Flashcards

Tort - Remoteness

Sam Grimley Tort Law English 14 cards

Cards in this deck (14)

1Give a case that contrasts with Home Office v Dorset Yacht Club - damage too remote.Lamb v Camden Borough Council [1981]
Facts: Mrs Lamb, who owned a house off Hamstead Heath in London, had let this property to a tenant and then travelled to America. Whilst away, Camden London Borough Council dug a trench. This caused a water main to burst, which caused subsidence. The house became uninhabitable and the tenant moved out. Subsequently, the house was invaded by squatters who caused some £30,000 worth of damage. There was thus no issue with the Council paying for the subsidence damage on its own (£50,000). The point of law which arose was whether Mrs Lamb could recover from the Council the £30,000 due to the squatters' damage
Held: the actions of the squatters was too remote, and Mrs Lamb should have had insurance.
Dispute: a key difference between this case and Dorset Yacht Co. Ltd. v. Home Office [1970] was the relationship between the defendant and the third party which ″may be as important as the nature of the intervening act″. While the Home Office had been in control of the borstal boys in the Dorset case, Camden Borough Council had had no control whatsoever.
2What was the original rule regarding remoteness, give an authority.Remoteness is detirmed by how 'directly' the damage was caused by the actions of the defendant.
Re Polaris [1921]
Facts: employee of ship charterers dropped a wooden plank into the hold of the ship. It sparked and set alight to a flamable liquid in the bottom of the hull. A massive fire ensued, that distroyed the ship. The ship owners sued.
Held: the rule for remoteness was 'directness', thus, because the fire was the direct result of the actions of the defendant, liability was found. It was irrelivant that the damage was highly unforeseeable.
Dispute: This remains good law, but has rarely been followed (since a case in 1961).
3Until this case, courts used a test of directness to establish remoteness (see Re Polaris [1921]). What was the case, and what change did it bring about?The test became reasonable foreseeability.
The Wagon Mound (No 1) [1961]
Facts: Plaintiffs = ship repairers who owned a wharf. Defendant ship owners negligently caused oil to spill into Sydney Harbour into the vicinity of a ship called The Corrimal. Welding operations on The Corrimal caused the oil to catch fire and damage the wharf.
Held, Privy Council: the court held that it was not reasonably foreseeable damage.The welders on The Corrimal had noticed the oil and sought expert advicebefore welding. They were told that there was no risk of fire given that the type of oil spilledrequired an extremely high ignition point to catch alight. Damage by pollution was foreseeable, but damage by fire was not. it is necessary to show that the defendant ought to have foreseen the ‘kind’or ‘type’ of damage suffered by the claimant. If the claimant suffers a different kind of harm, it will not be recoverable.
Dispute: technically, this is a privy council ruling, and thus only persuasive. Re Polaris remains good law, however, courts have followed Wagon Mound (No 1).
4Give an example of courts taking a 'wide' approach to the kind of losses that are foreseeable.Bradford v Robinson Rentals (1967)
Facts: Bradford, television repair man, is forced by his employer, Robinson Rentals, to drive a van with a broken heater in extremely cold conditions for 20 hours. He contracts frostbite and sues. Defendant claims that frostbite was not foreseeable as it is very rare in the UK.
Held: dispite the fact frostbite is very rare, some serious illness, be it flu or pneumonia, was clearly foreseeable for the defendants. Claim allowed.
5Give an example of courts taking a 'wide' approach to the kind of losses that are foreseeable. Which approach to courts tend to favour - wide or narrow?Tremain v Pike
Facts: farm hand contracts Weil's disease, as a result of coming into contact with rat's urine on hay bails.
Held: Defendant's not found liable as the farming community had no knowledge of Weil's disease, or how it was contracted.
6Same type of harm. Can psychiatric harm be divided from personal injury, so that the psychatric harm is too remote? Give authority.Page v Smith (1996)
Facts: the claimant was a passenger in a car crash. He was not injured, but the psychological stress triggered ME that was otherwise in remission.
Held: Personal injury considered a single indivisible type of harm. The precise injury need not be foreseen. It was only necessary that 'the defendant can reasonably foresee that his conduct will expose the plaintiff to the risk of personal injury, whether physical or psychiatric'. The tortfeasor must 'take the victim as he finds him' and the claim for the impact on ME was allowed.
7Same type of harm. Is psychiatric harm divisible? What if the victim commits suicide as a result of psychiatric injuries? Give authority.Corr v IBC Vehicles
Facts: Mr Corr suffered a severe head injury in an accident at work. This not only caused physical injuries but also led to significant psychological symptoms, including post-traumatic stress disorder (PTSD) and depression. Six years after the accident, he killed himself.
Held: the HoL held it was entirely foreseeable that he would suffer some form of psychological harm. Since it was those symptoms that ultimately lead to the suicide, the court held it was a component of the foreseeable harm. Lord Bingham gave 2 factors to consider 1. The harm can be greater than foreseeable, so long as it is of a kind that is foreseeable. 2. where physical harm is foreseeable, that is sufficient for psychiatric harm to also be foreseeable.
8Is it necessary for the exact way the damage occurs to be foreseeable? Give authority.Hughes v Lord Advocate [1963]
Facts: Workman left oil lamps surrounding hole in the road. An eight year old boy knocked or dropped a lamp in the hole, causing an explosure, which caused the boy to fall in the hole and suffer severe burns.
Held: It was foreseeable that the oil lamps could pose a risk of harm, even if the particular harm was not foreseeable. Not too remote.
9Give a case that shows the courts taking a contrasting approach to Hughes v Lord Advocate. In general, which approach have courts favoured subsequently?Doughty v Turner Manufacturing Company [1964]
Facts: an employee was injured when an aesbestos lid cover was knocked into a vat of zinc. The reaction caused an explosion.
Held: the explosion was too remote a possibility and was not foreseeable. Damage caused by some splashing were foreseeable and thus allowed, but not the explosion.
Dispute: courts have overwhelmingly preferred the approach in Hughes v Lord Advocate.
10If the TYPE of damage is forseeable, it doesn't matter that the extent of damage is not foreseeable. Give authority.Vacwell Engineering v BDH Chemicals [1971]
Facts: claimant suffered property damage following a massive explosion caused by the defendants. A minor explosion was foreseeable, but not one of the magnitude that actually occurred.
Held: the type of damage that was foreseeable was property damage resulting from an explosion, it did not matter that the extent of the damage was not foreseeable.
11Explain, and give an authority for, the 'thin skull' or 'eggshell' rule.Smith v Leech Brain [1962]
Facts: claimant was burned by defendant, which triggered and aggravated a pre-existing cancer.
Held: if the original injury is foreseeable, the defendant is responsible for all harm that follows, even if it is exacerbated by a pre-existing condition.
Also: Robinson v Post Office / Corr v IBC
12It used to be the case tha the claimant's impecuniosity was considered too remote. Give old authority.Liesbosch Dredger v S.S. Edison [1933]
Facts: following a collision with the defendant’s ship, the claimants claimed both the cost of replacing their damaged dredger and the hire charges incurred whilst waiting for the defendants to pay the compensation which would enable them to replace it.
Held: HoL. Hire charges were not recoverable as they were due to the claimant’s impecuniosity rather than the defendant’s tort. Impecuniosity was stated to be an extraneous matter and any loss suffered by reason of the claimant’simpecunious state would, therefore, be too remote.
13Give the case in which the House of Lords overruled the decision in Liesbosch.Lagden v O’Connor [2004]
Facts: concerned the recovery of hire charges while waiting for the defendant’s insurers to repair car. The claimant stated that he could not afford to pay for the repairs himself. The defendant argued that the principle in Liesbosch prevented recovery of the hire charges.
Held: HoL. The decision in Liesbosch was reached when the rule for remoteness wasdirectness, as laid down in Re Polemis.. The Lords claimed the test was now reasonable forseeablility and that the defendants should take the victim as they find him. They refered to the 'thin skull' rule with regards to impecuniosity.
14How should you approach a question on remoteness?1. Identify the type of loss.
2. Apply Wagon Mound (No. 1). Reasonable foreseeability?
3. If not definitely foreseeable - broad (Bradford) or narrow (Tremain) approach may be possible. Policy.
4. Consider 'same type of harm' (Corr) / 'exact way harm occurs' (Hughes) / 'extent of damage' (Vacwell) / Impecuniosity (Lagden)