OUT OF THE MAZE: TOWARDS A CLEAR UNDERSTANDING OF THE TEST FOR REMOTENESS OF DAMAGES IN NEGLIGENCE

Authors

  • C COVAL
  • J C SMITH
  • JOAN RUSH

Abstract

Both academics and judges share the general opinion that the question of remoteness of damages cannot be resolved in a rule-governed manner, that is to say by the applications of a test. We disagree with this conclusion. We propose a test in terms of foreseability of damages which reconciles the leading decisions of The Wagon Mound (No. 1), The Wagon Mound (No. 2) and Hughes v. Lord Advocate. We have analyzed almost all the remoteness issues and have found that the test conforms with ninety percent of the past decisions, consequently we should be able to predict the outcome of remoteness issues with only a ten percent error. If courts consciously adopt our version of the foreseeability test, the margin of error could drop even further.

Keywords:

Tort Law

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Published

1983-09-01

Issue

Section

Legal Commentary

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