Model Answer
0 min readIntroduction
The principle of remoteness of damages in tort law aims to limit the extent of liability for consequences flowing from a negligent act. It acknowledges that not all consequences, however undesirable, are legally attributable to the wrongdoer. Initially, the law adopted a strict approach, holding defendants liable for all direct consequences of their actions. However, this led to unjust outcomes, prompting the development of more nuanced tests to determine the scope of liability. The evolution of this law reflects a balancing act between compensating victims and preventing disproportionate burdens on potential tortfeasors. This answer will critically examine this development and argue for a preferred test.
Historical Development
The earliest approach, exemplified in Myers v. Soo Railway Co. (1876), adopted the ‘direct consequence’ test. This held a defendant liable for all consequences which were a direct result of their negligence, regardless of their foreseeability. This was considered overly harsh and led to unpredictable outcomes.
The Direct Consequence Test
The direct consequence test, while seemingly straightforward, proved problematic. It focused on causation rather than foreseeability, leading to liability for remote and unexpected consequences. The rigidity of this test was criticized for failing to account for the practical limitations of imposing liability.
The Reasonable Foreseeability Test
The landmark case of Overseas Tankship Co. Ltd. v. Mortensen (1961), known as the Wagon Mound case, revolutionized the law. Lord Reid established the ‘reasonable foreseeability’ test. This test states that a defendant is only liable for damages that were reasonably foreseeable at the time of the negligent act. This test introduced a crucial element of policy and practicality into the assessment of remoteness.
The Eggshell Skull Rule
It’s important to note the ‘eggshell skull’ rule, an exception to the foreseeability test. This rule states that a defendant must take their victim as they find them, meaning they are liable for the full extent of the damage even if it’s greater than what was reasonably foreseeable due to a pre-existing condition. This rule focuses on causation, not remoteness.
Critical Comparison of the Tests
| Test | Advantages | Disadvantages |
|---|---|---|
| Direct Consequence | Simple to apply; provides certainty. | Can lead to unjust outcomes; overly broad liability. |
| Reasonable Foreseeability | More just and equitable; limits liability to reasonable consequences; promotes policy considerations. | Can be subjective; requires assessment of what was ‘reasonably foreseeable’ which can be debated. |
Modern Application & Nuances
The reasonable foreseeability test has been further refined through subsequent cases. The concept of ‘type of damage’ is crucial. A defendant need not foresee the exact extent of the damage, but they must foresee the type of damage. For example, in Doughty v. Bunting (1964), the defendant was liable for burns even though the specific severity was not foreseeable, as burns were a foreseeable type of damage from handling a flammable substance.
Conclusion
In conclusion, the law relating to remoteness of damages has undergone a significant evolution, moving from a strict liability approach to a more nuanced and equitable system based on reasonable foreseeability. While the direct consequence test offered simplicity, its potential for injustice was unacceptable. The reasonable foreseeability test, as established in the Wagon Mound case, strikes a better balance between compensating victims and preventing undue burdens on potential tortfeasors. Therefore, the reasonable foreseeability test is the preferred test, as it provides a more just and practical framework for determining the scope of liability in tort law.
Answer Length
This is a comprehensive model answer for learning purposes and may exceed the word limit. In the exam, always adhere to the prescribed word count.