Learning Outcomes
This article explores the rules on remoteness of damage in the tort of negligence. It explains the test established in The Wagon Mound (No 1) and the key distinction between the foreseeability of the type of harm and the foreseeability of the exact manner in which the harm occurs. By the end of this article, you should be able to apply these legal principles to determine whether damage suffered by a claimant is too remote to be recoverable in SQE1-style multiple-choice questions.
SQE1 Syllabus
For SQE1, you are required to understand how the concept of remoteness limits the extent of a defendant's liability in negligence. Your understanding should include the key principles governing whether damage is considered too remote a consequence of a breach of duty.
As you revise this topic, focus on:
- The general test for remoteness established in The Wagon Mound (No 1).
- The principle that only the type of harm needs to be reasonably foreseeable, not the exact manner of its occurrence.
- The operation of the ‘eggshell skull’ rule.
- Applying these rules to factual scenarios to determine the recoverability of damages.
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 primary test for determining remoteness of damage in negligence?
- Direct consequence test
- Reasonable foreseeability test
- ‘But for’ test
- Material contribution test
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Which case established the current test for remoteness of damage?
- Donoghue v Stevenson
- Caparo Industries plc v Dickman
- The Wagon Mound (No 1)
- Hughes v Lord Advocate
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True or false? For damage not to be too remote, the defendant must have been able to foresee the precise way in which the injury occurred.
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What is the name of the rule which states that a defendant must take their victim as they find them?
Introduction
Once a claimant has established that the defendant owed them a duty of care, breached that duty, and that the breach factually caused the claimant's loss (causation in fact), there is one final hurdle in establishing a successful negligence claim: legal causation, often referred to as remoteness of damage. This principle acts as a control mechanism, limiting the extent of the consequences for which a defendant can be held liable. Even if the defendant's breach factually caused the claimant's loss, the claim may still fail if the damage is deemed too remote in law.
The Test for Remoteness: Reasonable Foreseeability
The fundamental test for determining whether damage is too remote was established by the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound) (No 1) [1961] AC 388. This case overruled the previous ‘direct consequence’ test from Re Polemis [1921] 3 KB 560.
Key Term: Remoteness of Damage
A legal principle in negligence that limits a defendant's liability to only those consequences of their breach of duty that are reasonably foreseeable.
The test established in The Wagon Mound (No 1) asks whether the kind or type of damage suffered by the claimant was reasonably foreseeable at the time the defendant breached their duty of care. If the type of damage was reasonably foreseeable, it is not too remote and is recoverable. If it was not reasonably foreseeable, it is too remote, and the defendant is not liable for it.
Worked Example 1.1
David negligently crashes his car into Paula’s garden wall, causing minor damage. Unforeseeably, the impact also causes a rare, antique vase inside Paula’s house, located near the wall, to fall and smash. Is the damage to the vase too remote?
Answer: Probably yes. While damage to the wall (property damage) was a foreseeable type of harm from the car crash, the damage to the vase inside the house, caused in this specific way, might be considered a different, unforeseeable type of harm or consequence arising from the impact. The defendant need only foresee the type of damage (e.g., property damage from impact), but the specific damage to the vase might be deemed too indirect or unforeseeable in kind.
Type of Harm vs. Manner of Occurrence
An important aspect of the remoteness test is the distinction between the foreseeability of the type of harm and the foreseeability of the exact manner in which that harm occurred. The law requires only that the type of harm be foreseeable. The precise sequence of events leading to the harm does not need to be foreseen.
The leading case illustrating this principle is Hughes v Lord Advocate [1963] AC 837.
Worked Example 1.2
Workmen employed by the defendant left an open manhole unattended, covered by a tent and surrounded by paraffin lamps. Two boys entered the tent, took a lamp, and went down the manhole. One boy knocked the lamp into the hole, causing a violent explosion and severe burns. The defendants argued the explosion was unforeseeable. Is the damage too remote?
Answer: No. The House of Lords held that while the explosion itself (the manner of occurrence) was not foreseeable, the type of harm – injury by burning from contact with paraffin lamps – was reasonably foreseeable. Therefore, the damage was not too remote.
This principle means that as long as the general category of injury was foreseeable (e.g., burns, impact injuries, property damage), the defendant remains liable even if the injury happened in a bizarre or unexpected way.
Revision Tip
When analysing a problem question, identify the type of harm suffered (e.g., burns, fracture, psychiatric illness, property damage). Then ask if that type of harm was a reasonably foreseeable consequence of the defendant’s specific breach. Do not get sidetracked by whether the exact sequence of events was foreseeable.
The Eggshell Skull Rule
The principle of remoteness is modified by the ‘eggshell skull’ or ‘thin skull’ rule. This long-established rule states that a defendant must ‘take their victim as they find them’.
Key Term: Eggshell Skull Rule
A principle stating that if a particular type of injury to the claimant was reasonably foreseeable, the defendant is liable for the full extent of that injury, even if its severity is greater than expected due to the claimant's pre-existing vulnerability or weakness.
This means that if the type of injury suffered by the claimant was foreseeable, the defendant is liable for the full extent of that injury, even if the extent was unforeseeable because the claimant had a particular susceptibility or pre-existing condition.
The key case is Smith v Leech Brain & Co Ltd [1962] 2 QB 405.
Worked Example 1.3
An employee suffered a burn on his lip due to his employer's negligence. The employee had a pre-existing pre-cancerous condition in his lip tissue. The burn triggered this condition, causing cancer from which the employee died. Death from cancer was not a foreseeable consequence of the minor burn. Is the employer liable for the death?
Answer: Yes. The court held that injury by burning (the type of harm) was foreseeable. Applying the eggshell skull rule, the employer was liable for the full consequence of that burn, including the resulting cancer and death, even though the extent of the harm was unforeseeable due to the claimant's pre-existing condition.
The eggshell skull rule applies to physical vulnerabilities, psychiatric conditions, and even, arguably, the claimant's impecuniosity (lack of funds), which might exacerbate their losses (see Lagden v O’Connor [2004] 1 AC 1067).
Exam Warning
Do not confuse the eggshell skull rule with the initial foreseeability test. The eggshell skull rule applies only after it has been established that the type of initial injury was reasonably foreseeable. It relates to the extent of the harm, not the kind of harm. If the initial type of injury was not foreseeable at all, the defendant is not liable, and the eggshell skull rule is irrelevant.
Key Point Checklist
This article has covered the following key knowledge points:
- Remoteness of damage (legal causation) acts as a limit on a defendant's liability in negligence.
- The test for remoteness is reasonable foreseeability of the type of harm, established in The Wagon Mound (No 1).
- It is not necessary for the defendant to foresee the exact manner in which the harm occurs, only the general type (Hughes v Lord Advocate).
- The defendant must take their victim as they find them (the 'eggshell skull' rule). If the type of harm is foreseeable, the defendant is liable for the full extent, even if exacerbated by the claimant's vulnerability (Smith v Leech Brain & Co Ltd).
Key Terms and Concepts
- Remoteness of Damage
- Eggshell Skull Rule
