1. See Yuen Kun-Yeu v A-G for Hong Kong (1988) AC 175 at 191–2 per Lord Keith.

2. For example, in an emergency the taking of risks may be justified as in Watt v Hertfordshire CC (1954) 1 WLR 835.

3. (No 1) (1961) AC 388. See especially per Viscount Simonds at p 425 ‘If, as admittedly it is, B's liability (calpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit? And if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable?’.

4. [1921) 3 KB 560.

5. [1987) 3 All ER 455.

6. [1973) 1 QB 27.

7. [1978) AC 728 per Lord Wilberforce. For cases which resile from this principle see Governors of the Peabody Donation Fund v Sir Lindsay Parkinson (1985) AC 210 and Yuen Kun-Yeu v A-G of Hong Kong (1988) AC 175.

8. The Wagon Mound principle is generally regarded as not requiring foresight of the actual loss which occurred (or the way it came about) but rather foresight of loss of the same ‘kind’ as that which came about.

9. [1960) 2 QB 430: see Jolowicz (1960) CLJ 156 and compare Malcolm v Broadhurst (1970) 3 All ER 50, discussed below,.

10. However in Mcloughlin v O'Brian Lord Bridge appears to contemplate that a person may recover for being told bad news, giving the example of a woman who sees a newspaper photograph of people trapped in a fire in a hotel where she knows her children are staying. This accords with his view that foresight of psychiatric damage is sufficient by itself to establish proximity. Cf Abramzic v Brenner (1965) 65 DLR 3d 651.

11. See also Attia v British Gas (1987) 3 All ER 455 which is discussed below.

12. Smith v Leech Brain (1962) 2 QB 405: and see Stephenson v Waite Tileman (1973) 1 NZLR 152 where it is suggested that the Wagon Mound test should be ignored in personal injury cases where the damage is more severe than was foreseeable.

13. [1963) AC 837.

14. [1967) 1 AC 617 at 543.

15. Dickson JA in School Division of Assiniboine South v Hoffer (1971) 21 DLR 3d 608 at 613 (father liable for lending a snowmobile to 14-year-old son, who hit a gas riser which leaked, and the gas entered an air duct of a neighbouring school which blew up).

16. (1978) 93 DLR 3d 289.

17. [1987) 3 All ER 455.

18. [1983) 1 AC 410. Lord Wilberforce suggested that factors such as the class of persons whose claims should be recognised, the proximity of such persons to the accident and the means by which the shock is caused are relevant factors in deciding whether the damage is ‘foreseeable’. Thus ‘foresight’ in this context has a coded meaning and does not simply mean whether a reasonable man would foresee loss. Contra Lord Bridge who probably represents the majority view.

19. It is suggested that the narrower concept of duty should have been adopted here, since whether damage to property should give rise to liability for nervous shock is not one easily resolved by the foresight test alone. The Court of Appeal on a preliminary issue felt that the matter must be decided at the trial by the judge asking himself whether a reasonable gas fitter should have foreseen psychiatric damage resulting from his negligent act while installing central heating.

20. See generally J. C. Smith, ‘The mystery of duty’ in Klar, Studies in Canadian Tort Law (1977) where it is argued that the courts should refrain from using duty language in remoteness issues.

21. See Prosser, ‘Palsgraf Revisited’ (1953) 52 Mich LR 1 at 23.

22. (1928) 162 NE 99.

23. As will be seen below, the duty/interest theory suggested by Cardozo will not be adopted here, but rather a modified version of it.

24. See generally Machin, ‘Negligence and Interest’ (1954) 17 MLR 405 (who also relies on cases in issue estoppel, notably The Oropesa (1943) P 32) and see the reply by Payne (1955) 18 MLR 43.

25. For example it was contained in the First Restatement s 281 but not in the second.

26. The Liesbosch v The Edison (1933) AC 449; see Tilley, ‘The English Rule as to Liability for Unintended Consequences’ (1935) 33 Mich LR 829.

27. That is that the loss caused by the need to hire a new dredger at a very high rate of hire (rather than buy a replacement) was not caused by the defendant's act but rather by the lack of resources of the plaintiff. Thus it was said by Lord Wright that the plaintiff's lack of means was extrinsic and the loss extraneous to and distinct in character from the tort.

28. [1970) 3 All ER 508. See also Connery v Government of Manitoba (1970) 15 DLR 3d 303, where the defendants negligently interfered with the plaintiff's market garden by causing salt to percolate into his well: he was unable to recover damages for the heart attack induced by the stress.

29. Compare Marx v A-G (1974) 1 NZLR 16d (no liability to a wife injured by her husband, who injured her because of a brain defect caused by the defendants).

30. [1985) 3 All ER 537.

31. ‘The Unforeseeable Consequences of a Negligent Act’ (1930) 39 Yale LJ 449 at 467.

32. See for example Malcolm v Broadhurst (1970) 3 All ER 508 at 512 per Geoffrey Lane LJ. ‘Since both the cause of action and the recoverability of damages depend on foreseeability, the answer logically should be the same in each case. Logic however is not always an infallible guide in problems of remoteness of damage. The “egg shell skull” principle itself, for example, is hard to reconcile logically with the foreseeability test’.

33. [1960) 2 QB 430.

34. Of course a nervous shock duty was owed to her as a passenger in her husband's car but there was in fact no loss flowing from that breach of duty. The loss flowed from the fact of her husband's death, not her experience of it. Today it might be argued on the basis of the speech of Lord Bridge in Mcloughlin v O'Brain that there is no difference between personal injury and psychiatric damage, and that as both are the same ‘kind’ of loss, a duty owed in relation to the one includes a duty in relation to the other.

35. [1933) AC 449.

36. [1973) 1 QB 27.

37. The theory was supported by the dicta of Buckley LJ in Horton v Colwyn Bay UDC (1908) 1 KB 327.

38. See generally MacGregor on Damages, 15th edn, paras 213–230, where cases on the problem in relation to other torts are also discussed, such as Campbell v Paddington Corporation (1911) I KB 869 where the defendants unlawfully erected a stand in the highway blocking the view of Edward VII's funeral procession, causing loss of profit to the plaintiff, for which she recovered damages, even though no right to a view exists.

39. This refers to Thorogood v Van den Berghs (1951) 1 All ER 682 where an employer was regarded as negligent in allowing an unfenced fan to be operated on the floor because a workman might have caught his necktie in it (see p 690), even though it was in fact the workman's hand which was inexplicably caught in the fan: see Goodhart, ‘The imaginery necktie and the rule in the Polemis’ (1952) LQR 514.

40. Wagon Mound (No 2) (1967) 1 AC 617.

41. [1987) 3 All ER 455 per Bingham LJ.

42. Coval, Smith and Rush, ‘Out of the maze: towards a clear understanding of the test for remoteness of damages in Negligence’ (1983) 61 Can BR 559. See also the judgment of Richmond J in Stephenson v Waite Tileman (1973) 1 NZLR 1521 at 160 who also adopts this approach.

43. In Hughes two boys were injured when a paraffin lamp exploded in circumstances which could not be explained. It was decided that as the ultimate harm (burning) was of a kind which could be foreseen, ‘the precise concatenation of circumstances need not be envisaged’ (Lord Guest).

44. For another example of this technique see Tremain v Pike (1969) 3 All ER 1303.

45. See Smith v Leech Brain (1962) 2 QB 405. This has usually been thought to provide liability for unforeseen damage here it is due to a pre-existing susceptibility to suffer such greater loss.

46. See for example Glanville Williams, ‘The Risk Principle’ (1961) 77 LQR 179 at 196.

47. But see Vacwell Engineering v BDH Chemical (1971) 1 QB 88 which is often seen as an application of the principle.

48. Malcolm v Broadhurst (1970) 3 All ER 508.

49. See P. J. Rowe, ‘The demise of the thin skull rule’ (1977) 40 MLR 377 where it is argued that a liberal interpretation of The Wagon Mound renders the thin skull principle unnecessary.

50. Subject of course to the principle that the damages must be reduced to take account of the fact that the consequences might occur anyway through some other cause: cf Jobling v Associated Dairies (1982) AC 794.

51. [1973) 1 NZLR 152 at 168.

52. See Coval, Smith and Rush (1983) 61 Can BR 559 at 593 where one of their pragmatic rules is that ‘no increased physical or emotional injury resulting from an unusual or particular susceptibility of a person suffering damage as a result of a negligent act is too remote’.

53. See for example Wieland v Cyril Lord Carpets (1969) 3 All ER 1006, where the plaintiff suffered injury to her neck which meant that she had to wear a collar. This in turn meant that she was unable to use her bi-focal spectacles properly and she fell down stairs. It was said that the initial injury rendered her unable to cope with the vicissitudes of life, and ‘foreseeability of this general nature’ rendered the fall not too remote.

54. This involves the interplay of two variables (the kind of damage and the appropriate level of foresight). Whether damage is of the same kind depends on the level of abstraction which a judge chooses to apply (Hughes v The Lord Advocate and Tremain v Pike) and the level of foresight required may also be varied. Hence the result can be determined by altering the question, and the question will be determined by the result required.

55. ie the test proposed by Richmond J in Stephenson v Waite Tileman (1973) 1 NZLR 152 at 168.

56. [1960) 2 QB 430.

57. [1987) 3 All ER 455.

58. [1973) 1 NZLR 152.