Remoteness of damage - Reasonably foreseeable harm

Learning Outcomes

This article examines remoteness of damage in negligence, including:

• the core purpose of remoteness rules in limiting negligence liability to foreseeable loss
• how the reasonable foreseeability test from The Wagon Mound defines the recoverable scope of damage
• the distinction between foreseeable type or kind of harm and unforeseen mechanism or extent of injury
• the operation of the egg-shell skull rule in cases involving physical and psychiatric vulnerability
• criteria and illustrative case law for deciding when damage is too remote to be recoverable
• the role of intervening acts (novus actus interveniens) and when they break the chain of causation
• how subsequent medical treatment, rescue attempts, and claimant conduct affect remoteness and liability allocation
• the approach to psychiatric harm for primary victims where physical injury was reasonably foreseeable
• structured methods for analysing SQE1-style multiple-choice questions and problem scenarios on remoteness
• exam-focused strategies for applying leading authorities to fact patterns and avoiding common analytical errors

SQE1 Syllabus

For SQE1, you are required to understand the rules on remoteness of damage in negligence and how they limit a defendant’s liability, with a focus on the following syllabus points:

• the test of reasonable foreseeability for remoteness of damage
• the distinction between the type or kind of harm and the manner or extent of harm
• the application of the egg-shell skull rule
• the effect of intervening acts (novus actus interveniens) on liability
• how to apply these principles to SQE1-style MCQs and client-based scenarios
• how subsequent medical treatment and rescue attempts affect remoteness and chain of causation
• how psychiatric harm interacts with remoteness when physical injury is foreseeable (primary victims)

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.

1. What is the main test for remoteness of damage in negligence?
   1. Directness
   2. Reasonable foreseeability
   3. Probability of harm
   4. Strict liability

2. True or false? If the type of harm is foreseeable, a defendant is liable for the full extent of the harm, even if the extent was not foreseeable.

3. Which rule states that a defendant must take the claimant as they find them, including pre-existing vulnerabilities?

4. In which case was the reasonable foreseeability test for remoteness established?

Introduction

Remoteness of damage is a key concept in negligence that limits a defendant’s liability to losses that are not too far removed from their breach of duty. The law draws a line so that only losses that were reasonably foreseeable at the time of the defendant’s negligent act are recoverable. This ensures that liability is fair and does not extend to every possible consequence of negligence. Remoteness is distinct from factual and legal causation: even where the breach factually caused the loss, recovery is limited to damage of a kind that was within the reasonable contemplation of a person in the defendant’s position when the breach occurred.

Historically, an older “directness” view held that any direct consequence of negligence was recoverable. Modern UK law rejects that approach for negligence. The controlling principle is reasonable foreseeability of the type or kind of damage.

Key Term: remoteness of damage
Remoteness of damage refers to the legal rule that a defendant is only liable for losses that are not too remote from their breach of duty—specifically, losses that were reasonably foreseeable at the time of the breach.

The Reasonable Foreseeability Test

The leading test for remoteness of damage is whether the type or kind of harm suffered by the claimant was reasonably foreseeable by the defendant at the time of the negligent act. This is an objective test: would a reasonable person in the defendant’s position have foreseen the risk of that type of harm?

Key Term: reasonable foreseeability
Reasonable foreseeability means that a reasonable person in the defendant’s position would have foreseen the risk of the type of harm that actually occurred.

The test was established in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) [1961]. The court held that a defendant is only liable for damage of a kind that was reasonably foreseeable, not for every consequence of their negligence. This shifted the focus away from the mere directness of the consequences and placed it squarely on whether the kind of loss was within the reasonable contemplation at the time of the breach.

Foreseeability in remoteness concerns the general category of harm (e.g., personal injury by burning, property damage by contamination), not the precise chain of events. Importantly, remoteness is assessed prospectively: using the knowledge reasonably available at the time of the negligent act, rather than with hindsight.

Worked Example 1.1

A factory negligently allows oil to spill into a harbour. Welding work on a nearby wharf causes the oil to ignite, resulting in a fire that damages several boats. Is the factory liable for the fire damage?

Answer:
The factory is only liable if fire damage was a reasonably foreseeable consequence of the oil spill. If fire was not a foreseeable risk, the damage is too remote and the factory is not liable.

Type or Kind of Harm

It is the type or kind of harm that must be foreseeable, not the precise manner in which it occurs or its extent. If the type of harm is foreseeable, the defendant is liable for the full extent, even if the way it happened or the seriousness was unexpected. This is sometimes described as the “similar in type” rule: liability arises where the claimant’s injury is of a type that a reasonable person would foresee from the breach, even if the mechanism is unusual or unforeseeable.

Key Term: type of harm
The type of harm refers to the general category of injury or damage (e.g., burns, property damage) rather than the specific details of how it occurred.

UK courts have emphasised this distinction. In Hughes v Lord Advocate [1963], the defendant’s employees left paraffin lamps around an open manhole covered by a tent. A child knocked a lamp into the hole, causing an unforeseen explosion and severe burns. Although the precise mechanism (an explosion) was not foreseeable, burns were a foreseeable type of injury from leaving lit lamps by an open manhole. The defendants were liable because the harm was of a foreseeable kind. Conversely, in Tremain v Pike [1969], a claimant contracted Weil’s disease from contact with rats’ urine after the defendant negligently allowed rats to proliferate. The court held that the foreseeable type of harm was rat bites, not the rare disease contracted from urine. The disease was too remote because that kind of harm was not foreseeable on those facts.

These cases illustrate the boundary: liability follows for injury of a foreseeable kind, even if the precise mechanism differs (Hughes), but not where the injury is of a kind outside what a reasonable person would anticipate (Tremain).

Worked Example 1.2

A child is burned when a lamp is knocked into a manhole, causing an explosion. The defendant had left the manhole open with lamps as a warning. Is the defendant liable for the burns?

Answer:
Yes. Burns are a foreseeable type of harm from leaving lamps unattended, even if the explosion was not foreseen. The precise way the injury occurred does not matter.

Worked Example 1.3

A farm owner negligently allows rats to multiply on the premises. A worker later develops a rare disease transmitted through rats’ urine. Is the farm owner liable for the disease?

Answer:
No. On these facts, the foreseeable type of harm was injury from rat bites, not the rare disease transmitted through urine. The disease is too remote because its kind was not reasonably foreseeable.

The Egg-Shell Skull Rule

If the type of harm is foreseeable, the defendant is liable for the full extent of the harm, even if the claimant had a pre-existing vulnerability that made the injury worse. This is known as the egg-shell skull rule. It applies to physical and psychiatric vulnerabilities: once some personal injury of a foreseeable kind is established, the defendant must take the claimant as found, including unexpected severity due to individual susceptibility.

Key Term: egg-shell skull rule
The egg-shell skull rule means that a defendant must take the claimant as they find them and is liable for the full extent of the harm, even if the claimant’s condition made the injury more severe than expected.

The rule extends to consequences of necessary medical treatment flowing from the primary injury. In Robinson v Post Office [1974], the claimant suffered a minor leg injury due to negligence and then had a severe allergic reaction to an anti-tetanus injection. The court held the defendant liable for the full consequences. The need for medical treatment was reasonably foreseeable; the precise extent of the reaction did not have to be. This sits comfortably with remoteness: the type of harm (personal injury requiring treatment) was foreseeable, so the unexpected severity (because of allergy) remains within the scope of liability.

The principle also operates in claims where physical injury is foreseeable but psychiatric harm is suffered. For a primary victim (someone in the zone of physical danger), the foreseeability of physical injury suffices to impose a duty encompassing psychiatric injury; once some personal injury risk is foreseeable, the defendant takes the claimant as found, even if psychiatric harm is significantly more serious than expected.

Worked Example 1.4

A driver negligently causes a minor collision. The claimant suffers serious fractures because of a rare bone condition. Is the driver liable for all the injuries?

Answer:
Yes. Bone fractures are a foreseeable type of harm in a car accident. The driver is liable for the full extent of the injuries, even though the claimant’s condition made them worse.

Worked Example 1.5

A pedestrian is negligently knocked and suffers a minor wound. A routine anti-tetanus injection then triggers a severe allergic reaction causing serious complications. Can the pedestrian recover for the complications?

Answer:
Yes. The need for medical treatment is a foreseeable consequence of personal injury, and the defendant must take the claimant as found. The severity of the reaction need not be foreseeable.

Intervening Acts (Novus Actus Interveniens)

Sometimes, an event occurs after the defendant’s negligence that contributes to the claimant’s loss. If this event is sufficiently independent and unforeseeable, it may break the chain of causation, making the original defendant not liable for the further loss. The courts treat intervening acts under two connected questions: causation and remoteness. If the intervening act is a natural and foreseeable consequence of the original negligence, the chain is unlikely to be broken. If it is independent, deliberate or wholly unpredictable and overwhelming, it may be a novus actus interveniens.

Key Term: novus actus interveniens
A novus actus interveniens is a new, independent act or event that breaks the chain of causation between the defendant’s breach and the claimant’s loss, so the defendant is not liable for the further loss.

Typical categories include:

• third-party acts (negligent, reckless or intentional)
• the claimant’s own acts (including failure to mitigate or unreasonable conduct)
• natural events (e.g., extreme weather, earthquakes)

Subsequent medical treatment is a common scenario. Ordinarily, reasonable medical treatment necessitated by the original injury will not break the chain; further injury caused by such treatment remains within the scope of liability if the type of harm was foreseeable. Only grossly abnormal or wholly independent medical acts might be treated as breaking the chain.

Rescue attempts may also arise. If rescue is a foreseeable response to the defendant’s negligence, injuries sustained in rescue will often be recoverable. Conversely, where an intervening act is truly extraordinary and not reasonably foreseeable, recovery may be cut off for the additional damage.

Worked Example 1.6

A builder negligently stores chemicals. A fire breaks out due to this negligence. While firefighters are tackling the fire, an unexpected earthquake causes the chemicals to spill into a river, polluting it. Is the builder liable for the river pollution?

Answer:
The earthquake is an unforeseeable, independent event. It may be a novus actus interveniens, breaking the chain of causation. The builder is not liable for the pollution caused by the earthquake.

Worked Example 1.7

A cyclist negligently injures a pedestrian. In hospital, a doctor administers standard treatment which, due to an unknown patient-specific sensitivity, aggravates the injury. Does the cyclist remain liable for the aggravated harm?

Answer:
Yes. Necessary medical treatment is a foreseeable consequence of personal injury, and the defendant must take the claimant as found. The chain is not broken by routine medical care that unexpectedly worsens the injury.

Worked Example 1.8

A driver negligently injures a claimant’s ankle. The claimant ignores medical advice and embarks on high-impact sport, causing a serious re-injury. Is the driver liable for the re-injury?

Answer:
Not usually. The claimant’s unreasonable conduct may be treated as an intervening act or failure to mitigate, breaking the chain for the additional harm. If the claimant’s conduct was reasonable and the worsening was a foreseeable progression of the primary injury, the driver may remain liable.

Application to SQE1 Problem Scenarios

When answering SQE1 questions, always ask:

• Was the type of harm reasonably foreseeable at the time of the breach?
• Did the claimant have a pre-existing condition that made the harm worse?
• Did any intervening acts occur, and were they foreseeable or independent?

Beyond these core queries, adopt a structured approach:

• Identify the harm suffered and categorise it by type (e.g., burns, crush injuries, contamination, disease).
• Determine if that kind of harm was within reasonable contemplation at the time of the negligent act; do not use hindsight.
• Separate type-of-harm foreseeability from the mechanism: unusual chains of events do not defeat liability if the harm type was foreseeable.
• Consider the egg-shell skull rule: once the type of harm is foreseeable, liability extends to the full extent of the injury, including unexpected severity due to vulnerabilities or standard medical treatment.
• Assess whether any later events are sufficiently independent and unforeseeable to constitute a novus actus interveniens. Standard rescue and medical responses generally will not break the chain. Deliberate wrongdoing or extreme natural events may do so.

Exam Warning

A common mistake is to focus on the exact way the harm occurred or its extent, rather than the type of harm. For SQE1, remember that if the type of harm is foreseeable, the defendant is liable for all its consequences. Another frequent error is treating routine medical treatment or foreseeable rescue as breaking the chain; they usually do not. Only independent, unforeseeable events will break liability for further damage.

Revision Tip

When revising, practise identifying the type of harm in different scenarios and applying the reasonable foreseeability test. Use past SQE1 questions to check your understanding. Contrast cases where the injury is of a foreseeable kind but arises through an unusual mechanism (e.g., burns from an explosion) with cases where the injury is of an unforeseeable kind (e.g., rare disease transmission). Consolidate the egg-shell skull rule by testing scenarios involving pre-existing conditions and subsequent medical treatment.

Key Point Checklist

This article has covered the following key knowledge points:

• Remoteness of damage limits liability to losses that are not too remote from the breach.
• The main test is whether the type of harm was reasonably foreseeable at the time of the breach.
• Liability is determined by foreseeability of the kind of harm, not the precise mechanism or extent.
• The defendant is liable for the full extent of foreseeable harm, even if the extent or manner was not foreseeable.
• The egg-shell skull rule means the defendant must take the claimant as they find them; this includes unexpected severity and consequences of necessary medical treatment.
• An unforeseeable intervening act (novus actus interveniens) may break the chain of causation and end liability; foreseeable responses (e.g., rescue, routine medical care) generally do not.
• Foreseeability is assessed prospectively, based on information reasonably available at the time of the breach, not with hindsight.

Key Terms and Concepts

• remoteness of damage
• reasonable foreseeability
• type of harm
• egg-shell skull rule
• novus actus interveniens