According to the doctrine of Remoteness of Damages, damages are said to be too remote, where the causal connection between it and the defendant’s act is regarded by the law as not sufficiently direct to create responsibility. It is also known as the doctrine of Natural and Probable Consequence. This doctrine is also expressed by the maxim, “In jure non-remota causa sed proxima spectatur” (in law, the immediate, not the remote, cause of any event is to be considered). Damage must be the direct and natural result of the defendant’s Act. A man is presumed to intend the natural but not the remote consequences of his act. Damage is said to be too remote when, although arising out of the cause of action, it does not so immediately and necessarily flow from it, or which could not have reasonably been foreseen, that the wrongdoer would be made responsible for it. A man is not liable for all the consequences of his wrongful act or default. Liability must be founded on act which is the immediate or direct cause of the harm and Liability must be founded on act which is the immediate or direct cause of the harm and injury which is complained of. Where the causal connection between the wrongful act and injury is not sufficiently direct, there is no liability. The rule of law is, that the wrongful act, to render the defendant liable, must be the “causa causans” or the proximate cause of the injury and not merely a “causa sine qua non“.
In the case of Municipal Board Kheri v.Ram Bharosey, where the board issued a licence to Teja Sing to run a flour mill adjacent to the house of the plaintiff. Although the granting of licence was against the rules. Due to the vibrations produced by the mill the plaintiff’s house was damaged. In a suit against the Board for damages, the Court held that the damage to the house was not the direct result of the unlawful act of the Board in granting the licence so the Board was not liable for the damage.
In the following cases damage will be considered as too remote:
(1) Where the defendant’s act is not the ‘direct cause’ of the damage sustained by plaintiff. “Direct cause excludes what is indirect, conveys the essential distinction, which causa causans and causa sine qua non rather cumbrously indicate, and in consistent with the possibility of concurrence of more direct causes than one, operating at the same time and leading to a common result” – Per Banke, L.J. in Re Polemis and Furance, Withy and Co. An action for damages will not lie at the suit of a person who alleges that the has been damnified by false evidence given against him in criminal proceedings.
(2) When the damage is caused wholly or principally, by the act of the plaintiff himself, it cannot be regarded as the necessary result of the defendant’s misconduct. This is the rule in cases of contributory negligence.
(3) When the damage is the wrongful act of an independent third party, such as could not naturally be contemplated as likely to spring from the defendant’s conduct.
In Lampert v. Eastern National Omnibus Co. due to negligence of the defendants the plaintiff, a married woman was injured and that resulted in her severe disfigurement. Some time afterwards she was deserted by the 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 relation between the plaintiff and her husband which existed even before the accident and, therefore, the defendant was held not liable on the account.
Tests of Remoteness-of Damages
There are two competing tests of remoteness of damage:
(1) The test of direct consequences: According to this test “if a reasonable man would have foreseen any damage to the plaintiff as likely to result from his act, then he is liable for all the direct consequences of it suffered by the plaintiff, whether a reasonable man would have foreseen them or not”.
In Smith v. London and South Wester Railway, grass and hedges bordering the defendant’s railway line were cut by its servants and negligently left there. A spark, which was emanated from the passing railway engine, ignited the grass left there. The fire was carried away by wind 200 yards away to the plaintiff’s cottage which was as a consequence completely destroyed. The defendant company was held liable despite the fact that they could not have reasonably foreseen the consequences.
In the case of Re Polemis, Banks, L.J., remarked:”Given the breach of duty which constitutes the negligence, and given the damage as a direct result of negligence, the anticipations of the person whose negligent act has produced the damage appears to me to be irrelevant.”
Scrutton, L.J., stated the rule thus in Re Polemis case: “Once the act is negligent the fact that its operation was not foreseen or that the damage in fact, it 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 cause having no connection with negligent act, except that they could not avoid its results”.
True import of Re Polemis: Although this case is a landmark on the subject, it is very much misconstrued. The decision does not make a defendant liable ad infinitum; its effect is not to make a person responsible for all the consequences of his wrongful acts. Although the decision in Re Polemis case almost overruled the principle of law acted upon in Sharp v. Powell, on this point, yet it cannot be said that it has totally rejected the test of foreseeability. At the most, it purports to lay down that the test of foreseeability is to be applied in adjudging whether the defendant’s act was wrongful or not, and that it is established that the defendant’s act was wrongful, all that directly flows from that act was the direct damage of the defendant’s act. It does not go further than that.
There is no doubt that the scope of wrong-doers has been considerably widened by the rule in Re Polemis, but it is not absolute as to over-rule or destroy the effect of totally independent cause.
Consequently, in spite of this decision the question in some cases still remains, as to whether the defendant’s act was the direct cause of the damage complained of, that is, whether by the stretch of some reasonable and logical reasoning could it be considered as the direct result of the wrongful act, or a totally extrinsic cause has intervened which made the whole or a part of the loss as a remote damage,for there would be many cases in which an extraneous matter, totally unconnected with the act of the defendant which he would not have foreseen, might have become the cause of the damage to the plaintiff.
Liesbosch v. Edison– The Harbour Commissioner in Patras had engaged the plaintiff to do some work by means of dredger, and the plaintiff was required to finish the work within a stipulated period, failing which the contract was to be forfeited. As a consequence of negligence of the defendant, the dredger valued at about pound 6,000 was sunk, and on account of financial difficulties, the plaintiff could not replace the dredger and they had to take another one on a very high rent. Obviously, the plaintiff suffered a very heavy loss for his contract, and he claimed the entire damage from the defendant. It was held that the plaintiff could get only the market-price of the dredger, which it could
fetch on the date when it was sunk by the defendant and the cost of transporting a new dredger, and also the loss due to suspension of work in the meantime, together with interest to that sum; but an extra damage due to the inability of the plaintiff to purchase a new dredger was too remote. In this case Lord Wright observed: “That the case of ‘Re Polemis and furnace, Withy and Company’, was concerned with the immediate physical consequence of the negligent act and not with the co-operation of an extraneous matter, such as, the plaintiff’s want of means. Nor was the appellant’s financial disability to be compared with that physical delicacy or weakness which may aggravate the damage in the case of personal injuries or with the possibility that the injured man in such case may be either poor labourer or a highly paid officer or a man. The former class of circumstances goes to the extent of actual physical damage and the latter consideration goes to interference with profit-earning capacity, whereas the appellant’s want of means was extrinsic.” Thus, the Court restricted the operation of the test of directness of the consequences to the immediate physical consequences of the negligent act.
(2) The test of reasonable foreseeability: According to this test the essential point in determining liability for the consequences of a wrongful act of negligence is whether the damage is of such a kind as a reasonable man would have foreseen. The damages are too remote if a reasonable man would not have foreseen them.
Overseas Tank Ship (U.K.) Ltd. v. Morts Dock and engineering Co. Ltd. (The Wagon Mound case): Overseas Tankship Ltd.,the defendants in the present case were charterers by demise of the Wagon Mound an oil burning vessel which was moored at the C-Coil Co’s wharf in Sydney Harbour for the purpose of taking fuel oil. Owing to the negligence of the defendant company’s servants a large quantity of fire oil was split on to the water and after a few hours this had spread to Morts Dock and Engineering Co. Ltd.’s wharf about 650 ft., away where another ship, the Corimal was under repairs. Welding operations and inquired of the C-Oil Co., whether they might safely be continued. The result of this inquiry coupled with his own belief as to the non-inflammability of fuel oil in the open led him to give instructions for the welding operations to continue but with full care of safety. Two days later the oil caught fire and extensive damage was done to Mort Dock and Engineering Co. Ltd.’s Wharf. The court below reached the finding that it was unforeseeable that fuel cil spread on water would catch fire and secondly, some unforeseeable damage would be caused to the plaintiff’s Wharf
from the spillage of the oil in that the oil had got into the slipways and interfered with their use. The lower courts, following Re Polemis had got into the slipways and interfered with their use. The lower courts, following Re Polemis held that the defendants were liable, but the Privy Council reversed their decision and laid down that Re Polemis can no longer be regarded as good law. “It is the foresight of the reasonable man which alone can determine responsibility. The Re Polemis rule by substituting ‘direct’ for ‘reasonably foreseeable’ consequence leads to a conclusion equally illogical and unjust.” The essence of the decision in Wagon Mound case is that in cases of negligence foreseeability is the criterion not only for the existence of a duty of care but also for remoteness of damage.
The House of Lords in Hughes v. Lord Advocate, considered the Wagon Mound case as correctly laying down the law. The Appeal Court also in Doughty v. Turner Manufacturing Co. Ltd., refused to follow Re Polimis and applied the ruling in Wagon Mound.
The principle of foreseeability was again applied in Bradford v. Robinson Rentals Ltd. In this case the plaintiff was employed by the defendant as Radio Service Engineer. He used to travel all over the area. His normal duty involved frequent stops at customers’ house. In January, 1963 when the weather was likely to be very severe he was sent on a journey to change a colleague’s old van, involving a journey of about 500 miles. The plaintiff suggested that the journey was hazardous and ought not to be undertaken by him. As a result of cold on the journey and despite precautions taken by the plaintiff, he suffered injury by forestbite which was unusual in England. It was held that the plaintiff was called upon to undertake a task which was likely to expose him to cold and considerable fatigue. The risk involved could have been reasonabley foreseen and the injury which the plaintiff suffered was clearly foreseeable. Hence the defendants were held liable.
In Aloknath v. Guru Prasad, the test of foreseeability was considered and adopted. Here, in this case the plots of land of the plaintiff and the defendant were adjacent to each other. In the midst of monsoon the defendant dug a tank in the side of his plot without any embankment and put the earth on the sides. The earth spread over the plaintiff’s adjoining plot on account of heavy rains and caused damage to the plaintiff’s paddy crop. On an action by the plaintiff for damages, if was held that on the facts and circumstances of the case the defendant having not foreseen the consequences of this act, which was, in the course of normal use of his land, he was not liable.
In Veeran v. Krishna Morthy, where a School child was injured while crossing the road by the defendant’s bus. The defendants bus driver could not see the children of school standing on the side because of a bus. The Court considered the test of foreseeability and allowed damages.
Thus the rule of reasonable foresight as laid down in the Wagon Mound was accepted as decisive of English law.
Question:-
For measuring the remoteness of damages in any case, there are two tests adopted by the courts. What are these two tests? Explain your answer with the help of leading case law.