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Remoteness of damage in tort is nowadays a largely neglected topic among tort law jurists. Yet why this should be so is perplexing: not just because remoteness rules possess considerable theoretical and practical significance, but also because the law lacks clarity—there being several different tort remoteness rules in operation—and because the theoretical justifications that are frequently offered in support of these various rules fail to withstand rigorous analysis. This article seeks to explore these matters. In particular, it aims to expose the shortcomings of the rationales for the various remoteness rules that we have, and to advocate a way forward that would render the law simpler, clearer and more defensible.
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Margaret A Somerville, 1981 26-4 McGill Law Journal 740, 1981 CanLIIDocs 103
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JPS McLaren, 1967 32-1 Saskatchewan Law Review 45, 1967 CanLIIDocs 156
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In the course of their stately opinion in the case of The Wagon Mound the Judicial Committee of the Privy Council declared that “their Lordships have not found it necessary to consider the so-called rule of ‘strict liability’ exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.” The best excuse for the present addition to the controversial literature that is accumulating round this case is that, the courts having yet to pronounce on remoteness in cases of strict liability, there seems to be still some room for speculation, especially with reference to policy. It is therefore hoped that the fall, as it were, of yet another leaf in the forest will at least do no harm.
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Both academics and judges share the general opinion that the question of remoteness of damages cannot be resolved in a rule-governed manner, that is to say by the applications of a test. We disagree with this conclusion. We propose a test in terms of foreseability of damages which reconciles the leading decisions of The Wagon Mound (No. 1), The Wagon Mound (No. 2) and Hughes v. Lord Advocate. We have analyzed almost all the remoteness issues and have found that the test conforms with ninety percent of the past decisions, consequently we should be able to predict the outcome of remoteness issues with only a ten percent error. If courts consciously adopt our version of the foreseeability test, the margin of error could drop even further.
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The Supreme Court of Canada imported preexisting remoteness rules into Canadian tort law without justifying why they apply in the distinctively Canadian negligence framework endorsed in Cooper v. Hobart. This paper attempts to justify remoteness in this framework. Justifying remoteness as a standalone policy tool is unsatisfactory because it cannot explain why remoteness requires a reasonable foreseeability standard nor that remoteness operates as a fair limit on liability. Justifying remoteness in relation to the duty of care is satisfying. Remoteness supports the duty of care by allowing decision-makers to identify sufficiently general categories of duty of care that apply beyond the individual facts of the case. They can then confirm or deny liability by particularizing the risk at the remoteness stage. This ensures the framework applies as intended, adheres to decision-makers’ sense of justice, and achieves fair and socially useful results.
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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.
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Since the early nineteenth century there has been debate as to what should be the extent of responsibility for the consequences of negligent conduct. In this article the author discusses that debate in relation to the criteria of foresight and direct causation. In doing so, the author closely examines the decision in Re Polemis and Furness Withy & Co, as well as the Wagon Mound case. Through a thorough analysis of the foresight test, the author illustrates that the causal theory found in Polemis is extreme and that application of it remains isolated. The author suggests that the Polemis rule has had very limited practical effect and predicts that the role of the Wagon Mound case will also be a modest one.
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