Law of Torts: Remoteness in Negligence - Essay Example

Law of Torts: Remoteness in Negligence Introduction The determination of the actual liability passed to individuals that are party to an event generating a breach of duty of care expected from them is a difficult task that requires a number of considerations. Remoteness of damages and liability in the law of torts is a sensitive consideration that varies from one case to the other, which calls for the resolution of various factors from a perspective of a reasonable man. In view of the need to isolate all factors and apply a reasonable man’s judgment, contemplation of remoteness highlights such factors as actual damages, negligence, foreseeability and causing events. As witnessed in a number of cases, remoteness depends on the interaction of various other factors that the reasonable man needs employs to arrive at the most appropriate judgment. Definition of Remoteness in Negligence Actual liability that a case of wrongdoing deems apportionable to the defendant to determine responsibility held over the case considers remoteness as a measure of guilt. In the contemplation of actual liability borne by the defendant, the facts of the case form the basis on which omission or commission parameters distinguish contribution. Since there is a possibility of a complicated chain of events leading to the difficulties in the determination of the actual liability apportionable to a party in the case of tort, reasonableness should form the yardstick on which the judgment proceeds. Reasonableness in the contemplation of remoteness considers the how courts employ extra effort unravelling the difficulty that would otherwise appear hidden to the ordinary setting. Under such a setting where reasonable contemplation takes charge in a court’s decision, a higher critical standard introduces further consideration of all available factors as a reasonable man would1. Remoteness therefore determines the magnitude of liability of individuals facing charges of negligence, from a number of flexible considerations of contribution through omission or commission. Foreseeability from a reasonable man’s perspective facilitates the determination of liability likely to emerge. Common law’s determination of remoteness considers the steps taken by the parties involved to mitigate potential harm through reasonable consideration. A court defines the extent of liability of the defendant in a case involving charges of negligent conduct by considering if all possibilities of a reasonable conduct would lead to the outcomes of the case as presented before the court. Directness and Foreseeability Tests of Remoteness As a rule of general setting, the determination of the remoteness attributes of a case of negligence charges employs a test that considers two main parameters2. The observation in the application of the two rules is that the foreseeability scope improved on the earlier version of direct consequences arising from the conduct of the defendant. On one hand, directness forms an important aspect of liability by measure of actual contribution that an individual makes in a case involving the question of negligence. The first measure must assess how natural and direct forces of a case contribute to the allocation of liability on an individual originating from his or her ignorant conduct or breach of duty. It follows that the outcomes of a negligent action must attribute a certain level of liability to a specific party. On the other hand, the specific circumstances that the defendant has prior to the event define the most appropriate negligence avoidance action if likely damage he or she anticipated and avoided it accordingly. i) Directness Test Case Law In the matter of Re Polemis3, the court held that the defendant’s action directly contributed to the damage sustained despite the apparent initial unpredictability. The judges set the standard of argument of remoteness, in the case, to the direct connection of the consequences of the conduct of the defendant. Apparently, it is logical to argue in the circumstances before the court that the direct act of negligence resulted in the fire and damages sustained, despite the initial unpredictability of fire from a plank. Citing the second measure of remoteness in the case and explaining the exclusive reliance on directness and not on foreseeability, the judges set the stage for future contests in cases involving the determination of negligence remoteness. The standard was set at the consideration of ordinary probability of a plank causing fire and opposing the practicality of foreseeability. The judges, however, went further to distinguish foreseeability and directness, which was considering that overlooking the difference between the two would be prejudicial in the circumstances at hand. The court found the defendant negligent and liable for damages based on reasonableness. ii) Reasonable Foreseeability Test Case Law Despite the fact that the previous cases involving remoteness employed logical consideration in arriving at the respective decisions, two most outstanding cases Wagon Mound No 14 and Wagon Mound No 25 form the basis of evaluating the standards of reasonableness as discussed below. Other cases touching on the remoteness consideration of negligent liability show a huge relationship with the two cases but a few departures stand out to illustrate the classical enumeration contained in the Wagon Mound cases6. Wagon Mound No 1 In the matter of Overseas Tankship (UK) Limited v. Morts Dock and Engineering Company in 1951, the court had to determine the negligence as discussed above in a matter touching on remoteness. Three decades since the consideration of directness was made in Re Polemis, the alternative option of foreseeability was presented in the determination of remoteness and the judges hearing Wagon Mound No. 1 case found its consideration important. Despite the change in the facts of the case from the precedent set in Re Polemis case, a growing belief that the consideration of foreseeability was paramount in the discharge of justice. The logic of the court’s decision in Wagon Mound No. 1 was that the directness threshold was not in question and the appropriate consideration took the shape of foreseeability7. Compensatory damages according to the ruling had to be reduced accordingly according to the extent of remoteness of the damages8. “It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded,” [per Lord Simmons]. As opposed to the judgment in Re Polemis case, which considered the directness of the damage arising from the action of the defendant, the judges in Wagon Mound No. 1 case found a different remedy. The court held that the remoteness of the damages attributable to the defendant proved to be higher than a foreseeable event would enable, despite the directness of the damage linking the damage to the negligence of the defendant9. Apparently, the test for remoteness bringing the directness and foreseeability in the two cases places a lot more weight on foreseeability of damage, which was remote in the Wagon Mound No 1 as adjudged. Basing the argument on the reasonable unpredictability of a fire from furnace oil on water, the court found that the defendant did not bear liability under the circumstances of remoteness by foreseeability. If the court had the mandate therefore to revise the ruling in Re Polemis case, it would perhaps consider the predictability of the falling plank causing a fire as a matter of remoteness in the damages sustained. Perhaps the court’s decision would find it logical to rule out foreseeability of a plank sparking off a fire upon impact, which was unlikely10. In view of the requirements of a impact likely to generate a fire, rapid repetition movement as a requisite action that was missing in the defendant’s conduct would considerably contribute to remoteness in the damages. However, the ruling was based on the premise that the action of the defendant directly occasioned the damage, which is not debatable outside the reasonableness standard set by the foreseeability concept. Wagon Mound No 2 Reliance on directness was a departure from the Re Polemis ruling in respect of the main consideration of remoteness as demonstrated in the Wagon Mound cases. The bar of remoteness rose higher in the Wagon Mound No. 2, where the court held that the amount of damage foreseen ought to compel the defendant to avoid any danger that potentially risks the occurrence of the astronomical damage. “It follows that in their Lordships view the only question is whether a reasonable man, having the knowledge and experience to be expected of the chief engineer of the Wagon Mound, would have known that there was a real risk of the oil on the water catching fire in some way,” [per Lord Reid]. The deliberations of the remoteness of the damages liability on the defendant considered that the magnitude of potential fire at the dock should have compelled any reasonable man to abandon any hazardous processes under the circumstances of the case11. The court based its wisdom on the valuation of possible damage in any potential accident arising from the conduct of the defendant. From a reasonable man’s perspective, contemplation of a harmful outcome should inform the defendant’s course of action to avoid liability. Remoteness in the determination of the liability of the defendant was set at the conduct of the defendant from awareness that the conduct would lead to as much damage as a reasonable man would contemplate in similar circumstances. The court based its argument on the premise that the engineers of a calibre as that possessed by the defendant’s engineer had the basic ability to quantify the type of risk involved in carrying out the repairs within the circumstances of potential contact of fire and the oil. Despite the requirement of a reasonable man’s perspective as stipulated from the point of view of the engineer, the avoidability of the risk could also determine how liable the defendant would get at the end of the event. It implies that the magnitude of the involved damage would accordingly reduce the remoteness of liability if the defendant fails to demonstrate the urgency of the action. It is therefore clear that directness and foreseeability of damages may not amount to a clear remoteness determinant within the considerations of Wagon Mound No. 2, which in introduces the mitigation responsibility as a consideration. As an illustration, the defendant may accordingly reduce liability in a case of negligent conduct if the damages sustained indicate that the action mitigated occurrence of more damage12. By anticipating possible damage through a particular action that is in turn lower than omission, the remoteness evaluation would push liability further away from the defendant13. Demonstrating the duty of care in avoiding more damage defines the remoteness of the damages liability possessed by the defendant than through directness standard, which is simpler in determination when compared to foreseeability of damage14. Other Remoteness Determinants The standard of foreseeability as outlined in the Wagon Mound No. 1 and No. 2 cases determine the amount of various considerations that the courts employ to establish the remoteness or threshold of liability apportionable to an individual in a case of negligence. Other considerations usually employed in different cases illustrate the diversity of the concept of remoteness as discussed below, with reference mainly to the foreseeability standards set as discussed above. a) Manner of Occurrence There are a few instances in occurrence of events that defy the expected outcomes thereby calling for the wisdom of the court to determine if the remoteness threshold of foreseeability and directness qualify liability apportionment. Certain cases of unusual occurrence of anticipated outcomes present an isolated case where the court needs to define foreseeability circumstances in order to determine remoteness15. In Hughes v Lord Advocate, the court held that foreseeable damage occasioned in a manner that is not predictable does not increase remoteness or exempt the defendant from liability. The conduct of the employees with regard to foreseeability of the threats likely to emerge from a scene defined the defendant’s responsibility to ensure duty of care beyond doubts. Deciding to take a break in the middle of the duty to keep guard on the site implied that the defendant was attracting an opportunity for any form of danger to occur, despite the fact that the form of harm was not anticipated16. The premise that the source of danger was conceivable made case of predictability on which the judges hinged their argument. The judges held that the foreseeability of the explosion did not fall within the dangers of the manhole. However, the defendant could not escape liability since the manner of occurrence of damage took a different direction at the site that required guarding. Contrary opinion emerged in the cases of Crossley v Rawlinson17 and Jolley v Sutton18. b) Type of Damage In order to relate remoteness of damage with the foreseeability criteria, the court must consider the similarity of the damage sustained with the anticipated damage. The evaluation of remoteness in the case considers the link between the sustained harm and the foreseen harm in order to determine the extent of liability borne by the defendant. It implies that the defendant is only liable to the extent of similarity of the sustained damage and the foreseen damage. Under a close consideration of the manner of occurrence of the damage as held in Hughes v Lord Advocate19, the type of damage anticipated rules out the decision of the court. In enumerating the foreseeability standard in this circumstance, the cases negating the opinion of the court in Hughes v Lord Advocate apply for consideration of the type of sustained and anticipated damage. One of the most notable cases that directly explain the applicability of similarity of sustained and foreseen damage is Doughty v Turner Manufacturing20. The court relied on the premise that the foreseeability information must lead to protection of exact similar danger as opposed to all probabilities that would evade a reasonable man in the ordinary state of anticipation. Considering the reasonable foreseeability standard set at the Wagon Mound cases, the unpredictability of the asbestos undergoing chemical changes precipitating caving in and explosion at the workplace made the liability of the defendant remote. The standard of application of foreseeability rose to a higher level than the rest, since the complexity of the process in the material would evade a reasonable man. Perhaps this standard draws the line for the extent to which the court calls for a reasonable man to exercise reason. The court held that despite the predictability of the damage sustained from such an explosion, the explosion was not foreseen from the perspective of a reasonable man. Other cases of a similar conclusion include Bradford v Robinson21 and Tremain v Pike22. c) Extent of Harm The defendant’s liability holds true if the foreseeability and type of harm qualify, to any extent even if to a magnitude not anticipated in the foreseeability estimations. Remoteness standards in the given case were raised to cater for all damages, provided foreseeability indicate potential occurrence. In Vacwell Engineering v BDH Chemicals, the court ruled that it is not important to estimate the severity of the damage anticipation in order for the defendant to escape liability23. The defendant’s failure to give the warning of the potential damage likely to emerge if the chemical came into contact with water defined the extent to which the defendant was willing to bear liability. The wisdom of the court was that the defendant was held liable since the threshold of foreseeability does not consider the magnitude of damage expected. d) Eggshell Skulls The general principle of “eggshell skull rule” as employed in Smith v Leech24 implies that the plaintiff must be left in the initial condition devoid of harm or damage likely to come from the defendant. The defendant is liable to the extent of changes sustained on the plaintiff provided the foreseeability measure qualifies such a consideration. A cancerous condition triggered from the burning experience resulting to the demise of the plaintiff’s husband directly entailed the conduction of the plaintiff which the court ruled must not be altered in any way. Despite the unforeseeable nature of the burn leading to cancer, the defendant liability stood out since the eggshell skull rule implies that the original condition of the plaintiff would remain if the defendant did not act negligently. The ruling therefore introduces an important consideration of the remoteness of damages devoid the complete reliance of foreseeability, when it relates to the health and condition of the human being in form of the plaintiff25. Similar decision held in Robinson v Post Office26 further illustrates the importance of the defendant’s responsibility to leave the defendant as found in the initial interaction condition. e) Claimant’s Impecuniosity The role of the defendant in ensuring that the damages sustained are as minimal as possibly achievable calls for responsibility in dealing with damages sustained, even if the claimant lacks funds to do so. Financial weakness is not sufficient defence for the defendant to escape liability27. In Dodd Properties v Canterbury City Council28, the defendant negligently built a car park forced by financial circumstances that the foreseeability criteria would not ignore in apportioning blame on the conduct of the defendant. In view of the logic behind the court’s ruling, the damage sustained by the plaintiff would otherwise be inexistent if the defendant did not take the lack of funds to a level posing danger to other people. The liability of the defendant would not be considered remote by virtue of the financial complication leading to making of dangerous and negligent decisions. Similar ruling delivered in Liesbosch Dredger v SS Edison29. f) Novus Actus Interveniens The intervention of the main damage causing event that occurs in a chain of sub-actions between the defendant and the plaintiff does not necessarily transfer the liability from the defendant to the secondary agents of the causation chain30. Certain agents may break the flow of action leading to the damage, which determines the actual expectation of the causation upon completion to define the liability of the defendant. Some of the most common intervening agents include natural events, third parties and the plaintiff. Certain actions of the intervening agents may cause a totally different outcome exposing the plaintiff to damage that the defendant should reasonably not have a direct apportionment, but the agent could take part or entire liability. Alternatively, the intervening agent may act as an intermediary making little or no impact on the expected outcomes of the chain of events before the damage. McKew v Holland, Hannen and Cubbits (Scotland) Ltd31and Stansbie v Troman32 illustrate different perspectives of remoteness when there are different actions between the defendant’s action and the plaintiff’s reaction and possible damage. References Books Mullis A and Oliphant K Torts (fourth edn) (Palgrave McMillan Hampshire 2011). Robertson A and Hang T (eds), The Goals of Private Law (Hart Publishing New York 2009). Harlow C Understanding Tort Law (Sweet & Maxwell Ltd 1995). Hodgson J and Lewthwaite J Tort Law Textbook (Oxford University Press Oxford 2007). Steele J Tort Law: Text, Cases and Material (Oxford University Press 2007). Journal Articles Nolan D Risks and Wrongs: Remoteness of Damage in the House of Lords (2001) 9 Tort Law Review 101 Schwartz E ‘The Remoteness Doctrine: A Rationale Limit on Tort Law’ (1999) 8 Cornell Journal of Law and Public Policy 421 Carrwright J ‘Remoteness of Damage in Contract and Tort: A Reconsideration’ (1996) 55 Cambridge Law Journal 488 Corrin J and Farran S ‘Towards a Pragmatic Approach to the Contract or Tort Debate in the South Pacific’ (2000) 4 Journal of south Pacific Law Morgan J The Rise and fall of the General Duty of Care (2006) 22 Professional Negligence 206 Hastie P ‘Assumption of Responsibility: A New Approach to Remoteness?’ (2000) 45 Journal of the Bar Association of Queensland Web Articles Kramer A “Remoteness: New Problems with the Old Test” (19 July 2012) Robotham J “Law of Tort” (19 July 2012). Read More