Liability in Negligence for Injury to People and Damage to Property: Negligence - Remoteness

Question 1

What is remoteness?

Answer 1

• When on the reasonable man test the consequences become so far removed from the cause that the reasonable man would identify a point at which the cause ceases to be responsible - that is when the cause becomes too remote

Question 2

What must be shown in order to prove legal causation?

Answer 2

• That the loss or damage sustained by the claimant was not too remote

Question 3

What are the two key cases for establishing remoteness?

Answer 3

• Re Polemis (1921)

- Wagon Mound No.1 (1961)

Question 4

What happened in Re Polemis (1921)? What was held? What did the court say mattered?

Answer 4

• Ship’s cargo hold held containers filled with petrol. The petrol produced a vapour which exploded when a plank of wood was negligently dropped into the hold, causing a spark
• CoA held that the defendants were liable for all damage resulting from the negligence regardless of whether the type of damage was foreseeable or not
• What mattered was that provided some damage was foreseeable, liability was owed for all consequences that could be directly traced to the negligent act or omission

Question 5

What happened in Wagon Mound No.1 (1961)? What was held?

Answer 5

• Shipped called the Wagon Mound docked in harbour
• The crew had carelessly allowed furnace oil to leak from their ship
  The oil drifted under a wharf and was ignited by hot metal produced by welders. The wharf and two ships sustained substantial fire damage
• The Judicial Committee of the Privy Council held that the correct test for remoteness is reasonable foreseeability of the type of damage caused

Question 6

What did the Judicial Committee of the Privy Council say about Re Polemis (1921) in Wagon Mound No.1 (1961)?

Answer 6

• They regarded the decision as bad law

Question 7

Do the decisions in Re Polemis (1921) and Wagon Mound No.1 (1961) support each other?

Answer 7

• No. They are conflicting decisions

Question 8

Has the precedent set in Re Polemis (1921) been overruled?

Answer 8

• Not yet

Question 9

In practice today, the courts follow the test for remoteness established in which case? What does this mean?

Answer 9

• Wagon Mound No.1 (1961)

- A claimant must show that the type of damage caused by the defendant’s act or omission was reasonably foreseeable

Question 10

Why has the Supreme Court not yet overruled the precedent in Re Polemis (1921)?

Answer 10

• It can only overrule a precedent if someone appeals a case to it involving that precedent

Question 11

What is the egg-shell rule also known as? What does it mean?

Answer 11

• The thin skull rule
• If the type of injury is foreseeable, but because of some pre-existing condition on the part of the victim the extent of the injury is worse than what usually would have been expected, the defendant is still liable for the full extent of the injury

Question 12

Give a case that illustrates the use of the thin skull rule

Answer 12

• Smith v Leech Brain & Co Ltd (1962)

Question 13

What happened in Smith v Leech Brain & Co Ltd (1962)?

Answer 13

• Due to his employer’s negligence, the claimant was splashed with molten metal on the lip. This burn caused cancer from which he died. The claimant had a predisposition to the cancer in his skin tissue
• Employer held liable for the claimant’s death. Although the death might not have been foreseeable, an injury was. It was irrelevant that the claimant had a predisposition to cancer