LWZ116 Lecture 7: Lecture-7-Notes
Lecture 7
Torts
REMOTENESS
if the consequence of the action is too remote, too far removed from the negligent act, then there will be
no liability. This is also known as proximate cause or causation in law. The issue here is the scope or the
extent to which the defendant will be liable for their negligent conduct.
A defendant is not liable for every conceivable consequence of his behaviour. Lines have to be drawn.’
Carpenter v Beck (1997) 43 CCLT (2d) 220, 222.
At the point of remoteness we have already established that the defendant does owe a duty of care, the
duty has been breached causing some harm to the plaintiff, but nevertheless, but this particular harm is
too extreme or abstract, that it is not appropriate to hold the defendant liable for that. It requires
compelling reasons to dismiss the Plaintiff’s claim. For e.g. I as an employee forget to take the toast out of
the toaster, which starts a fire and burns down the stock exchange and destroys all the data worth billions
of dollars. Remoteness makes sure that there is some limit, between the liability and fault.
TEST FOR REMOTENESS
A variety of concepts might be used to perform this task. Liability could be restricted to damage that is
•a natural,
•direct,
•probable,
•possible,
•immediate,
•foreseeable, or
•close consequence of the negligent act.
SEE CASES
Palsgaf case
Wagon Mount 2 case
DIRECT CONSEQUENCES RULE
The directness rule held that there should be liability for all the direct consequences of the act: Re Polemis
and Furness, Withy & Co Ltd [1921] 3 KB 560 SEE FACTS
The ‘Reasonable Foreseeability’ Test - The above test was abandoned in the case of The Wagon Mound
(No 1) [1961] AC 388: SEE FACTS
‘The raison d’etre of furnace oil is, of course, that it shall burn, but I find that the defendant did not know
and could not be reasonably expected to have known that it was capable of being set afire when spread on
water.’
The court explicitly held that Polemis ‘should no longer be regarded as good law’ as it:
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Lecture 7
Torts
‘does not seem consonant with current ideals of justice or morality for an act of negligence, however
slight or venial, which results in some trivial foreseeable damage the actor should be liable for all
consequences however unforeseeable and however grave’
A defendant should be labile only for the reasonably foreseeable consequences of its negligence:
•‘For, if it is asked why a man should be responsible for the natural or necessary or probable
consequences of his act … the answer is that it is 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 other words, the essential factor in determining
liability is whether the damage is of such a kind that the reasonable man should have foreseen.
The Wagon Mound (No 1) [1961] AC 388
Understanding ‘Reasonable Foreseeability’ - In understanding this test we must address the role of the
following factors:
Damage must be of a foreseeable kind - damage of that kind must be possible and not probable –
foreseeable that the mechanism of the damage will occur -
1. The Kind of Damage - The remoteness test is only passed if the plaintiff proves that the kind of
damage
suffered by him was foreseeable as a possible outcome of the kind of
carelessness charged against the defendant: Minster Administering
Environmental Planning and Assessment Act 1979 v San Sebastian Pty Ltd
[1983] 2 NSWLR 268. In other words, can carelessness cause this kind of
damage?
CASES too REMOTE:
Doughty v Turner Manufactoring Co Ltd [1964] 1 QB 518: SEE FACTS
Tremain v Pike [1969] 1 WLR 1556: SEE FACTS ‘The kind of damage suffered here was a disease contracted
by contact with rats’ urine. This, in my view, was entirely different in kind from the effect of rat-bit, or food
poisoning by the consumption of food or drink contaminated by rats. I do not accept that all illnesses or
infections arising from an infestation of rats should be regarded as the same kind.’
Jolley v Sutton London Borough Council [2003] 3 All ER 409 SEE FACTS …what must have been foreseen is
not the precise injury which occurred but injury of a given description. The foreseeability is not as to the
particular genus’
2. The Probability/Possibility of Damage: - The Wagon Mound (No 2) SEE FACTS
Thee crucial findings were that:
It was ‘very difficult’ to set furnace oil alight when on water;
That in the officer’s experience it ‘very rarely happened’; and
That it could be regarded as a possibility that would occur ‘only in very exceptional circumstances’.
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Document Summary
Remoteness if the consequence of the action is too remote, too far removed from the negligent act, then there will be no liability. This is also known as proximate cause or causation in law. The issue here is the scope or the extent to which the defendant will be liable for their negligent conduct. A defendant is not liable for every conceivable consequence of his behaviour. Carpenter v beck (1997) 43 cclt (2d) 220, 222. It requires compelling reasons to dismiss the plaintiff"s claim. For e. g. i as an employee forget to take the toast out of the toaster, which starts a fire and burns down the stock exchange and destroys all the data worth billions of dollars. Remoteness makes sure that there is some limit, between the liability and fault. A variety of concepts might be used to perform this task.
