REMOTENESS OF DAMAGE

INTRODUCTION
The principle of remoteness of damage is essential as it serves as a boundary to legal liability as
in, it helps to ensure that defendants are not unfairly overburdened with the burden of
compensating for damages linked to the breach that is unlikely or unforeseeable. This doctrine
was developed to strike a balance between the rights of the claimant to receive reparation and
the need to place reasonable limits on the extent of actionable damage caused by a defendants
breach of duty.
Remoteness of damage is a matter of law rather than fact and like other aspects of negligence
is much influenced by policy considerations hence falls under causation in law. It has ancient
roots but was extensively developed in English common law. Initially, the courts allowed
compensation for all direct consequences of a wrongful act irregardless of its foreseeability .
However, this approach often led to an oppressive extent of liability. Over time, the principle
evolved and leaned towards foreseeability, which in turn became a tool to fairly balance the
interests of both parties.
The foreseeability test plays a big role in the determination of remoteness of damage. This
approach was advanced in Re Polemis & Furness, Withy & Co. Ltd. (1921), where Charterers of
a ship filled the hold with containers of benzene that then leaked during the voyage, filling the
hold with vapour. In port the ship was being unloaded when a stevedore negligently dropped a
plank into the hold. A spark then ignited the vapours and the ship was destroyed. The arbitrator
held that this was too unlikely a consequence of dropping the plank, though some damage was
of course foreseeable. The Court of Appeal held that the charterers, as employers of the
stevedores, were liable. It was held that any direct consequence, foreseeable or not, of a
defendant's negligent act could attract liability. However, this principle was later seen as being
too wide and underwent further judicial scrutiny.

The landmark shift came within the case law Overseas Tankship (UK) Ltd v Morts Dock &
Engineering Co (The Wagon Mound (No 1)) [1961] AC 388 388. In this case, because of the
defendant’s engineers negligence, bunkering oil was leaked into Sydney harbour from a tanker
into the water. The oil floated on the water to the claimant’s wharf, mixing with patches of
cotton wadding. Welding was taking place in the wharf and the claimant’s manager enquired
whether there was a risk of the oil igniting. It was considered unlikely since the oil had an
extremely high boiling point. Welding then continued and sparks did in fact ignite the oil-
soaked wadding and then set ablaze the ships being repaired in the wharf. The oil also caused
fouling as a form of nuisance to the wharf. The trial judge held that since some damage, the
fouling, was foreseeable, the defendants were liable also for the fire damage which was a direct
consequence of their breach of duty in allowing the spillage. The Privy Council reversed this
decision, holding that the defendant could not be liable for the fire damage since the correct
test for remoteness was reasonable foreseeability and, because of the improbability of the oil
igniting, the fire damage was unforeseeable. They ruled that only damage that was reasonably
foreseeable should be compensable. The court stated that liability should be limited to those
kinds of damage which the defendant should reasonably have anticipated - not the extent of
the damage, but the kind. The spilling of oil into the water that subsequently caught fire was
seen as too remote a consequence of the defendant's negligence.
In wagon mound 2 , The trial judge showed a very narrow approach to foreseeability in relation
to an action for property damage. While he accepted, unlike the trial judge in Wagon Mound
(No 1), that fire was a foreseeable consequence of the defendant’s negligence, he nevertheless
felt that it was so remote as to not give rise to any liability. He was reversed by the Privy Council
which held that provided the type of damage was foreseeable, then liability must result and the
degree of likelihood was irrelevant. The Privy Council was able to reach this result in the appeal
because the trial judge had actually accepted fire damage as a remote but foreseeable
consequence of the negligence
Following The Wagon Mound, numerous cases have utilized the foreseeability criterion.
However, each case offers nuanced insights into how remoteness is interpreted. For instance, in
Hughes v Lord Advocate (1963), Post Office employees working in a hole in the road negligently
left a manhole uncovered inside a tent and then left the tent unattended. As a safety
precaution the workmen left four lit paraffin lamps at the corners of the tent at night. A boy
entered the tent with one of the lamps and when it fell into the hole there was an explosion,
the boy fell in also and was burnt. This was an unlikely chain of events but the court
nevertheless held the defendants liable since some fire related damage was a foreseeable
consequence of leaving the scene unattended. The accident's peculiar manner didn't make the
type of injury - burns - unforeseeable and that’s why the damages weren't considered too
remote.
In discussing remoteness, it is crucial to distinguish between types of damages that is 'direct
damages', which occur naturally and inevitably due to the wrong, and 'consequential damages',
which might occur only due to the interplay of additional factors. The former tend to be less
susceptible to defenses of remoteness, while the latter are scrutinized closely to determine
whether they were foreseeable.
Conversely, in Doughty v Turner Manufacturing Co. (1964), Here, due to negligence, a cover
over a cauldron of heated sodium cyanide was allowed to slide into the liquid in the tank. The
cover was made of asbestos compound. There was a chemical explosion and the claimant who
was working on the tank was badly burned. The Court of Appeal accepted that it was previously
unknown that there would be such a chemical reaction between the asbestos and the sodium
cyanide and the court held that the defendants were not liable as a result. The chemical
reaction was unforeseeable and the damage was thus too remote. The specific reaction was not
foreseeable, even though the general kind of harm (an injury from flying debris) was. The courts
denied liability, not because it was unforeseeable that some harm might occur, but because the
specific kind of harm was not foreseeable as in the precedent, the wagon mound.
An addition to the doctrine of remoteness is the 'thin skull rule', which puts forward that you
'take your victim as you find them'. This means the defendant is liable even for unforeseeable
injuries if they exacerbate an existing condition, evident in Smith v Leech Brain & Co Ltd (1962).
Here an employee suffered a burnt lip as a result of being splashed by molten metal following
his employers’ negligence. The burn activated a cancer from which the claimant later died. His
lip had actually been in a pre- malignant state at the time of the burn. Some form of harm from
the burn was foreseeable. The court held that even though the death from cancer was not
immediately foreseeable, harm resulting from the negligence was, and the defendants were
held liable as a result.
Conclusion
Revisiting the concept, remoteness of damage places an equitable limitation on the
accountability of a defendant by taking into account the 'reasonable person' standard when
assessing negligence. Through the measure of foreseeability as established in cases such as The
Wagon Mound (No. 1) and (no. 2), the law tries to strike a delicate balance between the
plaintiff's right to compensation and the defendant's exposure to liability. The evolution of this
principle remains as a indication of the law's adaptability and its constant effort to lay down the
contours of fairness. As such, remoteness of damage remains a pivotal and dynamic aspect of
tort law, mediating the complexities of attributing liability in a perpetually evolving society.