#5416 - Remoteness Of Damage - Irish Tort Law

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. The plaintiffs were a husband and wife who had been requested by the defendant (the wife's brother) to clean his house.

2. As a result of the poor conditions in which the house was kept a fire was started.

3. The wife was badly burned and the husband was injured in the course of rescuing her.

Issue

• Remoteness of Damage – Rescues

Judgment

1. Finlay CJ

   • The defendant owed the plaintiffs a duty of care in light of his knowledge and the peculiarities of the job before them, to ensure that they could work in safety.

   • As the rescue of the wife by the husband was the natural consequence of the fire, and the fire was due to the breach of duty, this action was not a form of contributory negligence and the defendant is liable for all injuries arising out of it.

2. Griffin J

   • The rescue principle does not apply unless there is negligence on the part of the tortfeasor in creating a situation of peril.

   • This occured in this case and the defendant is liable.

3. Hederman J (concurred)

O'Neill v Dunnes Stores (HC 2007)

Facts

1. The plaintiff was in the defendant's shop when a robbery occurred.

2. In attempting to assist with the apprehension of the criminals he was assaulted and suffered in jury.

3. He sued claiming that the defendant's failure to have more than one security guard on duty was negligent.

Issue

• Remoteness – Rescues

Judgment (Kelly J)

• The reaction of a rescuer is natural reaction to a situation of peril.

• Where the situation arises out of negligence, and the rescuer suffers injury, liability attaches

  • In this case the defendant's security arrangements were substandard and negligent.

  • The single security guard's actions were a negligent breach of protocol.

• The plaintiff is entitled to succeed.

Horsley v Maclaren (The Ogopogo) (Candian SC 1971)

Facts

1. The plaintiff dived into a river from the defendant's cabin cruiser in order to rescue the other plaintiff who had fallen overboard.

2. The defendant failed to follow correct procedure in the rescue and both plaintiffs died.

Issue

• Remoteness – Rescues – Liability for Negligent Rescue

Judgment

1. Ritchie J

   • A person who creates a situation of peril owes is liable to any rescuers for damage sustained during the course of their rescue.

     • For the defendant to be liable in this case, his negligent rescue must have served to increase the situation of peril to the extent that it necessitated a rescue by the plaintiff.

       • On the facts this was not the case.

2. Judson J (concurred)

3. Spence J (concurred)

4. Hall J (dissented on the facts of the case)

5. Laskin J (dissented on the facts of the case)

Turner v Iarnród Éireann (HC 1966)

• For a defendant to be liable to a rescuer, only a situation of apparent peril need exist, not an actual danger.