Tort Case Laws: Ready Reckoner - Remoteness of Damage

B. Remoteness of Damages
Sl Case Name Case Facts Legal Point Settled
No Citation Decision
1
2 In Re Polemis and Facts: Test of Directness :
Furness, Withy & The owners of a vessel chartered its use to the Damage as a direct
Co. Appellants for the purposes of carrying, among result of negligence is
(1921) 3 KB 560 other things, petrol to Casablanca. While claimable even if they
unloading the cargo in Casablanca, a wooden are not foreseeable.
plank fell into the hold containing the petrol and There was no
caused an explosion. The fire completely requirement that the
destroyed the vessel. The owners, charging the damage of the kind was
charterers with negligence, claimed the value of foreseeable.
the vessel from the charterers. The charterers The defendant was
responded that the fire was a remote liable for all the direct
consequence of their actions, so they are not consequences of their
responsible. The case was referred to arbitration action.
and the arbitrators found that the fire was caused Further, the proximity
when the wooden plank hit metal and caused a of the act to the
spark. The arbitrators agreed with the charterers outcome is close
that the spark was an unforeseen consequence of enough here to create a
the original negligence and therefore the duty.
destruction of the vessel was a remote
consequence. The only damage the charterers
should be liable for is the approximate damage
done to the vessel by the falling wooden plank,
not the damage done by the fire. The owners
sought review.
Held.
The fire was a foreseeable consequence of the
negligence.
Discussion. The finding by the arbitrator that the
spark was too remote to confer liability on the
charterers was based on the contention of the
charterers that the fire was an unforeseen
consequence of the falling wooden plank. The
actual anticipations of the negligent party are
irrelevant when considering whether the resulting
damage is remote. In this case, the fire was a
direct result of the negligent act and therefore the
charterers are liable for the fire. That damage that
might result when a wooden plank falls while
discharging cargo is a foreseeable consequence of
the negligence, whatever that damage might be
3 Overseas Tankship FACTS: Test of Reasonable
(U.K.) Ltd v Morts Overseas Tankship had a ship, the Wagon Mound, Foreseeability to
Dock & Engineering docked in Sydney Harbour in October 1951. The determine remoteness
Company Ltd crew had carelessly allowed furnace oil (also of damage introduced.
Wagon Mound No 1 referred to as Bunker oil) to leak from their ship. Earlier test of direct

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 Case The oil drifted under a wharf thickly coating the consequences as per
[1961] UKPC 1 water and the shore where other ships were Polemis case was
[1961] AC 388 being repaired. Hot metal produced by welders disapproved.
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.
HELD
The Privy Council found in favour of the
defendant, agreeing with the expert witness who
provided evidence that one, in spite of being the
furnace oil being flammable by "raison d'etre",
could reasonably expect it to not burn on water.
The leading case on proximate cause was Re
Polemis, which required that the harm be the
direct result of the conduct regardless of how
remote. As this case was binding in Australia, its
rule was followed by the Supreme Court of New
South Wales (NSW), and the defendant appealed
to the Privy Council. The Board indicated Morts
would probably have been successful if they had
claimed damages for direct damage by the oil to
the slipway but this was minor and not part of the
damages claimed (although success on this count
may have saved Morts Dock and Engineering the
costs of all the litigation for both parties across all
three levels of court). Viscount Simonds, in his
delivery for the Privy Council, said that the
Counsel for Morts had discredited their own
position by arguing that it couldn't have been
bunkering oil because it wouldn't burn on water.
The Privy Council's advice soundly 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
council found that even though the crew were
careless and breached their duty of care, the
resulting extensive damage by fire was not
foreseeable by a reasonable person, although the
minor damage of oil on metal on the slipway
would have been foreseeable.

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 Viscount Simonds presented a unanimous
delivery for the Council and said:
“ It is, no doubt, proper when considering
tortious liability for negligence to analyse its
elements and to say that the plaintiff must prove
a duty owed to him by the defendant, a breach of
that duty by the defendant, and consequent
damage. But there can be no liability until the
damage has been done. It is not the act but the
consequences on which tortious liability is
founded. ... Who knows or can be assumed to
know all the processes of nature? But if it would
be wrong that a man should be held liable for
damage unpredictable by a reasonable man
because it was "direct" or "natural," equally it
would be wrong that he should escape liability,
however "indirect" the damage, if he foresaw or
could reasonably foresee the intervening events
which led to its being done. ”
“ It is a principle of civil liability, subject
only to qualifications which have no present
relevance, that a man must be considered to be
responsible for the probable consequences of his
act. To demand more of him is too harsh a rule, to
demand less is to ignore that civilised order
requires the observance of a minimum standard
of behaviour. ”
Significance
Up till this time the leading case had been Re
Polemis, where the central question was that of
the directness of the chain of events between the
triggering act being examined for negligence and
the result. The Council decided that rather than
go with precedent (authority) they would
determine a principle from a range of cases, in a
similar way as Lord Atkin did in Donoghue v
Stevenson, and their principle was primarily a
single test for foreseeability which they argued
was a logical link between the damage and the
liability (culpability). Stated differently,
foreseeability was the logical link between, and
the test for, breach of the duty of care and the
damages. This is the supreme test, and may be
rephrased as "the liability of a consequence ...
was natural or necessary or probable." The Lords
made reference to hindsight, indicating it is
nothing like foresight and should play no role in
assessing negligence. There is authority to
challenge this view of hindsight; in Page v. Smith,
Lord Lloyd stated: "In the case of secondary

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 victims, i.e. persons who were not participants in
an accident, the defendant will not be liable
unless psychiatric injury is foreseeable in a person
of normal fortitude and it may be legitimate to
use hindsight in order to be able to apply the test
of reasonable foreseeability."[1]
The Lords gave Morts the opportunity to sue in
nuisance but there is no record of them testing
this action in that tort. The common law rules of
causation have had their importance lessened by
the promulgation of statute law in Australia.
Contributory negligence is now essential for many
determinations and are covered by statutes such
as the Civil Liability Act (1936) South Australia
which has more recent counterparts in a number
of jurisdictions including New South Wales.
4 Smith V Leech Brain Facts: The victim worked for the defendant as a A tortfeasor is liable
[1962] 2 QB 405 galvaniser. As part of his duty, he was required to for negligent damage,
lift articles, via a crane, into a tank of molten even when the
metal. While doing so on August 15, 1950, an claimant had a
object spattered out from the tank and burned predisposition that
him on the lip. Unfortunately, this burn was the made that damage
"promoting agent" of a cancer from which he died more severe than it
three years later.] The employer's negligence in otherwise would have
respect to the burn was not disputed, and was been
determined to have caused the claimant's death.
The important legal issue, however, was that the
claimant had a predisposition to the cancer in his
skin tissue. The issue for the court to resolve was
whether the cancer was too remote from the
original negligence for the claimant to be allowed
compensation
HELD:
The burn was a foreseeable consequence of the
defendant's negligence and this resulted in the
death. The defendant was liable for his death. It
was not necessary to show that death by cancer
was foreseeable, nor that an ordinary person
would not have died from the injury. The egg
shell skull rule applies and the defendant must
take his victim as he finds him

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5 Hughes v Lord Facts: Post Office employees were working down It does not matter
Advocate a manhole with a little tent around it. When they whether the actual
[1963] AC 837 went for a cuppa, they put red warning paraffin harm (or the extent of
lights around it. Two boys of 8 and 10 who were it) was foreseeable, as
playing nearby picked up one of the lamps and long as the type of
accidentally dropped it down the manhole, harm was.
causing an explosion. One of the boys was badly
burnt. Claim for danages filed.
Defendants argued not liable as not foreseeable
that the boy would be injured in this way
HELD:
 The events which followed were unforeseeable
but the possibility of someone being burned from
leaving paraffin lamps around was possible. This is
exactly what happened, even though not in a
foreseeable way. This should have been in the
defendant's reasonable contemplation
 The pattern that is emerging is that the defendant
will not be held liable for an indeterminate event
for an indeterminate time. There has to be a limit.
It seems that if the type of damage would be
foreseeable, then liability will be imposed,
whether or not the chain of events leading to it
were foreseen or not
6 Jolley v Sutton Facts: Two 14 year old boys found an abandoned
London Borough boat on land owned by the council and decided to
Council do it up. The boat was in a thoroughly rotten
[2000] 1 WLR 1082 condition and represented a danger. The council
had stuck a notice on the boat warning not to
touch the boat and that if the owner did not claim
the boat within 7 days it would be taken away.
The council never took it away. The boys had
been working on the boat for 6-7 weeks when
one of them suffered severe spinal injuries,
resulting in paraplegia, when the boat fell on top
of him. The boys had jacked the boat up to work
on the underside and the jack went through the
rotten wood. The claimant brought an action
under the Occupiers Liability Act 1984. The trial
judge found for the claimant. The Court of Appeal
reversed the decision, holding that whilst it was
foreseeable that younger children may play on
the boat and suffer an injury by falling through
the rotten wood, it was not foreseeable that older
boys would try to do the boat up. The claimant
appealed.
House of Lords held:
The claimant's appeal was allowed. The risk was
that children would "meddle with the boat at the
risk of some physical injury" The actual injury fell

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 within that description.
Lord Hoffman:
"children’s ingenuity in finding unexpected ways
of doing mischief to themselves and others should
never be underestimated"
Lord Steyn:
"The scope of the two modifiers - the precise
manner in which the injury came about and its
extent - is not definitively answered by either The
Wagon Mound (No. 1) or Hughes v. Lord
Advocate. It requires determination in the context
of an intense focus on the circumstances of each
case."

HELD:

7 Doughty v Turner Facts: The claimant was burned when an Many feel that this
(1964) 1 QB 518 asbestos lit was knocked into a vat of molten decision was too harsh,
metal; the lid slid into the liquid with no and that being splashed
noticeable effect for a few minutes. However, a by cyanide would burn
chemical reaction then caused a violent eruption you. If you follow
that scientific knowledge at the time did not Hughes then this
expect to happen. It could before seen that decision should be in
knocking things into the liquid might cause a favour of the claimant
splash of molten metal, but this was an event of a but the witness
wholly different type from that which could have evidence was very much
been foreseen. Therefore, the claim failed in favour of the
as the result was not reasonably foreseeable Defendants
HELD:
First Instance. Type of injury foreseeable from
this was burning from splashing, and therefore
the Defendant is liable, following Hughes.
COA. No knowledge that the lid falling would
cause a chemical reaction, so explosion not
foreseeable. Only risk was splashing. They did
distinguish Hughes and the Wagon Mound.
Harman LJ ‘in my opinion, the damage here
was of an entirely different kind from the
foreseeable splash'
The damage was too remote. It was not
foreseeable that an explosion would occur. Whilst
it may be foreseeable the lid may have caused a
splash resulting in a scold, it was not foreseeable
that an explosion would occur resulting in burns
Other issues here were that no-one thought the
lid was dangerous (hardboard), and two people
even went to look into the cauldron to see where
it had gone! Issue was that no damage was really
foreseeable from the lid falling, and the splash.

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8 Tremain V Pike Facts: Claimant worked on a farm, which had
(1969) 1 WLR 1556 become over-run by rats. His main job was to look
after cattle. He contracted a rare disease ‘weil's
disease’ (also known as Leptospirosis) caused by
rat's urine

HELD:
The defendant was not liable. It was not known at
the time that leptospirosis could be transmitted in
this way. Whilst it was foreseeable he may
contract the disease by a rat bite the way he
contracted the disease was not foreseeable.
Payne J. ‘this is my view is entirely different in
kind from the effect of a rat bite or food poisoning
from consuming food infected by the rats'
Therefore, the damage was too remote. The
disease was not foreseeable
9 Meah V Mccreamer Meah v McCreamer No 1 [1985] 1 All ER 367
(No.1)
Facts: The claimant was a passenger in a
(1985) 1 All ER 367
defendant's car. The defendant had been drinking
and caused an accident, injuring the claimant's
head.
The claimant had a personality change, and
started attacking and raping women. He had
previously been a petty criminal.
He was sent to prison for life, and sued the
defendant in negligence, stating that he would
not have done these things if it hadn't been for
the head injuries
HELD:
Awarded £60k compensation, taking into
account free board and lodgings in prison
10
Meah v McCreamer Meah v McCreamer No.2 [1986] 1 All ER 943
(No. 2)
The women he attacked then sued him and got
[1986] 1 All ER 943 compensation. He then tried to recover this from
the defendants.
HELD:
The damages awarded to the victims were too
remote to be recoverable and that such an
award would be contrary to public policy as it
would effectively relieve the Claimant from
the consequences of his crime.
11 Gabriel v Kirklees Facts: The claimant was six years old. He was Fit case for “duty of
Metropolitan walking past a building site owned by the local care owed”
Council council in Huddersfield, when he was hit in the
(2004) EWCA Civ eye by mud thrown by children playing on the
345 site. The site was not fenced at that time. The

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 site, at Bracken Square, Huddersfield, was owned
by Kirklees Metropolitan Council ("the Council").
Tashan Gabriel claimed damages from the Council
through his father and litigation friend .
The county court ruled in favour of defendant
stating that the defendant does not owe a duty to
claimant. The claimant preferred to appeal .
COA - Justice Moses:
Appeal Allowed.
In my view there are fatal flaws in this judgment,
of the county court.- in the light of which it is not
possible to say whether the judge was right in
concluding that no duty of care was owed or
whether, if it was, the Council was in breach of
that duty.
Before concluding that there was no duty of care
owed by the Council to the claimant, the judge
ought to have asked the following:
 Whether it was reasonably foreseeable
that children would go onto the
construction site.
 Whether, whilst on the construction site,
it was reasonably foreseeable that the
children would play there.
 Whether it was reasonably foreseeable
that, in playing on the site, they would
throw whatever came to hand.
 Whether in playing with material on site it
was reasonably foreseeable that they
might cause injury to those passing by on
the pavement
..the only fair solution to both parties is to remit
this case for consideration by a different judge.
That judge will have to consider, in the light of all
the facts, not only whether a duty of care arose,
but whether, if it did, the Council acted in breach
of that duty and whether, if it was in breach, the
damage suffered by the claimant was caused by
that breach.
For the reasons I have given, it is not possible to
reach any concluded view in the absence of
necessary and detailed findings of fact. In those
circumstances, I would, for my part, allow the
appeal and remit the matter for consideration by
a different judge.
12
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