Remoteness

Is the injury too remote for D to be liable in damages?

D is not liable for P’s injury if it is too remote: WA s 51(1)(b). Courts may make value judgments when deciding if D should be liable: WA s 51(4).

An injury is not too remote if it was RF to a reasonable person in the position of D that D’s kind of carelessness might result in damage of the kind suffered by P or a class of persons to which P belongs (Wagonmound #1).

To decide this, courts apply the two-step process from Metrolink, involving categorisation of harm and RF.

Categorisation of harm

A court must decide, as a question law, what “kind” of harm it is that P suffered (Metrolink). It is not certain whether courts will take a broad or narrow approach to characterisation.

[Note each harm and consider each separately]

Broad approach

P will argue for a broad approach. Redlich JA noted in Metrolink that a broad categorisation would usually be appropriate. [Characterise the harm in broad approach]

1. The kind of harm in cases of mental harm is “mental harm”, not the particular diagnosed mental condition; it is enough it is a recognised psychiatric illness (Mount Isa Mines)

   1. Even a rare kind of mental disorder is likely to be categorised as simply ‘mental harm’ (Nader v Urban Transport Authority)

2. The kind of harm held to be “burn injuries”, not specifically burn injuries from an explosion (Hughes v Lord Advocate)

3. Fines subtracting from revenue will be categorised as financial/revenue loss (Metrolink)

Narrow approach

D will argue a narrow approach to categorisation of the harm should be taken per Tremain v Pike and Doughty v Turner. Redlich JA in Metrolink noted this will be appropriate if there is an unusual kind of damage.

1. Tremain v Pike: harm categorised as ‘disease contracted from contact with rat’s urine

2. Doughty v Turner: harm categorised as injury caused by eruption (splashing RF, chemical reaction causing explosion not RF: however this seems to conflict with Hughes)

Reasonable foreseeability

The court will then consider whether a reasonable person in the position of D ought to have foreseen injury of the particular kind (as categorised) to P or a class of persons like P (Wagonmound #1/Metrolink).

1. The risk of harm is RF if it is not far-fetched or fanciful (Wagonmound #2).

2. Only the kind of harm need be RF, not the extent (Hughes v Lord Advocate)

3. It is not necessary that the...

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