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Determining Remoteness in Tort Law


The Problem of Remoteness

After a tort occurs, the issue of the defendant's liability arises. The consequences of a wrongful act can be vast, potentially leading to further consequences. However, a defendant can only be held liable for those consequences that are not too remote from their conduct.

The law must draw a line somewhere to maintain practicality, as it is impossible for the law to account for every consequence following a wrongful act.

Remote and Proximate Damage

Determining whether damage is too remote depends on the connection between the wrongful act and its consequences. If the consequences are directly connected and proximate, the defendant is liable. The event immediately connected with the consequences need not be proximate; even if other events intervene, the defendant can still be held liable.

In Scott v. Shepherd, for instance, A threw a lighted squib into a crowd, which eventually caused B to lose an eye. Despite intervening acts by X and Y, A was held liable because his act was the proximate cause of the damage.


Novus Actus Interveniens

In cases like Haynes v. Harwood, where a defendant's negligence led to an event, such as a child throwing stones at horses, resulting in injury, the defendant can still be liable. Even if the act of a third party intervenes, the defendant's negligence may still be considered the proximate cause if the outcome was foreseeable.

Similarly, in Lynch v. Nurdin, the defendant's negligence in leaving a horse and cart unattended, which led to a child starting the horse and causing injury, rendered the defendant liable. The mischief of the children was foreseeable, so the defendant could not escape liability.

Real Cause of Damage

In cases like Lampert v. Eastern National Omnibus Co., it's crucial to establish that the defendant's wrongful act was the real cause of the damage. In this instance, although the plaintiff was injured due to the defendant's negligence, her subsequent disfigurement did not result from the accident but rather from pre-existing issues in her relationship.

Consequently, the defendant was not held liable for the subsequent damages.

Test of Reasonable Foresight

According to the test of reasonable foresight, a defendant is liable for consequences that could have been foreseen by a reasonable person in the circumstances. If these consequences could have been reasonably anticipated, they are not too remote, and the defendant is held responsible. 

However, if the consequences were unforeseeable, they are considered too remote, and the defendant is not liable for them. This test focuses on what a reasonable person in the defendant's position would have foreseen as potential outcomes of their actions.

In Smith v. London & South Western Railway Company, the railway company was found negligent for leaving a heap of trimmings near a railway line during dry weather. Sparks from a passing train ignited the material, causing a fire that spread to the plaintiff's cottage and burned it down.

Despite the railway company not foreseeing the specific loss to the cottage, they were held liable because the damage was a foreseeable consequence of their negligence.

Test of Directness

The test of directness rejects the reasonable foresight approach and instead holds a defendant liable for all the direct consequences of their wrongful act, regardless of foreseeability.

Under this test, if the defendant's act directly leads to certain consequences, they are held responsible for those consequences, even if they could not have foreseen them. The defendant's liability is determined by whether their act was wrongful and whether it directly caused harm to the plaintiff. 

This test emphasises the direct causal link between the defendant's act and the resulting harm.

In Re Polemis and Furness, Withy & Co. Ltd., the defendants chartered a ship which carried a cargo of Benzene and/or Petrol. Due to leakage from the cargo, some of its contents were collected in the ship's hold.

Negligence by the defendant's servants caused a plank to fall into the hold, creating a spark that ignited the flammable substances and destroyed the ship. The owners of the ship were awarded damages, even though the specific manner of loss could not have been reasonably foreseen, as the damage directly resulted from the defendant's negligent act.


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