Tort: Remoteness of Damage

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; Jebson v Ministry of Defence [2000] EWCA Civ 198.


Special Rules

Additional rules apply in some cases:

The Egg-Shell Skull Rule
Egg-shell skull, bones, teeth, x-ray

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
Psychiatric, mental illness, mind

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.

Relationship, marriage, love, couple, spouses, wedding rings

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.

Economic loss, time, coins, money, clock

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. 


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Causation and Remoteness of Damage Quiz

Test yourself on the principles of causation and remoteness of damage.

1 / 15

If the claimant's chances of negotiating their way out of an economic loss have been reduced from 48% to 21% by the defendant's negligence, can they establish factual causation?

 

2 / 15

When will an act of nature break the chain of legal causation?

3 / 15

When will an act of a third party break the chain of legal causation?

4 / 15

What must the claimant show to establish that negligently inflicted harm is sufficiently non-remote?

5 / 15

What type of harm must a secondary victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote?

6 / 15

When will an act of the claimant break the chain of legal causation?

7 / 15

What type of harm must a primary or consequential victim of psychiatric harm in negligence show was foreseeable to establish that their loss was not too remote?

8 / 15

What does unforeseeable mean for the purposes of legal causation in negligence?

9 / 15

If the claimant suffers a greater degree of loss than normal because of a special condition, for what losses can they recover?

10 / 15

When is the manner in which the harm was caused relevant to remoteness of damage?

11 / 15

In industrial disease cases, what must the claimant show to establish factual causation?

12 / 15

If an act of the claimant, nature or a third party was the kind of thing the defendant's duty was supposed to guard against, can it break the chain of legal causation?

13 / 15

If the defendant's negligence injures the claimant, but the claimant would have suffered the same injury later on, can the claimant establish factual causation after the date of the second, inevitable injury?

14 / 15

How does a claimant establish factual causation in tort?

15 / 15

If the claimants chances of avoiding an injury have been reduced from 48% to 21% by the defendant's negligence, will they be able to establish factual causation?

 

Your score is