Risk and Remoteness of Damage in Negligence

The remoteness enquiry in negligence, which serves to exclude the liability of defendants for harmful consequences that their careless conduct caused, but for which it seems unfair to penalise them, has long been beset by uncertainty. Indeed, a common view is that this area of the law can be explained only by reference to diffuse considerations of ‘legal policy’. This paper, however, argues that the remoteness enquiry represents a principled response to a problem that can arise, at a deep level, in ascribing a harmful outcome to the negligent exercise of individual agency. The relevant problem concerns the possible mismatch between the hypothetical ‘risk‐claim’ in virtue of which conduct was faulty and the causal set that subsequently materialised for harm. The ‘revised risk theory’ that emerges from this analysis accounts for the majority of remoteness determinations. However, a few exceptions are also considered where ‘policy‘, in a restricted sense, operates to extend or curtail a negligent agent’s legal responsibility.