#7165 - Remoteness - Torts B

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.

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)

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 precise harm P suffered was foreseeable (Mount Isa Mines).

4. It is not necessary that the precise chain of events leading to the harm was foreseeable (Hughes v Lord Advocate).

Consequential mental harm

As discussed earlier, at the remoteness stage there are additional foreseeability requirements arising from statute in cases of consequential mental harm. P will only be entitled to recover for such harm if:

• D foresaw or ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care were not taken (WA s 74(1)(a)); or

• D knew, or ought to have known, that P is a person of less than normal fortitude and foresaw or ought to have foreseen that the P might, in the circumstances of the case, suffer a recognised psychiatric illness if reasonable care were not taken (WA s 74(1)(b))

Pre-existing susceptibility

D may argue that P was particularly susceptible to harm, so that the extent of the damage caused was not RF. However, under the ‘thin skull’ rule, people who commit torts must take their victims as they find them (Smith v Leech Brain).

1. As long as the initial injury suffered was of a kind that...