KYAMBOGO UNIVERSITY

FACULTY OF ENGINEERING

DEPARTMENT OF LANDS

BACHELOR OF SCIENCE IN BUILDING ECONOMICS

LAW OF TORT AND NEGLIGENCE

BE 316

MR. AGOLEI JIMMY DANY DANIEL

NAME; KABONGO YUSUF

RE No; 18/U/EBD/8907/PD

Task
Remoteness is important in the law of torts to the building economist because it’s a shield
to the building economist. Critically discuss the doctrine of remoteness of damage in
negligence and explain its relevance to the building economist.
Remoteness of damage relates to the requirement that the damages must be of a
foreseeable type. In negligence claims, once the claimant has established that the defendant
owes them a duty of care and is in breach of that duty which has caused damage, they must
also demonstrate that the damages were not remote. Remoteness’ of damage must also be
applied to claims under the occupier’s liability acts and also to nuisance claims

There are two tests for remoteness in tort:

 the direct consequence tests

 the reasonable foreseeability tests.

The direct consequence tests

Re Polemis & Furness Withy & Co Ltd (1921) 3 KB 560

The case concerned the renting of a ship, an arrangement known as a charter. The people renting
the ship, called the charterers, had loaded it with tins of petrol, and during the voyage these
leaked, releasing large amounts of petrol vapour into the hold. The ship docked at Casablanca,
and was unloaded. The workers unloading it had positioned some heavy planks as a platform
over the hold and, as a result of their negligence, one of the planks fell into the hold. It caused a
spark, which ignited the petrol vapour, and ultimately the ship was completely burnt, causing the
owners a loss of almost £200,000. They sued the charterers. The trial judge had found as a fact
that the charterers could not reasonably have foreseen that the fire was likely to occur as a result
of the plank falling into the hold, although they might reasonably have foreseen that some
damage to the ship might result from that incident. However, the Court of Appeal held that this
was irrelevant; the charterers were liable for any consequence that was a direct result of their
breach of duty, even if such consequences might be different and much more serious from those
which they might reasonably have foreseen. A consequence would only be too remote if it was
‘due to the operation of independent causes having no connection with the negligent act, except
that they could not avoid its results’.

The reasonable foreseeability test

Universe Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No
1) [1961] AC 388
The incident which gave rise to the litigation was an accident which occurred in Sydney
Harbour, Australia. In Wagon Mound No 1, the defendants were the owners of a ship which was
loading oil there and, owing to the negligence of their employees, some of it leaked into the
water and spread, forming a thin film on the surface. Within hours, the oil had spread to a
neighboring wharf, owned by the claimants, where another ship was being repaired by welders.
It caused some damage to the slipway, but then, a few days later, further and much more serious
damage was caused when the oil was ignited by sparks from the welding operations. The trial
judge found that the damage to the slipway was reasonably foreseeable but, given that the
evidence showed that the oil needed to be raised to a very high temperature before it would catch
fire, the fire damage was not reasonably foreseeable. Nevertheless, as the Australian courts were
also following Re Polemis, he found the defendants liable for both types of damage. The Privy
Council, however, took a different view, stating that Re Polemis was no longer good law. The
new test of remoteness was the foresight of the reasonable person: was the kind of damage
suffered by the claimant reasonably foreseeable at the time of the breach of duty? Under this test,
the defendants in Wagon Mound No 1 were only liable for the damage to the slipway, and not
for the fire damage. The reasonable foreseeability test as set down in Wagon Mound No 1 is now
the standard test for remoteness of damage in negligence.

Hughes v Lord Advocate (1963) AC 837

It was held that it does not matter if the exact circumstances are not foreseen, as long as harm of
the kind could be foreseen. That is, it is not required that the exact manner be foreseen, as long as
the harm could be foreseen. Workers working on a dark street went on a break, leaving an open
manhole. They had surrounded it by a canvas tent, and a ladder to get in. There were red paraffin
lamps around it. Two young boys went in, and one of the lamps were knocked over, and there
was an explosion. The younger boy fell into the manhole as a result, and suffered severe burns.
The House of Lords held that the defendant owed a duty and breached it, and although the
injuries of a different degree weren’t foreseeable, however, something of the kind was
foreseeable. Whilst the manner was unforeseeable, the harm could have been foreseeable.

The egg shell skull rule

The final aspect of remoteness of damage is the egg shell (thin skull rule). This means a
defendant must take their victim as they find them i.e. if the victim is particularly vulnerable or
has a pre existing condition resulting in them suffering greater injury than would be expected in
an ordinary person, the defendant remains responsible for the full extent of injury.

It is well established that the tortfeasor must take his victim as he finds him. The defendant will
be responsible for the harm caused to the claimant with the weakness or predisposition to a
particular injury or illness.

In Smith v Leech Brain & Co Ltd (1962), the claimant was burnt on the lip as a result of the
defendant’s negligence. He had a pre-cancerous condition, which became cancerous as a result
of the burn, and the defendant was held liable for the full result of the negligence. Traditionally,
it was considered that the ‘eggshell-skull’ rule did not apply in economic loss cases, where the
claimant’s lack of funds results in the financial loss being greater than it might otherwise have
been. The view was that a defendant was not liable to pay any extra losses caused by the
claimant’s lack of money.

Robertson v Post Office (1974) 2 All ER 737

The plaintiff suffered brain damage after getting a tenus shot for graze and it was reasonably
foreseeable that the medical treatment would go wrong and therefore the defendant is liable for
damage.

RELEVANCE OF THE DOCTRINE OF REMOTENESS OF DAMAGE TO THE

BUILDING ECONOMIST

It helps to limit the liability of the building economist

The egg shell skull rule helps the building economist to reduce on the loss to be recovered. The
building economist can first do a check up on his staff before hiring them to determine whether
they have preexisting conditions so as to reduce on his liability in the future.

It helps the building economist not to pay twice for the same injury

References

 C. Kameshwar Rao, Law of Negligence, 1968.

 J. P. Gupta, Treatise on the Principles of the Law of Torts, 1965.
 Law Commission, First Report on the Liability of the State in of India Tort, 1956.
 P. S. Atchuthan Pillai, Principal of the Law of Tort, 5th ed., 1972.