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What is the Current Test for Remoteness in Negligence?

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Remoteness in negligence refers to the legal test of causation. In medical negligence claims, this determines the type of loss caused by a breach in duty of care.

The test for remoteness in negligence is important because legal causation is different from factual causation.

You can establish factual causation, but the question is then whether the law will attribute the injury or damage caused to the actual breach.

If the damage is too remote, the law will not see it as recoverable through a claim.

What is Remoteness in Law?

Remoteness is a set of rules in English law. These rules control the limits for claiming compensatory damages for a wrong.

In a negligence claim, the test of causation requires that you establish that the person you’re claiming against has caused the injury.

However, causation also requires that the loss or damage you have sustained is not too remote.

The current test for remoteness of damage is whether the kind of damage you have suffered was reasonably foreseeable by the defendant, at the time of the breach.

Therefore, to claim for negligence, the claimant must be able to show that the damage they have suffered was foreseeable.

Why is Remoteness Important in a Negligence Case?

Remoteness is important in a negligence case because it can affect the outcome of a claim.

Establishing factual causation is a major factor in medical negligence claims. The court must first examine whether a breach of duty is the factual cause of the damage or loss that the claimant has suffered.

This is commonly known as the but for test – but for x occurring, y would not have suffered an injury. It is established on the balance of probabilities.

When applying the but for test, the court will also take into account any hypothetical causes which might also have produced the claimant’s loss.

Traditionally, a defendant was liable for all losses that were a direct consequence of their breach of duty. But in applying remoteness, not every loss will be recoverable in law.

If the court decides that even though the defendant breached their duty of care, the consequences of their actions were unforeseeable, then this limits the claim, because the damage was too remote.

On the other hand, a key benefit of the remoteness rule is that within its scope, the defendant will be held liable, providing the damage was foreseeable. In this type of situation, it doesn’t matter how the damage was inflicted or whether the extent of it was unforeseeable.

For more information about medical or clinical negligence claims, please contact us.

Louise Tyler

Posted:

Louise Tyler

Partner

Louise is the Head of the Medical Negligence Team working in this area of law for 25 years. She is a member of the Law Society Clinical Negligence Panel, the AvMA (Action for Victims of Medical Accidents) Panel and been appointed to the Executive Committee…