Documentation:Torts/Remoteness in law

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Remoteness in law

That the damage suffered was not remote is the fifth of five elements of the tort of negligence. (Remoteness is also sometimes called legal causation or proximate cause.) After proving duty, breach, damage, and causation in fact, the plaintiff must prove that as a matter of law the damage they suffered was not remote.[1] Broadly, remoteness asks if “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable”.[2]

Relevant considerations addressed in the remoteness enquiry include the reasonable foreseeability of the actual injury suffered, intervening events, the eggshell skull principle, and the crumbling skull principle.

Reasonable foreseeability of actual injury

In Re Polemis summarized
This Quimbee video provides a case summary.[3]

The now-abolished rule in Re Polemis & Furness, Withy & Co Ltd[4] was that "if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not".[5] In The Wagon Mound No 1, the Privy Council set this rule aside and held that liability in negligence was subject to a principle of remoteness.[6] The remoteness principle provides that a defendant to a negligence claim cannot be held liable for damage that was not reasonably foreseeable.

The Supreme Court of Canada in Nelson (City) v. Marchi clarified that "[t]he remoteness inquiry asks whether the actual injury was the reasonably foreseeable result of the defendant’s negligent conduct".[7] Whereas the foreseeability step of the duty of care analysis "focuses on the type of injury" that it was foreseeable the class of plaintiff would suffer, foreseeability at the remoteness stage "focuses on the actual injury suffered by the plaintiff" in the action.[7]

Case audio for Mustapha v. Culligan
Listen to the full case in this Legal Listening podcast.[8]

The leading case in Canada is Mustapha v. Culligan.[9] Mr. Mustapha suffered a severe mental injury after seeing (but not consuming) dead flies in bottled water supplied to him by the Culligan water company. The Supreme Court held that the bottled water supplier owed a duty of care to the end consumer; however, "the loss suffered by the plaintiff, Mr. Mustapha, was too remote to be reasonably foreseen".[10] The Court reasoned that Mr. Mustapha had "failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury".[11]

Intervening events

Damage will be too remote if the consequences of a defendant's careless conduct toward the plaintiff were interrupted by unforeseeable events that broke the chain of causation. This is the doctrine of novus actus interveniens.

In Home Office v. Dorset Yacht Co Ltd, the defendants were bootcamp officers in charge of supervising a group of unruly boys who subsequently escaped and caused damage to the plaintiffs' yacht.[12] The boys' escape did not operate as a novus actus interveniens because that behaviour and consequence was "the very kind of thing that [the] officers ought to have seen to be likely."[13] Lord Reid commented on the novus actus doctrine that if the intervening act was "something very likely to happen" it would not operate to break the chain of causation—regardless of "whether that action was innocent or tortious or criminal."[13]

In Canadian Pacific Ltd v. Paul Morsky Ltd, the plaintiff alleged the defendant "was negligent in failing to take precautions to assure that [the defendant's] tractor could not be moved by trespassers" and was therefore liable for a train derailment caused by said tractor being relocated onto railway tracks by vandals.[14] Though the claim in negligence ultimately failed for other reasons, because the involvement of the third party vandals was not reasonably foreseeable, their mischief was found to constitute a novus actus interveniens which would also have relieved the defendant of liability.[15]

The novus actus doctrine is a distinct concept from the doctrine of contributory negligence. "If an act or omission occurs before the incident that gives rise to the injury, then that is classified as contributory negligence"; if it is after, then it is potentially a novus actus interveniens.[16]

Eggshell skull plaintiffs

The eggshell skull or "thin skull rule makes the defendant liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-exisiting yet stable condition."[17]

For example, in Athey v. Leonati, a case involving the injury of a plaintiff who had a condition that made him particularly susceptible to back problems, the court stated:

This appeal involves a straightforward application of the thin skull rule. The pre-existing disposition may have aggravated the injuries, but the defendant must take the plaintiff as he finds him. If the defendant’s negligence exacerbated the existing condition and caused it to manifest in a disc herniation, then the defendant is a cause of the disc herniation and is fully liable... The plaintiff is entitled to the full amount of the damages as found by the trial judge.[18]

Although the plaintiff's pre-existing issues made the injuries worse than the average plaintiff would have suffered, the defendant's carelessness was still the cause of his injuries and so the defendant was liable for the full extent of the plaintiff's damages.

Crumbling skull plaintiffs

The crumbling skull rule also stands for the proposition that the defendant must take the plaintiff as he finds him. In cases where a plaintiff "has an unstable pre-existing condition", the crumbling skull rule states that "[t]he defendant need not compensate the plaintiff for the effects of their condition, which they would have experienced anyway."[17] This is to say that "[t]he defendant need not put the plaintiff in a position better than his or her original position."[19]

In Athey v. Leonati, the plaintiff suffered a disc herniation after two automobile accidents.[20] The court indicated that, had there been a "finding of any measurable risk that the disc herniation would have occurred without the accident," the crumbling skull rule may have applied to reduce damages.[21]

Discussion questions

Determining remoteness in Australia
In this episode of Just Torts, host Brent Liang discusses how to determine "whether the damage should be deemed too remote from the original tort" with Professor Barbara McDonald, in the context of Australian tort law.[22]

  • What is the difference in the foreseeability analyses that arise at the duty, breach and remoteness stages?
  • Does the concept of intervening acts play a useful role in the remoteness analysis?

Quiz


  1. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 3.
  2. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 12 citing Allen M Linden & Bruce Feldthusen, Canadian Tort Law, 8th ed (Markham: LexiNexis Butterworths, 2006).
  3. ↑ Quimbee (11 January 2021). "In re Polemis Case Brief Summary | Law Case Explained". YouTube.
  4. ↑ In Re Polemis & Furness, Withy & Co Ltd, [1921] 3 KB 560 (CA).
  5. ↑ Overseas Tankship v. Morts Dock & Engineering, [1961] UKPC 2 (BAILII) (§17.1.2) [The Wagon Mound No 1], citing In Re Polemis & Furness, Withy & Co Ltd, [1921] 3 KB 560 (CA).
  6. ↑ Overseas Tankship v. Morts Dock & Engineering, [1961] UKPC 2 (BAILII) (§17.1.2) at para 29 [The Wagon Mound No 1].
  7. ↑ 7.0 7.1 Nelson (City) v. Marchi, 2021 SCC 41 (§17.1.4) at para 97.
  8. ↑ Legal Listening (24 August 2020). "Mustapha v Culligan of Canada Ltd".
  9. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3).
  10. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at paras 6, 20.
  11. ↑ Mustapha v. Culligan, 2008 SCC 27 (§17.1.3) at para 18.
  12. ↑ Home Office v. Dorset Yacht Co Ltd, [1970] UKHL 2 (BAILII) (§17.2.2) at para 1.
  13. ↑ 13.0 13.1 Home Office v. Dorset Yacht Co Ltd, [1970] UKHL 2 (BAILII) (§17.2.2) at para 15.
  14. ↑ Canadian Pacific Ltd v. Paul Morsky Ltd, 1980 CanLII 2031 (SKKB) at paras 1–7.
  15. ↑ Canadian Pacific Ltd v. Paul Morsky Ltd, 1980 CanLII 2031 (SKKB) at para 38.
  16. ↑ Lovells, Hogan (February 2017). "Novus actus interveniens".
  17. ↑ 17.0 17.1 Courthouse Libraries | BC (6 September 2022). "Thin Skull & Crumbling Skull". (§17.3, §17.4).
  18. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§17.4.1) at paras 2, 47–48.
  19. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§17.4.1) at para 35.
  20. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§17.4.1) at paras 2–7.
  21. ↑ Athey v. Leonati, 1996 CanLII 183 (SCC) (§17.4.1) at para 36.
  22. ↑ Liang, Brent (19 Dec 2017). "Duty of Care: Duty of Care: Causation & Remoteness". Just Torts – via SoundCloud.
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