‘Losses in Any Event’ in the Case of Damage to Property

Abstract

In several relatively recent decisions, the House of Lords and the Court of Appeal have declared, relying on a series of early 20th century admiralty cases, that the occurrence of supervening events is irrelevant to the determination of damages for negligent injury to property. The principle has been described as ‘a firm sub-rule’ that applies to cases of property damage but not to other categories of loss. This paper, conversely, contends that the proper and consistent position in law is that a court tasked with assessing damages for property injury should take into account the impact of relevant supervening events. It asserts that the more recent decisions of the courts have misconstrued the early precedents, confused facially similar but factually distinct categories of cases, and fashioned an exceptional sub-rule that is inconsistent with broader principles of the common law of damages. ‘Losses in any event’ are relevant to the measure of loss in cases of damaged property. It is therefore proposed that the presumed sub-rule be discarded and the relevance of subsequent events acknowledged.

NOTE: The definitive version is available at https://doi.org/10.1093/ojls/gqv009

Keywords: causation, damages, interpretation, legal theory, private law, tort