Tort liability for contractual liability

Journal article

This short article addresses the doctrine of remoteness in tort in light of the Supreme Court’s landmark decision in Armstead v Royal & Sun Alliance Insurance Co Ltd. Armstead further attenuates an already weak control on tortious liability. In outline, it does so in two ways: first, by establishing that contractual liabilities incurred as a result of tortiously caused property damage comprise non-remote damage provided that those liabilities are not so extensive as to amount to a penalty and, secondly, by allocating the burden of proof in respect of remoteness to defendants. This article explores these rules. It is contended, in particular, that the first collides with the fundamental principle that the extent of the claimant’s loss in tort is irrelevant to the issue of remoteness while the second means that, oddly, the onus of proof in relation to remoteness in tort differs from that in contract.

Authors: Goudkamp, J; Katsampouka, E

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Cambridge University Press
• Journal: Cambridge Law Journal
• Publication date: 2025-07-25
• Acceptance date: 2025-01-14
• DOI: 10.1017/s0008197325100706
• EISSN: 1469-2139
• ISSN: 0008-1973
• Language: English
• Keywords: tort law; negligence; burden of proof; remoteness; penalty clauses; economic loss