Law of Torts
Remoteness of Damage: Re Polemis, The Wagon Mound, and the Egg Shell Skull Rule
A defendant is not liable for every consequence of his breach, however long the chain runs, and the doctrine of remoteness marks the cut off. Two tests have competed for the position. Re Polemis (1921) held that a defendant is liable for all the direct consequences of his negligent act, however unforeseeable. The Wagon Mound (No. 1) (1961) held that he is liable only for damage of a kind that was reasonably foreseeable, and disapproved Re Polemis. The Wagon Mound is the law today. But it governs the kind of damage only: once damage of that kind was foreseeable, the defendant is liable for the full extent of it, however much greater it turned out to be. That is the egg shell skull rule, and the two propositions fit together without contradiction.
The two tests, what foreseeability means, and how the thin skull rule survives the Wagon Mound
1. The Directness Test
📖 Re Polemis and Furness, Withy and Co. Ltd. [1921] 3 KB 560 Facts The defendants chartered a ship carrying a cargo of benzine and petrol in tins. Some of the tins leaked, and petrol vapour accumulated in the hold. Stevedores employed by the charterers negligently let a plank fall into the hold. The plank struck something, caused a spark, the vapour ignited, and the ship was destroyed. Held The charterers were liable for the whole loss of the ship. Ratio Once some damage is foreseeable as a result of the negligent act, the defendant is liable for all the direct consequences of it, whether or not those consequences could reasonably have been anticipated. Some damage from dropping a plank was foreseeable; the destruction of the ship by fire was not, and made no difference. The test is directness, and foreseeability goes only to whether there was negligence at all. |
- The attraction of the test is that it places the whole loss on the wrongdoer rather than on the innocent plaintiff.
- The objection to it is that it makes liability depend on the accident of how directly the consequences followed, which bears no relation to the defendant's culpability, and exposes him to an indeterminate liability.
2. The Foreseeability Test
📖 Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound No. 1) [1961] AC 388 Facts The defendants' vessel, the Wagon Mound, was taking on bunkering oil in Sydney harbour. Through the carelessness of their servants a large quantity of furnace oil was spilled and spread across the harbour to the plaintiffs' wharf, about 200 yards away, where welding was in progress. The plaintiffs stopped welding and were advised that the oil could not be ignited on water. They resumed. Some two days later molten metal fell on a piece of floating debris, which acted as a wick, and the oil caught fire and destroyed the wharf. Held The defendants were liable for the fouling of the wharf by the oil, which was foreseeable, but not for its destruction by fire, which was not. Ratio A defendant is liable only for damage of a kind that was reasonably foreseeable as a result of his breach. Re Polemis was disapproved. It is not consistent with principle that a man should be liable for damage that was unforeseeable merely because it was direct; liability should be measured by what the reasonable man would have foreseen, which is the same test that determines whether there was negligence in the first place. |
3. The Two Tests Compared
Re Polemis (1921) | The Wagon Mound (1961) | |
The test | Directness of the consequence | Reasonable foreseeability of the kind of damage |
Role of foreseeability | Goes only to whether there was negligence at all | Goes to negligence and to remoteness alike |
Who bears the unforeseeable loss | The wrongdoer | The innocent plaintiff |
The criticism | Liability is indeterminate and unrelated to culpability | An innocent plaintiff bears a loss caused by a wrongdoer |
Its status | Disapproved by the Privy Council in 1961 | The law in England and in India |
The result on the facts | Liable for the destruction of the ship | Not liable for the destruction of the wharf |
4. What Foreseeability Means
- The type or kind of damage must be foreseeable. Burns, drowning, impact injury and property damage are different kinds.
- The extent need not be. Once damage of that kind is foreseeable, the defendant is liable for however much of it occurs.
- Nor need the precise manner of its happening be foreseeable. It is enough that damage of the kind that occurred was within the range of what could be anticipated.
- Hughes v. Lord Advocate [1963] AC 837 is the leading illustration. Post Office workmen left an open manhole covered by a tent and surrounded by paraffin lamps. A boy took a lamp into the manhole, knocked it in, and a violent and unforeseeable explosion threw him in and burned him badly. The House of Lords held the workmen liable: burns from the lamps were a foreseeable kind of injury, and it did not matter that the explosion, and so the manner of the burning, was unforeseeable.
- The width of the category matters. If "burns" is the category, Hughes succeeds; if "burns caused by an explosion" is the category, it fails. The courts define the kind at a level of generality that keeps the rule workable.
5. The Egg Shell Skull Rule
📖 Smith v. Leech Brain and Co. Ltd. [1962] 2 QB 405 Facts The plaintiff's husband, a galvaniser, was struck on the lip by a piece of molten metal because of his employers' failure to provide an adequate shield. The burn was treated, but the tissue at the site was in a pre malignant condition, and the burn promoted a cancer from which he died some three years later. Held The employers were liable for the death. Ratio The Wagon Mound did not affect the rule that a tortfeasor takes his victim as he finds him. The test of foreseeability applies to the kind of injury. Once it was foreseeable that the plaintiff would suffer a burn, the defendant was liable for the full consequences of that burn in this particular victim, however much greater they were than could have been foreseen, because of his peculiar susceptibility. |
- The rule is also called the thin skull rule, and is stated as: take your victim as you find him.
- It applies to physical and psychiatric susceptibility alike, and has been extended to the victim's financial circumstances in some contexts, where a plaintiff's impecuniosity increased his loss.
- It does not dispense with the requirement that damage of some kind be foreseeable. It operates only after that threshold is crossed.
- It is a rule about extent, and the Wagon Mound is a rule about kind, which is why the two are consistent.
6. How the Two Rules Fit Together
1. Ask first whether damage of the kind suffered was reasonably foreseeable. If it was not, there is no liability for it at all, however direct the chain.
2. If it was, ask no further questions about extent. The defendant is liable for the whole of it.
3. Do not ask whether the precise manner of its happening was foreseeable, because Hughes v. Lord Advocate settles that this is not required.
4. Do not ask whether the victim's particular susceptibility was foreseeable, because Smith v. Leech Brain settles that this is not required either.
5. Define the kind of damage at a sensible level of generality, because the answer depends on how the category is drawn, and drawing it too narrowly would reintroduce the very unpredictability the Wagon Mound was meant to remove.
6. And remoteness is the last question, asked only after duty, breach and causation have all been established.
7. The Position in India
⚠ The Wagon Mound is followed, with the thin skull rule intact The Indian courts have adopted the reasonable foreseeability test of the Wagon Mound, and apply it alongside the thin skull rule in the way described above. Two practical points follow. First, in motor accident claims the question of remoteness rarely arises as a separate issue, because the kind of damage, personal injury or death from a collision, is almost always foreseeable, and the argument is about quantum instead. Second, in the environmental and industrial cases the question is displaced altogether where absolute liability applies, because M.C. Mehta v. Union of India, (1987) 1 SCC 395 ties the enterprise's liability to the harm caused by the hazardous activity without the qualifications the fault based rules carry. Remoteness remains what it has always been: a doctrine of the fault based part of the subject. |
8. The Position Stated Shortly
1. Remoteness marks the point at which the law stops attributing consequences to the defendant's breach.
2. Re Polemis held that a defendant is liable for all the direct consequences of his negligent act, however unforeseeable.
3. The Wagon Mound (No. 1) held that he is liable only for damage of a kind that was reasonably foreseeable, and disapproved Re Polemis.
4. The Wagon Mound is the law in England and in India.
5. The kind of damage must be foreseeable; the extent need not be.
6. Nor need the precise manner of its happening be foreseeable: Hughes v. Lord Advocate.
7. The egg shell skull rule requires a tortfeasor to take his victim as he finds him: Smith v. Leech Brain.
8. The rule survived the Wagon Mound because the one governs the kind of damage and the other its extent.
9. The answer often depends on how widely the kind of damage is defined, and the courts draw the category at a workable level of generality.
10. Remoteness is the last question, asked only after duty, breach and causation are established, and it is displaced where absolute liability applies.