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REMOTENESS (Egg shell skull rule (A D has to take his victim as he finds…
REMOTENESS
Egg shell skull rule
A D has to take his victim as he finds him; thus, if it was reasonable to foresee some injury, however slight, to the P, then the D is liable for the full extent of the injury which P may sustain owing to some particular susceptibility
Smith v Leech Brain
Whether Ds could reasonably foresee the type of injury which he initially suffered, i.e. the burn. If P suffers initial foreseeable injury, then a tortfeasor takes his victim as he finds him and will be liable for the full extent of injury
Robinson v Post Office
Contracted encephalitis when given injection after injury. Reasonably foreseeable that as result of wrongful act P would require treatment, liable for full extent of damage.
Brice v Brown
Plaintiff had hysterical personality. After accident, plaintiff had nervous shock and it was foreseeable. Def liable for direct consequences of nervous shock (damages for costs of care required due to mental illness)
Stephenson v Waite Tileman NZCA: Question of foreseeability should be restricted to initial injury. If initial injury (cut on hand) was reasonably foreseeable, then link between virus entering wound causing brain damage and def's breach, can be forged as cause and effect.
Page v Smith Mild condition, got into accident, suffered psychiatric injury. Since it was foreseeable that the P might suffer physical injury, the D owed a duty of care and it was not necessary to ask if the D should have foreseen injury by shock
General test
Re Polemis (old directness test)
English CA concluded def liable for all direct consequences attributable to his negligence.
The fact that they did directly produce an unexpected result does not relieve the person who was negligent from the damage which his negligent act directly caused.
Once foreseeably likely to injure, liable for all direct consequences, even if the type of damage is unforeseeable
The Wagon Mound (No 1) (new foreseeability test)
Oil spillage settled under plaintiff's wharf, where it fouled plaintiff's slipways and later caused fire despite having a very high flashpoint.
Held: Some damage was foreseeable, such as the fouling of the slipways, but not the fire based on scientific opinion.
PC declared Re Polemis wrong.
A man must be considered to be responsible for the probable consequences of his act
The Wagon Mound (No 2): In No 1, fire damage was unforeseeable. Here, a slight risk was foreseeable.
Ho Soo Fong v Standard Chartered
Applied Wagon Mound test: the damage has to be of such a kind as the reasonable man should have foreseen
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General
Sunny Metal at [53]:
… whether, or to what extent, the defendant should have to answer for the consequences which his breach of duty has caused. … remoteness merely sets the limits of actionability for damage admittedly caused by the defendant’s wrong.
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