Law of Torts
Direct Consequence and Reasonable Foreseeability: The Two Competing Tests of Remoteness
Once a defendant is shown to have caused harm in fact, the law must decide how far down the chain of consequences he answers. Two tests have competed for that work. Re Polemis held that a negligent defendant answers for all the direct consequences of his act, whether or not they could have been foreseen. The Wagon Mound overruled it and confined liability to damage of a kind that was reasonably foreseeable. The second is the law, and the whole of the modern difficulty lies in deciding how broadly or narrowly a kind of damage is to be described.
1. The Comparison
Re Polemis, 1921 | The Wagon Mound (No. 1), 1961 | |
The test | Directness | Reasonable foreseeability |
The rule | Once negligence is established the defendant answers for all consequences directly traceable to it | The defendant answers only for damage of a kind a reasonable man would have foreseen |
Role of foreseeability | Relevant only to whether there was a breach at all | The test of liability as well as of breach |
What is excluded | Only consequences that are indirect, that is, broken by an intervening cause | Damage of an unforeseeable kind, however direct |
Its effect on the defendant | Liability of indeterminate extent once any negligence is shown | Liability confined to the risks he created |
Standing today | Overruled | The law, in England, in India and throughout the common law world |
2. Re Polemis
📖 In re Polemis and Furness, Withy and Co. Ltd., [1921] 3 KB 560 Facts A ship was chartered to carry a cargo which included cases of petrol. The cargo leaked and the hold filled with petrol vapour. While the cargo was being discharged at Casablanca, stevedores employed by the charterers negligently let a plank fall into the hold. The plank struck something, a spark was caused, the vapour ignited and the ship was destroyed. Some damage from the falling plank was foreseeable; the fire was not. Held The charterers were liable for the loss of the ship. Ratio If the act is negligent, in that some damage to the plaintiff was foreseeable, the defendant is liable for all the direct consequences of the act, whether or not those particular consequences could reasonably have been anticipated. Foreseeability determines whether there was negligence at all; once that is established it has no further part to play, and the only question is whether the damage was direct. |
3. The Wagon Mound
📖 Overseas Tankship (UK) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound, No. 1), [1961] AC 388 Facts The appellants' vessel was taking on bunkering oil in Sydney Harbour. Through carelessness a large quantity of furnace oil was spilled into the harbour and drifted to the respondents' wharf, where welding was in progress. Work was stopped and resumed on advice that the oil would not catch fire on water. Some days later molten metal from the welding ignited cotton waste floating on the oil, and the resulting fire destroyed the wharf. Fouling of the wharf was foreseeable; ignition of furnace oil on water was not. Held The appellants were not liable for the fire damage. Re Polemis was disapproved. Ratio A man should be responsible for the probable consequences of his act, and it is not consonant with current ideas of justice that he should be answerable for damage of a kind that no reasonable person would have foreseen merely because it was physically direct. Foreseeability of the kind of damage is the test of liability as well as of breach, and directness is not the criterion. Liability must be measured by the risks the defendant created, not by the accidents of physical sequence. |
4. What Foreseeability of a Kind of Damage Means
The case | The point it settles |
Hughes v. Lord Advocate, [1963] AC 837 | Post Office workmen left an open manhole surrounded by paraffin lamps. A boy took a lamp into the hole, dropped it, and an explosion followed. Burning was a foreseeable kind of harm; the explosion was an unforeseeable manner of its occurrence. LIABLE. The KIND must be foreseeable, not the precise MANNER |
Doughty v. Turner Manufacturing Co., [1964] 1 QB 518 | An asbestos cement cover slipped into a cauldron of molten liquid. An unforeseen chemical reaction caused an eruption some minutes later which burned the plaintiff. Injury by splashing was foreseeable; injury by chemical eruption was a DIFFERENT KIND of harm. NOT LIABLE |
Smith v. Leech Brain and Co. Ltd., [1962] 2 QB 405 | A galvaniser was burned on the lip by molten metal. The burn triggered a cancer in pre malignant tissue and he died. The kind of harm, a burn, was foreseeable; the EXTENT need not be. The eggshell skull rule survives The Wagon Mound. LIABLE |
The Wagon Mound (No. 2), [1967] 1 AC 617 | On the same facts, but with fuller evidence from shipowners rather than wharf owners, the chief engineer was found to have known that furnace oil could be ignited on water. A risk that is small but real must be guarded against where the potential harm is grave and the precaution cheap. LIABLE |
Tremain v. Pike, [1969] 1 WLR 1556 | A farm worker contracted a rare disease from contact with rats' urine. Injury by rat bite or by contaminated food was foreseeable; this disease was of an entirely different kind. NOT LIABLE. The decision shows how much turns on the level of generality chosen |
5. The Eggshell Skull Rule
- The defendant takes his victim as he finds him. A plaintiff with a thin skull, a weak heart, a pre existing condition or an unusual susceptibility recovers in full for the consequences of the injury, though a normal person would have suffered far less.
- The rule survived The Wagon Mound because it operates on the extent and not on the kind of the damage. Once damage of a foreseeable kind has occurred, its unforeseeable magnitude is no defence.
- Smith v. Leech Brain is the decision that confirmed its survival, decided in the year after The Wagon Mound and holding expressly that the rule was unaffected.
- It extends to impecuniosity in modern law, so a plaintiff who cannot afford to mitigate his loss is not penalised for a want of means.
- It does not extend to a wholly different kind of injury, which is the boundary between it and Doughty v. Turner.
6. Why the Level of Generality Decides Everything
- The Wagon Mound test asks whether damage of the kind that occurred was foreseeable, and the answer depends entirely on how the kind is described.
- Hughes and Doughty cannot be distinguished on any other basis. In Hughes the harm was described broadly as burning, and it was foreseeable. In Doughty it was described narrowly as injury by chemical eruption rather than by splashing, and it was not.
- A court disposed to find liability describes the kind broadly: personal injury, burning, damage by fire. A court disposed against describes it narrowly: injury by this mechanism, disease of this particular type.
- Tremain v. Pike is the extreme of narrow description, and has been criticised for treating a rare disease from rat contamination as a different kind of harm from other injury caused by rats.
- So the practical work for a pleader is in the characterisation. The plaintiff pleads the foreseeable risk at the highest level of generality the facts allow; the defendant pleads it at the lowest.
7. The Position in India
- Indian courts apply the foreseeability test, The Wagon Mound having been accepted as the law and Re Polemis treated as overruled.
- The eggshell skull rule is applied without qualification, and is of constant importance in personal injury and motor accident claims where a pre existing condition is aggravated.
- In motor accident claims the question rarely arises separately, the compensation being assessed under settled heads once the accident and the injury are established: TORT 084 and TORT 085.
- Where liability is strict or absolute, remoteness operates differently. Rylands speaks of the natural consequences of the escape, and under absolute liability the enterprise answers for the harm resulting from the hazardous activity without a separate foreseeability enquiry: TORT 115.
⚠ Whether the change from Re Polemis actually altered many results The replacement of directness by foreseeability is presented as one of the great turning points of the modern law, and in terms of principle it is. Its practical effect is smaller than that suggests, for two reasons. The first is that the eggshell skull rule survived, so the great majority of cases in which a defendant is held liable for consequences nobody could have predicted, the trivial injury that kills, the small blow that leaves a permanent disability, are decided exactly as they would have been under Re Polemis. The second is that Hughes v. Lord Advocate established that only the kind and not the manner of the harm need be foreseeable, and a kind described with any generality will almost always be foreseeable once negligence has been established at all. What is left to the new test is the narrow class of case in which the damage that occurred was of a type entirely outside the risk the defendant created, of which the fire in The Wagon Mound and the eruption in Doughty are the standard examples. The change therefore matters most as a statement about what liability is for, that a person answers for the risks he made and not for every sequel of his carelessness, and rather less as a rule that decides cases. |
8. The Position Stated Shortly
1. Re Polemis held a negligent defendant liable for all the direct consequences of his act, foreseeable or not.
2. The Wagon Mound (No. 1) overruled it and confined liability to damage of a kind that was reasonably foreseeable.
3. Foreseeability is now the test of liability as well as of breach, and directness is not the criterion.
4. Hughes v. Lord Advocate holds that only the kind of harm need be foreseeable, not the precise manner of its occurrence.
5. Doughty v. Turner marks the limit: injury by an unforeseen chemical eruption was a different kind of harm from injury by splashing.
6. Smith v. Leech Brain confirms that the eggshell skull rule survived, since it operates on the extent and not the kind of the damage.
7. The Wagon Mound (No. 2) holds that a small but real risk must be guarded against where the harm is grave and the precaution cheap.
8. Everything turns on the level of generality at which the kind of damage is described, which is why Hughes and Doughty cannot otherwise be reconciled.
9. Indian courts apply the foreseeability test and the eggshell skull rule without qualification.
10. The change matters most as a statement that a person answers for the risks he created, and rather less as a rule that alters results.