What is ‘Reasonable Foreseeability’?

Abstract In English tort law the concept of ‘reasonable foreseeability’ plays established roles in seeding duties, setting standards of care, and limiting liability for ‘remote’ types of damage. This chapter investigates some of the practical challenges raised by asking whether damage to a claimant—or a particular degree of damage—is ‘reasonably foreseeable’, with the ultimate goal of illuminating whether ‘reasonable foreseeability’ is a ‘question of fact’, or a designed concept, reflecting judicial choices about matters such as the appropriate allocation of accident costs associated with innovation, or a doctrine that, regrettably, incorporates under-analysed normative judgements. The investigation considers challenging cases, such as those where there has been scientific progress since an accident and those where knowledge of risks was not evenly distributed between potential defendants. The conclusion reached is that judicial decisions about ‘reasonable foreseeability’ frequently depend on non-transparent normative assessments. The chapter ends, however, with the tentative suggestion that it may be necessary for a practical legal system to tolerate such assessments.