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The law of delict/tort is essentially about the liability (legal responsibility) that law imposes on a person

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The law of delict/tort is essentially about the liability (legal responsibility) that law imposes on a person to pay compensation to another who has suffered injury/harm or damage to his property as a result of the wrongful act of that person. This branch of law is known in England as ‘tort’ and in Scotland as ‘delict’.

At the core of the law of delict/tort is the idea of reparation for harm caused and losses suffered. Where a wrongful act by a person results in harm or damage to another, leading to losses, the question arises as to who should bear the ensuing losses. It is reasonable to assume that the person who caused the harm or damage should bear the losses. Essentially, this is the argument on which delict/tort is based - the concept of FAULT or culpa. Generally, the liability to compensate for a wrongful act arises only when a person has been at fault. In Scotland, the essentials of delict are captured by the Latin brocard damnum injuria datum (loss caused by a wrongful conduct). However, there are exceptional situations where fault is not required as a ground for liability. In such cases, the law establishes strict liability. An example of this type of liability can be found in Part One of the Consumer Protection Act, 1987 in relation to liability for defective products. Please note that apart from the concept of fault, there are other principles on which tortious liability may be based. These include loss distribution, economic efficiency and deterrence.1 We will not however be covering these aspects within this module.

1.1 Delict/tort and Contract law

The origin of this type of liability can be contrasted with contractual liability. In a contract, the parties are agreeing to accept certain obligations toward each other as detailed in the contract. The contract set the boundaries of rights and liabilities of the parties. In delict/tort, as there is no contract, the law itself delimits the boundaries of liability. In so doing, the law embarks on a difficult balancing act in that it must place some limits on the boundaries of liability to ensure that they are not too wide or permit too many claims, while at the same time allowing room for the law to develop to include new forms of liability. Again, whilst contract law is essentially about the enforcement of bargains, delict/tort focus on compensating the victim of a wrongful act for losses she has incurred as a result of the wrongful act

 

In the law of delict/tort, the situations in which liability can arise are infinite. Such liability can arise in a wide range of circumstances: for example, at home, at work, at school, while on the way to work, while in the street, while inside a building, while abroad on holiday, to name just a few. Accidents at work, for example, can arise in a huge range of circumstances such as: slipping, tripping, falling down a hole, becoming trapped in machinery, being burned by an explosion or hot liquid, being struck by a

falling object, causing economic loss by providing poor advice or carrying out works in a negligent manner. These are just a few examples, and each workplace is different and so holds its own unique dangers. This is why risk assessment and actions and proper policies and procedures to address risks are so vital.

Just because there is a contract between two parties does not mean that a delictual claim is precluded; it is possible that the two potential claims can run alongside each other. In Henderson v Merrett Syndicates [1995] 2 AC 145, the House of Lords indicated that there is nothing in principle which should lead to the exclusion of a claim in delict/tort where there is a contract covering the event already in place between the parties. In effect, a party to a contract who wishes to claim for loss or damage may do so under the terms of the contract or according to the law of delict/tort, the choice is his. However, subsequent court decisions have indicated that where the contract expressly excludes tortious liability or it would be inconsistent with the contract to impose a delictual liability, a party cannot bring an action in tort.2

We shall now consider briefly the different types of liabilities which exist under tort/delict.

1.2 Tortious/Delictual liabilities

Liability in delict/tort may take different forms. These include negligence, trespass, nuisance, libel, slander etc. Different forms of delict/tort protect different interests. For instance, the tort of assault and battery and negligence protect persons against personal harm. The tort of trespass to land, nuisance and the rule in Rylands v Fletcher3 (as it exists under English law) are all aimed at protecting harm against property. Other torts such as slander and libel provide protection from harm to reputation. These different forms of delict/tort have different characteristics and constituent elements, leading to different classifications. Perhaps the most common classification is the one which categorises them into intentional and unintentional tort/delict. An intentional delict/tort is a deliberate wrongful act or conduct, which harms a person or property of a person. An unintentional tort/delict, on the other hand, is based on unintended, but careless, conduct which harms a person or the property of a person. Whilst the victims of intentional delict are largely determinate, victims of unintentional delict may be indeterminate. The main category of unintentional tort is negligence, which we will focus on within this module

 

I would like to draw your attention to the fact that this general overview touches on both English and Scots Law. Once again, there are differences between the jurisdictions, but these are much less pronounced than in contract law. In general terms, English and Scots authorities are interchangeable. Where there are differences, however, these will be highlighted.

 

2. Elements of Negligence

 

The delict/tort of negligence is based on unintentional wrongdoing (careless behaviour) where the law specifies that there is a duty to be careful. For a claim in negligence to succeed, the following four elements must be established:

 

1. Duty of care:- that the defendant4 /defender5 owed the claimant6/pursuer7a duty of care

2.   Breach of duty:- that the defendant/defender breached that duty of care ;

3.   Causation:- that the breach caused harm or damage to the pursuer/claimant; and

4.   Remoteness of damage:- that the harm or damage suffered by the claimant/pursuer is not too remote a consequence of the defendant’s/defender’s breach.We shall now examine what each of these constituent elements entail and how they can be established.

 

2.1. Establishing a Duty of Care

In order to succeed in an action for delict it is necessary for the victim to show that she was owed a duty of care by the person who caused her injuries/loss. Careless conduct can potentially harm many people. The concept of duty of care has therefore been used by the courts as a device to help limit the extent of the liability of a person, whose acts have been found to be negligent.

The principles which aid the courts to determine whether or not a duty of care exists were established in the dictum of Lord Atkin in the landmark case of Donoghue v Stevenson.8 In this case, the defender was a manufacturer of ginger beer which was sold in opaque bottles. Mrs Donoghue (D) went to a café with a friend who bought her an ice cream and a bottle of ginger beer. Some of the ginger beer was poured over the ice cream and Mrs D consumed it. When the remainder of the ginger beer was poured out over Mrs D’s ice cream, decomposed remains of a snail were discovered. As a result, Mrs D suffered shock and severe gastro-enteritis.. Mrs. D could not sue the cafe owner in contract law as there was no contract of sale between them. She also could not sue the manufacturers in contract law for the same reason. Her lawyers therefore brought an action against the manufacturer of the drink on the grounds that it owed a duty of care to Mrs D, which it had breached.

The House of Lords held that the manufacturer [being the last person that could inspect the contents of the opaque bottle] owed a duty of care to the ultimate consumer, Mrs D. (The case never got as far as a court deciding whether there had been a breach of this duty of care, as the case was settled for £100). This case created the legal principle that a manufacturer owes a duty of care to the ultimate consumer of their goods that a latent defect in the goods will not cause harm to that consumer or their property. Its real significance though lies in the judicial test created by the then House of Lords in relation to when a duty of care arises, which is used in all common law negligence cases. Lord Atkin famously defined the duty of care in the following way:

You must take reasonable care to avoid acts or omissions, which you can reasonably foresee, would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the act or omissions which are called in question.

The principle enunciated in the above excerpt is referred to as the “neighbourhood principle”. Two principles which assist in establishing whether or not a duty of care exist in a given situation can be identified from the statement of Lord Atkin. These are that:

 

1)   the injury or damage must be reasonably foreseeable; and

 

2)   there must be a relationship of proximity between the parties

 

(persons closely and directly affected by the act).

 

The test is from the standpoint of the reasonable man placed in the defender’s position. 

 

The Courts have applied the neighbourhood principle as the test for the existence of a duty of care for nearly five decades (with some attempts to qualify or restate it in cases such as Anns v Merton London Borough Council).9 The current formulation of the test is as stated in the case of Caparo Industries plc v Dickman.10 In this House of Lords decision, the Law Lords reformulated the test for the existence of duty of care by creating the “tripartite test”. In addition to the tests of reasonable foreseeability and proximity of relationship enunciated in Donoghue v. Stevenson, the Court added a third principle namely whether it is fair, just and reasonable for a court to impose a duty in a particular circumstance.

 

There is now a three stage test to determine whether a duty of care exists:-

 

1.   The harm must be reasonably foreseeable

 

2.   There must be a relationship of proximity between the claimant/pursuer and defendant/defender

 

3.   It must be considered whether it is fair, just and reasonable that the law imposes a duty of care in the circumstances.

 

It should be noted that these three requirements are not completely separate; they can and do overlap. So, in a case involving damage to property or personal injury, if harm is reasonably foreseeable, it is highly likely that there exists proximity between the parties. However, in a case involving, say, economic loss11, the relationship between the parties (proximity) becomes more important and it may well be a quite separate consideration from foreseeability in such cases. Although the “tripartite test” is a convenient general framework for deciding whether a duty of care exists, it is only that, a framework. The courts must determine whether there is a duty of care by looking at the facts of each case. The law in this area is fact-specific. We will now consider briefly each part of the tripartite test.

2.1.1. Reasonable Foreseeability

The test for reasonable foreseeability is from the standpoint of the reasonable man. The question is would a reasonable man, in the position of the defendant, have foreseen that injury to the pursuer would have resulted from his actions? If this question is answered in the affirmative, then the test for reasonable foreseeability is met. In the Scottish case of Smith v Littlewoods,12 vandals broke into an empty cinema and started a fire which eventually destroyed neighbouring properties. The House of Lords held that as the defenders had not known of previous acts of vandalism, or fire risk, they therefore did not owe a duty to take care that intruders will not set fire to the cinema. In other words, a reasonable man in the position of the defenders would not have foreseen that intruders will set fire to the property which will destroy neighbouring properties.

In McCarthy v Marks & Spencer Plc,13 a worker contracted mesothelioma following contact with asbestos while working at the premises of the defendant between 1967 and 1990. He subsequently died. In an action brought by his executor, it was alleged, that his exposure to asbestos gave rise to a foreseeable risk of injury. The Court held that by the standards applicable at that time, it was not reasonably foreseeable that the defender would have known and understood that the presence of asbestos dust was likely to be injurious to the health of contractors on site therefore no duty of care arose.14

The courts have stated that the precise nature of the injury or loss does not need to be foreseeable, only the general type of loss needs to be foreseeable. In the Scottish House of Lords case of Hughes v Lord Advocate,15 the Post Office opened a manhole in a street in order to maintain underground telephone equipment. In the evening the manhole was left with a tent over it and paraffin lamps round it. An eight-year-old boy went into the tent and knocked/ dropped one of the lamps down the hole, causing an explosion which injured him. It was held that, as the lamp was a foreseeable source of danger and the injury flowed from it, albeit in an unpredictable way, the injuries suffered by the boy were foreseeable.16 Commenting on the principle of reasonable foreseeability, Lord Rodger, in the Scottish case of Simmons v British Steel plc17 put it in this way:

 

“..if the pursuer’s injury is of a kind that was foreseeable, the defender is liable, even if the damage is greater in extent than was foreseeable or it was caused in a way that could not have been foreseen.”

 

Ultimately, whether or not a particular injury or damage is reasonably foreseeable depends on the circumstances of each case. 

 

2.1.2. Proximity

 

Proximity is the element which looks at whether the claimant was closely and directly affected by the negligent act of the Defendant. It is the ‘relationship’ between two parties which makes it fair and reasonable one should owe a duty of care.18 A typical example of proximity of relationship is that between a driver and other road users or a doctor and her patients. The parties do not have to meet physically for proximity to exist; we use ‘relationship’ in a very wide sense here. For instance, there was no indication that the parties in Donoghue v. Stevenson had any previous dealings prior to the incident which resulted in injury to the pursuer.

 

As Morgan19 suggests, the concept of proximity defies definition. He questions how a manufacturer and consumer in a case like Donoghue v Stevenson are in a ‘proximate relationship’, when they are remote in time and space, and have no contractual or other pre-existing relations with each other. He feels this makes the concept quite meaningless, with proximity only having a useful function in situations where indeterminate liability threatens, such as in relation to economic loss or ‘nervous shock’. These situations are dealt with later on in the module.

2.1.3. “Fair, just and reasonable”

This brings us to the third of the three-stage test propounded in Caparo, which is essentially a policy limitation. This limb is a means of excluding a claim that otherwise would have passed the legal aspects of the test. Public policy reasons are simply non-legal considerations about what would benefit the public at large. An example of these considerations includes “the floodgates of litigation argument”. This argument is along the lines of, if you recognise a duty of care in situation X, then you open a huge avenue for litigation, which would not be in the public interest as a whole.

Although the use of the public policy argument by the court is seen in all different types of cases, they tend to be more common in cases involving the police and other statutory organisations.20 In Robinson v Chief Constable of West Yorkshire, 21 it was held that claims against the police in negligence for acts or omissions in the course of investigating and suppressing crime and apprehending offenders would succeed only in exceptional cases. Generally, such cases fail the third stage of the Caparo test because it would not be fair, just and reasonable to impose a duty in such situations where public interest would not be best served.

 

The tripartite test has also now been applied to cases of physical damage to property and personal injury cases. In the English case of Marc Rich & Co AG v Bishop Rock Marine Co Ltd, The Nicholas H22, the House of Lords applied the tripartite test to physical damage to property. The test had also been applied in Scotland to novel situations involving property damage23 and personal injury and related cases.24

 

2.2. Breach of a Duty of Care

 

Even though a duty of care has been established, a person will only be liable if he has failed to reach the standard of care required by that duty and thereby breached that duty of care. The standard of care required is the care a reasonable man of ordinary intelligence and experience would take. That level of care does, however, depend on the circumstances.

 

To breach a duty of care, the act or omission which caused the harm must fall below the standard of care required otherwise there will be no negligence and, therefore, no delictual/tortious liability. This is the case regardless of if someone has suffered loss or injury. This general position is demonstrated in Muir v Glasgow Corporation.25 In this case, the employers of a manageress of a tea shop were sued for what was alleged to be negligence on her part. She had allowed tea urn containing boiling water to be carried through a narrow passageway through a sweet shop where children were buying sweet. For some undisclosed reason the urn was dropped and the children were scalded. The manageress owed a duty of care to persons who entered the tea room. However, to be successful in an action it had to be shown that by allowing the tea urn to be carried in a passageway full of children she was in breach of her duty of care. It was held that she would only be liable if a reasonable person in her position could have foreseen the consequences of her actions. She was entitled to assume that the tea urn would be carried by responsible persons and that if carried in a responsible way there would be no danger to the children.

 

She had not, therefore, breached her duty of care by failing to take precautions to avoid the accident.

 

In this case, the House of Lords, per Lord Macmillan, explained that the level of standard of care required varies in different circumstances. He observed as follows:

the degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required vary with the risk involved.

 

In determining whether or not a person has reached the standard of care required, the courts will consider a number of factors and then work out what a reasonable person would have done in these circumstances to prevent the foreseeable risks. By examining some of these, we shall have a clearer idea of what it means to take reasonable care.

 

2.2.1. Voluntary Act or Omission of the Defender/Defendant

 

The act/omission by the defender/defendant (the one who has allegedly committed the wrongful act) must be carried out voluntarily. In order for this consideration to apply, he must have been aware or ought to have been aware that he was doing a wrongful act, that is, he was acting below the standard of care required. In Waugh v James K Allan Ltd.,26, a lorry driver carried on driving after he had suffered a stomach upset. Unknown to him, this was the onset of a heart attack and he died at the wheel of his lorry. Unfortunately, the lorry swerved and also killed a pedestrian. It was held that the lorry driver owed the pedestrian a duty of care, but there was no breach of this duty as there was no reason why G should have anticipated that he was to have a serious heart attack. If G had realised that he was seriously ill, then the position would have been different and to drive the lorry in those circumstances, while unfit to do so, would have been a voluntary breach of his duty of care.

 

2.2.2. Probability of injury

Even if loss or injury is foreseeable and a person suffers such loss or injury, if the risk of injury is so remote that a reasonable person would not have taken any precautions to prevent this harm, then no liability will arise. The authority for this proposition is the case of Muir v Glasgow Corporation27 which has been examined above. Bolton v Stone28 is another case which illustrates this principle. In this case, a cricket ball was hit out of a cricket ground and struck a woman walking on some waste ground adjacent to the cricket ground. There was evidence that this was a rare occurrence. The court held that there was no breach of the standard of care as “it was reasonable to disregard the risk and take no steps to eliminate it in the circumstances".

 

2.2.3. Seriousness of the Potential Injury/Loss

 

Where a person has disabilities or is particularly at risk, then a higher standard of care is required. This principle is illustrated by the case of Paris v Stepney Borough Council.29 A mechanic who was blind in his left eye was removing a rusty bolt from a vehicle with a hammer and a chisel. A chip of metal flew into his right eye and blinded him. The employer knew that P was blind in one eye, but had simply followed the industry practice at that time, which was not to supply goggles. The House of Lords held that since the claimant was already blind in one eye, the consequences of an accident would be far greater than for a normally sighted person. The seriousness of the consequences was a relevant consideration and the defendants had been negligent in not providing goggles for claimant, even if they would not have been negligent in failing to provide goggles for normally sighted workers.

 

2.2.4. Utility of the Activity

 

In certain circumstances, a lower standard of care may be acceptable, for example in an emergency or in times of war.30

 

2.2.5. Practicality and Cost of the Precautions

 

The reasonable person is only required to take such precautions as are practicable to avoid loss or injury and in deciding on whether to adopt particular precautions, he will be able to take into account the cost of the precautions, bearing in mind the risk. In Latimer v AEC Ltd.,31 a factory floor was flooded after a severe rainstorm making the floor slippery. The owners took steps to spread sawdust over the factory floor. The claimant slipped on part of the floor which was not treated. In court, the claimant’s argument that the defendants were negligent for failing to close the factory completely was rejected. It was held that the employer had done all that a reasonable employer could have done and hence was not negligent. On the other hand, in Haley v London Electricity Board32 the precaution to prevent an accident (a blind man falling down a hole) would have been simple and inexpensive, so liability was established.

2.2.6. Normal Practice in the Same Industry, Trade or Professio

The normal industry practice will normally act as an indication of the reasonable standard of care that is accepted in the relevant industry, trade or profession.33 However, the courts are entitled to take the view that following an industry practice does not, necessarily, lead to the defender/defendant meeting the standard of care. In other words, industry practice is not a definitive indicator of the standard of care required.34

A professional is held to a higher standard of care. We will, however, discuss professional liability later on in the module. 

3. Causation

Once a duty of care has been established and the defender/defendant is found to have breached that duty, the claimant still must establish that the acts/omissions of the defender/defendant actually caused the damage or loss suffered. This may seem obvious and uncomplicated and, in most cases, the link will be simple to identify. In certain circumstances, however, this requirement is not nearly as simple as it may first seem. We will look at this element of causation in three parts: factual causation, legal causation and the concept of novus actus interveniens. 

3.1. Factual Causation

The breach of a duty of care by the defender/defendant must in fact be the cause of the harm suffered by the victim. If there is no factual link between the two, the claim will fail.35 In other words, it has to be established that but for the breach of duty, the harm would not have occurred; the breach must be a causa sine qua non (a cause “but for which” the harm would not have occurred) of the loss or damage. If this cannot be established, the pursuer/claimant will be unable to succeed in his claim.

A case that demonstrates the ‘but for’ rule is Green v Sunset & Vine Productions Ltd36. In this case a professional racing car driver had an accident whilst racing. The driver asserted that the accident had been caused by the placement of a “kerb cam”. The judge looked at the evidence and held that the accident had been caused by the driver’s error of judgement: even if the placement of the “kerb cam” had been negligent, that negligence had no causal effect on the accident. In other words, if the ‘but for’ test is applied to this case, it cannot be said that but for the placement of the “kerb cam”, the accident would not have occurred. In another case, Williams v. Sir William Arrol & Co and Lithgows Ltd37, the pursuer’s husband was killed while carrying out his job as a steel erector. The employers were found to be in breach of their duty of care to him by not supplying a safety belt but further evidence showed that even if they had given him a safety belt he would not have worn it. In this situation the House of Lord’s held that the pursuer failed to show that ‘but for’ the defender’s breach the accident would not have occurred so the pursuer’s action failed38.

                                                                                                                                                  There are many situations where there may be more than one cause of the harm suffered. In these situations it is sufficient that the defenders breach of duty made a material contribution to the harm suffered by the pursuer.39 In certain circumstances, the causative requirement of causing or materially contributing to the harm is relaxed. The necessary causal connection will be sufficiently met if it can be shown that the defender’s act or omission materially increased the risk of the pursuer’s injuries or loss.40 In Fairchild v Glenhaven Funeral Services Ltd.,41 the widow of a worker who had contracted mesothelioma (a form of lung cancer) sued two of his employers after it emerged that the condition had been caused by exposure to asbestos fibres. The House of Lords held that a claimant would be able to recover damages where he had been exposed to asbestos while working for more than one employer and there was no means of determining (even scientifically) which exposure, and therefore which employer, had caused the disease. The House of Lords applied the case of McGhee and decided that in these circumstances the causal requirement would be met, if it could be established that the breach of duty by the employers materially increased the risk of the men contracting the disease.42

 

3.2. Legal Causation

 

The breach of duty must not only be linked factually with the loss but must be the causa causans. This means that it must be the immediate, effective and substantial cause of the harm. This is a legal question where the judges evaluate whether it is fair in the circumstances to relieve the defender of his delictual liability.43 It all depends on whether an act of the victim or third party has broken the chain of causation. This is known as the principle of novus actus interveniens.

 

3.3. Novus Actus Interveniens (New Act Intervening)

 

This problem arises after the defender has breached a duty of care owed to a pursuer and another subsequent act or omission results in the victim suffering harm or further harm. The question that must be asked is has the second act broken the chain of causation and extinguished the effect of the first act? For example, imagine a workman is injured on a building site when he falls off a broken ladder and breaks his leg. The employer is liable because it is the employer’s breach of duty in allowing a broken ladder to be used, that is the causa causans, the cause of the injury. However, as the workman is carried away on the stretcher, he falls off because of the negligence of the ambulance men, and suffers very serious brain damage. The question this scenario raises is who can potentially be held liable for the head injuries suffered by our rather unfortunate workman?

 

You need to look at whether the chain of causation between the employer’s breach of duty and the workman’s injury has been broken by the careless acts of the ambulance men. If it has been broken then this prevents the employer’s breach of duty from being the legal cause of the workman’s brain damage. The ambulance men’s conduct is a novus actus interveniens which breaks the chain of causation so that the employer is not liable for the workman’s brain damage. The employer is, however, still liable for the workman’s broken leg.

 

In order to break the chain of causation the intervening act must not be reasonably foreseeable. In The Oropesa44 Lord Wright said this about a novus actus:-

 

To break the chain of causation it must be shown that there is something unwarrantable, a new cause coming in disturbing the sequence of events, something that can be described as either unreasonable or extraneous or extrinsic.

 

A case which demonstrates this concept is McKew v Holland Hannen and Cubitts (Scotland) Ltd.45 In this case, the pursuer injured his ankle as a result of a breach of duty by the defenders. Because of the injury, McKew’s ankle was liable to sometimes give way. He was coming down some steps from a flat, which had no handrail, in a normal manner instead of slowly, as he should have done, bearing in mind his injury. His leg gave way and in a panic, he jumped down the final 10 steps and was injured further. The court held that the defenders were not liable for the injury he sustained jumping down the stairs. Although the factual causation requirement was clearly satisfied here, in that if the defenders had not caused the 1st injury the 2nd injury would not have occurred, the pursuer’s carelessness in not getting assistance to travel down the stairs was a novus actus and broke the chain of causation of the 2nd injury. In a broadly similar case, Wieland v Cyril Lord Carpets,46 the opposite conclusion was reached! It is difficult to know how the courts will decide in any given case. A lot depends on the facts of the case.47

 

In Sayers v Harlow Urban District Council,48 the claimant who was held up in a cubicle in a public lavatory run by the council tried to escape after her attempts to attract attention failed. On doing so, she placed all her weight on the toilet roll holder, which gave way causing her to fall and suffer injury. It was held that it was reasonably foreseeable that a person trapped in a cubicle would make an attempt to escape and the escape attempt did not constitute a novus actus interveniens. However, when she was unable to escape, she was careless in the way that she climbed down. While this did not break the chain of causation, it did constitute contributory negligence and the victim’s damages were subsequently reduced by 25%.49

 

4. Remoteness of Damage

 

Remoteness of damages is essentially about determining how much (if any) of the victim’s loss will be compensated by the negligent party. It is a limiting device. The court has already found a breach of duty of care; this question is about what loss the pursuer will be compensated for. Essentially, this device is designed to cater for a situation in which the breach of duty causes unusual losses. It should be noted that we are not dealing here with the actual calculation of the level of damages that can be obtained but with an identification of the losses (if any) that should be compensated for by the defender/defendant. If all losses are too remote, the pursuer/claimant will recover nothing. If all losses survive the remoteness test, all will be compensated. If only some are too remote, only the remaining losses will be compensated.

 

4.1. The Test for Remoteness of Damage 

 

The courts have applied two different tests to determine the question of remoteness. These are the ‘direct and natural’ consequences test and the ‘reasonable foreseeability’ test. The first of the two tests was applied by the English Appeal Court in the case Re Polemis50. Employees of the defendant were working on the claimant’s ship. They were carrying a plank of wood and negligently allowed the plank to drop into the hold of the ship. In the hold there were metal containers full of petrol. The plank caused a spark as it hit the floor, petrol vapour was ignited and the ship was destroyed by fire. The court decided there that the ‘direct and natural consequences’ test was met and the loss of the ship would have to be met by the defenders.

 

In the case of Overseas Tankship (UK) Ltd. v Morts Dock and Engineering Co.(‘The Wagon Mound (No.1)’)51 the test of ‘natural and direct’ consequences was discredited as being insufficiently precise. The test of reasonable foreseeability was preferred. In this case, oil was discharged negligently from a ship in Sydney Harbour. Some welders employed by the claimants were welding on a wharf owned by the claimant. Sparks from the welders tools ignited some cotton waste floating on the oil. The oil set alight and the wharf was destroyed. The wharf owner sued the ship owners for the loss of the wharf. The claim was denied on the basis that damage to the wharf by fire was not a reasonably foreseeable result of the oil spill.

In Scotland, until relatively recently, the position was confused. Since Simmons v British Steel plc52, the House of Lords has clarified the position and firmly adopted the Wagon Mound test of reasonable impressionability Accordingly, it is now clear that in both jurisdictions that a reasonable feasibility test is applied to determine whether a particular loss is recoverable.

The concept of remoteness of damage is applicable not just in property damage cases (although it arises most commonly in them) but can also influence damages in personal injury cases.

4.2. Remoteness and the “egg-shell skull” Rule

The negligent defender/defendant must take his victim as he finds him. If, for example, the victim is particularly susceptible to a blow to the head as a result of a medical condition, leading to much worse injuries than one might expect, the negligent party cannot escape liability by the lack of foreseeability route. The main English case is Smith v Leach Brain.54 There, the injury was a slight burn caused by a splash of molten metal falling onto the claimant’s lip. The claimant had an unusual predisposition to cancer, and as a result of the injury developed cancer and died. Although this would not have occurred in most people suffering the same injury, the defendant was found to be liable.55 The authorities are clear that the same rule applies in Scotland.56

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