1.
A person who commits a negligent act and injures someone, then certainly he should be punished for his wrong act. But, the question arises upto what extent he should be punished? Secondly, can he be held liable for all the consequences, which have resulted from his act? But, it would not be proper that a man can be held liable ad infinitum.
Bacon in 1630-'In jure non remota causa sed proxima spectatur' - a maxim for negligent actor. He elaborated it as - "it were infinite for law to consider the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree".1
But, the whole meaning of law can't be squeezed from one maxim.
Lord Summer in the case Weld Blundell v. Stephens, 1920 AC 986.-'The object of a civil enquiry into cause and consequences is to throw liability on some responsible person and to give reparation for damage done...... The trial of an action for damage is not a scientific inquest into a mixed sequence of phenomenon, or an historical investigation of the chapters of events........ It is a practical inquiry'?
We can further add here that to understand the remoteness of damage, it is necessary to fix the consequences of act somewhere otherwise it would be endless. Therefore, in law people are held responsible for the consequence which are not remote.
Prior to discussing 'remoteness of damage' there are three things which have to be looked upon first-
(a) in every case there is a duty of care owed to the plaintiff and the test of duty depends on what a person can foresee;
(b) whether a breach of duty has been committed and the test of breach of duty depends on the person that he acted like a reasonable and prudent person; and
(c) if the negligent breach of duty was a cause of injury when, the above three preliminary conditions - duty, breach of duty and cause of
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1. Bacon, Maxims of the law, 1630 Reg 1.
injury are proved in favour of plaintiff then only the fourth criterion i.e. remoteness of damage comes into play.
Remoteness of damage is decided on the basis of the principles laid down by the Court in various cases.
2.
Q.
Q.
There are two views on the test of remoteness of damage:
(i) Pollock-he said that the consequences are too remote if a reasonable man would not have foreseen them as it was observed in the case Rigby v. Hewitt, (1850) 5 Ex 240.
(ii) As it was observed in the case Smith v. L&S W. Rly., (1870) 3 KB 577, that if a reasonable man would have foreseen any damage to the plaintiff as likely to result from his act, then he is liable for all the direct consequences of it suffered by the plaintiff, whether a reasonable man would have foreseen them or not.
Polemis (in re:) this second rule was favoured while delivering the verdict in the case Polemis and Furness - A ship was hired under a charter which exempted both the ship-owner and the charteres from the liability for fire. Petrol in tin was loaded on the ship and during the loading tin got leaked and thus vapour was formed in the storage. At Casablanca port, while uploading the cargo a servant carelessly dropped a plank which caused fire in the ship. The ship was destroyed. Some damage to the ship may be forseeable but to get destroyed completely by fire was not. Hence, the Court of Appeal held defendant liable for the consequences arisen out of the negligence. Scrutton L.J; defined, direct, consequences as - 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 in fact caused 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. This was the principle laid down in the case Smith v. L&S. W. Rly., the judges of Polemis followed this principle and observed that once the negligence in act may cause injury and is foreseeable, then any person in such situation may recover even though it is unforeseeable that he might suffer damage in any way.
Winfield has elaborated it as - the question of the defendant's initial liability i.e., whether he committed a tort against the plaintiff, must be distinguished from the secondary question of remoteness of damage, namely, for what consequences of the defendant's conduct is the plaintiff entitled to recover compensation. The case is no authority for liability to the unforseeable plaintiff.
In this case, the defendant had confessed to have sinking the plaintiff's dredger. It was the question that how much defendant should pay to the plaintiff. Plaintiffs were in favour of the rules of Polemis (in re:) to be invoked i.e., the wrongdoer should be held liable for all the direct consequences, whether reasonably foreseeable or not. The House of Lords gave the view that the recovery should be made for market price of dredger and compensation for loss in carrying out the contract between the date of sinking of dredger and resumption of work by new dredger, but it was not acceded to for claim of extra expenses due to poverty.
Lord Wright without over-ruling, elaborated about distinction between the instant case and Polemis (in re:) as the injury in Polemis (in re:) was the immediate physical consequences of the negligent act and further said that 'nor is the appellant's financial disability to be compared with that physical delicacy or weakness which may aggravate the damage in the case of personal injuries, or with the possibility that the injured man in such a case may be either a poor labourer or a highly paid professional man'. The former class of circumstances goes to the extent of actual physical damage and the latter goes to interference with profit earning capacity, whereas the appellant's want of means was, as already stated, extrinsic. This case gave two points-
(i) it created a distinction between physical disability and plaintiff's impecuniosity; and
(ii) it restricted the Polemis (in re:) rule to only "immediate physical consequences". Regarding second point, the House of Lords preserved the rule of Polemis (in re:) that if some damage is foreseeable then he will be liable for all the direct consequences even if unforeseeable provided they are immediate physical consequences.
During bunkering operations in Sydney harbour, from the Wagon Mound a large quantity of oil spilled over and this ship was under the defendant's control as charterers. The oil reached to plaintiff's wharf and during a wielding operation in the course of repairs, a molten metal fell and caused fire and it led to the destruction of wharf as well as vessels kept there for repairing.
In this case, it was laid down by the Privy Council that the essential factor in determining liability for consequences of a tortious act of negligence is whether the damage is of such a kind as a reasonable man should have foreseen, and, further, that a man should not escape liability however 'indirect' the damage, if he foresaw or could reasonably have foreseen the intervening events...... Applying that test in the instant case, it appears to me that, in the conditions prevailing in East Africa, it is to be foreseen that a traffic accident may result in a vehicle involved being left unattended though no fault of the owner, and that in such a case loss of the contents of the vehicle through pilferage is not merely foreseeable but highly probable.
Judicial Committee also sidelined the law as was observed in the Polemis. Later on, it was pointed out that the test of directness looked at the happenings, after the event, it was further observed. 'After the event a fool is wise. But it is not hind sight of a fool: it is the foresight of a reasonable man which alone can determine responsibility.'
The employees of the Post Office left an open manhole (opened by them) unattended in the evening. The manhole was covered by a tent. A paraffin lamp was also placed there. Two children (8 & 10 yrs. old) took the lamp and entered the manhole. The lamp was somehow knocked into the hole and a violent explosion took place and the flames shot thirty feet into the air. The plaintiff was knocked back into hole and received serious burns. The court was of the view that it was reasonably foreseeable that the children would play with the lamp which was unattended and it might also cause burn injuries, but it was unforeseeable that a paraffin lamp would explode and would cause serious burn injuries. In following words, the Law Lords held the defendants liable-
"In order to establish a coherent chain of causation it is not necessary that the precise details upto the accident should have been reasonably forseeable: it is sufficient, if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person. An explosion is only one way in which burning can be caused. Burning can also be caused by the contact between liquid paraffin and a naked flame. In the one case paraffin vapour and in the other case liquid is ignited by fire. I cannot see that these are two different types of accident. They are both burning accidents and in both cases the injuries would be burning injuries. Upon this view the explosion was an immaterial event in the chain of causation. It was simply one way in which burning might be caused by the potentially dangerous paraffin lamp..... The defender cannot escape liability by contending that he did not foresee all the possibilities of the manner in which allurements - the manhole and the lantern would act upon the childish mind"
In the words of Lord Pearce - the defenders are therefore liable for all the foreseeable consequences of their neglect. When an accident is of a different type and kind from anything that a defender could have foreseen, he is not liable for it. But to demand too great precision in the test of forseeability would be unfair to the pursuer since the facets of misadventure are innumerable. The accident was but a variant of the foreseeable.
Lord Reid observed that the fact that the injuries suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The cause of this accident was a known source of danger, the lamp but it behaved in an unpredictable way.
The House of Lords held that it was unpredictable that a lamp might explode, but the defendants were in breach of duty in leaving the manhole unattended because they should have reasonably anticipated that boys might take lamp into the shelter and that, if the lamp fell and broke, they might suffer injury from burning. So the lamp, a known source of risk, caused injury through an unforeseeable sequence of events, but the defendants were held liable. It is, therefore, not necessary that the precise details leading upto the accident should have been reasonably foreseeable. It is sufficient, if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person.
Here, we are talking about the injury - physical as well as of property. In case of damage of property, the compensation can be calculated but it is always a cumbersome process to make estimate about physical injury. It is difficult to repair/rectify the injury by damages, nor is sanctity of life upheld by their award. The test of reasonable foresightedness towards a normal healthy person should be followed in the absence of any logical reasoning, rather than what the law is being followed today, unless overruled, that the extent of damage if aggravated due to some weakness, which is inherent in nature, full liability is attached in the case of people as it was observed in the case Smith v. Leach Brain & Co. Ltd., (1962) 2 QB 405.
Can the rule regarding the degree or extent of damage to property-that 'defendant takes his victim as he finds him' be applied to dilapidated and weak property? The answer of this question is still awaited. In the case, Liesboach Dredger v. S.S. Edison, 1933 AC 448, the House of Lords, while restricting the rule of Polemis (in re:), stated the principle of 'immediate physical consequences' in relation to extent of damage to property.
4.
Foreseeability is not the only criteria but what are the ways or manners in which damage has been caused should be foreseeable.
In the case Hughes v. Lord Advocate, 1963 AC 837, the House of Lords observed that the chain of events leading upto the injury is not relevant so long as the wrongful act could be foreseen as a possible factual cause of the kind of injury. This principle does agree with the direct rule of Polemis (in re:) as far as manners are concerned, and thus the basic rule of reasonable foresight laid down in the Wagon Mound No. 1, has been rejected by the House of Lords and East African Court of Appeal. In Doughty v. Turner Manufacturing Co. Ltd., (1964) 1 QB 518, the unforeseeable 'manner or ways' which created the effects of wider range than reasonably foreseeable, the Court's view was that 'ways or manners' were relevant. In this case, the injury was received by the plaintiff, not by the splashing of liquid in a vat, when the lid fell into it, but by the effervesence resulting from the interaction of the material from which the lid was made with the substance in vat. The Court of Appeal observed that the extent of the effects of the effervesence was wider than would have been the extent of any splashing caused by the fall of the lid. Hence, there was no liability.
Hughes and Doughty cases can be distinguished but the line of distinction is very thin.
In the case Tremain v. Pike, 1969 WLR 1556, the plaintiff was employed as a herdsman contracted a rare disease - leptospirosis, which is caused through contact of rat's urine. It was not earlier known to farming community nor it was prevalent in the area. The learned judge observed that the defendants were not liable because they could not have realized as reasonable men the extent to which the farm was infested with rats so as to give rise to any sort of danger whatsoever from their presence. The learned judge further observed that even if the defendants had been in breach of duty, in that they ought to have known of the extent of the infestation by rats and ought to have foreseen that the plaintiff was or might be exposed to some general hazard involving personal injury, illness or disease in consequence of such infestation, they were still immune from liability on the ground, that the disease of leptospirosis was at best a remote possibility which they could not reasonably foresee. The learned Judge held that disease in question was 'not comparable to other human disabilities which may flow from an infestation of rats'.
Here the disease was caused due to contact with rat's urine. That was entirely different in land from the effect of a rat bite or food poisoning contaminated by rats. In this, he relied by way of comparison and contrast, upon the earlier decisions in Smith v. Leach Brain & Co. Ltd., (1962) 2 QB 405 and Brandford v. Robinson R. Ltd., (1967) 1 WLR 337. He held further that in those cases, the risk of injury from a burn or from extreme cold was foreseeable and it was only the degree of injury or the development of the sequela was not foreseeable.
From this judgment, it can be construed that how narrow level of abstraction in respect of foreseeable damage was invoked by the learned judge in order to determine the liability of the defendant. Tremain case differentiated between injury from rats by biting and injury from rat's infection. It may further be said that the only real type of injury to be considered was injury by rats, however the precise injury was suffered and the rationale of these distinctions is said to be the element of forseeability.
6.
The liability has become remote with the development of remoteness principles in English Law.
In the Wagon Mound No. 1, their Lordships discussed the moral and social consequences of the correct approach to the problem of defining the duty of care of the remoteness issue. But, in the extensive and ever-widening field, its principle has no place whatsoever in recent times. The foreseeability rule in relation to remoteness, as said earlier, has already been rejected in respect of degree or extent of damage, physical disability, financial disability and the manners or ways in which a foreseeable kind of damage is caused.
In India, the law is followed usually on English lines and most of the times, the justice is done in favour of defendants whatever analysis of negligence is invoked or distinctions are made, they must stem from the ultimate desire and purpose of the law to achieve a just result in any given case.
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