TORTS LECTURE

Remoteness of Damage
4 Factors in Negligence:
1. Duty
2. Breach of Duty resulting in Damage
3. Causation in Fact & Law
4. Damage Should not be too remote &
should have been foreseen by
defendant
The Hedley Byrne test has 5 general
requirements:

There must be a duty of care based on a “special

relationship” between the representor and the
representee.
The representation in question must be untrue,
inaccurate, or misleading.
The representor must have acted negligently in
making said misrepresentation.
The representee must have relied in a reasonable
manner, on said negligent misrepresentation.
The reliance must have been detrimental to the
representee in the sense that damages resulted.
Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1964] AC 465
Facts:
Hedley (a firm) wanted to know if it would
be advisable to extend credit to a customer,
Easipower.
Hedley asked Heller whether it would be
advisable.
Heller advised Hedley that it was
appropriate to extend credit to Easipower.
Hedley extended credit and Easipower went
out of business.
Hedley sued Heller.
Issue(s):
Did Heller owe Hedley a duty of care?
Does the duty of care apply to
statements that cause pure economic
loss?
Ratio:
A duty of care can arise with respect to
careless statements that cause pure
economic loss (obiter)
Negligently inflicted economic loss

Generally no duty of care is owed to avoid

causing another to suffer a loss which is
purely economic. i.e. one where the
financial loss is not related to a personal
injury or damage to property.
Spartan Steel & Alloys Ltd v Martin & Co
(Contractors) Ltd [1973] QB 27
Spartan Steel & Alloys Ltd v Martin & Co
(Contractors) Ltd [1973] QB 27

Spartan Steel and Alloys Ltd had a stainless steel

factory in Birmingham, which obtained its electricity
by a direct cable from the power station. Martin &
Co Ltd were doing work on the ground with an
excavator and negligently damaged that cable
(Spartan Steel did not own the cable). As a
consequence, the factory was deprived of electricity
for 15 hours which has caused physical damage to
the factory’s furnaces and metal, lost profit on the
damaged metal and lost profit on the metal that
was not melted during the time the electricity was
off. Spartan Steel claimed all the three heads of
damage.
Held:
Spartan Steel could only recover the damages
to their furnaces, the metal they had to
discard and the profit lost on the discarded
metal. They could not recover the profits lost
due to the factory not being operational for
15 hours. Their main reasoning for this was
that while the damage to the metal was
"physical damage" and the lost profits on the
metal was "directly consequential" upon it,
the profits lost due to the blackout
constituted "pure economic loss".
Principle of Volenti non fit
injuria
to one who volunteers, no harm is done

the Claimant consents to the the risk of harm, however,

the defence of volenti is much more limited in its application
The requirements of the defence are thus:

1. A voluntary

2. Agreement

3. Made in full knowledge of the nature and extent of the risk.

'horseplay'
Blake v Galloway [2004] 3 All ER 315 Court of
Appeal: Teenage boys started throwing pieces
of bark chippings and twigs at each other. piece
of bark struck the claimant's eye resulting in
serious injury. The claimant brought an action
contending that the injury was caused by the
battery and or negligence of the defendant. The
defendant raised volenti non fit injuria. The trial
judge rejected the defence of volenti but held
that the damages should be reduced by 50%
under Contributory Negligence. The defendant
appealed
Held:
Appeal allowed. In the context of
'horseplay' there is a breach of the duty
of care only where the defendant's
conduct amounts to recklessness or a
very high degree of carelessness. The
defendant had consented to the risk of
injury occurring within the conventions
and understanding of the game.
No duty of care to prevent injury:

Vellino v Chief Constable of Greater Manchester [2002] 1

WLR 218 Court of Appeal
The Claimant was a known offender and had a string of
convictions. He was seriously injured when he jumped out
of a second floor window having just been arrested. The
police were aware that he was likely to escape and had
done so on several previous occasions. They were also
aware that such activity was dangerous but did nothing to
prevent him from jumping. The Claimant suffered a
fractured skull, brain damage and tetraplegia which
rendered him totally dependent on others for support. He
brought an action against the police arguing that having
arrested him, they owed him a duty of care to prevent him
injuring himself.
Held:
Ex turpi causa non oritur actio: from a
dishonorable cause an action does not
arise
The conduct of defendant is irrelevant
Remoteness of Damage
Remoteness of damage relates to the
requirement that the damage must be of a
foreseeable type. In negligence claims, once
the claimant has established that the
defendant owes them a duty of care and is
in breach of that duty which has caused
damage, they must also demonstrate that
the damage was not too remote. Remoteness
of damage must also be applied to claims
under the Occupiers Liability Acts and also to
nuisance claims.
4 Elements of Negligence
The presence of a duty. This may be as simple as the
duty to take all reasonable precautions to prevent
the injury of someone around you.
The breach of duty. The defendant must have failed in
his or her duty. An example may be a property
owner who did not maintain his or her property, or a
motorist who failed to drive safely.
An injury occurred. You received a physical, mental, or
emotional injury. Cause in Fact & Proximate Cause
The breach of duty caused the injury. There must be a
causal link between the breach of duty and your
injury.
Recovery under Damages
Remoteness of damage is often viewed as
an additional mechanism of
controlling tortious liability. Not every
loss will be recoverable in tort law.
Originally a defendant was liable for all
losses which were a direct consequence
of the defendant's breach of duty
Re Polemis & Furness Withy & Company
Ltd. [1921] 3 KB 560

Some Stevedores carelessly dropped a

plank of wood into the hold of a ship.
The plank struck something as it was
falling which caused a spark. The spark
was ignited by petrol vapours resulting
in the destruction of the ship. The
arbitrator held that the causing of the
spark could not have been anticipated
and therefore no liability arose. The
claimant appealed.
Held:
There was no requirement that the
damage was foreseeable. The defendant
was liable for all the direct consequences
of their action.

NB This was overruled in Wagon Mound No

1
Criticism of Re Polemis
Decision
This was largely considered unfair as a defendant
could be liable for damage which was not
foreseeable and therefore could not take steps to
prevent it. The direct consequence test was
overruled in the Wagon Mound no 1 and replaced
with a new test for deciding if damages are too
remote
Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd or "Wagon Mound (No.
1)" [1961] UKPC 2
Overseas Tankship (UK) Ltd v The Miller Steamship
Co or Wagon Mound (No. 2) [1967] 1 AC 617
The Wagon Mound cases
The defendant's vessel,
The Wagon Mound,
leaked furnace oil at a
Wharf in Sydney
Harbour due to the
failure to close a valve.
Some cotton debris
became embroiled in
the oil and sparks from
some welding works
ignited the oil. The fire
spread rapidly causing
destruction of some
boats and the wharf.
 The Wagon Mound no 1 [1961] AC
388 House of Lords

The defendant's vessel, The Wagon

Mound, leaked furnace oil at a Wharf in
Sydney Harbour. Some cotton debris
became embroiled in the oil and sparks
from some welding works ignited the oil.
The fire spread rapidly causing
destruction of some boats and the wharf.
Held:
Re Polemis should no longer be regarded
as good law. A test of remoteness of
damage was substituted for the direct
consequence test. The test is whether
the damage is of a kind that was
foreseeable. If a foreseeable type of
damage is present, the defendant is
liable for the full extent of the damage,
no matter whether the extent of damage
was foreseeable.
Fore-seeability Test
Following the Wagon Mound no 1 the test
for remoteness of damage is
that damage must be of a kind which
was foreseeable. Once damage is of a
kind that is foreseeable the defendant is
liable for the full extent of the damage
no matter whether the extent of the
damage is foreseeable.
Hughes v Lord Advocate [1963] AC 837 House of Lords

Two boys aged 8 and 10 went exploring

an unattended man hole. The man hole
had been left by workmen taking a break.
It was surrounded by a tent and some
paraffin lamps were left to warn road
users of the danger. The boys took a lamp
down the hole. One of them dropped the
lamp and an unforeseeable explosion
occurred resulting in extensive burns.
Held:
The damage was not too remote it was
foreseeable that the boys may suffer a
burn from the lamp. The fact that the
burn resulted from an unforeseeable
explosion did not prevent the type of
damage being foreseeable.
The Wagon Mound test was considered
and applied
Doughty v Turner Manufacturing
Company [1964] 1 QB 518

An asbestos lid was accidentally knocked

into a cauldron of molten liquid. A few
moments later an explosion occurred.
The claimant was standing close by and
suffered burns from the explosion. The
explosion occurred as a result of the
asbestos reacting with the chemicals in
the liquid in the high temperature. At the
time of the incident it was not known
that the asbestos could react in that way.
Held:

The damage was too remote. It was not

foreseeable that an explosion would
occur. Whilst it may be foreseeable the
lid may have caused a splash resulting in
a scold, it was not foreseeable that an
explosion would occur resulting in burns.
Confusion about manner in which damage
was sustained

There has been some confusion as to

whether for remoteness of damage, in
addition to being damage of a type
which is foreseeable, the damage must
occur in a foreseeable manner.
Tremain v Pike [1969] 1
WLR 1556
A farm labourer contracted leptospirosis
from handling materials on which rats
had urinated. He sued his employer
Held:
The defendant was not liable. It was not
known at the time that leptospirosis
could be transmitted in this way. Whilst it
was foreseeable he may contract the
disease by a rat bite the way he
contracted the disease was not
foreseeable.
Jebson v Ministry of Defence [2000] EWCA
Civ 198 Court of Appeal

The claimant, a soldier, suffered severe injuries

after a night out drinking organised by the MOD.
The claimant was transported with 19 other
soldiers in the back of an army vehicle with a
canvass roof. On the return journey the claimant
and other soldiers were very drunk. The senior
officer travelled in the front of the vehicle and
was unable to see what was going on in the
back of the vehicle. The claimant climbed on to
the tailgate and attempted to climb on to the
roof. He fell and was struck by a lorry.
Held:
It was foreseeable that injury (whether
slight or serious) would occur as a result
of the drunken and rowdy behaviour of
the passengers, including the danger
that someone would fall from the vehicle
as a result, such wider risk being apt to
include within its description the
accident which actually happened.
Jolley v Sutton [2000] 1 WLR 1082

Two 14 year old boys found an abandoned boat on

land owned by the council and decided to do it up.
The boat was in a thoroughly rotten condition and
represented a danger. The council had stuck a
notice on the boat warning not to touch the boat
and that if the owner did not claim the boat within 7
days it would be taken away. The council never took
it away. The boys had been working on the boat for
6-7 weeks when one of them suffered severe
spinal injuries, resulting in paraplegia, when the
boat fell on top of him. The claimant brought an
action under the Occupiers Liability Act 1984.
House of Lords held:
House of Lords held:

The claimant's appeal was allowed. The risk was that

children would "meddle with the boat at the risk of some
physical injury" The actual injury fell within that
description.

Lord Steyn:
"The …precise manner in which the injury came about and
its extent - is not definitively answered by either
The Wagon Mound (No. 1) or Hughes v. Lord Advocate. It
requires determination in the context of an intense focus
on the circumstances of each case."
Page v Smith [1996] 1 AC 155 House of
Lords

The claimant had suffered from ME over a

period of time and was in recovery when he
was involved in a minor car accident due to
the defendant's negligence. The claimant
was not physically injured in the collision but
the incident triggered his ME and had
become chronic and permanent so that he
was unable to return to his job as a teacher.
He was successful at his trial and awarded
£162,000 in damages.
Held:
Provided some kind of personal injury was
foreseeable it did not matter whether
the injury was physical or psychiatric.
There was thus no need to establish that
psychiatric injury was foreseeable. Also
the fact that an ordinary person would
not have suffered the injury incurred by
the claimant was irrelevant as the
defendant must take his victim as he
finds him under the thin skull rule.
Corr v IBC Vehicles Ltd [2008] UKHL 13

The claimant’s husband had committed

suicide. She sought damages for
financial loss from his former employers
under the 1976 Act. He had suffered a
severe and debilitating injury working for
them leading to his depression and
suicide. The employers said that these
damages were too remote.
Held: The employer’s appeal was
dismissed.