Remoteness of Damage
The Basic Rule
Establishing Remoteness
The fourth element of the tort of negligence is proving that the loss is not too remote. A loss is too remote unless its ‘type’ is reasonably foreseeable: The Wagon Mound (no 1) [1961] AC 388. This is assessed knowing the specifics of the breach. The relevant ‘type’ of harm is broadly defined. For example, personal injury, property damage, psychiatric harm and economic loss are ‘types’ of loss.
Remoteness of damage is treated by some judges and commentators as an aspect of legal causation. Others treat it as a separate element of the tort of negligence. It is often easier and less confusing to treat it as a separate element.
The Magnitude and Manner of Harm
The magnitude of the harm, or the precise way in which it came about, does not normally need to be foreseeable: Hughes v Lord Advocate [1963] AC 837.
However, this is not the case if the way in which the harm came about takes it outside of the scope of the risks for which the defendant’s duty was designed to guard against: Jolley v Sutton [2000] 1 WLR 1082. When assessing if the risk is foreseeable, it should be formulated in general terms: Jebson v Ministry of Defence [2000] EWCA Civ 198.
Special Rules
Additional rules apply in some cases:
The Egg-Shell Skull Rule
If ‘some’ harm of the relevant type is foreseeable, the claimant can recover in full even if they have a special, unforeseeable condition which makes them especially vulnerable or makes the harm worse: Smith v Leech Brain [1962] 2 QB 405.
Primary and Consequential Victims
If the claimant has successfully established a duty of care as a primary or consequential victim of psychiatric harm, they only need to show that physical harm was foreseeable: Malcolm v Broadhurst [1970] 3 All ER 508. They do not need to show that psychiatric harm was also foreseeable.
If the claimant can only establish a duty of care as a secondary victim of psychiatric harm, they must show that it was foreseeable that a reasonable person of ordinary fortitude would suffer psychiatric harm: McLoughlin v O’Brian [1982] UKHL 3.
If claimant has suffered non-remote physical or psychiatric harm or property damage, any consequential economic loss (such as lost earnings) is presumed to be non-remote: Spartan Steel & Alloys v Martin & Co (Contractors) Ltd [1973] 1 QB 27.
