Remoteness in English law

In the English law of 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. As with the policy issues in establishing that there was a duty of care 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 is fairly placed on the defendant.

Alternative approaches

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 In re Polemis and Furness, Withy & Co (1921) 3 KB 560 while docked, workers employed to unload the ship negligently dropped a plank into the hold which struck something and the resulting spark 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. 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.

In Hughes v Lord Advocate (1963) AC 837 a child climbed down a manhole which had been 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 pp845:

"So we have (first) a duty owned by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way..." which affords no defence.

However, in the Wagon Mound No. 1 (1961) AC 388 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 of a type which is 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 pp422-423:

"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."

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 a second action commenced by the ship owners, The Wagon Mound No. 2 (1967) 1 AC 617, it was held that the engineers employed by the owners of the Wagon Mound knew or ought to have known that it would be possible, although very difficult, to set the oil alight. Lord Reid said (at pp718-719):

"It follows that in their Lordships view the only question is whether a reasonable man having the knowledge and experience to be expected of the chief engineer of the Wagon Mound would have known that there was a real risk of the oil on the water catching fire in some way."

The words "real risk" are the requirement of remoteness of damage but the test of foreseeability does not depend upon the actual risk of occurrence. The test is really whether the engineer ought to have foreseen the outbreak of fire, i.e. the type of consequence ought to have been foreseen.

Reconciliation of the two approaches

The Wagon Mound is a Privy Council decision and therefore only of persuasive authority. It is also 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 (1981) QB 625 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 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 Ltd (1962) 2 QB 405.

Although some courts have on occasion adopted a more restrictive approach, the decision of the Lords in Jolley v Sutton London Borough Council (2000) 1 WLR 1082, suggests that the liberal approach is to be preferred. The 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 which 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 which 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 which actually materialised fell within the predictable range. Thus, the Wagon Mound No.1 and Hughes are compatible. The former alleged that damage by burning was not damage of a description which could reasonably have been foreseen, while the latter asserted that the injury happened in a way which was not reasonably foreseeable. In both cases, the claimants could recover damages.