INTRODUCTION

The law of causation is one of the cornerstones of the law of negligence. To understand
causation, one must be familiar with the concepts of proximity, foreseeability and
material contribution.

For a defendant to be found liable there must exist a relationship of cause and effect
between the conduct complained of and the damages sustained. That is to say, it must be
demonstrated on a balance of probabilities that the conduct complained of is the
proximate cause of the damages suffered.

Proximate cause has been described in many different ways. For example, in Black’s Law
Dictionary, Fourth Edition, a proximate cause is said to be that which, in a natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury
and without which the result would not have occurred; that which stands next in
causation to the effect, not necessarily in time or space, but in causal relation; the
dominant cause; the moving or producing cause, and sometimes the efficient cause.

The concepts of remoteness and proximate cause are those with which the Court
struggles in its attempt to strike a balance between compensating the plaintiff for the
damages suffered, while at the same time limiting the defendant's liability within
reasonable boundaries.

Judges have attempted to formulate different tests, in the hope that one might be
discovered that will apply to every fact situation without producing unjust results. Since
the law of negligence is ever changing and developing, so, too, have the different tests
which are used to determine proximate cause. These various tests have proven somewhat
illusive.

Initially, the Court relied on the concept of directness, the classic example of which is Re
Polemis and Furness, Withey & Co. Ltd. [1921] 3 K.B. 560. In this case, a ship was
completely destroyed when a spark, caused by a wooden plank, dropped into the ship's
hold, igniting gas vapours. Who would have thought that the negligent handling of a
plank could produce a spark, which in turn, would cause nearby gas vapours to explode?
The Court held that the question of whether particular damages were recoverable
depended only on whether or not those damages were the direct consequence of a
negligent act, even though one might not have anticipated the exact damages.

It was soon discovered that to impose a test of directness only was too broad since the
damages for which a defendant might be liable in any particular situation appeared
unlimited. Thus, the Court began to fashion some limiting principles.

The test of directness fell from favour with the decision of the Privy Council in 1961, in
Overseas Tank Ship (U.K.) Ltd v. Morts Dock & Engineering Co. [1961] A.C. 388 (P.C.)
(otherwise known as the Wagonmound No. 1). In this case, some oil was negligently
spilled into a harbour in Sydney, Australia, where it eventually spread to the plaintiff’s

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dock, which was under repair. Repair work on the dock was suspended until the danger
was assumed to have passed. Some time later, sparks from a welding operation ignited
the oil, causing damage to the dock and two ships. The name of the ship from which the
oil originally spilled was the Wagonmound.

At trial, liability was imposed on the basis that the direct cause of the damage was the
negligent spilling of the oil from the Wagonmound. The trial court’s decision was upheld
on appeal. However, on further appeal to the Privy Council in England, the real risk of oil
on the water catching fire and that serious damage to ships or other property would occur,
such damage was not only foreseeable but very likely.

The determination of proximate cause aided by the concepts of foreseeability and real
risk has proven at times to be a difficult task, sometimes resulting in findings of cause
and effect which at best were tenuous. Nevertheless, these concepts have worked
reasonably well and argue against legislative attempts to formalize rigid tests to
determine causation.

The modern approach to causation appears to be a pragmatic one, based on common

sense and good judgment, best summarized by Justice Clement of the Alberta Court of
Appeal, in Abbot v. Kozza [1977] W.W.R. 20 who said at page 28:

The common law has always recognized that causation is a concept that in
the end result must be limited in its reach by pragmatic consideration of
consequences: the chain of cause and effect can be followed only to the
point where the consequences of an act will be fairly accepted as
attributable to that act in the context of social and economic conditions
then prevailing and the reasonable expectations of members of the society
in the conduct of each other.

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RESEARCH QUESTIONS

 Few remoteness issues arise today due to WM No.2

 Determines the extent to which an actor will be held liable for his actions
 Duty and remoteness are issues of policy and used to restrict liability
 Burden is on the plaintiff to prove that the breach caused the damage
 Causation may be (1) factual or (2) legal
 The but for test is used for factual damage and is fairly easy to recover for injury that
is factually evident to flow directly from the breach
 For legal causation, the Defendant’s breach has caused the damage to the plaintiff but
for policy reasons this type of damage should not be recoverable
 Remoteness was first seen through a test of directness (Re Polemis) which imposed
liability for all acts giving rise to foreseeable damage and mixed up factual and legal
cause, this was replaced by the test of reasonable foreseeability in Wagon Mound
(No.1) - (probable harm) with the expanding conditions found in Hughes v. The Lord
Advocate - (foresee only the consequences) and Wagon Mound (No.2) - (possibility
or real risk of damage).

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OBJECTIVES

 To study the conflicts between the said cases.

 To study the relevance of them
 To harmonise them.

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REASONABLE FORSEEABILITY AND PROXIMITY

Reasonable forseeability and "proximity" are related. In cases where the damage suffered
was of a kind that was reasonably forseeable, that is, personal injury or property damage,
then the reasonable forseeability of that kind of harm allows the court to infer that the
party causing the harm must have been in a proximate relationship with the party that
suffered it.

The test of reasonable forseeability was of limited use in difficult cases, such as those
where damages were claimed for psychiatric illness not consequent upon physical injury
(Nervous Shock) or pure or mere economic loss, being financial loss not attributable to
personal injury or property damage. The Reasonable Foresight Test and the elements for
negligence

The Reasonable Foresight test

The notion of reasonable foreseeability applies to all three elements of negligence. Thus:

1. Where the plaintiff is 'within the range of reasonable foresight' then this creates a
relationship of neighbourhood or sufficient proximity to give rise to a duty of care owed
by the defendant not to injure the plaintiff.

2. Reasonable forseeability is also relevant with respect to reasonable foresight of the risk
of damage to the plaintiff and the failure to reach the requisite standard of care to avoid
that risk.

3. Reasonable forseeability is also pertinent when examining issues of remoteness, that is,
whether the actual damage suffered by the plaintiff was reasonably foreseeable.

Foreseeability: Duty; Breach; and Damage

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 WAGONMOUND#11

Ultimately test of "reasonable foreseeability" was recognized in Wagonmound #1, the

Privy Council argued:

a. Direct consequence test based on dubious authority;

b. Out of sink with remoteness rule in contract law;
c. Offended the fault principle in negligence law.

Facts: Bunker oil drained into harbour. Spark from blowtorch causes harbour to ignite.
#1 is the wharf owner suing for damages to his wharf.

Trial judge: damage by fire not reasonably foreseeable but bound by direct consequence
test of Polemis.

Privy Council:

Polemis was wrong on 3 grounds:

1. Direct consequence on dubious authority

2. Out of sync with test of remoteness principle in contract law (Hadley v. Baxendale)

3. Offended fault principle in negligence

Therefore test of legal cause is reasonable foreseeability of the type of damage caused by
the defendant’s conduct.

AT POINT: Fact that all experts said that water could not ignite, it did, therefore accident
could not have been reasonably foreseeable.

1. Some sceptical comment over whether the new test (reasonable foreseeability of
the type of injury/damage caused) any more workable and fair than its
predecessor, and truly reflected the trends occurring in tort liability (e.g. argument
that compensability is a greater impulse than deterrence in the modern law).
2. Exceptions to new test recognized:

Before ink dries on decision; complex cases appear in which courts either
extend reasonable foreseeability or ignore.

While type of damage must be reasonably foreseeable, the extent need not be.

1
Overseas Tankships Ltd v. Mort Docks Engineering Co. Ltd.[1961]2 All E R 404

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WAGONMOUND#22

Action brought by the owners of the ship that burned; the test for

remoteness is now the foreseeability of a real risk. This is the same test

for nuisance and the Defendant was found to be liable in nuisance as well.

Vessel under Charter was lying alongside wharf. Engineer released bunker oil into
harbour, understanding at the time that oil on water would not ignite. Bunker oil spread
throughout harbour. Sparks from welding on a different pier set light to bunker oil and
caused significant damage to wharf and to two vessels at wharf. This was the action of
one of the boat owners. (Wagonmound 1 = wharf owner: Privy Council said chances of
fire taking place was too remote that it was not reasonably foreseeable)

Although the consequences of the Defendant’s conduct are bizarre, i.e. the risk was of a
low order, the seriousness of harm anticipated, ease of precautions and lack of utility or
social irresponsibility (illegality) in the Defendant’s conduct may tip the balance in
favour of the consequences being reasonably foreseeable.

Even if you could predict that plaintiff could be hit by minor splash – the actual events
were never foreseeable.

2
Overseas Tankships Ltd v Millers steamship Co. Ltd [1966] 3 All ER 708

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 RE POLEMIS3

Plank was dropped into a ship’s hold which sparked and caused an
explosion; liable for the damage as some type of damage was foreseeable
if the plank had been dropped and thus it no longer mattered what the
damage was, the actors would be held liable.

If an act can cause damage (falling plank), it is negligent, and there will be
liability even if the scope or kind of damage was unforeseeable.

Liability results regardless of the forseeability of the consequences. If

defendant is the cause in fact, then he is liable for any and all consequences no matter
how remote or unforeseeable. (Fire burning barn, city, state, world etc.)

CONFLICTS

POLEMIS: THE DIRECT CAUSE RULE (MINORITY)

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[1921] K.B. 560

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 Liability results regardless of the forseeability of the consequences. If defendant is the
cause in fact, then he is liable for any and all consequences no matter how remote or
unforeseeable. (Fire burning barn, city, state, world etc.)

WAGON MOUND--THE RISK RULE (MAJORITY)

The defendant is only liable for damages that could have been reasonably predicted or
anticipated consequences of his actions. The foresight of the reasonable or prudent man
determines liability. To determine liability, ask, "what would the reasonable man in like
circumstances had foreseen.

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10
REMOTENESS IS A QUESTION OF LAW AND POLICY

THAT DECIDES WHETHER HARM THE PLAINTIFF

CAUSED WILL BE DEEMED LIABILITY

Polemis:

If an act can cause damage (falling plank), it is negligent, and there will be liability even
if the scope or kind of damage was unforeseeable. Later overruled.

Wagonmound #1:

Liability will only lie for negligent loss where the scope or kind of loss was foreseeable;
otherwise too remote. But this too was overruled.

Wagonmound #2:

Where the potential loss is great, although only a remote possibility. Liability will lie if
only minimal steps could have been taken to dispel the negligently created risk.

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RELEVANCE
Proxies for the proximate cause analysis (when talking about proximate cause,
characterize discussion using Polemis test make sure not to use the direct cause test when
you want to be using the actual cause test)

Direct result and unbroken chain of events: Tortfeasors are liable for all harms that
directly result from their negligence by an unbroken chain of events. No intervening
causes. Polemis (defendants were liable for all damages when they negligently dropped a
plank into the ship’s hold, starting a fire because petrol had leaked unbeknownst to them).
Once the act is negligent, the fact that its exact outcome was not foreseeable is irrelevant.
Under the Polemis test, foreseeability is irrelevant: it doesn’t matter whether defendant
could foresee the damage.

Foreseeable harm: Tortfeasors are only liable for reasonably foreseeable damages,
regardless of extent. Wagonmound 1 (defendants who spilled oil into bay, which mucked
up plaintiff’s dock, were not liable to plaintiffs who were reasonably welding on the
wharf because the oil’s flashpoint is 170 degrees for the fire that scorched the dock that
started when a spark landed on a piece of cotton on top of debris floating in the water).

Degrees of Foreseeability in Nuisance: foreseeability is an essential element in

determining nuisance. If we require fault in nuisance, we must also require
foreseeability.

If the action needed to eliminate the risk presents no difficulty, expense or

disadvantage, then the risk cannot be neglected, no matter how infinitesimal.
Wagonmound 2 (chief engineer should have halted welding aboard ship to avoid small
risk of the oil slick below catching fire; reasonable man would have halted)

In circumstances where the risk of damage is huge, it is not justifiable to ignore an

infinitesimal risk. Wagonmound 2.

To the contrary, 2nd Restatement holds no liability when there was direct cause and highly
extraordinary odds of something occurring. This is the extraordinary in hindsight rule
frequently used as an articulation of foreseeability.

Intervening Causes as Superseding Causes: an argument the defendant makes to get

out of liability completely.

If you are negligent and a third party’s conduct brings about injury as a result of your
negligence, you are not released from liability. The defendant stays on the hook so long
as their negligence operates continuously to the harm.

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CONCLUSION
Foreseeability: original negligent actor is not relieved of liability if the acts of another
(the intervening act) could have been reasonably foreseen by Defendant or if the kind of
harm suffered by Plaintiff was foreseeable.
Unforeseeable intervening act + unforeseeable result = Defendant is NOT liable

Unforeseeable intervening act + foreseeable result (kind of harm foreseen by

Defendant)= Defendant IS liable

The precise injury need not be foreseeable. It is sufficient if the probability of injury is
within the natural range of effect of the alleged negligent act. Glasgow Realty v.
Metcalfe. (Boy outs his hands on a loose window pane, it falls onto a crowded street,
causes a stampede in which a woman is trampled and injured permanently)

Foreseeable intervening act ruins superseding act defense.

Unforeseeable (superseding) intervening act = “highly extraordinary and unforeseeable,”

independent in origin, capable of brining about harm. James v. Meow Media (parents of
child who shot up high school sued several media companies for negligently influencing
the child; court said there was no duty because it was not foreseeable that a child would
view D’s products and then go gun down classmates).

The more reckless the intervening act, the more likely it is to be held to be
unforeseeable, thus erasing original negligence as the proximate cause of injury.

A criminal act can be foreseeable. Brauer v. NY Central & Hudson River Railroad.
Where evidence shows Defendant actually foresaw crime, then the rule that criminal
conduct was unforeseeable will not apply.

An individual’s intervening negligence does not cut off the original party’s negligence.

When the original negligent actor creates a significant risk with social value, he has
created an unreasonable act liable for negligence even if a third party’s act causes
foreseeable injury. Weirum v. RKO General (radio station contest that had listeners try
and find a roving DJ to get money created an unreasonable risk for which the resulting
car accident was foreseeable because it was summer and the station targeted teenagers)

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BIBLIOGRAPHY
BOOKS
 R.K.Bangia, The Law of Torts, (Faridabad: Allahabad Law Agency, 2003)
 Ratanlal & Dhirajlal, The Law of Torts,(New Delhi: Wadhwa&Company, 2002)

 Salmond & Heuston, The Law of Torts, (New Delhi: Universal Law Publishing
Co. Pvt.Ltd., 2003)

WEBSITES

http://www.scu.edu.au/schools/lawj/hsc/tort.html [visited on 17 October, 2003]

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