Was it a "direct" consequence? The earliest in point of date was Smith v. London & South Western Railway Co. Law Rep. 6 C.P. notes 17 and 33, ante. 2:30. By clicking “Accept”, you consent to the use of ALL the cookies. The Wagon Mound principle. The impression that may well be left on the reader of the scores of cases in which liability for negligence has been discussed is that the courts were feeling their way to a coherent body of doctrine and were at times in grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible jargon. The Wagon Mound No.2 [1967] 1 AC 617 Privy Council The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour due to the failure to close a valve. 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." Thank you for helping build the largest language community on the internet. The Law of Torts LAWS212. Their Lordships, as they have said, assume that the court purported to propound the law in regard to tort. 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. 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." 560, except that âkind of damageâ has now to be understood in the light of the interpretation in The Wagon Mound (No. Morts Dock & Engineering Co (The Wagon Mound) owned the wharf, which ⦠They did not indicate what damage might have been so anticipated. Even in the inferior courts judges have, sometimes perhaps unwittingly, declared themselves in a sense adverse to its principle. University. But this observation followed a passage in which His Lordship, directing his mind to the problem of causation, had asked what were "natural, probable and necessary consequences," and had expressed the view that "direct cause" was the best expression. Your email address will not be published. It was not necessary to argue this question and it was not argued. 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. This consideration may play a double role. This appears to be in flat contradiction to the rule in Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens. This new word may well have been thought as good a word as another for revealing or disguising the fact that he sought loyally to enforce an unworkable rule. Who knows or can be assumed to know all the processes of nature? Fact: The workers of the defendant were unloading gasoline tin and filling bunker with oil. Her mast was lying on the wharf and a number of the respondents' employees were working both upon it and upon the vessel itself, using for this purpose electric and oxy-acetylene welding equipment. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is "direct." But it is far otherwise. The negligent act was nothing more than the carelessness of stevedores (for whom the charterers were assumed to be responsible) in allowing a sling or rope by which it was hoisted to come into contact with certain boards, causing one of them to fall into the hold. For this damage they claimed that the appellants were in law responsible. In short, the remoteness of damage (foreseeability) in English and Australian tort law through the removal of strict liability in tort on proximate cause. Sir Samuel Evans, P., said "The doctrine of legal causation, in reference both to the creation of liability and to the measurement of damages, has been much discussed by judges and commentators in this country and in America. 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. Year: 1961: Facts: 1. The respondents claim, in the alternative, that the appellants are liable in nuisance if not in negligence. This was precisely the interpretation of The Wagon Mound adopted by Glanville Williams, a strong supporter of a foreseeability-based approach, who saw the Wagon Mound as decisive. The fire spread rapidly causing destruction of some boats and the wharf. In Bourhill v. Young [1943] A.C. 91 at p. 101 the double criterion is more directly denied. University. 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. Next, one of many cases may be cited which show how shadowy is the line between so-called culpability and compensation. 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. 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. A system of law which would hold B liable to A but not to C for the similar damage suffered by each of them could not easily be defended. A large quantity of oil was spilled into the harbour. The fire spread ⦠2- Foreseeability Revised By Leon Green* The judgments delivered by the Privy Council in the two Wagon Mound cases have given new direction to the English common law of negligence and nuisance and, if approved by the House of Lords, will be of considerable importance to American courts. Detailed case brief Torts: Negligence. 577, nor to Cockburn C.J. 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. But there can be no liability until the damage has been 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. The cases arose out of the same factual environment but terminated quite differently. 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. Your email address will not be published. Privy Council Appeal No. 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." Registered office: Unit 6 Queens Yard, White Post Lane, London, England, E9 5EN. On the face of it, The Wagon Mound (No 1) determines that there should no longer be different tests for the breach of duty, and the extent of the damage which is recoverable. It is probable in any case that it had not occurred to them that there was any such dichotomy as was suggested in Polemis. What then did Polemis decide? Overseas Tankship were charterers of a freighter ship named the Wagon Mound which was moored at a dock. The crew had carelessly allowed furnace oil ⦠Mortâs (P) wharf was damaged by fire due to negligence. 23 of 1960. 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. Held: Re Polemis can no longer be regarded as good law. But the House of Lords took neither course: on the contrary it distinguished Polemis on the ground that in that case the injuries suffered were the "immediate physical consequences" of the negligent act. However, the oil was ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the waterâs surface. It may however be observed that in the proceedings there was some confusion. Background facts. LORD REID He also made the all important finding, which must be set out in his own words. View Homework Help - Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. This finding was reached after a wealth of evidence which included that of a distinguished scientist Professor Hunter. 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. The defendantâs ship, âThe Wagon Moundâ, negligently released oil into the sea near a ⦠Overseas Tankship were charterers of the Wagon Mound, which was docked across the harbour unloading oil. These cookies will be stored in your browser only with your consent. When molten metal dropped by Mortâs workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly damaged. Course. 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. 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. The case arose out of a charter partly and went to arbitration under a term of it and the first contention of the charterers was that they were protected from liability by the exception of fire in the charter party. Legal issues. 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. LORD RADCLIFFE This website uses cookies to improve your experience while you navigate through the website. The judgment of Bovill C.J. co Facts of the case Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. In that case Lord Justice Vaughan Williams citing the passage from the judgment of Pollock C.B. This. 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. Overseas Tankship (U.K.) Ltd v Morts Dock & Engineering Company Ltd [1961] UKPC 1 (18 January 1961) 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. Some doubt was expressed in Polemis as to whether the citation of which these learned judges so emphatically approved was correct. 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. The" Wagon Mound" unberthed and set sail very shortly after. The acceptance of the rule in Polemis as applicable to all cases of tort directly would conflict with the view theretofore generally held. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fact of the case: âWagon Moundâ actually is the popular name of the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961). Their Lordships would with respect observe that such a survival rests upon an obscure and precarious condition. The engineers on the Wagon Mound were careless and a large quantity of oil overflowed onto the surface of the water. They approved that which they cited and their approval has high authority. One aspect of this case remains to be dealt with. It is true that in that case the Lord Justice was dealing with damages for breach of contract. The Wagon Mound no 1 AC 388 House of Lords The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Fortunately, the attempt is not necessary. 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 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.". This decision is not based on the analysis of causation. 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 Wagon Mound (No 1): lt;p|> | |For the successor case on the reasonable man test for breach, see |Wagon Mound (No. 1) [1961] The Wagon Mound (No. 1" Brief: Case Citation: [1961] A.C. 388. In that case it was not dealt with except in a citation from Weld-Blundell v. Stephens. Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. But, where they are not, the question arises to which the wrong answer was given in Polemis. The validity of a rule or principle can sometimes be tested by observing it in operation. Course. Thus it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable. You can access the new platform at https://opencasebook.org. Smith v Leech Brain and Co Ltd [1962] 2 QB 405. "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." The Polemis rule by substituting "direct" for "reasonably foreseeable" consequence leads to a conclusion equally illogical and unjust. Nothing that they have said is intended to reflect on that rule. It has to be asked, then, why this conclusion should have been reached. 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. 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. Here was the opportunity to deny the rule or to place it secure upon its pedestal. 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." 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. 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. The Wagon Mound (No 2) - Detailed case brief Torts: Negligence. If the line of relevant authority had stopped with Polemis, their Lordships might, whatever their own views as to its unreason, have felt some hesitation about overruling it. At some point during this period the Wagon Moundleaked furnace oil into the harbour while some welders were working on a ship. The plaintiffs prevailed at trial, and the defendants appealed: Issues: The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. however, goes to culpability, not to compensation." 59; (1922) 12 Ll. The Wagon Mound (No. 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. In this case, the Privy Council distinguished between foreseeability and unforeseeable types of damage: ‘the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen’. Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. Save my name, email, and website in this browser for the next time I comment. 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. The principle is also derived from a case decision The Wagon Mound-1961 A C 388 case reversing the previous Re Polemis principle.. It is not the act but the consequences on which tortious liability is founded. It was repeated by Lord Sumner in the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens [1920] A.C. 956 at p. 983. London", which has already been referred to. Each of them rests on its own bottom, and will fail if it can be established that the damage could not reasonably be foreseen. Mention should also be made of Cory & Son Ltd. v. France Fenwick & Co. Ltd. (1911) 1 K.B. The respondents must pay the costs of the appellants of this appeal and in the Courts below. This is the old version of the H2O platform and is now read-only. Overseas had a ship called the Wagon Mound, which negligently spilled oil over the water. That might be relevant for a tribunal for which the decision was a binding authority: for their Lordships it is not. the wagon mound. Woods v. XII. 1"* from LAW 523 at University of Nevada, Las ⦠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. Necessary cookies are absolutely essential for the website to function properly. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at h2o@cyber.law.harvard.edu. This means you can view content but cannot create content. 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. The Wagon Mound (No.1) [1961] Uncategorized Legal Case Notes August 26, 2018 May 28, 2019. 253 Denning J. 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. 537 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949] 2 Q.B. Donoghue v Stevenson : 5 law cases you should know (1/5) - Duration: 2:25. In their Lordships' opinion it should no longer be regarded as good law. Yet Hadley v. Baxendale was not cited in argument nor referred to in the judgments in Polemis. As Lord Denning said in King v. Phillips [1953] 1 Q.B. Main arguments in this case: A defendant cannot be held liable for damage that was reasonably unforeseeable. Thank you for helping build the largest language community on the internet. 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. Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. 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." We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young. 2) [1967] 1 AC 617. The Wagon Mound No. "The raison d'etre of furnace oil is, of course, that it shall burn, but I find the defendant did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water. Thus Lord Justice Asquith himself, who in Thurogood v. Van den Berghs & Jurgens [1951] 2 K.B. The appellants made no attempt to disperse the oil. 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. Vast numbers of learned and acute judgments and dis¬quisitions have been delivered and written upon the subject. 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." 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. 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. But opting out of some of these cookies may have an effect on your browsing experience. And, if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable? Same facts of Wagon Mound No 1, except the Plaintiff is now the owner of the ship parked at the wharf affected.The ship suffered damage as a result of the fire. This proposition, which provides a different criterion for determining liability and compensation, goes to the root of the matter and will be discussed later. Here all the elements are blended, "natural" or "ordinary consequences," "foreseeability," "proximate cause." 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." 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. Their Lordships do not propose to spend time in examining whether the issue there lay in breach of contract or in tort. of want of due care according to the circumstances. It was perhaps this difficulty which led Lord Denning in Roe v. Minister of Health [1954] 2Q.B. 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. 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? Adopting that test he rejected the plaintiff's claim as too remote. This is the old version of the H2O platform and is now read-only. 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. The plaintiff operated a dock that was destroyed when the defendantsâ boat dumped furnace oil that later caught fire. The" Wagon Mound" unberthed and set sail very shortly after. 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. Areas of applicable law: Tort law â Negligence â foreseeability. Synopsis of ⦠- Duration: 2:30. 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. The special case submitted by the arbitrators found that the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated. Overseas Tankship chartered a freighter ship named the Wagon Mound which was taking on bunker oil at Mort's Dock in Sydney. 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. Prevent inflammable material falling off the wharf into the harbour careless and a large quantity of oil overflowed the! Not to compensation. the largest online encyclopedias available, and the `` Corrimal caught! The costs of the defendantâs workers and floated with water and endorse this statement of the damage a rule to... 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Welders caused the leaked oil to ignite the oil necessary to argue question! 1954 ] 2Q.B Son Ltd. v. Morts Dock & Engineering Co., Ltd. `` Wagon Mound which taking!
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