#6916 - Torts B Extended Remoteness Of Damage - Torts Law

Remoteness of Damage

Test of Remoteness: Reasonable Forseeability of the Same Kind of Harm

A D won’t be liable even if they had a duty, they breached it and their breach caused the harm, they will not be liable if the injury is too remote. P has to prove on the balance of probabilities that the harm was too remote.

All the principles come from Common Law.

The question asked at the stage of remoteness is a reasonable foreseeability test

The test extends to the question of whether the kind of injury suffered by P was reasonably foreseeable

Relevant Legislation

s 51(1) of the Wrongs Act:

A determination that negligence caused a particular harm comprises the following elements –

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

Meaning of ‘reasonable forseeability’

Three types of ‘Reasonable Forseeability’

DUTY: Was it reasonably foreseeable to a reasonable person in the position of the D that careless conduct of any kind on the part of the D may result in damage of some kind to the P or to a class of persons to which the P belongs?

BREACH: Was it reasonably foreseeable to a reasonable person in the position of the D that the D’s kind of carelessness may result in damage of some kind to the P or to a class of persons to which P belongs?

REMOTENESS: Was it reasonably foreseeable to a reasonable person in the position of the D that the D’s kind of carelessness may result in damage of the same kind as that suffered by the P or to a class of persons to which P belongs? (Wagonmound #1)

Wagonmound #1

• Facts:

  • Wagonmound was a ship docked at a wharf in Sydney harbour

  • P are the owners of the wharf

  • D are the owners of the ship

  • D’s ship is being loaded with oil and during the process one of the engineers working for D due to their negligence spills oil into the water which drifts to P’s wharf

  • P at the time are working on ships, which included welding.

  • They note the oil but decide it is still safe to continue. However it caught fire because a piece of metal produced by welding fell onto a piece of cotton then sets the oil and wharf and some boats on fire

• Held:

  • While damage to the wharf as a result of fouling by the oil was a foreseeable consequence of the defendant’s negligence, damage by fire was not.

  • D’s conduct was causally linked to the fire but the injury is too remote

  • Damage by fire is not something a reasonable person would have foreseen

What’s the threshold of foreseeability – how foreseeable does it have to be?

• To be reasonably foreseeable at the remoteness stage a risk must be real, in that it is not far fetched or fanciful

• If D has special knowledge about a risk, then it is from that perspective we are looking at whether or not it was reasonably foreseeable

Wagonmound #2

• Facts:

  • Same as Wagonmound #1

  • Different P (owner of one of the other ships that was destroyed)

  • Court observed that there was more evidence which suggested that fire was reasonably foreseeable as a consequence of D’s breach

• Succeeded in proving that the negligence of letting the oil spill could give rise to damage by fire. The risk of fire by continuing to weld when oil was known to be present on the water was not farfetched or fanciful to the D in light of their knowledge

• If the D has special knowledge about a risk, it will be taken into account in determining reasonable foreseeability

• There was knowledge that fire could occur. It was foreseeable even though it would occur really rarely (low threshold)

• They’re not using retrospective knowledge, it was just that there was better evidence

Meaing of ‘Same Kind of Damage’

• Differing judgments

• The kind of injury sustained by the P must be foreseeable: Wagonmound #1

• It is not necessary that the precise harm which the P suffered have been foreseeable: Mount Isa Mines v Pusey

• It is not necessary that the precise chain of events leading to the harm have been foreseeable: Hughes v Lord Advocate

Broad Approach

Mount Isa Mines v Pusey

• Facts:

  • P went to the scene of an accident where two of his fellow employees had suffered electrical burns as a result of employer’s negligence

  • He tried to help burn victims, later on one of them died

  • P suffered a rare form of schizophrenia

  • There was a causal link between the two

  • D argued they’re not liable because it’s not foreseeable injury

• Held:

  • Court said, we’re not asking whether you foresee this precise injury

  • Could you foresee the same kind of injury (being mental disturbance)

  • All mental disturbances tend to fall into ‘mental harm’ (very broad – makes it difficult to disprove remoteness)

Hughes v Lord Advocate

• Facts:

  • Some workers had left a man hole in the street open

  • They had covered the manhole with a canvas tent surrounding by warning lamps

  • Two boys took one of the lamps and went into the tent

  • They accidently drop the lamp, it explodes, and one of the boys is very burnt

• Held:

  • The kind of injury is this case is ‘burns’

  • The way the injury came about is not the question being asked

  • You don’t have to satisfy that the sequence of events is something you can foresee

  • It has happened in an odd way, but nevertheless is just a variance of what is reasonably foreseeable

  • Not ‘burning by explosion’ just ‘burning’

Nader v Urban Transit Authority

• Facts:

  • 10 year old suffered injuries and head injuries after falling from the bus as he was getting off

  • The bus driver had opened the door of the bus before he had stopped

  • After the accident, he developed Ganza syndrome, a psychiatric illness which usually arises when you have excessive brain damage, or emotional factors

  • Some uncertainty as to what caused is. But accepted that some of the symptoms were due to how the parents behaved after the accident

• Held:

  • Negligence of driver satisfied the ‘but for’ test

  • Found the overprotectiveness of parents and failure to get treatment was not a novus

  • On whether Ganza syndrome is foreseeable the court said it doesn’t matter that the particular one is of rare occurrence and rare

  • Mental illness following trauma falls within the kind of harm that is reasonably foreseeable and not too remote

  • The D must take him with his weaknesses, whether they be social, economic or physical

• This has now been addressed in statute

Narrow Approach

Tremain v Pike

• Facts:

  • P employed by D and worked on his farm

  • P contracted a rare disease, Wheels disease, that you get from being in contact with rat urine

  • Sues employees for negligence for allowing farm to be overrun with rate, unsuccessful

• Held:

  • While it’s foreseeable that a person working on a farm might be harmed by rats in some ways, Wheels diseases was not the kind of these harm

  • It’s entirely different from a rat bite, or food poisoning, and this kind of injury is not reasonably foreseeable

  • Court didn’t accept that you could categorise harm as ‘all illness or harm from rate’, it was too broad

  • At the time, this particular disease was not well known. Nowadays it would be considered reasonably forseeable

Doughty v Turner

• Facts:

  • P was injured at work as he knocked an asbestos cement cover into a container of molten liquid which reacted chemically and erupted, burning the P

  • There was no reason to think the cover would react in that way

  • P argued it was reasonably foreseeable that he would be injured by things splashing

• Held:

  • Even if a risk of splashing was foreseeable, this is not that. It is an injury by eruption. The two were distinguished

  • The eruption was too remote

  • They are looking at how the burn occurred

Reconciling the Approach

Metrolink Victoria Pty Ltd v Inglis (2009)

Remoteness is a two-stage inquiry:

1. It is necessary to identify the particular kind or genus of harm, to which the loss belongs (‘the categorisation question’);

2. It is necessary to determine whether a reasonable person in the position of the defendant ought to have foreseen loss of that particular kind or genus. It is necessary to determine whether the categorisation of loss raises a question of law

A defendant can only escape liability if the loss or damage sustained can be regarded as ‘differing in kind’ from what was foreseeable.

The loss which actually materialises may not be identical to that foreseen as responsibility does not depend upon the capacity of ‘the reasonable man to foresee damage of a precise and particular character or upon his capacity to foresee the precise events leading to the damage complained of.’ Though the precise means by which the appellant’s loss was to be calculated may not have been known to the defendant, the loss fell within a class of damage which, if categorised correctly, was foreseeable”

“The process of reasoning by analogy as to questions of policy as to whether the particular damage in issue was of a kind foreseeable, requires a line to be drawn between the broadest of categories, on the one hand, which would reintroduce liability for direct consequences, and the narrowest on the other, which would promote uncertainty and provide distinctions of disreputable nicety….In my view the categorisation of the genus of loss or damage forms part of the framework of legal principle of remoteness. A review of the validity of a particular categorisation constitutes a review of a question of law”

Summary of this case

• First: categorise harm (necessary to identify particular kind or genus of harm to which the loss belongs)

• Second: determine whether a reasonable person in position of D ought to have foreseen loss of that particular kind or genus

  • This is a question of law

  • As a result, it involves questions of policy, precedent and reasoning...