Re Polemis and Furness, Withy & Co

Legal Case Summary

Re Polemis and Furness, Withy & Co Ltd [1921] 3 KB 560

The extent of liability where the injuries resultant from tortious negligence are entirely
unforeseeable.

Facts
Employees of the defendant had been loading cargo into the underhold of a ship when
they negligently dropped a large plank of wood. As it fell, the wood knocked against
something else, which created a spark which served to ignite the surrounding petrol
fumes, ultimately resulting in the substantial destruction of the ship. At first instance
(arbitration), it was held that the reasonable unforeseeability of the outcome meant that
the defendant was not liable for the cost of the ship.

Issues
Can a defendant be held liable for outcome of events entirely caused by their (or their
agents’) actions, but which could not have been foreseen by either the party in question
or any other reasonable party.

Decision / Outcome
The Court of Appeal adopted a strict liability approach to causation and assessing
liability here and subsequently held that the defendant was liable for all of the
consequences that had resulted from their negligent actions. The fact that the extent of
these consequences was neither subjectively appreciated nor objectively foreseeable
was deemed irrelevant to such a determination. Notably, this authority would go on to
be replaced in the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co
Ltd (The Wagon Mound) (No. 1) [1961] AC 388, however it has never been officially
overturned in English law and theoretically remains ‘good case law’, despite its lack of
application.

Grainger & Son v Gough 1896

The defendant wine merchant circulated a catalogue which contained a price list for its products.
The claimant ordered a number of bottles of wine from the catalogue and, when the defendant
refused to deliver these at the stated price, alleged that a contract had been formed....
Southwark LBC v Mills

Landlord and tenant; whether poor soundproofing amounted to breach of covenant for quiet
enjoyment...

Doctrine of a Duty of Care

The word tort is derived from the French word of the same spelling which means mischief,
injury, wrong, or calamity from the Latin tortus meaning twisted....

Doctrine of a Duty of Care

QUESTION 1
The word tort is derived from the French word of the same spelling which means
“mischief, injury, wrong, or calamity” from the Latin tortus meaning “twisted”. It is
considered that one of the main ways to claim for compensation is through the doctrine
of a Duty of Care, which is when one party is liable to another in negligence.

Tort and breach of contract are differentiated as where there is a breach of contract the
rights and duties are personal to the contracting parties whereas in the law of tort,
rights and duties are owed to everyone and by everyone. Out of all of the subdivisions
of civil law, tort and contract have the most similarities although many cases fall
exclusively into one or the other.

In this case, David has been sold a property in which dry rot has appeared after two
years despite the vendor of the property (Eleanor) providing a report from a company
named Eradit Ltd stating that there was no evidence of dry rot. Eradit Ltd has since
admitted that an unqualified trainee carried out the inspection and the report was
negligently prepared. Negligence is one of a number of different types of tort.

A common law principle, vicarious liability is where a superior is responsible for the acts
of their subordinate and is something which may be applied to this scenario. Under the
respondeat superior doctrine employers are vicariously liable for negligent acts or
omissions by their employees during the course of employment as illustrated in Cassidy
v Ministry of Health (1951)[1]. For such an act to be considered within the course of
employment it must be authorised or connected with an act that has been authorised.
Usually an employer will be insured in respect of vicarious liability.
In Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964)[2] (‘Hedley Byrne’) the ruling
was based on pure economic loss resulting from a negligent misstatement. A negligent
misstatement is where a liability arises not because of a negligent act but because of
negligent words.

Prior to this case, the concept that one party may owe another party a duty of care for
statements which had been relied on had been rejected as the only available remedy
was found in contract law. Hedley Byrne therefore overruled the previous position.

In determining the application of the rule in Hedley Byrne, the courts apply a triple test
wherein the necessary relationship of proximity between the maker of a statement and
the person that relies upon it exists where:-

1. Advice is required for a purpose known to the adviser when the advice is given;

2. The adviser knows that the advice will be communicated to the advisee; in order to be
used for that purpose;

3. It is known that the advice will be communicated to the advisee for that purpose
without independent inquiry;

4. It is so acted upon by the advisee to his detriment.

The Hedley Byrne rule results in agents being personally liable to third parties for not
only statements of fact but also statements of professional opinion or advice upon
which a third party relies.

In accordance with English law duty of care is something which may be owed from one
party to another so that they do not suffer unreasonable harm or loss. The origins of
duty of care may be found in the case of Donoghue v Stevenson (1932)[3], whereby
ginger beer had been negligently produced. In this case Lord Atkin said that a duty of
care will be owed to a neighbour-in-law. Consequently, negligence in tort creates a
liability to neighbours in law.

A neighbour-in-law was described by Lord Atkins as someone closely and directly

affected by the acts of a person so that they reasonably should have been contemplated
when the person took certain action. The test an objective test and the result of this is
that a defendant is not automatically liable for every injury resulting from their action.

Subsequent to Donughue and Stevenson the duty of care concept expanded into a
coherent judicial test which has to be satisfied in order to claim in negligence and the
development of this law was then taken a step further in Caparo Industries Plc v
Dickman (1990)[4] (‘Caparo’) regarding the proximity of the relationship and the
forseeability.

In Caparo it was established that to bring a successful action for a negligent

misstatement it has to be shown that:-

1. The claimant relied upon the defendant’s skill and judgement;

2. That the defendant knew or reasonably ought to have known that the claimant was so
relying:-

3. It was reasonable in all circumstances for such reliance.

In summary, David does have a valid claim in accordance with the law of tort and he
may sue Eradit Ltd for negligence.

It is clear that as a result of the negligent misstatement from Eradit Ltd as a professional
advisor, David will suffer from economic loss as he will have to pay to get rid of the dry
rot. Furthermore, the Hedley Bryne case has many similarities to this scenario as David
has relied on the statement of the professional advisor despite not having a legal
contract with Eradit Ltd. Furthermore, Eradit Ltd as an employer has vicarious liability
and will probably have insurance for this.

QUESTION 2a
John’s Liability for Diana’s Injuries
Actions in negligence, delivered through law of tort, are normally analyzed in four points
or elements. It is necessary for the claimant to establish a case for each element for a
claim to be successful. If the claimant fails to prove any one of the elements then he/she
looses the entire claim.

When considering John’s liability for Diana’s Injuries it is first necessary to establish:

1. That John owes a legally recognised duty of care to Diana

2. John violated that Duty

3. As a result of John’s violation of that Duty, Diana suffered injury; and

4. The injury was a reasonably foreseeable consequence of John’s action or inaction.

For the actions of negligence to be successful each of the elements above must be
satisfied.

It is considered that one of the main ways to claim for compensation is through the
doctrine of a Duty of Care which is when one party is liable to another in negligence. In
Donoghue v Stevenson (1932)[5] the “neighbour principle” was established. Lord Atkins
stated that “You must take reasonable care to avoid acts or omissions….likely to injure
your neighbour.”

For the defendant to be able to foresee a risk of being harmed, the claimant is not
required to be individually identifiable. They merely have to fall within a category where
the risk of harm was foreseeable. In Ann’s v Merton (1978)[6], a two stage test was
established and changed the way the neighbour test was applied[7].

The leading case used to establish a duty is given in Caparo Industries Plc v Dickman
(1990)[8] where the courts are required to consider three main questions:

1. Whether there was proximity, in terms of a relationship, between the claimant and the
defendant?

2. Was the damage reasonably foreseeable? The courts enquire whether a reasonable
man would have foreseen the risk of damage, had they been in the defendant’s position.

3. Was it just, fair and reasonable to impose such a duty?

The breach of that duty of care can be best summarised in the case Blyth v Birmingham
Waterworks Co (1856)[9], where Baron Alderson stated:

“Negligence is the omission to do something which a reasonable man guided upon

those considerations which ordinarily regulate the conduct of human affairs would do,
or doing something which a prudent and reasonable man would not do.”

When looking at this scenario a system of risk analysis can be used in this instance. The
degree of risk – Bolton v Stone (1951)[10], were a man claimed damages from a cricket
clubs members on the grounds of nuisance or negligence. It was found that although it
could have been foreseeable that the ball could have been hit over the fence, it was not
enough to establish negligence because it was such a remote risk of injury that a
reasonable person would not have anticipated it.

The seriousness of the harm – Paris v Stepney Borough Council (1951)[11], where the
claimant was employed by the defendant on vehicle maintenance and only had the use
of one eye, the workman sustained injury to his one remaining eye. The defendant was
found to be in breach of his duty of care for not supplying the workman with safety
goggles as any injury to the workman’s one remaining eye was likely to be especially
serious.

Likely severity of the harm that may be sustained against the cost of taking precautions
– Latimer v AEC Ltd (1953)[12], where a heavy rainstorm flooded a factory floor, oil that
normally ran in the channels in the floor of the building, rose to the surface and when
the water drained away left a slippery film on the floor. The occupiers of the factory did
what they could to make the factory floor safe, but the claimant fell and was injured. He
alleged negligence in that the occupiers did not close down the factory. The occupiers
were not held liable as they took every step that could have been reasonably taken in
the circumstances.

Any other factors that may serve to justify the risk taken – Watt v Hertfordshire County
Council (1954)[13], where a fireman was injured by a jack falling over in the back of a fire
truck, the jack was not properly secured and the truck had to leave in a hurry. It was
found that there had been no breach of the duty of care as the truck was responding to
an emergency.

In this scenario there is an obvious risk of drink driving and the severity of harm likely to
have been suffered if the risk manifested is very high, drunken automobile accidents are
more than often serious. With this in mind and taking in to consideration, the costs of
taking precautions such as not driving, would have been minimal or no risk. There is no
acceptable excuse or justification for the behaviour and thus it seems that in this case
the scales definitely fall towards a compelling finding of liability.

It is also clear from the brief that John was driving fast and erratically and had ignored
the red light and as a direct result hit Diana’s car. Inevitably, this can only heighten the
responsibility owed by John to have driven cautiously and stopped at the red light. On
these bases it is clear that John owes Diana a duty of care in negligence and that he was
in breach of duty by driving his car in the manor that he did and failing to stop and the
red light.

The damage has been suffered is clear from the facts. Dianna has sustained serious
injuries as a consequence of being hit by John. It is clear that the damage will inevitably
be of the kind that is recoverable under tort of negligence.

It is also clear on the facts submitted that causation is a relatively easy matter to
establish. It is clear that the damage suffered from direct result of the breach. Diana was
driving her car and was hit by a drunk driver, who ignored a red light and was driving
fast and erratically, as a direct and immediate consequence Diana suffered serious
injuries. Examples of causation can be found in cases Barnett v Chelsea and Kensington
Hospital Management Committee (1968)[14].

Remoteness of damage will not be an issue for Diana’s claim as in this case serious
injuries have been caused to another motorist by a drink driving and ignoring a red
light. It is normal and predictable consequence of negligence which causes an accident
of this nature. The principle of Remoteness of damage can be satisfied by The Wagon
Mound No. 1 (1961)[15], provides that only damage which is a reasonably foreseeable
consequence of a breach will be recoverable by law.

The more foreseeable the harm the more likely the court will hold the relationship as
proximate, fair and reasonable to impose a duty and will therefore be able to claim
compensation. Based on the above analysis it can be concluded that Diana would have a
case of negligence against John. Since John was under the influence of alcohol, was
driving fast and erratically and the fact that he ignored the red light hitting Diana’s car
as a direct result, the court would usually have little sympathy for a drunk driver in these
circumstances.

QUESTION 2b
Possible defences available to John against his liability in tort to Bruce
When considering the possible defences available to John against his liability in tort
against Bruce the same four points raised in part a (John’s liability in tort for Diana)
would need to be established for Bruce to have a case against John.

Bruce’s case against John would be affected by contributory negligence and the issue of
volenti non fit injuria (someone who knowingly and willingly puts themselves in a
dangerous situation will be unable to sue for his or her injuries). Contributory
negligence and volenti would be the base of John defence.

When seeking defence in volenti non fit injuria[16] it must establish the following:

1. Bruce knew the nature and extent of the risk of harm

2. Bruce voluntarily agreed to it

In order for a defence to be raised in contributory negligence[17] it must address the

following:

1. Bruce failed to exercise reasonable care for his own safety

2. That this failure contributed to his injuries

3. By what extent should Bruce’s damages be reduced

As Bruce was a passenger in a car being driven by John, Bruce would be considered a
neighbour of John under the “neighbour principle” in Donoghue v Stevenson (1932)[18].
It is also obvious that John was in breach of that duty by reapplying the risk analysis and
using common sense as John was under the influence of alcohol when driving the car.

The damage that Bruce suffered as a result of John’s actions as stated in the brief were
serious and were clearly caused by John’s actions. However when looking at causation, it
must be taken in to consideration that Bruce was not wearing a seatbelt at the point of
the accident and he had encouraged John to ignore the red light.

It is likely that the seriousness of Bruce’s injuries could be exacerbated due to the fact
that he had failed to wear his seatbelt; Bruce has therefore broken the chain of
causation from John’s drink driving. This issue will be addressed in the context of
contributory negligence.

When using the volenti defence also known as voluntary assumption of risk defence, the
basis, is that the claimant must be shown to of acted voluntarily in the sense that they
could exercise a free choice? It is clear from the brief that Bruce had accepted the offer
of a lift from John who was clearly under the influence of alcohol and that Bruce had
encouraged John to ignore the red traffic light. In the case Morris v Murray (1990)[19]
the defendant took a ride in an aircraft with a pilot he knew was drunk and the defence
of volenti succeeded and defeated the claim.

It is clear that there is a clear issue of contributory negligence, as Bruce is clearly partly
responsible for his own misfortune due to the three respects, firstly by allowing John to
drive him under the influence of alcohol, secondly by failing to wear a seatbelt and
thirdly by encouraging John to ignore the red traffic light. In the case Froom v
Butcher (1975)[20] the failure by a claimant to wear a seat belt in a car resulted in
reduced damages on the grounds of contributory negligence.

QUESTION 3
In advising Oak & Troy Ltd of their legal remedies it firstly has to be established that
they were in breach of their duty, and in doing so it must have been reasonably
foreseeable that their conduct might cause harm or damage to property.

In Re Polemis and Furniss Withy & Co (1921)[21] it was held that spill oil in a harbour is
carless even criminal, It may foul the wharfs and require expensive cleaning operation,
but it is extremely difficult to set alight on open water, should the defendants be
responsible for an explosion by a spark lighting petrol vapour and consequent
destruction of a wharf by fire. Not so in Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (The Wagon Mound) (1961)[22].

Following from this there are two broad approaches to the problem. He first states a
defendant liable for the direct consequences of his negligence, no matter how unusual
or unexpected (this is a test of causation). The second holds that a person is reasonable
only for the consequences that could have been reasonably anticipated.

The decision of the Court of Appeal in Re Polemis and Furnis Withy & Co (1921)[23]
Bank L.J. said that the given damage was a direct result of the negligence; similarly
Scrutton L.J. observed that once the act is negligent, the fact that its exact operation was
not foreseen is immaterial. The Privy Council in the Wagon Mound said this was
fundamentally false.

In Hughes v Lord Advocate (1963)[24] employees of the post office left a man cover
open in the street covered by a canvas tent; two young boys entered the manhole and
took one of the lamps with them that was on site. As they came out, the lamp was
knocked into the hole causing an explosion in a unique fashion. The evidence showed
that the explosion was unforeseeable in the circumstances. The House of Lords held the
defendants liable.

The damage will be too remote if not of the same type or kind as the harm that could
have been foreseen, it could be argued that the swinging crane could cause damage or
injure, and was reasonably foreseeable.

It is advised that if Bathsheba goes for single damage, in case Brunsden v Humphrey
(1884)[25] the plaintiff succeeded in an action for damage to his cab caused by the
defendants negligence in the case of damage to property, as in this case. The basic
principle for measure of damage is that the claimant should be restored to his position
before the tort was committed. Where the property has been totally destroyed, the
measure of damage is that of the market value of the property.

In Mattocks v Mann (1993)[26] it was held that the plaintiff was entitled to recover hire
charges for a replacement vehicle in the period of delay. Therefore it is likely that
Bathsheba will be able to claim for the cost of hiring a substitute vehicle while her car is
being repaired.

The court also has discretion to word a simple interest on all or any part of the damages.
There is an overlap here with private nuisance which is unlawful interference with the
persons use or enjoyment of land, or right over in connection with it. However it must
be stressed that not all interferences with another’s enjoyment of land are actionable.
The House of Lords in case Hunter v Canary Wharf (1997)[27] may have placed some
limits on the unstructured approach to private nuisance.

Bibliography
Keenan (2007) Smith & Keenan’s English Law (15th edn), Pearson Longman (2007).

Isurv Gateway, http://www.isurv.com/site/scripts/documents_info.aspx?

categoryID=340&documentID=2501&pageNumber=9, viewed 24th April 2010.

Safetyphoto,
http://www.safetyphoto.co.uk/subsite/case%20i%20j%20k%20l/latimer_v_aec_ltd.htm,
viewed May 1st 2010.

UK Law Review, http://www.uklawreview.com/tag/caparo-v-dickman/, Viewed 1st May

2010.

Oxford University Press,

http://www.oup.com/uk/orc/bin/9780199216376/01student/answers_chapter_opening/
ch10/, viewed 2nd May 2010.

Wikipedia, http://en.wikipedia.org/wiki/Tort, viewed 2nd May 2010.

Wikipedia, http://en.wikipedia.org/wiki/index.html?curid=2263856, Viewed 2nd May

2010.

Swarb, http://www.swarb.co.uk/lisc/Damag19921992.php, viewed 8th May 2010.

Audio Case Files, http://www.audiocasefiles.com/acf_cases/9062-in-re-polemis-furness-

withy-co-, viewed 8th May 2010.

Lawindexpro, http://www.lawindexpro.co.uk/cgi-bin/casemap.php?case=83484&rf=scu
target=, viewed 8th May 2010.

A Level Law, http://www.a-level-law.com/tort/nuisance/lecture.htm, viewed 9th May

2010.

[1] Cassidy v Ministry of Ministry of Health (1951) 2KB 343

[2] Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465

[3] Donoghue v Stevenson (1932) AC 562

[4] Caparo Industries Plc v. Dickman (1990) 2 AC 605

[5] Donoghue v Stevenson (1932) AC 562

[6] Anns v Merton London Borough (1978) AC 728

[7] This was overruled by Murphy v Brentwood District Council (1991) 2 A11 ER 908

[8] Caparo Industries Plc v Dickman (1990) 2 AC 605

[9] Blyth v Birmingham Waterworks Co (1856) 11 Ex 781

[10] Bolton v Stone (1951) AC 650

[11] Paris v Stepney Borough Council (1951) AC 367

[12] Latimer v AEC Ltd (1953) 2 A11 ER 449

[13] Watt v Hertfordshire County Council (1954)2 A11 ER 368

[14] Barnett v Chelsea and Kensington Hospital Management Committee (1968) 1 A11
ER 1068

[15] The Wagon Mound (No. 1) (1961) 1 AC 617

[16] Volenti non fit injuria- someone who knowingly and willingly puts themselves in a
dangerous situation will be unable to sue for his or her injuries

[17] Law Reform (Contributory Negligence) Act 1945

[18] Donoghue v Stevenson (1932) AC 562

[19] Morris v Murray (1990) 3 A11 ER 801

[20] Froom v Butcher (1975) 3 A11 ER129

[21] Re Polemis and Furness Withy & Co Ltd Re (1921), 3 KB 560

[22] Overseas Tankship (UK) v Morts Dock and Engineering Co Ltd (The Wagon Mound)
(1961) AC 388

[23] Re Polemis and Furness Withy & Co Ltd Re (1921), 3 KB 560

[24] Hughes v Lord Advocate (1963) 1 A11 ER 705

[25] Brunsden v Humphrey (1881) 14 QBD 141

[26] Mattocks v Mann (1993) PTR 13

[27] Hunter v Canary Wharf (1997) 2 A11 ER 426

Overseas Tankship v Morts Dock - 1961

Legal Case Summary
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound)
[1961] AC 388

Tort law – Remoteness Rule – Causation – Negligence – Reasonably Foreseeable –

Foreseeability – Contributory Negligence – Duty of Care - The Wagon Mound Case

Facts
The crew members of the Overseas Tankship (UK) Ltd were working on a ship, when
they failed to turn off one of the furnace taps. This caused oil to leak from the ship into
the Sydney Harbour. Morts Dock & Engineering Co (The Wagon Mound) owned the
wharf, which they used to perform repairs on other ships. The leaking oil on the water
surface drifted to the site where Morts were welding metal. A supervisor enquired to
find out whether the oil was flammable, which he was assured that it was not. However,
a spark from welding and mixed with debris, caught fire from the spilt oil and this
caused a fire to spread rapidly. This caused significant damage to Mort’s wharf.

Issues
The issue in this case was whether the crew could be liable for the damage to the wharf
that was caused by the fire. In addition, would this also be the case even if it was
unforeseeable, but a result of a negligent act.
 Decision/Outcome
The court held that Overseas Tankship (UK) Ltd could not be held liable to pay
compensation for the damage to the wharf. This case disapproved the direct
consequence test in Re Polemis and established the test of remoteness of damage. This
asks whether the damage would be reasonably foreseeable. In this case, the damage
caused to the wharf by the fire and the furnace oil being set alight could not be
foreseen by a reasonable person.

n Re Polemis
King’s Bench
3 K.B. 560 (1921)

Facts
Polemis (plaintiff) owned a ship and chartered it to the defendants. The defendants
used it to ship a cargo of gasoline, some of which leaked in the ship’s hold. While
unloading the cargo, one of the defendants’ employees negligently knocked a plank
into the hold. When the plank landed, it created a spark that caused an explosion
and subsequent fire, destroying the ship. Polemis sued the defendants for the
damages. A panel of arbitrators found in favor of Polemis, holding that the
defendants' negligence caused the accident, and that although the explosion was
not foreseeable, some damage was. The trial judge upheld the award of damages.
The defendants appealed.
Rule of Law
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Issue
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Holding and Reasoning (Bankes, J.)

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 A "yes" or "no" answer to the question framed in the issue section;
 A summary of the majority or plurality opinion, using the CREAC method; and
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In re Polemis & Furness, Withy &

Co.
Citation. [1921] 3 K.B. 560

Brief Fact Summary.

The defendants leased a ship from the plaintiff to carry cargo, including a flammable
liquid called benzine. While in transit, a plank fell onto the cases of benzine, igniting
them and causing an explosion that destroyed the whole ship.

Synopsis of Rule of Law.

The unforeseeability of the consequences of a negligent act do not absolve
the negligent actor of liability.

Facts.
The plaintiff leased the boat Furness to the defendant to carry cargo to Casablanca.
The cargo included benzine (a flammable liquid used as fuel), and while unloading at
Casablanca, a heavy plank fell into the hold where the benzine was being stored. This
caused an explosion that set fire to and completely destroyed the whole ship.

Issue.
Is the defendant liable for the destruction of the ship?

Held.
 Yes. The defendant is liable despite the falling plank being unforeseeable. The decision
rendered at arbitration is upheld.

Discussion.
The court indicates two possible approaches to a case of this nature. The first involves
a case where there is no direct evidence of negligence. The second involves a case
where negligence has already been proven. The court chooses to use the second
approach, indicating an agreement with the finding in arbitration that the defendant
was negligent. The court determines that the fire was clearly caused by the falling plank
—which was in turn caused by the defendant’s negligence—and so the defendant
is liable for the damage regardless of the foreseeability that a plank would fall and ignite
the benzine.

Problem of Remoteness of Damage in Torts

Table of Contents

 Introduction
 Proximate and Remote Damage
o Few Illustrations for Proximate and Remote Damage
 Two Tests of Remoteness
o Test of Reasonable Foresight
o Test of Directness
 Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight
 Wagon Mound Ruling Followed in Subsequent Cases
 References

Introduction
In the Law of Torts, ‘Remoteness of Damage’ is an interesting topic. The general
principle of law requires that once damage is caused by a wrongful act, liabilities
have to be assigned. But, as many cases have shown, assigning liabilities is not
always a simple task at hand.

Once a wrongful act has been committed (tort), it can have multiple
consequences. The consequences can have further consequences. These
‘consequences of consequences’ can become a long chain and at times the
problem of the liability of the defendant comes up. The question that this
particular topic deals with is “How far can the defendant’s liability be stretched
for the ‘consequences of consequences’ of the defendant’s tort?”
To a first-time-reader, this whole concept of ‘consequences of consequences’
would sound confounding. Therefore, in order for us to appreciate the problem
better, we may look at a simple example.

In this simple example, we see that the defendant who was a cyclist negligently
hits a pedestrian. Incidentally, the pedestrian happened to be carrying a bomb.
And due to the negligence of the defendant, the pedestrian falls and the said
bomb explodes, resulting in the death of that pedestrian. Now, due to the
explosion of the bomb, a nearby building catches fire and five of its residents
die. As a result of the fire, the building collapses and nearby structures are
destroyed, resulting in 20 more deaths. Further, the destruction of nearby
shops results in pecuniary losses to the shop owners.

Although one would tend to easily dismiss this example as too far-fetched, it is
not difficult to see that similar cases resembling this particular domino effect
can exist and that their existence can create questions of legal importance.

In the above example itself, we can see how a tort of negligence committed by
the defendant can result in consequences that were neither intended by the
defendant nor comprehended by him beforehand. Such a situation creates
question for assigning blame. Even if the Court were of the opinion that the
defendant was to be blamed for the death of the pedestrian, would the Court
also unhesitatingly place the same amount of the blame on the defendant for
the death of the other 25 people?

The problem is also explained by Lord Wright, to some extent, in the case
of Liesbosch Dredger v. S.S. Edison:

“The Law cannot take account of everything that follows a wrongful act; it
regards some subsequent matters as outside the scope of its selection, because
it was infinite of the law to judge the causes of causes, or consequences of
consequences. In the varied web of affairs, the law must abstract some
consequences as relevant, not perhaps on grounds of pure logic but simply for
practical reasons.”

To answer such questions, jurists propose that a defendant should be made

responsible only for the consequences which were proximate (and
not remote) consequences of the defendant’s wrongful act.
Proximate and Remote Damage
Just as Lord Wright has pointed it out, we have to draw a line for practical
purposes. Now, the question that arises is where exactly is this line to be
drawn?

To answer this question, we look at a test known as ‘the test of remoteness’.

With this test, we check if the damage is ‘too remote a consequence’ of the
wrongful act or not?

Few Illustrations for Proximate and Remote

Damage
Scott v. Shepherd (The Squib Case)

In this case, a person A threw a lighted squib into a crowd. The squib fell on a
person B. B, in order to prevent injury to himself, threw that squib further. It
landed on another person C, who in turn threw it further and it finally exploded
on a person D, thereby injuring him. As a result of the explosion, D lost one of
his eyes.

In this case, A was held liable to D. Although one would say that his act was
‘the farthest from the injury to D’, his act was held to be a proximate cause of
the injury to D.

Haynes v. Harwood
In this historically famous case, the servants of the defendant, owing to their
negligence abandoned a horse van on a crowded street. The street had children
and women. Some children pelted stones at the horses, as a result of which the
horses bolted and started posing a threat to the safety of the people in the
street. In order to stop the horses and to rescue the women and children, a
policeman (the plaintiff here) suffered injuries himself.

In a lawsuit brought by the plaintiff against the defendant, one defence pleaded
was that of novus actus interveniens (remoteness of consequences).

Again, in this case, the Court held that novus actus interveniens was not a valid
defence and that the negligent act of the defendant’s servants leaving the horse
van unattended as the proximate cause of the injury suffered by the plaintiff.

Lynch v. Nurdin

This case is similar to the previous one to a certain degree. Here, the defendant
left his horse-cart unattended on a road. Some children began playing with the
said horse-cart. One child sat on the cart (the plaintiff) and another set the
horse in motion. Consequently, the child suffered damage and an action was
brought.

In this case too the defence of novus actus interveniens was pleaded. But again,
it was held by the Court that the injury to the plaintiff was a proximate
consequence of the defendant’s act and hence he would be held liable to the
plaintiff.

Two Tests of Remoteness

Now that we have seen that the law deems a person liable for the injuries
caused which were proximate consequences of that person’s act, one might ask
about the parameters on which the Court decides which act is a proximate one
and which one remote.

To answer this question, we see two tests of remoteness during the course of
legal history:

1. Test of reasonable foresight; and

2. Test of directness.
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.

Pollock was an advocate of this test of remoteness. He opined, in cases Rigby v.

Hewitt and Greenland v. Chaplin, that the “liability of the defendant is only for
those consequences which could have been foreseen by a reasonable
man placed in the circumstances of the wrongdoer.”

But here we must note that it would not be a sufficient defence in itself to say
that the defendant did not foresee the consequences. Instead, it would be for
the Court to decide, upon the standards of reasonability, whether the
consequence should have been foreseen by the defendant or not.

This test of reasonable foresight lost its popularity to the test of directness. But,
as we shall see later, it managed to regain currency among jurists.

Test of Directness
According to the test of directness, a person is liable for all the direct
consequences of his act, whether he could have foreseen them or not;
because consequences which directly follow a wrongful act are not too remote.

Further, according to this test, if the defendant could foresee any damage, he
will be liable for all the direct consequences of his wrongful act. To understand
this particular test of remoteness better, it would suffice to look at the Re
Polemis Case.

Re Polemis and Furness, Wilthy & Co.

This case, popularly referred to as the Re Polemis Case, was the landmark case
on the test of directness. The Courts of Appeal held the test of reasonable
foresight to be the relevant test whereas later the Privy Council upheld the test
of directness.

The relevant facts of the case are that the defendants chartered a ship to carry
cargo. The cargo included a quantity of Petrol and/or Benzene in tins. There was
a leakage in the tins and some oil was collected in a hold of the ship. Now,
owing to the negligence of the defendant’s servants, a plank fell in the hold and
consequently sparks were generated. As a result of those sparks, the ship was
totally destroyed by fire.

In this case, the Privy Council held the owners of the ship entitled to recover the
loss, although such a loss could not have been foreseeably seen by the
defendants. It was held that since the fire (and the subsequent destruction of
the ship) was a direct consequence of the defendant’s negligence, it was
immaterial whether the defendant could have reasonably foreseen it or not. As
per Scrutton, L.J.:

“Once an act is negligent, the fact that its exact operation was not foreseen is
immaterial.”

Wagon Mound Case: The Re-affirmation of

the Test of Reasonable Foresight
The test of directness that was upheld in the Re Polemis case was considered to
be incorrect and was rejected by the Privy Council 40 years later in the case
of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd., also
popularly known as the Wagon Mound Case.

The facts of this case are as follows:

The Wagon Mound was a ship which was chartered by the appellants (Overseas
Tankship Ltd.). It was taking fuel at a Sydney port at a distance of about 180
metres from the respondent’s wharf. The wharf had some welding operations
going on in it. Owing to the negligence of the appellant’s servants, a large
quantity of oil was spilt on the sea which also reached the respondent’s wharf.
Due to the welding operations going on there, molten metal (from the
respondent’s wharf) fell, which ignited the fuel oil and a fire was caused. The
fire caused a lot of damage to the respondent’s wharf and equipment.

In this case, the trial court and the Supreme Court held the appellants liable for
the damage to respondents based on the ruling in Re Polemis. But when the
case reached the Privy Council, it was held that Re Polemis could not be
considered good law any further and thus the decision of the Supreme Court
was reversed. It was held that the appellants could not have reasonably
foreseen the damage to the respondent and therefore were not liable for the
damage caused.

In the case Lord Viscound Simonds observed:

“It does not seem consonant with current ideas of justice or morality that, for
an act of negligence, … the actor should be liable for all consequences, however
unforeseeable.”

They also maintained that “according to the principles of civil liability, a man
must be considered to be responsible only for the probable consequences of his
act”.

And therefore with this case, the test of reasonable foresight regained its
authority to determine the remoteness of damage and subsequently the liability
of a person for the damage caused by him in cases of tort.

Wagon Mound Ruling Followed in

Subsequent Cases
Hughes v. Lord Advocate

In this case, workers employed by the Post Office left a manhole in the road
unattended. Before they left the site, they covered the manhole with a tarpaulin
entrance and placed several paraffin lamps around it. The 8-year-old plaintiff,
attracted by the lamps, was playing around the manhole along with another
child. One of the lamps was knocked down, causing an explosion in the
manhole. The explosion resulted in damage to the plaintiff.

In this case, the Court held that even though the explosion was not foreseeable
by the servants of the Post Office, the type of the damage (burns) was.
Therefore, the defendants were held liable.

Doughty v. Turner Manufacturing Co. Ltd.

In this case, the plaintiff was employed by the defendant. Owing to the
negligence of other workmen employed by the defendant, an asbestos cover
slipped into a cauldron of molten hot liquid. The resulting explosion caused
injury to the plaintiff, who was standing nearby.

It was held that the damage which resulted from the explosion was not such
that could have been reasonably foreseen by the defendant, and therefore the
defendant’s negligence was not a proximate cause of the damage to the
plaintiff. The defendants were held not liable.
S.C.M. (UK) Ltd. v. W.J. Whittall & Sons

The Court of Appeals applied the test of reasonable foreseeability in this case.
In this case, due to the defendant’s workers’ negligence, an electric cable was
damaged. As a result of this damage, a long power failure followed in the
plaintiff typewriter factory. Consequently as a result of this power failure, the
plaintiff alleged that there had been a loss of production and damage to his
factory’s machines.

The Court in this case held that the defendants were aware of the fact that the
said electric cable used to supply power to the plaintiff’s factory, and that they
could have reasonably foreseen that any such power failure would lead to
significant loss to the plaintiff. And hence, the plaintiff was entitled to damages.

References
Cases

 Liesbosch Dredger v. S.S. Edison [1993] AC 449.

 Scott v. Shepherd [1773] 2 WM B1 892.

 Haynes v. Harwood (1935) 1 K.B. 146.

 Lynch v. Nurdin (1841) 1 Q.B. 29.

 Rigby v. Hewitt (1850) 5 Ex. 240.

 Greenland v. Chaplin (1850) 5 Ex. 243.

 Re Polemis and Furness, Wilthy & Co. (1921) 3 K.B. 560.

 Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. (1961)
A.C. 388.
 Hughes v. Lord Advocate (1963) AC 837.

 Doughty v. Turner Manufacturing Co. Ltd. (1964) 1 Q.B. 518.

 S.C.M. (UK) Ltd. v. W.J. Whittall & Sons (1971) 1 Q.B. 337.
Books

 R.K. Bangia, Law of Torts (Allahabad Law Agency, Faridabad, 24th edn.,
2017).
Websites
  https://www.toppr.com/guides/legal-aptitude/law-of-torts/remoteness-
of-damages-law- of-tort/.
 https://blog.ipleaders.in/remoteness-of-damages/.

 www.wikipedia.org.

 https://www.scribd.com/document/432378757/Remoteness-of-Damage-
Law-of-Torts- Project.
 https://www.legalbites.in/remoteness-of-damages/.

Remoteness of Damages – Test of

Directness & Test of Reasonable
foresight
Table of Contents

 Remoteness of Damages
 Proximate and Remote Damage
o Lampert vs. Eastern National Omnibus Co.
o Haynes vs. Hardwood
 Two tests of Remoteness
o The test of reasonable foresight
o The Test of Directness
o Re Polemis and Furness, Withy & Co. Ltd.
o Smith vs. London and South Western Railway Co.
o Wagon Mound Case
o Hughes vs. Lord Advocate

Remoteness of Damages
The remoteness of damages is covered under the Law of Torts. It refers to the
situation when the damages caused by the defendant’s act are too remote to be
anticipated. The wrongful act committed by the wrongdoer can lead to endless
consequences or there may be “consequences of consequences”.
For example, A person was driving a car on the bridge negligently while talking on
the call. Due to his negligence, an old man standing on the side of a road got injured,
his family members ran to rescue him but unfortunately a truck was coming from
another side and in order to save his family members the truck driver steered left and
hit the railing of the bridge and fell into it. The question is can the car driver be liable
for all these consequences. The whole incident was too remote to be anticipated by the
defendant. He acted negligently so he would be liable for only those consequences
which were not too remote to be anticipated. The defendant can’t be held liable ad
infinitum for all the consequences.

Proximate and Remote Damage

If the damage caused by the act of the defendant is too remote to be anticipated then
the defendant won’t be held liable. On the other hand if the act of the wrongdoer and
the consequences are connected to each other and if they are proximate then the
defendant will be held liable for it.

Illustrations:-
Lampert vs. Eastern National Omnibus Co.
In this case the married woman was injured and that injury resulted in the severe
disfigurement due to the negligence of the defendants. After sometime she was
secluded by her husband. She claimed damages for the same but later on it was found
that the real cause of the desertion of the plaintiff was not her disfigurement p
between the plaintiff and her husband. defendants were not held liable on that
account.
Haynes vs. Hardwood
In this case the servant of the defendant negligently left a horse unattended in a
crowded Street and the children started throwing stones at the horses which made him
bolt. a policeman attempted to stop them with a view to rescue the woman and the
children on the road and he got severely injured. The case was filed by the plaintiff
against the negligible act done by the defendants. The defendants pleaded the defence
of novus actus interveniens i.e. remoteness of consequences. The plea was dismissed
by the court on the ground that the damages were proximate not remote. because it
can be anticipated that the children might throw stones on a horse which might trigger
him. The plaintiff has suffered damages by the act of the defendant. Hence, they were
held liable.

Two tests of Remoteness

There are two parameters on which the court decided whether a damage is remote or
proximate.
  Test of reasonable foresight
 Test of directness
The test of reasonable foresight
According to this test, if the consequences of a wrongful act done by the wrongdoer
could have been foreseen by the common man of reasonable intelligence that they are
not too remote. The concept of the test of reasonable foresight was first propounded
by the Pollock C.B. in the case Rigby vs. Hewitt and Greenland vs. Chaplin. He stated
that the liability of the defendant arises only for those damages which could have been
foreseen by a common person with reasonable intelligence placed in the
circumstances of the wrongdoer. but it was not proved to be a sufficient offence in
itself and instead relies upon the court to decide upon the standards or reasonability
where that the constituency should have been foreseen by a defendant or not later on
the test of reasonable foresight lost its popularity and test of directness took its place.

The Test of Directness

Re Polemis and Furness, Withy & Co. Ltd.
This case is a landmark judgement given by the honorable Court on the test of
reasonable foresight. The case is popularly known as the Re Polemis case. The court
of appeal conceded the test of reasonable foresight to be the relevant test.
In this case pendants chartered hi shape and the cargo had to be carried by them which
included a quantity of benzene and petrol which was stored in tins. Due to the leakage
in those tins some oil flowed out and collected in a hold of the ship. Due to the
negligence of the defendant’s servants, a plank fell into the hold which cost spark and
subsequently the ship was totally destroyed by fire. The owners of the ship claimed to
recover the loss caused by the destruction of the ship which was nearly 200000
pounds. The Privy Council held that it was the direct consequence on the defendant’s
servants’ negligence. Although they have been reasonably foreseen. According to
Scrutton, L.J, The damage was indirectly caused by the negligence of a person even
though spark in an atmosphere of petrol vapour caused a fire.

Smith vs. London and South Western Railway Co.

In this case, the railway company appointed a person to trim hedges and grass
growing at the side of the railway line but the company was negligent enough in
allowing a person to collect all the leftover material near the railway line during the
dry weather. Then, due to a spark from the railway engine, it set fire on the material
and the plaintiff’s cottage burnt. The defendants were held liable because it could
have been foreseen by the reasonable man.
Wagon Mound Case
The Wagon Mound was an oil burning vessel, chartered by the Overseas Tankship
Ltd. Ship stopped at Sydney port to take fuel oil. The respondent’s wharf, Morts Dock
Company was situated at a distance of 600 feet, where wielding operations were going
on. A large quantity of fuel oil got deposited on the water due to the negligence of the
defendant’s servants. The water was carried to the wharf on which fuel oil was
spilled. Thereafter, from the respondent’s wharf molten metal fell on the floating
cotton fabric, the water on which oil got deposited caught fire and the fire caused
great damage to the wharf and equipment. The incident took place after 60 hours from
the departure of the ship.

Plead was to make that the act was too remote to be anticipated by the defendants.
Privy Council found the appellants guilty by applying the rule of test of directness.
They Further stated that if the whole scenario had been asked from the ordinary man
of reasonable intelligence without any detailed analysis of the circumstances, he
would allege appellants to be responsible.
The Supreme Court of the New South Wales overruled the judgment of Privy Council
and said the Re-Polemis case is not a valid ground and can not be regarded as a good
law as well. It has no governing authority to decide the case in the favour of the
appellants and they were not found guilty of an act.

Afterwards there were many cases which were decided on the basis of Wagon Mound.
Hughes vs. Lord Advocate
In this case, a mainhole was left covered by the tent. One evening surrounded by the
lamps but otherwise unguarded. The mainhole was opened for the purpose of
maintaining underground telephone equipment by the post office employees.

Eight years old child started playing with one of the lamps. The lamp and the boy fell
into the manhole which resulted in severe injuries to him. The House of Lords held
that it could be foreseen that anyone may be burnt by tampering with the lamp and the
explosion was an unforeseeable event. Hence, the defendants were proved guilty.

References:-
Cases:-
 Haynes v. Harwood (1935) 1 K.B. 146.
 Rigby v. Hewitt (1850) 5 Ex. 240.
 Greenland v. Chaplin (1850) 5 Ex. 243.
 Re Polemis and Furness, Wilthy & Co. (1921) 3 K.B. 560.

 Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. Co. Ltd. (1961) A.C.
388.
 Hughes v. Lord Advocate (1963) AC 837.
Books:-
 K. Bangia, Law of Torts (Allahabad Law Agency, Faridabad, 24th edn., 2017).
Websites:-
 https://www.legalbites.in/remoteness-of-damages/
 https://www.toppr.com/guides/legal-aptitude/law-of-torts/remoteness-of-
damages-law- of-tort/

The Wagon Mound Case(No.1) 1961

July 10, 2020 by Tarun S

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Table of Contents

 The Wagon Mound Case,1961

 Overseas Tankship Co(U.K.) v. Morts Dock and engineering. co
o Facts of the case
o Background-
o Analysis-
o Significance
o Issues
o Court’s reasoning
o Conclusion

The Wagon Mound Case,1961

Overseas Tankship Co(U.K.) v. Morts Dock and
engineering. co
Facts of the case
Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951.
The crew had carelessly allowed furnace oil (also referred to as Bunker oil) to leak from their
ship. The oil drifted under a wharf thickly coating the water and the shore where other ships were
being repaired. Hot metal produced by welders using oxyacetylene torches on the respondent’s
timber wharf (Mort’s Dock) at Sheerlegs Wharf fell on floating cotton waste which ignited the
oil on the water. The wharf and ships moored there sustained substantial fire damage. In an
action by Mort’s Dock for damages for negligence it was found as a fact that the defendants did
not know and could not reasonably have been expected to know that the oil was capable of being
set alight when spread on water. The dock owners knew the oil was there, and continued to use
welders.
The leading case on proximate cause was Re Polemis, which held that a defendant can be
deemed liable for all consequences flowing from his negligent conduct regardless of how
unforeseeable such consequences are. As this case was binding in Australia, its rule was
followed by the New South Wales Court of Appeal.[5] The defendant appealed to the Privy
Council.

Background-
Up until this time the main case had been Re Polemis, where the focal inquiry was that of the
directness of the chain of events between the activating act being inspected for negligence and
the outcome. The Council concluded that as opposed to go with point of reference (authority)
they would decide a rule from a scope of cases, likewise as Lord Atkin did in Donoghue v
Stevenson, and their guideline was essentially a solitary test for predictability which they
contended was a legitimate connection between the harm and the risk (culpability). Expressed in
an unexpected way, predictability was the consistent connection between, and the test for,
penetrate of the obligation of care and the harms. This is the preeminent test and might be
reworded as “the obligation of an outcome … was regular or vital or plausible.” The Lords made
reference to knowing the past, showing it is not at all like foreknowledge and should assume no
job in evaluating carelessness.

Analysis-
Now, As this case was binding in Australia, its rule was followed by the New South Wales
Court of Appeal.[5] The defendant appealed to the Privy Council.
The judges presiding over the case were Viscount Simmonds and Lord Reid.

The court after going through the case and arguments, decided to favor the defendants. The main
aspect being that of a witness stating that in no way the defendants, in spite of the furnace oil
being innately flammable, could not reasonably expect it to burn on water. They highly
disapproved the rule established in Re Polemis, as being “out of the current of contemporary
thought” and held that to find a party liable for negligence the damage must be reasonably
foreseeable.
The judgement can be seen as a fairly natural decision by the court. What is to be focused at
here, is the fact that the argument does not fall in the lines of fault or mismanagement but on the
lines of foreseeability and the consequences thereof.

It is clear through the aforementioned statement of the witness, that a common human being
cannot, foresee the fact that the oil spillage on the water is flammable to the extent which it can
cause the resultant damages.

It is also known that the plaintiff did make sure that welding will resume on the dock only when
the oil is submerged but it is completely unfortunate and unpredictable about the piece of cotton
that floated on the water.
But, it is very necessary to also bring up the aspect of re polimis as it can also be regarded a part
of similar cases.

The case of Re Polemis & Furness, Withy & Co Ltd (1921) or popularly known as re polemis is
a very significant case that had set the tone with regards to dealing with negligence of personnel
and the action for damages resulting thereof.
In a nutshell, one of the employees while loading cargo in a ship, negligently drops a plank
which somehow trigerred a spark which came in contact with the petrol vapor and burned the
ship down.

In the court of appeal it was held that the defendant was liable on the grounds that although it the
results of the plank being dropped could not have possibly been foreseen, it was held that the
defendant would nevertheless be liable for all direct consequences of his actions. The court
reasoned that if the act would or might probably cause damage, the fact that the damage it in fact
causes is not the exact kind of damage one would expect is immaterial, so long as the damage is
in fact directly traceable to the negligent act and not due to the operation of independent causes.
Significance
Clearly it can be inferred that the current case does not construe itself on the factors set in by Re
polemis as here it is out of sheer bad luck that the steel cotton lay afloat on the water when the
welding was ordered to resume.

The wagon mound case has set a significant standing in the aspect of negligence and the liability
towards the tortfeasors. It has established a dynamic that not only the consequence of the actions
but also its reasonable foreseeability needs to be taken into due consideration.

Issues
The main issue that can be contended from the case is basically that Is a tortfeasor liable for all
damage, even that which is unforeseeable, directly resulting from a negligent act?
The issue can be broken down and summarized basically with the answer that A tortfeasor is
responsible for the reasonably foreseeable or probable consequences of his negligent acts. In this
case, the test for liability for fire is foreseeability of injury from fire. But, here the defendants
clearly mentioned about the point that they had been testified about the oil being inflammable
and a reasonable person would believe the words of an expert and he would diminish any
thought regarding the fact that it could ignite. The degree of forseeability is completely reduced.
This is the most plausible answer to the issue raised as it all boils down to the fact that even
when told that the oil is inflammable the defendants were just caught in the circumstance and to
their bad luck, the oil did catch fire.

Court’s reasoning
The decision given by the trial court judge seemed out of date and inadequate when closely
looking at the rather small but very significant difference between the underlying faults of both
the present case and that of precedent i.e. re polemis that was brought up in the judgement.

But, it was clarified by the judges of the privy council. The main aspect that had signalled the
change in thought was the aspect of the judges unanimously agreeing about the disapproval of
the direct consequence theory. They reasoned that in a way the theory seemed rather one
dimensional and the other factors were silenced. It is clearly seen in the judgement given by the
trial court judge who followed this theory and went on to deliver a decision based on the
directness of the parties involved in the actions of the case.

Therefore, the court’s reasoning is adequate and takes into consideration more than just two
factors.

Conclusion
The Wagon Mound case, brings with it a new and revolutionary passage as to tackle a case under
negligence. This case has also brought about a rather modern way of understanding the negligent
acts of the defendant. If closely noticed nowhere in the case are the workers whi had spilled the
oil nor their employers been deeply dragged into the arguments or even the case. The defendants
can be deemed that they were involved in the case due to the flow of circumstance. The
defendants had done all they could in ensuring that in no way a fire WOULD Erupt. But, it was
as we have mentioned countless times before, unforseeable and unlucky.

To understand the stance taken by the trial court judge, it is absolutely logical to have brought up
the precedence of re Polemis. But, bringing it up closes the passage of thought with regard to
seeing the inconspicuous aspects of the facts.
The wagon mound therefore, did not only bring about a new way of analysing and judges cases
of negligence but also gave a new threshold or criteria that the judges must see before, providing
a decision in such cases.

Author: Tarun S,
IFIM law school, 1st year

Doctrine of Remoteness of Damages

Doctrine of Remoteness of Damage Introduction In order to establish tortious liability the plaintiff has to prove
that the injury caused to him is the direct consequences of defendant’s act. If the injury caused to the plaintiff
is too remote a consequences of defendant’s act which he could not have…

In re Polemis & Furness, Withy & Co.

In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd.

Court of Appeal, 1921. [1921]. 3 K.B. 560, [1921] All E.R. 40.

[The owners of the ship Thrasyvoulos sought to recover damages from the defendants
who chartered the ship. The contract of charter was read to hold the defendant
charterers responsible for damage caused by fire due to their negligence. Stevedores,
for whose conduct the defendants were responsible, were moving benzine from one
hold to another by means of a sling. The stevedores had placed wooden boards across
an opening above one hold to make a temporary platform to facilitate the transfer.
"When the sling containing the cases of benzine was being hoisted up, owing to the
negligence of the stevedores the rope by which the sling was hoisted or the sling itself
came in contact with the boards, causing one of the boards to fall into the hold, and the
fall was immediately followed by a rush of flames, the result being the total destruction
of the ship."

The case was heard by arbitrators who found "that the fire arose from a spark igniting
petrol vapour in the hold; that the spark was caused by the falling board coming into
contact with some substance in the hold; . . . [and] that the causing of the spark could
not reasonably have been anticipated from the falling of the board though some
damage to the ship might reasonably have been anticipated." Damages were set at
almost £200, 000.

Subject to the court's opinion on the law, the arbitrators decided that the owners were
entitled to recover the full loss from the charterers. The court was required to accept the
arbitrator's findings. Although the case arose in the contract context, none of the three
opinions mentions this point, and all rely on tort cases in their analyses.]

BANKES, L.J.

. . . According to the one view, the consequences which may reasonably be expected to
result form a particular act are material only in reference to the question whether the act
is or is not a negligent act; according to the other view, those consequences are the test
whether the damages resulting from the act, assuming it to be negligent, are or are not
too remote to be recoverable. Sir F. Pollock in his Law of Torts, 11th ed., pp. 39, 40,
refers to this difference of view, and calls attention to the fact that the late Mr. Beven, in
his book on Negligence, supports the view founded on Smith v. London and South
Western Ry. Co. . .

In the present case the arbitrators have found as a fact that the falling of the plank was
due to the negligence of the defendant's servants. The fire appears to me to have been
directly caused by the falling of the plank. Under these circumstances I consider that it
is immaterial that the causing of the spark by the falling of the plank could not have
been reasonably anticipated. The appellant's junior counsel sought to draw a distinction
between the anticipation of the extent of damage resulting from a negligent act, and the
anticipation of the type of damage resulting from such an act. He admitted that it could
not lie in the mouth of a person whose negligent act had caused damage to say that he
could not reasonably have foreseen the extent of the damage but he contended that the
negligent person was entitled to rely upon the fact that he could not reasonably have
anticipated the type of damage which resulted from his negligent act. I do not think that
the distinction can be admitted. Given the breach of duty which constitutes the
negligence, and given the damage as a direct result of that negligence, the anticipations
of the person whose negligent act has produced the damage appear to me to be
irrelevant. I consider that the damages claimed are not too remote.

...

For these reasons I think that the appeal fails, and must be dismissed with costs.

SCRUTTON, L.J.

...

The second defense is that the damage is too remote from the negligence, as it could
not be reasonably foreseen as a consequence. . . To determine whether an act is
negligent, it is relevant to determine whether any reasonable person would foresee that
the act would cause damage; if he would not, the act is not negligent. But if the act
would or might probably cause damage, the fact that the damage it in fact causes is not
the exact kind of damage one would expect is immaterial, so long as the damage is in
fact directly traceable to the negligent act, and not due to the operation of independent
causes having no connection with the negligent act, except that they could not avoid its
results. once the act is negligent, the fact that its exact operation was not foreseen is
immaterial. . . In the present case it was negligent in discharging cargo to knock down
the planks of the temporary staging, for they might easily cause some damage either to
workmen, or cargo, or the ship. The fact that they did directly produce an unexpected
result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve
the person who was negligent from the damage which his negligent act directly caused.

Appeal dismissed.

[The concurring opinion of WARRINGTON, L.J. is omitted.]

In re Polemis & Furness, Withy &

Co
Citation. [1921] 3 K.B. 560.

Brief Fact Summary.

Furness chartered the Polemis to carry a cargo of petrol and benzene. While
discharging at Casablanca, a heavy plank fell into the hold and caused an explosion,
which eventually destroyed the ship. The falling of the blank was due to Defendant’s
negligence.

Synopsis of Rule of Law.

If the negligent act would or might probably cause damage, the fact that the damage it
in facts causes is not the exact kind of damage one would expect is immaterial, so long
as the damage is in fact directly traceable to the negligent act.

Facts.
The Arbitrators found that a spark emanating from a dropped plank could not
reasonably have been anticipated. However, some damage to the ship might
reasonably be anticipated. Damages were found to be
 Re Polemis & Furness, Witty 1921
December 21, 2023

Re Polemis and Furness, Withy and Co Ltd [1921] 3 KB 560 stands as a pivotal
English tort law case that significantly shaped the legal landscape surrounding
causation and remoteness in the law of negligence. This case, decided by the Court of
Appeal, introduced the concept of strict liability, where a defendant could be held
responsible for all consequences resulting from their negligent conduct, regardless of
foreseeability.

The incident leading to the legal dispute involved stevedore employees loading cargo
into a ship. Due to the negligence of an employee, a plank fell into the ship's hold,
causing a spark that ignited petrol vapours and resulted in a catastrophic explosion. The
ship incurred significant damage, ultimately becoming a total loss.

The arbitrator, upon examination of the matter, found that the defendant's negligence in
causing the plank to fall was the direct cause of the subsequent fire. The arbitrators
awarded damages to the plaintiff, a decision that the defendant appealed. The Court of
Appeal affirmed the defendant's liability, establishing the principle of strict liability. The
court held that if an act would or might probably cause damage, the exact nature of the
damage was immaterial. Thus, the defendant was deemed liable for all direct
consequences of their negligent act, even if the specific damage was unforeseeable.

Re Polemis was a landmark decision at the time, exemplifying the concept of strict
liability. However, its significance diminished over time, particularly with the emergence
of subsequent landmark decisions, such as Donoghue v Stevenson [1932] and The
Wagon Mound (No 1). These later decisions signalled a departure from strict liability,
emphasising the importance of foreseeability in determining liability for negligence.

The Privy Council's disapproval of the Re Polemis decision, as evident in The Wagon
Mound (No 1), marked a shift in legal principles. While Re Polemis technically remains
good law and has not been overruled by an English court, its strict liability principle has
not been consistently followed. The evolving legal landscape saw a move away from
strict liability, making foreseeability a critical factor in assessing liability for negligence.

The legal landscape post-1932 dictates that defendants are liable in negligence only if
the breach of the duty of care could have been foreseen to cause loss, damage, or
injury. An exception, the eggshell skull rule, applies only to personal injury cases. This
rule dictates that the defendant must take the victim as they find them, as illustrated in
the case of Smith v Leech Brain [1962].

In summary, while Re Polemis was instrumental in introducing strict liability, subsequent

legal developments have shifted towards a more nuanced approach, emphasising
foreseeability as a crucial determinant of liability in negligence cases.

You can learn more about this topic with our Tort Law notes.

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Overseas Tankship, (UK.) Ltd. v.

Morts Dock & Engineering Co.,
Ltd.
Citation. Privy Council 1961, A.C. 388 (1961)
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Brief Fact Summary.

Mort’s (P) wharf was damaged by fire due to negligence. Overseas had a ship called the Wagon
Mound, which negligently spilled oil over the water. When molten metal dropped by Mort’s
workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly
damaged.
Synopsis of Rule of Law.
A negligent act can be held liable only for such injury as could be reasonably expected to happen
as a consequence, and not for all injury which does happen even if as a direct consequence of the
act.

Facts.
Morts (P) owned and operated a wharf in Port of Sydney, Australia. Overseas (D) owned a ship,
Wagon Mound, which was anchored about 600 feet away. It discharged furnace oil carelessly
resulting in a large oil spill which spread to the wharf. By itself it caused no major damage.
However, floating cotton waste was accidentally set afire by molten metal dropped by Morts’
workmen. This caused a serious fire by igniting the furnace oil, with substantial damage to the
wharf. The court found that the ignition of the oil was not a fact which could be reasonably
known by Overseas. Morts was awarded damages. Overseas appealed to the Privy Council,
which is the court of appeals for all nations of the Commonwealth except England.

Issue.
Should a defendant be held to be responsible to pay damages for all injury which resulted as a
direct issue of his negligent act?

Held.
(Viscount Simonds) No. Current notions of what is just and morally right do not allow the idea
that some slight or forgivable act of negligence, which by itself would be expected to cause
trivial and negligible damage, but insteaddirectly results in unexpected and unforeseeable
consequences, of great import, should be held as the cause of all these consequences and the
wrongdoer should be liable for them all. The doer of a negligent act should be held liable for all
reasonably foreseeable consequences and not the improbable ones as well. This viewpoint
mitigates undue harshness in applying the rule while ensuring that reasonable standards are
upheld in avoiding negligence. In other words, the criterion for awarding damages should be
whether the actual damage was that which could be reasonably foreseen as a result of the
negligent act, rather than whether it was directly caused by the negligent act (which only results
in tangles of causation).

Dissent.
N/A
Concurrence.
N/A

Discussion.
This case overruled the decision in Polemis, Ct. of Appeals, 3 K.B. 560 (1921). The doer of a
negligent act is responsible for the consequences which are reasonably expected or probable, and
not for all possible parameters of his act, irrespective of foreseeability. The old doctrine of
responsibility for all consequences, probable or not, as long as some damage was foreseeable,
was decided to be unfair and harsh. This rule excludes the eggshell skull doctrine, which deals
with the effect of negligence on an already injured plaintiff, whereas the present rule deals with
how much damage can be justly deemed to be the foreseeable consequence of the negligent act.