Tort XXXII - Remoteness I

Once the elements of duty, breach and causation are satisfied, the plaintiff has to establish that the type of damage that was incurred was foreseeable i.e. the damage was not too remote and it was the type of damage that a reasonable man would have in his contemplation or the type of damage that is the natural consequence of the defendant’s negligence.

The test for remoteness in tort is the same as the test for remoteness in contract. In Re Polemis (1921) (Re Polemis & Furness Withy & Company Ltd. (1921)) one of the men employed to load and unload cargo from a ship dropped a plank into the ship’s cargo hold and the plank struck a flint which caused a spark that came in contact with petrol fumes and the resulting fire spread to the hull of the ship and set the whole ship on fire. The court had to decide as to the extent of the defendant’s liability.

It was held that the defendant was not only liable for the damages that he could foresee but was also liable for all the other damages that resulted as a consequence of his action(s) regardless of whether the damage was foreseeable of otherwise. It suffices that the defendant caused the initial act which set in motion a chain of events that resulted in damage(s) that would otherwise not have been foreseeable by a reasonable man.

If Re Polemis were to be strictly applied, a defendant is not only liable for the damages that he caused or was foreseeable but also for all other damage that resulted from his negligent act.

Let’s say for example that a defendant negligently threw his lighted cigarette butt into the open window of an abandoned house and that cigarette butt landed on a stack of newspapers, setting the paper alight and the fire soon spread through the whole house. It is foreseeable that the defendant would be liable for the damage that had been caused to the house.

Now let’s say that the neighbors saw the fire and called the fire department and when the firemen arrived at the scene they realized that there were only 2 fire hydrants in place when their records clearly indicated that there should be at least 3 fire hydrants close to the fire. Hence, they were 1 fire hydrant short.

When the firemen went to use the fire hydrants they realized that there was not enough water in the hydrants because the fire department had failed to maintain the fire hydrants as they were required to do and as a result the neighboring houses also burnt down see Church of Latter-Day Saints v Yorkshire Fire and Civil Defense Authority (1997).

For policy reasons the fire department cannot be made liable or held accountable and the question that is to be asked is would the defendant now be liable not only for the damage to the initial house but also for the fire that damaged or destroyed the adjoining houses?

According to test in Re Polemis he would. Hence if the test were to be applied strictly it would clearly lead to some unfair results or decisions and therefore the test was overruled and replaced instead with the test in the Wagon Mound (1) (1961), which is the common law test to determine if the damage that was caused by someone’s negligence was foreseeable or otherwise.

In the Wagon Mound (1) (1961) The defendant’s vessel the Wagon Mound was docked in a wharf in Sydney and unknown to the defendant the boat leaked oil and the resulting fire caused damage to not only the defendant’s vessel but also to the wharf and to 2 other vessels. The court had to determine the scope of the defendant’s liability. It was held that the defendant was only liable for the damages that he could foresee and the court found in favor of the defendant supplanting or overruling the earlier decision in Re Polemis.

Applying the test in the Wagon Mound (I) let’s go back to the example that we’ve given above, that of the defendant throwing a lighted cigarette butt in the open window of an abandoned house. It is foreseeable that some type of damage would result from the defendant’s negligent act and sadly the worst-case scenario in this particular instance would be that the abandoned house would be razed to the ground.

However, it is difficult to say with any degree of certainty that that the defendant foresaw that the adjoining houses would also catch fire, especially when in most instances the fire department would have been called to the scene as soon as the fire was spotted. It is also possible to say that the intervention of the fire department had broken the chain of causation and the defendant was no longer liable (novus actus interveniens).

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