Legal Concept of Remoteness the Tort Negligence

Introduction

This paper discusses the legal concept of remoteness in the tort of negligence. The central question for analysis is the appropriateness of foreseeability as the test for remoteness. Relevant case law and pertinent authorities are considered and conclusions are offered against the backdrop of this legal matrix.

Remoteness and foreseeability

Should a defendant be liable for all the consequences of his or her actions, no matter how unlikely or unpredictable it is that those consequences manifested themselves? Remoteness is a legal principle that serves to limit the potential liability of a tortfeasor in practice (Elliot and Quinn, (2007), p104 et seq). The issue of remoteness arises on consideration of the fundamental question of legal causation, which involves an analysis of the operative cause of the harm suffered by the claimant in law. As Horsey and Rackley comment:

‘When a court asks whether a harm was too ‘remote’ a consequence of the defendant’s negligence (breach of duty), what is essentially being asked is whether the consequences of the negligent action were so far removed from it as to have been unforeseeable by the defendant’ (Horsey and Rackley, (2009), p247).

In this context the foresight and perspicacity of the defendant is judged on the basis of the objective standard of the notional ‘reasonable person’ at the moment that the tortious act or omission occurred (Cooke, (2007), p177 et seq). It is submitted that the leading case in this field is Overseas Tankship (UK) v Morts Dock & Engineering Co Ltd, The Wagon Mound No.1 [1961] 1 All ER 404, which is the case featured in the title to this work. Here, furnace oil spilled into the water at a wharf as a result of the negligence of the defendants. The oil spread into a thin film on the surface of the water. The oil film drifted to a nearby wharf where welding work was being carried out on a ship. Several days after the original spill welding sparks ignited the oil and it caught on fire, damaging the wharf and proximate vessels. The Privy Council held that contamination damage caused by the oil was reasonably foreseeable, but that damage caused by fire was not foreseeable to a reasonable person given that evidence was produced indicating that it is difficult to ignite such oil when floating on water. It was found that the damage was thus too remote for recovery (Steele, (2007), p182 et seq).

Before this decision in The Wagon Mound No.1 defendants were held responsible to compensate for all the direct consequences of their negligence, a rule clarified by the decision in Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560. The Polemis test imposed liability on defendants for any and all damage resulting from their negligence regardless of whether the damage in question was foreseeable, regardless of any compounded seriousness and regardless of the fact that the eventual damage may have been entirely different from that which a reasonable person may have anticipated on the basis of the original state of affairs. It is this principle that Viscount Simmonds criticised in the quote featured in the title from the Wagon Mound No.1 decision. It is submitted that the Wagon Mound No.1 ruling effectively curtailed the practical range of liability that had previously been established in Re Polemis and that Wagon Mound essentially overruled Re Polemis. This development clearly favoured defendants by placing a foreseeability limitation on the extent of their potential liability.

As Horsey and Rackley state:

“the question to be asked in order to establish whether the claimant’s harm is too remote is this: ‘Was the kind of damage suffered by the claimant reasonably foreseeable at the time the breach occurred?’” (Horsey and Rackley, (2009), p248).

This test, as Horsey and Rackley go on to observe, did indeed ultimately become the sovereign principle in this field on the question of remoteness of damage in the tort of negligence. It is argued that it is a testament to its perceived utility and fairness that it has also been adopted in other legal fields and contexts, including for example in regards to actions under the rule in Rylands v Fletcher [1868] LR 3 HL 330, as illustrated by decisions including Cambridge Water v Eastern Counties Leather plc [1994] 2 AC 264 and confirmed in House of Lords rulings including Transco v Stockport Metropolitan Borough Council [2004] 1 All ER 589, HL. It should also be noted, just for the sake of clarity, that there was a second case in the Wagon Mound litigation, Wagon Mound No.2 [1967] 1 AC 617, and that this case was decided differently on the basis of further evidence (the presence of flammable debris floating in the water which became impregnated with the oil made ignition more likely). However, it is very important to stress that the decision in Wagon Mound No.2 did not vary or impact on the general test established in Wagon Mound No.1 in any substantive fashion.

Is foreseeability the right test?

The title to this paper poses a direct question: should foreseeability continue to be the applicable test for remoteness? There is at first sight a tempting argument to the contrary. If a defendant’s negligence sets in train a course of events that result in wide ranging and far reaching damage why shouldn’t that defendant be made liable for all that damage? Why is it deemed appropriate to limit the defendant’s liability only to those consequences that might have been reasonably foreseen at the point of the negligent action or omission? Viscount Simmonds evokes the notion of “current ideas of justice and morality”, but surely fundamental justice and basic morality dictates that individuals are held responsible for all the consequences of their actions. In terms of their strict definitions the concepts of justice and morality do not contain opt-out clauses, exclusions or caveats in relation to foreseeability, which is an entirely separate issue.

Presumably Viscount Simmonds uses the word “current” to suggest that the law had evolved over forty years of the twentieth century, from its application in Re Polemis in 1921 to reach a state by the time of the Wagon Mound No.1 decision in 1961 in which it was deemed appropriate to incorporate a foreseeability factor into what was hitherto open-ended liability. In the real world there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound No.1. One such justification is insurability. It would be much harder and far more expensive to acquire insurance to cover activity that could potentially result in untold and unforeseeable harm than it is to insure oneself against foreseeable ranges of harm and loss. Viscount Simmonds then, in evoking the concepts of current justice and morality, is essentially adding practicality to the list and it is submitted that this is entirely justified. The law must be seen to operate efficiently and pragmatically within the imperfect and complex world in which we live. It cannot be confined by a purity of principle or an obsession with fundamental morality or justice.

In simple terms, if the Re Polemis test still existed, and defendants were liable for any and all consequences of their negligent actions, no matter how unforeseeable or unlikely those consequences might be, it is highly probable that activity in society would be quite drastically impaired, because potential tortfeasors (every member of society) would be intimidated by the potentially draconian and inestimable consequences of making a mistake. The Wagon Mound No.1 test maintains liability for foreseeable harm, but at least prevents the imposition of liability for the unforeseeable (and possibly very far-reaching) consequences of negligent action.

The Wagon Mound No.1 test thus strikes a balance, and this is something that the law is required to do in a veritable constellation of different fields and contexts. It is a balance struck between imposing appropriate liability but not doing so in a fashion that unduly impedes activity in society.

This balance is finessed by the fact that it is only the form of damage suffered that must be foreseeable, not the degree of harm actually sustained (Horsey and Rackley, (2009), p248). This ensures that a defendant will be liable if a certain foreseeable type of damage is sustained even if the actual extent of that damage is not objectively foreseeable. This obviously tilts the balance significantly back in favour of the claimant in many cases. It is a distinction that seems simple enough at first sight, but case law has illustrated that the courts have struggled to reach consistent decisions. This is however understandable given the almost infinite range of possible damage-inflicting scenarios that the courts may be confronted with and individual rulings appear to turn on precisely how strictly a court defines the concept of type or form of damage. A narrow definition was for example adopted to the advantage of the defendant in Doughty v Turner Manufacturing Co [1964] 1 All ER 98 (here the distinction was between a splash and an eruption of burning liquid), while in Hughes v Lord Advocate [1963] AC 837 a more generous definition was endorsed to the advantage of a child (and this may be significant) claimant.

Concluding Comments

This paper concludes that foreseeability should remain the applicable test for remoteness. A principle of good old fashioned common sense seems apposite: if it isn’t broken, don’t try to fix it. It is argued that Viscount Simmonds’ contention that foreseeability should continue to be the applicable test for remoteness, is well founded, primarily because, on reflection, no better test is available. It is fairly pointless to point to the margins of application of a legal test and then subject that test to criticism unless a superior alternative presents itself.

The foreseeability test is far from perfect, but then there are no perfect tests in law. Foreseeability represents a balanced compromise between the interests of claimant and defendant. It is a pragmatic solution, allowing measured recovery which permits compensation for foreseeable harm, but not unlimited liability, which would expose a defendant to losses that he could not reasonably have anticipated and also have a potentially draconian inhibitive impact on conduct in society as a whole.

As with all generally applicable tests in law, it is the application and interpretation of the test in specific instances that is the most important thing, not the bare principle inherent in the test itself. Any test can be rendered ineffective and deleterious if blindly or mechanically applied. If foreseeability is sensitively and flexibly applied in the context of determining remoteness of damage then it can serve as a good and appropriate measure of liability in almost any conceivable instance.

The case law in this field in the post Wagon Mound No.1 era does not suggest that significant problems or iniquities have arisen as a consequence of the application of the foreseeability test. There are and will always be individual cases that at first sight suggest weaknesses in a legal principle, but that is not the way to judge a general test. The measure of the value of a general test in law is the way in which the test can be applied in the vast majority of cases. General tests must serve the day-to-day interests of the wider society, not necessarily specific individuals in one-off or unique cases. Overall, the precedent bank in this area of law indicates that the foreseeability test almost always produces the fairest result in a case. That is not to say that it is a panacea in every difficult case, such as Tremain v Pike [1969] 3 All ER 1303 (concerning the distinction between the foreseeable physical injury of a rat bite and the rare and unforeseeable disease suffered as a result of the bite). Moreover there have been problems reconciling different rulings on foreseeability, as illustrated by Caledonian North Sea Ltd v London Bridge Engineering Ltd [2000] Lloyd’s Rep IR 249 IH, which highlighted the fact that foreseeability can be interpreted fairly loosely or more strictly in any given context.

However, such problems effect every single test applied in every single field of law and they do not undermine the fundamental integrity of foreseeability as a good general benchmark of liability. As things stand it is submitted that the foreseeability test in remoteness represents the least imperfect measure of liability and the best compromise between the interests of the parties involved and those of the wider society that the law ultimately serves. Thus, on the basis of the foregoing analysis, Viscount Simmonds’ contention is supported.