CHANAKYA NATIONAL LAW

UNIVERSITY

LAW OF TORTS PROJECT

TOPIC: REMOTENESS OF DAMAGES

SUBMITTED TO: Ms SHUSHMITA SINGH

SUBMITTED BY: SHUBHAM KUMAR

SEMESTER: 1st

ROLL NO. : 1765

SESSION: 2017-22

TABLE OF CONTENTS
1. ACKNOWLEDGEMENT

2. AIMS & OBJECTIVE

3. HYPOTHESIS

4. RESEARCH METHODOLOGY

5. CHAPTERS
a) INTRODUCTION
b) REMOTE AND PROXIMATE DAMAGE
c) THE TEST OF DIRECTNESS
d) THE TEST OF REASONABLE FORESIGHT
e) CASE LAW ANALYSIS
f) CONCLUSION & SUGGESTION

6. BIBLIOGRAPHY

ACKNOWLEDGEMENT
I owe the present accomplishment. Any project completed or done in isolation is
unthinkable. This project, although prepared by me, is a culmination of efforts of a lots of
people.

Firstly, I would like to thank our teacher MS. SHUSHMITA SINGH “MAM” for her
valuable suggestions towards the making of this project.

Further to that, I would also like to express my gratitude towards my seniors who were
a lot of help for the completion of this project. The contribution made by my classmates
and friends are, definitely, worth mentioning. I would like to express my gratitude
towards my family members help also.

Last, but far from the least, I would express my gratitude towards the Almighty for
obvious reasons.

THANK YOU.

AIMS & OBJECTIVE

The researcher intends to find out

i. To discuss (in brief) the concept Remoteness of damages.

ii. To study (in detail) about the maxim Novus Actus Interveniens.

HYPOTHESIS
The researcher presumes that the

 Liability should be imposed only for those consequences which one could foresee, for
whatever could not have been foreseen is too remote a consequence of one’s wrongful
act.

RESEARCH METHODOLOGY

 The research methodology adopted for the purpose of this project is the doctrinal
method of research.
 The researcher will include both the qualitative and quantization analysis.

INTRODUCTION
REMOTENESS OF DAMAGE relates to the requirement that the damage must be of a
foreseeable type. In negligence claims, once the claimant has established that the defendant owes
them a duty of care and is in breach of that duty which has caused damage, they must also
demonstrate that the damage was not too remote. Remoteness of damage must also be applied to
claims under the Occupiers Liability Acts and also to nuisance claims.

REMOTENESS OF DAMAGE is often viewed as an additional mechanism of controlling

tortuous liability. Not every loss will be recoverable in tort law. originally a defendant was liable
for all losses which were a direct consequences of the defendant’s breach of duty.1

This was largely considered unfair as a defendant could be liable for damage which was not
foreseeable and therefore could not take steps to prevent it. The direct consequence test was
overruled in the Wagon Mound Case and replaced with a new test for deciding if damages are
too remote.

Following the Wagon Mound Case, the test for remoteness of damage is that Damage must be of
a kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant is liable
for the full extent of the damage no matter whether the extent of the damage is foreseeable.

“The Law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection, because it were infinite for the law to
judge the causes of causes, or consequences of consequences. In the varied web of affairs, the
law must abstract some consequences as relevant, not perhaps on ground of pure logic but simply
for practical reasons.2”

REMOTE AND PROXIMATE DAMAGE

1
Re Polemis & Furness Withy & Company ltd. (1921)
2
Liesbosch Dredger v. S.S. Edison, (1939) A.C. 449, at 460.
Any damage occurring from a defendant's act that cannot reasonably be anticipated by the
defendant, or that is not the natural and ordinary result of such act. A defendant will typically not
be held liable for remote damages to a plaintiff's person or property.

The act and the consequences are so connected that they are not too remote but are proximate,
the defendant will be liable for the consequences. It is not necessary that the event which is
immediately connected with the consequences is proximate and that further from it is too remote.
In Scott v. Shepherd3, A threw a lighted squib into a crowd, it fell upon X. X, in order to
prevent injury to himself threw it further, it fell upon Y and Y in his turn did the same thing and
it then fell on B, as a result of which B lost one of his eyes. A was held liable to B. His act was
proximate cause of the damage even though his act was farthest from the damage in so far as the
acts of X and Y had intervened in between.

In Haynes v. Harwood4, the defendant’s servants negligently left a horse van unattended in a
crowded street. The throwing of stones at the horses by a child, made them bolt and a policeman
was injured in an attempt to stop them with a view to rescuing the woman and children on the
road. One of the defences pleaded by the defendant was novus actus interveniens, or remoteness
of consequences, i.e., the mischief of the child was the proximate cause and the negligence of the
defendant’s servants was the remote cause. It was held that the defendant was liable even though
the horses had bolted when a child threw stones on them, because such a mischief on the part of
the children was anticipated. “It is not true to say that where the plaintiff has suffered damage
occasioned by a combination of the wrongful act of a defendant and some further conscious act
by an intervening person, that of itself prevents the court from coming to a conclusion in the
plaintiff’s favour if the accident was the natural and probable consequences of the wrongful
act.”5

3
17 W.B1. 892.
4
(1935) 1 K.B. 146.
5
Ibid., at 153.
In Lynch v. Nurdin6, the defendant left his horse and cart on a road and some children started
playing with the same. One of them jumped on the cart, and another set the horse in the motion.
The plaintiff, the child on the cart, was injured. Even though the misconduct of the boy who
started the horse was a novus actus interveniens, the defendant’s negligent act was held to be the
proximate cause of the accident, because such mischief by the children could be anticipated and
anyone providing an opportunity to mischievous children to do a dangerous thing could not
escape the liability by pleading that the wrong had been done by mischievous children.

There may be various causes for damage to the plaintiff. In order that the action against the
defendant succeeds, it has to be shown that the defendant’s wrongful act was the real cause of the
damage. In Lampert v. Eastern National Omnibus Co.,7 due to the negligence of the
defendants, the plaintiff, a married woman, was injured and that resulted in her severe
disfigurement. Sometime afterwards she was deserted by her husband. She wanted to claim
damages for the same. It was found that the real cause of the desertion of the plaintiff was not her
disfigurement but the estranged relations between the plaintiff and her husband, which existed
even before the accident and, therefore, the defendant was held not liable on that account.

TEST OF DIRECTNESS
According to the test of directness, a person is liable for all the direct consequences of his
wrongful act, whether he could have foreseen them or not; because consequences which directly
6
(1841) 1 Q.B. 29.
7
(1954) 1 W.L.R. 1047.
follow a wrongful act are not too remote. The test of directness was considered to be more
appropriate by the Court of Appeal in Re Polemis and Furness, Withy & Co. Ltd.8 The
only question which has to be seen in such a case is whether the defendant’s act is wrongful or
not, i.e., could he foreseen some damage? If the answer to this question is in the affirmative, i.e.,
if he could foresee any damage to the plaintiff, then he is liable not merely for those
consequences which he could have foreseen but for all the direct consequences of his wrongful
act.

The first authority for the view advocating the directness test is the case of Smith v. London

& South Western Railway Company9, where Channel B.said10 : “where there is no
direct evidence of negligence, the question what a reasonable man might foresee is of importance
in considering the question whether there is evidence for the jury of negligence or not…but when
it has been once determined that there is evidence of negligence, the person guilty of it is equally
liable for its consequences, whether he could have foreseen them or not. What the defendant
might reasonably anticipate is only material with reference to the question, whether the
defendants were negligent or not, and cannot alter their liability if they were guilty of
negligence.”

In Smith v. London & South Western Railway Company., 11 the railway company
was negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry
weather. Spark from the railway engine set fire to the material. Due to high wind, the fire was
carried to the plaintiff’s cottage which was burnt. The defendants were held liable even though
they could not have foreseen the loss to cottage.

8
(1921) 3 K.B. 560.
9
(1870) L.R. 6 C.P. 14.
10
Ibid., at 21, per Blackburn, J.
11
Supra note 10.
The above case was accepted with approval in Re Polemis and Furness, Withy & Co.

Ltd. In that case, the defendants chartered a ship. The cargo to be carried by them included a
quantity of Benzene and/or Petrol in tins. Due to leakage in those tins, some of their contents
collected in the hold of the ship. Owing to the negligence of the defendant’ servants, a plank fell
into the hold, a spark was caused and consequently the ship was totally destroyed by fire. The
owners of the ship were held entitled to recover the loss nearly Pounds 200,000, being the direct
consequence of the wrongful act through such a loss could not have been reasonably foreseen.

According to Scrutton, L.J.12 : “To determine whether an act is negligent, it is relevant 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 is in
fact causes is not the exact kind of damage one would except 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 in the
present case, it was negligent in discharging cargo to knock down the planks of the temporary
staging, for they might easily cause some damage either to the workmen, or cargo, or the ship.
The fact that they did directly produce an unexpected result, spark in an atmosphere of petrol
vapour which caused a fire, does not relieve the person who was negligent from the damage
which is negligent act directly caused.”

The test of directness has been considered to be incorrect and was rejected by the judicial
committee of the Privy council in Wagon Mound Case, an appeal from the New South Wales and
it was held that the test of reasonable foresight is the better test.

TEST OF REASONABLE FORESIGHT

According to the test of reasonable foresight, if the consequences of a wrongful act could have
been foreseen by a reasonable man, they are not too remote. If, on the other hand, a reasonable
man would not have foreseen the consequences, they were too remote. According to the opinion
12
Ibid., at 577.
of Pollock C.B., the liability of the defendant is only for those consequences which could have
been foreseen by a reasonable man placed in the circumstances of the wrongdoer. According to
this test, if I commit a wrong, I will be liable only for those consequences which I could foresee,
for whatever could not have been foreseen is too remote a consequence of my wrongful act.

THE WAGON MOUND CASE:

The Wagon Mound, an oil burning vessel, was chartered by the appellants, Overseas Tankship
Ltd., and was taking fuel oil at Sydney port. At a distance of about 600 feet, the respondents,
Morts Dock Company, owned a wharf, where the repairs of a ship including some welding
operations were going on. Due to the negligence of appellants’ servants, a large quantity of oil
was split on the water. The oil which was spread over the water was carried to the respondent’s
wharf. About 60 hours thereafter, molten metal from the respondent’s wharf fell on floating
cotton waste, which ignited the fuel oil on the water and the fire caused great damage to the
wharf and equipment. It was also found that the appellants could not foresee that the oil so split
would catch fire.

The trial court applied the rule of directness and held the O.T. Ltd. Liable. The supreme Court of
the New South Wales13 also followed the Polemis rule and mentioning the unforeseeability of
damage by fire was no defence, held the O.T. Ltd. Liable. Manning, J., said : “Notwithstanding
that, if regard is to be had separately to each individual, occurrence in the chain of events that led
to this fire, each occurrence was improbable, and, in one sense, improbability was heaped upon
improbability. I cannot escape from the conclusion that if the ordinary man in the street had been
asked, as a matter of common sense, without any detailed analysis of the circumstances, to state
the cause of the fire at Morts’ Dock, he would unhesitatingly have assigned such cause to the
spillage of oil by the appellants’ employees.”

13
See (1959) 2 Lloyds’ Rep. 692.
On appeal, the Privy Council held that Re Polemis was no more good law and reversed the
decision of the Supreme Court. Since a reasonable man could not foresee such injury, the
appellants were held not liable in negligence even though their servant’s negligence was the
direct cause of the damage. Referring to the above stated judgement of the Supreme Court and
the application of the Polemis rule there, the Privy Council said : “But with great respect to the
Full Court this is surely irrelevant, or, if it is relevant, only serves to show that Polemis rule
works in a very strange way. After the event a fool is wise. But it is not the hindsight of a fool; it
is the foresight of the reasonable man which alone can determine responsibility. The Polemis
rule by substituting “direct” to “reasonably foreseeable” consequence leads to a conclusion
equally illogical and unjust.”14

Referring to the Polemis case, their Lordships said15 : “Enough has been said to show that the
authority of polemis has been severely shaken, though lip service has from time to time has been
paid to it. In their Lordship’s opinion, it should no longer be regarded as good law. It is not
probable that many cases will for that reason have a different result, though it is hoped that the
law will be thereby simplified, and that, in some cases at least, palpable injustice will be avoided.
For it does not seem 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 consequences, however unforeseeable and however grave, so long as they
can be said to be “direct”. It is a principle of civil liability, subject only to qualifications which
have no present relevance, that a man must be considered to be responsible for the probable
consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore
that civilized order requires the observance of a minimum standard of behavior….it is asked why
man should be responsible for the natural or necessary or probable consequences of his act (or
any other similar description of them) the answer is that it is not because they are natural or
necessary or probable, but because, since they have this quality, it is judged by the standard of
the reasonable man that he ought to have foreseen them…if some limitation must be imposed
upon the consequences for which the negligent actor is to be held responsible and all are agreed
that some limitation there must be-why should that test-(reasonable foreseeability be rejected
14
(1961) AC 388, at 424 : (1961) 1 All E.R. 404, at 414.
15
(1961) 1 All. E.R. 404 at 413 : (1961) A.C. 388, at 422,423.
which, since he is judged by what the reasonable man ought to foresee, corresponds with the
common conscience of mankind, and a test (the “direct” consequences) be substituted which
leads to nowhere but the never ending and insoluble problems of causation.”

Although the Wagon Mound, being a decision of the Privy Council, is not itself applicable in
England and has only a persuasive value but the same appears to have been considered good law
by the House of Lords.16 The court of Appeal17 have expressly stated that it is Wagon Mound
and not the Re Polemis which is the governing authority.

CASE LAW ANALYSIS

In Scott v. Shepherd, A threw a lighted squib into a crowd, it fell upon X. X, in order to prevent
injury to himself threw it further, it fell upon Y and Y in his turn did the same thing and it then
fell on B, as a result of which B lost one of his eyes. A was held liable to B. His act was

16
Hughes v. Lord Advocate, (1963) A.C. 837 : (1963) All. E.R. 705.
17
Doughty v. Turner Manufacturing Co. Ltd., (1964) 1 Q.B. 518 : (1964) 1 E.R. 98
proximate cause of the damage even though his act was farthest from the damage in so far as the
acts of X and Y had intervened in between.

In Haynes v. Harwood, the defendant’s servants negligently left a horse van unattended in a
crowded street. The throwing of stones at the horses by a child, made them bolt and a policeman
was injured in an attempt to stop them with a view to rescuing the woman and children on the
road. One of the defences pleaded by the defendant was novus actus interveniens, or remoteness
of consequences, i.e., the mischief of the child was the proximate cause and the negligence of the
defendant’s servants was the remote cause. It was held that the defendant was liable even though
the horses had bolted when a child threw stones on them, because such a mischief on the part of
the children was anticipated. “It is not true to say that where the plaintiff has suffered damage
occasioned by a combination of the wrongful act of a defendant and some further conscious act
by an intervening person, that of itself prevents the court from coming to a conclusion in the
plaintiff’s favour if the accident was the natural and probable consequences of the wrongful act.”

In Smith v. London & South Western Railway Company., the railway company was
negligent in allowing a heap of trimmings of hedges and grass near a railway line during dry
weather. Spark from the railway engine set fire to the material. Due to high wind, the fire was
carried to the plaintiff’s cottage which was burnt. The defendants were held liable even though
they could not have foreseen the loss to cottage.

The above case was accepted with approval in Re Polemis and Furness, Withy & Co.

Ltd. In that case, the defendants chartered a ship. The cargo to be carried by them included a
quantity of Benzene and/or Petrol in tins. Due to leakage in those tins, some of their contents
collected in the hold of the ship. Owing to the negligence of the defendant’ servants, a plank fell
into the hold, a spark was caused and consequently the ship was totally destroyed by fire. The
owners of the ship were held entitled to recover the loss nearly Pounds 200,000, being the direct
consequence of the wrongful act through such a loss could not have been reasonably foreseen.
THE WAGON MOUND CASE:

The Wagon Mound, an oil burning vessel, was chartered by the appellants, Overseas Tankship
Ltd., and was taking fuel oil at Sydney port. At a distance of about 600 feet, the respondents,
Morts Dock Company, owned a wharf, where the repairs of a ship including some welding
operations were going on. Due to the negligence of appellants’ servants, a large quantity of oil
was split on the water. The oil which was spread over the water was carried to the respondent’s
wharf. About 60 hours thereafter, molten metal from the respondent’s wharf fell on floating
cotton waste, which ignited the fuel oil on the water and the fire caused great damage to the
wharf and equipment. It was also found that the appellants could not foresee that the oil so split
would catch fire.

The trial court applied the rule of directness and held the O.T. Ltd. Liable. The supreme Court of
the New South Wales also followed the Polemis rule and mentioning the unforeseeability of
damage by fire was no defence, held the O.T. Ltd. Liable. Manning, J., said : “Notwithstanding
that, if regard is to be had separately to each individual, occurrence in the chain of events that led
to this fire, each occurrence was improbable, and, in one sense, improbability was heaped upon
improbability. I cannot escape from the conclusion that if the ordinary man in the street had been
asked, as a matter of common sense, without any detailed analysis of the circumstances, to state
the cause of the fire at Morts’ Dock, he would unhesitatingly have assigned such cause to the
spillage of oil by the appellants’ employees.”

On appeal, the Privy Council held that Re Polemis was no more good law and reversed the
decision of the Supreme Court. Since a reasonable man could not foresee such injury, the
appellants were held not liable in negligence even though their servant’s negligence was the
direct cause of the damage. Referring to the above stated judgement of the Supreme Court and
the application of the Polemis rule there, the Privy Council said : “But with great respect to the
Full Court this is surely irrelevant, or, if it is relevant, only serves to show that Polemis rule
works in a very strange way. After the event a fool is wise. But it is not the hindsight of a fool; it
is the foresight of the reasonable man which alone can determine responsibility. The Polemis
rule by substituting “direct” to “reasonably foreseeable” consequence leads to a conclusion
equally illogical and unjust.”

WAGON MOUND followed in subsequent cases

In Hughes v. Lord Advocate,18 the post office employees opened a manhole for the purpose
of maintaining underground telephone equipment. The manhole was covered with a tent. One
evening, it was left surrounded by paraffin lamps but otherwise unguarded. A child of eight years
entered the tent and started playing with one of the lamps. The lamp fell into the manhole and
caused a violent explosion resulting in the fall of the boy also in the hole and severe injuries to
him from burns. It was foreseeable that a child could get burnt by tampering with the lamp, but
the explosion could not be foreseen. The House of Lords held that since the kind of damage was
foreseeable although the extent was not, the defendants were liable. Lord Reid said 19 : “The
appellant’s injuries were mainly caused by burns and it cannot be said that injuries from burns
were unforeseeable. As a warning to traffic, the workmen had set lighted red lamps round the
tent which covered the manhole, and if boys did enter the dark tent, it was very likely that they
would take one of these lamps with them. If the lamp fell and broke, it was not at all unlikely that
the boy would be burnt and the burns might well be serious. No doubt, it was not to be expected
that the injuries would be as serious as these which the appellant in fact sustained. But the
defendant is liable, although the damage may be a good deal greater in extent than was
foreseeable.”

The test of reasonable foresight as stated in the Wagon Mound case was also applied in

Doughty v. Turner Manufacturing Co. Ltd. The plaintiff was employed by the
defendants. Some other workmen of the defendants let an asbestos cement cover slip into a
cauldron of hot molten liquid. It resulted in an explosion and the liquid thereby erupted, causing
18
(1963) A.C. 837; (1963) 1 All. E.R. 705; (1962) 3 W.L.R. 779.
19
(1893) A.C. 837, at 845.
injuries to the plaintiff, who was standing nearby. The cover had been purchased from reputed
manufacturers and nobody could foresee that any serious consequences could follow by the
falling of the cover into the cauldron. Held, that the damage resulting from the explosion was not
of the kind as could reasonably have been foreseen, and, therefore, the defendants were not
liable.

In Shaikh Gafoor v. State of Maharashtra,20 the plaintiff could not cultivate his land
due to accumulation of water, released from excavation and construction of canal by the State in
the vicinity of agricultural land of the plaintiff. The water percolating to the suit land, caused
damage to the crops. The plaintiff produced 7*12 extract, showing that crops like bajra,
sunflower and cotton were grown on the said land. Taking judicial notice of the fact that in the
region in question, ordinarily two crops were raised by the agriculturists,i.e., autumunal crop and
vernal crop and considering all the facts as also giving some discount for estimation of yield per
acre, the Bombay High Court held the plaintiff entitled to damages at the rate of Rs. 40,000/- per
year in respect of 5 acres of land found to have remained uncultivated, at the rate of Rs. 8000/-
per acre.

CONCLUSION & SUGGESTION

The Law cannot take account of everything that follows a wrongful act; it regards some
subsequent matters as outside the scope of its selection, because it were infinite for the law to
judge the causes of causes, or consequences of consequences. In the varied web of affairs, the
law must abstract some consequences as relevant, not perhaps on ground of pure logic but simply
for practical reasons.

20
AIR 2008 (NOC) 1637 (Bom.).
Liability should be imposed only for those consequences which one could foresee, for whatever
could not have been foreseen is too remote a consequence of one’s wrongful act. The liability of
the defendant is only for those consequences which could have been foreseen by a reasonable
man placed in the circumstances of the wrongdoer. According to this test, if I commit a wrong, I
will be liable only for those consequences which I could foresee, for whatever could not have
been foreseen is too remote a consequence of my wrongful act.

To determine whether an act is negligent, it is relevant 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 is in fact causes is not the exact
kind of damage one would except 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 in the present case, it was negligent in
discharging cargo to knock down the planks of the temporary staging, for they might easily cause
some damage either to the workmen, or cargo, or the ship. The fact that they did directly produce
an unexpected result, spark in an atmosphere of petrol vapour which caused a fire, does not
relieve the person who was negligent from the damage which is negligent act directly caused.

BIBLIOGRAPHY
 LAW OF TORTS BY DR. R.K.BANGIA

 www.lawteacher.net › Free Law Essays › Tort Law

 William R Buckley and Cathy J Orkent - Torts and Personal Injury Law
 www.legalservicesindia.com/....html