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This means that the reasonable foreseeability test is not always appropriate for cases where the acts of the claimant may demonstrate some fault. Nevertheless, the courts can award damages based on foreseeability where public policy requires it, e.g. in the egg-shell skull cases such as Smith v Leech Brain & Co. [5]
The most common test of proximate cause under the American legal system is foreseeability. It determines if the harm resulting from an action could reasonably have been predicted. The test is used in most cases only in respect to the type of harm.
The Council decided that rather than go with precedent (authority) they would determine a principle from a range of cases, in a similar way as Lord Atkin did in Donoghue v Stevenson, and their principle was primarily a single test for foreseeability which they argued was a logical link between the damage and the liability (culpability).
Recent case settlements include Herff Jones and DNA Diagnostics in which these organizations must implement an information security program to manage risks based on documented frameworks such as Duty of Care Risk Analysis (DoCRA), CIS RAM, NIST, ISO 27005, or The Sedona Conference Commentary on a Reasonable Security Test. [44]
The first is foreseeability. It is not, and could not be, in issue between these parties that reasonable foreseeability of harm is a necessary ingredient of a relationship in which a duty of care will arise: Yuen Kun Yeu v Attorney-General of Hong Kong [1988] A.C. 175, 192A. It is also common ground that reasonable foreseeability, although a ...
The resounding test attempts to reconcile the need for a control device, proximity of relationship, with foreseeability of harm. Lord Oliver's speech in Caparo Industries PLC v Dickman summarises the test for a duty of care: [19] The harm which occurred must be a reasonable foreseeable result of the defendant's conduct;
The but-for test is factual causation and often gives us the right answer to causal problems, but sometimes not. Two difficulties are immediately obvious. The first is that under the but-for test, almost anything is a cause. But for a tortfeasor's grandmother's birth, the relevant tortious conduct would not have occurred.
In the second place, it is clear that the test of foreseeability is less a definite test itself than a cover for a developing set of tests. As in the case of all "reasonable man" standards there is an element of circularity about the test of foreseeability. "For what items of damage should the court hold the defaulting promisor?