KYAMBOGO UNIVERSITY

FACULTY OF ENGINEERING

DEPARTMENT OF LANDS

BACHELOR OF SCIENCE IN BUILDING ECONOMICS

LAW OF TORT AND NEGLIGENCE

BE 316

MR. AGOLEI JIMMY DANY DANIEL

DONE BY:

SAANO SOLOME

18/U/EBD/8907/PD

THURSDAY, 11TH NOVEMBER, 2021

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Remoteness is important in the law of torts to the building economist because it’s a shield
to the building economist. Critically discuss the doctrine of remoteness of damage in
negligence and explain its relevance to the building economist.

Remoteness of damage is a legal test which decides whether a tortfeasor should be liable for the
results of their actions.

As well as proving that the defendant’s breach of duty factually caused the damage suffered by
the claimant, the claimant must prove that the damage was not too remote from the defendant’s
breach. Like the issue of duty of care, the remoteness test is a legal test (rather than a factual one)
which forms one of the ways in which the law draws the line between damage which can be
compensated in law, and that which cannot. This means that there are some circumstances where
the defendant will undoubtedly have caused damage in fact, but in law it is considered that they
should not have to compensate the claimant for it.

There are two tests for remoteness in tort:

 the direct consequence test

The direct consequence test

Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560

It was held that if the damage is too remote, the defendant is not liable. It is known as the “Direct
Consequences Test.”

The traditional test of whether damage was too remote was laid down in Re Polemis (1921), and
essentially imposed liability for all direct physical consequences of a defendant’s negligence; it
became known as the direct consequence test. The case concerned the renting of a ship, an
arrangement known as a charter. The people renting the ship, called the charterers, had loaded it
with tins of petrol, and during the voyage these leaked, releasing large amounts of petrol vapour
into the hold. The ship docked at Casablanca, and was unloaded. The workers unloading it had
positioned some heavy planks as a platform over the hold and, as a result of their negligence, one
of the planks fell into the hold. It caused a spark, which ignited the petrol vapour, and ultimately
the ship was completely burnt, causing the owners a loss of almost £200,000. They sued the

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charterers. The trial judge had found as a fact that the charterers could not reasonably have
foreseen that the fire was likely to occur as a result of the plank falling into the hold, although
they might reasonably have foreseen that some damage to the ship might result from that
incident. However, the Court of Appeal held that this was irrelevant; the charterers were liable
for any consequence that was a direct result of their breach of duty, even if such consequences
might be different and much more serious from those which they might reasonably have
foreseen. A consequence would only be too remote if it was ‘due to the operation of independent
causes having no connection with the negligent act, except that they could not avoid its results’.

The reasonable foreseeability test

As time went on and the tort of negligence grew, the direct consequence test came to be seen as
rather hard on defendants. As a result, a new test was laid down in Overseas Tankship (UK) v
Morts Dock & Engineering Co (The Wagon Mound) (1961), which is usually referred to as
Wagon Mound No 1 (a second case, Wagon Mound No 2, arose from the same incident, but
raised different issues)

Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No
1) [1961] AC 388

The incident which gave rise to the litigation was an accident which occurred in Sydney
Harbour, Australia. In Wagon Mound No 1, the defendants were the owners of a ship which was
loading oil there and, owing to the negligence of their employees, some of it leaked into the
water and spread, forming a thin film on the surface. Within hours, the oil had spread to a
neighboring wharf, owned by the claimants, where another ship was being repaired by welders.
It caused some damage to the slipway, but then, a few days later, further and much more serious
damage was caused when the oil was ignited by sparks from the welding operations. The trial
judge found that the damage to the slipway was reasonably foreseeable but, given that the
evidence showed that the oil needed to be raised to a very high temperature before it would catch
fire, the fire damage was not reasonably foreseeable. Nevertheless, as the Australian courts were
also following Re Polemis, he found the defendants liable for both types of damage. The Privy
Council, however, took a different view, stating that Re Polemis was no longer good law. The
new test of remoteness was the foresight of the reasonable person: was the kind of damage
suffered by the claimant reasonably foreseeable at the time of the breach of duty? Under this test,

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the defendants in Wagon Mound No 1 were only liable for the damage to the slipway, and not
for the fire damage. The reasonable foreseeability test as set down in Wagon Mound No 1 is now
the standard test for remoteness of damage in negligence.

Type of damage

Under the reasonable foreseeability test as laid down in Wagon Mound No 1, a defendant will
only be liable if it was reasonable to foresee the type of damage that in fact happened – in
Wagon Mound No 1, it was clear that this covered the damage to the slipway, but not the fire
damage. However, this has led to some difficult distinctions in other cases, as the contrasting
decisions in Doughty v Turner Manufacturing Co (1964) and Hughes v Lord Advocate
(1963) show.

In Doughty, the claimant was an employee who was injured when an asbestos cover was
knocked into a vat of hot liquid. A chemical reaction between the asbestos and the liquid caused
the liquid to bubble up and erupt over the edge of the vat, burning the claimant. The chemical
reaction was not foreseeable, but the claimant argued that it was foreseeable that the lid falling in
would cause some liquid to splash out, and the result of this was likely to be burning, the same
injury as resulted from the liquid erupting. The court disagreed, holding that an eruption was
different in kind to a splash, and so the damage was too remote.

In Hughes v Lord Advocate (1963) AC 837

It was held that it does not matter if the exact circumstances are not foreseen, as long as harm of
the kind could be foreseen. That is, it is not required that the exact manner be foreseen, as long as
the harm could be foreseen. Workers working on a dark street went on a break, leaving an open
manhole. They had surrounded it by a canvas tent, and a ladder to get in. There were red paraffin
lamps around it. Two young boys went in, and one of the lamps were knocked over, and there
was an explosion. The younger boy fell into the manhole as a result, and suffered severe burns.
The House of Lords held that the defendant owed a duty and breached it, and although the
injuries of a different degree weren’t foreseeable, however, something of the kind was
foreseeable. Whilst the manner was unforeseeable, the harm could have been foreseeable.

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Mt Isa Mines v Pusey (1970) 125 CLR 383 The High Court held that a mental disorder of some
kind was reasonably foreseeable as a result of their negligence. The degree of that disorder need
not be foreseen. The High Court held that what is required is:

 not foresight of the particular course of events

Legal principle

The test for remoteness in negligence is reasonable foreseeability, which means that a defendant
will be liable for damage which was reasonably foreseeable at the time when the defendant
breached their duty.

Extent of damage

So long as the type of damage sustained is reasonably foreseeable, it does not matter that it is in
fact more serious than could reasonably have been foreseen. The extreme application of this
principle is the gruesome-sounding ‘eggshell-skull’ rule, which essentially establishes that
defendants will be liable even if the reason why the damage is more serious than could be
expected is due to some weakness or infirmity in the claimant. The eggshell-skull rule enunciates
the concept of take the plaintiff as you find them. The extent of harm need not be foreseeable as
long as the kind of harm is foreseeable.

In Smith v Leech Brain & Co Ltd (1962), the claimant was burnt on the lip as a result of the
defendant’s negligence. He had a pre-cancerous condition, which became cancerous as a result
of the burn, and the defendant was held liable for the full result of the negligence. Traditionally,
it was considered that the ‘eggshell-skull’ rule did not apply in economic loss cases, where the
claimant’s lack of funds results in the financial loss being greater than it might otherwise have
been. The view was that a defendant was not liable to pay any extra losses caused by the
claimant’s lack of money, as explained in Liesbosch Dredger v S S Edison (1933). The
defendants negligently sank the claimants’ ship and, because the claimants had already made
contracts which required the use of the ship, they had to hire another vessel to do the work. It
would have been cheaper overall to buy another ship, but the claimants did not have enough cash
flow to do this. They therefore claimed for the cost of a new ship, plus the expenses of hiring the

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one they had used to fulfil their contractual obligations. The House of Lords refused to
compensate them for the cost of the hired ship, on the ground that this loss was caused by their
own financial circumstances, and was not foreseeable by the defendants. However, a number of
cases had seemed to suggest that a more generous view was appropriate.

In Lagden v O’Connor (2003), the House of Lords confirmed that the ‘thin skull’ principle now
applies to economic weakness as well as to physical. The claimant, Mr Lagden, was involved in
a car accident which was the fault of the defendant, and needed a replacement car while his own
was being repaired. In normal circumstances there would be no argument about the fact that the
defendant would be liable to compensate the claimant for the cost of doing this, but the problem
was that in this case Mr Lagden was unemployed and had very little money, and could not afford
to pay to hire a car, or to take out a personal loan to buy a new one. His only option was to
replace his car through what is called credit hire, where the payment is deferred for a long
period. However, this option was more expensive than the other two, and the defendant, relying
on Liesbosch, argued that they should not be liable for the extra costs, only for what it would
have cost to hire a car in the normal way. The House of Lords disagreed. While not saying that
Liesbosch was wrong, they pointed out that it had been decided at a time when the test for
remoteness of damage was direct causation (the Polemis test). The law had moved on since then
and, as the test was now reasonable foreseeability, that meant that defendants had to take
claimants as they found them, including their financial situation. If a claimant was hard up, and
as a result of that they incurred extra costs, the defendant was liable to pay those costs, so long as
they were reasonable. Costs would be considered reasonable if the claimant could not have
avoided incurring them without making unreasonable sacrifices.

Dulieu v White (1901) 2 KB 405

The plaintiff may suffer from some pre-existing weakness or the defendant’s negligent act may
cause injury resulting in some susceptibility to further illness or injury.

Robertson v Post Office (1974) 2 All ER 737

The plaintiff suffered brain damage after getting a tenus shot for graze and it was reasonably
foreseeable that the medical treatment would go wrong and therefore the defendant is liable for
damage.

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Risk of damage

Universe Tankship (UK) v Miller Steamship Co Pty Ltd (The Wagonmound (No 2)) [1967]
1 AC 617

Per Lord Reid “reasonably foreseeable” means “A real risk…would occur to the mind of the
reasonable man…which he would not brush aside as far-fetched or fanciful.” The actions were
brought by the owners of two ships sued a charterer alleging that the loss of their ships to fire
was caused by the Defendant’s negligence in discharging large quantities of furnace oil into the
harbour. The Privy council found that it was reasonably foreseeable that the oil spilt on the water
may catch fire. It was argued that the officers of the Wagon Mound would regard furnace oil as
being very difficult to ignite on water, and that they would have regarded it as a “possibility but
one which would become an actuality only in very exceptional circumstances”. It was held that
the defendant is liable for damage caused not only by the defendant, but that which fell within by
the class or category of damage which is reasonably foreseeable. If the officers had seen the
damage as a possibility, which could only become an actuality in exceptional circumstances. The
defendants in Wagon Mound 2 were held liable.

The case of Overseas Tankship (UK) v Miller Steamship Co (The Wagon Mound No 2)
(1967) establishes that so long as a type of damage is foreseeable, it will not be too remote, even
if the chances of it happening were slim. The case arose from the accident in Sydney Harbour
when we looked at Wagon Mound No 1; the defendants were the same, but in this case the
claimants were the owners of some ships which were also damaged in the fire. When this case
was heard, different evidence was brought which led the trial judge to conclude that it was
foreseeable that the oil on the water would ignite, and when the case was appealed to the Privy
Council, it held that on the evidence before that judge he was entitled to reach this conclusion.
The risk was small but it clearly existed, and therefore the damage was not too remote.

Legal Principle

As long as the type of damage which occurred is foreseeable, it will not be too remote, even if
the chances of it happening were small.

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Relevance of the doctrine of remoteness of damage to the building economist

This general principle imposes, on the plaintiff, a higher degree of contemplation with regard to
the likelihood of the particular loss than the corresponding general principle in tort. Reasonable
foreseeability is a test of remoteness in the law of torts in case of contract a much higher degree
of foreseeability is required, i.e., a serious possibility or a real damage that the loss will occur.
The result is to limit damages more in contract than in tort.

 The remoteness doctrine helps to avoid duplicative recoveries for what is in essence a
single harm. This is in cases involving derivative claims. For example, a defective
product in the workplace injures an employee, health care costs and pain and suffering
can be essential parts of the employee’s product liability claim. If the employer were also
allowed a direct and separate cause of action against the manufacturer of the product to
recoup wages and health benefits paid to the employee as worker compensation, the
manufacturer could be forced to pay twice for the same harms.
 It restricts the level of loss that might be recovered

Berent V. Family Mosaic Housing and London Borough of Islington, the plaintiff sued for
damages to her property as a result of three trees under the control of the defendant. The court
determined that the plaintiff’s advisors responded to her claims with delay, which resulted in the
defendant not being aware of certain details of the case for quite some time. The court
determined that the defendant could not have foreseen that the trees would cause damage to
plaintiff’s property.

 It limits the liability of the building economist to only the damage that is reasonably
foreseeable.
 The remoteness doctrine also prevents an avalanche of claims. Consider the hypothetical
highway accident caused by a negligent driver. Should people who are delayed by that
accident be allowed to bring suit for the harms they suffered? In a traffic jam, hundreds
of people, sometimes thousands, may be delayed, and virtually all will suffer some type
of harm – people are delayed for appointments, they miss business opportunities, and

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 they suffer anxiety. In some situations, physical harm may result, but the claims are still
deemed too remote. There is no liability in such cases.

REFERENCES

 Studocu.com
 Tort Law by Catherine Elliott & Frances Quinn
 B. S. Sinha, An Introduction to the Law of Torts through Indian Cases, 1965.
 C. Kameshwar Rao, Law of Negligence, 1968.
 J. P. Gupta, Treatise on the Principles of the Law of Torts, 1965.
 Law Commission, First Report on the Liability of the State in of India Tort, 1956.
 P. S. Atchuthan Pillai, Principal of the Law of Tort, 5th ed., 1972.
 R. L. Anand and L. S. Sastri, The Law of Torts, 3rd ed., 1967, revised by C. Kameswar
Rao.