remote. Comments. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. The final element that needs to be established in a negligence case is that the defendant's breach of duty was the cause of the claimant's loss and that this loss was not too far removed or remote from the actions of the defendant. This test, as Horsey and Rackley go on to observe, did indeed ultimately become the sovereign principle in this field on the question of remoteness of damage in the tort of negligence. You can view samples of our professional work here. Remoteness of damage concerns whether the law is prepared to attribute a certain loss to the wrongdoing, be it a breach of contract or negligence. by … Marc Stauch. Free study and revision resources for law students (LLB Degree/GDL) on tort law and the English Legal System. » Tort of Negligence » Remoteness of damage » Robinson v Post Office and another [1974] 1 WLR 1176. the damage caused to the truck driver and the loss of material(fuel and fuel tank) is remote to the act of A and proximate to the act of the cyclist. It is a pragmatic solution, allowing measured recovery which permits compensation for foreseeable harm, but not unlimited liability, which would expose a defendant to losses that he could not reasonably have anticipated and also have a potentially draconian inhibitive impact on conduct in society as a whole. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. The Nottingham Trent University. If on the other hand, a reasonable man could not have foreseen the consequences, they are too remote. Meaning and Concept: Remoteness of Damages. For these purposes, the remedy … Alcoa Minerals Of Jamaica V Broderick(2002) The claimant’s property was damaged by the defendant’s negligence. Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. FACTS – Owing to the negligence of Edison, the dredger Liesbosch was sunk. The main investigation for the test of remoteness of damage in cases of negligence in torts was the extent to which damage was as a result of breach of duty. Judges have used their discretion from time to time, and in that process, two formulas have been highlighted: According to this test, if the consequences of a wrongful act could have been foreseen by a reasonable man, they are not too remote. It is fairly pointless to point to the margins of application of a legal test and then subject that test to criticism unless a superior alternative presents itself. For "Remoteness of vesting" see instead Rule against perpetuities.. The courts must first examine that the breach of duty must be the factual cause of the damage. Now, the test is based on foreseeability. The damage was extensive in this case. It is a distinction that seems simple enough at first sight, but case law has illustrated that the courts have struggled to reach consistent decisions. It resulted in an explosion and the liquid thereby erupted, causing injuries to the plaintiff. The Nottingham Trent University. Therefore, where it was indirect, say, where something else influenced the chain of causation then the defendant would not be held liable. Some other cases for reference are Lampert v. Eastern National Omnibus Co.[13]; S.C.M. (United Kingdom) v. W.J.Whittall & Sons[14];  Shaikh Gafoor v. State of Maharastra[15]. Damage – Causation in law
By Kenisha Browning
2. “the question to be asked in order to establish whether the claimant’s harm is too remote is this: ‘Was the kind of damage suffered by the claimant reasonably foreseeable at the time the breach occurred?’” (Horsey and Rackley, (2009), p248). One of the defenses pleaded by the defendant was novus actus interviniens, or remoteness of consequences i.e. The breach of
duty may have significant results, but the
defendant will not be liable for everything that
can be traced back to the original act. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. 243, [5] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. Now, the starting point of any rule of the remoteness of damage is the familiar notion that a line must be drawn somewhere, it would be unacceptably harsh for every tortfeasor to be responsible for all the consequences which he has caused. Apply before 8th June, International Mediation Training Program | Jagran Lakecity University, JOB: Joint General Manager [Legal] at IRFC-Indian Railway Finance Corporation | Apply before 14 Jan. LL.M. The Polemis test imposed liability on defendants for any and all damage resulting from their negligence regardless of whether the damage in question was foreseeable, regardless of any compounded seriousness and regardless of the fact that the eventual damage may have been entirely different from that which a reasonable person may have anticipated on the basis of the original state of affairs. But, as many cases have shown, assigning liabilities is not always a simple task at hand. And then in the case of Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engg. Others treat it as a separate element of the tort of negligence. 560, [9] Liesbosch Dredger v. S.S. Edison – (1993) A.C. 448, Your email address will not be published. Compilation of Important Landmark cases on "Remoteness of Damages" ... Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn somewhere. The concept of causation, in a legal sense, is more complex and less transparent than first appears. Remoteness of damage must also be applied to claims under the Occupiers Liability Acts … Remoteness of Damage in Contract and Tort: A Reconsideration - Volume 55 Issue 3 ... Jones at pp. the girl being hit is the direct damage and it is the direct damage caused by the act of A, the damage caused to the cyclist is proximately caused by the falling of the girl and is remote to the act of A, the damage caused to the truck driver and the loss of material(fuel and fuel tank) is remote to the act of A and proximate to the act of the cyclist. REMOTENESS OF DAMAGE 293 is probably the most significant contribution of Chapman v. Hearse to the law of negligence. The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who were shipbuilders and ship-repairers. Only once it has been established that there has been a breach of a duty of care does the court consider causation and remoteness issues. This was rejected expressly in the case by the court of appeal in Re Polemis and Furness, Withy and Co. Ltd.[5] in favor of the test of directness. There should be a clear link between the breach of duty and the damage. Note: The test of reasonable foresight stands fairly reasonable in its viability, yet the decision in the Wagon Mound Case which is said to have given birth to it seems a bit offbeat and contrary to the establishment/principle that it purports. Tort: In relation to some types of torts (in particular negligence and nuisance) the test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time of the breach of duty (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) AC 388). Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. ... the mischief of the child was the proximate cause and the negligence of the defendant’s servant was the remote cause. Edition 8th Edition. Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. Module. The defendants were held liable even though they could not have foreseen the loss to the cottage. Share. And it is to be noted that the accountability to negligence is made on the assumption that the person is aware of the fact that rash driving can lead to fatalities (though the expected and the actual results might not be the same). This is called the doctrine of the remoteness of damages. Held that since the kind of damage purpose, their employees were using welding equipment English law refers a... 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