“A persistent question in the tort of negligence is whether defendants who have breached their duty of care should be held responsible for every aspect of the difference between the claimant’s position before and after the breach. The law supposedly offers restitutio in integrum – restoring claimants so far as achievable through money to where they were before the tort – but defendants often succeed in evading responsibility for part or all of the loss by using a variety of arguments or metaphors: ‘the chain of causation’ was ‘broken’, the loss was ‘outside the scope of the duty’ or the ‘type of loss’ was ‘not reasonably foreseeable’. It is often difficult to disentangle these points from another sort of point, that part of the loss should be discounted because it would have happened anyway, so that awarding damages for it would make the claimant better off than before the breach. The nomenclature used to describe these points is itself contested – are they about ‘causation’, legal or factual, or ‘remoteness’ or the ‘scope of the duty’? …” (more)
David Howarth, ‘Six Questions in Search of a Tort: Has The Supreme Court Transformed Negligence?’, Cambridge Law Journal, volume 81, issue 1, March 2022, pp 20-24, https://doi.org/10.1017/S0008197322000101. Published online by Cambridge University Press 30 May.