Was the damage foreseeable?
Was the damage foreseeable?

The following PI & Clinical Negligence practice note provides comprehensive and up to date legal information covering:

  • Was the damage foreseeable?
  • The concept of foreseeability and remoteness
  • The test of foreseeability
  • Type of damage versus how it occurred
  • Type of damage
  • Severity of the damage and the 'egg-shell skull' rule

The concept of foreseeability and remoteness

Even if the claimant proves:

  1. that the defendant acted negligently (ie in breach of duty), and

  2. that the negligence was in fact the cause of the injury or damage

the defendant will not necessarily be liable for all of the damage.

See Practice Notes: Duty of care in personal injury claims and Breach of the duty of care in personal injury claims.

In order to recover damages, the claimant must also prove that the injury or damage was reasonably foreseeable. If the damage was not reasonably foreseeable, the defendant is not held responsible and the damage is said to be too remote (hence the issue is sometimes referred to as remoteness).

Usually, whether the damage was foreseeable will be obvious.

On occasion, the courts have used the test of foreseeability to limit the consequences for which the defendant is made responsible.

The test of foreseeability

The traditional approach used to be that once negligence had been established, a defendant was liable for all of the damage that followed no matter how extraordinary or unpredictable, provided that it flowed directly from the breach of duty. This ‘direct consequence’ test has now been overruled and is no longer relevant.

The accepted test is now whether the type of damage was reasonably foreseeable at the time. Damage is recover

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