Marco Cappelletti (University of Oxford) has posted Remoteness in Negligence: A Critique and Reconstruction on SSRN. Here is the abstract:
This article reappraises remoteness of damage in negligence. It argues that, for initial harm, the scope-of-risk (SOR) framework provides a superior analytical tool than the foreseeability test. By tying liability to the risks that make conduct negligent, SOR explains features that foreseeability cannot, including the type of harm, the manner of its infliction, and the irrelevance of foreseeability as to extent. The doctrine’s role also depends on the structure of breach: where breach is assessed against any risk of harm, SOR operates as a distinct inquiry; where breach is assessed against a specific risk, SOR collapses into the breach inquiry itself. The article also examines further harm: the eggshell skull rule avowedly lies beyond both SOR and foreseeability, resting instead on a directness test; as to consequential harm, while foreseeability is treated as the orthodox test, it does not provide a satisfactory framework, indicating the need for substantial doctrinal rethinking.
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