Remoteness of Damages in Common Law: A Case Analysis

This case analysis discusses the principles of common law related to the damages that may be claimed by Cliff and Mary for the loss suffered by them and the defense that may be available to Susan. It also explains the concept of remoteness of damages and its application in the present case.

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Executive summary: Abstract: this case is related with the damages that may be claimed by
Cliff and Mary for the loss suffered by them. In order to deal with this question, the principles of
common law are to be applied and legislation should not be applied. Therefore advise needs to
be given regarding the merits of the claim brought by Cliff and Mary, as well as the remedies
and the defense that may be available to Susan.

Table of Contents
Contents
Issue............................................................................................................................................................2
Rule.............................................................................................................................................................2
Factual causation.....................................................................................................................................3
All or nothing approach...........................................................................................................................3
Application..................................................................................................................................................7
Conclusion...................................................................................................................................................7
References...................................................................................................................................................8

Issue: The issue that is present in this version is if Cliff and Mary can claim damages from
Susan and if any defense is available to Susan in this regard.
Rule: In the present context, the term remoteness is related with the lawful test of causation that
is employed while deciding the kinds of laws that has been suffered as a result of breach of
contract or a duty that may be compensated by awarding damages. It needs to be noted in this
regard that legal causation is dissimilar from factual causation. The reason is that the question
arises in this case if the damages were the result of breach of contract or breach of duty.
Therefore, when factual causation has been proved, the question needs to be asked if the law is
ready to attribute the damage to particular breach, regardless of the factual connection. On the
other hand, the damage that is too remote cannot be recovered even if a factual link is present
among the breach of duty and loss.
In case of certain types of torts, particularly negligence and nuisance, the test related with
remoteness of damages is it the type of damage that has been undergone by the other party can
be reasonably foreseen by the defendant when the breach of duty took place. This was stated by
the court in Overseas Tankship v Morts Dock, 1961). The law provides that the defendant will be
held liable regarding any type of damage that can be reasonably foreseen as liable to occur even
in the most odd case unless the risk is so insignificant that any reasonable person would be
justified under the entire circumstances of the case to neglect it (Heron II, 1969). However, it
needs to be noted in this regard that the type of damage is reasonably foreseeable and in such
cases it is not significant if the manner of infliction or the extent of damages would not be
foreseen (Hugues v Lord Advocate [1963] AC 837 and Vacwell Engineering v BDH Chemicals
Ltd., 1971). After the decision given by the court in Banque Bruxelles v Eagle 1996), it appears

that the traditional principles related with remoteness and causation have been superseded by the
need to decide if the damage lies within the extent of the liability of the defendant.
In this way, the basic rule applicable in this regard is that the damage undergone by the claimant
should be caused by the conduct of the defendant.
Factual causation: under the tort law, but for test is used for the purpose of establishing a
factual link between defendant’s conduct and injuries suffered by the plaintiff. Therefore, in
other words, the question that needs to be asked in this regard is if "but for the actions of the
defendant, would the harm suffered by the claimant, taken place?' In case the answer to this
question is informative, then causation cannot be revealed. In Cork v Kirby MacLean Ltd.
(1952), there was a relatively modern description of this test. The Court has stated that in case
the damages would not have taken place but for a particular fault, then such fault can be
described as the cause behind the damage. On the other hand, if the harm would have taken
place, irrespective of the fault, then the fault cannot be described as the cause of damages.
Similarly, the court had stated in Barnett v Chelsea (1956) that due to the reason that the injury
to the claimant would have taken place. Irrespective of the conduct of the defendant, there was
no factual causation.
All or nothing approach: the matters related with coalition have to be decided on the
balance of probabilities. As the burden of proof lies with the claimant, the onus is present on the
claimant to argue that if the defendant would not have acted negligently, the harm caused to the
claimant would not have taken place. Therefore if the court finds that 55% chances are present
that the harm suffered by the claimant was caused as a result of the conduct of the defendant, the
court is going to hold back the defendant has to be held completely liable for the harm. However,
this approach has been considered as problematic. The reason is that essentially the courts are

considering the defendants as being 100% cause of the injuries suffered by the claimant, while
the fact is that it is also possible that such injuries would have taken place irrespective of the
conduct of the defendant. Therefore, the all or nothing approach may be considered as
problematic while dealing with 'lost chance' cases.
Hence, remoteness can be described as the mechanism that is used for limiting the ability of the
printed to recover damages to only the damages that can be reasonably foreseen result of the
negligent act. Under that the defendant cannot be held liable for the damages that are too remote
(falling beyond the scope of liability) even if the negligence of the defendant had caused them.
Therefore the desk for remoteness can be described as follows: Damages will be considered as
too remote when the damage suffered by the claimant was not reasonably foreseeable
consequence of the act.
Damage is not reasonably foreseeable only if it was considered to be physically impossible or so
farfetched that it would be totally disregarded by any reasonable person.
Only the general type of damages should be foreseeable, not the manner in which it takes place
for its extent.
The eggshell skull rule is still applicable.
This means that the defendant will be held responsible for any subsequent injuries that are
directly caused as a result of the initial injury as a result of the fragility or state of the victim.
It is not necessary that the subsequent injuries should be reasonably foreseeable.
When the above-mentioned requirements are satisfied by the damages and they are not
considered as too remote, such damages can be recovered by the plaintiff. On the other hand, if

the damages are considered as too remote, such damages cannot be recovered. In the Civil
Liability Act, 2002, remoteness has been described as the scope of liability.
Type of injury and the manner it takes place: it was established by the court in Hughes v Lord
Advocate, that it is not material is the actual harm was foreseeable or not, so long as the type of
harm was. As a result, if it was reasonably foreseeable that a person may be burnt as a result of
the negligence of the defendant, it is immaterial if the burns have taken place in an unforeseeable
set of events or if the burns were more severe than generally expectable. In Jolley v Sutton
London Borough Council (2000), this rule was further strengthened. At the same time, this case
also reaffirms the earlier rulings. In this case, a kid was making efforts to fix an abandoned boat.
The boat collapsed on the child and he suffered injuries. The court noted that according to the
present law, unless the injury was reasonably foreseeable, it is beyond the scope of duty or can
be described as too remote. However, the court noted that what should be reasonably foreseeable
is not the exact injury that has taken place, but the injury of particular description. While
deciding reasonable foreseeability, certain considerations are present, for example, if avoiding
the risk would have resulted in undue cost for the defendant or if it would have required the
defendant to abstain from something that was otherwise a reasonable activity. If this is not the
case, as was in the present case, then the defendant can be held responsible for the
materialization of even small risks of a different nature. The court also stated that special care
needs to be taken in case of children. Therefore, in the present case, the general type of risk once
considered as reasonably foreseeable and the court also noted that it would not have caused
anything to the defendant to remove such risk. Under these circumstances, the defendant was
considered as liable for injuries suffered by the kid.

According to the eggshell-skull rule, the victim has to be taken as they were found. Therefore,
this means that a person can be held responsible for the damage caused by such person even in
the victim was extraordinarily fragile and as a result suffered more on unforeseeable damage.
Hence this rule provides that the defendant will be held liable regarding any subsequent injuries
that were directly caused by the initial injury. It is not necessary that the subsequent injuries
should be reasonably foreseeable.
It was decided in Stephenson v Waite Tileman Ltd that this rule is applicable even after the
verdicts delivered in Wagon Mound cases. Even if the broad basis for the rule provides that it
would be unjust to hold the wrongdoer responsible for the damage that could not be reasonably
foreseen, still the rule accepts the position that there are several matters of detail that cannot be
predicted by any person but still, the wrongdoer will be held liable for the same. Therefore, it
needs to be noted that the eggshell-skull is still applicable. Even after the decision given wagon
mound case (No 1). Therefore, in cases where the victim is one the level of a child, the question
of forseeability needs be restricted to the initial injury. At the same time, the eggshell skull rule
still considers the economic, social or the religious attributes of the claimant, due to which the
claimant would have become more susceptible to injury.
In the present case, Benji's compound was unlocked by the kid, Kim, who was aware regarding
the place where Susan kept the keys for the compound. Therefore, Kim unlocked the compound
and Benji came out of the compound. Benji saw Kim's father Cliff. On seeing Benji, Cliff fell
backwards, and at the same time, knocked the gear shift of tractor in drive mode. The result was
that the tractor ran through his house, which shocked her wife, Mary. She dropped a pan of
cooking oil on the cook top. The result was that instantly there was a fire, which resulted in
significant damage to the house. The tractor ran through a chicken coop, and later on, fell in the

swimming pool. Significant damage was caused to the tractor and also to the swimming pool. All
the chickens also escaped and could not be found.
Application: By applying the principles of common law that have been discussed above, it
can be said that in the present case, Susan can be held responsible for the damage caused to Cliff
and Mary. However, a defense is available to Susan. She can claim that the compound where
Benji was kept at the unlocked by the daughter of Cliff and Mary, Kim. Therefore in the present
case, Susan may be sued for the damage caused to the house, the tractor and the swimming pool
as well as the lost chicken. However, Susan can claim in a defense that she had properly locked
Benji, and the compound was opened by Kim. Therefore, it was not reasonably foreseeable for
Susan, that anyone would come and unlock the compound where she kept Benji. Although it was
reasonably foreseeable that if Benji was unlocked, significant damage may be caused but Susan
had kept Benji locked in the compound.
Conclusion: In the present case, Cliff and Mary can sue Susan for the damage caused to their
house, tractor, chicken coop and the swimming pool as well as the loss of chickens and eggs.
They may also sue Susan for mental shock if they can prove it. However, a defense is available
to Susan that she had not unlock the compound where Benji was kept at it was unlocked by their
own daughter, Kim.

References
Banque Bruxelles Lambert v Eagle Star Insurance Co [1996] UKHL 10
Barnett v Chelsea and Kensington Management Committee [1956] AC 613
Cork v Kirby MacLean Ltd [1952] 2 All ER 402
Heron II [1969] 1 AC 350
Hugues v Lord Advocate [1963] AC 837 and Vacwell Engineering Co Ltd v BDH Chemicals
Ltd [1971] 1 QB 88
Jolley v Sutton [2000] 1 WLR 1082
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1)
[1961] AC 388
Stephenson v Waite Tileman Limited [1974] 1 NZLR 152