Learning Outcomes
This article explains the principle of remoteness of damage in the tort of negligence. It clarifies that while the type of harm must be reasonably foreseeable, the extent of that harm does not need to be. It also situates remoteness within the broader causation framework (factual and legal) and the scope-of-duty filter. You will be able to apply the Wagon Mound (No 1) reasonable foreseeability test to determine whether the kind of damage is too remote; distinguish between type, extent and manner of harm; and apply the egg-shell skull rule to both physical and psychiatric injury. You will understand how the “similar in type” approach from Hughes v Lord Advocate operates, how cases like Tremain v Pike show limits where the precise kind of harm is outside what is foreseeable, and how scope-of-duty cases (SAAMCo/BPE v Hughes-Holland) can limit recovery even when foreseeability is present.
SQE1 Syllabus
For SQE1, you are required to understand how the rules on remoteness of damage operate to limit the extent of a defendant's liability in negligence and to apply case law principles to specific factual scenarios, with a focus on the following syllabus points:
- The general principle of remoteness of damage in negligence.
- The requirement that the type of harm must be reasonably foreseeable.
- The rule that the extent of the harm does not need to be reasonably foreseeable.
- The 'egg-shell skull' rule and its application (including to psychiatric injury).
- Distinguishing remoteness from factual and legal causation.
- The “similar in type” rule (e.g. Hughes v Lord Advocate) and its limits (e.g. Tremain v Pike).
- The interaction between remoteness and scope-of-duty (SAAMCo; BPE v Hughes-Holland), where otherwise foreseeable losses fall outside the defendant’s duty.
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
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In negligence, what is the primary test used to determine if damage suffered by a claimant is too remote?
- The 'but for' test.
- The direct consequence test.
- The reasonable foreseeability test.
- The balance of probabilities test.
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Which rule states that a defendant must take their victim as they find them, including any pre-existing vulnerabilities?
- The thin skull rule.
- The neighbour principle.
- The Caparo test.
- Res ipsa loquitur.
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True or False: If the type of injury suffered by a claimant was reasonably foreseeable, the defendant will not be liable if the severity (extent) of the injury was unforeseeable.
Introduction
Once a claimant has established that the defendant owed them a duty of care, breached that duty, and that the breach caused damage (factual causation), there is a further hurdle: legal causation, or remoteness of damage. This principle acts as a control mechanism, limiting the defendant's liability to damage that is not considered too 'remote' a consequence of the breach. The fundamental test for remotenness in negligence centres on reasonable foreseeability. This article explores this test, focusing particularly on the key distinction between the foreseeability of the type of harm versus the extent of harm.
Remoteness is applied after the chain of causation is traced and any potential intervening acts are assessed. It is conceptually distinct from factual causation (the 'but for' test) and from whether any novus actus interveniens broke the chain of causation. It also interacts with the “scope of duty” principle: even where a loss is factually caused and foreseeable, it may not be recoverable if it falls outside the kind of risk the duty was designed to guard against (as clarified in SAAMCo and reaffirmed in BPE v Hughes-Holland).
The Test for Remoteness: Reasonable Foreseeability
The modern test for remoteness of damage in negligence was established in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)). This case moved away from the earlier 'direct consequence' test (from Re Polemis) and established that a defendant is liable only for damage of a kind or type that was reasonably foreseeable at the time of the breach.
The Wagon Mound (No 1) requires courts to ask whether the kind of damage suffered was a reasonably foreseeable consequence of the breach. Where the answer is “no”, the damage is too remote. The test has been applied and refined in later decisions, including Cambridge Water Co Ltd v Eastern Counties Leather plc, which underscored that the foreseeability inquiry focuses on the type of harm, not the precise mechanism by which it occurs. In practice, this means courts distinguish between:
- Foreseeability of the general category of harm (e.g. burns from fire, physical injury from impact, loss of earnings consequent on injury).
- Non-essential elements of causation such as the exact chain of events, the manner of occurrence, or the precise magnitude of loss, which need not be foreseeable.
Key Term: Remoteness of Damage
A legal principle in tort law that limits a defendant's liability to those consequences of their negligent act that are not too far removed or legally disconnected from the breach of duty.Key Term: Foreseeability
The standard used to determine remoteness, asking whether the damage suffered was of a kind that a reasonable person in the defendant’s position ought to have foreseen as a possible consequence of their negligent act or omission.
Type vs Extent of Harm
A key refinement of the foreseeability test is that only the type of harm needs to be foreseeable, not the extent or severity of that harm. If the type of damage is reasonably foreseeable, the defendant is liable for the full extent of that damage, even if the magnitude of the loss was far greater than anyone could have anticipated. For example, if personal injury is foreseeable, loss of earnings is a foreseeable type of consequential loss from that injury; the quantum of those earnings (e.g. an unusually high salary) is part of extent, not type.
The “similar in type” approach from Hughes v Lord Advocate illustrates this distinction well. Burns were foreseeable; an unexpected explosion that caused burns was simply an unusual manner of producing a foreseeable type of injury. Conversely, in Tremain v Pike, Weil’s disease contracted from rat urine was not regarded as a foreseeable type of harm in the circumstances (rat bites were foreseeable), and the claim failed on remoteness.
Key Term: Type of Harm
The general nature or category of the injury or damage suffered (e.g., physical injury by burning, property damage by impact, financial loss from property damage).
The 'Egg-Shell Skull' Rule
This principle is a direct application of the rule that the extent of harm need not be foreseeable. It provides that a defendant must 'take their victim as they find them'. If a claimant has a pre-existing vulnerability or condition (like an 'egg-shell skull') that makes them suffer greater injury than a person of ordinary fortitude would have suffered from the same impact, the defendant is liable for the full extent of the claimant's actual injuries, provided the initial type of injury was foreseeable.
Classic authority is Smith v Leech Brain & Co Ltd, where a burn was a foreseeable type of harm; the burn triggered cancer due to a pre-existing condition, and the defendant was liable for the full consequences. The same principle applies to psychiatric harm: once liability is established, defendants must take the claimant’s psyche as they find it (Brice v Brown). The rule also accommodates financial consequences: for instance, if loss of earnings is a foreseeable type of damage following physical injury, then unusually high earnings or prolonged absence are matters of extent, not type.
In addition, the courts have recognised that the claimant’s lack of means is not, as a rule, a bar to full compensation where the financial consequences flow from a foreseeable type of harm. The older authority Liesbosch Dredger v SS Edison has been significantly limited; Lagden v O’Connor confirms that impecuniosity can be relevant to the measure of damages where it is part of the factual extent of loss flowing from the foreseeable type of harm.
Key Term: Egg-Shell Skull Rule
The principle that a defendant is liable for the full extent of the harm suffered by a claimant, even if the claimant's pre-existing vulnerability makes the harm more severe than would reasonably be expected. Also known as the 'thin skull' rule.
Worked Example 1.1
Scenario: David negligently knocks Ben off his bicycle in a minor collision. A reasonable person would foresee minor bruising as a result. However, Ben suffers from haemophilia (a condition preventing blood from clotting properly) and sustains severe internal bleeding and requires extensive treatment.
Question: Is David liable for the full extent of Ben's injuries, including those exacerbated by haemophilia?
Answer:
Yes. Physical injury (bruising/impact injury) was a foreseeable type of harm from the collision. David must take Ben as he finds him, including the pre-existing condition of haemophilia. Therefore, David is liable for the full extent of Ben's injuries, even though the severity was unforeseeable due to the haemophilia.
Manner of Harm
Similarly, the precise manner in which the foreseeable type of harm occurs does not need to be foreseeable. If the defendant's breach creates a risk of a certain type of injury, and that type of injury occurs, the defendant is liable even if the sequence of events leading to the injury was bizarre or unpredictable. This is the Hughes v Lord Advocate principle: foreseeability of the general class of harm suffices.
The corollary is that if the injury suffered is not within the class or type of harm reasonably to be anticipated, the claim fails for remoteness. In Tremain v Pike, contracting Weil’s disease due to rat urine was not a foreseeable type of harm given the circumstances, even though some harm from rats (e.g. bites) was foreseeable. In other words, the manner may be unusual or unexpected; but the harm must still be of a foreseeable type.
Worked Example 1.2
Scenario: Workers employed by BuildCo negligently leave an open manhole unattended, surrounded by paraffin lamps. A child enters the site, accidentally knocks a lamp into the manhole, causing an unforeseeable explosion and severe burns to the child.
Question: Is BuildCo liable for the child's burn injuries?
Answer:
Yes. Leaving unattended paraffin lamps near an open manhole created a foreseeable risk of injury by burning. Although the manner in which the burns occurred (via explosion) was unforeseeable, the type of harm (burns) was foreseeable. BuildCo is therefore liable for the full extent of the burn injuries.
Worked Example 1.3
Scenario: A negligent driver injures a pedestrian. The pedestrian, a highly paid investment banker, is off work for six months and loses a significant sum in salary.
Question: Can the pedestrian recover the full lost earnings even though the extent of the loss (the amount) was not foreseeable?
Answer:
Yes. Loss of earnings is a foreseeable type of harm consequent on physical injury. The claimant’s unusually high salary goes to the extent of loss, which need not be foreseeable. The defendant is liable for the full loss of earnings flowing from the injury.
Worked Example 1.4
Scenario: A farm employee is negligently exposed to rats in a barn with poor hygiene controls. He develops Weil’s disease after contact with rat urine.
Question: Is the employer liable for the disease as a foreseeable type of harm?
Answer:
On these facts, likely no. While some harm from rats (e.g. bites) may be foreseeable, Weil’s disease from rat urine was held in Tremain v Pike to be too remote because it was not a foreseeable type of harm in the circumstances. The failure lies in matching the disease to the class of harm that was reasonably to be anticipated.
Exam Warning
A common mistake is to argue that because the extent of the damage or the exact way it happened was unforeseeable, the damage is too remote. Remember the key distinction: was the type of damage reasonably foreseeable? If yes, the defendant is generally liable for the full consequences, irrespective of the unforeseeable extent or manner. Conversely, if the kind of harm falls outside what was reasonably to be anticipated (e.g. an unusual disease where only bites were expected), remoteness bars recovery.
Revision Tip
Remoteness is the final element in establishing a negligence claim, applied after duty, breach, and factual causation have been proven. Ensure you distinguish it clearly from factual causation (the 'but for' test). Remoteness asks whether the law should attribute responsibility for the factually caused harm, based on foreseeability. Keep in mind that even where foreseeability is satisfied, the scope-of-duty principle may still limit recovery to losses caused by the very risks that made the defendant’s conduct negligent (SAAMCo; BPE v Hughes-Holland).
Key Point Checklist
This article has covered the following key knowledge points:
- Remoteness of damage acts as a legal limit on the consequences for which a negligent defendant is liable.
- The primary test for remotenness in negligence is reasonable foreseeability (The Wagon Mound (No 1)), reaffirmed in Cambridge Water.
- The defendant is liable only for damage of a type that was reasonably foreseeable at the time of the breach.
- The extent or severity of the foreseeable type of damage does not need to be foreseeable.
- The manner in which the foreseeable type of damage occurs does not need to be foreseeable (Hughes v Lord Advocate principle).
- The 'egg-shell skull' rule means defendants must take their victims as they find them, making them liable for the full extent of injuries even if exacerbated by a pre-existing vulnerability (Smith v Leech Brain; applied also to psychiatric vulnerability).
- Foreseeable consequential losses (e.g. loss of earnings following personal injury) are recoverable; unusually high amounts go to extent, not type.
- The “similar in type” rule has limits: where the specific kind of harm falls outside what was reasonably to be anticipated, it is too remote (e.g. Tremain v Pike).
- Scope-of-duty may further limit recovery even when foreseeability is met; a claimant can only recover losses within the risk the duty was meant to guard against (SAAMCo; BPE v Hughes-Holland).
- The impecunious claimant can recover full loss where impecuniosity affects extent rather than type (Lagden v O’Connor).
Key Terms and Concepts
- Remoteness of Damage
- Foreseeability
- Type of Harm
- Egg-Shell Skull Rule