Remoteness of Damage — Re Polemis vs Wagon Mound

A wrong gives rise to consequences, and the consequences themselves give rise to consequences. The cyclist who knocks down a pedestrian carrying a bomb cannot be made to answer for every burst building and every injured stranger that follows. The law has therefore had to draw a line, somewhere short of the infinite chain of cause and effect, beyond which the defendant ceases to be liable. That line is the doctrine of remoteness of damage. Two tests have competed for the line — the directness test of Re Polemis and Furness, Withy & Co. Ltd., [1921] 3 KB 560, and the reasonable-foreseeability test of Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd., [1961] AC 388, the celebrated Wagon Mound (No. 1). This chapter explains both, traces the refinements introduced by Hughes v. Lord Advocate, [1963] AC 837 and Doughty v. Turner Manufacturing Co., [1964] 1 QB 518, and follows the doctrine into Indian decisions such as Veeran v. Krishnamoorty, AIR 1966 Mad 282.

Remoteness sits in the larger Law of Torts notes immediately after the chapter on breach of duty and factual causation. The architecture of a negligence action is duty, breach, factual causation, then legal causation. Remoteness is the legal-causation question. It asks not whether the defendant in fact caused the harm, but whether the harm is the kind for which the law holds the defendant responsible.

The problem of remoteness

Lord Wright stated the underlying anxiety with characteristic restraint in Liesbosch Dredger v. S.S. Edison, [1933] AC 449: "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." The doctrinal task is to identify the test by which the law distinguishes consequences that are relevant from those that are too remote.

The earliest doctrine drew the line by reference to whether the immediate cause was the wrongdoer's act or the act of an intervening agency. Scott v. Shepherd, (1773) 2 Wm Bl 892 was decided on this footing: A threw a lighted squib into a crowded market; X, to save himself, threw it further; Y did the same; the squib then exploded near B and put out one of his eyes. A was held liable to B. Although the acts of X and Y had intervened, A's act was the proximate cause because the intermediate acts were taken in self-protection and were therefore foreseeable.

Two early twentieth-century cases consolidated this approach. In Haynes v. Harwood, [1935] 1 KB 146, 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; a policeman was injured in attempting to stop them and rescue the women and children on the road. The intervening act of the child was foreseeable; the policeman's intervention was the natural rescue; the chain of causation was unbroken; the defendant was liable. In Lynch v. Nurdin, (1841) 1 QB 29, a horse and cart were left unattended on a road; children began playing with them; one set the horse in motion; another, the plaintiff, was injured. Even though the act of the boy who set the horse in motion was a novus actus interveniens, the defendant's negligent act was held to be the proximate cause because such mischief by children could be anticipated.

The two tests

Modern doctrine offers two competing tests for the legal-causation line.

1. 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 a reasonable man would not have foreseen the consequences, they are too remote. This is the test associated with the formulations in Rigby v. Hewitt, (1850) 5 Ex 240 and Greenland v. Chaplin, (1850) 5 Ex 243. On this test, the defendant is liable only for those consequences that he, in the position of the reasonable man, could have foreseen.
2. The test of directness. The defendant is liable for all the direct consequences of his wrongful act, whether he could have foreseen them or not. This test, briefly accepted in the early-twentieth-century English law, treats foreseeability as relevant only to whether the act was negligent at all; once an act is found to be negligent in respect of some foreseeable damage, the defendant is liable for whatever damage in fact directly results, foreseeable or not.

The choice between the two tests is the subject of the leading cases that follow.

The directness test in Re Polemis

The high-water mark of the directness test is the Court of Appeal's decision in Re Polemis and Furness, Withy & Co. Ltd., [1921] 3 KB 560. The defendants chartered a ship. The cargo included tins of benzene and petrol. Some of the contents leaked and collected in the hold of the ship. Owing to the negligence of the defendants' servants in unloading, a plank fell into the hold, struck something that produced a spark, and ignited the petrol vapour. The ship was destroyed by fire. The arbitrators found that the falling of the plank was negligent because it could have caused some damage; they also found, as a fact, that the ignition of the petrol vapour and the consequent fire were not reasonably foreseeable. The owners' loss was assessed at nearly £200,000.

The Court of Appeal held the charterers liable in full. Scrutton, L.J. supplied the reasoning: "Once the act is negligent, the fact that its exact operation was not foreseen is immaterial...the fact that they did directly produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does not relieve the person who was negligent from the damage which his negligent act directly caused." Foreseeability was relevant only to whether the act was negligent in the first place; once that hurdle was crossed, all direct consequences followed.

The directness test had support in the older authority — see also the chapter on the essentials of tort for the upstream wrongful-act enquiry — of Smith v. London & South Western Railway Co., (1870) LR 6 CP 14, where a railway company was found negligent in allowing a heap of trimmings of hedges and grass to accumulate near a railway line in dry weather; sparks from a passing engine ignited the trimmings; high winds carried the fire to the plaintiff's cottage about two hundred yards away, which was burnt. The defendants were held liable even though they could not have foreseen the loss to the cottage.

The retreat in Liesbosch Dredger

The full force of Re Polemis was checked in Liesbosch Dredger v. S.S. Edison, [1933] AC 449. Owing to the negligence of the defendants, the dredger Liesbosch was sunk. The owners required it for the performance of a contract with a third party but, being too poor to purchase a replacement outright, they hired one at an exorbitant rate. They claimed the price of the dredger and the hire charges they had incurred while waiting to purchase a replacement. The House of Lords allowed the price of a comparable dredger and the hire charges for the period that would reasonably have been required to procure a replacement; it disallowed the additional loss caused by the plaintiff's poverty as too remote — an extraneous cause not within the defendant's contemplation. The decision foreshadowed the wholesale departure from the directness test that came thirty years later.

The Wagon Mound and the foreseeability test

The directness test was rejected by the Privy Council in Overseas Tankship (UK) Ltd. v. Morts Dock & Engineering Co. Ltd., [1961] AC 388 — the Wagon Mound (No. 1). The Wagon Mound, an oil-burning vessel chartered by the appellants, was taking on fuel oil at Sydney harbour. Due to the negligence of the appellants' servants, a large quantity of oil was spilt onto the water. The oil was carried by wind and tide to the respondent's wharf, about six hundred feet away, where the repair of a ship including welding operations was in progress. About sixty hours after the spill, molten metal from the wharf fell on a piece of floating cotton waste, which ignited the oil; the fire caused great damage to the wharf and equipment. It was found, as a fact, that the appellants could not have foreseen that the spilt oil would catch fire on water — the prevailing scientific understanding was that fuel oil on water did not ignite at ordinary ambient temperatures.

The trial court and the Supreme Court of New South Wales applied Re Polemis and held the charterers liable. The Privy Council reversed. Re Polemis was no longer good law. The test of remoteness was reasonable foreseeability, not directness. Viscount Simonds:

The Privy Council added that the choice of foreseeability as the test "corresponds with the common conscience of mankind," while the directness test "leads to nowhere but the never-ending and insoluble problems of causation." The case sounds the death of Re Polemis as a working test, although as a matter of strict authority a decision of the Privy Council does not bind English courts. The cognate analysis of foreseeability at the duty stage is treated alongside the mental elements in tort. The English courts have nonetheless treated Wagon Mound, not Polemis, as the governing authority — the Court of Appeal in Doughty v. Turner Manufacturing Co. Ltd., [1964] 1 QB 518 said so expressly.

Hughes v. Lord Advocate — kind of damage, not extent

The reasonable-foreseeability test was refined in Hughes v. Lord Advocate, [1963] AC 837, the leading post-Wagon Mound House of Lords case. Post Office employees opened a manhole on an Edinburgh pavement to maintain underground telephone equipment. The manhole was covered with a tent; in the evening it was left surrounded by paraffin lamps but otherwise unguarded. A child of eight entered the tent and started playing with one of the lamps. The lamp fell into the manhole; the paraffin vaporised; the vapour exploded; the boy fell into the manhole; he sustained severe burns. It was foreseeable that a child might be burnt by tampering with the lamp; the explosion that in fact happened was not foreseeable. The defendants pleaded Wagon Mound: the type of injury was foreseeable but the way in which it occurred and its full extent were not.

The House of Lords rejected the defence. Lord Reid drew the now-canonical distinction between the kind of damage and its extent or precise sequence — a distinction whose practical bite is felt across joint and several tortfeasor problems — "the appellant's injuries were mainly caused by burns, and it cannot be said that injuries from burns were unforeseeable." The defendant is liable if the kind of damage that occurred was foreseeable, even though the precise mechanism by which it occurred and the extent of the damage were not. The principle that the wrongdoer takes his victim and the consequences within the foreseeable kind is part of the modern Wagon Mound jurisprudence.

Doughty v. Turner — the limit of Hughes

The Hughes refinement does not stretch indefinitely. In Doughty v. Turner Manufacturing Co. Ltd., [1964] 1 QB 518, the Court of Appeal applied Wagon Mound to defeat a claim. The plaintiff was an employee of the defendants. Other workmen of the defendants let an asbestos-cement cover slip into a cauldron of molten liquid. It was foreseeable that the splash would cause some scalding, but no scalding occurred. Instead, an unforeseeable chemical reaction between the asbestos cover and the molten liquid produced an explosion, and the consequent eruption of the liquid injured the plaintiff who was standing nearby. The asbestos cover had been bought from reputable manufacturers; the chemical reaction could not have been foreseen. The Court of Appeal held that the damage in fact suffered — by an unforeseeable explosion, not by the foreseeable splash — was not of the kind that was foreseeable, and was therefore too remote. The case marks the boundary of Hughes: the kind-of-damage rule does not save a plaintiff whose injury arose by an entirely different mechanism that had no foreseeable analogue. The boundary is enforced more strictly where the defendant is a master vicariously liable for the servant's act.

The thin-skull rule and pre-existing condition

Wagon Mound and Hughes do not displace the older common-law rule that the defendant must take his victim as he finds him. Smith v. Leech Brain & Co. Ltd., [1962] 2 QB 405 supplied the formulation. A workman was burned on the lip by a splash of molten metal. The burn promoted a cancer to which he was already pre-disposed; he died three years later. The defendants pleaded Wagon Mound — the cancer and the death were not foreseeable consequences of the burn. The defence failed. Lord Parker, C.J. said: "the test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these defendants could reasonably foresee the type of injury he suffered, namely the burn." Once the kind of injury (the burn) is foreseeable, the defendant is liable for its full consequences as they unfold in the actual victim, however unusual the victim's susceptibility.

The thin-skull rule operates within the kind-of-damage framework. The kind of injury must be foreseeable; the extent of the injury, given the plaintiff's idiosyncratic constitution, is the defendant's burden. The doctrine extends to economic susceptibility only with caution: Liesbosch Dredger shows that the plaintiff's poverty was treated as too remote a cause of additional loss, although later authority has eroded the strict reading of that case.

Novus actus interveniens

An intervening act may break the chain of causation between the defendant's breach and the plaintiff's loss. Three propositions delimit the doctrine:

1. Foreseeable intervention. An intervention that is foreseeable does not break the chain. Haynes v. Harwood (rescue by policeman) and Lynch v. Nurdin (mischievous interference by children) are the textbook illustrations.
2. Voluntary, deliberate, independent intervention. A voluntary, deliberate, independent intervention by a third party may break the chain. The intervention must be such that the wrongdoer can fairly be said to have lost control of the consequences.
3. Plaintiff's own intervention. The plaintiff's own intervening act may break the chain where the plaintiff acts unreasonably in response to the defendant's wrong. The cognate doctrine is treated in the chapter on contributory negligence and the last-opportunity rule, which now operates by way of apportionment rather than a complete bar.

Indian application of Wagon Mound

Indian courts have applied the Wagon Mound foreseeability test consistently. In Veeran v. Krishnamoorty, AIR 1966 Mad 282, a six-year-old boy was knocked down by a lorry while attempting to cross a road on which other boys had already crossed and others were waiting. The driver could see them from seventy-five to a hundred yards away. The Madras High Court held the driver liable on the foreseeability test — the kind of damage (injury to a child crossing the road) was foreseeable from a distance at which the driver could have stopped or slowed down to avoid the accident.

Two further illustrations involve the operation of the foreseeability test in Indian fact-patterns. In S. Dhanaveni v. State of Tamil Nadu, AIR 1997 Mad 257, a person who fell into a pit filled with rain water caught hold of a nearby electric pole; due to a leakage of electricity in the pole, he was electrocuted. The respondent maintaining the pole could foresee that a person on a public way might come into contact with it; the kind of damage was foreseeable; liability followed. In T.G. Thayumanavar v. Secretary, P.W.D., AIR 2002 Mad 386, an overhead electric wire snapped and fell on a cyclist passing under it, who died of electrocution. The kind of damage was foreseeable; the snapping of the wire was the consequence of the negligent maintenance; the Electricity Board was liable.

Remoteness and other doctrines

Remoteness is part of a larger architecture of attribution. It works alongside, but is distinct from, the doctrines treated elsewhere in these notes. The chapter on the neighbour principle and the Caparo three-stage test establishes whom the defendant must keep in contemplation; the chapter on the standard of care and the but-for test establishes whether the defendant fell short of the standard and whether the breach in fact caused the loss; remoteness then asks whether the loss is the kind for which the law makes the defendant answer. The chapter on strict liability under Rylands v. Fletcher sets out the parallel rule that the foreseeability question is treated differently in cases of escape of dangerous things from non-natural use of land — the kind of damage is the central enquiry, whereas the foreseeability of the precise mechanism is irrelevant.

Damages and remoteness

Once an item of damage is held to be not too remote, the next question is its quantification. The chapter on general, special, nominal and exemplary damages takes the analysis through to assessment. The two enquiries are kept separate as a matter of principle — remoteness is about whether a head of loss is recoverable in principle; quantification is about how much is recovered. The Liesbosch illustration on the plaintiff's poverty operates at the remoteness stage, not the quantum stage.

Exam angle and common pitfalls

Three pitfalls recur in objective papers. First, candidates state Re Polemis as the modern law; it is not. Wagon Mound (No. 1) is the modern law, and Re Polemis has been treated as overruled in this respect since 1961. Second, candidates treat Hughes v. Lord Advocate as supporting the directness test; it does not. Hughes is a Wagon Mound case — it holds only that the kind of damage need be foreseeable, not the precise mechanism or the full extent. Third, candidates conflate remoteness with the thin-skull rule; the thin-skull rule operates within Wagon Mound, not against it. The kind of injury must be foreseeable; the unusual susceptibility of the victim is the defendant's risk. The disciplined sequence in any negligence problem is: duty, breach, factual causation, remoteness (legal causation), damage. Ground each step on the appropriate authority and the analysis writes itself.