MEANING AND CONCEPT
It is quite simple, once the damage is caused by a wrong, there have to be liabilities (conditional to some exceptions). The question remains how much liability can be fixed, and what factor determines it. The doctrine of the remoteness of damages is one such principle.
An event constituting a wrong can constitute of single consequence or may constitute of consequences of consequences i.e. series of acts/wrongs.
The damage may be proximate or might be remote, or too remote.
A few elaborations of cases would perhaps make it more clear.
1. Scott v. Shepherd: A threw a lighted squib into a crowd, it fell upon X. X, in order to prevent injury to himself, did the same thing and it fell upon Y and Y in his turn did the same thing and it then fell on B, as a result of which B lost one of his eyes. A was held liable to B. His act was the proximate cause of damage even though his act was farthest from the damage in so far as the acts X and Y had intervened in between.
2. Haynes v. Harwood: The defendant’s servants negligently left a house van unattended in a crowded street. The throwing of stones at the horses by a child, made them bolt and a policeman was injured in an attempt to stop them with a view to rescuing the woman and children on the road.
One of the defenses pleaded by the defendant was novus actus interviniens, or remoteness of consequences i.e. the mischief of the child was the proximate cause and the negligence of the servants was a remote cause.
- Or let take a more general illustration (CASE X)
A person is going driving on a road, he hits a girl on the footpath, the girl tumbles on a bicycle breaks her finger , the bicycle man loses his balance and gets in front of a fuel tanker , the tanker to save the man on the bicycle steers left but unfortunately hits the railing to a river bridge and falls into it , the lock of the fuel tank breaks and the oil spills into the river , the driver with the truck drowns.
In the above case:
- the girl being hit is the direct damage and it is the direct damage caused by the act of A
- the damage caused to the cyclist is proximately caused by the falling of the girl and is remote to the act of A
- the damage caused to the truck driver and the loss of material(fuel and fuel tank) is remote to the act of A and proximate to the act of the cyclist
And it is to be noted that the accountability to negligence is made on the assumption that the person is aware of the fact that rash driving can lead to fatalities (though the expected and the actual results might not be the same).
Now, the starting point of any rule of the remoteness of damage is the familiar notion that a line must be drawn somewhere, it would be unacceptably harsh for every tortfeasor to be responsible for all the consequences which he has caused.
Certainly, the question of where to draw the line on recover-ability of consequential losses cannot be answered by a mathematically precise formula. Judges have used their discretion from time to time, and in that process, two formulas have been highlighted:
- The test of reasonable foresight
- The test of directness
THE TEST OF REASONABLE FORESIGHT
According to this test, if the consequences of a wrongful act could have been foreseen by a reasonable man, they are not too remote. If on the other hand, a reasonable man could not have foreseen the consequences, they are too remote. And, a person shall be liable only for the consequences which are not too remote i.e. which could be foreseen.
THE TEST OF DIRECTNESS
According to the test of directness, a person is liable for all the direct consequences of his wrongful act, whether he could have foreseen them or not; because consequences which directly follow a wrongful act are not too remote.
The only question which has to be answered in such any case whether the defendant’s act is wrongful or not, i.e., could he foresee some damage? If the answer to this question is in the affirmative, i.e., if he could any damage to the plaintiff, then he is liable not only for those consequences which he could have foreseen but for all the direct consequences of his wrongful act.
THE CONTENTION (Waxing and Waning )
The test of reasonable foresight was, for the first time, laid down by Pollock, C.B., in his separate opinions rendered in two cases of the Court of Exchequer in 1850, the cases being Rigby v. Hewitt and Greenland v. Chaplin. This was rejected expressly in the case by the court of appeal in Re Polemis and Furness, Withy and Co. Ltd. in favor of the test of directness.
Though the first authority for the view if advocating the directness test is the case of Smith v. London & South Western Railway Company where Channel B. said: where there is no direct evidence of negligence, the question what reasonable man might foresee is of importance in considering the question whether there is evidence for the jury of negligence or not…. but when it has been once determined there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not. What the defendant might reasonably anticipate is only material with reference to the question, whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence.
Smith v. London and South Western Railway Co.
FACTS – The railway company was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry weather. A spark from the railway engine set fire to the material. Due to high wind, the fire was carried to the plaintiff’s cottage which was burnt.
The defendants were held liable even though they could not have foreseen the loss to the cottage.
Re Polemis and Furness, Withy & Co.
FACTS – The defendants chartered a ship. The cargo to be carried by them included a quantity of Benzene and/or petrol in tins. Due to leakage in those tins, some of their contents collected in the hold of the ship. Owing to the negligence of the defendants’ servants, a plank fell into the hold, a spark was caused.
Consequently, the owners of the ship were held entitled to recover the loss – nearly 200,000 pounds, being the direct consequence of the wrongful act although such a loss could not have been reasonably foreseen.
The interpretation of ‘direct cause’ by House of Lords in Liesbosch Dredger v. S.S. Edison had the effect of limiting the scope of Re Polemis.
Liesbosch Dredger v. S.S. Edison
FACTS – Owing to the negligence of Edison, the dredger Liesbosch was sunk. The owners of Liesbosch required it for the performance of a contract with a third party, but since they were too poor to purchase a new one, they hired one at an exorbitant rate.
They sued the owners of Edison for negligence and their claim for compensation included: (1) the price of the dredger; and (2) the hire charges which they had to pay from the date of the sinking to the date they could actually purchase a new dredger.
The House of Lords accepted their claim under the first head and allowed compensation equal to the market price of the dredger comparable to Liesbosch. As regards the second head of claim, the compensation allowed was for loss suffered in carrying out the contract with the third party from the date of the sinking of Liesbosch to the date when another dredger could reasonably have been put to work. Thus, the claim after the time when a new dredger could have been reasonably purchased and put to work was rejected. The reason why a new dredger could not be purchased by the plaintiffs was their poverty and the House considered the additional loss being due to the extraneous cause of poverty and as such too remote.
And then in the case of Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd. (Wagon Mound Case) the test of directness was rejected by the Judicial Committee of the Privy Council and it was held that the test of reasonable foresight is the better test.
THE WAGON MOUND CASE
In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. Through the carelessness of their servants, a large quantity of oil was allowed to spill into the harbor. The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who were ship-builders and ship-repairers. They were refitting a vessel and for that purpose, their employees were using welding equipment. The distance between respondent’s wharf and the Caltex wharf was 600 feet.
When the respondents’ manager became aware of the conditions in the vicinity of the wharf, he instructed the workmen that no welding or burning operations were to be carried on until further orders. He enquired from the manager of Caltex Co. whether they could safely carry on the welding operations and the result of the inquiry, coupled with his own belief as to inflammability of the furnace oil on water in the open led him to think that he could safely carry on the operations. He gave instructions accordingly but directed that all safety precautions should be taken to prevent inflammable material falling into the oil.
On the third day, there was an outbreak of fire. The exact cause of the fire is unknown, but the most probable explanation which the Court accepted was that underneath the wharf was floating a piece of debris with some smoldering cotton waste or rag on it. It was set on fire by the molten metal falling from the wharf. Thus, floating oil was set a fire and the wharf was severely damaged.
The trial as well as the Supreme Court followed the Polemis rule and held the defendant liable, with the reason that any reasonable man could form the chain of events deduce that the negligence of the defendant was the direct cause for the fire.
However, the Privy council ruled in favor of the Overseas Tankship Ltd. holding that the Re Polemis was no longer valid law. Since a reasonable man could not foresee the damage caused, the appellants were held not liable, even though the negligence of the servants was the direct cause of the injury.
The test of reasonable foresight has been applied to many other cases thereafter.
Hughes v. Lord Advocate
In this case, the post office employees opened a manhole for the purpose of maintaining underground telephone equipment. The manhole was covered with a tent. One evening it was left surrounded by paraffin lamps but otherwise unguarded. A child of eight years entered the tent and started playing with one of the lamps. The lamp fell into the manhole and caused a violent explosion resulting in the fall of the boy in the hole and severe burns thereof.
It was held that since the kind of damage was foreseeable although the extent was not, the defendants were liable.
Doughty v. Turner Manufacturing Co. Ltd.
The plaintiff was employed by the defendants. Some other workmen of the defendants let an asbestos cement coverslip into a cauldron of hot molten liquid. It resulted in an explosion and the liquid thereby erupted, causing injuries to the plaintiff. The cover has been purchased from a very reputed manufacturer and nobody could foresee that any serious consequences could follow by the falling of the cover into the cauldron.
Held, that the damage resulting from the explosion was not of the kind as could have been foreseen, and, therefore, the defendants were not liable.
Some other cases for reference are Lampert v. Eastern National Omnibus Co.; S.C.M.(United Kingdom) v. W.J.Whittall & Sons; Shaikh Gafoor v. State of Maharastra.
CONCLUSION
The test of reasonable foresight seems to be well established and widely accepted by now to determine the question of the remoteness of damage, the facts of the case and the evidence present shall always be the priority determining factors for the fate of any case.
Note: The test of reasonable foresight stands fairly reasonable in its viability, yet the decision in the Wagon Mound Case which is said to have given birth to it seems a bit off beat and contrary to the establishment/principle that it purports.
– Saumya Tripathi
(Lucknow University)
SOURCES:
1. Scott v. Shephard – 17 W.B1. 892
2. Haynes v. Harwood – (1935) 1 K.B. 146
3. Rigby v. Hewit – (1850) 5 Ex. 240
4. Greenland v. Chaplin – (1850) 5 Ex. 243
5. Re Polemis and Furness, Withy & Co. Ltd. – (1921) 3 K.B. 560
6. Smith v. London & South Western Railway Co. – (1870) L.R. 6 C.P. 14
7. Liesbosch Dredger v. S.S. Edison – (1993) A.C. 448
8. Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engg. Co. Ltd. – (1961) A.C. 388; (1961) 1 All. E.R. 404 (P.C.)
9. Hughes v. Lord Advocate – (1963) A.C. 837
10. Doughty v. Turner Manufacturing Co. Ltd. – (1964) 1 Q.B. 518
11. Lampert v. Eastern National Omnibus Co. – (1954) 1 W.L.R. 1047
12. S.C.M. (United Kingdom) Ltd. v. W.J. Whittall & Sons. – (1971) 1 Q.B. 337
13. Shaikh Gafoor v. State of Maharashtra – AIR 2008 (NOC) 1637 (Bom.).
14. Law of Torts – Dr. R. K. Bangia
15. SCC Online
16. Manupatra
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