remoteness of damage in negligence

THE CONTRACT RULES FOR REMOTENESS OF DAMAGE The starting point here b muse Thet Heron II,w sinc iet contains an explanation of th contene ant rationald oef th rule e governing remoteness of damage in contract. doi link for negligence – breach, causation and remoteness of damage. It is often easier and less confusing to treat it as a separate element. FACTS – The railway company was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry weather. Wagon Mound the test for remoteness of damages is … 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. Marc Stauch. The damage may be proximate or might be remote, or too remote. by … the hire charges which they had to pay from the date of the sinking to the date they could actually purchase a new dredger. 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. The remoteness enquiry in negligence, which serves to exclude the liability of defendants for harmful consequences that their careless conduct caused, but for which it seems unfair to penalise them, has long been beset by uncertainty. The test for remoteness was initially one of directness. Remoteness of damage must also be applied to claims under the Occupiers Liability Acts … ... Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn somewhere. » Tort of Negligence » Remoteness of damage » Robinson v Post Office and another [1974] 1 WLR 1176. 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. ... A
may still fail to win his case, as the damage
suffered may be too remote. Compilation of Important Landmark cases on "Remoteness of Damages" Here, furnace oil spilled into the water at a wharf as a result of the negligence of the defendants. An event constituting a wrong can constitute of single consequence or may constitute of consequences i.e. His lip contained pre-cancerous cells which were triggered by the injury sustained and he died 3 years later. 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 question remains how much liability can be fixed, and what factor determines it. 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. In the real world there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound No.1. Causation, Remoteness & Damages. For "Remoteness of vesting" see instead Rule against perpetuities.. Marc Stauch. 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. Thus, on the basis of the foregoing analysis, Viscount Simmonds’ contention is supported. 560, [9] Liesbosch Dredger v. S.S. Edison – (1993) A.C. 448, Your email address will not be published. Share. The interpretation of ‘direct cause’ by House of Lords in Liesbosch Dredger v. S.S. Edison had the effect of limiting the scope of Re Polemis. Search for more papers by this author. 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. Introduction: (The Remoteness of Damages in law of torts.). 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. 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). 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. This obviously tilts the balance significantly back in favour of the claimant in many cases. Defences to Negligence /2 • (2)Voluntary Assumption of Risk • A person who volunteers to enter a situation where the risk of injury is obvious cannot recover damages 21 Defences to Negligence /3 • (3)Remoteness test – Legal Causation • Whether the specific type of injury suffered was reasonably foreseeable • (4)Illegality • Plaintiff was injured while engaged in some form of illegal or immoral … Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. Say for example, a solicitor’s wrongdoing causes you to lose a completely unconnected unusual but lucrative business opportunity. This essay will also look at the intervening acts and touching upon the subject of remoteness before concluding on the subject of causation and negligence. One evening it was left surrounded by paraffin lamps but otherwise unguarded. 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. Disclaimer: This work has been submitted by a law student. ... the mischief of the child was the proximate cause and the negligence of the defendant’s servant was the remote cause. This Maxine can be … Since one of the principal aims of the law of contract is certainty, the rules are well settled. The idea of responsibility to foreseeable classes of persons in foreseeable classes of circumstances had been foreshadowed in a number of … In Robinson v Post Office and another, the Court of Appeal confirmed that a defendant is liable in full for all damage … 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. The law is invited to assess hypothetical outcomes, either affecting the claimant or a third party, where the defendant's breach of contract or of the duty of care for the purposes of negligence deprived the claimant of the opportunity to obtain a benefit and/or avoid a loss. This chapter discusses the final ‘hurdle’ for the claimant to overcome in the tort of negligence—causation. Looking for a flexible role? The concept of causation, in a legal sense, is more complex and less transparent than first appears. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. 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. 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. It was set on fire by the molten metal falling from the wharf. 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. 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. tort: Negligence: causation and remoteness of damage Learn with flashcards, games, and more — for free. 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 relevant … The courts must first examine that the breach of duty must be the factual cause of the damage. (United Kingdom) v. W.J.Whittall & Sons[14];  Shaikh Gafoor v. State of Maharastra[15]. In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. University. VAT Registration No: 842417633. This is however understandable given the almost infinite range of possible damage-inflicting scenarios that the courts may be confronted with and individual rulings appear to turn on precisely how strictly a court defines the concept of type or form of damage. Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. Relevant case law and pertinent authorities are considered and conclusions are offered against the backdrop of this legal matrix. Click here to navigate to parent product. They were refitting a vessel and for that purpose, their employees were using welding equipment. Tests of Reasonable Foresight; Tests of Directness; Tests of Reasonable Foresight. 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. It resulted in an explosion and the liquid thereby erupted, causing injuries to the plaintiff. Revision note on remoteness of damage in negligence. 146, [4] Greenland v. Chaplin – (1850) 5 Ex. 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. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. A child of eight years entered the tent and started playing with one of the lamps. For these purposes, the remedy … He gave instructions accordingly but directed that all safety precautions should be taken to prevent inflammable material from falling into the oil. 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. It was found that the damage was thus too remote for recovery (Steele, (2007), p182 et seq). The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. For testing Remoteness of damage there are two tests. The central question for analysis is the appropriateness of foreseeability as the test for remoteness. 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. 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. 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 development clearly favoured defendants by placing a foreseeability limitation on the extent of their potential liability. negligence – breach, causation and remoteness of damage . It should also be noted, just for the sake of clarity, that there was a second case in the Wagon Mound litigation, Wagon Mound No.2 [1967] 1 AC 617, and that this case was decided differently on the basis of further evidence (the presence of flammable debris floating in the water which became impregnated with the oil made ignition more likely). but when it has been once determined there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not. tort causation and remoteness of damage the test the hypothetical test is traditionally used to begin the process of establishing factual causation it involves. 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. In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. 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. 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. DOI link for NEGLIGENCE – BREACH, CAUSATION AND REMOTENESS OF DAMAGE. negligence – breach, causation and remoteness of damage book. 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. 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. It is this principle that Viscount Simmonds criticised in the quote featured in the title from the Wagon Mound No.1 decision. 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. Direct consequence test. 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. Despite this, the remoteness of damage is still helpful in creating a coherent principle and probably more so than the proximity of relationship test. 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. There is at first sight a tempting argument to the contrary. FACTS – The defendants chartered a ship. It was held that since the kind of damage was foreseeable although the extent was not, the defendants were liable. As a result of the defendant's negligence the husband had incurred a burn to his lip. (though the expected and the actual results might not be the same). The question remains how much liability can be fixed, and what factor determines it. The title to this paper poses a direct question: should foreseeability continue to be the applicable test for remoteness? Remoteness of damage The Wagon Mound no 1 [1961] AC 388 Case summary test applies. Allahabad High Court UP HJS Recruitment 2021 | District Judge: Notification, Syllabus, Pattern, Interface between IPR and Competition Law. Public nuisance; Private nuisance; Why Robinson v Post Office and another is important. 1 0. Some other cases for reference are Lampert v. Eastern National Omnibus Co.[13]; S.C.M. The claimant must prove that their injuries were caused by the defendant’s actions in both fact and law. Thus, the claim after the time when a new dredger could have been reasonably purchased and put to work was rejected. 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. 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 doctrine of the remoteness of damages is one such principle. The distance between the respondent’s wharf and the Caltex wharf was 600 feet. 2017/2018. 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. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Through the carelessness of their servants, a large quantity of oil was allowed to spill into the harbour. However, the Privy council ruled in favour of the Overseas Tankship Ltd. holding that the Re Polemis was no longer valid law. As with all generally applicable tests in law, it is the application and interpretation of the test in specific instances that is the most important thing, not the bare principle inherent in the test itself. One of the defenses pleaded by the defendant was novus actus interviniens, or remoteness of consequences i.e. “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). 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. 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. The doctrine of the remoteness of damages is one such principle. Now, the test is based on foreseeability. Remote and Proximate damage : (The Remoteness of Damages in law of torts.) 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 was extensive in this case. The manhole was covered with a tent. Damage. 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. Confusing to treat it as a result of the defendants ’ servants, a solicitor ’ s wharf proximate! V. 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