#6927 - Torts B Summary Remoteness - Torts Law

Remoteness

1. Reasonably Foreseeable:

   1. D will not be liable for a P’s injury if that injury is too remote

2. Remoteness is a two stage inquiry (Metrolink) First question: What is the proper categorisation of the particular kind of harm to which the loss belongs (identify the particular type of genus of harm)

   1. In an ordinary case, a broad categorisation is appropriate Metrolink In a case involving an unusual injury, a narrower categorisation of the kind of law is appropriate Metrolink

   2. Case Law: Broad approach:

      1. All types of mental disturbance –eg. schizophrenia – fell into the category of ‘mental harm’ Mount Isa Mines v Pusey

      2. Hughes v Lord Advocate: the way the injury came about is not the question being asked. ‘burning by explosion’ came under ‘burning’

      3. Does not matter if the particular occurrence is rare. Mental illness following trauma is foreseeable Nader v urban Transit Authority

   3. Case Law: Narrow approach:

      1. Harm from rats didn’t include harm from their urine Tremain v Pike

      2. Injury by eruption does not fall under injury from splashing Doughty v Turner

3. Second Question: Was that kind of harm reasonably foreseeable as a result of the D’s kind of carelessness?

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

   2. Question is: Whether a reasonable person in the position of the defendant ought to have foreseen loss of that particular kind or genus.

      1. To be reasonably foreseeable a risk must be real (not farfetched or fanciful) Wagonmound #2

         • You must take into light the special knowledge of the individual (eg. if they knew what they were doing was dangerous)

         • It does not matter that it is foreseeable even though the risk of the actual event occurring was very low

      2. What must you foresee?

         • Must foresee the kind of injury sustained by the P Wagonmound #1

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

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

4. Does the Thin Skull Rule apply?

   1. If the Plaintiff is particularly susceptible to the harm caused by the D, the D will be liable for all of the harm she cause, even if the extent of the harm is not reasonably foreseeable Dulieu v White and Sons

   2. You have to foresee the kind of injury but do not need to foresee the extent of harm. First ask if the original injury was RF then ask if further injuries were RF. If not, apply think skull rule

   3. (1) where the P suffers a pre-existing susceptibility

      1. As long as the initial injury suffered was of a type that was reasonably foreseeable, it does not matter that the victim’s characteristics increase the extend of the damage Smith v Leech Brain and Co

         • Normal burn injuries that developed into cancer. D was liable as the initial injury (burn) was reasonably foreseeable. Smith v Leech Brain and Co

   4. (2) where the accident creates an abnormal sensitivity to further injury

      1. Cut developed into brain damage. D was liable as the initial injury (cut) was reasonably foreseeable Stephenson v Waite Tileman

   5. Should include weaknesses, beliefs and reactions,...