Remoteness

Remoteness

Re Polemis: A distinction between the type and extent of the loss foreseen was rejected as a basis for distinguishing liability from non-liability. Warrington LJ said that the presence or absence of anticipation of the damage was relevant only to the question of whether or not there was negligence. Once negligence was established, liability ensued so long as the loss was the direct consequence of the act.
1. The Wagon Mound (No.1): Overturned Re Polemis: The test of directness was not consonant with ideas of justice or morality. A person should not be held liabe for all consequences no matter how unforeseeable. Viscount Simonds: 'The essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen'.
  1. Hughs v LA Scotland: D was liable for burns caused by an explosion when a lamp fell into a manhole. It was foreseeabl that if one of the lamps had broken or fallen over, C (or another boys entering the tent) would be burned. The lamp was a known source of danger, and D was liable for it even if it acted in an unpredictable manner. Lord Reid: 'A defender is liable, altough the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable.'
    1. Page v Smith: Lords Lloyd and Wilberforce did not think it wise to draw a distinction between physical and psychiatric injury as different types of harm; they are both personal injury. Thus where one is foreseen, so is the other.
      1. Corr v IBC Vehicles: Because after Page v Smith foreseeability of psychological harm is concomitant of foreseeable physical harm, only aif a break is dictated by logic or policy or evidence intervenes is it possible to exclude death by suicide from the compensabel damage where that is what the psychoogical harm leads to.
    2. Jolley v Sutton LBC: It is foreseeable that children may meddle. Such meddling does not constitute a novus actus.
  2. Exceptions to the foreseeability test
    1. Smith v Leech Brain: Lord Parker CJ said that he did not think the judges in The Wagon Mound spoke with the egg-shell skull rule in mind. Where the type of damage is foreseen, D is liabel for its consequences. D must take the victim as he finds him, and if the damage from the type of loss foreseen is particuarly severe owing to the characteristics and constitution of C, then D is liable for the more extensive damage.
    2. Page v Smith: Lord Ackner said that, even assuming the loss was remote, D could still be liable for it where the risk was not so far-fetched as to be a mere possibilty that would not enter the mind of the reasonable man. Where a risk is foreseeable but small, the reasonable man would only negliect it if there were good reasons for doing so. There is never a good reason not to drive carefull.y
      1. Jolley v Sutton: D admitted that it should have removed a hazard because of the risk of minor injury. There was no greater expense to be incurred if the hazard were to be removed to prevent more serious injury. There was thus no justification for disregarding the risk and D were liable for failing to protect against it. An occupier must take reasonable steps to protect a child from a danger by meddling with a hazard. If it is admitted that complete removal is reasonble for less serious injury, then there is no reason why this is not also reaonable for greater injury.
    3. Novus actus interveniens
      1. McKew v Holland Hannen: The chain of causation between D's act and C's later injury was broken by C's unreasonable conduct. Lord Reid relied on the novus actus doctrine and thought that the question of foreseeability was not determinative. D is not liabel for consequences that are not reasonably foreseeable, but that does not mean he is liable for everything which is foreseeable.
      2. Knightley v Johns: A negligent act by another person is more liekly to be a nous actus than a non-negligent one. And an act is more likely to be one than an omission. The question is whether the chain of events was a reasonably foreseeable chain of events.
      3. Corr v IBC Vehicles: Suicide did not break the chain of causation where it was the direct result of the depressive illness which itself was foreseeable harm.
  3. Knightley v Johns: Stephenson LJ said that what is natural and probable is the same as what is foreseeable. E.g. if it is natural that the negligent act will attract rescuers, that is also foreseeable.
Policy
1. Lamb v Camden LBC: Lord Denning: Not every consequence of a wrongful act is subject to compensation, the law must draw a line somewhere. Limits may be placed by: limiting the range of people to whom a duty is owed; saying there is a break in the chain of causation; or saying that the damage is too remote. Ultimately, it is a question of policy for judges to decide. In this case, policy militated against C: She was in a better place to protect and insure against the risk.
2. Knightley v Johns: 'If the consequences of an act are natural, the wrongdor cannot escape resonsiblity for them by simply calling them improbable or unforeseeable. He must accept the risk of some unexpected mischances.' The questions of which mischances is to be decided by common sense rather than logic- Stephsenson LJ.
3. Spencer v Wincanton Holdings: Sedley LJ said that remoteness should not be explained in terms of foreseeability, but vice versa. Engish law uses the concept of causation to attribute responsibility for things which happen, and then there are exclusionary rules e.g. remoteness.
4. Stauch: There is an increasingly common view that the language of foresight is not explanatory, but conclusory; the courts decide to impose or deny liability, and mask their decision under the cloak of foreseeability/ remoteness. Stauch does not share this view.
Summary of the law
1. Sedley LJ: - The starting point is that D is not liable for a consequence of a kind which is not reasonably foreseeable - While D is not liable for damage which is not reasonably foreseeable, this does not mean he is liable for all damage which is reasonably foreseeable: D may not be liable for damage caused by a novus actus or unreasonable conduct on C’s part - Subject to that caveat, D is liable for damage that was foreseeable, even if the damage is greater than the extent foreseeable, or was caused in a way which was unforeseeable - D must take the victim as he finds him - Subject again to the above caveat, where personal injury to P was reasonably foreseeable, D is liable for any personal injury, whether physical or psychiatric, which P suffered as a result of his wrong doing
Stauch: The doctrine of remoteness can be explained in a rational way under a modified risk theory (foreseeability is aka the risk theory). Remoteness should be an enquiry connected to cause in fact. In asking whether a loss was too remote, we should focus not on what the risk was, but how it occured. Remoteness should identify the elements in the caual set which completed for the harm to arise. Where D's conduct completes a causal set but is not the only causal condition in it, Stauch says we should ask whether, on the basis of common experienece and knowledge about risks, the potential completion of that particualr causal set by D's conduct would have been such that a reasonable person would have been deterred from the act. For this to be answered in the affirmative, D's act must make the effect more likely to result from that causal set than the same set without D's act. If C was just as likely to suffer the harm anyway, D is not liable. Also, it must be known that D's act is a risk
1. In order to determine whether a reasonable person would have been deterred, we must ask whether the materialisation of the causal set in which both D's act and the other causl condiions exist is far-fetched. Where the combination of the events is a very small possibilty, it will be reasonable to disregard the risk. There may hoever, still be a different risk which, even if it does not eventuate, should have deterred D and so D will be liabel for the risk which in fact materialises.

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