Doctrine of Remoteness of Damages

Table of Contents

Doctrine of Remoteness of Damage

Introduction

In order to establish tortious liability the plaintiff has to prove that the injury caused to him is the direct consequences of defendant’s act. If the injury caused to the plaintiff is too remote a consequences of defendant’s act which he could not have foreseen, then even after proving all essential elements the claim of the plaintiff will not succeed if he fails to prove that the injury caused to him was e remote consequences of defendants act or omission.

In law, the remedy is given for injury caused by a wrongful act and not consequences which are too remote. Thus, if it is proved that the injury has been caused to the plaintiff by the act of the defendant then further question that arises is whether the injury was the direct consequence of the defendant’s or remote consequence.

Lord Wright has in Lisbosch Dredger v. S.S. Edison, observed as follows:-

“The law cannot take account of everything that follows a wrongful act, it regard some subsequent matters as outside the scope of its selection, because it were infinite for law to judge the causes of causes, or consequences. In the varied web of affairs the law must abstract some consequences as relevant, not perhaps on ground of pure logic but simply for practical reasons.”

Thus in law where the harm is not direct consequences of defendant’s act it is called too remote a consequence and the defendant is not held liable for it.

No one can be held liable for all consequences of his wrongful act because there is no end to the consequences of an act. He will be liable only for those consequences which are direct consequence of his negligent act.

According to this principle the plaintiff has to prove relationship between cause and reason for getting damages for harm caused by the defendant’s act, that is, he has to show relationship between the act of defendant and the injury caused by the act. If the harm caused to the plaintiff is not the direct consequence of the defendants act, it will be considered too remote and plaintiff will not be entitled to any damages.

The damage is considered to be remote in the following circumstances-

Where the damage caused to the plaintiff is not the direct consequence of defendant’s act.
Where damage is caused due to the plaintiff’s own negligent act it will not be considered the direct consequence of defendant’s act, for example where plaintiff is liable for contributory negligence.
Where there is intervention between the defendants act and the damage by the other party independent act, then the damage is not the natural consequence of the act but is too remote. This is based, on the maxim Novus actus inter remiens which means the intervention of human activity between defendant’s acts and its consequences’.
Where there is intervention between chain of causation by other person’s act who is bound by law to decide the case, then the result of his decision will be too remote consequence of that act upon which he was given an opportunity to decide the case.

TEST OF REMOTENESS

A Person held is responsible in law only for direct consequences – The question now arises as to how to decide that the damage caused to the plaintiff is the direct consequence of the defendants act or is too remote. A person is, therefore, held responsible in law only for consequences which are not remote. A person cannot be held responsible for all consequences of his act which may be endless.

Before 1850, two competing theories were laid down by the courts for the determination of test of remoteness. According to one theory, foreseeability is the test of remoteness, that is, the consequences are too remote if a reasonable man would not have foreseen them.

According to other theory, directness is the correct test, that is to say, the defendant is liable for all the consequences of the wrongful acts suffered by the plaintiff whether or not a reasonable man would have foreseen them.

Until 1850, the courts have based their decision on the maxim that-“He that does the first wrongs shall answer for all consequential damage or the damages must be the legal and natural consequence of the wrongful act”.

In 1870 in Smith v. London South West Railway Co., {(1870) LR 6 CP 14} another test of foreseeability was laid down by the court which still holds the field. Thus after 1850 the above two tests of remoteness of damages were laid down by the court.

The test of directness;
The test of foreseeability.

THE TEST OF DIRECTNESS

According to this test the defendant will be liable for all the direct consequences of his wrongful act whether he could foresee them or not because consequences directly arising from act are not too remote. In brief, if the defendant has done a wrongful act, he will be responsible for all the direct consequences of the act.

The test of directness was for the first time applied in Smith v. London South West Railway Co., {(1890) LR 6 CP 14}. In this case the servants of the London Railway company, after cutting hedges and grass negligently, left it near the railway line. It was dry weather. Spark from the railway engine set fire to the heap of grass. Due to high wind the fire was carried to the plaintiff’s cottage which was burnt. The court held that the defendant company was liable for the negligence of their servants thought they could not have foreseen the loss to the cottage of the plaintiff.

THE TEST OF FORESEEABILITY: The Wagon Mound’ case

According to tis test, if the consequences of a wrongful act which a reasonable man could not have foreseen, and are too remote, the defendant will not be liable will not be liable. But if a reasonable man could have foreseen the consequences, they would be not remote, and the wrongdoer would be liable for them even thought might be the direct consequence of his act. The test of foreseeability was for the first time laid down in the two cases: Rigby v. Hewit [(1856) 5 Ex 240} and Greenland v. Chaplin {(1850) 5 Ex 243} the court laid down the rule as follows:-

‘A person is expected to anticipate and guard against all reasonable consequences but he is not by the law of England expected to anticipated and guard against that which no reasonable man would have foreseen’.

The decision in Wagon Mound’s case being a decision of the Privy Council is not applicable in England. But in its subsequent decisions, the English Courts have approved the decision in Wagon Mound case. The House of Lords also approved it as a good law and in Hughes v. Lord Advocate {(1963) 1 All ER 98}, it has followed it.

The court of appeal in Doughty v. Turner Manufacturing Co. Ltd. {(1964) 1 All ER 98} has accepted the Wagon Mound’s decision as good law. The cases decided by the English Courts make it clear that the English Courts have accepted the test of reasonable foreseeability laid down in Wagon Mound’s case as good test and not the test of directness as laid down in Re Polemis case.

Position of law in India:

Indian courts have accepted the test of reasonable foreseeability as laid down in the Wagon Mound’s case. Although there is no Supreme Court judgment on this point but the decision of some High Courts make it clear that they apply the test of reasonable foreseeability.

In Veeram v. Krishna Murthi (AIR 1966 Kerala 172) some of the school boys were trying to cross the road. They were waiting for the bus. The defendant lorry was following the bus. Just after the bus passed, the bus started crossing the road and while doing so a boy was struck by the lorry and got seriously injured. The defendants were liable for the loss caused to the plaintiff because they could have foreseen the accident.

Author: Nishchal Kukade,
Dr. Babasaheb Ambedkar College of Law, Nagpur Final year student