A Re‐Examination of Remoteness
| Published date | 01 October 1952 |
| Date | 01 October 1952 |
| DOI | http://doi.org/10.1111/j.1468-2230.1952.tb00250.x |
A
RE-EXAMINA‘I’ION
OF
REMOTl3NESS
RECENT
dicta
of
the Court of Appeal in
Thorogood
v.
Van
den
llerghs
and
Jurgens,
Ltd.,l
have reopcned the thorny problem of
remoteness of damage in tort.
As
leave to appeal to the House of
Lords has been granted, this may be a convenient time to survey
not only the conflicting theories on the test
for
remoteness
of
damage in tort, but also the corresponding liability in contract,
since attempts have been made to liak the two into one general
principle. The object of the present paper is to trace the develop-
ment of the remoteness rules in contract and tort, to establish
that the contractual rule is based on foreseeability while the
‘iortious rule is based on directness, and to show that on both
authority and principle there is no connection between the two rules.
The question of assessing damages
for
breach
of
a legal duty,
whether in contract
or
tort, depends upon the solution of three
problems, each
of
which must be dealt with independently.
This may consist of either
a
breach of contract
or
the commission
of
a tort. Until this
question has been answered in the affirmative, all questions
of remoteness of damage are irrelevant. This problem has
never caused great difficulty in contract, but has been the
source
of
mucl~ confusion in tort, and especially with
reference to the tort of negligence.
It
is essential to
decide at the outset whether a legal duty has been broken
before discussing what damage has been caused by it.
Lord Wright stresses this point in
Bourhill
v.
>7014ng.2
‘The question of liability is anterior to the question
of
the
measure of the consequences which go with the liability.”
(b)
Seconc“v, in respect of what consequences of an established
breach
af
duty can the injured party recover? This is
simply an occasion
for
the application of the rules of
remoteness of damage and it is the contention
of
thc writers
of this article that the same test is not applicable both to
torts and
to
breaches of contract. Despite judicial dicta
to the contrary, it is submitted that the test is one of
(‘
fore-
seeability
”
in contract, and one of
((
directness
”
in tort.
(c)
Thirdly, how much eompcnsation can the injured party
recover for consequences of the breach of legal duty which
have alrcady been held
to
be not too remote? Only when
(a)
Is
there a breach
of
legal duty?
1
[1961]
2
K.B.
637.
2
[1943]
A.C.
92
at
p.
437.
3
See
also
per
Lord
Porter
in
Woods
V.
Duncun
[194G]
A.C.
401
at
p.
437.
“No
qucstion of measure
of
damages
arisea
here.
.
.
,
Your
Lordships
are
coriccrnrd with the earlicr question
whether thcse
defendants
wro
negligent.”
458
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