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In English law, remoteness between a
cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...
and the loss or damage sustained as a result is addressed through a set of rules in both
tort A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
and
contract A contract is a legally enforceable agreement between two or more parties that creates, defines, and governs mutual rights and obligations between them. A contract typically involves the transfer of goods, services, money, or a promise to tr ...
, which limit the amount of compensatory
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
available for a
wrong A wrong (from Old English – 'crooked') is an act that is illegal or immoral. Legal wrongs are usually quite clearly defined in the law of a state and/or jurisdiction. They can be divided into civil wrongs and crimes (or ''criminal offens ...
. In
negligence Negligence (Lat. ''negligentia'') is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as ''negligence'' involves harm caused by failing to act as a ...
, 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. As with the policy issues in establishing that there was a
duty of care In tort law, a duty of care is a legal obligation that is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be establi ...
and that that duty was breached, remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages placed on the defendant is done fairly.


Tort


Directness

The traditional approach was that once a breach in the duty of care had been established, a defendant was liable for all the consequent damage no matter how unusual or unpredictable that damage might be. In '' Re Polemis'' while docked, workers employed to unload the ship negligently dropped a plank into the hold, which struck something, causing a spark that ignited petrol vapour lying in the hold. The fire destroyed the whole ship. The Lords held that although the fire was not a reasonably foreseeable consequence of the plank falling, there had been a breach of the duty of care and all damage representing a direct consequence of the negligent act was recoverable. It was determined that once ''some'' harm was foreseeable, the defendant would be liable for the full extent of the harm. That particular consequences are possible does not make them reasonably foreseeable. This will particularly be the case when there are a significant number of links constituting the chain. The more links, the less likely that consequence may be considered reasonably foreseeable. *'' Greenland v Chaplin'' (1850) 5 Ex 243, Pollock CB advocated a foreseeability test for remoteness *''
Smith v The London and South Western Railway Company Smith may refer to: People * Metalsmith, or simply smith, a craftsman fashioning tools or works of art out of various metals * Smith (given name) * Smith (surname), a family name originating in England, Scotland and Ireland ** List of people wit ...
'' (1870–71) LR 6 CP 14, seven members of Exchequer Court uphold directness rule *'' Re Polemis & Furniss, Withy & Co Ltd'' 9213 KB 560 *'' Glasgow Corp v Muir'' 943AC 448


Foreseeability

However, in '' The Wagon Mound (No 1)'', a large quantity of oil was spilt into Sydney Harbour from the ''Wagon Mound'' and it drifted under the wharf where the claimants were oxyacetylene welding. The resulting fire caused extensive damage to the wharf and to vessels moored nearby. The Privy Council replaced the direct consequence test with the requirement that, in order to be recoverable, damage must be foreseeable in all the circumstances, thus, although pollution was a foreseeable consequence of the spillage, an outbreak of fire was not. Viscount Simonds held at pp 422–423: He went on to say at p 423, that a man should be responsible for the necessary or probable consequences of his act (or any other similar description of them), "not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them." In ''
Hughes v Lord Advocate is an important Scottish delict case decided by the House of Lords on causation. The case is also influential in negligence in the English law of tort (even though English law does not recognise " allurement" ''per se''). The case's main sign ...
'' a child climbed down a manhole left uncovered and protected only by a tent and paraffin lamp. When he came out he kicked over one of the lamps, which fell into the hole and caused an explosion. The child was burned. Lord Reid said at 845, The '' Wagon Mound (No 1)'' test is less generous to claimants than the direct consequence test because it may impose an artificial limit on the extent of damages that can be claimed. To mitigate some of the potential unfairness of the rule, the courts have been inclined to take a relatively liberal view of whether damage is of a foreseeable type. In '' Lamb v. London Borough of Camden'' a water main maintained by the Council broke, which caused extensive damage to the claimant's house. Because of the damage, the claimant moved out and squatters moved in, causing further damage to the house. The court held that the secondary damage caused by the squatters was too remote. The council was liable for the damage caused by the broken water main, but the land owner is responsible for keeping trespassers at bay.
Lord Denning Alfred Thompson "Tom" Denning, Baron Denning (23 January 1899 – 5 March 1999) was an English lawyer and judge. He was called to the bar of England and Wales in 1923 and became a King's Counsel in 1938. Denning became a judge in 1944 wh ...
said at p636 that remoteness of damages is just a question of policy with the element of foreseeability being determined by what is perceived to be instinctively just. This means that the reasonable foreseeability test is not always appropriate for cases where the acts of the claimant may demonstrate some fault. Nevertheless, the courts can award damages based on foreseeability where public policy requires it, e.g. in the egg-shell skull cases such as '' Smith v Leech Brain & Co''. Although some courts have on occasion adopted a more restrictive approach, the decision of the Lords in '' Jolley v Sutton London Borough Council'','' Jolley v Sutton London Borough Council'' 1_WLR_1082
/ref>_suggests_that_the_liberal_approach_is_to_be_preferred._The_Sutton_London_Borough_Council.html" ;"title="000
1 WLR 1082
/ref> suggests that the liberal approach is to be preferred. The Sutton London Borough Council">council allowed an abandoned boat to remain on its land and, over a period of time, two boys began to paint and repair it. Unfortunately, the boat fell on one of the boys, seriously injuring him. The claimant's case was that the boat represented a trap or allurement. The council accepted that it had been negligent in not removing the boat but that it had not been foreseeable that two boys would try to jack up the boat and so move it from the cradle upon which it lay. Lords Steyn and Hoffman stated that it is not necessary to foresee the precise injury that occurred, but injury of a given description. "The foreseeability is not as to the particulars but the genus. And the description is formulated by reference to the nature of the risk that ought to have been foreseen." (at para 37) So, in ''Hughes'' it was foreseeable that a child might be injured by falling in the hole or being burned by a lamp or by a combination of both. Although the injuries were not actually sustained in a foreseeable way, the injuries that actually materialised fell within the predictable range. Thus, the ''Wagon Mound No.2'' and ''Hughes'' are compatible. The former alleged that damage by burning was not damage of a description that could reasonably have been foreseen, while the latter asserted that the injury was not reasonably foreseeable. In both cases, the claimants could recover damages. *''Tremain v Pike''
969 Year 969 ( CMLXIX) was a common year starting on Friday (link will display the full calendar) of the Julian calendar, the 969th year of the Common Era (CE) and ''Anno Domini'' (AD) designations, the 969th year of the 1st millennium, the 69th ...
1 WLR 1556 *'' Smith v Leech Brain & Co'' [1961] 2 QB 405 *''Bourhill v Young'' 943AC 92, 108


Novus actus interveniens

*''
Scott v Shepherd ''Scott v. Shepherd'' 96 Eng. Rep. 525 (K.B. 1773), commonly known as the "flying squib case," is an important English tort law case on remoteness and the principle of ''novus actus interveniens'' as it related to the division between trespass and ...
'' (1772) 95 ER 525 *'' King v Sussex Ambulance NHS Trust'' 002EWCA Civ 953 *'' McKew v Holland & Hannan Ltd''
969 Year 969 ( CMLXIX) was a common year starting on Friday (link will display the full calendar) of the Julian calendar, the 969th year of the Common Era (CE) and ''Anno Domini'' (AD) designations, the 969th year of the 1st millennium, the 69th ...
3 All ER 1621


Contract

The following is a list of legal cases in which remoteness has been an issue: *''
Hadley v Baxendale ''Hadley & Anor v Baxendale'' ''& Ors'' 854EWHC J70is a leading English contract law case. It sets the leading rule to determine consequential damages from a breach of contract: a breaching party is liable for all losses that the contracting par ...
'' (1854) 9 Exch 341 *'' Fletcher v Tayleur'' (1855) 17 CB 21, a defendant who agrees to supply or repair a chattel obviously being used for profit making is liable for loss of ordinary profits as a result of failing to be on time. *'' British Columbia and Vancouver Island Spa, Lumber and Saw Mill Co Ltd v Nettleship'' (1868) LR 3 CP 499 *'' Horne v Midland Railway Co'' (1873) LR 6 CP 131, stands for the proposition that the defendant assumed liability for the exceptional loss. *'' Simpson v London and North Western Railway Co'' (1876) 1 QBD 274, the defendant must at least know of the special circumstances; also '' Seven Seas Properties Ltd v Al-Essa (No.2)'' 9931 WLR 1083 *'' Hydraulic Engineering Co Ltd v McHaffie, Goslett & Co'' (1878) 4 QBD 670, McHaffie contracted to make a gun, known to form a part of a gunpowder pile driver, to be built for Justice. It was delivered late, and Justice refused to take it. Bramwell LJ held that Hydraulic could recover the expenditure in making other parts of the machine, ‘useless except as old iron’ because it was built specially, the cost of painting it to preserve and a reasonable net profit that they would have made on the contract with Justice. Brett LJ and Cotton LJ concurred. *'' Balfour Beatty v Scottish Power plc'' (1994) SLT 807, one supplying a commodity for complicated construction projects will not be assumed to be aware of all little details. *''
Victoria Laundry (Windsor) Ltd v Newman Industries Ltd ''Victoria Laundry (Windsor) Ltd v Newman Industries Ltd'' 9492 KB 528 is an English contract law case on the remoteness of damage principle. Facts Newman Industries Ltd was meant to deliver a boiler for Victoria Laundry (Windsor) Ltd. The del ...
'' 9482 KB 528 *''
Koufos v Czarnikow Ltd ''C Czarnikow Ltd v Koufos'' or ''The Heron II'' 9691 AC 350 is an English contract law case, concerning remoteness of damage. The House of Lords held that the " remoteness" test, as a limit to liability, is, in contract, more restrictive than it ...
'' or ''
The Heron II ''C Czarnikow Ltd v Koufos'' or ''The Heron II'' 9691 AC 350 is an English contract law case, concerning remoteness of damage. The House of Lords held that the " remoteness" test, as a limit to liability, is, in contract, more restrictive than it ...
''
969 Year 969 ( CMLXIX) was a common year starting on Friday (link will display the full calendar) of the Julian calendar, the 969th year of the Common Era (CE) and ''Anno Domini'' (AD) designations, the 969th year of the 1st millennium, the 69th ...
1 AC 350 *'' H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd''
978 Year 978 ( CMLXXVIII) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Byzantine Empire * Battle of Pankaleia: Rebel forces under General Bardas Skleros are defeated ...
1 QB 791 *'' The Pegase'' or '' Satef-Huttenes Albertus SpA v Paloma Tercera Shipping Co SA''
981 Year 981 ( CMLXXXI) was a common year starting on Saturday (link will display the full calendar) of the Julian calendar. Events Births * Abu'l-Qasim al-Husayn ibn Ali al-Maghribi, Arab statesman (d. 1027) * Giovanni Orseolo, Venetian ...
1 Lloyd’s LR 175 *'' Commonwealth of Australia v Amann Aviation Pty Ltd'' (1991) 174 CLR 64; noted by Treitel, 108 LQR 226 *'' South Australia Asset Management Co v York Montague'' 9963 All ER 365 *'' Jackson v Royal Bank of Scotland''
005 ''005'' is a 1981 arcade game by Sega. They advertised it as the first of their RasterScan Convert-a-Game series, designed so that it could be changed into another game in minutes "at a substantial savings". It is one of the first examples of a ...
UKHL 3, Lord Walker says 6-9the two limbs of ''Hadley'' are not ‘mutually exclusive’. *'' Transfield Shipping Inc v Mercator Shipping Inc (The Achilleas)'' 008UKHL 48


Contract and tort

*'' Henderson v Merrett Syndicates Ltd''
995 Year 995 ( CMXCV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Japan * 17 May - Fujiwara no Michitaka (imperial regent) dies. * 3 June: Fujiwara no Michikane gain ...
2 AC 145, Lord Goff, 185, ‘the rules as to remoteness of damage… are less restricted in tort than they are in contract’. *'' Brown v KMR Services Ltd''
995 Year 995 ( CMXCV) was a common year starting on Tuesday (link will display the full calendar) of the Julian calendar. Events By place Japan * 17 May - Fujiwara no Michitaka (imperial regent) dies. * 3 June: Fujiwara no Michikane gain ...
4 All ER 598, the kind of loss must be foreseeable, not the extent of loss; Stuart Smith LJ, 620–1 and Hobhouse LJ, 640–3 distinguish Victoria Laundry, and criticise saying that the distinction between super profits and normal ones is just one of degree.


International comparisons


America

*'' Palsgraf v Long Island Railroad Co'', 62 NE 99 (1928), relying on '' Thomas v Quartermaine'' (1887) LR 18 QBD 685 *William Prosser, ‘Palsgraf Revisited’ (1952) 52 Michigan Law Review 1


Germany

*"Adäquanztheorie": see :de:Adäquanz.


See also

*
Damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
*
Proximate cause In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause. Ca ...


Notes

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External links


Worldlii links to resources on the subject of damages
English tort law Legal doctrines and principles English contract law