Chapter 8 Outline answers to essay questions

Causation: intervening acts and remoteness

‘It is true that the duty of care expected in cases of this sort is confined to reasonably foreseeable danger, but it does not necessarily follow that liability is escaped because the danger actually materializing is not identical with the danger reasonably foreseen and guarded against.’

(Lord Jenkins in Hughes v Lord Advocate)

Analyse this statement in terms of case law.

You are required to explain the concept of remoteness (or causation in law) and the way in which a line must be drawn on causal responsibility in tort for reasons of practicality or justice. The original test was directness (Re Polemis) but following Wagon Mound No 1 (briefly described) causation will be established by damage which is ‘reasonably foreseeable’. You may wish to consider whether these tests bring significantly different outcomes. The answer will also depend on how the ‘kind of damage’ is described: widely and generally or narrowly and in specific detail? This may be driven by policy concerns: whether it is intended to expand or restrict liability, noting that there are other means, besides causation, of doing so.

Another problem arises when reasonably foreseeable results occur, but in an unforeseeable way: e.g. Hughes v Lord Advocate. In that case it was held that the exact way that the damage is caused does not need to be reasonably foreseeable – the focus is on the damage itself. This was upheld and applied by the House of Lords in Jolley v Sutton.

The answer must also be supported by consideration of the ‘thin skull’ rule: its justification, and examples: Smith v Leech Brain, Robinson v Post Office and Lagden v O’Connor.