← The hardest concepts in United Kingdom law
In one breath
Even when a breach caused the damage, a defendant in tort is liable only for damage of a kind that was reasonably foreseeable when the breach occurred. The defendant takes the claimant as they find them, so the extent of the harm need not be foreseeable if its kind was.
The picture
Ripples on a pond
Drop a stone into a pond. The first rings are certain and strong, the later ones fainter, and some are so faint that no one would think to count them. A person who throws a pebble answers for the rings a sensible person would expect. They do not answer for the odd leaf that, by a freak of the wind, tips a toy boat at the far edge.
Remoteness is the line drawn in the water. In The Wagon Mound (No 1) oil spilt in a harbour was set alight by molten metal falling on cotton waste; fouling of the wharf was foreseeable but a fire was not, and there was no liability in negligence. In Hughes v Lord Advocate a boy was burned when a paraffin lamp left by workmen exploded; burns from the lamp were foreseeable, and it did not matter that the explosion happened in an unlikely way. In Smith v Leech Brain a burn triggered a cancer in a man predisposed to it; the kind of harm was foreseeable, so the defendant paid for it all.
Where the picture stops working
Ripples follow physics, but the legal test is evaluative: what counts as the “kind” of damage can be stated narrowly or broadly, and judges differ. The thin-skull rule has no counterpart on a pond. Contract has its own test, from Hadley v Baxendale, which asks what the parties could have contemplated, so the two should not be mixed. Hughes was a Scottish case and applies across the United Kingdom.
How it really works
- 1First establish that the breach caused the damage in fact, because remoteness comes after the but-for question.
- 2Identify the kind of damage that actually occurred, such as burns, fire, or a loss of earnings.
- 3Ask whether damage of that kind was reasonably foreseeable at the time of the breach (The Wagon Mound (No 1)).
- 4If the kind was foreseeable, it does not matter that the precise way it happened, or its scale, was not (Hughes v Lord Advocate).
- 5Apply the thin-skull rule: a defendant takes the claimant as they find them, so a frailer claimant’s worse injury is recoverable if injury of that kind was foreseeable (Smith v Leech Brain).
Why people get it wrong
- Treating remoteness as the same as causation. A harm can be factually caused and still too remote.
- Requiring the exact accident to be foreseeable. The test looks at the kind of damage, not at the details of how it came about.
- Thinking the thin-skull rule makes any consequence recoverable. It applies to the extent of harm in a claimant with a susceptibility, where the kind of harm was foreseeable.
- Importing the tort test into contract, where the rule in Hadley v Baxendale applies instead.
A worked example
The facts are invented
Rhys, a careless van driver, bumps Mina against a wall and gives her a small cut. Because of a rare susceptibility, the cut develops into a severe infection and she is ill for months. Rhys could foresee a cut, not the infection. But personal injury of that general kind was foreseeable, and he takes Mina as he finds her, so he is liable for the illness.
Now suppose Rhys carelessly spills solvent into a canal. Staining of nearby boats was foreseeable. A passing welder’s spark ignites the solvent and the fire destroys a boat shed. A court asking about the kind of damage might hold that fire was not the foreseeable kind, in the way of The Wagon Mound (No 1). That is the line a court would argue over.
Try it
A driver carelessly bumps a cyclist, who suffers a minor bruise. Because of an unusual condition, the bruise leads to a far more serious illness. The driver could foresee a bruise but not the illness. Can the cyclist recover for the illness?
Landmark authorities
Read the sources themselves; this list is a starting point.
- Hadley v Baxendale, (1854) 9 Exch 341
- Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound (No 1)), [1961] AC 388
- Smith v Leech Brain & Co Ltd, [1962] 2 QB 405
- Hughes v Lord Advocate, [1963] AC 837
Where to go next
More hard concepts in United Kingdom law
- Duty of care and the incremental approach (Tort law)
- Causation: the but-for test and its exceptions (Tort law)
- Vicarious liability (Tort law)
- The rule in Rylands v Fletcher (Tort law)
This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. The United Kingdom has three legal systems: England and Wales, Scotland, and Northern Ireland. These pages mostly describe the law of England and Wales and say where Scots law differs when it clearly does; Northern Ireland law is often similar to English law but is not covered separately. Parliament is sovereign, but the devolved legislatures also make law within their powers. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources before relying on any rule.