Risk and Remoteness of Damage in Negligence

Publication Date01 Mar 2001
AuthorMarc Stauch
DOIhttp://doi.org/10.1111/1468-2230.00316
Risk and Remoteness of Damage in Negligence
Marc Stauch*
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
responsibility.
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.
it also has a quasi-factual rationale. In particular, Hart and Honore´ drew attention
in their work to common usage of terms of causal attribution and argued that, in
many cases where courts hold damage too remote, we would also refuse, as a
matter of ordinary speech, to say that such conduct had ‘caused’ the damage in
question. This will be true especially where, in addition to the fact of the
defendant’s prior faulty conduct, the harm would not have occurred without the
voluntary act of a third party or some independent abnormal occurrence.
When Hart and Honore´’s work first appeared, it tied in well with the ‘direct
consequences’ rule used by the courts for deciding whether some consequence was
too remote.4However, soon afterwards came the decision of the Privy Council in
The Wagon Mound,5since when the dominant trend has been for courts to analyse
problems of remoteness in terms of the foreseeable risk of harm. At first sight, such
an approach might be thought to provide a third way between the positions of Hart
and Honore´ and the causal minimalists. The courts are able to get by without
obscure concepts such as ‘directness of damage’ and yet are apparently restrained
by principle (in the guise of ‘foreseeability of risk’) in attributing liability.
Nevertheless, given the scope in the cases for disagreement as to what risks were
reasonably foreseeable, an increasingly common view is that the language of
foresight is used not in an explanatory, but rather in a conclusory fashion. In short,
the courts first decide to impose or deny liability, as the case may be, and then
invoke foreseeability, which serves to mask the real basis of their decision. If this is
true, the use of the reasonable foreseeability test can be regarded as a victory for
the causally minimalist position with its stress upon the open-ended nature of
judicial determinations as to remoteness.6
The aim of this article, however, is to argue that such a conclusion would be
premature and that Hart and Honore´’s fundamental intuition against causal
minimalism was justified. Paradoxically, though, it is a suitably modified version
of the risk theory (underlying the reasonable foreseeability test), which best supports
this view. Not only does this ‘revised risk theory’ serve to explain the majority of
remoteness cases, but it also provides a moral rationale (in a way that reliance on
linguistic usage alone does not) of courts’ determinations on this question.
Accordingly, the first section of this article looks in more detail at the nature, and
defects, of both the ‘direct consequences’ approach, and its more modern
counterpart, the reasonable foreseeability test. Recently, there has been an attempt
by the courts to buttress the use of foreseeability by appealing to the scope and
purpose of the legal duty whose infraction, by the defendant, has led to the
plaintiff’s injury. However, it will be argued that, though useful in a few cases,
generally the latter approach simply collapses back into the use of reasonable
foreseeability.
The second section of the article proposes a more concrete notion of risk than
that so far expounded by the courts, and one that seeks to imbue the concept with
some objectivity. Hitherto the courts, in asking whether a risk of harm is
reasonably foreseeable, have tended to concentrate on the nature of the ‘outcome
harm’ (an inherently manipulable concept) rather than on the further conditions
required (together with the faulty conduct) for such harm to have arisen. In arguing
for attention to be refocused upon the latter, the theory developed in this article
4 As applied in Re Polemis & Furness, Withy & Co Ltd [1921] 3 KB 560.
5Overseas Tankship vMort’s Dock Engineering Co (The Wagon Mound) [1961] AC 388.
6In‘The Wagon Mound No 2: Foreseeability Revised’ (1967) Utah LR 197, 205–206, Leon Green
referred to foreseeability as a ‘delightful and useful fiction with no restrictions in itself . .. [which]
serves in every case to call forth a fresh judgment’.
The Modern Law Review [Vol. 64
192 ßThe Modern Law Review Limited 2001

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