AN ANALYSIS OF REMOTENESS OF DAMAGE IN LAW OF TORT

This article was written by Tithi Neogi, a student or KIIT School of Law.

Remoteness of damage refers to the requirement that the damage as a consequence of a breach of duty must not be too remote from the initial act of negligence i.e. the damage arising from the risk involved in the negligent act must be foreseeable. There would be manifest injustice if a person were held responsible for all consequences of his act which in theory may be endless.[1]

Wagon Mound No. 1:

In Oversees Tankship v. Morts Dock & Engineering Co., Ltd.[2], (also known as Wagon Mound No. 1) the defendants negligently caused oil to spill from the Wagon Mound into the port of Sydney. The oil spread to the Plaintiff’s wharf where another ship was undergoing welding operations for repair, in the course of which a drop of molten metal fell on the oil setting it on fire and thus destroying the wharf. The trial Judge observed that the destruction of the wharf by fire was a direct but unforeseeable consequence. Hence the defendant was not held liable.

In The Wagon Mound, The Judicial Committee of the Privy Council expressed its disapproval of Re Polemis[3] and refused to follow it- “it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be direct.”

Foreseeability is a precondition of a finding of negligence– a person cannot be liable of failing to take precautions against an unforeseeable risk. Foreseeability is relevant to answering the question of whether the reasonable person would have taken any precautions at all against the risk and, hence whether the defendant can reasonably be expected to have taken any precautions.

In Oehler v. Davis[4], a dog collar manufacturer sold a defective dog collar. The collar broke, allowing the dog to escape its owner and bite someone. The court decided that the plaintiff had no cause of action against the dog collar manufacturer, because the harm was too remote.

In Lewis v. Kehoe[5] Academy, a day care center negligently allowed a child to consume poison. Relatives who had custody of the child lost custody because bruises formed by the poisoning were mistaken as marks of child abuse. The relatives sued the day care center alleging extreme mental anguish for the loss of companionship of the child. The relatives’ claim was dismissed as it was too remote.

In Hughes v. Lord Advocate[6], employees of the Post Office opened a manhole and left it unattended in the evening, covered by a canvas shelter and surrounded by paraffin lamps. The claimant, an eight year old boy, took one of the lamps into the shelter and was playing with it when he stumbled and it fell into the manhole. There was a violent explosion due to which the claimant himself fell into the manhole and sustained severe burn injuries. It was unforeseeable that the lamp would explode, but the Post Office men were in breach of duty because they left the manhole unattended and did not consider that little boys might play with the lamps and sustain burns. Hence the defendants were held liable.

In Jolley v. Sutton London Borough[7], The defendant, Sutton London Borough Council, negligently left a dangerously derelict boat abandoned on a beach that they owned, although they had placed a warning sign on the boat advising that it should not be touched. Whilst the warning notice stated that the owner of the boat had one week within which to move the boat or have it removed by the Council, the defendant did not follow up on this. Two teenage boys then tried to restore it, which included attempting to alter its position over several visits. The boat then fell on one of the boys, causing severe injuries, including paraplegia. The defendants were held liable, as children often found “unexpected ways of doing mischief to themselves and others.”[8]

Foreseeability is a relative, not an absolute, concept.[9] The test of foreseeability is satisfied if the damage suffered is similar in kind though different in degree and that the precise sequence of events or extent of the damage need not be foreseeable: but if the damage suffered is altogether different in kind, the test of foreseeability is not satisfied, and the plaintiff cannot recover.[10]

Extent of The Damage:

When the damage is foreseeable, the defendant cannot plead that the claimant was earning more than the average victim, or that the goods were exceptionally valuable. Damages are not restricted to the average loss of earnings or average value of goods in the circumstances, even supposing that such a sum is calculable. The extent and limitations are showcased in Liesbosch
(Dredger) v. Edison[11]. C’s dredger, the Liesbosch, was sunk owing to the negligence of D. C’s poverty prevented them from buying a replacement immediately, and so, to fulfil an existing contract, they had to hire another dredger at a rather high rate. The House of Lords refused to award compensation to the claimant because the cost of hiring a replacement dredger was considerably higher than the additional cost of buying a dredger. The additional loss was held to result from an extraneous cause- the claimant’s poverty.[12]

Scope of Liability Limited by Scope of Duty of Care:

The House of Lords has reiterated that in order to determine the scope of defendant’s liability for the damages arising out of his act, it is necessary to understand the nature of the loss against which the legal rule in question is designed.

In Kuwait Airways Corp v. Iraq Airways Co[13], Lord Hoffman said, “One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable, one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability.”[14] As per Lord Hobhouse, it is “the scope of the tort which determines the extent of the remedy to which the injured party is entitled.”[15]

Intended Consequences:

If there is mens rea on the part of the defendant or if he is an intentional tort- feasor, then no question of remoteness of damage arises out of the initial wrong. The liability of an intentional wrongdoer is not limited to the intended consequences and it will extend at least to such as are foreseeable.[16] In Scott v. Shepherd[17], when the defendant threw a squib into the crowd and it ultimately falls on the plaintiff and puts out his eye, the defendant was held liable to the plaintiff, although it was not his intention to put out his eye. The law insists rightly that fools and mischievous persons must be liable for consequences which common sense would unhesitatingly attribute to their wrongdoing.

Extensive causal liability may also be achieved indirectly by the doctrine of transferred intent, which arose from the tort of battery. One of the first cases in which this doctrine was applied was Talmage v. Smith[18], where defendant was held liable when he intended to hit A with a stick but instead struck B. Foreseeability is not a factor limiting this doctrine. This can be seen in Lambert v. Brewster[19], wherein the defendant fought the plaintiff’s father, not knowing they were being watched by the plaintiff, who subsequently suffered a miscarriage. The defendant was held liable, since he intended to cause battery to a third party, but in the process created emotional disturbance to the plaintiff and thus bore extended liability of having caused a miscarriage.

Extensive liability can be traced back to the historical background of intentional torts. Originally penal in character, some part of their punitive nature survived the transformation into civil actions.[20]

The Egg-Shell Skull Principle:

This principle embodies the statement that a defendant must take his victim as he finds him. It is no answer to the claim of the defendant that the plaintiff would have suffered less injury “if he had not unusually thin skull or an unusually weak heart.”[21] In Smith v. Leech Brain & Co Ltd, where the negligence of the defendants caused a burn on a workman’s lip, which promoted cancer in the site of the burn resulting in his death, the defendants were held liable, because but for the burn, the cancer might never have developed, though there was a pre-malignant condition.

Generally, the defendant owes a duty to guard only those of ordinary strength and fortitude, and where he cannot see any foreseeability of injury, no duty is owed. For example, if nervous shock is not a foreseeable result of any action, then a person having a nervous shock will not get a remedy. But once the duty is owed the defendant must take his victim as he finds him, so that if more extensive damage occurs due to some pre-existing circumstances, the defendant is fully liable.[22]

In Jenson v. Eveleth Taconite Co, the 8^th U.S. Circuit Court of Appeals held that the doctrine of the Eggshell Skull will apply even if plaintiffs’ fragile emotional psyches makes them predisposed to greater psychological harm from sexual harassment. The defendant, a mining company, had claimed that the emotional depravity of multiple plaintiffs was a result of a pre- existing condition. The evidence did not support the allegation. Once the facts of the case were determined, the court held that the defendant had to take its victims as they are, even if they have eggshell psyches.[23]

Intervening Acts or Events; Novus Actus Interveniens:

Damage suffered by the plaintiff after the chain of subsequent causes initiated by the wrongful act of the defendant gets broken is too remote and does not make the plaintiff entitled to an award of damages against the plaintiff. The chain of causation may break due to human conduct or natural event.

In Weld Blundell v. Stephens[24], the defendant had negligently leaked some documents to a third party, which contained libellous statements made by the claimant about the third party. The third party sued the claimant on libel and won. Later, the claimant sued the defendant, demanding recovery of damages. It was held that the claimant was not entitled to damages, because the libellous statements were intentional and had broken the chain of causation.

In Canadian Pacific Ry. Co. V. Kelvin Shipping Co. Ltd.[25], the respondent’s steamship was so badly damaged by the appellant’s steamship that it was decided to beach her in position 1. She then drifted into position 2 on the south bank along the fairway of the river. She then slipped into position 3, thus increasing the cost of salvage. The appellants accepted initial liability of the damage, but claimed that the damage had risen due to subsequent negligence on the part of the respondent. The point of issue was whether the respondents were negligent in not using the engine in position 1. On this point, Lord Haldane said (p. 370) “the burden of showing that the chain of causation started by the initial injury has been broken lies on the defenders. In order to discharge this burden they must prove that the breach in the chain was due to unwarrantable action, and not merely to action on an erroneous opinion by people who have bona fide made a mistake while trying to do their best, which is all that is shown to have happened in the present case.”

In Wieland v. Cyril Lord Carpets Ltd[26], the plaintiff injured her neck due to the negligence of the defendant and was forced to wear an orthopaedic collar. Due to the position of her neck in the collar, the plaintiff was unable to automatically adjust her vision to the bi-focal lenses that she had worn for 10 years. Shortly after the collar was fitted, the plaintiff fell down while descending the staircase and injured her ankles. The defendants were held liable for both the initial injury and the subsequent injury incurred in the fall. The decision is a clear example of the provision that since Wagon Mound No. 1, the novus actus interveniens is but an aspect of the general problem of remoteness of damage and will break the chain of causation only if it is not a reasonably foreseeable event.[27]

Test of Remoteness in India:

The English Law of Tort, introduced in India as an instrument of justice and equity, was applied keeping in mind the special conditions of the cases in the country. Most judges have agreed with the test of foreseeability established by the Wagon Mound Case.

In Municipal Board, Kheri v. Ram Bharosey[28], where the Municipal Board of Kheri granted a license to build a flour mill next to the defendant’s house, as a consequence of which his house was severely damaged to the vibrations produced by the mill, the Allahabad High Court held that the Municipal Board was not liable, because the damage did not arise as a direct consequence of granting of license. The court laid down the following tests of remoteness:

1. “Consequences that are intended by the wrongdoer will not be too remote. This includes reckless indifference to consequences which may thereby, be deemed to have been intended;
2. Consequences that are reasonable and probable and which, therefore, might have been foreseen are not to remote;
3. Consequences which are the direct result of an unlawful act or omission are not too remote although they could not reasonably have been foreseen.”

REFERENCES

• Ranchhoddas, Ratanlal & Thakore, Dhirajlal, The Law of Torts. Nagpur: Wadhwa and Company, (2007)
• Casson, D.B., ‘Foreseeable Act as Novus Actus Interveniens’, The Modern Law Review, Vol. 33 (No. 4): pp.
• “The Tie That Binds: Liability of Intentional Tort-Feasors for Extended Consequences.” Stanford Law Review, vol. 14, no. 2, 362–371, (1962)
• Rowe, P.J., ‘The Demise of The Thin Skull Rule?’, The Modern Law Review, Vol 40 (No 4): 377-379. (1977)
• Winfield & Jolowicz, Tort. London: Sweet & Maxwell, (2006)
• Murphy, John, Street on Torts. Oxford University Press, (2003)

[1]Ranchhoddas, Ratanlal & Thakore, Dhirajlal, The Law of Torts. Nagpur: Wadhwa and Company, (2007)

[2] (1961) 1 All ER 404

[3](1921) 3 KB 560

[4]298 A.2d 895

[5]346 So.2d 289

[6][1963] A.C. 837

[7][2000] 1 W.L.R. 1082

[8][2000] 1 W.L.R. at 1093, per Lord Hoffman

[9]Winfield & Jolowicz, Tort. London: Sweet & Maxwell, (2006).

[10] Ranchhoddas, Ratanlal & Thakore, Dhirajlal, The Law of Torts. Nagpur: Wadhwa and Company, (2007)

[11][1933] A.C. 449

[12]Murphy, John, Street on Torts. Oxford University Press, 2003

[13] 2010 SCC 40

[14][2002] A.C. 883 at [128]

[15]Platform Home Loans Ltd v. Oyston Shipways Ltd [2000] 2 A.C. 190 at 209

[16]Winfield & Jolowicz, Tort. London: Sweet & Maxwell, (2006).

[17](1773) 2 W.B1. 892

[18]101 Mich. 370

[19]125 S.E. 244 (1925)

[20]“The Tie That Binds: Liability of Intentional Tort-Feasors for Extended Consequences.” Stanford Law Review, vol. 14, no. 2,  pp. 362–371, (1962)

[21]Dulieu v. White, (1901) 2 KB 669

[22]Rowe, P.J., ‘The Demise of The Thin Skull Rule?’, The Modern Law Review, Vol 40 (No 4): 377-379.
(1977)

[23]824 F. Supp. 847 (1993)

[24](1920) AC 956

[25](1927) 29 L1 L Rep 253

[26][1969] 3 All E.R. 1006

[27]Casson, D.B., ‘Foreseeable Act as Novus Actus Interveniens’, The Modern Law Review, Vol. 33 (No. 4): pp. 450-453 (1970)

[28]A.I.R. 1961 All 430