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230 NEGL1GENCE: CAUSATION AND CONTRIBUTORY NEGUGENCE

neglecting it".²⁶ Furthermore, it is elear that three other principles sur-vived The Wagon Mound: that the defendant is not relieved of liability because the damage is morę extensive that might have been foreseen²⁷-that foreseeability is not required of the pecuniary amount of the damage²”; and that the defendant takes the victim as he finds him, including weaknesses which exacerbate the damage in an unforeseeable way—the so-called egg-shell skuli rule.²⁹ The last principle in particular means that a defendant who can show an unforeseeable kind of damage may g_et little comfort from the principles of remoteness, as where a motorist wh₀ was responsible for a minor collision was held liable to the other driver for long-term unemployability caused by a psychiatrie condition which was dormant but which was revived by the accident.³⁰ As Lord Lloyd put it.

'The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff.... There is no justification for regarding physical and psychiatrie injury as different 'kinds' of injury. Once it is established that the defendant is under a duty of care to avoid causing personal injury to the plaintiff, it matters not whether the injury in fact sustained is physical, psychiatrie or both."^M

These words are, of course, spoken in context of the egg-shell skuli rule, or they would efface The Wagon Mound altogether but provided the accident occurs in a broadly foreseeable way unforeseeably serious conse-quences will commonly be attributable to some characteristic of the victim.

ń.19 Foreseeability is a relative, not an absolute, concept. In The Wagon Mound the Privy Council accepted and based its reasoning on the trial judge's finding that the defendant did not know and could not reasonably be expected to have known that fumace oil was capable of being set afire when spread on water. In The Wagon Mound (No. 2), however, somewhat different evidence was presented³² and in the Privy Council

^ Czanukmc UJ v. Koufos (l%9| l A.C 350 at 385. per Lord Reid (emphasis added). See also ibid., at 411. 422. In Emeh v. Ktnisington and Chelsea mul Wesłmitisler A.HA. (198511012 congenital abnormality (a ri-k of 0.5 to 0.25%) was hołd not to bo too remote a consecjuence ot a negligent sterilisation. The loss »n Czarników UJ V. Koufos was of a profit on a sale. But what happens if, by bneach of contract, the defendant causes damage to the person or property of the claimant? According to Lord Denning M.R in Parzona (H.) ILirestockl UJ r. UttUy Inghiim & Ca UJ (19781 Q.B. 791 the test is then, notwithstanding Czanrikme UJ v. Koufos. the same is in tort Scarman and Orr L.JJ. thought that in contract. whether the loss was financial or physical. the test was whether the type of loss was within the presumed contemplation of the parties. Whether this view is reconcilable with Victorin LaunJry (Windsor i UJ '• Newman Industries UJ, (1949| 2 K B. 528 remains to be seen. In many cases the claimant will have concurrent actions in tort and contract and why Parsons was not also pleaded in tort is not very elear.

** See para. 6.27, belo w.

^ See para. 6.26, belo w.

** See para. 6.28, below.

^v Page v. Smith (19%J A.C. 155. See para. 5.46. above.

^ł| ibid., at 190.

See Lord Keid s explanation of this I1967J 1 A.C. 617 at 640-641, and Dias, (19671 C.LJ. at pp 63-65

rtie trial judge's finding to similar effect, not being a primary finding of fact but an inference from other findings, was rejected. There was, it was j,_eld, a real risk of fire such as would have been appreciated by a properly qualified and alert chief engineer and this, given the fact that there was no justification for discharging oil into Sydney Harbour in any case, was sufficient to fix liability on the defendants. In other words, the mere fact that the damage suffered was unlikely to occur does not relieve the defendant of liability if his conduct was unreasonable—a proposition very little different from that contained in Re Polemis itself. On the facts of that case, notwithstanding the arbitrator's finding that the spark which caused the explosion was not reasonably foreseeable, there was, surely, a "real risk" that the vapour in the hołd might be accidentally ignited and there was, of course, no justification for dropping the plank into the hołd.

Competing rules compared

It seems, therefore, that The Wagon Mound has madę little difference to 6.20 the law in terms of practical result, and, indeed, Viscount Simonds indi-cated that this would probably be so in The Wagon Mound itself.³³ That case, however, undoubtedly produced a change of principle and it is right, therefore, to conclude with some brief discussion of its merits as compared with those of Re Polemis. Much has been written on this subject but two points only can be considered here:

(1) Simplicity

The Privy Council laid much stress upon the difficulties of the direct- 6.21 ness test. But it is difficult to see how the foreseeability test is any easier.

Not only does the change from the one to the other raise the question of the meaning of "kind" of damage but it "gets rid of the difficulties of determining causal connection by substituting the difficulty of determin-ing the rangę and extent of foresight of the hypothetical reasonable man."³⁴ The fact is that the issue of remoteness of damage is not suscepti-ble to short cuts. 'There is no substitute for dealing with the particular facts, and considering all the factors that bear on them, interlocked as they must be. Theories... have not improved at all on the old words 'proximate' and 'remote' with the idea they convey of some reasonable connection between the original negligence and its consequences, between the harm threatened and the harm done".³⁵

Tl%l| A.C. At 422.

** Walker. "Remoteness of Damage and Re Polemis" 1961 S.1..T 37. "Prosser. "PaLsgraf Reeisiled" (1953) 52 Michigan LRev. 1 at 32.