Quentin Tannock, Barrister at 4 Pump Court, discussed foreseeability, remoteness and the burden of proof in tort. The following topics are covered:

• Principles limiting recoverable damages in tort
  • Scope of duty, was the damage suffered damage that fell within the scope of the tortfeasor’s duty of care?
  • Remoteness, could the damage suffered have been reasonably anticipated?  This is frequently also referred to as foreseeability.
  • Intervening cause, was the damage or a portion of it caused by some other factor?
  • Failure to mitigate, did the claimant effectively increase the damage by failing to mitigate their loss?
  • Contributory negligence, did the claimant contribute to the extent of the damage by their own negligence?
• Should the damage have reasonably been anticipated?
  • Was the type of loss reasonably foreseeable at the time of the breach?
    • The Wagon Mound: Overseas Tankship (UK) Ltd v Morts Dock Engineering Co. [1961] AC 388
  • If the type of loss was reasonably foreseeable, it does not matter that precisely how the loss was incurred was not reasonably foreseeable
    • Hughes v Lord Advocate [1963] AC 837
  • Where there are concurrent causes of action in contract and tort currently the narrow contractual test in respect of foreseeability (set out in Hadley v Baxendale) applies
• Armstead v RSA
  • What did the Supreme Court decide in Armstead?
  • Burden of proof
  • Likely impact on future RTA cases
  • Practical implications.

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