The oil drifted under a wharf thickly coating the water and the shore where other ships were being repaired. Lord Wrenbury (the third of the majority) summed up his view of the case by saying : "I am quite unable to follow the proposition that the damages given in the libel actions are in any way damages resulting from anything which Stephens did in breach of duty." Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. In reasserting this principle their Lordships conceive that they do not depart from, but follow and develop, the law of negligence as laid down by Baron Alderson in Blyth v. Birmingham Waterworks Coy (1856) 11 Ex. Contributory negligence on the part of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's legal significance. It is a key case which established the rule of remoteness in negligence. 784. If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit? 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. It is inevitable that first consideration should be given to the case of In re Polemis & Furness Withy & Company Ltd.  3 K.B. The fire spread rapidly causing destruction of some boats and the wharf. If the claim for breach of contract had been pursued, the charterers could not have been held liable for consequences not reasonably foreseeable. Appellant owned the Wagon Mound, from which by a careless act oil overflowed onto the surface of the water. The Council decided that rather than go with precedent (authority) they would determine a principle from a range of cases, in a similar way as Lord Atkin did in Donoghue v Stevenson, and their principle was primarily a single test for foreseeability which they argued was a logical link between the damage and the liability (culpability). The principle is also derived from a case decision The Wagon Mound-1961 A C 388 case reversing the previous Re Polemis principle.. To Lord Russell of Killowen in the same case the test of liability was whether the defendants (Cammell Laird & Co. Ltd.) could reasonably be expected to foresee that the choking of a test cock (itself undoubtedly a careless act) might endanger the lives of those on board; Lord Macmillan asked whether it could be said that they, the defendants, ought to have foreseen as reasonable people that if they failed to detect and rectify the clogging of the hole in the door the result might be that which followed, and later, identifying, as it were, reasonable foreseeability with causation, he said : "the chain of causation, to borrow an apposite phrase, would appear to be composed of missing links.". 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. 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." 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. 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.  The defendant appealed to the Privy Council. 2)  Thoburn v Sunderland City Council  Thomas v Clydesdale Bank  Thomas v National Union of Miners  Thomas v Sawkins  Thomas v Sorrell (1673) Thomas v Thomas  Thompson v Foy  Thompson v Gibson  Thompson v Park  Thorner v Major  Before turning to the cases that succeeded it, it is right to glance at yet another aspect of the decision in Polemis. The oil It was repeated by Lord Sumner in the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens  A.C. 956 at p. 983. Privy Council Appeal No. It is difficult to reconcile the decisions and the views of prominent comÂ¬mentators and jurists differ in important respects. This appears to be in flat contradiction to the rule in Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens. The outbreak of fire was due, as the learned Judge found, to the fact that there was floating in the oil underneath the wharf a piece of debris on which lay some smouldering cotton waste or rag; which had been set on fire by molten metal falling from the wharf that the cotton waste or rag burst into flames; that the flames from the cotton waste set the floating oil afire either directly or by first setting fire to a wooden pile coated with oil; and that after the floating oil became ignited the flames spread rapidly over the surface of the oil and quickly developed into a conflagration which severely damaged the wharf. In Bourhill v. Young  A.C. 91 at p. 101 the double criterion is more directly denied. Docket Numbers: Their Lordships do not propose to spend time in examining whether the issue there lay in breach of contract or in tort. But there is nothing in the case to suggest, nor any reason to suppose, that he regarded the measure of damage as different in tort and breach of contract. Adopting that test he rejected the plaintiff's claim as too remote. Aust. Here there is no suggestion of one criterion for determining culpability (or liability) and another for determining compensation. One other finding must be mentioned. The Privy Council held that a party can be held liable only for loss that was reasonably foreseeable. Lord Sumner, whose speech their Lordships, like others before them, have not found all respects easy to follow, said : "What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligence, that is. 114. Their Lordships substitute the word "fire" for "shock" and endorse this statement of the law. Upon this Mr. Justice Manning said: "Notwithstanding that, if regard is had separately to each individual occurrence in the chain of events that led to this fire, each occurrence was improbable and, in one sense, improbability was heaped upon improbability, I cannot escape from the conclusion that if the ordinary man in the street had been asked, as a matter of common sense, without any detailed analysis of the circumstances, to state the cause of the fire at Mort's Dock, he would unhesitatingly have assigned such cause to spillage of oil by the appellant's employees." The falling board hit some substances in the hold and caused a spark; the spark ignited petrol vapour in the hold; there was a rush of flames and the ship was destroyed. It is not probable that many cases will for that reason have a different result, though it is hoped that the law will be thereby simplified, and that in some cases, at least, palpable injustice will be avoided. At an early stage in this judgment their Lordships intimated that they would deal with the proposition which can best be stated by reference to the well-known dictum of Lord Sumner: This however goes to culpability not to compensation." The Privy Council held that a party can be held liable only for loss that was reasonably foreseeable. Nor, clearly, had it at an earlier date occurred to Lord Wensleydale in Lynch v. Knight 9 H.L.C. This means you can view content but cannot create content. The escaped oil was carried by wind and tide beneath a wharf owned by the respondents, who were shipbuilders and ship-repairers. The Supreme Court of New South Wales. In that case it was said that "when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not"; see per Baron Channell at page 21. For the successor case on the reasonable man test for breach, see, Note: The Privy Council is an English court that, at the time of this case, was the final appeal court of Australia, Smith v The London and South Western Railway Company, Overseas Tankship (UK) Ltd v The Miller Steamship Co, https://en.wikipedia.org/w/index.php?title=Overseas_Tankship_(UK)_Ltd_v_Morts_Dock_and_Engineering_Co_Ltd&oldid=967245741, Judicial Committee of the Privy Council cases on appeal from Australia, Creative Commons Attribution-ShareAlike License, This page was last edited on 12 July 2020, at 02:58. The dock owners knew the oil was there, and continued to use welders. VISCOUNT SIMONDS It is doubtful whether In re Polemis and Furness Withy & Co. can survive these decisions. When molten metal dropped by Mort’s workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly damaged. The two grounds have been treated as coterminous, and so they largely are. Mention should also be made of Cory & Son Ltd. v. France Fenwick & Co. Ltd. (1911) 1 K.B. Some hours later much of the oil had drifted to and accumulated on Sheerlegs Wharf and the respondent’s vessels. Are you a Firefighter at Miami Volunteer Fire Department or a member of the Miami community? 6. a) Define and distinguish assault from … Lord Dunedin (another of the majority) decided the case on the ground that there was there no evidence which entitled the jury to give the affirmative answer that they did to the question as put to them that the actions of libel and damages recovered were the "natural and probable consequences" of the proved negligence of the defendant. The ship suffered damage as a result of the fire. 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. But, it is said, a different position arises if B's careless act has been shown to be negligent and has caused some foreseeable damage to A. Applying the rule in Polemis and holding therefore that the unforeseeability of the damage by fire afforded no defence, they went on to consider the remaining question. "The lawyer," said Sir Frederick Pollock, "cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause." 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." Contributory negligence is now essential for many determinations and are covered by statutes such as the Civil Liability Act (1936) South Australia which has more recent counterparts in a number of jurisdictions including New South Wales. Background facts Same facts of Wagon Mound No 1, except the Plaintiff is now the owner of the ship parked at the wharf affected. Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. In the case of the "Liesbosch"  A.C. 448 the appellants whose vessel had been fouled by the respondents, claimed damages under various heads. 1), is a landmark tort law case, which imposed a remoteness rule for causation in negligence. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. Thank you. Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. Charterers of Wagon Mound carelessly spilt fuel oil onto water when fuelling in harbour. In the same connection may be mentioned the conclusion to which the Full Court finally came in the present case. Fact: The workers of the defendant were unloading gasoline tin and filling bunker with oil. Morts owned and operated a dock in Sydney Harbour. That consideration must begin with an expression of indebtedness to Mr. Justice Manning for his penetrating analysis of the problems that today beset the question of liability for negligence. Where there is no reason to expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to render the damage probable, if injury does result to a third person it is generally considered that the wrongful act is not the proximate cause of the injury so as to render the wrongdoer liable to an action." 5. 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. (discussed by Professor Goodhart in his Essays, p. 129), Donoghue v. Stevenson and Bourhill v. Young, or in respect of intervening causes as in Aldham v. United Dairies (London) Ltd. and Woods v. Duncan. at p. 258 is particularly valuable and interesting. 2), is a landmark tort case, concerning the test for breach of duty of care in negligence. 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. In the year 1913 in the case of H.M.S. The respondents were admittedly at fault; therefore, said the appellants, invoking the rule in Polemis, they were responsible for all damage whether reasonably foreseeable or not. There was no evidence that the defendant knew of the grating being obstructed. For this damage they claimed that the appellants were in law responsible. Three things may be noted about this case: the first, that for the sweeping proposition laid down no authority was cited; the second, that the point to which the court directed its mind was not unforeseeable damage of a different kind from that which was foreseen, but more extensive damage of the same kind; and the third, that so little was the mind of the court directed to the problem which has now to be solved that no one of the seven judges who took part in the decision thought it necessary to qualify in any way the consequences for which the defendant was to be held responsible. The respondents claim, in the alternative, that the appellants are liable in nuisance if not in negligence. They did not indicate what damage might have been so anticipated. In doing so Mr. Justice Manning after a full examination of that case said "To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to apply the decision in In re Polemis with any degree of confidence to a particular set of facts would be a grave understatement. Who knows or can be assumed to know all the processes of nature? The relevant facts can be, comparatively shortly slated inasmuch as not one of the findings of fact in the exhaustive judgment of the learned trial Judge has been challenged. As Lord Denning said in King v. Phillips  1 Q.B. The second case was "H.M.S. The Wagon Mound principle. In two cases in 5 Exchequer Reports Rigby v. Hewitt at p. 240 and Greenland v. Chaplin at p. 243, Pollock C.B. Thus foreseeability becomes the effective test. In that case it was not dealt with except in a citation from Weld-Blundell v. Stephens. 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." It is not the act but the consequences on which tortious liability is founded. 72 at p. 76), a case to which further reference will be made. 577, nor to Cockburn C.J. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. This accords with the general view thus stated by Lord Atkin in Donoghue v. Stevenson  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." 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. It is irrelevant to the question whether B is liable for unforeseeable damage that he is liable for foreseeable damage, as irrelevant as would the fact that he had trespassed on Whiteacre be to the question whether he has trespassed on Blackacre. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it. The Board indicated Morts would probably have been successful if they had claimed damages for direct damage by the oil to the slipway but this was minor and not part of the damages claimed (although success on this count may have saved Morts Dock and Engineering the costs of all the litigation for both parties across all three levels of court). The judgment of Bovill C.J. It has never been subject to the express scrutiny of either the House of Lords or the Privy Council, though there have been comments upon it in those Supreme Tribunals. Overseas had a ship called the Wagon Mound, which negligently spilled oil over the water. LORD TUCKER The Patna Case 1777-1779 (with explaination)।।LEGAL HISTORY।।LLB NOTES।। - Duration: 9:51. But there can be no liability until the damage has been done. • ships (docked in the water when the fire occurred) were damaged; shipowners sue Wagon Mound • rule in WM 1 is that injury was unforeseeable and therefore WM not liable to Mort’s Dock • However, the court changes its reasoning in the second case, holding WM liable and granting the shipowners damages In October and November, 1951, a vessel known as the "Corrimal" was moored alongside the wharf and was being refitted by the respondents. Thank you. Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight. From the tragic case of Woods v. Duncan  A.C. 401, the facts of which are too complicated to be stated at length, some help may be obtained. 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. affirmed (stating it to be his own view only and not that of the court) that he entertained "considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise and in respect of mischief which could by no possibility have been foreseen and which no reasonable person would have anticipated." In Glasgow Corporation v. Muir  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." Get Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. [Wagon Mound No. What rules govern the determination of the remoteness of dam-ages Refer to Scott V. Shepherd and The Wagon Mound Case. 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. An unfortunate chain of events led to the oil becoming mixed with cotton debris, which was subsequently ignited by the sparks coming off some nearby welding works. The leading case on proximate cause was Re Polemis, which held that a defendant can be deemed liable for all consequences flowing from his negligent conduct regardless of how unforeseeable such consequences are. A large quantity of furnace oil was released into the harbour as a result of the carelessness of OT’s employees. For his liability is in respect of that damage and no other. Court judgments are generally lengthy and difficult to understand. As a result Morts continued to work, taking caution not to ignite the oil. But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done. There Viscount Simon analysed the conditions of establishing liability for negligence and stated them to be (1) that the defendant failed to exercise due care (2) that he owed the injured man the duty to exercise due care, and (3) that his failure to do so was the cause of the injury in the proper sense of the term. But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done; cf. 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. 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. London (reported in  Prob. In the near 'hall-century that has passed since the learned President spoke those words the task has not become easier, but it is possible to point to certain landmarks and to indicate certain tendencies which, as their Lordships hope, may serve in some measure to simplify the law. Are you the Miami Volunteer Fire Department Fire Chief? 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. London", which has already been referred to. Perhaps he would, and probably he would have added: "I never should have thought it possible." This caused oil to leak from the ship into the Sydney Harbour. ⇒ Since the Wagon Mound case, the courts have frequently reiterated that the defendant may be liable even where he/she could not envisage the precise set of circumstances which caused the harm of a foreseeable type. The plaintiffs are owners of ships docked at the wharf. 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. In Sharp v. Powell Law Rep. 7 C.P. 14. 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. 537 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd.  2 Q.B. 1)  The Wagon Mound (No. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. In the course of repairs, the respondents work ) [ 1961 ] A.C. 91 at p. 85 ) to leak from ship! 388 case reversing the previous Re Polemis principle Morts Dock & Engineering Co. Ltd.... Whether the unforeseeability of damage was relevant to liability or compensation. be mentioned the conclusion to which wrong! To reflect on that rule workers of the law in Australia that the purported. Which further reference will be made of Cory & Son Ltd. v. Industries! Or feasible in this way all cases of tort in 'remoteness of damage was done the! Test he rejected the plaintiff ’ s ships through the carelessness of ’... The court purported to propound the law, why this conclusion should have been Delivered written. The law to culpability, not to compensation. work was going on a ship, the seriousness harm... 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