It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e., to the question of culpability not to compensation." Before going forward to the cases which followed Polemis,their Lordships think it desirable to look back to older authorities which appear to them to deserve consideration. Of what relevance is it to that claim that he has another claim arising out of the same careless act? But at about that time the oil under or near the wharf was ignited and a fire, fed initially by the oil, spread rapidly and burned with great intensity. Remoteness; Judgment. In October and November, 1951, a vessel known as the "Corrimal" was moored alongside the wharf and was being refitted by the respondents. 2) [1967] 1 AC 617. The results of this enquiry coupled with his own belief as to the inflammability of furnace oil in the open led him to think that the respondents could safely carry on their operations. It is not easy to understand why a distinction should be drawn between "immediate physical" and other consequences, nor where the line is to be drawn. the wagon mound. Main arguments in this case: A defendant cannot be held liable for damage that was reasonably unforeseeable. This appears to be in flat contradiction to the rule in Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens. But it is far otherwise. The answer appears to be that it was reached upon a consideration of certain authorities, comparatively few in number, that were cited to the court. Their Lordships conclude this part of the case with some general observations. A large quantity of oil was spilled into the harbour. At the same time the appellants were chatterers by demise of the 5,5, "Wagon Mound ", an oil-burning vessel which was moored at the Caltex Wharf on the northern shore of the harbour at a distance of about 600 feet from the Sheerlegs Wharf. In Sharp v. Powell Law Rep. 7 C.P. It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. It is with the greatest respect to that very learned judge and to those who have echoed his words, that their Lordships find themselves bound to state their view that this proposition is fundamentally false. - Duration: 2:30. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. We also use third-party cookies that help us analyze and understand how you use this website. in Greenland v. Chaplin which has already been read, said at p. 122 "I do not myself suppose that although, when these propositions were originally laid down, they were not intended as positive judgments but as opinions of the learned judge, there would be any doubt nowadays as to their accuracy." 1" Brief: Case Citation: [1961] A.C. 388. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. Each of them rests on its own bottom, and will fail if it can be established that the damage could not reasonably be foreseen. said of the same passage," with that view of the law no one would venture to quarrel". In the same connection may be mentioned the conclusion to which the Full Court finally came in the present case. The learned Judge held that apart ,from damage by fire the respondents had suffered some damage from the spillage of oil in that it had got upon their slipways and congealed upon them and interfered - with their use of the slips. It would, indeed, appear to their Lordships that, unless the learned Chief Justice was making a distinction between "one who commits a wrongful act" and one who commits an act of negligence, the case is not reconcilable with Polemis. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. XII. Here was the opportunity to deny the rule or to place it secure upon its pedestal. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is "direct." When the respondents' works manager became aware of the condition of things on the vicinity of the wharf he instructed their workmen that no welding or burning was to be carried on until further orders. LORD TUCKER Enough has been said to show that the authority of Polemis has been severely shaken though lip-service has from time to time been paid to it. That might be relevant for a tribunal for which the decision was a binding authority: for their Lordships it is not. But up to that date it had been universally accepted that the law in regard to damages for breach of contract and for tort was, generally speaking, and particularly in regard to the tort of negligence, the same. In that case the majority of their Lordships, of whom Lord Sumner was one, held, affirming a decision of the Court of Appeal, that the plaintiff's liability for damages in certain libel actions did not result from an admitted breach by the defendant of the duty that he admittedly owed to him. 429 at p. 441 "There can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock." It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. These cookies do not store any personal information. The Wagon Mound (1) crops up in following areas of law An attempt was made before their Lordships' Board to limit in some way the finding of fact but it is clear that it was intended to cover precisely the event that happened. The plaintiffs prevailed at trial, and the defendants appealed: Issues: For 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." Their Lordships do not propose to spend time in examining whether the issue there lay in breach of contract or in tort. Let the rule in Polemis be tested in this way. 23 of 1960. Suppose an action brought by A for damage caused by the carelessness (a neutral word) of B, for example, a fire caused by the careless spillage of oil. Mention should also be made of Cory & Son Ltd. v. France Fenwick & Co. Ltd. (1911) 1 K.B. But it is clear from the pleadings and other documents, copies of which were supplied from the Record Office, that alternative claims for breach of contract and negligence were advanced and it is clear too that before Mr. Justice Sankey and the Court of Appeal the case proceeded as one in which, independently of contractual obligations, the claim was for damages for negligence. It is not strange that Sir Frederick Pollock said that Blackburn and Willes J.J. would have been shocked beyond measure by the decision that the charterers were liable in tort: see Pollock on Torts, 15th edn., p. 29. It is not the act but the consequences on which tortious liability is founded. They therefore propose that on the issue of nuisance alone the case should be remitted to the Full Court to be dealt with as may be thought proper. Some doubt was expressed in Polemis as to whether the citation of which these learned judges so emphatically approved was correct. (as he then was) said: "Foreseeability is as a rule vital in cases of contract; and also in cases of negligence, whether it be foreseeability in respect of the person injured as in Palsgref v. Long Island Rly. The engineers on the Wagon Mound were careless and a large quantity of oil overflowed onto the surface of the water. Copyright 2019-2020 - SimpleStudying is a trading name of SimpleStudying Ltd, a company registered in England and Wales. After several hours the oil drifted and was around two ships owned by the Miller Steamship Co that were being repaired nearby. After the event even a fool is wise. This is the more surprising when it is remembered that in that case, as in many another case, the claim was laid alternatively in breach of contract and in negligence. at p. 258 is particularly valuable and interesting. See Also – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC ([1967] 2 AC 617, Bailii, [1966] UKPC 1, [1966] 1 Lloyd’s Rep 657, [1966] 2 All ER 709, [1966] 3 WLR 498) (New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. The words "tort" and "tortious" have perhaps a somewhat sinister sound but, particularly where the tort is not deliberate but is an act of negligence, it does not seem that there is any more moral obliquity in it than in a perhaps deliberate breach of contract, or that the negligent actor should suffer a severer penalty. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility. But, where they are not, the question arises to which the wrong answer was given in Polemis. Save my name, email, and website in this browser for the next time I comment. however, goes to culpability, not to compensation." In Glasgow Corporation v. Muir [1943] A.C. 448 at p. 454 Lord Thankerton said that it had long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care judged by the standard of the ordinary reasonable man, while Lord Macmillan said that "it is still left to the judge to decide what in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen." The … However, the oil was ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the water’s surface. of want of due care according to the circumstances. In that case Lord Justice Vaughan Williams citing the passage from the judgment of Pollock C.B. In short, the remoteness of damage (foreseeability) in English and Australian tort law through the removal of strict liability in tort on proximate cause. 72 at p. 76), a case to which further reference will be made. This decision is not based on the analysis of causation. Thank you for helping build the largest language community on the internet. There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts that, if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not. Upon this issue their Lordships are of opinion that it would not be proper for them to come to any conclusion upon the material before them and without the benefit of the considered view of the Supreme Court. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. 14. The earliest in point of date was Smith v. London & South Western Railway Co. Law Rep. 6 C.P. It is true that both in England and in many parts of the Commonwealth that decision has from time to time been followed: but in Scotland it has been rejected with determination. Be it observed that to him it was one and the same thing whether the unforeseeability of damage was relevant to liability or compensation. He said "The evidence of this damage is slight and no claim for compensation is made in respect of it. If it does, it is only in respect of neglect of duty to the plaintiff which is the immediate or precipitating cause of damage of an unforeseeable kind." What is not suggested is that the wrongdoer is liable for the consequences of his wrongdoing whether reasonably foreseeable or not, or that there is one criterion for culpability, another for compensation. There Lord Russell of Killowen said : "In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. As Lord Denning said in King v. Phillips [1953] 1 Q.B. This proposition, which provides a different criterion for determining liability and compensation, goes to the root of the matter and will be discussed later. Spread led to MD Limited’s wharf, where welding was in progress. The fire spread rapidly causing destruction of some boats and the wharf. Yet Hadley v. Baxendale was not cited in argument nor referred to in the judgments in Polemis. Thank you. Background facts. This website uses cookies to improve your experience while you navigate through the website. 2:30. Held: Re Polemis can no longer be regarded as good law. 1) [1961] The Wagon Mound (No. For, if some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible - and all are agreed that some limitation there must be - why should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the "direct" consequence) be substituted which leads to no-where but the never-ending and insoluble problems of causation. The fire spread … Privy Council Appeal No. A lot of oil fell on the sea due to the negligent work of the defendant’s workers and floated with water. He enquired of the manager of the Caltex Oil Company, at whose wharf the "Wagon Mound" was then still berthed, whether they could safely continue their operations on ,the wharf or upon the "Corrimal". The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. View Homework Help - Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. And Kennedy L.J. He held that the first and third conditions were satisfied, but inasmuch as the damage was due to an extraordinary and unforeseeable combination of circumstances the second condition was not satisfied. Cf. 1], [1961] A.C. 388 (P.C. Of these, three are generally regarded as having influenced the decision. This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with the single exception of the so-called rule in Polemis. Perhaps he would, and probably he would have added: "I never should have thought it possible." Their Lordships refer to this aspect of the matter not because they wish to assert that in all respects to-day the measure of damages is in all cases the same in tort and in breach of contract, but because it emphasises how far Polemis was out of the current of contemporary thought. Thus foreseeability becomes the effective test. Was it a "direct" consequence? 577, nor to Cockburn C.J. It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. In doing so they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that followed it that the Full Court was constrained to decide the present case in favour of the respondents. It would not be possible or feasible in this judgment to examine them in anything approaching detail." One other finding must be mentioned. There the statement in Smith's case was followed, Sir Samuel Evans citing Blackburn J.: "What the defendants might reasonably anticipate is only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence." Registered office: Unit 6 Queens Yard, White Post Lane, London, England, E9 5EN. LORD RADCLIFFE 519-21 [13.175] or here For his liability is in respect of that damage and no other. On the other hand, having regard to the course which the case has taken, they do not think that the respondents should be finally shut out from the opportunity of advancing this plea, if they think fit. 1) [1961] A.C. 388. The relevance of seriousness of possible harm in determining the extent of a party’s duty of care. The fact of the case: “Wagon Mound” actually is the popular name of the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961). I can only express the hope that, if not in this case, then in some other case in the near future the subject will be pronounced upon by the House of Lords or the Privy Council in terms which, even if beyond my capacity fully to understand, will facilitate for those placed as I am, its everyday application to current problems." These cookies will be stored in your browser only with your consent. The crew had carelessly allowed furnace oil … [12] The Wagon Mound (No 1) Detailed case brief Torts: Negligence. Aust. This is the old version of the H2O platform and is now read-only. It is probable in any case that it had not occurred to them that there was any such dichotomy as was suggested in Polemis. The Wagon Mound (No.1) [1961] Uncategorized Legal Case Notes August 26, 2018 May 28, 2019. This becomes more clear if it is supposed that similar unforeseeable damage is suffered by A and C but other foreseeable damage, for which B is liable, by A only. Overseas had a ship called the Wagon Mound, which negligently spilled oil over the water. Again, suppose a claim by A for damage by fire by the careless act of B. This accords with the general view thus stated by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 at p. 580 "The liability for negligence, whether you style it such or treat it as in other systems as a species of 'culpa,' is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay." It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. The respondents at the relevant time carried on the business of ship-building, ship-repairing and general engineering at Morts Hay, Balmain, in the Port of Sydney, They owned and used for their business the Sheerlegs Wharf, a timber wharf about 400 feet in length and 40 feet wide, where there was a quantity of tools and equipment. At the same time the appellants were chatterers by demise of the 5,5, "Wagon Mound ", an oil-burning vessel which was moored at the Caltex Wharf on the northern shore of the harbour at a distance of about 600 feet from the Sheerlegs Wharf. 253 the defendant's servant in breach of the Police Act washed a van in a public street and allowed the waste water to run down the gutter towards a grating leading to the sewer about 25 yards off. It receives strong confirmation from the fact that at the trial the respondents strenuously maintained that the appellants had discharged petrol into the bay on no other ground than that, as the spillage was set alight, it could not be furnace oil. When the respondents' works manager became aware of the condition of things on the vicinity of the wharf he instructed their workmen that no welding or burning was to be carried on until further orders. But opting out of some of these cookies may have an effect on your browsing experience. It was upon this footing that the Court of Appeal held that the charterers were responsible for all the consequences of their negligent act even though those consequences could not reasonably have been anticipated. To give you the most definitive collection ever assembled irrelevant if damage is `` direct. criterion is more denied. This statement of the largest online encyclopedias available, and website in browser! 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