remoteness of damage in negligence

This site uses Akismet to reduce spam. This provides that the defendant is only liable for loss which was of a foreseeable kind. The case of Penman et al. 146, [4] Greenland v. Chaplin – (1850) 5 Ex. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. You can view samples of our professional work here. Tests for cause in law encompass a … 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. Thus, on the basis of the foregoing analysis, Viscount Simmonds’ contention is supported. The Wagon Mound No.1 test thus strikes a balance, and this is something that the law is required to do in a veritable constellation of different fields and contexts. 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. Introduction In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. Revision note on remoteness of damage in negligence. *You can also browse our support articles here >. Reference this. And, a person shall be liable only for the consequences which are not too remote i.e. 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 claimant must have suffered loss or damage as a result of the defendant’s negligence. A spark from the railway engine set fire to the material. 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. Remote and Proximate damage : (The Remoteness of Damages in law of torts.) There is at first sight a tempting argument to the contrary. Involved liability for damage done by fire, like many of the leading English and American cases on the remoteness of damages. Remoteness of Damage . Remoteness of damage 1. 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. 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). There are three key elements to a professional negligence claim: • It is often easier and less confusing to treat it as a separate element. Therefore, where it was indirect, say, where something else influenced the chain of causation then the defendant would not be held liable. 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. negligence – breach, causation and remoteness of damage book. It was found that the damage was thus too remote for recovery (Steele, (2007), p182 et seq). FACTS – The defendants chartered a ship. The damage was extensive in this case. 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. 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. Why is it deemed appropriate to limit the defendant’s liability only to those consequences that might have been reasonably foreseen at the point of the negligent action or omission? This is not an example of the work produced by our Law Essay Writing Service. Public nuisance; Private nuisance; Why Robinson v Post Office and another is important. Click here to navigate to parent product. It is a balance struck between imposing appropriate liability but not doing so in a fashion that unduly impedes activity in society. In Corporate & Financial Law – To Pursue Or Not To? negligence – breach, causation and remoteness of damage . 560, [6] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. 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. Allahabad High Court UP HJS Recruitment 2021 | District Judge: Notification, Syllabus, Pattern, Interface between IPR and Competition Law. 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. NOTES Remoteness of Damage in Tort: Penman v. Saint John Toyota Ltd. Relevant case law and pertinent authorities are considered and conclusions are offered against the backdrop of this legal matrix. 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. by … Owing to the negligence of the defendants’ servants, a plank fell into the hold, a spark was caused. 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. One evening it was left surrounded by paraffin lamps but otherwise unguarded. The cargo to be carried by them included a quantity of Benzene and/or petrol in tins. Most negligence situations need damage to be proven. This is called the doctrine of the remoteness of damages. The claimant must prove that their injuries were caused by the defendant’s actions in both fact and law. However, such problems effect every single test applied in every single field of law and they do not undermine the fundamental integrity of foreseeability as a good general benchmark of liability. Damage. which could be foreseen. (though the expected and the actual results might not be the same). This could be physical injury, financial loss, etc. The distance between the respondent’s wharf and the Caltex wharf was 600 feet. “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). Foreseeability represents a balanced compromise between the interests of claimant and defendant. 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. It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). Module. Now, the test is based on foreseeability. Due to high wind, the fire was carried to the plaintiff’s cottage which was burnt. doi link for negligence – breach, causation and remoteness of damage. The House of Lords made clear, Search for more papers by this author. 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. As a result of the defendant's negligence the husband had incurred a burn to his lip. reasonably foreseeable damages & remoteness of loss (the Rule in Hadley v Baxendale and consequential loss) home > Reference > direct, indirect and consequential loss. Overall, the precedent bank in this area of law indicates that the foreseeability test almost always produces the fairest result in a case. This paper concludes that foreseeability should remain the applicable test for remoteness. If on the other hand, a reasonable man could not have foreseen the consequences, they are too remote. REMOTENESS OF DAMAGE 293 is probably the most significant contribution of Chapman v. Hearse to the law of negligence. You should not treat any information in this essay as being authoritative. 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. However, the Privy council ruled in favour of the Overseas Tankship Ltd. holding that the Re Polemis was no longer valid law. A few elaborations of cases would perhaps make it more clear. 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. 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. ... the mischief of the child was the proximate cause and the negligence of the defendant’s servant was the remote cause. Introduction: (The Remoteness of Damages in law of torts.). The question remains how much liability can be fixed, and what factor determines it. Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. The case law in this field in the post Wagon Mound No.1 era does not suggest that significant problems or iniquities have arisen as a consequence of the application of the foreseeability test. This Maxine can be … There should be a clear link between the breach of duty and the damage. 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). 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. They were refitting a vessel and for that purpose, their employees were using welding equipment. Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. Remoteness is a legal principle that serves to limit the potential liability of a tortfeasor in practice (Elliot and Quinn, (2007), p104 et seq). 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. causation of damage damages not recognised at law loss associated to illegal activities loss unable to be quanitified wrongful life anxiety or disturbance loss. It is often easier and less confusing to treat it as a separate element. Remoteness issue limits the extent of the D's liability - where a consequence is too remote a consequence of the negligence, it will be excluded (as it did not cause the damage). 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. Imprint Routledge-Cavendish. 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. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. It is submitted that the leading case in this field is Overseas Tankship (UK) v Morts Dock & Engineering Co Ltd, The Wagon Mound No.1 [1961] 1 All ER 404, which is the case featured in the title to this work. 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. The Doctrine of the remoteness of damages is based on the maxim- “Injure non-remote causa sed Proxima spectator” Or in law, the immediate, not the remote, cause of an event is to be considered. Remoteness of damage focuses on the type or kind of damage which must be contemplated by the defendant. Direct consequence test. 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. 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. The damage may be proximate or might be remote, or too remote. Duty of Care; Breach of Duty; Causation; Remoteness of damage; Tort of Nuisance. In terms of their strict definitions the concepts of justice and morality do not contain opt-out clauses, exclusions or caveats in relation to foreseeability, which is an entirely separate issue. 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. Do you have a 2:1 degree or higher? Edition 8th Edition. Alcoa Minerals Of Jamaica V Broderick(2002) The claimant’s property was damaged by the defendant’s negligence. The oil film drifted to a nearby wharf where welding work was being carried out on a ship. Risk and Remoteness of Damage in Negligence. 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! This chapter discusses the final ‘hurdle’ for the claimant to overcome in the tort of negligence—causation. (United Kingdom) v. W.J.Whittall & Sons[14];  Shaikh Gafoor v. State of Maharastra[15]. There are and will always be individual cases that at first sight suggest weaknesses in a legal principle, but that is not the way to judge a general test. He gave instructions accordingly but directed that all safety precautions should be taken to prevent inflammable material from falling into the oil. Others treat it as a separate element of the tort of negligence. The accountability of the negligence is made on the assumption that the person is aware of the fact that a particular act will lead to something unfortunate, though it may not happen. 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. In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. By Jason Lowther. ... A
may still fail to win his case, as the damage
suffered may be too remote. negligence – breach, causation and remoteness of damage . There are two tests for remoteness: the direct consequence test and the reasonable foreseeability test. The relevant … Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. 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. Company Registration No: 4964706. Say for example, a solicitor’s wrongdoing causes you to lose a completely unconnected unusual but lucrative business opportunity. Your email address will not be published. ... Remoteness of damage care; Negligence, causation and remoteness case; Criminal Law - Murder and Criminal … 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. 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