Once the tort has been committed, the real liability arises on the defendant. The consequence of wrongful act is infinite or it would be right to say that it is a consequence of consequence. No defendant could be made liable ad infinitum for all the consequence which follows the wrongful act. Law must abstract some consequence as relevant, not on pure logic but simply for practical reasons[1]. It is often viewed as an additional mechanism of controlling tortious liability. Not every loss will be recoverable in tort law.
But the main the main question arises is what to remove and what not to remove.
The answer would be that the damage is too remote; the defendant is not liable if the damage is too remote a consequence of the wrongful act. If the act or consequences are connected and instead of being remote they are proximate, the defendant will be liable for the consequences. It is not necessary that the event which is immediately connected with the consequences is proximate and that further from it is too remote. The accountability of the negligence is made on the assumption that the person is aware of the fact that a particular act will lead to something unfortunate, though it may not happen. The rule of remoteness is familiar notion that a line must be drawn because it would be too harsh for the defendant or tortfeasor to accept every responsibility.
There are two tests to determine whether damages are remote or not:
1. TEST OF REASONABLE FORESIGHT:
According to this test, if the consequence of a wrongful act could have been foreseen by a reasonable man, they are not too remote. On the other hand, a reasonable man would not have foreseen the consequences, they are too remote[2].
2. THE TEST OF DIRECTNESS:
The test of directness was considered more appropriate as compared to the test of reasonable foresight stated in the case of Re Polemis[3]. According to this test, a person is liable for all the direct consequences of his wrongful act, whether he could have foreseen them or not because consequences which directly follow a wrongful act are
not too remote. If the answer to the question that the defendant could see remoteness of damages is affirmative- then along with the liability of consequences foreseen he would be liable for all direct consequence of the wrongful act.
In the case of Smith v. London & South Western Railway Company, there was no direct evidence of negligence and but the defendant was held liable because he if he could not have foreseen the loss suffered.
The direct consequence test was overruled in the Wagon Mound[4]. Wagon Mound the test for remoteness of damages is that damage must be of a kind that was foreseeable. Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable.
THE WAGON MOUND
Involved liability for damage done by fire, like many of the leading English and American cases on the remoteness of damages. The defendants, while taking on bunkering oil at the Caltex wharf in Sydney Harbour, carelessly spilled a large quantity of oil into the bay, some of which spread to the plaintiffs’ wharf some 600 feet away, where the plaintiffs were refitting a ship. On noticing the oil, the plaintiffs ordered their men to stop using the electric and oxy-acetylene apparatus and telephoned the manager of the Caltex oil Co. to ask whether it would be safe to carry on. Having been assured that there was no danger, the plaintiffs resumed work. Two days later the oil caught alight and the wharf was seriously damaged by fire. It was found by the trial judge, Kinsella J., that the fire started by some molten metal falling on a piece of cotton waste or rag impregnated with oil lying on some debris under the wharf and then spread to the oil floating on the water. The Caltex manager and the plaintiffs had both thoughts that the flashpoint of furnace oil was too high for it to be set alight when spread on water, and Kinsella J. held that the defendants could not, in the light of what was then known, reasonably have foreseen the danger of fire. But they could have foreseen that the oil might (as it did) foul the plaintiffs’ slipways, and this being so they were, he held, on the authority of Re Polemis, liable for the damage done by the fire, which was a direct consequence of the escape of the oil. His judgment was upheld by the Supreme Court of New South wale though not without criticism of the Polemis rule and the result it led to[5].
The test was applied in the case of Huge v. The Lord Advocate[6] The events which followed were unforeseeable but the possibility of someone being burned from leaving paraffin lamps around as possible. This is exactly what happened, even though not in a foreseeable way. This should have been in the defendant’s reasonable contemplation. The pattern that is emerging is that the defendant will not be held liable for an indeterminate event for an indeterminate time. There has to be a limit. It seems that if the type of damage would be foreseeable, then liability will be imposed, whether or not the chain of events leading to it were foreseen or not.
THE EGG SHELL SKULL RULE
A final aspect of the remoteness of damages is the eggshell (or thin) skull rule. This means a defendant must take their victim as they find them. If the victim is particularly vulnerable or has a pre-existing condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury. Smith v. Leech Brain[7]– the claimant burnt his lip due to the defendant’s negligence. He had a pre-cancerous condition which then turned cancerous. Held that defendant liable for all his damage.
[1]Liesbosch Dredger v. S.S. Edison (1939) A.C. 449
[2] Rigby v. Hewitt (1850) 5 Ex. 240
[3] (1921) 3 K.B. 560
[4] (1961) A.C. 388: Overseas Tankship (U.K.) Ltd v. Motor Dock and Engg. Co. Ltd.
[5]The Test of Remoteness. (2016, Jul 24). Retrieved from https://studymoose.com/the-test-of-remoteness-essay
[6] (1963) A.C. 837
[7] (1962) 2 QB 405
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