Test of Directness & Test of Reasonable Foresight under Law of Torts
Introduction: Problem of Remoteness
- After the commission of tort, the question of liabilities arises. The consequences of a wrongful act may be endless and there can also be consequences of consequences but that doesn’t mean that the defendant will be liable for all the consequences following his wrongful act.
- For example- a motorbike hits a pedestrian who was carrying a bomb in his pocket. When the pedestrian is hit down, the bomb explodes. The pedestrian and four other people died and ten more were injured due to the explosion.
- Now the question arises whether the motorbike rider should be held liable for all the consequences or shall he be liable for just knocking down the pedestrian.
- He will be liable for only those consequences which are not too remote from his conduct. No defendant can be made liable for all the consequences which follow his wrongful act.
- Lord Wright in the case Liesbosch Dredger v. S.S. Edison once said, “ The law cannot take account of everything that follows a wrongful act. It regards some subsequent matters as outside the scope of its selection, because it was infinite for the law to judge the causes of causes. In the diverse chain of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons.
Remote and Proximate Damages
- If the damages caused by an act are not directly related or are too remote to be expected, then the defendant will not be liable for the damages caused. Such types of damages are called remote damages.
- On the other hand, if all the damages caused due to the wrongful act are direct consequences of the same, then the defendant will be liable for all the damages caused. These types of damages are called proximate damages.
Scott v. Shepherd (The Squib Case)
In Scott v. Shepherd,a lighted squib was thrown by A into a crowd, it fell upon X. X, in order to prevent himself from the injury, threw it further, it fell upon Y and Y to prevent himself from the same, threw it further and as a result of these subsequent acts, B was hit by the lighted squib and as a consequence of the same, he lost one of his eyes. A was held liable to B. His act was the proximate cause of the damage even though his act was farthest from the damage as the acts of X and Y had intervened in between.
Lampert v. Eastern National Omnibus Co.
In Lampert v. Eastern National Omnibus Co., Due to the negligence of defendants, a married (plaintiff) was injured and the act resulted in severe disfigurement of the woman. Later on, after sometime she was deserted by her husband. She wanted to claim damages for this same act. It was found that the real cause of the desertion of the plaintiff was not her disfigurement but the alienated relations between the plaintiff and her husband, which existed before the accident and therefore the defendant was not held liable for the same.
Test of Remoteness:
To identify the nature of damages i.e. whether the damage is remote or proximate, there are two types of tests.
- The Test of Reasonable Foresight
- The Test of Directness
The Test of Reasonable Foresight
- According to this test, if the consequences of a wrongful act are foreseeable by a prudent man, then they are considered not too remote.
- On the other hand, if the consequences of a wrongful act are not foreseeable by a prudent man, then they are considered to be too remote.
- As per the opinion of Pollock C.B. in Rigby v. Hewitt and Greenland v. Chaplin, a defendant can only be held liable for those consequences which are foreseen by a prudent man when placed in the circumstances of a wrongdoer.
- For example- If I commit a wrong, I will only be held liable for all the foreseeable consequences of the act committed, and not for those consequences which are too remote a consequence of my wrongful act.
The Test of Directness
- In Re Polemis and Furness, Withy ＆ Co. Ltd, the test of reasonable foresight was rejected and the test of directness was considered to be more appropriate.
- According to the Test of Directness, a person is held liable for all the direct consequences of the wrongful act committed, irrespective of the fact that he could have foreseen them or not, because consequences which directly follow an act are not too remote.
- In Smith v. London and South Western Railway Company Co.,the railway company acted negligently and allowed a heap of trimmings of hedges and grass near a railway line during dry weather. A fire was set due to the spark from the railway engine. The fire was further carried away by the high winds and burnt the plaintiff’s cottage. The railway company was held liable even though they could have foreseen the loss to the cottage as the burning of the cottage was a direct consequence of the negligent act by the railway company.
The Wagon Bound Case: Reassertion of The Test of Reasonable Foresight
Facts of The Case:
- The Wagon Bound was an oil burning vessel which was hired by the appellants, Overseas Tankship Ltd. and was carrying the fuel oil at Sydney port.
- Morts Dock Company, the respondents, at a distance of 600 feet, owned a wharf where the repairs of a ship including some welding operations were going on.
- Due to the negligence of one of the servants of Overseas Tankship Ltd., there was a huge oil spill in the water. The oil was carried to the respondent’s wharf.
- Almost after 60 hours, molten metal from the respondent’s wharf fell on the floating cotton which initiated fire in the oil which further caused a huge damage to the wharf and various other equipments.
Outcomes of The Case:
- The Trial Court applied the rule of directness and held the appellants i.e. O.T. Ltd. liable.
- The Supreme Court of the New South Wales, stating the ruling in Re Polemis and Furness, Withy ＆ Co. Ltd, held the appellants i.e. O.T. Ltd. liable for the damages to the respondents i.e. Morts Dock Company.
- The ruling made by The Trial Court and The Supreme Court was challenged and the final verdict was made by The Privy Council.
- The Test of Reasonable Foresight was reaffirmed by The Privy Council and the decision of The Supreme Court was reversed. It was held that a reasonable man couldn’t foresee such injury. It was also held that the Re Polemis was no longer a good law. And hence, the appellants were not held liable even though the accident was caused due to the negligence of the appellant’s servant.
- At the end of this case, the test of reasonable foresight regained its validity to predict the remoteness of damage and hence the liability if a person.
Wagon Bound Case Ruling in Subsequent Cases
S.C.M. (United Kingdom) Ltd. v. W.J.Whittall & Sons
- An electric cable alongside the road was damaged due to the negligence of defendants’ workmen.
- Due to this negligence, there was a power failure in the plaintiff’s typewriter factory for seven hours. The plaintiff claimed that as a result of power failure, there was a massive damage to materials and machines leading to loss in production.
- The Court of Appeal applying the test of reasonable foresight held that the defendants were aware of the fact that electric cables supplied current to the factories in that region and they could have easily foreseen the caused damages to the plaintiff and hence the defendants were held liable and were asked to compensate for the damages caused.
Hughes v. Lord Advocate
- A manhole was opened by the post office employees for the purpose of maintaining underground telephone equipment and was covered with the tent.
- One fine evening, it was left surrounded by lamps but unguarded.
- An eight year boy in order to play with the lamps, entered the tent, and fell into the manhole causing a violent explosion and severe injuries to the boy due to burning with the lamp.
- It was foreseeable that a child could fall into the manhole and also the injuries through burning, but the explosion was not foreseen. The House of Lords held the defendant liable irrespective of the fact that the extent of the accident was not foreseeable.
- It was stated that the boy’s i.e. appellant’s injuries were mainly caused due to burning from the lamp and hence it cannot be said that the injuries from the burns were unforeseeable. Hence, the test of reasonable foresight was once more justified.
- Liesbosch Dredger v. S.S. Edison, (1939) A.C. 449, at 460.
- Scott v. Shepherd, (1773) 2 WM B1 892.
- Lampert v. Eastern National Omnibus Co., (1954) 1 W.L.R. 1047.
- Rigby v. Hewitt, (1850) 5 Ex. 240.
- Greenland v. Chaplin, (1850) 5 Ex. 243.
- Re Polemis and Furness, Withy ＆ Co. Ltd, (1921) 3 K.B. 560.
- Smith v. London and South Western Railway Company Co., (1870) L.R. 6 C.P. 14.
- Overseas Tankship Ltd. (U.K.) v. Morts Dock and Engg. Co. Ltd. ( Wagon Bound Case), (1961) A.C. 388; (1961) 1 All. E.R. 404 (P.C.).
- S.C.M. (United Kingdom) Ltd. v. W.J.Whittall & Sons, (1937) 1 Q.B. 337.
- Hughes v. Lord Advocate, (1963) AC 837.
Dr. R.K. Bangia, Law of Torts (Allahabad Law Agency, Faridabad, 25th edn., 2020).
Author: Divyanshi Sharma,
Amity Law School, Amity University, Gwalior, M.P and 2nd year/ Law Student