Remoteness Of Damage Notes

Remoteness of Damage

In Re Polemis

Facts

1. A ship, chartered to one of the parties, had a volume of benzine in the hold which leaked and produced a flammable gas.

2. The charterer's workers negligently dropped a plank into the hold.

3. The gas caught fire and destroyed the ship.

Issue

• Remoteness of Damage – Direct damage

Judgment

1. Bankes LJ (concurring)

   • The difference between proximate and remote consequence is a false dichotomy, the only real distinction that can be drawn is between direct and indirect consequence.

   • The same applies to a distinction between the type of damage that could be reasonably anticipated and the extent of damage that can be anticipated.

   • The only thing that is relevant when a breach of duty is proved, is what damage was the direct result of that breach.

   • Thus the charterers are liable for all the damage.

2. Warrington LJ (concurring)

   • The presence or absence of reasonable anticipation of damage determines the quality of the act as being either negligent or innocent.

   • Damages recoverable are based on whether or not they are the direct consequence of the act.

   • Therefore the charterers are liable for all the damage flowing from their negligence.

3. Scrutton LJ (concurring)

   • Once an act is negligent, the question of its exact consequence being foreseeable is irrelevant.

   • Therefore the charterers are liable for all the damage.

The Wagon Mound

Facts

1. The appellants were operating a ship that was discharging a volume of oil negligently into Sydney Bay.

2. The oil collected around the respondent's wharf and ignited.

3. The respondent's sued.

Issue

• Remoteness of Damage – Foreseeability

Judgment

1. Viscount Simmonds

   • Problems with Re Polemis:

     1. It rested on very little authority.

     2. It attatched liability to unforeseeable damage in the same way as to foreseeable damage.

     3. It was unsuited to the subtleties of a case such as this.

   • Polemis was not good law – there should be only one rule for culpability and for compensation.

   • The problem of causation is a more complex problem than is that of reasonable foreseeability.

   • Therefore the test of of what damage one should be liable for is that of reasonable foreseeability.

Hughes v Lord Advocate

Facts

1. The defendants were workmen who left the site of their work unattended.

2. The plaintiff was a young boy who, while playing in the worksite, dropped a lamp down a manhole shaft causing an explosion and injuring himself badly.

Issue

• Remoteness of Damage – Type of Damage

Judgment

1. Lord Reid (concurring)

   • The defendants can only escape liability if it the damage done is of a different kind than is reasonably foreseeable.

   • That is not the case here, so they are liable for all the child's injuries.

2. Lord Jennings (concurring)

   • The safety precautions in this case do not meet the standard of care as set out in Donogue v Stevenson.

   • The principle in Wagon Mound did not mean that the danger that could be reasonably anticipated and the danger that occured need be identical.

     • In this case the difference between injury from an exploding lamp and being burnt by oil from a lamp is not so great as to impose liability for the former but not the latter.

     • Both should be considered the same risk – risk of fire.

   • Decision for the plaintiff.

3. Lord Morris (concurring)

   • It was reasonably foreseeable that a child would play in the worksite.

   • The burning of the plaintiff was foreseeable, even if the precise manner of his burning was not.

   • Decision for the plaintiff.

4. Lord Guest (concurring)

5. Lord Pearce (concurring)

   • Where the damage caused by the breach of duty is of a diffent kind the defendants are not liable.

   • There should not however be too great precision in the foreseeability test.

   • In this case burning was foreseeable and burning occurred.

   • Decision for the plaintiff.

Smith v Leech Brain & Co (QB 1962)

Facts

1. The plaintiff suffered a burn due to a piece of molten metal hitting his lip.

2. The burn engendered a cancer, as the surrounding cells were in a pre-malignant condition.

Issue

• Remoteness of Damage – Eggshell Skull Rule

Judgment (Lord Parker CJ)

• The Wagon Mound case did not mean to overrule the 'eggshell skull' rule.

• This rule states that a tortfeasor takes his victim as he finds him i.e. that were it not for a pre-existing weakness in the victim, no damage would have occurred.

  • The defendants, in being able to foresee the burn, are liable for all damage that arise from the burn.

Burke v John Paul&Co (SC 1967)

Facts

1. The plaintiff worked for the defendant operating a guillotine like device for cutting steel bars.

2. The blades were blunt which required him to apply more force in using the machine.

3. This led to him developing a hernia

Issue

• Remoteness of Damage – Eggshell Skull Rule

Judgment

1. Ó Dálaigh CJ (concurring – agred with Budd J)

2. Haugh J (concurring – agreed with Budd J)

3. Budd J

   • Wagon Mound principles:

     • The damage must be such as the reasonable man could foresee.

   • However, had the court in that case the intention of amending the well established 'egg-shell' skull rule, they would surely have expressly said so.

   • It is not a defence to negligence to say that if someone had a stronger disposition or other type of immunity that they would not have suffered the damage.

   • The principle is that the tortfeasor takes the victim as he finds him.

   • Applying that to this case, the question is whether the defendants could foresee the tearing of muscle that led to the hernia.

   • As such the case does have reasonable ground to go to the jury.

Philips v Durgan (SC 1991)

Facts9

1. ...

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