Damage

The final part of the test for Negligence is to show that the Defendant’s breach caused the loss/harm /injury suffered by the claimant: there are two
parts to this; firstly did the defendant in fact cause the damage (known as factual causation), and secondly, was the damage not to remote from the
defendant (known as remoteness of damage)

Test Outcomes ( statements used to Case law to refer to

Factual Causation
‘But for’ test
Test
Remoteness of Damage Is the consequence
reasonably foreseeable as a
result of Defendant’s breach
of duty? If it is not – the
Defendant is too remote (not liable.)
apply the law)
“But for the Defendant’s breach
of duty, the loss / injury suffered
by the Claimant would not have
occurred. Therefore the
Defendant is the factual cause of
Damage.”
OR
“But for the Defendant’s breach
of duty the loss / harm suffered
by the claimant would have
occurred anyway therefore the
Defendant is not the factual
cause of Damage”
Outcomes (Statements used to
apply the law)
“The loss/harm suffered by the
claimant IS a reasonably foreseeable
consequence of the Defendant’s
breach. The damage is not too
remote and the Defendant is
therefore liable for the damage.”
OR
“The loss/harm suffered by the
claimant was IS NOT a reasonably
foreseeable consequence of the
Barnett v. Kensington and
Chelsea Hospital
The hospital were not the
factual cause of the man’s
death: but for the doctor’s
breach of duty by sending
him home he would have
died from the arsenic
anyway.
Case Law
The Wagon Mound
Held: The damage caused to the
Claimant’s wharf by fire was not a
reasonably foreseeable
consequence of the defendant’s
breach of duty by spilling the oil.
Therefore the damage was too
remote and the defendant was
not liable for the damage.

Following on from above…
The TYPE of loss / injury must be
reasonably foreseeable (but the
precise manner does not need to be
foreseeable”
Thin Skull Rule RULE: You must take your claimant
as you find them - the precise extent
or seriousness of the injury doesn’t
have to be foreseeable
(i.e. you cannot shift liability to them
due to their vulnerabilities or
weaknesses)
Defendant’s breach. Therefore the
damage is too remote and the
Defendant is not liable for the
damage. As in the case of the
Wagon Mound”
“This type of loss/ injury is exactly
the type you would expect from the
defendant’s breach, therefore the
damage is not too remote. ” OR
“This type of loss / injury is NOT the
type you would expect from the
defendant’s breach, therefore the
damage is too remote”
“Even though the precise extent or
seriousness of the damage could not
have been foreseen by the
defendant, because it was made
worse by the claimant’s
weakness/vulnerability, the damage
is not too remote because you must
‘take your claimant as you find
them”
Bradford v. Robinson Rentals
The damage was not too remote;
damage from the cold was
reasonably foreseeable even if the
precise manner (frostbite) was not.
Doughty v. Turner
The damage was too remote – it was
not reasonably foreseeable that an
explosion would occur and the
claimant would suffer burns
Smith v. Leech Brain
The burn suffered by the claimant
was a foreseeable consequence,
even though his death, was not.
Nevertheless the defendant
company were liable, as you must
‘take your victim as you find them.’