Remoteness Of Damages in Law of Torts
Once the tortfeasor commits a wrong and once a damage is done, it is the
responsibility of the tortfeasor to compensate for the losses so acquired.
However, the question remains as to what extent can liabilities be imposed on
the wrongdoer. The wrong may happen to constitute to produce a single
consequence out of it or a series of consequences; whether damages may be
foreseeable and legit but also, remote and in some cases, too remote to be
Unlike the case in the 19th century where foresee ability test and directness
test were both simultaneously used to hold the defendant/ wrongdoer liable,
the foreseeability test is what is used in the contemporary legal system. As per
the former test, the wrongdoer was held liable only for the damages resulting
from the wrongful act which was foreseen by the wrongdoer however, in the latter
test the tortfeasor was held liable for all the damages or consequences that
resulted out of the wrongful act. For instance, the much celebrated UK
case Haynes v. Harwood, where the horse started running due to pelted stones by
some mischievous children and injured the police officer on duty.
The defendant's plea of Volenti Non-Fit Injuria as well as Novus Actus
Interveniens were both rejected by the King's Bench since it was foreseeable
that leaving a carriage of two horses unattended would induce similar damages.
It is however true that there does not exist any mathematical formula to
determine the liability of a tortfeasor in cases of series of consequences as a
result of a tort. The judges however, have used their discretion to decide on
such cases from time to time. In the process, a couple of important tests has
been devised which finds its place in the tort law, to determine the remoteness
of damages. Firstly the test of reasonable foresight which came through the case Rigby
v. Hewitt and secondly, the test of directness which flowed from the case Smith
v. London & South Western Railway Co.
According to the test of reasonable foresight, the tortfeasor is liable only
for those damages which are directly connected to the committed wrong and was
foreseeable at the time of commitment of such a wrong. However this theory was
rejected in the year 1921 in the case, Re an Arbitration between Polemis and
Furness, Withy and Co. where the defendant's servant while unloading flammable
cartridges of Petrol and Benzene knocked down the wooden plank from the basement
of the ship which resulted in a severe fire in the basement owing to the already
present vapours of petrol in the atmosphere.
The ship caught fire and as a result, was completely destroyed in that accident.
The defendant was held liable for all the damages so caused (including the ship
catching fire despite this being unforeseeable) and henceforth, came the test of
directness. The test of directness remained important for almost three decades
before it was called off after a decision by the Privy Council in Overseas
Tankship Ltd. v. Morts Dock and Engineering Co. or also known as the Wagon
Mound case no. 1.
The facts of the case was that the defendant chartered an oil tanker vessel and
in the same ship, the repairs of another ship was being carried out in the
wharf. Due to the negligence of the servants of the defendant, oil spills were
traced on the floor of the wharf which made the manager of the ship being
repaired to enquire if the fluid is non inflammatory. Having received the
assurance, the manager continued on with his welding works which later induced
fire, igniting cotton from the molten metal and causing terrible damage. The
Privy Council overruled the judgement in Re An Arbitration case to reinstate the
test of reasonable foresight in cases of remoteness of damages.
Ever since the overruling by the Privy Council, the test of reasonable
foresight has been applied in many cases thereafter such as Hughes vs Lord
Advocate, in which the employees of a post office kept a manhole opened and
went for the afternoon lunch. They had opened the manhole to maintain and repair
underground telephonic equipments and wires which was left unguarded and was
encountered by an eight year old child.
The child started playing with one of the lamps inside the manhole and
unintentionally overturned it which caused violent explosions inside the manhole
causing severe burns to the child. The court held that despite the extent of the
damages being unforeseeable, the damages were indeed foreseeable holding the
employees liable for the negligent act.
Another similar case where the test of reasonable foresight was used was Lampert
vs Eastern National Omnibus Co. where due to the negligent driving of the
defendants, a married woman was severely injured leading to the disfigurement.
Sometime later her husband divorced her which was initially believed to be the
reason for her disfigurement however, the discovery of the latter reason stated
that it was found to be toxicity in the relationship which had brewed over the
years. Applying the test of foreseeability, the defendants were held not liable.
The remoteness of damages and the tests for deciding such cases are now relied
upon the foreseeability test. In India too, the same test is used to decide
cases bringing multiple liabilities upon a person. The principle that the
Judiciary is in awe of upholding is 'In jure non remota causased proxima
spectatur' which means that 'the immediate effect of a wrong is what matters
in law and not the remote consequences'. With certain limitations, most of the
cases are decided upon the same test.
The limitations are firstly, the intentional consequences. The test of
foreseeability can be ignored in cases where the wrong was attempted with an ill
motive. As in, Scott v. Shepherd or 'The Squib Case', where the defendant had
thrown a lighted squib in a crowded market out of mischief and was passed on, by
a couple of vendors before it exploded in the hands of the plaintiff blinding
him in one eye. The defendants act was held to be causa causans and the defence
of novus actus interveniens was not entertained.
Similarly in the eggshell skull cases, the defence becomes invalid as in Smith
v. Leech Brain & Co. Ltd. where a burn injury on the lower lip caused
cancer resulting in the death of the plaintiff. The defence of eggshell skull
case was not entertained by the court holding the defendant guilty of the wrong.
And finally, the defence of novus actus interveniens also became invalid under
the foreseeability test. For an instance, the foreseeability test was given
precedence over the defence of novus actus interveniens in the case Blundell v.
Stephens where the plaintiff was sued for libel and had to compensate owing to
the negligent act of the defendant's (plaintiff's accountant) in reaching out to
the directors of the company the plaintiff had invested in.
The remoteness of damages are still very important in law of torts especially
where series of consequences take place post the wrong committed by the
defendant. The courts have very wisely applied the foreseeability test to
prevent the defendant compensate for multiple happenings arising out of a single
wrong. More importantly, the concept of remoteness of damages also gives
precedence to the primary consequence(s) of the wrong committed by the
tortfeasor and not for the aftermath of the same wrong.
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