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226

NEGLIGENCE: CAUSATION AND CONTR1BUTORY NEGLIGENCE

Two days later the oil caught fire and extensive damage was done to M.D. Ltd's wharf.

6.15 Two findings of fact are important: (1) It was unforeseeable that fuel oil spread on water and would catch fire^{1 2 3 4} (2) some foreseeable damage was caused to M.D. Ltd's wharf from the spillage of the oil in that the oil had got on to the slipways and interfered with their use. The case was dealt with, therefore, on the footing that there was a breach of duty and direct damage, but that the damage caused was unforeseeable. The Privy Coun-cil, reversing the decision below in favour of the claimants, held that Rc Polemis should no longer be regarded as good law. "It is the foresight of the reasonable man which alone can determine responsibility. The Polemis rule by substituting 'direct' for 'reasonably foreseeable’ consequence leads to a conclusion eąually illogical and unjust."⁵

Notwithstanding the fact that Re Polemis was a decision of the Court of Appeal, the technical point of precedent was side-stepped or ignored and The Wagon Mound was immediately accepted as the law in England. However, whether this madę very much difference to the results of cases is debatable in view of the subsequent decisions. The essence of The Wagon Mound is that in negligence foreseeability is the criterion not only for the existence of a duty of care but also for remoteness of damage, and the Privy Council clearly attached importance to the supposed illogicality of using different tests at different stages of the inquiry in any given case:

"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 which, sińce he is judged by what the reasonable man ought to foresee, corresponds with com-mon conscience of mankind, and a test (the 'direct' consequence) be substituted which leads to nowhere but the never-ending and insolu-ble problems of causation."⁶

It might have been thought from this that the effect of The Wagon Mound was restricted to actions for negligence, or at least to cases in which foreseeability of damage is relevant to liability. In The Wagon Mound (No. 2)7 however, the Privy Council held that foreseeability is the test for remoteness of damage in cases of nuisance also, and, though they pointed out that liability in many cases of nuisance depends on fault and thus on foreseeability, they stated that the same test must apply even

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227

1.EGAL CAUSATION: REMOTENESS OE DAMAGE

where this is not so.^H If the "foresight of the reasonable man'' is to be used _aS a test of remoteness in torts of strict liability some adjustment will have to be madę. If a person may be liable notwithstanding that he neither could nor should have foreseen any harmful consequences of his act whatever, it is meaningless to say that the extent of his liability is limited to what he ought reasonably to have foreseen. In Galashiels Gns Co. Ltd v. Q'Donnell,⁹ for example, the defendants had a lift at their gas works and the lift, so far as anyone could discover, was in perfect condition both before and after the accident. Nevertheless, on a single isolated occasion something went wrong for reasons no one could ascertain and as a result the claimant's husband was killed. The defendants were held liable for breach of an absolute statutory duty, but how can it realistically be said that they could have foreseen the death of the deceased? What can be said—and this seems now to be the meaning of "reasonably foreseeable" in such cases—is that a reasonable man, told of the way in which the lift went wrong, would not be surprised to leam that the deceased had been killed.¹⁰

However, the test of reasonable foreseeability is not a universal one: it 6.16 is a rational policy to impose a morę extensive liability upon an inten-tional wrongdoer for reasons of both deterrence and morality¹¹ and so a fraudster will be held liable for direct consequences of his wrong even though they are unforeseeable.¹²

Application of foreseeability

The test of foreseeability involves the assessment of facts against a legał 6.17 standard and, because all the facts of the particular case have to be brought into account it is generally undesirable to engage in extensive dtation of authority¹³ Nevertheless, the student will want to be given some idea of how in practice judges approach these matters. The test was from the beginning heavily qualified by the fact that neither the precise extent of the damage nor the precise manner of its infliction need be foreseeable. As Lord Denning M.R. put it,

1

In Owrseas Tankship (LI K.) Ud v. Miller Staimsliip Co. Pty Ud (The Wagon Moundi (No. 2) (1967) A.C 617,

2

an action by Ihe owners of the Corrimal for damage caused to their ship by the same fire, the Priw

3

Council, on some what different evidence. held that the damage was foreseeable.

4

M 1961| A.C. at 424.

5

“119611 A.C at 423.

6

⁷11%7| 1 A-C 617.