Date: Tue, 27 May 2008 17:54

From: Robert Stevens

Subject: The refreshing SCC

Lewis Klar wrote:

In terms of breach, if one accepts the Wagon Mound No 2 reasoning, that in determining reasonable foreseeability for remoteness purposes, one considers probability of injury, costs of avoidance and severity (i.e. Learned Hand), then one eliminates the issue of remoteness and deals with everything under breach. Once one determines that the defendant was negligent, one also resolves the issue of remoteness, if this approach is followed.

I don't accept that.

Firstly one does not have to accept Learned Hand's test (I don't - I think it is nonsense) in order to accept, what is surely uncontroversial, that factors such as the severity of potential injury and the costs of avoidance, are relevant to the degree of likelihood with which the injury must have been reasonably foreseeable in order to establish a breach of duty with respect to the plaintiff. Secondly once breach of duty has been established, a separate issue of the scope of liability for losses must also frequently be answered. So, in the Wagon Mound (No 1) or Re Polemis there was no doubt at all that the defendant had breached its duty with respect to the plaintiff, the issue was one of the scope of liability for wrongdoing, not whether there was a wrong at all. You cannot roll the remoteness question into the breach question so that it disappears. We see exactly the same division where the wrong is breach of contract.

Put another way, we need to separate out the question (i) did the defendant commit a wrong with respect to the plaintiff; from (ii) are the losses consequent upon the wrong too remote?

Mustapha concerned (i) not (ii).

Put yet another way, remoteness is about the scope of liability for wrongdoing, not the scope of liability for conduct.

RS

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