remoteness of damage in negligence
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remoteness of damage in negligence

remoteness of damage in negligence

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. Remoteness of damage must also be applied to claims under the Occupiers Liability Acts … They were refitting a vessel and for that purpose, their employees were using welding equipment. ... Remoteness of damage care; Negligence, causation and remoteness case; Criminal Law - Murder and Criminal … 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 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. They sued the owners of Edison for negligence and their claim for compensation include: The House of Lords accepted their claim under the first head and allowed compensation equal to the market price of the dredger comparable to Liesbosch. 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 fairly pointless to point to the margins of application of a legal test and then subject that test to criticism unless a superior alternative presents itself. If a defendant’s negligence sets in train a course of events that result in wide ranging and far reaching damage why shouldn’t that defendant be made liable for all that damage? ... the mischief of the child was the proximate cause and the negligence of the defendant’s servant was the remote cause. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. There is at first sight a tempting argument to the contrary. This Maxine can be … A claimant must prove that the damage was not only caused by the defendant but that it was not too remote. 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. Meaning and Concept: Remoteness of Damages. The Standard of Care in Negligence 2 – The Duty of Care in Negligence 4 – Defences - Summary Law of Tort. 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. Take a look at some weird laws from around the world! Say for example, a solicitor’s wrongdoing causes you to lose a completely unconnected unusual but lucrative business opportunity. The consequence of wrongful act is endless or it would be right to say that it is a consequence of consequence. 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. Duty of Care; Breach of Duty; Causation; Remoteness of damage; Tort of Nuisance. The foreseeability test is far from perfect, but then there are no perfect tests in law. Any test can be rendered ineffective and deleterious if blindly or mechanically applied. 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! It is often easier and less confusing to treat it as a separate element. Disclaimer: This work has been submitted by a law student. The central question for analysis is the appropriateness of foreseeability as the test for remoteness. 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. One evening it was left surrounded by paraffin lamps but otherwise unguarded. This is not an example of the work produced by our Law Essay Writing Service. Only once it has been established that there has been a breach of a duty of care does the court consider causation and remoteness issues. Tort: In relation to some types of torts (in particular negligence and nuisance) the test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time of the breach of duty (Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) AC 388). 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. If on the other hand, a reasonable man could not have foreseen the consequences, they are too remote. For testing Remoteness of damage there are two tests. 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. On the third day, there was an outbreak of fire. Public nuisance; Private nuisance; Why Robinson v Post Office and another is important. 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. There should be a clear link between the breach of duty and the damage. Marc Stauch. The claimant must have suffered loss or damage as a result of the defendant’s negligence. In English law, remoteness is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. Introduction: (The Remoteness of Damages in law of torts.). It doesn’t rely on: the type of breach that would take place to cause it the events that might cause it 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. That is not to say that it is a panacea in every difficult case, such as Tremain v Pike [1969] 3 All ER 1303 (concerning the distinction between the foreseeable physical injury of a rat bite and the rare and unforeseeable disease suffered as a result of the bite). The University of Warwick. 560, [6] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. The concept of causation, in a legal sense, is more complex and less transparent than first appears. 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. Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. In simple terms, if the Re Polemis test still existed, and defendants were liable for any and all consequences of their negligent actions, no matter how unforeseeable or unlikely those consequences might be, it is highly probable that activity in society would be quite drastically impaired, because potential tortfeasors (every member of society) would be intimidated by the potentially draconian and inestimable consequences of making a mistake. The courts must first examine that the breach of duty must be the factual cause of the damage. It is argued that Viscount Simmonds’ contention that foreseeability should continue to be the applicable test for remoteness, is well founded, primarily because, on reflection, no better test is available. Remoteness of damage 1. This balance is finessed by the fact that it is only the form of damage suffered that must be foreseeable, not the degree of harm actually sustained (Horsey and Rackley, (2009), p248). One such justification is insurability. BY : SHRASTI SINGH. For "Remoteness of vesting" see instead Rule against perpetuities.. University. Viscount Simmonds then, in evoking the concepts of current justice and morality, is essentially adding practicality to the list and it is submitted that this is entirely justified. 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. The manhole was covered with a tent. 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. To establish cause in fact, the claimant must show, on the balance of probabilities, that the defendant’s breach caused their harm. ... A
By Kenisha Browning
2. The doctrine of the remoteness of damages is one such principle. The traditional direct consequence test of whether damage was too remote was laid down in Re Polemis and essentially imposed liability for all direct physical consequences of a defendant’s negligence. The Privy Council held that contamination damage caused by the oil was reasonably foreseeable, but that damage caused by fire was not foreseeable to a reasonable person given that evidence was produced indicating that it is difficult to ignite such oil when floating on water. First Published 2009. If the answer to this question is in the affirmative, i.e., if he could any damage to the plaintiff, then he is liable not only for those consequences which he could have foreseen but for all the direct consequences of his wrongful act. Required fields are marked *. 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). This could be physical injury, financial loss, etc. TEST FOR REMOTENESS 1. The oil film drifted to a nearby wharf where welding work was being carried out on a ship. Click here to navigate to parent product. This chapter discusses the final ‘hurdle’ for the claimant to overcome in the tort of negligence—causation. 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. which could be foreseen. For guidance on causation and remoteness in contract and tort generally, see Practice Notes: • Causation and remoteness in contractual breach claims • Tort claims—causation in law • Tort claims—causation as a matter of fact. This provides that the defendant is only liable for loss which was of a foreseeable kind. If the same damage would have been suffered even if there had been no breach of a duty of care, then the claimant loses. by … Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. Direct consequence test. Therefore, where it was indirect, say, where something else influenced the chain of causation then the defendant would not be held liable. Remoteness of Damage in Contract and Tort: A Reconsideration - Volume 55 Issue 3 ... Jones at pp. This provides that the defendant is only liable for loss which was of a foreseeable kind. This is called the doctrine of the remoteness of damages. Damage. Held, that the damage resulting from the explosion was not of the kind as could have been foreseen, and, therefore, the defendants were not liable. 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. Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. negligence – breach, causation and remoteness of damage book. Pages 12. eBook ISBN 9780203867990. 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 main investigation for the test of remoteness of damage in cases of negligence in torts was the extent to which damage was as a result of breach of duty. FACTS – The defendants chartered a ship. Thus, on the basis of the foregoing analysis, Viscount Simmonds’ contention is supported. 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. » Tort of Negligence » Remoteness of damage » Robinson v Post Office and another [1974] 1 WLR 1176. A principle of good old fashioned common sense seems apposite: if it isn’t broken, don’t try to fix it. It would be unacceptably harsh for every tort feasor to be … 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. The test of reasonable foresight was, for the first time, laid down by Pollock, C.B., in his separate opinions rendered in two cases of the Court of Exchequer in 1850, the cases being Rigby v. Hewitt[3] and Greenland v. Chaplin[4]. Loss of chance in English law refers to a particular problem of causation, which arises in tort and contract. Edition 8th Edition. Before this decision in The Wagon Mound No.1 defendants were held responsible to compensate for all the direct consequences of their negligence, a rule clarified by the decision in Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560. Some other workmen of the defendants let an asbestos cement coverslip into a cauldron of hot molten liquid. Presumably Viscount Simmonds uses the word “current” to suggest that the law had evolved over forty years of the twentieth century, from its application in Re Polemis in 1921 to reach a state by the time of the Wagon Mound No.1 decision in 1961 in which it was deemed appropriate to incorporate a foreseeability factor into what was hitherto open-ended liability. There are two tests for remoteness: the direct consequence test and the reasonable foreseeability test. Since one of the principal aims of the law of contract is certainty, the rules are well settled. 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. Marc Stauch. 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. 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). The doctrine of the remoteness of damages is one such principle. ⇒A claimant must prove that the damage was not only caused by the defendant but that it was not too remote ⇒Historical position on remoteness: Re Polemis and Furness, Withy & Co [1921] ⇒The current law on remoteness: Overseas Tankship v Morts Dock (The Wagon Mound (No 1)) [1961] In essence, the position is that the defendant will only be liable for damage that is reasonably foreseeable This paper discusses the legal concept of remoteness in the tort of negligence. Tests for cause in law encompass a remoteness test (which involves establishing whether the damage that occurred was foreseeable to the defendant at the time of the negligence). 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. Helpful? Held. Reference this. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. Remoteness of Damage . FORESIGHT AND REMOTENESS OF DAMAGE IN NEGLIGENCE IN Overseas Tankship (U.K.) Ltd. v. Mort’s Dock ds. 10 This test was illustrated in the case involving Re Polemis. As Lord Nicholls sets out above, the question of causation is analysed in two stages. Tort of Negligence. 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. DOI link for NEGLIGENCE – BREACH, CAUSATION AND REMOTENESS OF DAMAGE. *You can also browse our support articles here >. 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. comparing the tort o f negligence, as well a s (briefly) other torts. 560, [9] Liesbosch Dredger v. S.S. Edison – (1993) A.C. 448, Your email address will not be published. For testing Remoteness of damage there are two tests. You should not treat any information in this essay as being authoritative. A narrow definition was for example adopted to the advantage of the defendant in Doughty v Turner Manufacturing Co [1964] 1 All ER 98 (here the distinction was between a splash and an eruption of burning liquid), while in Hughes v Lord Advocate [1963] AC 837 a more generous definition was endorsed to the advantage of a child (and this may be significant) claimant. The Nottingham Trent University. 243, [5] Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. Others treat it as a separate element of the tort of negligence. It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). The damage was extensive in this case. 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. 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. the hire charges which they had to pay from the date of the sinking to the date they could actually purchase a new dredger. (United Kingdom) v. W.J.Whittall & Sons[14];  Shaikh Gafoor v. State of Maharastra[15]. 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. The general principle of law requires that once damage is caused by a wrongful act, liabilities have to be assigned. 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. 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. Owing to the negligence of the defendants’ servants, a plank fell into the hold, a spark was caused. Though the first authority for the view if advocating the directness test is the case of Smith v. London & South Western Railway Company[6] where Channel B. said: where there is no direct evidence of negligence, the question what reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not…. In Corporate & Financial Law – To Pursue Or Not To? negligence – breach, causation and remoteness of damage book. ... Should negligence depend on the cost of being careful or, as suggested in Bolton v Stone, should it depend on the degree of risk involved in an activity? As things stand it is submitted that the foreseeability test in remoteness represents the least imperfect measure of liability and the best compromise between the interests of the parties involved and those of the wider society that the law ultimately serves. (though the expected and the actual results might not be the same). The idea of responsibility to foreseeable classes of persons in foreseeable classes of circumstances had been foreshadowed in a number of … In the real world there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound No.1. In Robinson v Post Office and another, the Court of Appeal confirmed that a defendant is liable in full for all damage … The Magnitude and Manner of Harm. Factual Causation – “But for” Test. This paper concludes that foreseeability should remain the applicable test for remoteness. In this, the final article of this series on understanding negligence law, the causation and remoteness of damage is discussed. In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. “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). tort causation and remoteness of damage the test the hypothetical test is traditionally used to begin the process of establishing factual causation it involves. Some other cases for reference are Lampert v. Eastern National Omnibus Co.[13]; S.C.M. 2017/2018. It is this principle that Viscount Simmonds criticised in the quote featured in the title from the Wagon Mound No.1 decision. reasonably foreseeable damages & remoteness of loss (the Rule in Hadley v Baxendale and consequential loss) home > Reference > direct, indirect and consequential loss. doi link for negligence – breach, causation and remoteness of damage. The only question which has to be answered in such any case whether the defendant’s act is wrongful or not, i.e., could he foresee some damage? FACTS – Owing to the negligence of Edison, the dredger Liesbosch was sunk. negligence – breach, causation and remoteness of damage . 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. 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. If the loss was of a foreseeable type, the defendant is liable for the full extent of the loss, even if the loss was much greater than expected. Most negligence situations need damage to be proven. The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who were shipbuilders and ship-repairers. As a result of the defendant's negligence the husband had incurred a burn to his lip. Consequences i.e of establishing factual causation it remoteness of damage in negligence should foreseeability continue to assigned... Maharastra [ 15 ] Cross Street, Arnold, Nottingham, Nottinghamshire, NG5 7PJ was of a in... Suffered loss or damage as a separate element were held liable even though they could not have the. And pragmatically within the imperfect and complex world in which we live operate efficiently and within... That the defendant ’ s property was damaged by the defendant ’ s wharf proximate... A few elaborations of cases would perhaps make it more clear remoteness of damage in negligence the other hand, reasonable. Wharf and the Caltex wharf was severely damaged opened a manhole for the purpose of underground! Their employees were using welding equipment to begin the process of establishing factual causation it involves applied many. Must also be applied to many other cases for reference are Lampert v. Eastern National Omnibus Co. [ 13 ;... Of Care ; breach of duty and the liquid thereby erupted, causing injuries to the.. Balance struck between imposing appropriate liability but not doing so in a fashion that unduly impedes activity in society question... Railway engine set fire to the requirement that the damage hedges and grass near a railway line during weather... 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