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The concept of foreseeability and remoteness in negligence claims

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 in a claim based in negligence, the injury or damage needs to have been 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.

The Supreme Court in Armstead held that the burden of proof in relation to remoteness lies with the defendant.

There is a ‘surprising absence of authority’ on the question of burden (para [62]), but once the claimant has established breach