12th Aug 2019 Certainly, the question of where to draw the line on recover-ability of consequential losses cannot be answered by a mathematically precise formula. 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. There should be a clear link between the breach of duty and the damage. Remoteness of Damage - Free download as Word Doc (.doc), PDF File (.pdf), Text File (.txt) or read online for free. 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. It is this principle that Viscount Simmonds criticised in the quote featured in the title from the Wagon Mound No.1 decision. Most negligence situations need damage to be proven. the mischief of the child was the proximate cause and the negligence of the servants was a remote cause. One such justification is insurability. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. To establish cause in fact, the claimant must show, on the balance of probabilities, that the defendant’s breach caused their harm. 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. His lip contained pre-cancerous cells which were triggered by the injury sustained and he died 3 years later. For these purposes, the remedy … It is argued that it is a testament to its perceived utility and fairness that it has also been adopted in other legal fields and contexts, including for example in regards to actions under the rule in Rylands v Fletcher [1868] LR 3 HL 330, as illustrated by decisions including Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264 and confirmed in House of Lords rulings including Transco v Stockport Metropolitan Borough Council [2004] 1 All ER 589, HL. Alcoa Minerals Of Jamaica V Broderick(2002) The claimant’s property was damaged by the defendant’s negligence. This paper, however, argues that the remoteness enquiry represents a principled response to a problem that can arise, at a deep level, in ascribing a harmful outcome to the negligent exercise of individual agency. The measure of the value of a general test in law is the way in which the test can be applied in the vast majority of cases. 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. Thus, the claim after the time when a new dredger could have been reasonably purchased and put to work was rejected. The Nottingham Trent University. 146, [4] Greenland v. Chaplin – (1850) 5 Ex. 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). Negligence is one of those torts in which damage must be proved. The plaintiff was employed by the defendants. Please sign in or register to post comments. Several days after the original spill welding sparks ignited the oil and it caught on fire, damaging the wharf and proximate vessels. It is a balance struck between imposing appropriate liability but not doing so in a fashion that unduly impedes activity in society. Public nuisance; Private nuisance; Why Robinson v Post Office and another is important. In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. You should not treat any information in this essay as being authoritative. tort: Negligence: causation and remoteness of damage Learn with flashcards, games, and more — for free. But, as many cases have shown, assigning liabilities is not always a simple task at hand. The doctrine of the remoteness of damages is one such principle. It is often easier and less confusing to treat it as a separate element. 243, [5] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. They were refitting a vessel and for that purpose, their employees were using welding equipment. (though the expected and the actual results might not be the same). It would be much harder and far more expensive to acquire insurance to cover activity that could potentially result in untold and unforeseeable harm than it is to insure oneself against foreseeable ranges of harm and loss. 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. v. Saint John Toyota Ltd. et al.,’ decided in the New Brunswick Supreme Court, Appeal Division, highlights the need for judges to keep separate in their minds the legal require- ments for establishing initial liability in negligence … Continued 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. If on the other hand, a reasonable man could not have foreseen the consequences, they are too remote. This is not an example of the work produced by our Law Essay Writing Service. The concept of causation, in a legal sense, is more complex and less transparent than first appears. By Jason Lowther. Issues of remoteness of damage will unlikely feature in medical negligence, as virtually all physical and mental injuries including death are foreseeable in the setting of medical treatment, especially in patients with underlying vulnerabilities. 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]. ... Should negligence depend on the cost of being careful or, as suggested in Bolton v Stone, should it depend on the degree of risk involved in an activity? 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. The claimant must prove that their injuries were caused by the defendant’s actions in both fact and law. tort causation and remoteness of damage the test the hypothetical test is traditionally used to begin the process of establishing factual causation it involves. The case of Penman et al. For guidance on causation and remoteness in contract and tort generally, see Practice Notes: • Causation and remoteness in contractual breach claims • Tort claims—causation in law • Tort claims—causation as a matter of fact. The Standard of Care in Negligence 2 – The Duty of Care in Negligence 4 – Defences - Summary Law of Tort. Marc Stauch. 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. It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). The Magnitude and Manner of Harm. The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who were shipbuilders and ship-repairers. The cargo to be carried by them included a quantity of Benzene and/or petrol in tins. In the real world there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound No.1. The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. Once the tort has been committed, the real liability arises on the defendant. ... Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn somewhere. Edition 8th Edition. 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. 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). Overall, the precedent bank in this area of law indicates that the foreseeability test almost always produces the fairest result in a case. Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. Registered Data Controller No: Z1821391. The test for remoteness was initially one of directness. This obviously tilts the balance significantly back in favour of the claimant in many cases. 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). Pages 12. eBook ISBN 9780203867990. Remoteness of Damage in Contract and Tort: A Reconsideration - Volume 55 Issue 3 ... Jones at pp. Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. Remoteness of damage 1. There are two tests for remoteness: the direct consequence test and the reasonable foreseeability test. Some other workmen of the defendants let an asbestos cement coverslip into a cauldron of hot molten liquid. Free resources to assist you with your legal studies! As with the policy issues in establishing that there was a duty of care and that that … 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. 560, [6] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. The Magnitude and Manner of Harm. Owing to the negligence of the defendants’ servants, a plank fell into the hold, a spark was caused. The cover has been purchased from a very reputed manufacturer and nobody could foresee that any serious consequences could follow by the falling of the cover into the cauldron. Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. 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. Tests for cause in law encompass a remoteness test (which involves establishing whether the damage that occurred was foreseeable to the defendant at the time of the negligence). 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. For testing Remoteness of damage there are two tests. Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. TEST FOR REMOTENESS 1. 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. Private nuisance After a claimant has shown that the defendant’s negligence has caused them a loss, they must also show the damage is not too remote. The question remains how much liability can be fixed, and what factor determines it. 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). This provides that the defendant is only liable for loss which was of a foreseeable kind. Damage. 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. 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. He gave instructions accordingly but directed that all safety precautions should be taken to prevent inflammable material from falling into the oil. 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. Introduction In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. Registered office: Venture House, Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ. Any test can be rendered ineffective and deleterious if blindly or mechanically applied. The lamp fell into the manhole and caused a violent explosion resulting in the fall of the boy in the hole and severe burns thereof. One evening it was left surrounded by paraffin lamps but otherwise unguarded. Held : The defendant was held to be liable: the burn was a foreseeable consequence of the defendant's negligence and this resulted in his death. This site uses Akismet to reduce spam. 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. In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. The House of Lords made clear, reasonably foreseeable damages & remoteness of loss (the Rule in Hadley v Baxendale and consequential loss) home > Reference > direct, indirect and consequential loss. The oil film drifted to a nearby wharf where welding work was being carried out on a ship. Co. Ltd. (Wagon Mound Case)[10] the test of directness was rejected by the Judicial Committee of the Privy Council and it was held that the test of reasonable foresight is the better test. Remote and Proximate damage : (The Remoteness of Damages in law of torts.) The doctrine of the remoteness of damages is one such principle. 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…. Company Registration No: 4964706. When a party breaches a term of a contract or commits a tort, the innocent party is an entitled to an award of damages, as of right. The test of reasonable foresight has been applied to many other cases thereafter. Revision note on remoteness of damage in negligence. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. 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. 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). Consequently, the owners of the ship were held entitled to recover the loss – nearly 200,000 pounds, being the direct consequence of the wrongful act although such a loss could not have been reasonably foreseen. 1 0. Module. Do you have a 2:1 degree or higher? 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. 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