Limitations based on a concern with the logical implications of strict adherence to factual causation. Directness Test (abandoned) Now: Initially, the courts referred to ideas of directness when determining whether the outcome of a negligent act was too remote this is the rule in Re Polemis & Furniss, Withy & Co Ltd – [1921] According to the directness rule, a defendant is liable for all of the direct consequences of his or her negligence. Also important to note that when applying this rule, the courts were careful to distinguish between the foreseeability and remoteness. Foreseeability was relevant to breach and duty Remoteness was relevant to the extent of liability The distinction was based on the idea that questions of wrongfulness should be confined to the duty and breach stage of the calculus, while more practical questions of the extent of liability should be dealt with at the causation stage. Foreseeability Test The directness test was abandoned in Now: The Wagon Mound (No. 1) Court held that even though the crew were careless and breached their duty of care, the resulting damage by fire was not foreseeable by a reasonable person. Directness/indirectness does not matter. The key is foreseeability and the capacity to do something about it. Viscount Simonds: is, no doubt, proper when considering tortious liability for negligence to analyse its “It elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. ... Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural”, equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done. Key here is that the court established a new test based not on directness but on foreseeability. Court argued that the new approach was fairer, simpler, and less weighted towards the defendant.
Limitations based on a concern with the logical implications of strict adherence to factual causation. Directness Test (abandoned) Now: Initially, the courts referred to ideas of directness when determining whether the outcome of a negligent act was too remote – this is the rule in Re Polemis & Furniss, Withy & Co Ltd [1921] According to the directness rule, a defendant is liable for all of the direct consequences of his or her negligence. Also important to note that when applying this rule, the courts were careful to distinguish between the foreseeability and remoteness. Foreseeability was relevant to breach and duty Remoteness was relevant to the extent of liability The distinction was based on the idea that questions of wrongfulness should be confined to the duty and breach stage of the calculus, while more practical questions of the extent of liability should be dealt with at the causation stage. Foreseeability Test Now: The directness test was abandoned in The Wagon Mound (No. 1) Court held that even though the crew were careless and breached their duty of care, the resulting damage by fire was not foreseeable by a reasonable person. Directness/indirectness does not matter. The key is foreseeability and the capacity to do something about it. Viscount Simonds: “It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. But there can be no liability until the damage has been done. It is not the act but the consequences on which tortious liability is founded. ... Who knows or can be assumed to know all the processes of nature? But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural”, equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done. Key here is that the court established a new test based not on directness but on foreseeability. Court argued that the new approach was fairer, simpler, and less weighted towards the defendant.
Goold%20(Ben)_Law_140_-_Torts_Winter_2011_Sara_Li.docx