Learning Outcomes
After reading this article, you will be able to explain the principle of remoteness of damage in negligence, apply the test of reasonable foreseeability, distinguish between types of harm, and understand the effect of the egg-shell skull rule. You will be able to identify when damage is too remote to be recoverable and analyse how intervening acts may affect liability, all within the context of SQE1-style problem scenarios.
SQE1 Syllabus
For SQE1, you are required to understand the rules on remoteness of damage in negligence and how they limit a defendant’s liability. In your revision, focus on:
- the test of reasonable foreseeability for remoteness of damage
- the distinction between the type or kind of harm and the manner or extent of harm
- the application of the egg-shell skull rule
- the effect of intervening acts (novus actus interveniens) on liability
- how to apply these principles to SQE1-style MCQs and client-based scenarios
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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What is the main test for remoteness of damage in negligence?
- Directness
- Reasonable foreseeability
- Probability of harm
- Strict liability
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True or false? If the type of harm is foreseeable, a defendant is liable for the full extent of the harm, even if the extent was not foreseeable.
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Which rule states that a defendant must take the claimant as they find them, including pre-existing vulnerabilities?
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In which case was the reasonable foreseeability test for remoteness established?
Introduction
Remoteness of damage is a key concept in negligence that limits a defendant’s liability to losses that are not too far removed from their breach of duty. The law draws a line so that only losses that were reasonably foreseeable at the time of the defendant’s negligent act are recoverable. This ensures that liability is fair and does not extend to every possible consequence of negligence.
Key Term: remoteness of damage
Remoteness of damage refers to the legal rule that a defendant is only liable for losses that are not too remote from their breach of duty—specifically, losses that were reasonably foreseeable at the time of the breach.
The Reasonable Foreseeability Test
The leading test for remoteness of damage is whether the type or kind of harm suffered by the claimant was reasonably foreseeable by the defendant at the time of the negligent act. This is an objective test: would a reasonable person in the defendant’s position have foreseen the risk of that type of harm?
Key Term: reasonable foreseeability
Reasonable foreseeability means that a reasonable person in the defendant’s position would have foreseen the risk of the type of harm that actually occurred.
The test was established in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) [1961]. The court held that a defendant is only liable for damage of a kind that was reasonably foreseeable, not for every consequence of their negligence.
Worked Example 1.1
A factory negligently allows oil to spill into a harbour. Welding work on a nearby wharf causes the oil to ignite, resulting in a fire that damages several boats. Is the factory liable for the fire damage?
Answer: The factory is only liable if fire damage was a reasonably foreseeable consequence of the oil spill. If fire was not a foreseeable risk, the damage is too remote and the factory is not liable.
Type or Kind of Harm
It is the type or kind of harm that must be foreseeable, not the precise manner in which it occurs or its extent. If the type of harm is foreseeable, the defendant is liable for the full extent, even if the way it happened or the seriousness was unexpected.
Key Term: type of harm
The type of harm refers to the general category of injury or damage (e.g., burns, property damage) rather than the specific details of how it occurred.
Worked Example 1.2
A child is burned when a lamp is knocked into a manhole, causing an explosion. The defendant had left the manhole open with lamps as a warning. Is the defendant liable for the burns?
Answer: Yes. Burns are a foreseeable type of harm from leaving lamps unattended, even if the explosion was not foreseen. The precise way the injury occurred does not matter.
The Egg-Shell Skull Rule
If the type of harm is foreseeable, the defendant is liable for the full extent of the harm, even if the claimant had a pre-existing vulnerability that made the injury worse. This is known as the egg-shell skull rule.
Key Term: egg-shell skull rule
The egg-shell skull rule means that a defendant must take the claimant as they find them and is liable for the full extent of the harm, even if the claimant’s condition made the injury more severe than expected.
Worked Example 1.3
A driver negligently causes a minor collision. The claimant suffers serious fractures because of a rare bone condition. Is the driver liable for all the injuries?
Answer: Yes. Bone fractures are a foreseeable type of harm in a car accident. The driver is liable for the full extent of the injuries, even though the claimant’s condition made them worse.
Intervening Acts (Novus Actus Interveniens)
Sometimes, an event occurs after the defendant’s negligence that contributes to the claimant’s loss. If this event is sufficiently independent and unforeseeable, it may break the chain of causation, making the original defendant not liable for the further loss.
Key Term: novus actus interveniens
A novus actus interveniens is a new, independent act or event that breaks the chain of causation between the defendant’s breach and the claimant’s loss, so the defendant is not liable for the further loss.
Worked Example 1.4
A builder negligently stores chemicals. A fire breaks out due to this negligence. While firefighters are tackling the fire, an unexpected earthquake causes the chemicals to spill into a river, polluting it. Is the builder liable for the river pollution?
Answer: The earthquake is an unforeseeable, independent event. It may be a novus actus interveniens, breaking the chain of causation. The builder is not liable for the pollution caused by the earthquake.
Application to SQE1 Problem Scenarios
When answering SQE1 questions, always ask:
- Was the type of harm reasonably foreseeable at the time of the breach?
- Did the claimant have a pre-existing condition that made the harm worse?
- Did any intervening acts occur, and were they foreseeable or independent?
Exam Warning
A common mistake is to focus on the exact way the harm occurred or its extent, rather than the type of harm. For SQE1, remember that if the type of harm is foreseeable, the defendant is liable for all its consequences.
Revision Tip
When revising, practise identifying the type of harm in different scenarios and applying the reasonable foreseeability test. Use past SQE1 questions to check your understanding.
Key Point Checklist
This article has covered the following key knowledge points:
- Remoteness of damage limits liability to losses that are not too remote from the breach.
- The main test is whether the type of harm was reasonably foreseeable at the time of the breach.
- The defendant is liable for the full extent of foreseeable harm, even if the extent or manner was not foreseeable.
- The egg-shell skull rule means the defendant must take the claimant as they find them.
- An unforeseeable intervening act (novus actus interveniens) may break the chain of causation and end liability.
Key Terms and Concepts
- remoteness of damage
- reasonable foreseeability
- type of harm
- egg-shell skull rule
- novus actus interveniens
