Remoteness of Loss
Overview
The rules on remoteness may limit the extent to which the claimant may recover or may preclude recovery entirely. There is liability for negligence where there is a breach of duty causing damage, and the damage is not too remote.
Where loss or damage has been caused by the defendant, but it is too far removed as a consequence from the negligence or other civil wrong to be the subject of compensation, it is said to be too remote. Remotenes, interacts with the scope of the duty of care, forseeability and causation. To some extent, each of these terms is a label which can raise and mask potentially complex issues in some cases.
The rules on remoteness are matters of law which seek to provide limits on the extent of the loss for which compensation may be recovered. The question of whether the loss is too remote is a matter of law, to the determined by the judge, even in the limited categories of cases where there is a jury.
Remoteness of Damage
The purpose of the rules on remoteness is to limit the types and extent of loss and damage, which have been caused by the breach of duty which can be recovered. In the absence of such a limitation, the indefinite and open-ended consequences of a breach of duty/wrong would be the subject of compensation. This would be inappropriate from the perspective of common sense and public policy.
There may be an overlap between causation and remoteness. There may also be an overlap with the issues of liability itself, as the breach of duty is based on foresight and proximity. In a novel case, the courts may disallow recovery on the basis of breach of duty, causation or remoteness.
Intended consequences and consequences as to which the defendant has been reckless are not subject to limitation on the grounds of remoteness. Where a person deliberately does something dangerous, he is liable for the consequences notwithstanding that they may occur in an unexpected way.
Reasonable Foreseeability
The test of remoteness is based on reasonable foreseeability. The modern approach places responsibility on the defendant for the direct consequencs of his acts and (in some cases) omissions.
A rescue may be reasonably foreseeable. The defendant may be responsible for injuries to a rescuer in this case provided that the rescue is reasonably foreseeable.
Where a defendant owes a duty to the claimant not to cause a particular type of damage, he may not be liable for other damage which is of a kind different to that which was reasonably foreseeable. The type of damage must be foreseeable. Difficult questions may arise in to categorising “types” of loss or damage for the purpose of foreseeability.
A person will be held liable for damage which he intends to cause. In this case, considerations of foreseeability do not arise.
Type of Loss
A wrongdoer is liable for loss or damage of a kind, that a reasonable man would have foreseen at the time of the act. If damage is caused by his negligence, then he is liable for its full extent, even though it might not have been anticipated or be capable of anticipation.
Provided that the type of damage is reasonably foreseeable, it is not necessary that the manner in which it is caused is foreseeable. The courts may deem any type of personal injury or even a psychiatric injury to be foreseeable if some type of personal injury is foreseeable.
Issues arise regarding the type of injury. Courts may differ as to how widely to categorise a particular class of loss.In all cases, the foreseeability must fall within the scope of the duty.
Eggshell Rule
The eggshell rule applies in addition to the requirement of foreseeability. The defendant must take the plaintiff as he finds him, with his particular vulnerabilities. Therefore, if it is predictable that some personal injury will ensue, the particular personal injury which arises due to the defendant’s particular weakness or vulnerability, is usually not too remote.
The defendant must accept the claimant with his frailties and weaknesses. Even if he could not foresee that the particular defendant has certain weakness or predispositions, he will be liable, nonetheless, for the consequences of (for example) an injury, even though it is greater than could reasonably be expected.
In Djadenko v Dunnes Stores [2017] IEHC 11, Barr J
“I am satisfied that once it was reasonably foreseeable that the plaintiff might suffer personal injury if the defendant was negligent, then she could recover for mental injury as well as for physical injury. I am satisfied that personal injury was foreseeable in the circumstances of this case. Accordingly, the plaintiff is entitled to recover damages in respect of the injuries to her left shoulder and left ankle. She is also entitled to be compensated for the psychiatric injury suffered by her in the form of a depressive adjustment reaction/disorder …”.
“one would need very clear evidence of a causal link between the plaintiff’s physical or psychiatric condition and the demise of the relationship, before it could be recoverable as a component of general damages. It seems to me that it would need evidence not only from the plaintiff, but also probably from her former partner and other family members, to the effect that her injuries had been such that they led to a breakdown in the relationship.”
liable to the full extent of the foreseeable kind of damage, notwithstanding that it happened in a different way or its extent could not have been foreseen. The courts are more willing to apply the principles of remoteness where the extent of the loss is well beyond what is reasonably foreseeable, when it is of the same type as that which was foreseeable.
Financial Eggshell
The same broad principles apply to damage to property and economic loss. The principles have been applied where the financial consequences to the defendant are aggravated by his weak or vulnerable financial position.
In the case of financial loss, the defendant is accordingly liable to the extent that it is reasonably foreseeable. The courts tend to restrict the foreseeability of financial consequences, to a greater extent than with personal injury.
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019