Risk and Remoteness of Damage in Negligence
The remoteness enquiry in negligence, which serves to exclude the liability of
defendants for harmful consequences that their careless conduct caused, but for
which it seems unfair to penalise them, has long been beset by uncertainty.
Indeed, a common view is that this area of the law can be explained only by
reference to diffuse considerations of ‘legal policy’. This paper, however, argues
that the remoteness enquiry represents a principled response to a problem that
can arise, at a deep level, in ascribing a harmful outcome to the negligent exercise
of individual agency. The relevant problem concerns the possible mismatch
between the hypothetical ‘risk-claim’ in virtue of which conduct was faulty and
the causal set that subsequently materialised for harm. The ‘revised risk theory’
that emerges from this analysis accounts for the majority of remoteness
determinations. However, a few exceptions are also considered where ‘policy’,
in a restricted sense, operates to extend or curtail a negligent agent’s legal
An enduring problem in the law of negligence is that of remoteness of damage, or,
as it is sometimes termed, ‘legal causation’.1This issue arises once the factual
causation question of whether the defendant’s breach of duty played a necessary
part in the claimant’s injury has been answered in the affirmative. For even then we
may in some cases doubt whether, as a matter of justice, the defendant should be
held liable. Typically, such doubts arise where the injury was one that would not
have occurred without the faulty intervention of some other human agent, or was
otherwise unpredictable in nature.
However, granted the need for some mechanism for limiting liability at this
point, what form should it take? Two main, and conflicting, approaches have
developed in the literature in answer to this question. First, there are those
commentators who would reduce remoteness of damage entirely to an issue of
‘legal policy’. In their view, the court will decide as a matter of law alone whether
a defendant, whose fault played a necessary part in bringing about the claimant’s
injury, should pay. The result is not affected by any further consideration of the
nature of the causal mechanism that led to such injury.2
In the second place, though, there are those who, taking their lead from Hart and
Honore´’s influential treatise on causation,3would, while admitting that at least part
of the remoteness issue is dictated by policy considerations, argue that much within
ßThe Modern Law Review Limited 2001 (MLR 64:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 191
Law School, The Nottingham Trent University. The author is grateful to Jonathan Griffiths, Peter Kunzlik,
Simon Salzedo and Kay Wheat, as well as Hugh Collins, for their helpful comments on earlier drafts.
1 Some commentators would regard these terms as encompassing different issues – ‘legal causation’
going specifically to problems raised by voluntary third party interventions. However, the argument
presented in this paper will suggest that the remoteness issue comprises a single enquiry.
2 These theorists, ‘causal minimalists’, can be subdivided according to whether they believe that judges
are guided here by reference to some extra-legal goal (such as promoting economic efficiency, see eg
G. Calabresi ‘Concerning Cause and the Law of Tort’ (1975–1976) 43 U Ch LR 69), or simply decide
each case on an ad hoc basis in line with their intuition as to what is fair and appropriate, see eg L.
Green ‘The Causal Relation Issue in Negligence Law’ (1961) 60 Mich LR 543.
3 H.L.A. Hart and A.M. Honore´, Causation in the Law (Oxford: OUP, 1959) – subsequent page
references are to the 2nd ed, 1985. For an overview of the main features of Hart and Honore´’s
argument, see J. Stapleton, ‘Law, Causation and Common Sense’ (1988) 8 OJLS 111.