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Remoteness of damage

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  • 1. Damage – Causation in law
    By Kenisha Browning
  • 2. Where there is factual causation, the claimant
    may still fail to win his case, as the damage
    suffered may be too remote. The breach of
    duty may have significant results, but the
    defendant will not be liable for everything that
    can be traced back to the original act. Clearly
    there are some farfetched results that are not
    foreseeable and therefore are not recoverable.
    Causation in Law
  • 3. For example, consider the negligent driving of someone
    who bumped into the back of my car. There are almost
    infinite consequences: the car suffers very minor
    damage ( a broken tail light); I might miss the train; I
    might not get the job, the interview for which I was
    travelling to when the accident occurred; the reason I did
    not get the job was that I was late for the interview; I
    might then be unemployed for many months; I might
    have to sell my car to cover living expenses as I have
    little income ( being unemployed); I might then buy a
    cheap car that has not got modern safety features; I
    might crash that car and be injured, become depressed
    and commit suicide – all because of a minor traffic
    accident. The law has to draw the line and say that some
    events are too remote to be considered to have been
    caused by the negligent act.
  • 4. The test is that the defendant is liable for damage only if it is the
    foreseeable consequence of the breach of duty. The case that this
    Principe stems from is Wagon Mound. In that case, the defendant
    spilt a quantity of oil whilst refuelling another ship. The oil spread
    over the water to the claimant’s wharf, which was some distance
    away. The claimant was carrying out repair work to a ship. This
    involved welding. Molten metal ( part of the welding) from the
    claimant’s wharf fell on floating cotton waste which smouldered
    and then ignited the oil on the water. The claimant’s wharf was
    severely damaged by fire. The defendants did not know and could
    not reasonably have been expected to know that the oil could be
    set alight when spread on water.
    Wagon Mound No.1 (1961)
  • 5. They had made enquiries about the possibility
    of fire as soon as the oil was noticed and
    suspended welding whilst the situation was
    checked. They were told that it was safe to
    continue and took precautions to stop
    flammable waste falling into the water. Despite
    this, the fire started. The court decided that the
    damage by the oil was foreseeable but the
    damage by the fire was too remote and was not
    foreseeable.
    Wagon Mound No.1 (1961)
  • 6. Remoteness of damage – the kind of damage must be reasonably foreseeable
    The principle here is that as long as the type of damage is
    foreseeable, it does not matter that the form it takes is
    unusual. A classic example of this is Bradford V Robinson
    Rentals (1967). The claimant was required by his employer
    to take an old van from Exeter to Bedford and collect a new
    one. The weather was very cold and there was advice not to
    travel unless it was necessary. The vans had no heater, and
    the windscreen kept freezing over, so Bradford had to drive
    with the window open. The old van’s radiator leaked and had
    to be topped up regularly. Bradford suffered frostbite. It was
    foreseeable that the would suffer some cold-related injury,
    so the defendants were liable for his frostbite even though
    that is very unusual. The reason for the claimant succeeding is
    that frostbite is merely an extreme form of injury from being
    cold.
  • 7. Similarly, in Hughes V Lord Advocate (1963) the
    claimant succeeded. Two boys took a paraffin
    warning lamp down an unattended open manhole.
    On emerging from the hole, one of the boys
    knocked the lamp back into the hole, causing an
    explosion, and suffered sever burns. Since the risk
    of injury by burning was foreseeable, this
    extremely unlikely form of burning meant that
    there was factual and legal causation and the
    boys’ claim succeeded. This is another example of
    case law helping develop safety standards, as this
    method of warning is no longer used.
    Remoteness of damage – the kind of damage must be reasonably foreseeable
  • 8. However, in Doughty V Turner Asbestos (1964),
    the claimant was burned when an asbestos lit was
    knocked into a vat of molten metal; the lid slid into
    the liquid with no noticeable effect for a few
    minutes. However, a chemical reaction then caused
    a violent eruption that scientific knowledge at the
    time did not expect to happen. It could be
    foreseen that knocking things into the liquid might
    cause a splash of molten metal, but this was an
    event of a wholly different type from that which
    could have been foreseen. Therefore, the claim failed
    as the result was not reasonably foreseeable.
    Remoteness of damage – the kind of damage must be reasonably foreseeable
  • 9. This is similar to the concept in criminal law. A
    person’s liability in negligence is not extinguished or
    lessened because the claimant had a pre-existing
    condition that made the injuries worse. A case that
    illustrates the principle is Smith V Leech Brain (1962).
    In that case, the claimant suffered a very minor splash
    by molten metal that caused a burn on his face. The
    burn triggered his pre-existing cancerous condition,
    and the claimant developed cancer. Some minor injury
    at lease was foreseeable. His extreme reaction was a
    result of his condition and as the principle is that you
    take a person as you find them, the claim succeeded.
    Remoteness of damage – take your victim as you find him.
  • 10. In Gabriel V Kirklees Metropolitan Council
    (2004), the claimant was six years old. He was
    walking past a building site owned by the local
    council in Huddersfield, when he was hit in the
    eye by mud thrown by children playing on the
    site. The site was not fenced at that time. It
    was decided that the correct way to decide
    whether the council were liable in negligence
    involved the following tests:
    Remoteness of damage – a recent example of how a judge should apply the principle of reasonably Foreseeability.
  • 11. Whether it was reasonably foreseeable that children would go onto the construction site.
    Whether, whilst on the construction site, it was reasonably foreseeable that the children would play there.
    Whether it was reasonably foreseeable that, in playing on the site, they would throw whatever came to hand.
    Whether in playing with material on site it was reasonably foreseeable that they might cause injury to those passing by on the pavement,
  • 12. Damage caused by the defendant's breach has
    two principles that equate to factual and legal
    causation. Factual causation is the ‘but for’
    test. Legal causation in the idea of remoteness
    of damage, which has a test of reasonably
    Foreseeability.
    Conclusion