Chapter 10
Actionability
10.1 The basics:
When a C will be prevented from suing a D in tort for compensation for a loss C has suffered
on the ground that the loss was a remote consequence of the D’s tort.
The law on when a loss that a D’s tort has caused a C to suffer will be actionable.
Remoteness-> non actionable because they are too remote a consequence of that tort being
committed. Different rules in determining
Reasonable foreseeability (The Wagon Mound)
D is liable only for losses of a kind which it was reasonably foreseeable that C might suffer at
the time of the tort
The remoteness rule of unforseeability applies to all non-intentional torts-> D committed the
tort without having an intention to injure someone else, or some other form of very culpable
intent.
The remoteness rule that applies to intentional torts says that any losses suffered by the V of
an intentional tort as a direct consequence of that tort being committed will not be too
remote to be actionable, no matter how unforeseeable they were.
Scope of duty-> some losses will be non-actionable because they call outside the scope of
duty that the D owed the C. best example= cases about breach of statutory duty rather than
negligence.
Gorris v Scott [1874]
What matters is the kind of loss.
Other reasons-> Gray v Thames Trains Ltd [2009
10.2 Remoteness of damage:
Foreseeability test-> the Courts have emphasised that neither ‘the precise manner [in] which
the injury occurred nor its extent [have] to be foreseeable.]
What has to be foreseeable?
What matters is the kind of loss
Not its extent: the ‘eggshell skull’ rule (Smith v Leech Brain)
Nor the manner in which it was caused (Hughes v Lord Advocate, Jolley v Sutton)
Jolley v Sutton LBC [2000] -> Lord Hoffman: ‘what must have been [foreseeable] is not the
precise injury that occurred but injury of a given description… the description is formulated
by reference to the nature of the risk that ought to have been foreseen.’
The courts enjoy leeway in determining how to describe what type of injury could’ve been
reasonably foreseen.
Jolley-> owners of patch of land with boat-> boat=rotting-> boys play and attempt to repair
the boat. While doing this, the boat collapses on one of the boys-> the D’s argue that this
wasn’t foreseeable-> wasn’t foreseeable that a boat may fall on someone (they could
foresee that someone could fall through the boat) -> courts disregard this-> state that the
fact that someone could suffer some sort of physical injury is foreseeable-> the kind is
maintained-> the manner doesn’t matter.
At a formal level, McBride + Bagshaw determine whether it was reasonably foreseeable that
a D’s tort would result in a C suffering a particular type of loss by asking whether at the time
the D acted, there was a ‘real risk’ that the C would suffer that kind of loss as a result of the
D’s conduct.
Actionability
10.1 The basics:
When a C will be prevented from suing a D in tort for compensation for a loss C has suffered
on the ground that the loss was a remote consequence of the D’s tort.
The law on when a loss that a D’s tort has caused a C to suffer will be actionable.
Remoteness-> non actionable because they are too remote a consequence of that tort being
committed. Different rules in determining
Reasonable foreseeability (The Wagon Mound)
D is liable only for losses of a kind which it was reasonably foreseeable that C might suffer at
the time of the tort
The remoteness rule of unforseeability applies to all non-intentional torts-> D committed the
tort without having an intention to injure someone else, or some other form of very culpable
intent.
The remoteness rule that applies to intentional torts says that any losses suffered by the V of
an intentional tort as a direct consequence of that tort being committed will not be too
remote to be actionable, no matter how unforeseeable they were.
Scope of duty-> some losses will be non-actionable because they call outside the scope of
duty that the D owed the C. best example= cases about breach of statutory duty rather than
negligence.
Gorris v Scott [1874]
What matters is the kind of loss.
Other reasons-> Gray v Thames Trains Ltd [2009
10.2 Remoteness of damage:
Foreseeability test-> the Courts have emphasised that neither ‘the precise manner [in] which
the injury occurred nor its extent [have] to be foreseeable.]
What has to be foreseeable?
What matters is the kind of loss
Not its extent: the ‘eggshell skull’ rule (Smith v Leech Brain)
Nor the manner in which it was caused (Hughes v Lord Advocate, Jolley v Sutton)
Jolley v Sutton LBC [2000] -> Lord Hoffman: ‘what must have been [foreseeable] is not the
precise injury that occurred but injury of a given description… the description is formulated
by reference to the nature of the risk that ought to have been foreseen.’
The courts enjoy leeway in determining how to describe what type of injury could’ve been
reasonably foreseen.
Jolley-> owners of patch of land with boat-> boat=rotting-> boys play and attempt to repair
the boat. While doing this, the boat collapses on one of the boys-> the D’s argue that this
wasn’t foreseeable-> wasn’t foreseeable that a boat may fall on someone (they could
foresee that someone could fall through the boat) -> courts disregard this-> state that the
fact that someone could suffer some sort of physical injury is foreseeable-> the kind is
maintained-> the manner doesn’t matter.
At a formal level, McBride + Bagshaw determine whether it was reasonably foreseeable that
a D’s tort would result in a C suffering a particular type of loss by asking whether at the time
the D acted, there was a ‘real risk’ that the C would suffer that kind of loss as a result of the
D’s conduct.
