Remoteness of Damage (A Limitation to Action for Negligence)

No person can be made liable ad infinitum for all the consequences, which follow his wrongful act. A person is held responsible in law only for consequences, which are not remote. The defendant is liable for the wrongful act only if it is the proximate, direct or immediate cause of injury and not merely a causa sine qua non (cause without any other cause).

It is not necessary that the event, which is immediately connected with the consequences. is proximate and that farther from it is too remote. In Scott v Shepherd 17 W.BI. 892. 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 result of which B lost one of his eyes. A was held liable to B. His act was proximate cause of damage even though his act was farthest from the damage in so far as the acts of X and Y had intervened in between.

Tests of Remoteness of Damage

There are two tests to determine whether the damage is remote or not. It is the test of reasonable foresight that now holds the field.

(1) Test of reasonable foresight- According to this test if a reasonable man could have foreseen the consequences of a wrongful act they are not too remote. The test of reasonable foresight is also called as the test of probability (a man is responsible for the probable consequences of his act).

(2) Test of directness- According to this test 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 follow a wrongful act are not too remote.

In Smith v London & South Western Railway Co. (1870) L.R. 6, C.P. 14.) the  railway company was negligent in allowing a heap of trimmings of hedges and grass near a railway line. 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 of the cottage.

In Re Polemis and Furness, Withy & Co. (1921) 3 K.B. 560, the defendants chartered a ship. The cargo to be carried by them included a quantity of Benzene and Petrol in tins. Due to leakage in those tins some of their contents collected in the hold of the ship. Owning to the negligence of the defendant’s servants a plank fell into the hold, a spark was caused and consequently the ship was totally destroyed by fire. It was held that defendants were liable for all the direct consequences of their servant’s negligent act including destruction of the ship even though consequences could not have been reasonably anticipated.

In Liesbosch Dredger v Edison (1933) A.C. 448, the ‘direct cause’ was interpreted which had the effect of limiting the scope of Re Polemis. In this case, owing to the negligence of Edison, the dredger Liesbosch was sunk. On account of financial difficulties, the plaintiffs (owners of Liesbosch) could not replace the dredger and they had to hire another one at a very high rent for the performance of a contract with a third party.. The plaintiffs therefore suffered a very heavy loss. They sued the owners of Edison for negligence and their claim for compensation included (i) the price of the dredger, and (ii) the hire charges which they had to pay from the date of the sinking to the date they could actually purchase a new dredger. The court accepted their claim under the first head, but not the second. The reason why the plaintiffs couldn’t purchase a new dredger was their poverty and thus additional less suffered by them was too remote a consequence of the defendant’s act.

The test of directness was rejected in the famous ‘Wagon Mound’ case, wherein held that the test of reasonable foresight is the better test. In Overseas Tankship (UK.) Ltd v Morns Dock & Engg. Co. Ltd (1961) A.C. 388. during bunkering operations in Sydney harbour, a lager quantity of oil was negligently allowed to spill on the water from the Wagon Mound, a ship under the defendant\’s control as charterers. The oil spread to nearby plaintiffs wharf where another ship was being repaired. About 60 hours thereafter molten metal from the plaintiff’s wharf felt on the floating cotton waste, which ignited the fuel oil on the water and the tire caused great damage to the wharf and the equipment.

Held that since a reasonable man could not foresee such injury the appellants (defendants) were not liable in negligence even though their servant’s negligence was the direct cause of the damage. Referring to the Polemis case, their Lordships said: “Polemis rule does not seem consonant with current ideas of justice or morality. If some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible, why should that test (reasonable foreseeability) he rejected which corresponds with the common conscience of mankind and a test (the ‘direct’ consequences) be substituted which creates insoluble problems of causation.”

The decision in this case has been considered good law in subsequent cases. In Hughes v Lord Advocate (1963) All ER 705, the post office employees opened a manhole for the purpose of maintaining underground telephone equipments. In the evening they left it under the cover of a tent but unattended, though surrounded by paraffin lamps to warn the public. An eight year old child entered the tent and started playing with one of the lamps, which fell into the manhole when the boy stumbled over it. A violent explosion followed and the boy himself fell into the hole and sustained serious injuries. It was foreseeable that tampering with the lamp could burn a child, but the explosion could not be foreseen.

Held that since the kind of damage was foreseeable although the extent was not, the defendants were liable, i.e. the boy was entitled to recover damages. This case illustrated that the test of foreseeability is satisfied if the damage suffered is similar in kind (foreseeable and actual injuries were of the same kind) though different in degree and that the precise sequence of events or the extent of the damage need not have been foreseeable: but if the damage suffered is altogether different in kind, the test of foreseeability is not satisfied, and the plaintiff cannot recover.

In S.C.M. (U.K.) Ltd. v.  W J Whittall & Sons (1971) 1 QB 337. where due to the defendant’s negligence an electric cable supplying power to the plaintiff’s factory was damaged resulting in loss of production to the factory, held that the defendants could foresee the consequences of their act and thus liable. In Mrs Lampert, v Eastern National Omnibus Co. (1954) 1 WI.R 1047, Mrs. Lampert had strained relations with her husband. One day in an accident due to the negligence of the defendants, she suffered severe disfigurement. Sometime afterwards her husband deserted her. She wanted to claim damages for the loss of company of her husband. It was found that the real cause of the desertion was not her disfigurement but the estranged relation between her and her husband, which existed even before the accident. Held that the defendant’s act was not the proximate cause of ‘loss of company’ and damages with regard to the same were not true. But she can recover damages for her disfigurement.

Intended Consequences

Intended consequences are not subject to the doctrine of remoteness. Such consequences are never too remote. An intentional wrongdoer’s liability will cover all consequences whether foreseeable or not, which result from his wrongful act. This is not affected by the Wagon Mound case. Scott v Shepherd (above) illustrates the extent of intentional tort, the tort-feasor is liable for all actual damage, whether foreseeable or not, which directly flows from the fraudulent act. 

When the Damages Excluded as too Remote

Two such situations are: contributory negligence; and, the wrongful act of an independent third party.

The principle underlying the maxim novus actus interveniens (new acts intervening) is that there are circumstances when an intervening act of third party breaks the chain of causation between the wrongful act and the damage sustained by the plaintiff. However, damage is recoverable if, despite intervening independent causes, the defendant ought reasonably to have anticipated such interventions and to have foreseen that, it they occurred, the result would be that his wrongful act would lead to mischief.

In Haynes v Harwood (1935) 1 K. B. 146, the defendant’s servants negligently left a horse van unattended in crowded street. By the throwing of stones at the horses by a child, they ran away and injured a person. The defendant pleaded the defence of novus acres interveniens. Held that the defendant was liable. Because such a mischief on the part of the children was anticipated. The case also illustrates that children generally do not constitute novus actus when their action is the result of their mischievous tendencies.

Rescue cases illustrate that a reasonable act done by a person, in consequence of the wrongful act of the defendant, which results in further damage does not constitute novus actus breaking the chain of causation.

Where A left a loaded gun negligently and his son found it and pointed it in play at P who was injured by the going off, held that A is liable to P [Sullivan v Creed (1904) 2 IR 317]. However, where A sustained serious injuries in a train accident and also lost the money, which he was carrying, it was held that the loss of currency notes couldn’t be directly connected to the accident. The railway company wouldn’t be liable for loss resulting from the wrongful act (e.g. theft) of a third party. The maxim novus actus interveniens applies (Secy. of Stale v Gokal Chand AIR 1925 lah 636).