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Reasonably Foreseeable
Involves Remoteness Principles Regarding a View to Risk of Harm
Question: What is foreseeability and remoteness in a negligence case?
Answer: Foreseeability in negligence law refers to whether a reasonable person could predict a potential harm resulting from specific conduct, as outlined in the decisions of Rankin’s Garage & Sales, [2018] 1 S.C.R. 587 and Mustapha, [2008] 2 S.C.R. 114. Remoteness considers the connection between the conduct and the harm, determining if it is too distant to hold a defendant liable. Secure trusted legal guidance to navigate these principles effectively; learn more at Success.Legal and ensure your rights are protected.
When Foreseeability Is Referred to Within a Negligence Lawsuit, What Does Foreseeability Mean?
Foreseeability Involves the Review of Whether An Incident That Resulted In Harm Was Something That a Reasonable Person Could Think of As Having a Possibility of Occurring.
Understanding Reasonable Foreseeability Including Remoteness Principles Regarding Risk of Causing Harm
Negligence law includes the principle of reasonable foreseeability. Reasonable foreseeability involves the question of whether a reasonable person could envision the risk of harm arising from the specific conduct in question. As a fundamental component of negligence law principles requires an analysis of what a reasonable person would do or avoid doing, analyzing what a reasonable person would view as risky becomes necessary within a negligence liability discussion.
The Law
The Supreme Court explained reasonable foreseeability and remoteness principles in Rankin (Rankin’s Garage & Sales) v. J.J., [2018] 1 S.C.R. 587, and Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, by stating:
[53] Whether or not something is “reasonably foreseeable” is an objective test. The analysis is focussed on whether someone in the defendant’s position ought reasonably to have foreseen the harm rather than whether the specific defendant did. Courts should be vigilant in ensuring that the analysis is not clouded by the fact that the event in question actually did occur. The question is properly focussed on whether foreseeability was present prior to the incident occurring and not with the aid of 20/20 hindsight: L. N. Klar and C.S.G. Jefferies, Tort Law (6th ed. 2017), at p. 212.
[12] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).
[13] Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendan[t] . . . and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643).
[14] The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”
In the Rankin and Mustapha cases, foreseeability is defined as the question of whether a person could rationally predict that certain conduct might bring about harm to another person. Additionally, per Rankin and Mustapha, when reviewing whether harm was foreseeable a court must consider the incident from the perspective of foresight rather than in hindsight.
Summary Comment
Negligence law involves the review of whether a person acted carelessly and should be held liable for harm caused through such carelessness to another person. As part of the question of whether conduct was careless, the question arises as to whether the resulting harm was foreseeable. If the harm was rationally unforeseeable, then negligence failed to occur.
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