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Remoteness of Damages (Foreseeability damages not too remote (Scott v…
Remoteness of Damages
Intended
Intended damages are never too remote
D must answer for all consequences
Ex: person throws lighted cracker into crowd of people as a joke — liable to persons injured by explosion coz intended that cracker should explode in crowd.
Foreseeability damages not too remote
reasonable man would have anticipated damage
:warning: even if new act intervened between original wrongful act and the consequent damage
Scott v Shepherd —
person throws lighted cracker in to crowd and foresees that
another near whom it lights will throw it away and cause injury to 3rd person
:!: Damages are unintended
:!: Not foreseeable
:check:But directly traceable
Two Schools of thoughts
natural or foreseeable consequences school
Negligent person liable only for consequences of wrongful act
reasonably foreseen as natural and probable.
Foreseeability test (Remoteness Test)
to determine whether person is negligent or not
Wagon Mound No. 1
:
Overseas Tankship (UK) Ltd (D) v Morts Dock and Engineering Co Ltd (P)
Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. The crew had carelessly allowed furnace oil (also referred to as Bunker oil) to leak from their ship. The oil drifted under a wharf thickly coating the water and the shore where other ships were being repaired. Hot metal produced by welders using oxyacetylene torches on the respondent's timber wharf (Mort's Dock) at Sheerlegs Wharf fell on floating cotton waste which ignited the oil on the water. The wharf and ships moored there sustained substantial fire damage. In an action by Mort's Dock for damages for negligence it was found as a fact that the defendants did not know and could not reasonably have been expected to know that the oil was capable of being set alight when spread on water. The dock owners knew the oil was there, and continued to use welders.
The leading case on proximate cause was Re Polemis,[4] which held that a defendant can be deemed liable for all consequences flowing from his negligent conduct regardless of how unforeseeable such consequences are. As this case was binding in Australia, its rule was followed by the New South Wales Court of Appeal.[5] The defendant appealed to the Privy Council.
facts
i. oil split through negligence of D
ii. done foreseeable damage to P's wharf
iii. D didn't know or reasonably have known that it was capable of catching fire while on water.
iv. Fire although unforeseeable, direct consequence of D's.negligence
High court -
Re Polemis, : Liable for all the consequence acts (Favor of P)
Privy Council : Too Remote (Favor of D)
Reasonable Man's Test
Wagon Mound No 2:
Overseas Tankship (UK) Ltd v The Miller Steamship Co
Overseas Tankship chartered a freighter ship named the Wagon Mound which was taking on bunker oil at a dock. The engineers on the Wagon Mound were careless and a large quantity of oil overflowed onto the surface of the water. After several hours the oil drifted and was around two ships owned by the Miller Steamship Co that were being repaired nearby. Sparks from the welders caused the leaked oil to ignite destroying all three ships. At the trial in the Supreme Court of NSW, Walsh J found that (1) that the officers of the Wagon Mound would regard the oil as very difficult, but not impossible, to ignite on water (2) ignition of the oil on waters had very rarely happened, and (3) it was a possibility that would only eventuate in very exceptional circumstances. Walsh J held that Overseas Tankship were not liable for negligence, but that the large quantity of oil was a public nuisance and the Overseas Tankship were liable to pay damages for nuisance.[3] Overseas Tankship obtained leave to appeal directly to the Privy Council on the verdict of nuisance and the Miller Steamship Co obtained leave to appeal on the verdict of negligence.
The Privy Council upheld both the appeal and the cross-appeal. They held that it was not sufficient that the damage to by the Miller Steamship vessels was the direct result of the nuisance if that damage was unforeseeable. In relation to negligence the Privy Council held that a reasonable person in the position of the ship's engineer would have been aware of the risk of fire. Since the gravity of the potential damage from fire was so great there was no excuse for allowing the oil to be discharged even if the probability or risk of fire was low. A reasonable person, the Council held, would only neglect a risk of such a potentially great magnitude if he or she had a reason to do so, e.g. if it were cost prohibitive. Lord Reid said at 718-719,
" It follows that in their Lordships view the only question is whether a reasonable man, having the knowledge and experience to be expected of the chief engineer of the Wagon Mound, would have known that there was a real risk of the oil on the water catching fire in some way."
The words "real risk" are the requirement of remoteness of damage but the test of foreseeability does not depend upon the actual risk of occurrence. The test is really whether the engineer ought to have foreseen the outbreak of fire, i.e. the type of consequence ought to have been foreseen.
direct consequence school
D liable for all consequences flowing directly from wrongful act, irrespective of whether could have reasonably foreseen or not.
UNLESS chain of causation linking wrongful act to damage is broken by independent, intervening cause, to which rather than to the wrongful act
Re Polemis
(Re Polemis & Furness, Withy & Co Ltd )
The defendant stevedore's employees were loading cargo into a ship. An employee negligently caused a plank to fall into the ship's hold.. The plank caused a spark, which ignited some petrol vapour in the hold, causing an explosion that resulted in the ship becoming a total loss. The matter was taken to arbitration. Initial, D not liable from arbitration, then Privi Council held, D liable
Highly Disapproved: i.e. Wagon Mound 2