Negligence-Remoteness PDF

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Lecture 4 notes on remoteness (negligence)...

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Remoteness The Test for Remoteness

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The Thin Skull Rule

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In order to be recoverable, the damage suffered by the C must not be too remote, i.e. the consequences of the D’s actions must not have been so far removed that they were unforeseeable.

The Test for Remoteness The earlier test for remoteness was set out in the 1921 case of Re Polemis Re Polemis and Furness, Withy & Co Ltd Facts: a plank was dropped into the hold of a ship due to an employee’s negligence. The plank caused a spark which ignited fuel vapour in the hold, resulting in an explosion and the destruction of the ship/ Held: the Court of Appeal said the defendants are liable for all the damage that was a direct result of the negligent act, even though those consequences were not a foreseeable result of the dropping of the plank. However, this decision was seen as too strict, and a different approach was followed in the later case of The Wagon Mound (No.1) i n 1961 Overseas Tankship v Morts Dock & Engineering (The Wagon Mound) (No.1) Facts: The Wagon Mound leaked fuel near a wharf in Sydney Harbour. Sparks from nearby welding works ignited the oil and the resulting fire destroyed the wharf, together with several boats. Held: The Privy Council overruled Re  Polemis, f avouring the ‘reasonable foreseeability test’: the c can recover for all damage suffered that is a reasonably foreseeable consequence of the breach. If the loss is reasonably foreseeable, then it is not too remote and will be recoverable.

The Thin Skull Rule If the type of injury is foreseeable, but the extent of the injury is due to a particular characteristic of the claimant, the D remains liable for the entire loss. The D must take his victim as he finds him, meaning the the D cannot avoid liability simply because the damage would have been less severe had it not been for the C’s particular susceptibility to harm. This is also known as the ‘egg-shell skull rule’. Smith v Leech Brain Co Ltd Facts: The C suffered a severe burn to his lip from molten metal whilst at work. This caused existing pre-cancerous cells to develop into cancer, ultimately leading to the claimant’s death.

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Held: The D could not escape liability for the effects of the cancer. The D was liable for the full extent of the damage, even though death was not a foreseeable consequence of the burn. Lord Parker CJ stated that ‘it has always been the law of this country that the tortfeasor takes his victim as he finds him’ Another example of this rule can be seen in Robinson v Post Office, i n which the plaintiff suffered a severe allergic reaction to an anti-tetanus injection after sustaining a fall at work. His employer was liable not only for the damage caused by the original injury, but also for the consequences of the treatment, even though these were unforeseeable The ‘thin skull rule’ has also been held to apply to psychiatric injury (Brice v Brown) The rule also applies where a claimant’s lack of money causes them to incur increased costs (so-called “impecunious claimants”). This has been termed the ‘thin-wallet rule’ Lagden v O’Connor Facts: the C was forced to hire a car on credit after the D hit his car. The car hire was more expensive because the C could not afford to pay in advance Held: the D was liable for the full costs of the car hire, even though the costs were increased by the claimant’s inability to pay in advance. The courts may be reluctant to allow additional claims arising from impecuniosity. In Nautical Challenge Ltd v Evergreen Marine (UK) t he C alleged that a long delay in arranging to carry out repairs to their vessel, damaged by the negligence of the D, was a result of their impecuniosity and sought to rely on Lagden. I t was argued that Lagden s hould only apply where additional losses for impecuniosity were reasonably foreseeable. Baker J did not rule on that approach but refused to allow the additional claims on the basis that the C had unnecessarily delayed in finding a solution to arranging repairs for which they could not afford to pay

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