Date: Tue, 27 May 2008 15:36

From: Robert Stevens

Subject: The refreshing SCC

The SCC rightly saw that they could not define the standard of reasonable foreseeability but wrongly thought they were dealing with an issue of remoteness, when in fact they were faced, as Ben Zipursky rightly points out, with the question of whether the duty owed had been breached.

The degree of likelihood with which the resultant injury to the claimant must be foreseeable before we can say that the defendant's negligence constitutes a wrong with respect to the claimant is dependent upon a number of factors. Most obviously, if the foreseeable possible injury is serious (e.g. death) the degree of likelihood may be much lower than for one which is trivial. Other factors, for example ease of precautions, are also relevant so that we cannot define 'reasonable' foreseeability as, say, 10% probable. If the potential injury is very serious, there are easy precautions and, say, the action is itself unlawful for other reasons the degree of probability may be very low indeed, not far fetched as in Wagon Mound (No 2). In other circumstances what will constitute reasonable foresight may be different. All this is true in the context of psychiatric injury just as much as for physical injury.

'Remoteness' properly speaking is an issue where we know that the defendant has committed a wrong (i.e. a breach of duty) with respect to the claimant and we wish to know the scope of liability for consequential losses. At that stage, the same range of factors do not apply. If reasonable foreseeability is to be our test at this stage, I don't think the degree of likelihood should vary. We never got to this stage in Mustapha because the defendant did not commit a wrong with respect to the claimant.

The SCC seem to assume [7] that negligence in 'thin air' suffices. This is simply wrong, see the unanimous decision of the HL in Bourhill v Young [1943] AC 92, which is the Commonwealth equivalent of Cardozo CJ in Palsgraf.

If, following Michael's lead, we are grading I'd give them 7/10. The result is clearly right, the mistake made is a common one but didn't matter, they kept it short, and I am well known for my generosity towards others.

Rob

--------------------------------------------------------------------------------
From: Jason Neyers 
Sent: 27 May 2008 14:54
To: Lewis KLAR
Subject: ODG: the refreshing SCC

Lewis:

Why does reasonably foreseeable need a qualifier, reasonably already qualifies foreseeable which makes it more than possible. It can't be "more probable than not" since that is a higher than the contract standard which is said to be higher than the tort one (Heron II). I doubt any formulation will convey the idea better. A mathematical formulation would be of little help.

I have always thought that the right way to think about it was to ask what are the 4 or 5 reasons why someone would say what you did was negligent. If what happened was 1 of those four or five things then it is not too remote. I think that explains Mustapha.

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