Remoteness of damage relates to whether the damage caused was foreseeable or not. There are two main tests for determining remoteness: 1) The test of reasonable foresight - defendants are liable if a reasonable person would have foreseen the type of damage occurring; and 2) The test of directness - defendants are liable for all direct consequences of their actions, whether foreseeable or not. The landmark Wagon Mound case established foreseeability as the primary test, finding the defendant not liable as the extensive fire damage was not reasonably foreseeable even if their actions breached duty of care. Foreseeability requires considering what a reasonable person would predict as the probable consequences of an action.
Remoteness of damage relates to whether the damage caused was foreseeable or not. There are two main tests for determining remoteness: 1) The test of reasonable foresight - defendants are liable if a reasonable person would have foreseen the type of damage occurring; and 2) The test of directness - defendants are liable for all direct consequences of their actions, whether foreseeable or not. The landmark Wagon Mound case established foreseeability as the primary test, finding the defendant not liable as the extensive fire damage was not reasonably foreseeable even if their actions breached duty of care. Foreseeability requires considering what a reasonable person would predict as the probable consequences of an action.
Remoteness of damage relates to whether the damage caused was foreseeable or not. There are two main tests for determining remoteness: 1) The test of reasonable foresight - defendants are liable if a reasonable person would have foreseen the type of damage occurring; and 2) The test of directness - defendants are liable for all direct consequences of their actions, whether foreseeable or not. The landmark Wagon Mound case established foreseeability as the primary test, finding the defendant not liable as the extensive fire damage was not reasonably foreseeable even if their actions breached duty of care. Foreseeability requires considering what a reasonable person would predict as the probable consequences of an action.
Remoteness of damage relates to whether the damage caused was foreseeable or not. There are two main tests for determining remoteness: 1) The test of reasonable foresight - defendants are liable if a reasonable person would have foreseen the type of damage occurring; and 2) The test of directness - defendants are liable for all direct consequences of their actions, whether foreseeable or not. The landmark Wagon Mound case established foreseeability as the primary test, finding the defendant not liable as the extensive fire damage was not reasonably foreseeable even if their actions breached duty of care. Foreseeability requires considering what a reasonable person would predict as the probable consequences of an action.
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Remoteness of Damage
Remote and proximate damage
•The test of reasonable foresight •The test of directness He is liable only for those consequences which are not too remote from his conduct. No defendant can be made liabel for all the consequences which follow his wrongful act A line must be drawn somewhere, and certain kinds of losses, though a direct result of defendant’s conduct, may remain uncompensated. Remote and proximate damage We are to see whether the damage is too remote a consequence of the wrongful act or not. If that is too remote, the defendant is not liable. If on the other hand, the act and the consequences are so connected that they are not too remote but are proximate, the defendant will be liable for the consequences. It is not necessary that the event which is immediately connected with the consequence is proximate and that farther from it is too remote. Scott v Shepard Novus actus interviniens or remoteness of consequences. Haynes v Harwood, 1935 Lynch v Nurdin, 1841 The test of reasonable foresight If the consequences of a wrongful act could have been foreseen by a reasonable man, they are not too remote. If on the otherhand, a reasonable man would not have foreseen the consequences, they are too remote. The test of directness A person is liable for all the direct consequences of his wrongful act, whether he could have foreseen them or not, because consequences which directly follow a wrongful act are not too remote. The only question which has to be seen in such a case is whether the defendant’s act is wrongful or not, ie, if he could foresee some damage? If the answer to the question is in the affirmative ie, if he could foresee any damage to the plaintiff, then he is liable not merely for those consequences which he could have foreseen but for all the direct consequences of his wrongful act Smith v London and south western Railwaysco, Re polemis and Furness, withy & co. 1921
Leisbosch dredger v Edison, 1933
Remoteness of damage relates to the requirement that the damage must be of a foreseeable type. 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. Remoteness of damage must also be applied to claims under the Occupiers Liability Acts and also to nuisance claims.
Remoteness of damage is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law. Originally a defendant was liable for all losses which were a direct consequence of the defendant's breach of duty: The test of reasonable foresight Wagon Mound case Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No. 1) 1961, uk
Hughes v Lord Advocate, 1963
Doughty v Turner Manufacturing co. Ltd, 1964 The Privy Council found in favour of the defendant, agreeing with the expert witness who provided evidence that the defendant, in spite of the furnace oil being innately flammable, could not reasonably expect it to burn on water. The Board indicated Morts would probably have been successful if they had claimed damages for direct damage by the oil to the slipway but this was minor and not part of the damages claimed (although success on this count may have saved Morts Dock and Engineering the costs of all the litigation for both parties across all three levels of court). Viscount Simonds, in his delivery for the Privy Council, said that the Counsel for Morts had discredited their own position by arguing that it couldn't have been bunkering oil because it wouldn't burn on water. The Privy Council's advice soundly disapproved the rule established in Re polimis, as being "out of the current of contemporary thought" and held that to find a party liable for negligence the damage must be reasonably foreseeable. The council found that even though the crew were careless and breached their duty of care, the resulting extensive damage by fire was not foreseeable by a reasonable person, although the minor damage of oil on metal on the slipway would have been foreseeable. Viscount Symonds delivered the judgment of the Board and said: It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. ... Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done. It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. [1] Up until this time the leading case had been Re polemis where the central question was that of the directness of the chain of events between the triggering act being examined for negligence and the result. The Council decided that rather than go with precedent (authority) they would determine a principle from a range of cases, in a similar way as Lord Atkin did in Donogue v Stevenson, and their principle was primarily a single test for foreseeability which they argued was a logical link between the damage and the liability (culpability). Stated differently, foreseeability was the logical link between, and the test for, breach of the duty of care and the damages. This is the supreme test, and may be rephrased as "the liability of a consequence ... was natural or necessary or probable." The Lords made reference to hindsight, indicating it is nothing like foresight and should play no role in assessing negligence. There is authority to challenge this view of hindsight; in page v smith Lord Lloyd stated: "In the case of secondary victims, i.e. persons who were not participants in an accident, the defendant will not be liable unless psychiatric injury is foreseeable in a person of normal fortitude and it may be legitimate to use hindsight in order to be able to apply the test of reasonable foreseeability.“ The Lords gave Morts the opportunity to sue in nuisance but there is no record of them testing this action in that tort. The common law rules of causation have had their importance lessened by the promulgation of statute law in Australia. Contributory negligence is now essential for many determinations and are covered by statutes such as the Civil Liability Act (1936) South Australia which has more recent counterparts in a number of jurisdictions including New South Wales.