Date: Fri, 29 Feb 2008 18:31

From: Robert Stevens

Subject: Corr v IBC [2008] UKHL 13

Logically, if they can foresee his suicide while he remains responsible for his actions, they can also foresee that his method of suicide may harm others while he remains responsible for his actions.

I don't think the questions are the same.

So for Mr Corr the issue was one of remoteness. He was the victim of a wrong, and the correct question was given the wrong was the harm suffered reasonably foreseeable. Whether the wrong itself was reasonably foreseeable is not part of this question. (It is a two-step process. Was there a wrong, which requires injury to Corr to be reasonably foreseeable? And then, given the wrong, what loss was reasonably foreseeable as a result.)

We see the same thing in a claim for breach of contract. The issue is whether the loss suffered as a result of breach of contract was within the reasonable contemplation of the parties. The foreseeability of the breach of contract is irrelevant at that stage.

As against a third party the issue would not be whether loss suffered as a result of a wrong was too remote but rather whether there was a wrong at all. To be wrongful, negligence in the abstract does not suffice, it must by negligence vis-a-vis this particular claimant (Bourhill v Young, Palsgraf). For this to be shown both the decision of Corr to harm the claimant and the wrong to Corr which led to Corr's decision would have to be reasonably foreseeable. Given this, there would be no logical inconsistency in saying that the harm suffered by Corr in this case was not too remote, but that if Corr had harmed a third party there would be no breach of duty in relation to that third party. (Of course there is a duty owed to such a third party not to negligently injure them - this duty is owed to everyone- but it would not have been breached.)

A variation on this theme would I suppose be what the result in McKew v Holland ought to be if McKew's act of stupidity had (reasonably foreseeably) injured an innocent third party? I think the third party should have a claim against the person who injured McKew, even though McKew himself has no claim. I don't see any logical inconsistency in that either.

RS

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