The Test of Remoteness in Law

The law places a limit upon the extent to which the defendant is liable for the loss which occurs from his breach of a duty of care to the plaintiff, once it is established that the loss sustained by the plaintiff is one recoverable in negligence. The test of remoteness of damage limits this liability by defining certain types of damage or losses as being irrecoverable as a matter of law. The test is carried out to protect the defendant in breach of their obligations from unusual or unexpected claims.

The test for remoteness was for some time considered to be that laid down in Re Polemis and Furness, Withy & Co. Ltd where it was held that all harm suffered as a direct result of a breach of duty was recoverable, which meant that as long as some damage to the plaintiff is foreseeable, the defendant is liable for all the damage that results directly from the negligence and even applies to a plaintiff who was not within the reasonable foresight of the defendant.

However there does not appear to be any definition of what exactly constitutes reasonable foresight.

Since The Wagon Mound No 1 the courts have frequently reiterated that the defendant may be liable even though he could not envisage that precise set of circumstances which produced harm of the foreseeable kind and this was shown in a broad view in Hughes v Lord Advocate in which the defendants were held liable on the grounds that as long injury by burning was foreseeable, the method by which the burning occurred did not matter and that the type rather than the extent of damage must be foreseen Bradford v Robinson Rentals , Margereson v J W Roberts Ltd ,Hancock v JW Roberts and Vacwell Engineering Co Ltd v B D H Chemicals Ltd .

The courts however have interpreted The Wagon Mound test somewhat broadly when dealing with foreseeability to personnel injury Page v Smith except in the cases of Doughty vs Turner Manufacturing and Tremain vs Pike and Jolley vs Sutton Borough Council where a narrow view was taken by the courts, where the courts ruled that the remoteness test was not satisfied.

One area not covered by The Wagon Mound No 1 test is the position if the type of injury is foreseeable but the extent of that injury is not because the claimant has a special condition, Smith v Leech Brain & Co Ltd, Robinson v Post Office & Paris v Stepney B.C . This is covered by the ‘egg-shell skull’ rule which basically means that you take your victims as you find them and so if the claimant suffers a particular disability or has a particular condition they can recover in full from the defendant for their loss. This rule therefore extends the rule of remoteness as stated in The Wagon Mound No 1.

Reasonable foreseeability is always a necessary ingredient of a negligence action as it is required to establish a duty of care and The Wagon Mound test is now established as the remoteness test for negligence. However I would not agree that it is the sole test of remoteness in the tort of negligence. As described earlier, if this was so then the ‘egg-shell skull’ would not apply. Although from reading The Wagon Mound it would seem that in negligence, foreseeability is the only criterion for remoteness of damage, but it may be that foreseeability is not the complete story, for other often unexpressed factors may be relevant, therefore foreseeability as a test of remoteness is qualified by the fact that either the precise extent of the damage nor the precise manner of its infliction need be foreseeable.

The test for remoteness of foreseeability is also affected by policy-based rules which are used to limit responsibility such as “scope of risk” test Roe v Minister of Health and protected claimants such as unborn children, protected under Section 1 of the Congenital Disabilities (Civil Liability) 1976.