A Comparative Study of the different Approaches
in the Scottish and German Legal Systems

II. The Question of Remote Damages in the Structure of Delictual Liability and Reasons for Developing the Concept of Remote Damages

The purpose of the rules about remote damages is to prevent somebody who is in breach of a duty - be it delictual or contractual - to be held liable indefinitely and without any limitations for any and all harmful consequences that arise from his[1] breach of duty[2]. Before looking in detail at the theoretical approach to remote damages as a method of achieving this, it seems useful to point out a few related issues and in why they have to be distinguished from the topic of remote damages in delict.

The issue of remote damages can arise not only in the context of delictual liability, but anywhere in the legal system where a liability for damages can arise. Besides in delict this would be in contract. In both delict and contract generally the pursuer must not only show that the defender’s action caused the damages he suffered, but in addition he must also prove that these damages are not too remote. However, because of the different nature of contractual and delictual duties, the rules about the remoteness of damages are different in delict and contract. Basically, there are different tests in the law of delict and the law of contract in order to determine the sufficient remoteness of the damages in question[3]. In this paper only the rules about remote damages in delict will be discussed.

Slightly older literature and cases sometimes make a point of distinguishing between remote injuries and remote damages[4]. These two must not be confused. Both deal with different relations in which the question of remoteness can come up.

In order to receive damages, the pursuer has to show the chain of causation. This consists of two individual steps: There has to be a causal connection between the defender’s original conduct and the injury suffered as a consequence thereof, as well as between the caused harm and the losses arising out of it. In each of those two steps the question of remoteness can arise. In addition to the factual causation in the sense of a conditio sine qua non[5], the necessary proximity between original conduct and injury respectively injury and loss has to be established[6].

Regarding the connection between the injury and the arising loss the question arises if the damages are too remote. On the other hand, regarding the connection between the defender’s original conduct and the consequential injury the arising question is if the injuries are too remote. In other words, the term remote injuries refers to the proximity respectively remoteness of the injuries in relation to the original conduct. However, although the issues of remote injuries and remote damages therefore obviously are related and even parallel in many aspects, there is a major difference: If an injury is too remote to be legally connected with the defender’s original conduct, as a consequence the defender cannot be held liable at all. The concept of remoteness of injuries is therefore used to determine the existence of any liability on the part of the defender[7]. Contrary to this, remoteness of damage is concerned with the extent of liability once it has been established[8].

The more recent literature seemingly does not consider the concepts of remoteness of injury and remoteness of damage to be necessarily connected. The problem of remote injuries now obviously is sometimes seen as an aspect of the delictual duty of care. Instead of enquiring if the injuries in a certain case are too remote to be considered legally connected with the defender’s conduct, Thomson suggests to rather discuss if the defender actually owed the pursuer such an extensive duty of care as to prevent those remote injuries[9].

Anyhow, the concept of remote injuries respectively the possible extent of a duty of care to prevent remote injuries shall not be discussed in this paper.

II. The Question of Remote Damages in the Structure of Delictual Liability and Reasons for Developing the Concept of Remote Damages

The question whether a loss is too remotely connected to the injury is logically subordinate to the question of remoteness of the injury itself. Only after it has been determined that the injury itself is causally connected to the defender’s original conduct and is not too remote, i.e. that the defender can generally be held liable, can the question arise if the damages are too remotely connected with the injury and if because of this in spite of his general liability the defender cannot be held liable for those remote damages[10].

This question of remoteness of damages arises - just like the question of remoteness of injuries - in the context with the causal connection, in this case the causal nexus[11] between the injury and the suffered losses. Just like the conduct must be a conditio sine qua non (a natural cause) and also the causa causans (the legal cause) for the injury[12], the same principle applies basically for the connection between the injury and the loss.

Naturally, the losses must be causally connected in the sense of a conditio sine qua non with the suffered injury. Otherwise, the defender cannot possibly be held liable for them. However, the consequences of the suffered injury may extend very far, strictly logically speaking ad infinitum. It does not seem fair nor is it practicable, though, to impose on the defender a duty of reparation for any harmful consequence that is in any way somehow causally connected to his conduct[13]. The concept of remote damages therefore serves to restrict the possible scope of damages that the defender can be held liable for. So in order for the pursuer to recover losses from the defender, these losses do not only have to be causally connected to the injury in terms of a factual causation, but in addition the damages must not be too remote from the injury.

There are different ways of determining whether a damage is actually too remote to be recovered. Those shall be discussed later on. However, the general purpose of all methods is to introduce an element of evaluation into the process of determining if in this individual case it seems fair to burden the defender with the respective damages. In other words, liability can only arise where there is a factual causation as well as a sufficient proximity between the injury and the consequential losses[14]. This necessary proximity sometimes is also considered to be the „legal causation“[15].

Although there is unanimous agreement on the fact that damages do not only have to be causally connected but also must not be too remote from the injury, there are different opinions on how it should be determined if a damage actually is too remote to be recovered from the defender.

From a Scottish perspective, the most commonly cited[16] classical authority in this area is a statement by Lord Kinloch in Allan v. Barclay from the year 1864:

„The grand rule on the subject of damages is, that none can be claimed except such as naturally and directly arise out of the wrong done; and such, therefore, as may reasonably be supposed to have been in the view of the wrongdoer:“[17]

Walker points out that this statement was made with regard to the existence rather than the extent of liability and therefore with regard to the remoteness of injuries rather than to the remoteness of damages[18]. It seems possible, however, that at the time of the statement, almost 150 years ago, it was not always clearly distinguished between the remoteness of damages and that of injuries. In any case, the remark has been referred to in Scottish cases concerning the question of remoteness of damages as recently as 1992[19] and therefore in spite of Walker’s opinion seems to be part of the Scottish law concerning remote damages.

Quite impressively, although almost 150 years old, Lord Kinloch’s statement already includes elements of both tests for remoteness of damages that are currently still in use. In the first part, it suggests a direct and natural consequences test, whereas in the end it introduces the reasonable foresight of the defender as a criterion for determining the remoteness of a damage. Therefore Lord Kinloch has actually referred to a mixture of the two tests that are still discussed and applied today[20].

Walker lists the different formulations of the foreseeability test according to which the defender is liable

those which he should reasonably have foreseen as necessary consequences of his wrongful conduct.“[21]

According to the second established test for remoteness of damages, the defender is liable for all the consequences which arise directly from his wrongful conduct[22].

The concept of not holding somebody liable for the damages he has caused because the damages are „too remote“, be it because they are considered as not reasonably foreseeable or not directly arising from his conduct, is only applied to the delictual liability for unintentional, i.e. negligent conduct[23].

It does not fit cases in which the defender actually intended to hurt the pursuer and to cause the damage. In those cases there is no need to limit the extent of his liability by using the concept of remote damages.

In England the issue has been litigated to a greater extent than in Scotland and the law of England seems to have settled for a foreseeability test[24].

However, this test has not always been applied. Even in England, originally the view was taken that once a breach of duty was established the only question remaining was whether the injury and loss were a direct consequence of the breach of duty of care, whereas it did not matter whether the injury and consequential loss was reasonably foreseeable as a result of this breach of duty. The classic authority for this view was the case Re Polemis and Furness, Withy & Co Ltd , decided by the Court of Appeal in the year 1921[25].

In this case, the charterers of a ship had loaded it with petrol. While docked at the port of Casablanca, servants of the charterers carelessly allowed a plank to fall into the hold of the ship. The falling plank struck something and thereby caused a spark which in its turn ignited petrol vapour in the hold. The vapour caused a fire which destroyed the whole ship.

Not surprisingly, the court held that the fire was not a reasonably foreseeable consequence of allowing the plank to fall. However, it was reasonably foreseeable that the falling plank would cause some form of damage to the vessel. Because of this, the court established the defenders’ negligence and their general delictual liability. Regarding the extent of the recoverable damages the court then held that whether the particular damage caused by the fire was recoverable depended solely on it being a direct consequence of the negligent act. Although the damage by fire could not have reasonably been foreseen as a consequence of dropping the plank, the defenders were therefore liable for the loss of the ship by fire.

Re Polemis was not followed by the Privy Council a few decades later, though, in the case Overseas Tankship (UK) Ltd v. Morts Dock and Engineering Co. Ltd [26], commonly called The Wagon Mound No.1.

Again, in this case a ship was being loaded with oil in a dock owned by Morts, the respondents. As a result of the carelessness of some servants of the appellants, Overseas Tankship, some oil spilt into the harbour, while some workmen from Morts were welding nearby. The welding was suspended for a while but later was allowed to continue. At some point, some molten metal from the welding fell into the water. It set fire to a piece of debris that was floating on the oil. This set the oil on fire which in turn caused severe damage to the wharf.

The Privy Council found that it was foreseeable that the oil spillage would cause some harm to the wharf, namely fouling of the dock and therefore established the negligence and consequential general delictual liability of the appellants. However, the Privy Council held that the appellants could not reasonably be expected to know that the (particularly thick) oil could be set on fire in such a way and that therefore - in spite of the damage being a direct and natural consequence of the negligent act - the damages caused by the unforeseeable fire were not recoverable. To hold somebody liable for each and any direct and natural consequence of his acts, to the court did

„It is a principle of civil liability...that a man must be considered responsible for the probable consequences of his act. To demand more of him is too harsh a rule.“[27]

There have not been very many Scottish cases in which the question of remote damages has been discussed. However, there are a few cases in which the concept of remote damages plays a role. No simple and clear solution to the Scots law regarding remote damages emerges from those cases, though. On the other hand, in McKillen v. Barclay Curle & Co. Ltd [28]the judges made it very clear that at any rate, the law established in the English cases does not apply in Scotland[29].

Strangely enough, this case again involves ships. There had been a collision on the River Clyde between two ships, the Baron Vernon and the Metagama, for which the defenders, the owners of the Baron Vernon, admitted being responsible. In spite of this, they refused to accept their responsibility for the subsequent damage to the Baron Vernon. The Baron Vernon had been towed and tied to the beach at one position from which it slipped off and was afterwards tied up at a different position under the supervision of a third party. From this second position it was later carried away by the tide and subsequently sank.

This case is a very nice example of the fact that really the question of remoteness of damage is an aspect of the question of causation. In the decision it was considered if there was in fact a nova causa, which would have interrupted the chain of causation. This was not found to be the case, however. Instead it was stated that

„...the damage is recoverable...if it is the natural and reasonable result of the negligent act, and it will assume that character if it can be shown to be such a consequence as in the ordinary course of things would flow from the situation which the offending ship created.“[31]

At first glance, this seems to establish the direct and natural consequences test for Scotland. When taking a closer look, though, one notices that the result instead of „direct and natural“ has to be „natural and reasonable.“ It is difficult enough to determine which results are direct and natural. However, what kind of consequence could be a „reasonable“ consequence? A consequence in the cases were the concept of remote damages comes up, is a matter of fact and no one chose for it to happen - it happened by chance or coincidence. In this context it does not seem appropriate to use the expression „reasonable“ to describe such a consequence. On the contrary, the use of this expression hints at the importance of human expectations. Probably, what the judges actually meant to say was that one should only be accountable for results that one could reasonably expect. This way of interpreting the first part of the sentence is actually supported by its ending, because results that one can reasonably expect are exactly those that flow from the situation in an ordinary course of things.

Some decades later, in Hughes v. Lord Advocate, the House of Lords in a decision regarding a Scottish case, referred to The Wagon Mound and its ruling that remote damages are only recoverable if they were foreseeable for the defender as if this was Scots law. In this case, workers employed by the Post Office dug a manhole in a public street to work on some telephone cables. In the afternoon before leaving the site, they secured the manhole and placed paraffin lamps as warning around it. After they had left, two young boys started to play in the manhole. They caused one of the paraffin lamps to fall into the hole. This in turn caused a huge explosion because of which one of the boys fell into the manhole and suffered severe burnings. The explosion was caused by vapour of some paraffin that had escaped when the lamp fell into the hole which was ignited by the flame. Such an occurrence was found to be unforeseeable.

„the defenders are, therefore, liable for all the foreseeable consequences of their neglect.“[33]

So here only the foreseeability test is referred to and there is no mentioning of remote damages having to be the direct and natural result.

Surprisingly, in the rather recent case Campbell v. F&F Moffat, the judge did not refer at all to Lord Pearce´s remark in Hughes v. Lord Advocate.

In this case, a man’s employment at a mill was terminated in 1989 because of a road traffic accident which left him unable to work there anymore. Two years later, the mill was closed and all employees received redundancy payments. The man then wanted to recover the damage that he suffered because he was not employed at the mill anymore at the time of its closure and therefore was not entitled to the redundancy payment. The question was then if this damage was too remote.

Regarding the concept of recoverable remote damages, the court referred to Lord Kinloch´s over a century old statement[35]and without any mentioning of the two cases described above held very clearly,

„that the question was not one of foreseeability but whether the damage claimed arose naturally and directly out of the wrong done.“[36]

It is not easy to summarise these cases in order to find an easy and straightforward formulation as to what actually is the Scots law in this respect. Scottish Courts seem to use a mixture of the direct and natural consequences test and the test of reasonable foreseeability. However, in the vast majority of cases there virtually will be not difference in the practical outcome. Both tests require an evaluation of either what consequence is regarded to be „direct and natural“ or „reasonably foreseeable.“

In English as well as in Scots law in cases regarding personal injuries, however, an exception is made from the general rule[37]. In England, the case Smith v. Leech Brain & Co.[38]established an exception to the general rule set down in the Wagon Mound. For Scotland, this was already held in 1942 in Bourhill v. Young’s Executor[39], where regarding personal injuries Lord Wright stated - although only obiter -

„...if the wrong is established, the wrongdoer must take the victim as he finds him.“[40]

The classical case in Scotland regarding remoteness of damages in the context of personal injuries is McKillen v. Barclay Curle & Co. Ltd [41]. The pursuer McKillen, a plumber, fractured a rip when he slipped and fell when descending some stairs at work. He sued his employer for damages on the ground that the accident had been caused by the employer’s negligence. In the first instance, he was awarded £ 600. The employer appealed this decision because he thought the awarded damages were excessive. The judge had not only taken the fractured rib into consideration, but also that the tuberculosis, from which the pursuer had formerly suffered, was reactivated.

The employer’s appeal was eventually successful, but only on the grounds that the pursuer had not given satisfactory proof that the fracture of the rib had caused the reactivation of his illness. Apart from that, however, the First Division made it very clear that somebody who injures another as consequence of his negligence

„...must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury the negligent man is liable in damages for his death, even although a normal man might only in the same circumstances have sustained a relatively trivial injury...“[42]

As in Scots law, the German law differentiates between the connection between the defender’s conduct and the injury suffered because of it („haftungsbegründender Tatbestand“, meaning this connection actually establishes the liability of the defender) and the connection between the suffered harm and the losses caused by that („haftungsausfüllender Tatbestand“, meaning only if this connection exists as well the defender can be held actually liable for the damages). So the equivalent to the issue of remote damages in Scots law is the „haftungsausfüllender Tatbestand“ in German law. The distinction is especially important because there are different rules of proof for those steps of the causal chain, for „haftungsausfüllender Tatbestand“ § 287 of the German Procedural Code (ZPO) applies, which says that in the event that the pursuer cannot proof the exact amount of the damages the court can estimate this. For the „haftungsbegründender Tatbestand“ a full proof by the pursuer according to § 286 ZPO is necessary.

The systematics of the chain of causation in German law is similar to the Scottish one. It applies to both of the required causal connections, „haftungsbegründender“ and „haftungsausfüllender Tatbestand“. Just as in Scots law, the causation itself is established if the first event is a conditio sine qua non for the consequence, be it the injury or the damages.

II. „Objektive Zurechenbarkeit“ as German Counterpart to the Concept of Remote Damages

However, in order to limit liability so one cannot be held accountable for each and every consequence arising out of one’s conduct, apart from the „natural causation“ that is determined by the condition sine qua non test (called „Äquivalenztheorie“ in German) the causation chain also has to be evaluated to sort out totally unlikely consequences for which the defender is not supposed to be responsible. For this purpose, another theory has been developed according to which besides the natural causation, also „objektive Zurechenbarkeit“ has to be established. This step is meant to allow an evaluation of the events. This theory has been used by the courts since 1902 and consists of several sub-theories. The most used and accepted ones are the following:

The general rule in this respect is the „Adäquanztheorie“ according to which a defender is only responsible for consequences if „his original conduct according to general life experience was not totally unlikely to cause such a consequence.“

Just as in Scots law[43], the consequence is never considered to be outside of „general life experience“ if the defender actually intended it[44].

However, since the „general life experience“ rarely suggests that some consequence is totally unlikely to happen, another theory has been developed especially for delictual cases, called „Lehre vom Schutzzweck der Norm“[45]. This can be translated into „theory about the protective scope of the violated duty.“

If damages are claimed because of a delict, the pursuer always has to show that the defender violated some duty of care or has even committed an offence. According to this theory, delictual damages cannot be claimed for consequences that are outside the protective scope of this duty, i.e. if the duty was not established to protect against this damages.

A frequently used example is the breaking of a speed limit. The speed limit is intended to protect against risks that arise out of the higher speed itself, e.g. that the car takes longer to come to a stand when braking etc.. However, the speed limit is not intended to protect against a certain car being in a certain place at a specific moment. Therefore it is not possible to argue that a driver who has broken the speed limit is liable because of delict if there was no way that the driver could have avoided the accident even if he had not speeded. The delictual liability cannot be founded on the argument that this driver would not have reached the site of the accident at the time it happened had he not broken the speed limit[46].

The German legal system is a civilian one and instead of precedents works with either general rules laid down in the legislation or theories that have been developed by the academic profession and accepted by the courts. In spite of this, though, there are certain so called „case groups.“ The cases of such a group are all similar to each other and by looking at all of them together a general rule regarding cases of this kind can be derived, so in this way the case groups have a similar effect to precedents. Regarding the issue of remote damages respectively „objektive Zurechenbarkeit,“ a number of case groups exist[47]. Some of them shall be mentioned here as examples.

1. A damage is generally not considered to be an unlikely consequence according to general life experience, just because it was not caused by the defenders conduct alone but only because one or more other causes existed as well. The defender’s conduct does not even have to be the main cause[48].

2. A damage for which the defender’s conduct is only an indirect cause can generally be a consequence that is not unlikely according to general life experience[49]. An example would be the case in which a person injured in an accident died later on in the hospital because of a bacterial infection that he caught there[50].

3. The same is true for cases in which a third person acts after the defender’s conduct. This is especially true for mistakes that a third person makes while helping the pursuer after the defender’s damaging conduct[51].

4. Finally, it is worth mentioning that even in the case of a voluntary action of the pursuer himself because of which he suffers some damage, the defender may be held liable for this damage[52]. This case group consists mainly of cases in which the pursuer is hurt when chasing a defender who has committed an offence[53].

Just as in Scots law[54] regarding personal injuries, the victims inclination to suffer more serious consequences than the average person would have, does not affect the defender’s responsibility for the damages to the extent in which the victim has actually suffered them[55]. However, there are some limits to this general rule. For instance, the defender cannot be held liable has not been held liable in a case when the victim had to have his leg amputated after the defender had by mistake stepped on the victim’s foot[56].

It is almost stunning how similar the solutions to the problem are in both the Scottish and the German legal system. In both systems, it can only be determined if a damage is too remote in order for the defender to be held liable for it through an evaluation of all the circumstances. There are no exact rules and it will always be difficult to predict which result the court will reach. In both legislations, the courts have to meet the challenge of actually doing both parties justice without having clear rules at hand but rather by applying common sense.

Marhall, Enid A.: General Principles of Scots Law, 7th Edition, Edinburgh, 1999.

Neethling, J./ Potgieter, J.M./ Visser, P.J.: Law of Delict, 3rd Edition, Durban, South Africa, 1999.

Palandt:: Bürgerliches Gesetzbuch, 59th Edition, München, 2000 (cited as Palandt/respective author).

Stair Memorial Encyclopaedia: The Laws of Scotland, Obligations, Volume 15, Edinburgh.

[1] he, him, his etc. always refer to the female version as well.

[2] Stewart, p. 71.

[3] Stewart, p. 71; Koufos v. Czarnikow Ltd, The Heron II [1969] 1 A.C. 350 at page 385, 386; Stair Encyclopaedia, Vol.15, Para 902.

[4] Walker, p. 238, 239; Bourhill v. Young, 1943 SLT 105; Hughes v. Lord Advocate, 1963 SLT 150.

[5] expressions as in Neethling/Potgieter/Visser, p. 172 et consecutive.

[6] Walker, p. 238.

[7] Walker, p. 238.

[8] Marshall, p. 368; Thomson, p. 127; Walker, p. 238.

[9] Thomson, p. 127, 265.

[10] Bourhill v. Young, 1943 SLT, 105, 111; Walker, p. 251.

[11] expression as in Neethling/Potgieter/Visser, p. 171.

[12] Stewart, p. 64 et consecutive.

[13] Liesbosch v. SS. Edison [1933] A.C. 449, 460; Walker, p. 250.

[14] Thomson, p. 265; Neethling/Potgieter/Visser, p. 171, 181, 182.

[15] Neethling/Potgieter/Visser, p. 181, 182.

[16] Thomson, p. 266; Stewart, p. 71; Stair Encyclopaedia, Vol.15, Para 908.

[17] Allan v. Barclay (1864) 2 M. 873, 874.

[18] Walker, p. 253.

[19] Campbell v. F&F Moffat (Transport) Ltd, 1992 SLT 962.

[20] Stewart, p. 71; Thomson, p. 266; Stair Encyclopaedia, Vol. 15, para 908; Walker, p. 253, 254.

[21] Walker, p. 253.

[22] Ibid.

[23] Thomson, p. 269.

[24] Stewart, p. 71, 73; Thomson, p. 266; Stair Encyclopaedia, Vol. 15, Para 907; Koufos v. Czarnikow [1969] 1 AC 350, 351.

[25] [1921] 3 KB 560.

[26] [1961] AC 388.

[27] [1961] AC 388 at pages 422, 423.

[28] 1967 SLT 41.

[29] 1967 SLT 41, at pages 42, 43 and 44/45.

[30] Kelvin Shipping Co. , The Baron Vernon v. Canadian Pacific Railway Co., The Metagama, 1928 SC 21.

[31] 1928 SC 21, at page 25.

[32] 1963 SLT 150.

[33] 1963 SLT 150, at page 156.

[34] 1992 SLT 962

[35] see above at A III 1.

[36] 1992 SLT 962, at page 963.

[37] Marshall, p. 368 and 369.

[38] [1962] 2 QB 405.

[39] 1943 SLT 105.

[40] 1943 SLT 105, at page 110.

[41] 1967 SLT 41.

[42] 1967 SLT 41, at page 42.

[43] see at A III 3.

[44] German Federal Supreme Court („Bundesgerichtshof“, short BGH) at BGHZ 1979, 262; German Federal Employment Court (BAG) at NJW 1990, 3228.

[45] Palandt/Heinrichs, Vor § 249 no. 62.

[46] BGH at VersR 1977, 524; BGH at NJW 1985, 1350; BGH at NJW 1988, 58.

[47] Compare Palandt/Heinrichs, Vor § 249 no. 66 et consecutive.

[48] BGH at NJW 1990, 2883.

[49] Palandt/Heinrichs, Vor § 249 no. 72.

[50] German Supreme Court until 1945 („Reichsgericht“, short RG) at RGZ 105, 264.

[51] Palandt/Heinrichs, Vor § 249 no.73-76.

[52] Palandt/Heinrichs, Vor § 249 no. 77-82.

[53] see for instance BGH at NJW 1964, 1363 and at BGHZ 57, 25.

[54] compare above at A VI.

[55] Palandt/Heinrichs, Vor § 249 no. 67.

[56] High Court of Karlsruhe („Oberlandesgericht Karlsruhe“) at VersR 1966, 741.