Date: Fri, 11 Feb 2005 15:07:17 -0500

From: Jason Neyers

Subject: Remoteness

Dear Robert:

In your (twisted) Doughty v Turner example, I would say that the contract rule could trump the tort one but would say, as a gut reaction, that you are mis-applying the contract rule by characterizing/describing the risk too narrowly given the warranty by the employer (a la Lord Scarman in Parsons). Was it in the RC of the parties, at KF, that failure to provide a safe system of work, could lead to physical injury through molten metal? Most probably, yes.

IIRC, the only reason that the court in Doughty was so specific with the description of the risk is that there was really no violation of the standard of care and the plaintiff was trying to reason backwards from remoteness (using Hughes) to breach of standard.

If the above is right don't think that we have to follow Lord Denning.

Just some thoughts.

Quoting Robert Stevens:

ODG: Remoteness As an inclusionary rule HvB is clearly insufficient. No one thinks that all loss which is suffered which is reasonably foreseeable is recoverable either in contract or tort (SAAMCO, Chester v Afshar etc). Whether we should abandon HvB as an exclusionary rule is another issue.

In those cases where the tortious duty depends upon a voluntary assumption of responsibility (eg Brown v KMR) the contract test must apply. These cases are decided in this way because the duty in tort arises from a 'voluntary assumption of responsibility' (i.e. the duty to take care arises from the promise to take care both in contract and tort.)

If you take the view (per Lord Reid in Heron II) that the tort test is more generous than the contract test because in a contractual relationship you have the opportunity to warn the other side of potential risks ("I really need you to get here on time as I don't have a spare mill shaft"), where liability is concurrent and the opportunity to warn exists you should apply the contract test

If you take the view that the contract test is determined by those risks we have consented to run, where the tortious duty is similarly based upon the assumption of responsibility the test should be the same.

But in Doughty v Turner (twisted) can it really be right that the contract test trumps tort?

A Ltd employs B to work dipping asbestos into a melt. Injuries from splashes are, at the time of contracting, reasonably foreseeable but no other injury. After B has started work it becomes apparent that the asbestos can explode. B is subsequently seriously injured because of carelessness for which A Ltd is responsible. A claim is available in tort or in contract for the breach of an implied duty to provide a safe system of work.

The traditional formulation of the contract test would indicate that the loss is too remote as the injury was not within the contemplation of the parties at the time of contracting (H v B). Under the formulation of the tort test in WM (1) as it was foreseeable at the time of breach.

I would have thought the more generous tort test must apply. B didn't have the opportunity to warn of the risk - they didn't know of it. The duty in tort is independent of any assumption of responsibility by B Ltd.

Perhaps Lord Denning's view in Parsons v Uttley is near (if not quite) the truth after all - we have one rule for economic loss (at least where dependent upon an assumption of responsibility) and another for other forms of loss? We would have to modify our traditional formulation of the rules though.

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