Negligence: remoteness and scope of liability
Foreseeability of the kind of harm, the eggshell skull rule, and how remoteness now sits inside the statutory scope of liability limb.
Learning outcomes
- Apply the test that the kind of harm, not its extent or manner, must be foreseeable.
- Explain how the eggshell skull rule coexists with a foreseeability limit.
- Distinguish the work foreseeability does at duty, at breach and at remoteness.
A defendant is not liable for every consequence of negligence. Remoteness marks the limit, and in the statutory scheme it is one aspect of the second causation limb — the scope of the defendant's liability for the harm factually caused.
The test
Damage is too remote unless the kind of harm was reasonably foreseeable, the test from The Wagon Mound (No 1) [1961] AC 388.1 The precise manner in which it came about, and its extent, need not be.
That single distinction resolves most problems:
- The kind of harm must be foreseeable — injury by burning, say, rather than injury generally.
- The manner need not be. An unforeseeable sequence producing a foreseeable kind of harm is recoverable.
- The extent need not be. Harm far greater than anyone would have predicted is recoverable if its kind was foreseeable.
How broadly the "kind" of harm is characterised is doing the real work, and courts have not reduced it to a rule. Characterise it honestly at the level the facts support, and acknowledge where a broader or narrower characterisation would change the outcome.
The eggshell skull rule
The defendant takes the plaintiff as they find them. A plaintiff with an unusual susceptibility recovers in full for the harm actually suffered, even though a normally constituted person would have suffered far less.
There is no inconsistency with the foreseeability limit: the rule operates on the extent of the harm, which need not be foreseeable, once a foreseeable kind of harm has been established. The rule extends to impecuniosity, so a plaintiff whose loss is aggravated by their inability to fund repair or treatment is not thereby denied recovery.
Foreseeability doing three different jobs
This is the point worth carrying away from the negligence sequence:
| Stage | Question | Threshold | |---|---|---| | Duty | Is there a relationship in which care is owed? | Undemanding — not far-fetched or fanciful | | Breach | Would a reasonable person have taken the precaution? | Statutory — foreseeable and not insignificant | | Remoteness | Is this kind of harm within the scope of liability? | Kind of harm reasonably foreseeable |
Different questions, different thresholds, different points in time. An answer that says "the harm was foreseeable" once and treats all three as satisfied has skipped two of them.
Scope of liability more broadly
Remoteness is not the only scope of liability question. The statutes require the court to consider whether it is appropriate for liability to extend to the harm, which also takes in intervening acts, the purpose of the rule or duty breached, and whether the harm is of the kind the duty existed to prevent. Where a duty exists to guard against a specific risk, harm falling outside that risk may be factually caused yet outside the scope of liability.
Successive events and vicissitudes
Where a later, unrelated event would have produced the same disability in any case, damages are assessed to reflect it. The general vicissitudes of life are allowed for in the discount applied to future loss. Both are aspects of comparing the plaintiff's actual position with the position they would have occupied had the tort not occurred, which is also the measure of damages.
Applying this in a problem question
- Identify the harm actually suffered and characterise its kind.
- Ask whether that kind of harm was reasonably foreseeable at the time of the breach.
- Note expressly that manner and extent need not be foreseeable, and apply the eggshell skull rule where the plaintiff is unusually susceptible.
- Address intervening acts and the purpose of the duty under scope of liability.
- Keep this analysis separate from factual causation, which you should already have resolved.
Where the authority sits
Common law, restated within the scope of liability limb of the civil liability statutes. The relationship between the common law remoteness rules and the statutory limb is analysed differently in different jurisdictions and is not fully settled; the outcomes have not diverged much, but the reasoning route should be stated for the jurisdiction in question.