Learning Outcomes
This article explains the principle of remoteness of damage in the tort of negligence. It clarifies that while the type of harm must be reasonably foreseeable, the extent of that harm does not need to be. After reading this article, you should understand the 'reasonable foreseeability' test for remoteness, the 'egg-shell skull' rule, and how these principles determine the scope of a defendant's liability for damages in negligence claims relevant to SQE1 assessments.
SQE1 Syllabus
For SQE1, you need to understand how the rules on remoteness of damage operate to limit the extent of a defendant's liability in negligence. This involves applying the principles established in case law to specific factual scenarios. Your revision should focus on:
- The general principle of remoteness of damage in negligence.
- The requirement that the type of harm must be reasonably foreseeable.
- The rule that the extent of the harm does not need to be reasonably foreseeable.
- The 'egg-shell skull' rule and its application.
- Distinguishing remoteness from factual and legal causation.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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In negligence, what is the primary test used to determine if damage suffered by a claimant is too remote?
- The 'but for' test.
- The direct consequence test.
- The reasonable foreseeability test.
- The balance of probabilities test.
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Which rule states that a defendant must take their victim as they find them, including any pre-existing vulnerabilities?
- The thin skull rule.
- The neighbour principle.
- The Caparo test.
- Res ipsa loquitur.
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True or False: If the type of injury suffered by a claimant was reasonably foreseeable, the defendant will not be liable if the severity (extent) of the injury was unforeseeable.
Introduction
Once a claimant has established that the defendant owed them a duty of care, breached that duty, and that the breach caused damage (factual causation), there is a further hurdle: legal causation, or remoteness of damage. This principle acts as a control mechanism, limiting the defendant's liability to damage that is not considered too 'remote' a consequence of the breach. The fundamental test for remoteness in negligence centres on reasonable foreseeability. This article explores this test, focusing particularly on the key distinction between the foreseeability of the type of harm versus the extent of harm.
The Test for Remoteness: Reasonable Foreseeability
The modern test for remoteness of damage in negligence was established in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)). This case moved away from the earlier 'direct consequence' test (from Re Polemis) and established that a defendant is liable only for damage of a kind or type that was reasonably foreseeable at the time of the breach.
Key Term: Remoteness of Damage A legal principle in tort law that limits a defendant's liability to those consequences of their negligent act that are not too far removed or legally disconnected from the breach of duty.
Key Term: Foreseeability The standard used to determine remoteness, asking whether the damage suffered was of a kind that a reasonable person in the defendant’s position ought to have foreseen as a possible consequence of their negligent act or omission.
Type vs Extent of Harm
A key refinement of the foreseeability test is that only the type of harm needs to be foreseeable, not the extent or severity of that harm. If the type of damage is reasonably foreseeable, the defendant is liable for the full extent of that damage, even if the magnitude of the loss was far greater than anyone could have anticipated.
Key Term: Type of Harm The general nature or category of the injury or damage suffered (e.g., physical injury by burning, property damage by impact, financial loss from property damage).
The 'Egg-Shell Skull' Rule
This principle is a direct application of the rule that the extent of harm need not be foreseeable. It provides that a defendant must 'take their victim as they find them'. If a claimant has a pre-existing vulnerability or condition (like an 'egg-shell skull') that makes them suffer greater injury than a person of ordinary fortitude would have suffered from the same impact, the defendant is liable for the full extent of the claimant's actual injuries, provided the initial type of injury was foreseeable.
Key Term: Egg-Shell Skull Rule The principle that a defendant is liable for the full extent of the harm suffered by a claimant, even if the claimant's pre-existing vulnerability makes the harm more severe than would reasonably be expected. Also known as the 'thin skull' rule.
Worked Example 1.1
Scenario: David negligently knocks Ben off his bicycle in a minor collision. A reasonable person would foresee minor bruising as a result. However, Ben suffers from haemophilia (a condition preventing blood from clotting properly) and sustains severe internal bleeding and requires extensive treatment.
Question: Is David liable for the full extent of Ben's injuries, including those exacerbated by haemophilia?
Answer: Yes. Physical injury (bruising/impact injury) was a foreseeable type of harm from the collision. David must take Ben as he finds him, including the pre-existing condition of haemophilia. Therefore, David is liable for the full extent of Ben's injuries, even though the severity was unforeseeable due to the haemophilia.
Manner of Harm
Similarly, the precise manner in which the foreseeable type of harm occurs does not need to be foreseeable. If the defendant's breach creates a risk of a certain type of injury, and that type of injury occurs, the defendant is liable even if the sequence of events leading to the injury was bizarre or unpredictable.
Worked Example 1.2
Scenario: Workers employed by BuildCo negligently leave an open manhole unattended, surrounded by paraffin lamps. A child enters the site, accidentally knocks a lamp into the manhole, causing an unforeseeable explosion and severe burns to the child.
Question: Is BuildCo liable for the child's burn injuries?
Answer: Yes. Leaving unattended paraffin lamps near an open manhole created a foreseeable risk of injury by burning. Although the manner in which the burns occurred (via explosion) was unforeseeable, the type of harm (burns) was foreseeable. BuildCo is therefore liable for the full extent of the burn injuries.
Exam Warning
A common mistake is to argue that because the extent of the damage or the exact way it happened was unforeseeable, the damage is too remote. Remember the key distinction: was the type of damage reasonably foreseeable? If yes, the defendant is generally liable for the full consequences, irrespective of the unforeseeable extent or manner.
Revision Tip
Remoteness is the final element in establishing a negligence claim, applied after duty, breach, and factual causation have been proven. Ensure you distinguish it clearly from factual causation (the 'but for' test). Remoteness asks whether the law should attribute responsibility for the factually caused harm, based on foreseeability.
Key Point Checklist
This article has covered the following key knowledge points:
- Remoteness of damage acts as a legal limit on the consequences for which a negligent defendant is liable.
- The primary test for remoteness in negligence is reasonable foreseeability (The Wagon Mound (No 1)).
- The defendant is liable only for damage of a type that was reasonably foreseeable at the time of the breach.
- The extent or severity of the foreseeable type of damage does not need to be foreseeable.
- The manner in which the foreseeable type of damage occurs does not need to be foreseeable (Hughes v Lord Advocate principle).
- The 'egg-shell skull' rule means defendants must take their victims as they find them, making them liable for the full extent of injuries even if exacerbated by a pre-existing vulnerability.
Key Terms and Concepts
- Remoteness of Damage
- Foreseeability
- Type of Harm
- Egg-Shell Skull Rule
