Principles of Tort Law

INTRODUCTION

Remoteness is the fourth limb of the negligence action, and represents the final opportunity for the court to circumscribe D's liability. This element asks whether the damage complained of, although factually caused by D's act or omission, was legally too remote. This principally (but not solely) involves an enquiry as to whether the kind or type of damage was reasonably foreseeable by D at the relevant time. As a general rule, D cannot be liable in law for damage that was not reasonably foreseeable.

The remoteness enquiry serves two limiting purposes, as a ‘control mechanism’ in ring-fencing D's liability: (1) it is the final element which C must prove, in order to make the cause of action complete; and (2) it provides the basis upon which the quantum of C's damages will ultimately be assessed, and ensures that D is not necessarily liable for all of the damage which his breach has caused – for C cannot recover from D any part of his damage which is adjudged to be too remote.

What the remoteness enquiry addresses

Remoteness is directed towards the kind or type of damage suffered by C. Is the damage, which is causally linked to D's breach, of the type for which the law regards D as properly being liable? Or is the damage too remote – too distant or unrelated – from the breach, to be fairly laid at D's door?

As a matter of terminology, the remoteness limb is sometimes referred to in modern jurisprudence as ‘causation-in-law’ or ‘legal causation’. This distinguishes it from the factual enquiry as to whether D's breach caused the damage in fact, which is the function of the ‘but-for’ and other causation tests (per Chapter 8). In most remoteness problems, the damage would not have occurred, but for D's breach – but the purpose of remoteness is to ring-fence the ‘but-for’ consequences of a negligent act or omission. However, the label, ‘legal causation’, is something of a misnomer. As the Court of Appeal noted in Robb v FT Everard & Sons Ltd, whilst remoteness is essentially an issue of law, the test of reasonable foreseeability (which applies at the remoteness stage) certainly requires findings of fact. Moreover, in Jolley v Sutton LBC, Lord Steyn instructed that remoteness is a fact-specific enquiry, requiring an ‘intense focus on the circumstances of each case’.