Full Answer
What does remoteness of damage mean in a professional negligence case?
Remoteness of Damage in Professional Negligence Cases. Remoteness of damage concerns whether the law is prepared to attribute a certain loss to the wrongdoing, be it a breach of contract or negligence. Say for example, a solicitor’s wrongdoing causes you to lose a completely unconnected unusual but lucrative business opportunity.
What is remoteness in law?
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.
What is the test for remoteness of damage?
Tort: In relation to some types of torts (in particular negligence and nuisance) the test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time of the breach of duty ( Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388 ).
Is the defendant liable for the extra costs of remoteness?
The court held that since the test for remoteness was now reasonable foreseeability, the defendants had to take claimants as they found them, including their financial situation. Hence, the defendant was liable for the extra costs.
What is remoteness?
The term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by a damages award.
What is the meaning of remoteness of damages?
The term 'remoteness of damages' refers to the legal test used for deciding which type of loss caused by the breach of contract may be compensated by an award of damages.
What is the difference between causation and remoteness?
Causation is a matter of fact and requires the claimant to prove that the negligent act caused the damage complained of. The rules concerning remoteness of damage are a matter of law and broadly require the claimant to establish that the damage was of a kind which was reasonably foreseeable.
What are the principles of remoteness?
The principles of remoteness required that the loss must be such that it was or is deemed to have been, in the contemplation of the parties. This latter principle of remoteness in a contract claim restricts the level of loss that might be recovered.
Why is the remoteness rule needed?
The test for remoteness is important in a negligence case because it can affect the outcome of a claim. The Court must first examine whether there is a breach of duty, and if this is the cause of the damage or loss the Claimant has suffered.
What is meant by remoteness at common law?
̶ Remoteness: defines the extent (scope) of liability. o Because causation test ('but for') is easily satisfied even in absurd circumstances (think of the simultaneous shooting case).
Is the remoteness rule fair?
This paper suggests that remoteness is an inefficient rule which entails certain costs, particularly through its impact on performance/breach decisions, but only uncertain and modest efficiency gains. It is argued that a more efficient default rule would allow full recovery of expectation damages.
How do you prove causation in negligence?
To prove direct cause, a plaintiff must show the injury would not have occurred “but for” the defendant's conduct. Proximate cause is concerned with foreseeability. A plaintiff's injury must have been a foreseeable consequence of the defendant's conduct to establish proximate cause.
What does too remote mean in law?
What does Remoteness mean? If the damage was not reasonably foreseeable, the defendant will not be held responsible and the damage is said to be too remote. If the damage was not reasonably foreseeable, the defendant will not be held responsible and the damage is said to be too remote.
What is the test of remoteness for the intentional torts?
The question then becomes one of whether or not the particular damage claimed is too remote from the defendant's tort. In intentional torts, the test is whether the damage claimed was a natural and probable consequence of the tort.
What is the Caparo test?
The House of Lords in Caparo identified a three-part test which has to be satisfied if a negligence claim is to succeed, namely (a) damage must be reasonably foreseeable as a result of the defendant's conduct, (b) the parties must be in a relationship of proximity or neighbourhood, and (c) it must be fair, just and ...
What is negligence in law of Torts?
Negligence is a civil tort which occurs when a person breaches his duty of care which he owed to another due to which that other person suffers some hard or undergoes some legal injury. In layman's terms, Negligence can be explained as the failure of discharge or the omission to do something due to careless behaviour.
What is remoteness of damages in law of contract?
The rules concerning remoteness of damage are a matter of law and broadly require the claimant to establish that the damage was of a kind which was reasonably foreseeable. It is concerned with setting a limit on the extent of the harm for which the defendant should be held liable.
What is a synonym for remoteness?
synonyms: aloofness, standoffishness, withdrawnness. types: unapproachability. a disposition to be unapproachable; unfriendly and inaccessible. type of: unsociability, unsociableness. an unsociable disposition; avoiding friendship or companionship.
What are the tests for determining remoteness of damages?
Whatever followed this was part of the defendant's original act. There are two main tests to determine whether the damage is remote or not: The test of reasonable foresight. The test of directness.
What is the meaning of causation in criminal law?
What Does Causation Mean? In legal terms, causation refers to the relationship of cause and effect between one event or action and the result. It is the act or process that produces an effect.
What is remoteness in negligence?
Remoteness in negligence cases refers to the legal test of causation.
What is the test for remoteness of damage?
The current test for remoteness of damage is whether the kind of damage you have suffered was reasonably foreseeable by the Defendant, at the time of the breach.
What is remoteness of damage?
Remoteness of damage concerns whether the law is prepared to attribute a certain loss to the wrongdoing, be it a breach of contract or negligence. Say for example, a solicitor’s wrongdoing causes you to lose a completely unconnected unusual but lucrative business opportunity. Is that loss recoverable?
What is the test of negligence?
In negligence, you only have to establish that the damage is of a kind which is reasonably foreseeable, even in the most unlikely case. The test in negligence cases is much wider than in contract, which is more advantageous to the innocent party. In the Wellesey case, the Court held that where there is a contractual liability ...
What is a professional who fails to exercise reasonable care in the performance of a service?
A professional who fails to exercise reasonable care in the performance of a service, may be liable for breach of contract and negligence (a claim in tort). There is a difference in legal principles to be considered when assessing whether a certain loss is recoverable for breach of contract or for negligence… so which rules apply ...
Is a breach of contract only recoverable?
In a breach of contract action, the loss suffered is only recoverable if the potential damage was in the contemplation of the parties i. e. the actual loss could have been foreseen, not one which was just possible. In negligence, you only have to establish that the damage is of a kind which is reasonably foreseeable, even in the most unlikely case.
What is remoteness of damage?
Remoteness of damage is an interesting principle. Once the damage is caused by a wrong, there have to be liabilities. The question is how much liability can be fixed, and what factor determines it.
What is the principle of remoteness of damages?
The principle of Remoteness of Damages is relevant to such cases. An event constituting a wrong can constitute of single consequence or may constitute of consequences i.e. series of acts/wrongs. The damage may be proximate or might be remote, or too remote.
What is the defense of the mischief of the child?
the mischief of the child was the proximate cause and the negligence of the servants was a remote cause.
What does "not too remote" mean?
Ques 1. If the consequences of a wrongful act could be foreseen by a reasonable man, then they are not too remote.
What is the test of directness?
According to the test of directness, a person is liable for all the direct consequences of his wrongful act, whether he could foresee them or not; because consequences which directly follow a wrongful act are not too remote .
What is the starting point of any rule of the remoteness of damage?
Now, the starting point of any rule of the remoteness of damage is the familiar idea that a line must be drawn somewhere. It would be unacceptably harsh for every tort feasor to be responsible for all the consequences which he has caused.
Is the girl being hit direct damage?
In the above case: the girl being hit is the direct damage and it is the direct damage caused by the act of A. the damage caused to the cyclist is proximately caused by the falling of the girl and is remote to the act of A . the damage caused to the truck driver and the loss of material (fuel and fuel tank) is remote to the act ...
What is remoteness in law?
The term remoteness refers to the legal test of causation which is used when determining the types of loss caused by a breach of contract or duty which may be compensated by a damages award. Legal causation is different from factual causation which raises the question whether the damage resulted from the breach of contract or duty.
What is the test of remoteness in contract law?
Contract: In contract, the traditional test of remoteness is set out in Hadley v Baxendale ( [1854] 9 Ex 341 ). The test is in essence a test of foreseeability. That is, the loss will only be recoverable if it was in the contemplation of the parties. The loss must be foreseeable not merely as being possible, but as being not unlikely.
What is the test for remoteness of damage?
Tort: In relation to some types of torts (in particular negligence and nuisance) the test for remoteness of damage is whether the kind of damage suffered was reasonably foreseeable by the defendant at the time of the breach of duty ( Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388 ). The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it ( Heron II [1969] 1 AC 350 ).
What is the remoteness test in a contract?
Following the decision of the House of Lords in Transfield Shipping Inc v Mercator Shipping Inc [2008] UKHL 48 (The Achilleas) it is clear that the remoteness test is about identifying the scope of an implied assumption of responsibility by the defendant in the contract. It, therefore, requires an assessment of the common expectation as to the scope of the defendant's liability.
Is damage that is too remote recoverable?
Accordingly, once factual causation is established, it is necessary to ask whether the law is prepared to attribute the damage to the particular breach, notwithstanding the factual connection. Damage which is too remote is not recoverable even if there is a factual link between the breach of contract or duty and the loss.
Does it matter if damage is reasonably foreseeable?
Provided that the kind of damage is reasonably foreseeable, it does not matter that the manner of infliction or its extent was unforeseeable ( Hugues v Lord Advocate [1963] AC 837 and Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88. However, following the decision of the House of Lords in Banque Bruxelles Lambert v Eagle Star Insurance Co [1996] UKHL 10 (SAAMCo) As restated by Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20 and Khan v Meadows [2021] UKSC 21) it would appear that traditional principles of causation and remoteness have been supplemented by a need to determine whether the damage lies within the scope of the duty of care assumed by the defendant.
How to prove negligence in a civil case?
In order to establish negligence, it must be proved that the defendant’s breach of duty actually caused the damage suffered by the claimant, and that the damage caused was not too remote from the breach.
How is causality established?
Causation is established by proving that the defendant’s breach of duty, as a matter of fact, a cause of the damage. The first question is whether the damage would have occurred but for the breach of duty. This is known as the ‘but for’ test.
What was the claimant's claim in the case of the sale of his house?
The claimant claimed that the defendant’s negligence had caused him to lose the sale of his house. The court found that there was a 50% chance that the sale would have gone ahead had the defendant not been negligent, and so they upheld the claimant’s claim, but awarded him 50% of the damages.
Why is the law of causation so controversial?
The law of causation has been criticised strongly because the rules have been amended in favour of the claimant. This means that it can be difficult for a defendant to successfully defend their claim. In reality, the law works in favour of both parties, but policy considerations can lead to inconsistent application of the law, as cases such as Farchild show.
What happened in Brooks v Home Office?
Brooks v Home Office. The claimant was a woman in prison who was pregnant with twins. A scan showed that one of the twins was not developing properly, but the prison doctor waited five days before seeking a specialist. It was found that the twin had died two days after the scan.
