Remoteness of Damage

Even when a dft has been held to owe the ptf a
duty of care, tort law must still determine the
extent of the dtf’s liability. This is the aspect of
“remoteness” in negligence law. This aspect of
legal inquiry, like the question of duty of care, is,
shorn of excessive verbiage, essentially a judicial
mechanism for regulating what Lord Wright
termed “the consequences of consequences.”
A Magic Formula?

Courts and legal scholars have formulated
tests or formulae which can be applied to
solve problems of remoteness. For example,
“cause” and “proximate cause”, have been
used in various cases. These formulas have
been helpful but ultimately, remoteness
questions are determined by the application
of what Klar calls “common sense,
pragmatics, and politics.” Klar, at 333.
A Magic Formula


A careful evaluation and analysis of the case law
strongly suggests that the liability of dft is a result
of a careful balance of the judge’s perception of
the role of tort law in society vis-à-vis the overall
impact of that decision on existing jurisprudence.
Remoteness issues deal with the scope of liability
in reference to the injuries or damage caused to
the ptf by the dft’s negligent behaviour.
Foreseeability and Remoteness


The test of foreseeability is central to the elements
of duty of care, breach of duty and remoteness.
However, these elements often overlap or
coincide.
Whether a ptf is foreseeable or not but there are
different possible injuries arising from the dft’s
negligence, then duty and remoteness issues are
distinct. On the other hand, where a ptf is plainly
foreseeable by virtue of her vulnerability to a type
of injury, duty and remoteness coincide. Palsgraf
Foreseeability and Remoteness

On the former, the English case of Meah v.
McCreamer is illuminating. Ptf’s personality was
changed as a result of a car accident. This
personality disorder led him to sexually assault 2
women. He was jailed for the assaults, and, as
well, sued by his victims. He in turn sued the
driver responsible for the car accident claiming as
damages the judgment awarded against him in the
civil assault suits. Was this too remote? Held: Too
remote. The 2 women might as well sue the driver.
Tests for Remoteness

As many remoteness cases often show, it is not
enough for the ptf to show that the dft breached
her duty of care to the ptf and that an injury
resulted from the breach. It is also imperative that
ptf must show that the injury suffered it not too
remote from the dft’s negligent behavior. The
problems of remoteness may be illuminated by the
facts of, and decision of the court in the case of
Falkenham v. Zwicker.
Falkenham v. Zwicker

As the dft drove in excess of posted speed limit on
an extremely slippery highway, a cat ran onto the
road. Dft braked, swerved and lost control, hitting
ptf/farmer’s fence. The impact sheared off five or
six fence posts and scattered fence staples on the
ground. Several months later, the farmer’s cows
ingested the fence staples. Some of the cows died.
Ptf sued in negligence. Was the dft liable for the
damage done to the ptf?
Remoteness and Logical Cause

The notion of remoteness does not concern itself
with the question of whether the dft’s negligence
is the FACTUAL or LOGICAL cause of the ptf’s
injury: it accepts that as given. Rather, remoteness
delimits the point at which the dft’s negligent
conduct will no longer be considered a LEGAL
cause of the ptf’s injury. All the tests on
“remoteness” require subjective judgment and are
often based on policy.
Re Polemis: The Directness Test

In the famous case of Re Polemis, the
English CA established the principle that
once having proved negligence, a ptf is
entitled to compensation for all damages
“DIRECTLY traceable to the negligent act,
and not due to the operation of independent
causes having no connection with the
negligent act, except that they could not
avoid its results.” Per Scrutton, L.J.,
Re Polemis

Charterers of MV Re Polemis loaded petrol in the
vessel. During the voyage, some of the petrol tins
leaked. As a result, petrol vapor accumulated in
the hold. At the next port, charterers hired
stevedores to relocate the leaking tins from the
upper deck to the lower deck. The stevedores used
planks for this purpose. By the negligence of the
stevedores, a plank fell on one of the tins, ignited
the vapor and as a result, the Re Polemis was
destroyed. The fire was not foreseeable.
Re Polemis

In arriving at their decision, their lordships
rejected the competing idea that a dft is only liable
for the “intended” or “natural and probable”
consequences of a negligent conduct. Similarly, by
adopting the “directness” test, their lordships
rejected the view that the appropriate test was one
of “reasonable foreseeability.” The ratio in Re
Polemis was revisited and rejected in another
famous case, MT Wagon Mound.
MT Wagon Mound #1

Bunker oil was carelessly discharged into the bay
surrounding the Port of Sydney. The oil spread to
the foreshore and wharf where ship repairs were
being conducted by owners of the dock. A spark
from welding operations ignited a rag which was
floating in the water, and this in turn set the oil on
fire. The floating fire on Sydney Port destroyed
ptf’s wharf. Ptf sued the ship’s charterers. At the
lower court, the trial judge found that the dft’s did
not know and could not reasonably be expected
MT Wagon Mound # 1 (Cont’d)

…to have known that oil was capable of being set
on fire when floating on water. It was not denied
that the initial act of discharging bunker oil in the
port was negligent. The damage expected from
such negligence would probably be pollution of
the port and damage to marine life. The question
at the PC was whether the ratio of Re Polemis
would be upheld or rejected. In their judgment, the
PC explicitly rejected Re Polemis. In its stead, the
PC instituted the “reasonable foreseeability” test.
Ratio of Wagon Mound #1

“For it does not seem consonant with
current ideas of justice or morality that for
an act of negligence, however slight or
venial, which results in some trivial
foreseeable damage the actor should be
liable for all consequences however
unforeseeable and however grave, so long
as they can be said to be “direct”.
MT Wagon Mound #1 (Cont’d)

It is a principle of civil liability, subject only
to qualifications which have no present
relevance, that a man must be considered to
be responsible for the probable
consequences of his act. To demand more of
him is too harsh a rule, to demand less is to
ignore that civilized order requires the
observance of a minimum standard of
behaviour.”
The Wagon Mound

While the Wagon Mound’s emphasis on the
injustice and immorality of holding a dft liable for
consequences that could not have been foreseen
and hence unpreventable is admirable, its focus is
a little narrow. It ignores the loss distribution
function of negligence law and gives the short
shrift to the ptf. More importantly, the reasonable
foreseeability test is no clearer than the directness
test of Re Polemis.
Modification of Wagon Mound

Courts began tinkering with Wagon Mound in the
subsequent case of Hughes v. Lord Advocate. The
Post Office employed workmen who took a break
leaving a manhole covered by a small tent with a
paraffin lamp at each corner. One of the 2 boys
aged 8 and 10 took one of these lamps into the
manhole. This caused a chain of events which was
totally unforeseeable. Paraffin escaped from the
lamp, vaporized, and the explosive mixture thus
created was detonated by the lamp.
Hughes v. Lord Advocate

The plaintiff suffered serious burns and
sued the Post Office. In holding the Post
Office liable in negligence, the HOL
reasoned that although the sequence of the
events was nor foreseeable, the type of
injury was. In other words, as long as the
TYPE of injury is reasonably foreseeable,
the test of remoteness is satisfied.
Hughes and Wagon Mound

Did Hughes break with Wagon Mound? While
Hughes did not clearly abandon Wagon Mound, its
reasoning however suggests that Wagon Mound
should not be taken too literally. It would seem
that Hughes has found favour in Canada. For
example, in the Assiniboine case, a 14 year old
drove a snowmobile, ran out of control and
fractured a gas pipe. The gas escaped, entered a
building and exploded. The court held that the
accident was generally foreseeable.
Remoteness After Hughes

It may be said that in the aftermath of
Hughes, merely requiring foreseeability of
the TYPE of damage, rather than the KIND
OF ACCIDENT which produced it, has
diminished Wagon Mound and indeed,
virtually resurrected Re Polemis as the
judicial test for determining remoteness.
Wagon Mound II

Five years after the accident in Wagon Mound at
the Port of Sydney, a strikingly similar accident
resulted in Wagon Mound 2. Ptfs in were the
owners of other vessels damaged by the burning
ship. At the trial court, the judge held that
although reasonable persons would regard the
ignition of oil on water as a possibility, however,
since it was a “remote” possibility, it could not be
considered as a reasonably foreseeable occurrence.
Hence, he dismissed the action on “remoteness.”
Wagon Mound II

On appeal to the PC, the Councilors, per Lord
Reid revisited the ratio in Wagon Mound II and
arrived at the conclusion that although “remote”,
the possibility of a fire was a “real” risk, which a
reasonable person would not have ignored. In the
reasoning of the Council, the risk of fire was a
“serious” one and the steps taken to prevent it fell
short. Consequently, the dft was held negligent.
Undeniably, the ratio is inconsistent with Wagon
Mound I as it virtually resurrected Re Polemis.
The Aftermath of W. Mound II

Judicial inconsistencies on the test for
remoteness clearly demonstrates that at the
end of the day, the question of remoteness,
is indeed an exercise in judicial policymaking. Many questions of remoteness
have not been resolved by an automatic
invocation of “reasonable foreseeability.” In
fairness, courts have often admitted the
policy content of the remoteness question.
Policy in “Remoteness” Question

In Spagnolo’s case: dft negligently failed to
provide security at a car park. A car stolen from
the park was involved in a collision with ptf’s car.
The accident occurred 6 days after the theft. In
determining the remoteness question, Zuber
J.A.stated that “the term reasonably foreseeable’
contains more policy than fact as courts struggle
with the issue of remoteness of damage.” Some
judges have admitted using their “instinctive
feeling” to resolve the question of remoteness.
Factors Influencing Policy

Admitted that policy considerations shape judicial
engagement with “remoteness”, in the interest of
consistency and reasonable degree of
predictability, there are factors that influence the
role of policy in remoteness questions. These
include the foreseeability of the injury, their
probability, their seriousness, the nature and
degree of the dft’s misconduct, the relative
financial strength of the parties, et cetera.
The Talem Qualem Rule

It has always been the law that the dft takes his
victim with all the victim’s qualities (talem
qualem). This is colloquially referred to as the
“Eggshell”” or the “Thin Skull” rule. In Smith v.
Leech Brain, a widow whose husband died of
cancer sued the dft. The deceased had suffered a
burn on his lip caused by a piece of molten metal,
and this injury ultimately led to cancer. The court
reaffirmed the rule that a tortfeasor takes his
victim as he finds him.
The Talem Qualem Rule


Although the deceased’s burn was reasonably
foreseeable, the cancerous development was not.
But the test is not whether the dft could reasonably
have foreseen that a burn would cause cancer and
that the victim would die. The test is whether the
dft could reasonably have foreseen the type of
injury suffered, that is, the burn.
Is the thin-skull rule an exception to Wagon
Mound 1? Or is it consistent with the foresight
principle?
Marconato v. Franklin

A woman, slightly injured in a car accident,
developed symptoms of depression,
hostility, anxiety, tension, hysteria and
paranoia. Her personality changed from a
happy and contented woman to a very
unhappy woman. The court held that a
wrongdoer must take his victim with all
their peculiar susceptibilities and
vulnerabilities.
The Thin Skull Rule

The classic thin skull case often arises
where a ptf’s injury is of the kind that was
foreseeable, but becomes more serious
because of a pre-existing condition. The law
is that although the ptf might have had an
inherent weakness or susceptibility, s/he is
entitled to full compensation for the results
caused by the dft’s negligence.
The “Crumbling Skull” Rule

The talem qualem rule has a variation known as
the “crumbling skull” rule. The latter simply
recognizes that where an asymptomatic and
degenerative condition was inherent in the ptf’s
“original position’, the dft need not put the ptf in a
position better than his or her original position.
The dft is liable for the injuries caused, even if
they are extreme, but need not compensate the ptf
for any debilitating effects of the degenerative
condition which the ptf would have experienced
anyway.
Smith v. Maximovitch

Ptf lost 8 teeth in a collision. Because his
remaining teeth were in poor condition, as a result
of pyorrhea, they were unsuitable to anchor
bridgework and, therefore, all the teeth had to be
extracted and dentures put in. The ptf received
damages for all the teeth, except that they were
evaluated in accordance with their worth at the
time of loss. For a full explanation of Crumbling
Skull rule see Justice Major in Athey v. Leonati.
Malcolm v. Broadhurst

A husband and wife were both injured, physically
and mentally, in a car accident caused by the dft’s
negligence. The husband’s serious injuries led to
his intellectual deterioration. In addition, his
personality changed. He became bad-tempered
and violent. Her husband’s changed behaviour
caused additional nervous symptoms in the wife,
aggravating a pre-existing nervous condition. The
court awarded damages for the aggravated nervous
symptoms.
The Law on Thin Skull

There is merit to the argument that the thin
skull rule gives the short shrift to reasonable
foreseeability. Neither the class or kind nor
the extent of the injury can be reasonably
foreseen in the case of a thin skull victim.
The uncertainty surrounding the extent of
the thin skull rule is demonstrated by the
conflicting rationes decidendi in suicide
cases.
Novus Actus Interveniens

An interveneing act is one that arises after the dft’s
negligent act and either precipitates or worsens the
ptf’s damage or injury. The question that arises is
whether the original wrongdoer is to be held for
loss contributed to by the external force or
whether in the favoured legal terminology, it
“snapped the chain of causation.” Negligence law
has distinguished between culpable and nonculpable acts of third parties.
Novus Actus Interveniens

Tort law makes a distinction between
“natural or logical” later events that act on a
situation already created by the dft and
“unnatural or abnormal” later events that act
on the situation created by the original
wrongdoer.
Non-Culpable Intervention

On the former, the doctrine of novus actus will not
ordinarily clear a dft from further responsibility, if
it can be fairly considered as not an ABNORMAL
incident of the risks created by him. In other
words, if the alleged novus actus is “part of the
ordinary course of things” liability will attach.
Similarly, a dft will not escape liability by the
complications introduced from the operation of
natural forces such as rain, ice, or foul weather.
Non Culpable Intervention

Similarly, normal and reasonable response to the
stimulus of the hazard engendered by the dft’s
original act of negligence will not afford the dft
exoneration. Thus, injuries sustained or worsened
as a result of typical human reaction such as fear
of impending injury to oneself or the desire to
avert harm or to escape an inconvenience, will not
excuse the original wrongdoing by the dft. The
law considers such reactions to be foreseeable to
make the dft answerable for the resulting injury.
Novus Actus Interveniens

In Squibb’s case,a wag threw a lighted firework
into a market whence it was tossed from one stall
to another in order to save the wares until it
eventually exploded in the ptf’s face. The wag was
held liable. As Fleming has submitted, “it makes
no difference, that in hindsight, it would have been
better to leave well alone: a passenger who jumps
from a vehicle out of control may recover for his
broken bones, though he might have remained
unscathed had remained still.”
Novus Actus Interveniens

Similarly, injuries or damage arising from
reasonable rescue attempts are blamed on the dft.
Mistaken judgments made by a rescuer are also
blamed on the dft. For example, in Cunningham’s
case, a painter who unlawfully lefts a ladder
standing on the pathway after his day’s work was
held responsible when some passer-by moved out
of the way but placed it so insecurely that it fell on
the ptf.
Novus Actus Interveniens

However, if the risk taken by the ptf is excessive,
it is a matter of degree whether it should bar his
recovery altogether on the theory that the damage
is too remote, or to be regarded merely as a
contributory negligence so as to reduce the award.
Thus, legal responsibility ceases with the
occurrence of an event quite outside the range of
ordinary experience. Liability does not reach into
infinity in time. Thus, an injury sustained after
convalescence may not be blamed on the 1st dft.