Remoteness - Torts Law

Class 14- remoteness:

Remoteness of damage:

• 5D General Principles- Causation (1-4)

• The CLA, section 5D (1)b refers to the scope of liability extending to the relevant harm. This encompasses the remoteness of damage.

• “For the purpose of determining the scope of liability, the court is to consider, whether or not and why responsibility for the harm should be imposed” (s.5D (4))

• Until the 1960s the law applied the direct consequences test of remoteness, where you were liable for all the direct consequences flowing from the breach of duty. This was laid down in Re Polemis and Furness, Withy and Co Ltd (1921). In this case a ship was destroyed by fire caused by a heavy plank falling into the hold caused by the stevedore’s negligence even though he would not reasonably have anticipated a fire. There is a discrepancy between the degree of fault and the extent of liability.

• It was disproved by Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) that used the foresee-ability test.

Page 519

The Wagon Mound (No 1) (1961) – Foresee-ability of damage.

Facts:

• Two separate plaintiffs for both of these cases.

• The ship, Wagon Mound was taking furnace oil to the Balmain wharf.

• The employees for the ship were negligent and allowed a large amount of oil to spill into Sydney Harbour.

• The Corrimal Boat got oil under the wharf it was being worked on. The manager instructed no welding. The manager from a different wharf assured him it was safe.

• The oil caught fire. However it was unlikely that this oil would set alight on a large body of water. It was caused by some waste on the water being sparked acting as a wick.

Remedy sought:

• Damages for negligence.

Prior proceedings:

• The Supreme Court found the Wagon Mound liable even though it was not foreseeable that the oil on the water would catch fire. He applied Re Polemis.

• Wagon Mound appealed to the Privy Council.

Legal issue:

• Does the rule of direct consequences of remoteness apply from Re Polemis?

Outcome:

• Appeal allowed. Wagon Mound won.

Legal reasoning:

• Viscount Simonds reasoned that it is not consonant with current ideas of justice or morality that, for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all its consequences, however unforeseeable and however grave, so long as they can be said to be ‘direct’. He should be judged by what a reasonable man ought to foresee. It is vain to isolate the liability from its context and say B is or is not liable and where are the damages he is to pay.

• It is wrong to make a man liable for damages which are unpredictable by the reasonable man because it was direct and it would be wrong for a man to escape liability however indirect the damages if he could reasonably foresee the intervening events which led to its being done.

Ratio decidendi:

• To determine liability it is whether the damage is of such a kind as the reasonable man should have foreseen. It is not whether the damage was direct like in Re Polemis.

Page 521

The Wagon Mound (No 2) (1967)

Facts:

• The owners of the ships Corrimal and Audrey D moored at the wharf when the fire broke out sued.

Remedy sought:

• Damages for negligence and nuisance. Case is in the Privy Council from the Supreme Court of NSW.

Legal issue:

• Was the fire reasonably foreseeable if the Wagon Mound did regarded furnace fuel as being difficult to ignite on water and that it rarely happened?

Outcome:

• Appeal and cross appeal allowed. Wagon Mound lost.

Legal reasoning:

• Lord Reid reasoned that in Bolton v Stone the risk of a cricket ball leaving the cricket ground and striking someone was so small that a reasonable man would have been justified in disregarding it and taking no steps to eliminate it. This justifies neglecting risk when it is a small magnitude.

• However a reasonable man would only neglect a risk if he had a valid reason to do so like it would be expensive to eliminate it. He would weigh the risk against eliminating it.

• The chief engineer must realise that there was a real risk here. He should not have let so much oil be discharged without noticing it at an early stage. He should have known it was possible for the oil to ignite and he should have known that it happened before. He should have done something when it was so easy to prevent.

Ratio decidendi:

• It is not justifiable not to take steps to eliminate a real risk no matter how small the chance of it occurring if a reasonable man would think it right not to neglect it.

• You must weigh the pros and cons. If it is a considerable expense to eliminate the risk then it is justifiable to neglect eliminating it. It must not be brushed aside as farfetched and there must be no disadvantage involved in eliminating it.

• Avoiding the risk must not have involved undue cost or required the defendant to abstain from some other reasonable activity.

Page 523

Hughes v Lord Advocate (1963) – Kind of injury and manner of its occurrence.

Facts:

• An eight year old boy was severely burned when a lamp exploded.

• The lamp was surrounding an unguarded manhole in the street, used to warn traffic.

• Hughes went into the manhole using a ladder and dropped the lamp which exploded.

• Post office workmen left the manhole unattended.

Remedy sought:

• Damages for negligence.

Prior proceedings:

• Heard in the House of Lords.

Legal issue:

• Was the damage Hughes suffered foreseeable enough for him to claim damages?

• Was the accident of a foreseeable type?

Outcome:

• Appeal allowed. Hughes won.

Legal reasoning:

• Lord Reid reasoned that in Glasgow Corpn v Muir, the way in which the accident happened could not be anticipated and excluded liability. This cannot be followed in this case. The accident was not of a foreseeable type because the lamp behaved unpredictably. Yet the breach of the duty by not attending the manhole was foreseeable and the damage should have been anticipated.

• Lord Pearce reasoned that the dangerous allurement was left unguarded in a public highway where there was the presence of children. They are therefore negligent for all the foreseeable consequences of their neglect. The obvious risks were burning and a fall which all happened as well as the explosion. The entry into the hole, the mishandling of the ladder were all foreseeable. The resulting damage, though severe was not unforeseeable.

Ratio decidendi:

• In the case of the allurement to children of a thing which is left unattended, it is not hard to foresee disaster occurring.

• The kind of injury or the manner of its occurrence does not have to be foreseeable (i.e. the severity of the injury may not be foreseeable). What must be foreseeable is that an accident of that nature would occur if a duty was breached.

• Even if the particular injury is not foreseeable, the plaintiff will be able to recover if the harm comes within a more general kind of damage that is foreseeable.

• Any subsequent injuries that flow from the initial injury need not be foreseen.

Notes:

• In Mt Isa Mines v Pusey (1970), the plaintiff working in a powerhouse assisted a workmate who had been electrocuted. He got schizophrenia. The HC held that the plaintiff court recover damages for nervous shock on the basis that it was sufficient if the particular condition came within a class of injury which could be foreseen. Injury from shock was treated as a distinct class of damage that was foreseeable.

Page 525

Jolley v Sutton London Borough Council (2000)

Facts:

• Jolley, a 14 year old school boy sustained spinal injuries when an abandoned cabin cruiser left lying on the grounds of the block of flats fell as he lay under it attempting to repair it.

• He appealed to the House of Lords.

Legal issue:

• Was the injury sustained in the scope of reasonably foreseeable? Was it remote?

Outcome:

• Appeal allowed. Jolley won.

Legal reasoning:

• Lord Hoffmann reasoned that children are ingenious at finding unexpected ways of doing mischief to themselves and others. The boat was thought to carry a small risk like a child climbing on the boat and it giving way underneath them. The wider risk that occurred was not as foreseeable. However there is not fixed point on the scale of probability. The council should have removed the boat. The wider risk falls within the scope of their duty.

• They are liable even for the materialisation of even relatively small risks of a different kind.

• It would have cost no trouble to avoid the risk of injury because the trouble should have been taken in any case.

Ratio decidendi:

• What must have been foreseen is not the precise injury which occurred but an injury of a given description.

• A defendant will be liable for an injury that occurs due to a wider risk than would be expected and foreseeable.

• The risk increases for children who should be expected to find ways of finding mischief.

The extent of damage and the eggshell skull rule:

• Defendants must take their victims as they find them (eggshell scull rule).

Page 527

Stephenson v Waite Tileman Ltd (1973) – eggshell skull rule.

Facts:

• Stephenson was employed as a steeplejack by Waite.

• He was resetting the wire rope system of a crane. The rope was very rusty and was starting to de-strand itself. The strands were likely to wound anyone handling the rope.

• The rope sprang free and struck his hand cutting it. He was infected which caused a nervous system disorder.

• The cut was the cause but it was not a reasonably foreseeable injury.

Prior proceedings:

• In trial Stephenson won but it was found that he was 60% negligent for not wearing protective gloves. Heard in Court of Appeal of New Zealand.