REMOTENESS OF DAMAGES IN LIGHT OF TORT

- AMOL THORAT

INTRODUCTION ​-

Before getting into climax, first and foremost we need to understand the difference between law
and justice. Law is very clear while justice depends upon the use of that law. Law says you do
these things or don't do these things, if you don't obey you are backed by sanctions. But, justice
is fluid, not rigid, this depends on the type of circumstances and the facts. For e.g., an offender
might be punished for less sentence than he deserves, then we can see justice is absent but law is
applied. Law of tort originated from the UK's common law and it says - “where there is
infringement of right of person or harm caused, there is always liability of the defendant.” There
is a famous legal maxim - ‘​Injuria non remota causa sed Proxima spectator​’ which means the
immediate and not remote cause of the event is to be considered. A wrongful event may cause
single consequence or multiple i.e., series of consequences. The results of a wrongful act may be
endless. But, the defendant should not be liable for remote consequences. If the tortfeasor is held
liable for all consequences of his wrongful act, then it will manifest injustice. Remoteness of
damages is used to investigate the chain of causation and reasonably charges the defendant
accordingly. In this process, elimination of claims of remote causes are done. Exception to it is
when the court finds a mens rea in the act of the defendant. Then the question arises, if the event
was foreseeable then the defendant should be held liable completely or partially or not even held
liable. What are the tests to decide the remoteness of an event? We will explore what are ideal
factors required for an unforeseeable event in this principle. In this research we will explore the
principles through common law and case laws of foreign and domestic territories.

MODE OF CITATION - Bluebook 19th Edition.

 BODY OF RESEARCH​ -

Before 1850- There was a theory which explains the test of remoteness foreseeability by
checking that the consequences were too remote if a reasonable man would not have foreseen
them. Another theory was directness which in name itself describes whether the event was
foreseen or not, the defendant is liable for all. The courts till 1850 relied upon the saying - “He
that does the first wrongs shall answer for all consequential damages.”
WHO IS LIABLE?
In 1773, the famous english case ​Scott v. Shepherd1 , ​also known as SQUIB CASE. ​Here, A
threw a lighted squib into a crowd. It fell on X. who threw it further, It fell on Y who threw it
away. It fell on B, exploded and blinded one eye. Held, A was liable to B. Though X and Y had
intervened, A's act was the Causa Causans. The defendant pleaded novus actus interveniens but
the court rejected this defence. The root cause was A here and held liable. Later, in the case of
Haynes v. Harwood2 The defendant’s servants negligently left a house van unattended in a
crowded street. At the same time, children started throwing stones on horses and made them full
of anger. Policeman in order to rescue the children and the woman, faced multiple injuries. The
defence council argued on the remoteness of consequences. The policeman got injured because
the small childrens made horses to behave in a violent manner. Thus the court observed that the
act of children was a proximate cause and the act of the defendant's servant was remote cause. In
Hughes v. Lord Advocate3, the post office employees opened a manhole and left it unattended
in the evening. Then the manhole was surrounded by paraffin lamps. An eight year old boy took
one of the lamps into the shelter and was playing with it when he lost his balance, he fell into the
manhole. There was a violent explosion due to which the claimant himself fell into the manhole
and sustained severe burn injuries. Explosion due to the paraffin lamp was an unforeseen one but
there was duty associated with the post office employees. Court observed that the act of
employees was proximate cause and the act of the 8-year claimant was remote cause. If the
manhole wasn’t left unattended, then the whole accident could be prevented.

1
Scott v. Shepherd, (1773) 96 Eng. Rep. 525.
2
​Haynes v. Harwood , (1935) 1 K.B. 146.
3
Hughes v. Lord Advocate, (1963) A.C. 837.
 WHAT IS REMOTENESS ?

In ​Oehler v. Davis4 a dog collar manufacturer sold a defective dog collar. The collar broke,
allowing the dog to escape its owner and bite a stranger. The court decided that the plaintiff had
no cause of action against the dog collar manufacturer, because the harm was too remote.
Similarly in the 9 bench case of ​Waddah Mustapha v. Culligan of Canada5, it was observed that
personal injury to Mr. Mustapha was not reasonably foreseenable by the defendent at time of
alleged tort. And thus the appeal was dismissed by the court. In the case of ​Doughty v. Turner
Manufacturing Company Ltd.6, some worker inserted an asbestos cement coverslip into a
cauldron of hot molten liquid. This resulted into the explosion and caused injury to plaintiff, who
was also worker of the defendent. The Hon’ble court held that the whole incident was not
foreseenable and defendants were not liable. Though I disagree with the judgment to some extent
as there was harm caused to plaintiff, he is entitled to recieve compensation. Everytime looking
whether the act was foreseen or not, Court should also look the interests of victims of the
accident. Also if the court tries to favor the plaintiff, this law will be weapon and source of
income by alleging false cases. I will reflect with the case of ​Lewis v. Kehoe7, where a day care
center mistakenly or negligently allowed a child to consume poison. Relatives of the hild lost
their child. They sued the day care center for bruises on child which resulted into death. Later
through investigation, court came to know that the bruises on child was due to child abuse.
Defendant was not held liable because the cause was too remote.
The question is what kind of approach should the judgment should implement - Liberal or strict?
In conclusion of all decisions and discretion of jury/judges in the cases, we can follow up two
major test to determine the remotene and proximate damage -

4
Oehler v. Davis, 298 A.2d 895.
5
Waddah Mustapha v. Culligan of Canada, (2008) 2 SCR 114.
6
​Doughty v. Turner Manufacturing Company Ltd., (1964) 1 Q.B. 518.
7
​Lewis v. Kehoe, 346 So.2d 289
 A. TEST OF REASONABLE FORESIGHT-

In the case of ​Oversees Tankship v. Morts Dock & Engineering Co., Ltd.8 disagreed with the
judgment principle of directness test given in Re Polemis case9. Privacy Council held that this
test should replaced with the view that if court finds any unforeseeable element, defendent
should be freed.
Viscount Simond held at pg. 422-423 - “A man must be considered to be responsible for the
probable consequences of his act. To demand more is too harsh or to demand less is to ignore
that civilised order requires the observance of a minimum standard of behaviour.”10 This case
laid down crieteria - 1. Culpability - the damages should be determined only for harm caused by
his act. 2. Remoteness - the court decides which damage caused is flung or unforeseen to
determine the liability of defendant. If the situation can’t be controlled by a reasonable man, then
it is remote and vice versa. The rule is easy and rational to apply for this paradime and is free
from subtitles of intervening causes.11 This rule is in consonance with the current ideas of justice
and morality.12
B. TEST OF DIRECTNESS -

In Re Polemis case13, a plank was negligently fallen and struck somewhere causing spark. That
fire burnt the ship. The House of lords declared that fire was unforeseeable but law of tort says if
breach of duty is found, liabilty coexists. Defendant was held fully liable because to some extent
it was foreseenable on part of worker. This test describes that a tortfeasor is responsible and held
laible for all the consequences irrespective of proximate or remote cause to the happening of the
event. This direct consequence test is unjust and has illogical conclusions.14

8
​ versees Tankship v. Morts Dock & Engineering Co., Ltd., (1961) AC 388.
O
9
​Re Polemis & Furness, Withy & Co. Ltd., (1921) 3 KB 560.
10
​Supra note 7 at p. 422-423.
11
​Williams, The Risk Principle, 77 L.Q.R. 179.
12
Supra note 8 at 413-415.
13
Supra note 9
14
Supra note 8 at p.414.
 INDIAN SCENARIO FOR TEST OF REMOTENESS.

Indian civil laws are mostly adopted from the common law. Also, tort is a civil wrong, it
becomes necessary to Indian courts whether to adopt test of directness or reasonability. We need
to understand that before bringing any foreign law or statute, it should not contradictory to
existing laws. We should check whether there are decisions given by Hon’ble Courts in India
regarding the same. We should pre-analyze or predict the problems the enaction or adoption of
that particular statute or law can cope up with.

In the Indian case of ​Madappa v. K.Kariappa15, the orange garden of plaintiff was burnt out
because of fire attracted from the adjacent burning of land owned by the defendant. Madras High
Court expressed the view on basis of reasonable foresight test saying that the causing of fire was
proximate and defendant should set fire with reasonable precautions in his own land. Defendant
was held liable.
In another HC case of ​Veeran v. Krishna Moorthy16, school students were waiting to cross a
road. The defendant’s lorry was heading from behind the bus about 75-100 yards at 25-30 Km/h.
Students were waiting for bus to pass away. The students started cross the road, one of them was
injured by the lorry. The court held defendant liable as they could have foreseen the cause of
accident. From above 2 cases, we can easily interpret that India is adoping the rule of reasonable
foresight in their judgments.

15
Madappa v. K. Kariappa, AIR 1964 Mys 80.
16
​Veeran v. Krishna Moorthy, AIR 1966 Ker 172.
 CONCLUSION ​-

Imagine if there no such principles was existed, it would be diffcult for court to give the verdict.
The laws are not to suppress the wrongdoer and punish for consequences in which he played a
very remote cause. It is to the discretion of judges what amount should be charged on defendants.
Only because of the principle of reasonably foresight, the proper justice is served in society. I
firmly like to reject the idea of directness test as it limits the scope of equity, justice and good
conscience (not to forget all the three are sources of law). An wiseman said that - “​Agar sau
apradhi ko zhodh diye toh chalega lekin ek bekasoor Insan ko sajaa nahi milni chahiye.​ ” Really
the test of reasonable foresight fulfills those above lines. I think the remoteness of damges not
need be evolved in contract law cases because the parties before agreement knows the risk of
brech of contract. In torts, the case is different, here parties are stranger to each other. Before the
wagon mound case, it was difficult and contradictory to the concept of justcice. But, if there was
no reform or intrduction of the remoteness of damages, I believe Indian judiciary could introduce
it and work for justice of people.