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Remoteness of damage
 

Remoteness of damage

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    Remoteness of damage Remoteness of damage Presentation Transcript

    • Damage – Causation in law
      By Kenisha Browning
    • 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
    • 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.
    • 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)
    • 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)
    • 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.
    • 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
    • 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
    • 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.
    • 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.
    • 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,
    • 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