Centre for Private Law
Joint Seminar on Private Law: The No Breach Counterfactual and Remoteness
13 April 2026 (Monday), 5:30 – 6:45 PM
Academic Conference Room, 11/F Cheng Yu Tung Tower, The University of Hong Kong
Constructing the No Breach Counterfactual in Private Law: The Preclusionary Rule by Professor Sandy Steel
When compensation is claimed for breach of a private law duty, it is typically quantified by reference to a counterfactual in which the defendant did not commit the breach. The “preclusionary rule”, as we will call it, is relevant to the construction of this counterfactual. This rule sometimes prevents parties from populating the counterfactual with hypothetical breaches of duty. The paradigm case: a defendant is not able to argue that but for the particular breach of duty which occurred, they would have committed some other breach of the same duty, even if this is what would have happened but for the breach. Furthermore, the preclusionary rule arguably prevents claimants from populating the counterfactual with breaches of duty owed by the claimant to the defendant in order to establish that they are worse off as a result of a breach. One might be tempted to suggest that all wrongdoing is excluded from the counterfactual, but this is clearly not the law. Whilst it is false to say that all wrongdoing is excluded from the counterfactual, the precise contours of the current rule are unclear. The purpose of this talk is to identify the extant uncertainties in the preclusionary rule, explore possible ways of resolving those uncertainties in a normatively desirable manner, and then to restate the preclusionary rule as clearly as possible. The paper on which it is based was jointly written with Sam Williams and is forthcoming in the Law Quarterly Review.
Remoteness in Negligence: A Critique and Reconstruction by Dr Marco Cappelletti
This paper offers a reappraisal of the doctrine of remoteness of damage in negligence. It argues that, for initial harm, the scope-of-risk (SOR) framework provides a more precise and rigorous analytical tool for delimiting liability than the orthodox foreseeability test. By tying liability to the risks that made the defendant’s conduct negligent, SOR clarifies key structural features of the doctrine that a bare foreseeability test struggles to explain—notably, type of harm, manner of infliction, and the irrelevance of foreseeability regarding the extent of harm. The article further shows that the role of remoteness cannot be understood without clarifying the structure of breach. On a ‘global’ conception of breach, which assesses conduct in relation to any risk of harm, SOR operates as a distinct stage following breach. By contrast, on a ‘localised’ model, where breach is assessed only in relation to a specific risk, SOR effectively collapses into the breach inquiry itself, leaving little independent work for remoteness to perform. Finally, the article examines remoteness in relation to further harm, focusing on the eggshell skull rule and consequential harm. The eggshell skull rule avowedly lies beyond the SOR (and foreseeability) framework, resting instead on a directness test grounded in considerations other than those underpinning SOR. Consequential harm raises a different difficulty: while foreseeability is treated by orthodoxy as the key remoteness test, it is conceptually ill-suited to capture most risks of consequential harm, and the same is true of SOR. This area therefore requires substantial rethinking and rationalisation. This paper is forthcoming in the Oxford Journal of Legal Studies.
About the Speakers
Professor Sandy Steel is Professor of Law and Philosophy of Law in the Faculty of Law at Oxford, Dr Lee Shau Kee’s Sir Man Kam Lo Fellow in Law at Wadham College, and Visiting Research Professor at HKU. At Oxford he’s taught Tort, Contract, Jurisprudence, Commercial Remedies, Philosophical Foundations of the Common Law, and Comparative Law. His books include Proof of Causation in Tort Law (CUP 2015), Omissions in Tort Law (OUP 2024), and Great Debates in Jurisprudence (with Nick McBride, 2018 2nd edn). He was recently awarded a Leverhulme Major Research Fellowship to write a book about public officials and authorities in private law. His work has been cited by courts across the common law.
Dr Marco Cappelletti is Tutorial Fellow in Law at Worcester College, University of Oxford. Prior to his current position, he was College Lecturer in Law (2023-2024) and Junior Research Fellow (2019-2023) at St John’s College, Oxford. He is author of Justifying Strict Liability: A Comparative Analysis in Legal Reasoning (OUP 2022), which received the Grand Prize of the International Academy of Comparative Law. His current work focuses on vicarious liability, the concept of foreseeability in private law (both in English law and from a comparative perspective), remoteness of damage, product liability, and the different standards of liability in the context of accidental harm.
Moderator: Craig Purshouse, Associate Professor, The University of Hong Kong Faculty of Law