Remoteness and Damage — SQE1 FLK1 Tort Law

A contractor laying drains on a farm punctures a slurry pipe. Slurry runs into a stream on the neighbouring land and kills several head of cattle. Gas from the slurry collects in a culvert under the neighbour's workshop, where the boiler ignites it and wrecks the building. One act of negligence. Two kinds of damage.

Does he pay for the cattle? Yes. Does he pay for the workshop? No. Nobody could have foreseen an escape of slurry setting a building alight, and damage of an unforeseeable kind is too remote. That is this topic. Even after duty, breach and causation, the law still decides which harms count and what they are worth. This is Remoteness and Damage, the fourth topic in Tort Law. Keep the contractor in mind.

Here is the route. Remoteness first, and the Wagon Mound test. Then what a personal injury claim is made of, and how future losses become a lump sum. Then fatal accidents, which run two claims at once. Then psychiatric harm, where the rules are strict and claimants fail. And last, how the award is assembled.

Start with the rule. A defendant is liable only for damage of a type that was reasonably foreseeable at the time of the negligent act. If the type was not foreseeable, it is too remote, however closely the act actually caused it. Causation asks whether the act caused the harm. Remoteness asks whether it is fair to make the defendant answer for that type of harm.

Sydney Harbour, and a ship leaking furnace oil into the water. The oil gathered round a wharf. Cotton waste fell in, a welding spark set it alight, and the fire destroyed the wharf. The Privy Council refused the fire damage. Oil on water was not then known to be capable of catching fire, so only pollution damage was foreseeable and only that was recoverable. That is the Wagon Mound, from 1961.

It killed off the old rule that a defendant answered for every direct consequence. And it explains our contractor. Contamination of the stream and harm to livestock watered from it were plainly foreseeable, so the cattle are recoverable. A building destroyed by fire was not. Do not pitch the description so high that fouling a stream and burning down a workshop become the same kind of harm.

Two extensions, and they are where the marks are. First, the type must be foreseeable, but the mechanism need not. Workmen left a manhole under a tent, ringed with paraffin lamps. A child climbed in, a lamp fell, and an explosion burned him. Burns from unguarded lamps were foreseeable. The explosion was not. That was enough. Hughes v Lord Advocate.

Try one. A school leaves a stack of heavy paving slabs beside a playing field. Children play on them most weeks and the caretaker has seen it. A boy of thirteen levers a slab up with a stick, and it drops on his hand. Foreseeable? Yes. Injury to a child meddling with the slabs was foreseeable in a broad sense, and it is no answer that the particular thing he did was not.

Second extension. Once the type of damage is foreseeable, the defendant answers for the full extent of it, however much worse it turns out than anyone predicted. That is where the eggshell skull rule bites: take the claimant as you find them.

And the limit, where candidates over-reach. A farm worker in a barn his employer had let become infested with rats caught a rare infection from rat urine. Rat bites were foreseeable. Contaminated food was foreseeable. An illness of that kind was not, so it was harm of a different kind and too remote. The manner may vary. The type may not.

Damage established. Now what is it worth? The aim of damages in tort is to compensate, not to punish. You put the claimant back where they would have been had the tort not happened, so far as money can do it. An award designed to punish is exemplary damages, confined to narrow categories.

Two families of loss. Non-pecuniary first, and they travel together as pain, suffering and loss of amenity. Physical pain from the injury and from the treatment. Emotional suffering. Loss of amenity, the reduction in the ability to enjoy life: the sport you can no longer play, the hobbies. And a small extra sum where life expectancy is cut.

There are no receipts for any of that, so the court values it judicially, using the brackets in the Judicial College Guidelines and awards in comparable cases. Note what that is not. There is no statutory tariff for pain and suffering. You need the tool, not the figures.

Pecuniary losses are the financial consequences. Past loss of earnings, from injury to trial. Future loss of earnings, from trial to retirement. Medical expenses. Care costs, including a value for care given free by family. Travel. Aids and equipment.

Future losses have to become one sum today, and that is done with the Ogden Tables. Two numbers. The multiplicand is the annual loss. The multiplier comes from the tables and reflects how long the loss will run, discounted because a lump sum received now can be invested. A woman of forty who can no longer work, net annual loss £30,000, multiplier 24.5. £735,000.

The discount rate is the other half of that sum, and it moves. It is set by the Lord Chancellor under the Damages Act 1996. In 2017 it fell from 2.5% to minus 0.75%, which pushed lump sums up sharply. In 2019 it went to minus 0.25%, and from 11 January 2025 it is plus 0.5%. A shift of 0.5% moves an award by tens of thousands of pounds.

That rate once broke a whole head of claim. Where a serious injury means buying a larger, specially adapted home, the extra capital cost is recoverable. The old method multiplied the property value by the discount rate, then by a multiplier. Once the rate went negative that produced nil. Swift v Carpenter replaced it with a market value of the reversionary interest.

A lump sum is not the only option. Under the Damages Act 1996, as amended by the Courts Act 2003, the court can order damages for future loss to be paid periodically instead. They are index-linked. They are tax-free. And they cannot run out, however long the claimant lives, which matters most where life expectancy is uncertain. Since 2005 the court can impose them, whatever the parties want.

When someone is killed by negligence, two claims run, not one. The Fatal Accidents Act 1976 lets certain dependants claim their own losses flowing from the death. The Law Reform (Miscellaneous Provisions) Act 1934 lets the estate claim what the deceased suffered before dying. Different claimants, different losses, usually the same proceedings.

Who is a dependant? Section 1 of the 1976 Act lists them. Spouse or civil partner, and they alone need not prove financial dependency. A former spouse who has not remarried. Children, including adopted children. Parents. A cohabitant of at least two years. And other relatives, who must also have lived with the deceased.

What can they recover? Three things. Loss of dependency, funeral expenses, and the bereavement award. The dependency is worked out by taking the deceased's net income, deducting what he would have spent on himself, and multiplying the balance using the Ogden Tables. An accountant on net earnings of £55,000 who spent £15,000 a year on himself leaves a dependency of £40,000 a year.

And dependency is not only earnings. Where a parent at home did the childcare and ran the household, the value of those services counts.

The bereavement award is different in kind. It is a fixed statutory sum, £15,120 for deaths on or after 1 May 2020, and it is not scaled to how much anyone loved the deceased. It goes to a very narrow class, worth learning cold. Hold on to a man of forty-five killed in a collision. He comes back at the quick check.

Then the estate's claim, under the 1934 Act. It recovers what the deceased had accrued by the moment of death. Pain and suffering before dying. Earnings lost in that period. Medical expenses. Nothing for income after death. The personal representative brings it, and it falls into the estate.

Psychiatric harm now, and the law is deliberately restrictive. The reasons are practical. The risk of fraud is high, the harm is hard to verify, and unlimited claims would flood the courts. So everything turns on one division. Primary victims, and secondary victims.

A primary victim was directly involved and inside the zone of physical danger. The question is whether the claimant was actually or potentially at risk of physical injury. A pregnant barmaid was working behind the bar when a horse-drawn van was driven into the pub. She was never struck. She feared for her own safety, suffered nervous shock, and recovered.

And a primary victim gets a second advantage, from Page v Smith. Once a duty of care is established for physical injury, that same duty covers psychiatric harm, even if the psychiatric harm was unforeseeable. So a primary victim never has to prove that psychiatric injury was foreseeable, and never touches the control mechanisms.

Secondary victims are the people who were never in danger themselves but suffered psychiatric harm from what happened to someone else. They must satisfy four control mechanisms, and they must satisfy all four. Fail one and the claim fails.

One: a close tie of love and affection with the primary victim. Parents, children and spouses are presumed. Anyone else needs evidence. Two: they witnessed the event or its immediate aftermath with their own unaided senses. Three: proximity in time and space, at or near the scene. Four: a recognised psychiatric illness brought on by shock, not grief or distress.

Those four come from Alcock v Chief Constable of South Yorkshire, the Hillsborough case. Relatives watched the disaster unfold on television, at the ground and at home. Most of the claims failed, because a screen is not perception by your own unaided senses. The ties were obvious. The proximity was not.

Test it. A wall collapses onto a busy street and badly injures a man on his way to work. His mother is at home. A friend telephones, she turns on the television, and she watches live coverage of the rescue, recognising the building but never able to make out her son. That evening she is told he is in intensive care. She first sees him three days later. She develops post-traumatic stress disorder. Can she recover? No.

The tie and the illness are made out. Everything else fails. Live television is not perception by her own unaided senses, and that was expressly decided. Three days later is far outside the immediate aftermath. The criteria are cumulative, so the claim fails. A mother who does come upon the immediate aftermath has a claim. This one did not.

The law moved again in 2024. In Paul v Royal Wolverhampton NHS Trust the Supreme Court held that a secondary victim needs a close connection in time and space to an external, traumatic event. An accident. Watching a relative die or deteriorate from an earlier negligent failure to diagnose or treat is generally not enough. And the Court disapproved treating a sudden shock as a separate requirement.

One more regime, and mixing it up with the last one costs marks. Psychiatric harm from a gradual build-up of stress at work is not a shock case at all. The leading framework asks three things. Has the employer taken reasonable steps to address the risk? Was the harm foreseeable? And would a reasonable employer have done more?

Foreseeability is the threshold, and it is about this employee. Previous absences. Complaints. Known personal problems. A return to work after an earlier breakdown. Without warning signs an employer may assume an employee can withstand the normal pressures of the job. With them, it must act. A lighter workload, counselling, a period of leave.

Last piece: how the schedule is built. Special damages are past pecuniary losses: precisely calculable, specifically pleaded, itemised, and proved by payslips, invoices and receipts. A shop worker off for six months with £12,000 of lost earnings and £2,000 of physiotherapy: those are special damages. General damages are everything that cannot be calculated that way. Her pain and loss of amenity. Her future loss of earnings.

Money before trial. Under CPR Part 25 the court can order an interim payment on two footings. Either liability is admitted, or the court is satisfied the claimant would obtain judgment for a substantial sum. It cannot exceed a reasonable proportion of the likely award, and final medical evidence is not required.

And interest, under s.35A of the Senior Courts Act 1981. On special damages it runs from the date the loss was incurred, because the claimant has been kept out of that money ever since. On general damages it runs from the date proceedings were issued. In a long case the interest alone can be substantial.

A word on how SQE1 tests this. You will not be asked to recall a case name or a section number. You get a scenario, five answers, and one instruction. Pick the best. So learn the rules and the reasons. The names here are memory pegs, nothing more.

If you keep only three, keep these. The Wagon Mound, where the type of damage has to be foreseeable before anyone pays. Hughes v Lord Advocate, where the mechanism did not have to be. And Alcock v Chief Constable of South Yorkshire, whose four control mechanisms are cumulative and are why most secondary victims lose.

Four traps. One: remoteness is not causation. But-for asks whether the act caused the harm. Remoteness asks whether it is fair to make the defendant answer for that type of harm. You can pass the first and fail the second. Sydney Harbour did.

Two: in a fatal accident, run both routes. The commonest pitfall is forgetting that the estate recovers the deceased's pre-death losses separately from the dependants' loss of dependency. And keep the bereavement award class strict. Children of any age, and the parents of an adult child, are outside it.

Three: with psychiatric harm, first ask whether it came from a single event or from gradual workplace stress. The two regimes are completely different and examiners expect you to pick the right one. Either way, the harm must be a recognised psychiatric illness. Grief is not enough.

Four: work the damages question in order. Identify the heads of loss. Classify each as special or general. Apply the remoteness test to each. Take off any contributory negligence. Then add the interest.

Quick check, and you have met this man. He is forty-five and killed in a collision. He was not married and had no civil partner, but for the last three years he lived with his partner as a couple. He leaves a daughter of twenty-two who is financially independent. A mother of seventy who lived in his house and depended on him for money. And a son of sixteen he maintained. Who can claim the fixed statutory bereavement award?

Three answers. One: his mother, because she lived in his house and depended on him. Two: his son, because he is an unmarried child under eighteen. Three: his partner, because they had lived together as a couple for at least two years. Pause here if you want a moment.

The answer is three. The bereavement award under s.1A of the Fatal Accidents Act 1976 reaches three people. A spouse or civil partner. The parents of an unmarried minor, where the deceased was that minor. And, since 6 October 2020, a person who had lived with the deceased as a spouse or civil partner for at least two years. His partner of three years qualifies.

Why the other two fail. The mother's dependency gets her a loss of dependency claim, not this award, and the parents' category applies only where the deceased was an unmarried minor. The son is a minor child of an adult, not the parent of a deceased minor. He may claim dependency, but not this.

Five things to take away. One: only the type of damage has to be foreseeable. Not the mechanism, and not the extent. Two: a personal injury award is pain, suffering and loss of amenity, plus the pecuniary losses, with future losses capitalised by a multiplicand and an Ogden multiplier.

Three: a death produces two claims. The dependants' under the Fatal Accidents Act 1976, and the estate's under the Law Reform (Miscellaneous Provisions) Act 1934. Four: primary victims are inside the zone of danger and skip the control mechanisms. Secondary victims must satisfy all four, and most cannot.

Five: special damages are past and provable, general damages are estimated, and the remoteness test applies to every head you plead. Which is where our contractor started. He pays for the cattle and not for the workshop. Next time, Pure Economic Loss.

Practise this topic with exam-style questions at sqe1prep.co.uk. This episode is for education and exam revision only, not legal advice, and we are not affiliated with or endorsed by the SRA or Kaplan.