Defence in an accident claim

Mr Fellows-Bennett shows you a defence in an accident claim which refers to the damages being claimed as “too remote" and, in any event, the claimant had a “thin skull" which the defendant knew nothing about until after the accident had happened.

He has called a case management meeting to discuss this case. In Preparation for this meeting, you have decided to research and make notes on:

Remoteness of damage

The thin skull rule and what effect there could be on the claim brought by your firm’s client.

Remoteness of damage

Remoteness of damage relates to the condition that for a successful claim, the damage caused, must be “reasonably foreseeable". In negligence claims, there are three essential elements which the claimant must be able to prove:

The defendant owed the claimant a duty ad that duty was breached

There was damage as a consequence of that breach

The damage was “reasonably foreseeable"

There was a reasonable proximity between the claimant and the defendant, i.e. the damage was not too remote.

Even if a claimant is successful in proving that the defendant’s breach of duty caused them damage, he will not always win his case. He will need to prove that the damage was not too remote in relation to the defendant’s actions. In simple words this means that if the damage is too remote from the defendant’s negligence, the claimant will not be able to claim compensation for that damage.

Remoteness of damage is often presumed to be a further method of controlling tortuous liability. Not all losses will be recoverable in tort law. In other words the remoteness rule, limits the defendant’s liability. Originally, there was no requirement for the damage to be “reasonably foreseeable" as shown in Re Polemis v Furniss, Withy & Co Ltd [1921] where the defendant's employees were loading cargo into a ship. Due to an employee's negligence, a plank fell into the hold of the ship. The plank caused a spark, which ignited some petrol vapours, causing an explosion that sunk the ship. There was no requirement for the damage to be foreseeable; although the fire itself may not have been foreseeable, it was held that the defendant would nevertheless be liable for all direct consequences of his actions.

This test was considered to be unfair; as if the damage is not “reasonably foreseeable" the defendant wouldn’t have a reason to take precautions to prevent it. The “direct consequence" test was overridden in The Wagon Mound (No 1) [1961] or Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) where fuel oil had negligently been spilled onto the water in a harbour. There were welding works being carried out in the area. Once advised that it was safe to continue welding, the employees continued with their work. Two days after the leak, molten metal set cotton waste floating in oil, on fire. The fire destroyed the wharf, along with the claimant’s ships. This was a significant case in English law, as up until this time, the deciding test for negligence was the direct consequence test as established in Re Polemis v Furniss, Withy & Co Ltd [1921]. The Wagon Mound (1) brought the test for foreseeability, i.e. defendant would not be liable unless the damage was “reasonably foreseeable". In this case it was held that the defendant was liable for the pollution in the harbour which was foreseeable following the oil leak, but not the damage caused by the fire, as it was decided that that wasn’t reasonably foreseeable. It should be noted, that neither the defendant, nor the claimant wished to establish that the fire damage was foreseeable. The defendant’s reason was because he then would be liable for the damage, and the claimant’s was that he may also be found liable as it was his workers who set the cotton waste on fire, even though they were aware that there had been an oil leak in the area.

The Wagon Mound rule was followed in Crossley v Rawlinson (1981) where a lorry caught fire. A claimant running towards the burning vehicle with a fire extinguisher tripped and was injured. It was held that it was foreseeable that someone might try to help to put the fire out, and by doing so, put themselves at risk; however it was decided that it was not “reasonably foreseeable" that they may injure themselves in the process. It was decided that the injury was too remote, for the defendant to be liable.

It must however be noted that according to the Wagon Mound rule, it is not necessary for the defendant to be able to foresee the exact damage or injury, seriousness of it, or the exact manner in which it occurred, as long as he foresees that any damage or injury, but fails to prevent it. This was shown in Jolley v Sutton LBC (1998) where the defendant owned land on which a boat had been abandoned. The claimant and his friends tried to repair the boat so that they can sell it, but the claimant was seriously injured during the repairs. He claimed that the defendant was liable, as he should have had the boat removed. The question was whether the defendant could foresee only that children may be tempted to play with the boat and get injured, or could the defendant foresee that children may work underneath the boat in order to repair it and get a serious injury by doing this. Even though the exact accident was not foreseeable, it was reasonably foreseeable that an accident could happen. The defendant was found to be liable.

Wagon mound 2 ?

The thin skull rule and what effect there could be on the claim brought by your firm’s client.

The thin skull rule or more commonly known as the eggshell skull rule dictates that “you must take your victim as you find him". This means that if you cause a minor injury to someone, which under normal circumstances is not serious and shouldn’t have any consequences, should the victim have an existing condition which would make that injury more severe or life threatening, this could not be used as a defence. In other words, if you tap someone on the shoulder, whilst trying to surprise them and they die because they have an existing heart condition for example, you may still be liable, if you were not aware of their medical condition. The term suggests that if a person had a skull, as delicate as eggshell, and his skull was injured, causing it to break, the defendant would be liable for all damages resulting from the tortuous act. This would be the case even albeit damages of that kind weren’t reasonably foreseeable or the defendant did not intend to cause such a serious injury.

Even if the injury or damage is unusual and more severe than it could have been foreseen, due to vulnerability of the victim, the defendant would still be liable.

In Haley v London Electricity Board [1965] workers, employed by the defendant dug a trench in the pavement. They covered the trench with some tools, put some signs to warn of the obstruction and left the site. The claimant, a blind man, tripped over the tools and fell, which resulted in an injury. It was argued, that it wasn’t foreseeable that a blind man would walk on this particular street and hurt himself, therefore there was no need to take extra precautions for blind people. It was held, that it was reasonably foreseeable for blind people to walk on any street, therefore the defendant owes them a duty too and should have taken extra precautions to avoid the tort.

In Robinson v Post Office [1974] the claimant was employed by the defendant. Whilst working, the claimant slipped on a ladder, because of oil on one of the steps. During treatment in the hospital, he was given a medication, which later caused him a serious injury, due to an allergy, he wasn’t aware of. The hospital was found not to be liable for the brain damage, as the “but for" test wasn’t established (even with the appropriate tests the allergy wouldn’t have been found). However, it was held that the defendant was responsible for both injuries; the fact that the man developed brain damage, due to an allergy no one was aware of was not a redeeming fact as the defendant should have “taken their victim as they found him". It was reasonably foreseeable that the injury which the Post Office was responsible for, would require medical attention, and therefore they were liable for the consequences resulting from their original breach in duty, even though the brain damage could not have been reasonably foreseen.

The distinction between these cases is that in Haley v London Electricity Board [1965] and Robinson v Post Office [1974] is that in Haley’s case the defendant’s tort didn’t present danger to most people; only to person(s) with a particular vulnerability. In Robinson’s case, slipping on oil is expected to result in some kind of injury, which would then require medical attention. The allergy reaction was an equivalent of an “eggshell skull" situation, as it wasn’t foreseeable by the hospital, claimant or defendant, yet it resulted in a severe injury and therefore the defendant was still liable, even though this was never intended.

Financial weakness?

Novus actus interveniens?


With regards to any accident, the court will need to establish whether the link between the action and the damage or injury is not too remote, as shown in Bourhill v Young (1943) where a pregnant lady lost her baby after she’d reached a scene of a motor accident. The court held that there is no sufficient proximity between the claimant and the defendant, as the lady had arrived after the accident had happened.