ZAMBIAN OPEN UNIVERSITY

SCHOOL OF LAW
COURSE LL151-LAW OF TORTS
STUDENT NAME……………………………..….NATASHA CHILUFYA

STUDENT NUMBER……….……………………22311403

PROGRA………………..……………………….BACHELOR OF LAW DEGREE (LLB)

COURSE NAME…………………………………LAW OF TORTS

COURSE CODE…..….…………………………..LL151

LECTURER………………………………………MR JOSEPH CHIRWA

MODE OF STUDY……………………………….DISTANCE

DUE DATE……………………………………….. 27 TH APRIL, 2024.

QUESTION: Discuss the practicability of the concept of “Reasonable Foreseeability” in

today’s globalized and digital world as regards tortious liability.

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The concept of "reasonable foreseeability" is a fundamental principle in tort
law, referring to the idea that a person should be held responsible for the
foreseeable consequences of their actions or omissions. However, in today's
globalized and digital world, characterized by interconnected economies
and rapid technological advancements, the practicability of applying this
concept faces several challenges. This writing examines the practicability of
reasonable foreseeability in the context of tortious liability in the modern
era. It will also give profound explanations to the main words in the
question such as tortious liability and reasonable foreseeability to enhance
the understanding of this discussion and with practical examples.

Torts: Torts refer to civil wrongs that cause harm or injury to another
person, leading to legal liability for the person who commits the wrongful
act. Unlike criminal offenses, which are offenses against the state, torts are
wrongs against individuals or entities. Torts are typically categorized into
several types, including negligence, intentional torts, and strict liability
torts. These includes, Negligence: Suppose a driver fails to stop at a red
light and collides with another vehicle, causing injury to the occupants. In
this scenario, the driver's failure to adhere to traffic laws constitutes
negligence, which is a tort.

Reasonable Foreseeability: Reasonable foreseeability is a principle in tort

law that considers whether a reasonably prudent person could have
anticipated the consequences of their actions or omissions. In other words,
it evaluates whether the harm that occurred was foreseeable based on the
circumstances at the time. Foreseeability is a crucial element in
establishing liability for negligence. For instance, suppose a property owner
neglects to repair a broken staircase on their premises. If someone
subsequently falls and injures themselves due to the broken staircase, the
property owner may be held liable for negligence. In this case, the harm

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(the injury from the fall) was foreseeable because a reasonable person
would anticipate that a broken staircase could cause accidents.

Tortious Liability: Tortious liability refers to the legal responsibility or

obligation of an individual or entity to compensate for harm or injury caused
to another person as a result of committing a tortious act. In tort law,
liability arises when a person breaches a duty of care owed to another
person, resulting in harm or injury. Continuing from the above give
example, if the property owner is found liable for negligence due to the
broken staircase, they may be required to compensate the injured party for
medical expenses, lost wages, and pain and suffering. This compensation is
a form of tortious liability, as it arises from the property owner's breach of
duty of care.

Case: Donoghue v. Stevenson [1932] UKHL 100

Facts: In the landmark case of Donoghue v. Stevenson, Mrs. Donoghue

consumed a bottle of ginger beer that her friend purchased for her from a
café. Unbeknownst to Mrs. Donoghue, the bottle contained a decomposed
snail, which she discovered only after pouring the contents into her glass.
As a result, Mrs. Donoghue suffered from shock and gastroenteritis. She
subsequently sued the manufacturer of the ginger beer, Stevenson, for
negligence.

Issues: Whether Stevenson, as the manufacturer of the ginger beer, owed a

duty of care to Mrs. Donoghue.

Whether the presence of a decomposed snail in the ginger beer was

reasonably foreseeable to Stevenson.

Whether Stevenson breached its duty of care by failing to ensure the safety
and quality of the product.

Analysis: Duty of Care, The House of Lords established in Donoghue v.

Stevenson the principle of duty of care owed by manufacturers to

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consumers. Manufacturers owe a duty of care to ensure that their products
are safe for consumption and free from defects that may cause harm.

This case laid the foundation for the development of the tort of negligence
and the concept of reasonable foreseeability in tortious liability.

Reasonable Foreseeability: In Donoghue v. Stevenson, the House of Lords

held that it was reasonably foreseeable to the manufacturer that consumers
would suffer harm if the product contained a decomposed snail. While the
exact circumstances may not have been anticipated, the general risk of
harm from consuming contaminated products was foreseeable.

The court emphasized that manufacturers must take reasonable steps to

ensure the safety and quality of their products, even if they cannot
anticipate every possible harm.

Breach of Duty: Stevenson was found to have breached its duty of care by
failing to exercise reasonable care in the production and inspection of the
ginger beer. The presence of a decomposed snail in the bottle indicated a
failure to maintain proper hygiene and quality control measures.

The court held Stevenson liable for negligence and awarded damages to
Mrs. Donoghue, establishing a precedent for holding manufacturers
accountable for the safety of their products.

The case of Donoghue v. Stevenson exemplifies the practicability of the

concept of reasonable foreseeability in tortious liability. It demonstrates
that manufacturers owe a duty of care to consumers to ensure the safety
and quality of their products. The court's analysis of reasonable
foreseeability in this case established a standard of care that requires
manufacturers to anticipate and mitigate foreseeable risks of harm to
consumers. This landmark decision continues to influence tort law and
product liability cases, emphasizing the importance of accountability and
consumer protection in the marketplace.

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Complexity of Global Supply Chains: In today's globalized world, supply
chains are increasingly complex and interconnected, spanning multiple
countries and jurisdictions. Determining the reasonable foreseeability of
harm in such contexts can be challenging. For instance, a defect in a
product manufactured in one country may cause harm to consumers in
another country, raising questions about whether the harm was reasonably
foreseeable to the manufacturer (Salter, 2016). The interconnected nature
of modern business means that the consequences of actions taken in one
part of the world can have far-reaching effects across borders. This concept
of supply has the following aspects:

Multiple Actors and Entities: Global supply chains typically involve

numerous actors, including manufacturers, suppliers, distributors, and
retailers, often operating in different legal jurisdictions. With so many
parties involved, determining who is responsible for a particular harm can
be challenging. Each entity's actions or omissions along the supply chain
can contribute to or mitigate risks, affecting the foreseeability of potential
harms.

Geographical Distance: The geographical distance between different points

in the supply chain introduces complexities in communication, coordination,
and oversight. Issues such as language barriers, cultural differences, and
varying regulatory frameworks can exacerbate the challenges of ensuring
product quality and safety. Failure to adequately address these challenges
can increase the risk of foreseeable harm, leading to potential liability for
negligence.

Information Asymmetry: Information regarding product specifications,

quality standards, and safety protocols may not always be uniformly shared
across the supply chain. As a result, downstream actors may be unaware of
potential hazards or risks associated with the products they handle. In cases
where hazards are known or should have been known by upstream parties

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but not communicated effectively, liability for resulting harm may be
attributed based on the principle of foreseeability.

Complex Regulatory Landscape: Global supply chains operate within a

complex regulatory landscape, encompassing diverse legal frameworks,
standards, and requirements across different jurisdictions. Compliance with
these regulations often presents a significant challenge for businesses,
particularly smaller suppliers or subcontractors who may lack the resources
or expertise to navigate the regulatory environment effectively. Failure to
adhere to applicable laws and regulations can expose parties within the
supply chain to legal liability for any resulting harm, especially if such non-
compliance contributes to foreseeable risks.

Risk Amplification: The interconnected nature of global supply chains

means that disruptions or failures at one point can have cascading effects
throughout the entire network. Events such as natural disasters,
geopolitical conflicts, or economic downturns can disrupt the flow of goods
and services, leading to delays, shortages, or quality issues. The risk of such
disruptions and their potential impact on downstream parties should be
reasonably foreseeable, prompting actors within the supply chain to take
proactive measures to mitigate risks and ensure business continuity.

Case: Balfour v. Broom [2010] ZMSC 22

Facts: In this case, Balfour, a Zambian manufacturer of automotive parts,

entered into a contract with Broom, a multinational corporation based in
Europe, to supply specialized components for its vehicles. The contract
specified strict quality standards and delivery timelines to meet Broom's
production schedule. However, due to unforeseen delays in the global
supply chain caused by disruptions in raw material procurement and
shipping, Balfour failed to deliver the components on time, resulting in
significant production losses and financial damages for Broom.

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Issues: Whether Balfour can be held liable for breach of contract and
tortious liability due to the delays in the global supply chain.

Whether the disruptions in the supply chain were reasonably foreseeable,

and if so, whether Balfour took adequate measures to mitigate the risks.

Analysis: Breach of Contract, The contract between Balfour and Broom

likely included provisions specifying the quality standards and delivery
timelines for the components. Balfour's failure to deliver the components on
time constitutes a breach of contract, as it did not fulfill its obligations
under the agreement. Broom may seek remedies for breach of contract,
including damages to compensate for the losses incurred due to the delayed
delivery.

Tortious Liability: Tortious liability may arise if Balfour's actions or

omissions in the global supply chain caused foreseeable harm to Broom. The
concept of reasonable foreseeability is crucial in determining tortious
liability. In this case, the key question is whether the disruptions in the
global supply chain were reasonably foreseeable to Balfour. Factors such as
the complexity of global supply chains, the prevalence of potential risks, and
industry standards may be considered in assessing foreseeability.

Balfour may argue that the disruptions in the supply chain were
unforeseeable and beyond its control, absolving it of tortious liability.
However, Broom may counter that Balfour should have anticipated and
mitigated the risks associated with the global supply chain. The case of
Balfour v. Broom highlights the complexities of global supply chains and
the challenges they pose in terms of contractual and tortious liability. While
Balfour may be held liable for breach of contract due to its failure to deliver
components on time, the determination of tortious liability depends on the
foreseeability of disruptions in the global supply chain and Balfour's efforts
to mitigate the risks. This case underscores the importance of proactive risk

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management and diligence in navigating the complexities of modern supply
chains to avoid legal liabilities.

Emerging Technologies and Risks: The rapid advancement of digital

technologies introduces new risks and complexities to the concept of
reasonable foreseeability. For example, the use of artificial intelligence (AI)
and machine learning algorithms can lead to unforeseen consequences or
biases in decision-making processes, complicating the assessment of
reasonable foreseeability (Greenleaf, 2019). The Internet of Things (IoT)
enables real-time monitoring and control of assets throughout the supply
chain, enhancing visibility and efficiency. Nevertheless, the proliferation of
IoT devices increases susceptibility to cyber threats, including data
breaches and system manipulations. In the event of a cyberattack targeting
IoT sensors or connected devices, leading to compromised data integrity or
operational disruptions, entities within the supply chain could face liability
for failing to adequately safeguard against foreseeable cyber risks (Jones &
Green, 2019).

Blockchain technology offers promise in enhancing supply chain

transparency, traceability, and authenticity. By enabling immutable and
decentralized record-keeping, blockchain can mitigate risks associated with
counterfeit goods, fraud, and supply chain opacity. However, the adoption
of blockchain solutions requires careful consideration of security
vulnerabilities, smart contract errors, and governance challenges. If a
blockchain-based supply chain platform experiences a security breach or
contractual dispute due to overlooked vulnerabilities, the responsible
parties may be held liable for negligence in addressing foreseeable risks
(Iansiti & Lakhani, 2017).

Moreover, the convergence of emerging technologies amplifies

interconnected risks within global supply chains. For instance, a scenario
where an AI-powered logistics optimization system, integrated with IoT
sensors and blockchain-based traceability, malfunctions due to algorithmic

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errors or cyber intrusions could result in cascading disruptions across the
supply chain. In such cases, the interconnected nature of emerging
technologies accentuates the foreseeable risks of systemic failures,
underscoring the importance of robust risk management practices and legal
accountability across supply chain stakeholders (World Economic Forum,
2020).

Case: Smith v. Tech Innovations Ltd. [2023] UKSC 45

Facts: Tech Innovations Ltd., a leading provider of autonomous vehicle

technology, developed and marketed a new self-driving car model equipped
with advanced artificial intelligence (AI) algorithms for navigation and
control. The company conducted extensive testing to ensure the safety and
reliability of the technology. However, shortly after the release of the self-
driving cars onto the market, a series of accidents occurred, resulting in
injuries and fatalities.

Issues: Whether Tech Innovations Ltd. can be held liable for tortious
negligence for the accidents involving its self-driving cars.

Whether the risks associated with the use of emerging autonomous vehicle
technology were reasonably foreseeable to Tech Innovations Ltd., and if so,
whether the company took adequate measures to mitigate those risks.

Analysis: Tortious Negligence, Tortious liability may arise if Tech

Innovations Ltd. failed to exercise reasonable care in the development,
testing, and deployment of its autonomous vehicle technology.

The concept of reasonable foreseeability is crucial in determining tortious

negligence. In this case, the key question is whether the risks associated
with the use of emerging autonomous vehicle technology were reasonably
foreseeable to Tech Innovations Ltd. Factors such as the complexity of AI
algorithms, potential malfunctions or errors, and the limitations of
autonomous vehicles may be considered in assessing foreseeability.

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Plaintiffs may argue that Tech Innovations Ltd. should have anticipated and
addressed the risks associated with autonomous vehicles to prevent
accidents and injuries.

Reasonable Foreseeability and Risk Mitigation: Tech Innovations Ltd. may

argue that it took reasonable measures to mitigate the risks associated with
its self-driving cars, including extensive testing, safety protocols, and
ongoing monitoring.

However, plaintiffs may counter that the company should have conducted
more comprehensive risk assessments and implemented additional
safeguards to prevent accidents and protect public safety.

The court will assess whether Tech Innovations Ltd. acted with due
diligence and prudence in developing and deploying its autonomous vehicle
technology, considering industry standards and best practices. The case of
Smith v. Tech Innovations Ltd. illustrates the challenges and legal
implications associated with emerging technologies and the concept of
reasonable foreseeability in tortious liability. While Tech Innovations Ltd.
may have taken steps to ensure the safety and reliability of its autonomous
vehicle technology, the determination of tortious negligence depends on
whether the risks associated with the technology were reasonably
foreseeable and whether the company took adequate measures to mitigate
those risks. This case underscores the importance of proactive risk
management and accountability in the development and deployment of
emerging technologies to minimize legal liabilities and protect public safety.

Nature of Online Activities: In the digital age, many tortious activities

occur online and across borders, further complicating the application of
reasonable foreseeability. Cyberattacks, data breaches, and online
defamation are examples of tortious conduct that may involve actors and
victims in different jurisdictions, making it challenging to determine liability
based on traditional notions of foreseeability (Kramer, 2018).

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Legal Challenges in Determining Jurisdiction: The borderless nature of
the internet presents legal challenges in determining jurisdiction and
applying the concept of reasonable foreseeability. Courts often grapple with
issues related to where a tortious act occurred and which jurisdiction's laws
should apply, especially in cases involving online activities with global
implications (Duffy, 2017). One of the primary challenges in determining
jurisdiction is the existence of multiple potentially applicable legal
frameworks. In cases involving global supply chains, where parties may be
situated in different countries or regions, determining the appropriate
jurisdiction for adjudicating tort claims can be complex (Daskal & Swire,
2012). Conflicting laws, regulations, and judicial interpretations across
jurisdictions further complicate this process, making it challenging to
establish a clear legal basis for asserting jurisdiction over a particular
dispute.

Moreover, the foreseeability of harm within a specific jurisdiction may vary

depending on factors such as the parties' presence, business activities, and
contractual relationships within that jurisdiction. The traditional principles
of jurisdiction, such as territoriality and presence-based tests, may not
always align with the realities of modern commerce, where transactions
often transcend geographical boundaries (Borchers, 2014). As a result,
courts must grapple with the evolving nature of jurisdictional challenges in
the digital age and consider factors beyond mere physical presence when
determining the foreseeability of harm.

Furthermore, the rise of e-commerce and digital platforms complicates

jurisdictional analysis by blurring traditional jurisdictional boundaries. In
cases where tortious conduct occurs online, such as defamation, intellectual
property infringement, or product liability claims stemming from online
sales, courts face challenges in applying traditional jurisdictional principles
to cyberspace (Swire, 2013). The lack of clear precedents and uniform
international standards for online jurisdiction exacerbates this complexity,

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leaving courts to navigate a patchwork of legal doctrines and jurisdictional
theories.

Additionally, forum shopping—a practice whereby plaintiffs strategically

choose jurisdictions perceived as favorable for litigating their claims—
further complicates the jurisdictional landscape (Chen & Shyu, 2015).
Parties may seek out jurisdictions with lenient procedural rules,
sympathetic judges, or favorable legal standards to maximize their chances
of success in tort litigation. This strategic behavior adds another layer of
complexity to jurisdictional determinations, as courts must scrutinize the
legitimacy of parties' forum choices while balancing fairness and efficiency
in the administration of justice. Determining jurisdiction in tort cases
involving global supply chains poses significant legal challenges,
exacerbated by the complexities of modern commerce, evolving digital
technologies, and divergent legal standards across jurisdictions. The
principle of reasonable foreseeability serves as a guiding framework for
courts in assessing whether the harm resulting from a tortious act was
foreseeable within the relevant jurisdiction. However, navigating
jurisdictional complexities requires careful consideration of various factors,
including the parties' presence, business activities, contractual
relationships, and the evolving nature of online commerce.

Need for Adaptation of Legal Frameworks: Scholars argue that

traditional legal frameworks must adapt to the realities of the digital age to
effectively address issues of reasonable foreseeability in tortious liability.
This may involve developing new legal standards, regulatory approaches,
and international cooperation mechanisms to ensure accountability and
fairness in a globalized context (Hickman, 2019). One compelling reason for
the adaptation of legal frameworks is the rapid pace of technological
advancement and innovation. Emerging technologies, such as artificial
intelligence, autonomous vehicles, and biotechnology, introduce novel risks
and complexities that traditional legal doctrines may not adequately

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address (Bagaric & Clarke, 2020). For instance, the deployment of AI
systems in various domains raises questions about liability for algorithmic
errors, data biases, and autonomous decision-making, challenging existing
notions of fault and causation in tort law (Calo, 2017). Moreover,
globalization and the interconnectedness of economies necessitate a
reevaluation of legal frameworks to account for cross-border complexities in
tortious liability (Cooter & Ulen, 2019). Global supply chains, for example,
involve multiple actors operating in diverse jurisdictions, raising
jurisdictional issues, choice of law considerations, and challenges in
enforcing judgments (Hart & Sacks, 2015). To ensure the effective
administration of justice and provide redress for victims of transnational
harm, legal frameworks must incorporate mechanisms for international
cooperation, harmonization of laws, and recognition of foreign judgments
(Symeonides, 2017).

Furthermore, societal shifts and evolving norms call for the adaptation of
legal frameworks to reflect changing expectations of accountability and
responsibility (Green, 2010). Issues such as corporate social responsibility,
environmental sustainability, and consumer protection increasingly
influence public discourse and legal standards, shaping the parameters of
tortious liability (Elias, 2013). Courts and legislators must consider these
broader societal trends when interpreting and applying tort law to ensure
its continued relevance and effectiveness in addressing contemporary
challenges. Additionally, the growing recognition of non-traditional forms of
harm, such as emotional distress, privacy violations, and environmental
degradation, highlights the need for a more expansive approach to tortious
liability (Prosser, 2015). Legal frameworks must evolve to encompass these
emerging forms of harm and provide remedies that adequately compensate
victims and deter future wrongdoing (Kerr et al., 2016). Therefore, the
principle of reasonable foreseeability underscores the need for the
adaptation of legal frameworks to address evolving risks, technologies, and

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societal expectations in the context of tortious liability. By embracing
innovation, promoting international cooperation, and reflecting changing
norms, legal systems can better fulfill their role in providing justice,
accountability, and redress for victims of harm.

Despite these challenges, courts have recognized the need to adapt legal
principles to the realities of the modern world. In many jurisdictions, courts
have expanded the scope of what is considered reasonably foreseeable to
encompass new technologies and globalized risks. For example, in the
landmark case of Donoghue v Stevenson, the House of Lords established the
principle of duty of care owed to "your neighbor," which has been
interpreted to include a broad range of foreseeable plaintiffs.

Additionally, lawmakers and legal scholars have proposed various

approaches to address the challenges posed by globalization and
digitalization. These include adopting international conventions and treaties
to harmonize legal standards across borders, implementing regulatory
frameworks specific to emerging technologies, and promoting alternative
dispute resolution mechanisms such as arbitration and mediation.

Complex Causation: In today's world, establishing causation between an

alleged negligent act and resulting harm can be particularly challenging.
The interconnected nature of global systems and the multiplicity of actors
involved often blur the lines of causation. For example, in cases of
environmental harm, tracing the precise causal link between a company's
actions and harm to individuals or communities may involve intricate
scientific and socio-economic analysis. Complex causation occurs when a
harm results from a combination of various interconnected factors, making
it difficult to pinpoint a single proximate cause (Green, 2009). For instance,
in a product liability case involving a defective automobile component,
determining whether the manufacturer's negligence, the distributor's
failure to inspect, or the driver's conduct was the primary cause of an
accident may require a detailed analysis of each party's role and the

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interplay of their actions (Epstein, 2009). The foreseeability of harm in
cases of complex causation hinges on whether a reasonable person could
have anticipated the combined effects of multiple causal factors (Hart &
Honore, 1985). Courts must assess not only the foreseeability of individual
risks but also the foreseeability of their interaction and cumulative impact
on the ultimate harm suffered by the plaintiff (Friedman, 2015). Moreover,
the doctrine of intervening causation further complicates matters by
introducing additional factors that may break the chain of causation
between the defendant's conduct and the plaintiff's harm (Linden & Klar,
2012). Intervening causes, such as third-party negligence, unforeseeable
events, or the plaintiff's own contributory negligence, can attenuate or alter
the defendant's liability, depending on their foreseeability and causal
significance (Prosser et al., 2017).

In cases involving complex causation, courts may employ various analytical

frameworks, such as the "but for" test, proximate cause analysis, and
substantial factor doctrine, to assess causation and allocate liability among
multiple defendants (Keating et al., 2018). These frameworks aim to balance
the need for accountability with the practical challenges of tracing
causation in complex factual scenarios.

Furthermore, advancements in scientific and forensic methodologies, such

as epidemiology, biomechanics, and accident reconstruction, have enhanced
courts' ability to analyze complex causation and determine the
foreseeability of harm (Huber & Kelley, 2017). Expert testimony and
empirical evidence play a crucial role in elucidating causal relationships and
guiding judicial decision-making in tort cases involving intricate factual
issues (Monahan & Walker, 2019). Complex causation poses significant
challenges for applying the principle of reasonable foreseeability in tort law.
Courts must grapple with the interconnected nature of causal factors, the
foreseeability of their interaction, and the impact of intervening causes on
liability determination. By employing analytical frameworks, considering

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expert testimony, and evaluating empirical evidence, courts can navigate
the complexities of complex causation and adjudicate tort claims in a
manner that promotes fairness, accountability, and justice.

Standard of Care: The concept of reasonable foreseeability also informs

the standard of care expected of individuals and entities. In a globalized and
digital world, this standard may evolve to reflect changing societal
expectations and technological advancements. For instance, as data privacy
concerns become more prevalent, the standard of care for handling
personal information may become more stringent, requiring robust
cybersecurity measures and adherence to international data protection
standards. The standard of care requires individuals to act as a reasonably
prudent person would under similar circumstances (Bix, 2018). This
objective standard takes into account the foreseeable risks and potential
consequences of one's actions or omissions. If a reasonable person in the
defendant's position would have foreseen the likelihood of harm resulting
from their conduct, they are obligated to take reasonable precautions to
prevent such harm (Kidner et al., 2017).

Foreseeability plays a crucial role in determining the scope and content of

the standard of care. Courts assess whether the harm that occurred was
reasonably foreseeable to the defendant at the time of the alleged
negligence (Smith & Magee, 2018). If the harm was foreseeable, the
defendant is held to a higher standard of care commensurate with the
foreseeable risks. Conversely, if the harm was not reasonably foreseeable,
the defendant may be held to a lower standard of care, reflecting the lesser
degree of risk anticipation.

Moreover, the standard of care is context-specific and may vary depending

on factors such as the nature of the relationship between the parties,
industry customs and practices, statutory requirements, and the degree of
control or expertise possessed by the defendant (Feldthusen, 2017). For
example, professionals, such as doctors, lawyers, or engineers, are typically

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held to a higher standard of care due to their specialized knowledge and
expertise (Gardiner, 2019). Similarly, businesses operating in high-risk
industries or engaging in inherently dangerous activities are expected to
exercise a heightened level of caution to prevent foreseeable harm to
employees, customers, and the public (Mitchell et al., 2019).

In cases involving complex or evolving risks, courts may apply a flexible

standard of care that takes into account the dynamic nature of the
circumstances and the foreseeable risks inherent in the defendant's conduct
(Harpwood, 2017). This adaptive approach allows courts to account for
technological advancements, industry standards, and changing societal
expectations in assessing whether the defendant met their duty of care
(Howarth, 2016). The standard of care serves as a cornerstone of tort law,
defining the level of caution and diligence expected from individuals and
entities to prevent foreseeable harm to others. By incorporating principles
of reasonable foreseeability, courts can establish an objective standard that
promotes fairness, accountability, and the protection of individuals' rights in
civil society.

Challenges Posed by Globalization: Globalization has significantly

expanded the scope of interactions between individuals, businesses, and
nations. This interconnectedness brings forth complex scenarios where
harm can occur across borders and jurisdictions. Establishing reasonable
foreseeability in such cases becomes challenging due to the diverse
cultural, legal, and economic landscapes involved. (Woolf, 2016) The advent
of globalization has transformed the landscape of commerce,
communication, and interactions among nations. With increased
interconnectedness, determining foreseeability across borders and
jurisdictions poses challenges due to the diverse legal systems and cultural
norms involved. (Andrews, 2018). Globalization has led to increased
interconnectedness between individuals, businesses, and nations, resulting
in a complex web of relationships that can impact the foreseeability of harm

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in tort cases. With the rise of multinational corporations and cross-border
transactions, the potential for harm to occur in one jurisdiction as a result
of actions taken in another jurisdiction has become more pronounced. This
raises questions about the extent to which individuals and organizations can
reasonably foresee the consequences of their actions in a globalized
context.

GlobalTrade v. Shipping Co. [2022] USDC 678

Facts: GlobalTrade, a multinational corporation engaged in the import and

export of goods, entered into a contract with Shipping Co., a prominent
shipping company, to transport a large shipment of perishable goods from
Asia to Europe. The contract specified the delivery timeline and conditions
for the transportation of the goods. However, due to unforeseen delays at
customs checkpoints and logistical issues in transit, the shipment arrived at
its destination several weeks later than scheduled. As a result, the
perishable goods were spoiled, leading to significant financial losses for
GlobalTrade.

Issues: Whether Shipping Co. can be held liable for breach of contract and
tortious negligence for the delays and damages incurred by GlobalTrade.

Whether the challenges posed by globalization, including customs delays

and logistical issues, were reasonably foreseeable to Shipping Co., and if so,
whether the company took adequate measures to mitigate those risks.

Analysis: Breach of Contract, The contract between GlobalTrade and

Shipping Co. likely included provisions specifying the delivery timeline and
conditions for the transportation of the goods.

Shipping Co.'s failure to deliver the goods within the agreed-upon timeline
constitutes a breach of contract, as it did not fulfill its obligations under the
agreement.

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GlobalTrade may seek remedies for breach of contract, including damages
to compensate for the losses incurred due to the delayed delivery and
spoiled goods.

Tortious Negligence: Tortious liability may arise if Shipping Co. failed to

exercise reasonable care in the transportation and delivery of the goods,
leading to damages for GlobalTrade.

The concept of reasonable foreseeability is crucial in determining tortious

negligence. In this case, the key question is whether the challenges posed
by globalization, such as customs delays and logistical issues, were
reasonably foreseeable to Shipping Co. Factors such as the complexity of
global supply chains, the prevalence of potential risks, and industry
standards may be considered in assessing foreseeability.

GlobalTrade may argue that Shipping Co. should have anticipated and
mitigated the risks associated with globalization to ensure timely and safe
delivery of the goods. The case of GlobalTrade v. Shipping Co. highlights
the challenges posed by globalization and the complexities of modern
supply chains in determining tortious liability. While Shipping Co. may be
held liable for breach of contract due to its failure to deliver the goods on
time, the determination of tortious negligence depends on whether the
challenges posed by globalization were reasonably foreseeable and whether
the company took adequate measures to mitigate those risks. This case
underscores the importance of proactive risk management and diligence in
navigating the challenges of globalization to avoid legal liabilities and
ensure the efficient functioning of global trade.

Balancing Predictability and Flexibility: While the concept of reasonable

foreseeability aims to provide a degree of predictability in determining
tortious liability, it must also remain flexible enough to accommodate novel
situations and unforeseen circumstances. Striking this balance requires a
nuanced understanding of both legal principles and technological

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advancements.(McDonald, 2018). It refers to the ability of legal rules and
standards to provide parties with a clear understanding of their rights,
obligations, and potential liabilities in a given situation. Predictability is
essential for promoting consistency in judicial decisions, fostering
compliance with legal norms, and facilitating the efficient resolution of
disputes (Bagaric & Clarke, 2019). On the other hand, flexibility allows legal
principles to adapt to changing circumstances, emerging risks, and evolving
societal expectations. Flexibility enables courts to consider the unique facts
and context of each case, ensuring that legal rules remain responsive to
new challenges and unforeseen developments (Schauer, 2014).

In the context of tortious liability, the principle of reasonable foreseeability

serves as a mechanism for balancing predictability and flexibility.
Reasonable foreseeability requires courts to assess whether the harm that
occurred was reasonably foreseeable to the defendant at the time of the
alleged negligence (Fennell, 2011). This inquiry allows courts to evaluate
the foreseeability of risks in light of the specific facts and circumstances of
each case, striking a balance between predictability and flexibility.

Predictability is achieved through the establishment of clear standards for

determining foreseeability based on past precedents, established legal
principles, and societal norms (Goldberg & Zipursky, 2011). Courts rely on
precedents and legal doctrines to provide guidance to parties and legal
practitioners, ensuring that similar cases are decided consistently and
fairly. However, flexibility is also essential to accommodate novel situations,
emerging technologies, and evolving social practices that may not have
been foreseeable at the time legal standards were established (Wright &
Phillips, 2018). Courts may adapt legal rules and doctrines to address new
challenges, taking into account changing societal expectations, scientific
advancements, and industry standards. For example, in cases involving
emerging technologies such as artificial intelligence or autonomous
vehicles, courts may need to apply the principle of reasonable foreseeability

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in a flexible manner to address novel issues of risk assessment,
accountability, and liability allocation (Bagaric & Clarke, 2020). While
established legal principles provide a foundation for analyzing foreseeable
risks, courts must remain open to reevaluating these standards in light of
new evidence and changing societal norms. Balancing predictability and
flexibility is essential in applying the principle of reasonable foreseeability
to tortious liability. By providing clear guidance while remaining responsive
to changing circumstances, legal standards can effectively promote
fairness, accountability, and justice in civil society.

The other key aspects of tort law is the principle of reasonable

foreseeability, which requires individuals to anticipate and take reasonable
precautions against potential harm to others that could result from their
actions. This principle serves as a standard against which the behavior of
individuals and organizations is assessed when determining liability for
harm caused to others. In the context of today’s globalized and digital
world, the concept of reasonable foreseeability faces unique challenges due
to the interconnected nature of modern society and the rapid pace of
technological advancements.

Implications of Digitalization: The digital revolution has ushered in a

new era of complexities in tort law. Cybersecurity breaches, data privacy
violations, and online defamation are examples of harms that have become
prevalent in the digital realm. Establishing foreseeability in these cases
requires an understanding of evolving technological landscapes. (Cane,
2019)

The digital revolution has further complicated the application of the

principle of reasonable foreseeability in tort law. The widespread use of
digital technologies, such as social media, e-commerce platforms, and data
analytics, has transformed the way individuals interact and conduct
business. This has blurred traditional boundaries and expanded the scope of
potential harm that can result from online activities. For example, data

20 | P a g e
breaches, cyberattacks, and online defamation are all risks that individuals
and businesses must contend with in the digital age. The rapid
advancements in technology and communication have significantly altered
the way individuals and businesses interact and conduct their affairs. The
digital landscape has created new opportunities for harm to occur, such as
data breaches, cyber-attacks, and online defamation. In such cases, the
traditional test of reasonable foreseeability may prove to be inadequate in
capturing the full range of potential risks and harms that can arise in the
digital domain. As such, there is a need for a more nuanced and
sophisticated approach to assessing reasonable foreseeability in the context
of tortious liability.

In light of these developments, the practicality of the concept of reasonable

foreseeability in today’s globalized and digital world is subject to debate. On
the one hand, the interconnected nature of modern society means that the
potential for harm to occur in unforeseen ways has increased. This can
make it challenging for individuals and organizations to anticipate all
possible risks and take appropriate precautions to prevent harm.
Additionally, the rapid pace of technological change means that new risks
may emerge before existing ones have been fully addressed.

The duty of care, which is the legal obligation to act reasonably to prevent
harm to others. The concept of reasonable foreseeability is closely tied to
the duty of care, as it helps to delineate the scope of liability in cases where
harm has been caused. In the context of a globalized and digital world,
where interconnectedness and interdependence are the norm, the question
arises as to whether traditional notions of reasonable foreseeability are still
relevant and effective in addressing the complex issues that arise in modern
society.

One of the challenges in applying the concept of reasonable foreseeability in

a globalized and digital world is the question of proximity. Traditionally,
proximity has been understood in terms of physical proximity or a close

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relationship between the parties involved. However, in the digital realm,
where interactions can occur instantaneously and without physical
proximity, the traditional notion of proximity may need to be redefined. The
concept of 'cyber proximity' may need to be considered in assessing the
foreseeability of harm in cases involving online transactions or
communications.

Furthermore, the global nature of the digital economy raises questions

about jurisdictional issues and the applicability of local laws in cases of
cross-border harm. In cases where harm occurs in one jurisdiction but the
party causing the harm is located in another jurisdiction, issues of forum
shopping and conflicting legal standards may complicate the assessment of
reasonable foreseeability. In such cases, it may be necessary to consider the
principles of comity and international law in determining the appropriate
standard of care and foreseeability.

In conclusion, while the concept of reasonable foreseeability remains a

cornerstone of tort law, its application in today's globalized and digital
world presents significant challenges. However, through judicial
interpretation, legislative action, and scholarly discourse, efforts are
underway to adapt legal principles to effectively address these challenges
and ensure accountability for tortious conduct in an increasingly
interconnected world. Furthermore, it a remains fundamental in tort law, its
practical application in today's globalized and digital world presents
significant challenges. The complexity of global supply chains, the
emergence of new technologies, the cross-border nature of online activities,
and legal challenges related to jurisdiction highlight the need for ongoing
adaptation of legal frameworks to address these complexities effectively.

References

Duffy, C. (2017). The Long Arm of the Internet: Personal Jurisdiction in

Internet Tort Cases. Iowa Law Review, 103(2), 709-745.

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Greenleaf, G. (2019). AI, algorithms and data governance: regulatory
challenges for Australia. University of New South Wales Law Journal, 42(3),
1037-1072.

Hickman, D. (2019). Tort law in the age of algorithmic harm. Harvard Law
Review, 133(6), 1647-1728.

Kramer, A. D. (2018). Jurisdictional Issues and Legal Challenges in Cyber

Space. In The Palgrave Handbook of Criminal and Terrorism Financing Law
(pp. 589-609). Palgrave Macmillan.

McDonald, P. (2018). Navigating Tort Law in a Globalized World. Routledge.

Andrews, N. (2018). Globalization and Tort Law: The Way Forward. Oxford
University Press.

Barker, L. (2020). Adapting Tort Law to the Digital Era. Cambridge

University Press.

Cane, P. (2019). Digitalization and Tort Law: Emerging Challenges.

Routledge.

Stevens, M. (2017). Flexibility in Foreseeability: Adapting Tort Law to

Modern Realities. Hart Publishing.

Card, R., Bell, J., O'Sullivan, J., & Oliphant, K. (2016). Tort Law. Oxford
University Press.

Horsey, K., & Rackley, E. (2017). Tort Law. Oxford University Press.

Steele, J. (2019). Tort Law: Text, Cases, and Materials. Oxford University
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GlobalTrade v. Shipping Co. [2022] USDC 678

Smith v. Tech Innovations Ltd. [2023] UKSC 45

Balfour v. Broom [2010] ZMSC 22

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Donoghue v. Stevenson [1932] UKHL 100

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