Remoteness of Damage - Law of Torts Project

CASE ANALYSIS OF RE POLEMIS AND WAGON MOUND
“CASE ANALYSIS OF RE POLEMIS AND

WAGON MOUND”
Submitted by:
Ayush Amar Pandey, B.B.A. L.L.B. (Hons.) (2219)
Submitted to:
Ms. Sneha,
Centre Coordinator, Child Rights Centre, CNLU, Patna
This final draft is submitted in the partial fulfilment of the

(B.B.A L.L.B) course in Law of Torts.
August 2019
Chanakya National Law University, Patna
1
DECLARATION BY THE CANDIDATE
I, AYUSH AMAR PANDEY, student of Chanakya National Law University hereby declare that
the work reported in the B.B.A. L.L.B. (HONS.) project report entitled
“CASE ANALYSIS OF RE POLEMIS AND WAGON MOUND”
submitted at Chanakya National Law University, Patna is an authentic record of my work carried
out under the supervision of Ms. Sneha. I have not submitted this work elsewhere for any other
degree or diploma. I am responsible for the contents of my Project Report.
(Signature of the Candidate)
NAME: AYUSH AMAR PANDEY
COURSE: B.B.A. L.L.B. (Hons.)
ROLL NO: 2219
SEMESTER: 2019-2020 (1st)
SESSION: 2019-2024
2
ACKNOWLEDGEMENT
I would like to thank my faculty Ms. Sneha whose guidance helped me a lot with structuring of
my project. I take this opportunity to express my deep sense of gratitude for his guidance and
encouragement which sustained my efforts on all stages of this project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.
I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.
THANK YOU
NAME: AYUSH AMAR PANDEY
COURSE: B.B.A. L.L.B. (Hons.)
ROLL NO: 2219
SEMESTER: 2019-2020 (1st)
SESSION: 2019-2024
3
TABLE OF CONTENTS
Declaration by the Candidate .......................................................................................................2
Acknowledgement .........................................................................................................................3
Table of Contents ....................................................................................................................... 4-5
CHAPTER 1: Introduction .................................................................................................... 6-10
CHAPTER 2 : Case Analysis of Re Polemis & Furness, Withy & Co. Ltd...................... 11-15
 Facts
 Issue
 Decision
 Ratio
 Analysis
CHAPTER 3: Case Analysis of Overseas Tankship (UK) Ltd vs. Morts Dock and
Engineering Co. Ltd. (Wagon Mound (No. 1)) ................................................................. 16-20
 Facts
 Issue
 Decision
 Ratio
 Analysis
CHAPTER 4: Concept of Tortious Liability under Negligence as seen in cases of Re Polemis

and Wagon Mound (No.1) .................................................................................................... 21-28
 Remoteness of Damages
 The test of reasonable foresight (Foreseeability Test)
 The test of directness (Proximate Cause Test)

 But-For test
4
CHAPTER 5: Exceptions to Negligence – Eggshell Skull Rule ......................................... 29-32
 Exceptions
CHAPTER 6: Conclusion ..................................................................................................... 33-36
CHAPTER 7: List of Abbreviations used..................................................................................38
CHAPTER 8: Bibliography ........................................................................................................39
5
CHAPTER 1: INTRODUCTION
“It is, no doubt, proper when considering tortious liability for negligence to analyze 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. But there can be no liability until the damage has been
done. It is not the act but the consequences on which tortious liability is founded. Who knows or
can be assumed to know all the processes of nature? 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.”1
The speaker has put emphasis on the elements of “Foreseeability” and “Proximate Cause” while
determining the tortious liability on the ground of Negligence. Negligence as per Winfield is
defined as, “Negligence as a tort is the breach of legal duty to care by, which results in damage,
undesired by the defendant to the plaintiff.”2 In other words, it is a breach of duty caused by the
omission to do something which a reasonable man with ordinary prudence would have taken care
of, and the resultant damage. In most personal injury cases, the answer to the question "Who was
at fault?" comes down to figuring out who was negligent. And "negligence" is often defined as the
failure to use reasonable care in a particular situation. But in order to prove negligence, it must be
est that the person causing the injury was not only the actual cause of the injury, but also the
proximate cause (or legal cause), of the injury and the type of harm that occurred must have been
foreseeable however the extent of the harm is not typically limited by what was or was not
foreseeable.
 PROXIMATE CAUSE
By proximate cause, we mean a cause that is legally sufficient to result in liability. It is an act or
omission that is considered in law to result in a consequence, so that liability can be imposed on
the actor. It is the cause that directly produces an event. The event would not have occurred but
1
Overseas Tankship (UK) Ltd. v Morts Dock & Engineering (The Wagon Mound, No. 1), [1961] AC 388
2
WINFIELD AND JOLOWICZ Tort, 12th edition
6
for the cause. This is also referred to as direct cause, efficient cause, initial cause, first cause, legal
cause, producing cause, primary cause or jural cause.
Proximate cause is used in tort law to link negligence to liability for an injury caused by an
accident. The accident and injury must be shown to be the natural and probable result or
consequence of the acts of negligence alleged by the attorneys to have been committed. The
attorney for the plaintiff must prove that any negligence of which the defendant is accused
proximately caused the accident and his or her injuries. A defense attorney must at the same time
prove that any contributory negligence of the plaintiff proximately caused the accident and any
injuries of which the plaintiff complains.
There may be more than one proximate cause of an accident. Multiple acts of negligence by
different people may concur to cause the same accident, yet each may be deemed to be a proximate
cause of the accident. Sometimes there is an intervening cause which comes after the original
negligence of the defendant and the injured plaintiff, which will either reduce the amount of the
defendant's liability. If this intervening cause is the substantial reason for the injury, then the
defendant will not be liable at all.
 FORESEEABILITY
In Legal Terms, Foreseeability is the ability to reasonably anticipate the potential results of an
action, such as the damage or injury that may happen if one is negligent or breaches a contract. In
cases of foreseeability, the resultant injury was reasonably predictable by a person of ordinary
intelligence and circumspection as in the case of throwing a heavy object at someone.
In this project, we’ll discuss, analyze and compare the cases of Re Polemis & Furness Withy &
Company Ltd [1921] and Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd
(The Wagon Mound No 1) and analyze some of the issues that may arise with respect to proximate
cause and foreseeability under cases of Negligence in Tort Law.
This project report is a critical analysis of the cases of Re Polemis & Furness Withy & Company
Ltd [1921] and Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon
Mound No 1). It focuses on the requirement of essentials ingredients of “Foreseeability” and
7
“Proximate Cause” for negligence under law of torts as seen in the former mentioned cases and
aims to develop an understanding of Negligence and its constituent elements under Law of Torts.
a) Aims and objectives:
The researcher wants to:
I. Critically analyze the cases of Re Polemis & Furness Withy & Company Ltd [1921] and
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound
No 1)
II. Find out the necessary ingredients of Negligence under law of torts and their significance
in the judgement of the cases of Re Polemis and Wagon Mound.
III. To study in detail about the elements of Negligence namely “Foreseeability” and
“Proximate Cause” under law of torts.
IV. To get a clear understanding about the tortious liability of Negligence by analyzing and
comparing the two cases.
V. To study the Eggshell Skull Rule and how it is an exception for Negligence under law of
torts.
b) Hypothesis:
The cases of Re Polemis & Furness Withy & Company Ltd [1921] and Overseas Tankship (UK)
Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1) are landmark tort cases on
Negligence under Law of Torts and the researcher while making this project report hypothises that
“Ingredients of Nuisance namely “Foreseeability” and “Proximate Cause” are important
ingredients of final judgement and ratio decidendi made in these cases.”
c) Research questions:
I. What are the concepts of law of torts present and used in the cases of Re Polemis & Furness
Withy & Company Ltd [1921] and Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd (The Wagon Mound No 1)?
8
II. Why are cases of Re Polemis & Furness Withy & Company Ltd [1921] and Overseas
Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No 1)
called landmark judgements in cases of law of torts?
III. How accurately were the decisions made in the cases of Re Polemis & Furness Withy &
Company Ltd [1921] and Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co
Ltd (The Wagon Mound No 1) in parlance to the provisions of law?
IV. What is the significance of ingredients of “Foreseeability” and “Proximate Cause” in
negligence under law of torts?
V. Are there any exceptions or Gen. defense to Negligence under Law of Torts?
d) Research Methodology:
The researcher will be relying on Doctrinal method of research to complete the project. These
involve various primary and secondary sources of literature and insights.
e) Sources of Data
 PRIMARY SOURCES
o CASE LAW
o JOURNAL OF TORT LAW
o STUDIES IN ENGLISH TORT LAW
o CASES AND MATERIALS ON TORT LAW IN INDIA
 SECONDARY SOURCES
o BLOGS
o BOOKS
o CASE COMMENTARIES
o JOURNALS
f) Review of Literature
• RATANLAL & DHIRAJLAL, THE LAW OF TORTS, (27th Ed., 2016, Lexis Nexis).
9
This legal classic has served the legal profession and everyone associated with it for almost a
century. Learned yet simple in its approach, it allows readers to quickly grasp the principles of The
Law of Torts. All technical rules of Law of Torts have been illustrated and explained in a lucid,
comprehensive and systematic manner. The 27th edition of this work has been painstakingly
updated to include the latest case law, legislative amendments and current developments in the law
relating to Law of Torts in India.
Authenticity, originality and reliability have always been the hallmarks of this publication and
every possible care has been taken in this edition to maintain the original excellence, style and
quality of the work. As has been the hallmark of previous editions, the current edition too offers a
great help to students and professionals, when they require a quick overview, in the form of
summary at the end of the work. The book is an invaluable source of reference for the widest
possible range of readers including students, academics, legal practitioners, judges, administrators,
public prosecutors, police officers and police trainees.
g) Limitations of the study:
The researcher has territorial, monetary and time limitations in completing the project.
h) Mode of Citation
The researched has followed Blue Book Citation (19th Edition) in this project report.
10
CHPATER 2: CASE ANALYSIS OF RE POLEMIS AND FURNESS, WITHY

& CO. LTD. (1921)
Re Polemis & Furness, Withy & Co Ltd (1921)3 is an English tort case on proximate cause and
foreseeability, the element of Remoteness of Damage in the negligence under law of torts. The
various characteristics of the case are as follows:
1. Name of the case- Re Polemis and Furness, Withy & Co., [1921]
2. Appellant - Furness, Withy & Company Ltd.
3. Respondents- C.A. Polemis and L. Boyazides
4. Court- Court of Appeal of England and Wales
5. Judges- Bankes, Warrington, and Scrutton LJJ
6. Country- United Kingdom
7. Area of law- Remoteness4
 FACTS:
In this particular case of Re Polemis, The claimants were the owners of the Greek steamship
Thrusyboiilos and the respondents, Furness Withy & Co., were time charterers. While engaged on
the service she was in Casablanca and it became necessary to shift a large number of tins of petrol
in the hold. The stevedores, who were servants of the charterers, by their negligence allowed a
heavy board to fall from the hatchway into the hold, which caused (so the arbitrators said) a spark,
igniting petrol vapors in the hold and resulting in a fire which destroyed the vessel. The owners,
charging the chatterers with negligence, claimed the value of the vessel from the charterers. The
charterers responded that the fire was a remote consequence of their actions, so they are not
responsible. The case was referred to arbitration and the arbitrators found that the fire was caused
when the wooden plank hit metal and caused a spark. The arbitrators agreed with the charterers
that the spark was an unforeseen consequence of the original negligence and therefore the
destruction of the vessel was a remote consequence. The only damage the charterers should be
3
Re Polemis & Furness, Withy & Co Ltd [1921]
4
https://casebrief.fandom.com/wiki/In_Re_Polemis_and_Furness,_Withy_%26_Co.
11
liable for is the approximate damage done to the vessel by the falling wooden plank, not the
damage done by the fire. The owners sought review.
 ISSUE:
o Is it necessary that the specific type of damage caused be reasonably foreseeable in order
for Furness to be liable for damages?
o Whether the charterer’s negligence was a proximate cause of the fire?
 DECISION:
The appeal was dismissed by the court. Counsel for Furness tried to claim that although the act
was negligent, the fact that the outcome was not foreseeable should negate the liability. However,
the court unanimously rejects this argument and say that when an action is negligent the actor is
liable for any direct outcomes from the negligent act, even if they were not foreseeable. Further,
the proximity of the act to the outcome is close enough here to create a duty. The finding that the
spark was too remote to confer liability on the charterers was based on the contention of the
charterers that the fire was an unforeseen consequence of the falling wooden plank. The actual
anticipations of the negligent party are irrelevant when considering whether the resulting damage
is remote. In this case, the fire was a direct result of the negligent act and therefore the charterers
are liable for the fire. That damage that might result when a wooden plank falls while discharging
cargo is a foreseeable consequence of the negligence, whatever that damage might be.
The Court of Appeal held that the proper standard for determining remoteness of damage in
negligence is not "reasonable foresight" but "directness." As Scrutton, L.J., put it “To determine
whether an act is negligent, it is relevant to determine whether any reasonable person would foresee
that the act would cause damage; it he would not, the act is not negligent. But if the act would or
might probably cause damage, the fact that the damage it in fact causes is not the exact kind of
damage one would expect is immaterial, so long as the damage is in fact directly traceable to the
negligent act.”5
5
[1921) 3 K.B. 577
12
Since it had been found as a fact that some damage to the ship (a dented hull, perhaps) could
reasonably have been foreseen, and since the Court of Appeal felt that the fire was a direct
consequence of the dropping of the plank, the "remoteness" defiance was rejected, and the
defendant was held liable for the destruction of the ship.
 RATIO:
A negligent actor is liable for all direct results of the negligent act, even if they were not
foreseeable before the accident. The fire was a foreseeable consequence of the negligence.6
 ANALYSIS:
Although the stevedore would have foreseen that careless loading might cause some damage to
the workers, cargo, or the ship, it was beyond probability that the actual total loss would occur, yet
the defendant was held fully liable.
The owners of the ship Thrasyvoulos sought to recover damages from the defendants who
chartered the ship. The contract of charter was read to hold the defendant charterers responsible
for damage caused by fire due to their negligence. Stevedores, for whose conduct the defendants
were responsible, were moving benzene from one hold to another by means of a sling. The
stevedores had placed wooden boards across an opening above one hold to make a temp. platform
to facilitate the transfer. "When the sling containing the cases of benzene was being hoisted up,
owing to the negligence of the stevedores the rope by which the sling was hoisted or the sling itself
came in contact with the boards, causing one of the boards to fall into the hold, and the fall was
immediately followed by a rush of flames, the result being the total destruction of the ship."
The case was heard by arbitrators who found "that the fire arose from a spark igniting petrol vapor
in the hold; that the spark was caused by the falling board coming into contact with some substance
in the hold and that the causing of the spark could not reasonably have been anticipated from the
6
https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/proximate-or-legal-cause/in-re-arbitration-
between-polemis-and-furness-withy-co-ltd/.
13
falling of the board though some damage to the ship might reasonably have been anticipated."
Damages were set at almost £200,000.7
Subject to the court's opinion on the law, the arbitrators decided that the owners were entitled to
recover the full loss from the charterers. The court was required to accept the arbitrator's findings.
Although the case arose in the contract context, none of the three opinions mentions this point, and
all rely on tort cases in their analyses.
According to the one view, the consequences which may reasonably be expected to result from a
particular act are material only in reference to the question whether the act is or is not a negligent
act; according to the other view, those consequences are the test whether the damages resulting
from the act, assuming it to be negligent, are or are not too remote to be recoverable. Sir F. Pollock
in his Law of Torts, 11th ed., pp. 39, 40, refers to this difference of view, and calls attention to the
fact that the late Mr. Beven, in his book on Negligence, supports the view founded on Smith v.
London and South Western Ry. Co.
In the present case the arbitrators have found as a fact that the falling of the plank was due to the
negligence of the defendant's servants. The fire appears to me to have been directly caused by the
falling of the plank. Under these circumstances I consider that it is immaterial that the causing of
the spark by the falling of the plank could not have been reasonably anticipated. The appellant's
junior counsel sought to draw a distinction between the anticipation of the extent of damage
resulting from a negligent act, and the anticipation of the type of damage resulting from such an
act. He admitted that it could not lie in the mouth of a person whose negligent act had caused
damage to say that he could not reasonably have foreseen the extent of the damage but he
contended that the negligent person was entitled to rely upon the fact that he could not reasonably
have anticipated the type of damage which resulted from his negligent act. I do not think that the
distinction can be admitted. Given the breach of duty which constitutes the negligence, and given
the damage as a direct result of that negligence, the anticipations of the person whose negligent
act has produced the damage appear to me to be irrelevant. I consider that the damages claimed
are not too remote. For these reasons I think that the appeal fails, and must be dismissed with costs.
7
Re Polemis & Furness, Withy & Co Ltd [1921]
14
The second defense is that the damage is too remote from the negligence, as it could not be
reasonably foreseen as a consequence. To determine whether an act is negligent, it is relevant to
determine whether any reasonable person would foresee that the act would cause damage; if he
would not, the act is not negligent. But if the act would or might probably cause damage, the fact
that the damage it in fact causes is not the exact kind of damage one would expect is immaterial,
so long as the damage is in fact directly traceable to the negligent act, and not due to the operation
of independent causes having no connection with the negligent act, except that they could not
avoid its results. Once the act is negligent, the fact that its exact operation was not foreseen is
immaterial. In the present case it was negligent in discharging cargo to knock down the planks of
the temp. staging, for they might easily cause some damage either to workmen, or cargo, or the
ship. The fact that they did directly produce an unexpected result, a spark in an atmosphere of
petrol vapor which caused a fire, does not relieve the person who was negligent from the damage
which his negligent act directly caused.8
The Re Polemis decision was disapproved of, and its test replaced, in the later decision of the Privy
Council in the Wagon Mound (No. 1) [1961]. Re Polemis has yet to be overruled by an English
court and is still technically "good law". However, it was disapproved by the Privy Council, whose
decisions are not binding but are strongly persuasive on English courts. The upshot is that the strict
liability principle in Re Polemis has not been followed, and the case may be considered "bad law".
8
(1773) 2 W.BI. 892.
15
CHPATER 3: CASE ANALYSIS OF OVERSEAS TANKSHIP (UK) LTD.
VS. MORTS DOCK AND ENGINEERING CO. LTD. (1961) (WAGON

MOUND NO.1)
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon
Mound (No. 1), is a landmark case in tort law, which imposed a remoteness rule for causation in
negligence under Law of Torts. The various characteristics of the case are as follows:
1. Name of the case- Overseas Tankship (UK) Ltd. v Morts Dock & Engineering (The
Wagon Mound, No. 1) (1961)
2. Appellant - Overseas Tankship (UK) Limited
3. Respondents- Morts Dock & Engineering Company Limited
4. Court- Judicial Committee of the Privy Council
5. Judges- Viscount Simonds and Lords Reid, Radcliffe, Tucker, and Morris of Borth-y-
Gest
6. Country- Australia
7. Area of law- Remoteness9
 Facts:
In this particular case of The Wagon Mound (No.1), The Plaintiff, Morts Dock & Engineering Co.,
Ltd. (Plaintiff), operated a dock in the Port of Sydney. The Defendants were the owners of the
vessel Wagon Mound (Defendants). Wagon Mound was moored 600 feet from the Plaintiff’s
wharf when, due to the Defendant’s negligence, she discharged furnace oil into the bay causing
minor injury to the Plaintiff’s property. Hot metal produced by welders using oxyacetylene torches
on the respondent's timber wharf (Mort's Dock) at Sheerlegs Wharf fell on floating cotton waste
which ignited the oil on the water. The oil was ignited when molten metal dropped from the wharf
and came into contact with cotton waste floating on the water’s surface. The fire seriously damaged
https://casebrief.fandom.com/wiki/Overseas_Tankship_(UK)_Ltd._v_Morts_Dock_%26_Engineering_(The_Wagon_
Mound,_No._1)
16
the wharf and two ships docked there. Considerable damage was sustained both by the wharf and
the ship docked there.
 ISSUE:
o Is it necessary that the specific type of damage caused be reasonably foreseeable in order
for Furness to be liable for damages?
o Whether the charterer’s negligence was a proximate cause of the fire?
 DECISION:
The Privy Council found in favor of the defendant, agreeing with the expert witness who
provided evidence that the defendant, in spite of the furnace oil being innately flammable,
could not reasonably expect it to burn on water. 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). Viscount Simonds, in his delivery for the Privy Council, said that the
Counsel for Morts had discredited their own position by arguing that it couldn't have been
bunkering oil because it wouldn't burn on water. The Privy Council's advice soundly
disapproved the rule est in Re Polemis, as being "out of the current of contemp. thought" and
held that to find a party liable for negligence the damage must be reasonably foreseeable. The
council found that even though the crew were careless and breached their duty of care, the
resulting extensive damage by fire was not foreseeable by a reasonable person, although the
minor damage of oil on metal on the slipway would have been foreseeable.
Viscount Simonds delivered the judgment of the Board and said:
“It is, no doubt, proper when considering tortious liability for negligence to analyse its elements
done. It is not the act but the consequences on which tortious liability is founded. ... Who knows
or can be assumed to know all the processes of nature? But if it would be wrong that a man should
17
foresaw or could reasonably foresee the intervening events which led to its being done.
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. To
demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires
the observance of a min. standard of behavior.”10
The natural consequences rule leads to instances where a negligent party is liable for both the direct
trivial foreseeable damage and all unforeseeable and grave consequences too. This takes the law
beyond the principle that a man should be liable for the probable consequences of his actions. The
prior rule has led to much confusion and inconsistent results in the law. In some cases, the negligent
actor is held responsible for results that might be natural or probable and are therefore deemed to
be foreseeable to the reasonable man, when they are in fact not foreseeable. The Defendant is liable
for the fire if the injury by fire is a foreseeable consequence of their negligence.
The court held that Overseas Tankship (UK) Ltd could not be held liable to pay compensation for
the damage to the wharf. This case disapproved the direct consequence test in Re Polemis and est
the test of remoteness of damage. This asks whether the damage would be reasonably foreseeable.
In this case, the damage caused to the wharf by the fire and the furnace oil being set alight could
not be foreseen by a reasonable person.
 RATIO:
Liability for damages is based upon the reasonable foreseeability of the outcome.
 ANALYSIS:
In Wagon Mound 1 (Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd.
[1961] 1 All E.R. 404; [1961] A.C. 388; [1961] 2 W.L.R. 126; (P.C.), the wind and tide carried
the oil beneath a wharf where welding operations were being carried on by employees. After being
advised that they could safely weld, the employees continued their work. Some 55 to 60 hours
10
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No. 1)
18
after the original discharge, molten metal set some waste floating in the oil on fire. The flames
quickly developed into a large fire which severely damaged the wharf. Liability turned on the
question of whether the risk of fire was foreseeable, since furnace oil has such a high boiling point
it is unlikely to catch fire under normal circumstances. In Wagon Mound 1 and 2, the two
sequential claimants argued the risks of fire in opposite ways. Each of these diametrically different
presentations of the risk of fire was accepted by the very same court as equally true and valid facts.
The upshot of the two Wagon Mound cases is that a defendant will only be liable for damage that
is reasonably foreseeable as a consequence of the negligent act. Foreseeable damage being "real
or very likely “- not far-fetched or fanciful."
o CONCURRING CAUSES
There may be more than one cause of an injury. When negligent or wrongful conduct of two or
more persons or negligent or wrongful conduct and a defective product contributes concurrently
as causes of an injury, the conduct of each is a cause of the injury regardless of the extent to which
each contributes to the injury. A cause is concurrent if it was operative at the moment of injury
and acted with another cause to produce the injury. It is no defense that the negligent wrongful
conduct of a person not joined as a party was also a cause of the injury
o WHEN PRECISE CAUSE CANNOT BE IDENTIFIED

If a plaintiff establishes all of the facts necessary to prove (1) that each of the defendants was
negligent, and (2) that the negligent act of one of the defendants was a cause of plaintiff's injury,
and (3) that the injury was such that it could only result from the negligent act of one of the
defendants, and (4) that from the circumstances of the accident the plaintiff cannot reasonably
establish which defendant's negligence was a cause of the injury, then each defendant is liable for
plaintiff's injury. Where a group of persons are on a hunting party, or otherwise engaged in the use
of firearms, and two of them are negligent in firing in the direction of a third person who is injured
thereby, both of those so firing are liable for the injury suffered by the third person, although the
negligence of only one of them could have caused the injury. "When we consider the relative
position of the parties and the results that would flow if plaintiff was required to pin the injury on
one of the defendants only, a requirement that the burden of proof on that subject be shifted to
defendants becomes manifest. They are both wrongdoers--both negligent toward plaintiff. They
19
brought about a situation where the negligence of one of them injured the plaintiff, hence it should
rest with them each to absolve himself if he can. The injured party has been placed by defendants
in the unfair position of pointing to which defendant caused the harm. If one can escape the other
may also and plaintiff is remediless. Ordinarily defendants are in a far better position to offer
evidence to determine which one caused the injury."11
However, under such circumstances, a defendant is not liable if he or she establishes all of the facts
necessary to prove that his or her negligence was not a cause of plaintiff's injury.
11
(Summers v. Tice (1948) 33 Cal.2d 80)
20
CHPATER 4: CONCEPT OF TORTIOUS LIABILITY UNDER

NEGLIGENCE AS SEEN IN CASES OF RE POLEMIS AND WAGON
MOUND
 REMOTENESS OF DAMAGES
The term ‘remoteness of damages’ refers to the legal test used for deciding which type of loss
caused by the breach of contract may be compensated by an award of damages. It has been
distinguished from the term measure of damages or quantification which refers to the method of
assessing in money the compensation for a particular consequence or loss which has been held to
be not too remote.
Where two parties have entered into a contract which one of them has broken, the damages which
the other party should be entitled to receive in respect of such breach of contract should either be
deemed to have arisen naturally, fairly and reasonably, i.e. according to the usual course of things,
from such breach of contract itself, or as might reasonably have been deemed to have arisen in the
contemplation of the contract. Now, in the particular circumstances under which the contract was
actually concluded were communicated by the plaintiff to the defendant and thus known to both
parties, the damages resulting from such a breach of contract that they would reasonably
contemplate would be the amount of injury that would normally result from a breach of the
contract, under these special circumstances were wholly unknown to the party breaking the
contract, he could, at most, only have had in his contemplation the amount of injury that would
Gen.ly arise from such a breach of the contract and in the great multitude of cases not affected by
any special circumstances. The Gen. principle imposes, on the plaintiff, a higher degree of
contemplation with regard to the likelihood of the particular loss than the corresponding Gen.
principle in tort. Reasonable foreseeability is a test of remoteness in the law of torts in case of
contract a much higher degree of foreseeability is required, i.e., a serious possibility or a real
damages that the loss will occur. The result is to limit damages more in contract than in tort.
In H Parsons Ltd v Uttley Ingham and Co. Ltd [3], the defendant failed to see that the livestock
feed supplied to the plaintiff should properly be ventilated as a result of which several pigs of the
plaintiffs died. The above test of damages in the contract was held satisfied as the defendant could
have contemplated a serious possibility of the pigs getting ill.
21
This difference is justified because first, it is possible for the plaintiff to impose a heavier liability
for loss arising out of special circumstances by communicating these at the time of making of the
contract; and secondly, such communication enables the party in breach to adopt measures to
protect himself from any such loss, which may be in the consensus with the plaintiff, by increasing
the price or incorporating protective terms in the contract.
The starting point of any rule of the remoteness of damage is the familiar notion that a line must
be drawn somewhere, it would be unacceptably harsh for every tortfeasor to be responsible for all
the consequences which he has caused.
Certainly, the question of where to draw the line on recover-ability of consequential losses cannot
be answered by a mathematically precise formula. Judges have used their discretion from time to
time, and in that process, two formulas have been highlighted:
i. The test of reasonable foresight

ii. The test of directness
Let us see these formulas or rules in detailed manner as follows:
i. THE TEST OF REASONABLE FORESIGHT (FORSEEABILITY TEST)
According to this test, if the consequences of a wrongful act could have been foreseen by a
reasonable man, they are not too remote. If on the other hand, a reasonable man could not have
foreseen the consequences, they are too remote. And, a person shall be liable only for the
consequences which are not too remote i.e. which could be foreseen.
The title to this paper poses a direct question: should foreseeability continue to be the applicable
test for remoteness? There is at first sight a tempting argument to the contrary. If a defendant’s
negligence sets in train a course of events that result in wide ranging and far reaching damage why
shouldn’t that defendant be made liable for all that damage? Why is it deemed appropriate to limit
the defendant’s liability only to those consequences that might have been reasonably foreseen at
the point of the negligent action or omission? Viscount Simmonds evokes the notion of “current
ideas of justice and morality”, but surely fundamental justice and basic morality dictates that
22
individuals are held responsible for all the consequences of their actions. In terms of their strict
definitions the concepts of justice and morality do not contain opt-out clauses, exclusions or
caveats in relation to foreseeability, which is an entirely separate issue.
Presumably Viscount Simmonds uses the word “current” to suggest that the law had evolved over
forty years of the twentieth century, from its application in Re Polemis in 1921 to reach a state by
the time of the Wagon Mound No.1 decision in 1961 in which it was deemed appropriate to
incorporate a foreseeability factor into what was hitherto open-ended liability. In the real world
there are fairly hard-nosed justifications for the restricted liability test espoused in Wagon Mound
No.1. One such justification is insurability. It would be much harder and far more expensive to
acquire insurance to cover activity that could potentially result in untold and unforeseeable harm
than it is to insure oneself against foreseeable ranges of harm and loss. Viscount Simmonds then,
in evoking the concepts of current justice and morality, is essentially adding practicality to the list
and it is submitted that this is entirely justified. The law must be seen to operate efficiently and
pragmatically within the imperfect and complex world in which we live. It cannot be confined by
a purity of principle or an obsession with fundamental morality or justice.
In simple terms, if the Re Polemis test still existed, and defendants were liable for any and all
consequences of their negligent actions, no matter how unforeseeable or unlikely those
consequences might be, it is highly probable that activity in society would be quite drastically
impaired, because potential tortfeasors (every member of society) would be intimidated by the
potentially draconian and inestimable consequences of making a mistake. The Wagon Mound No.1
test maintains liability for foreseeable harm, but at least prevents the imposition of liability for the
unforeseeable (and possibly very far-reaching) consequences of negligent action.
The Wagon Mound No.1 test thus strikes a balance, and this is something that the law is required
to do in a veritable constellation of different fields and contexts. It is a balance struck between
imposing appropriate liability and not doing so in a fashion that unduly impedes activity in society.
This balance is finessed by the fact that it is only the form of damage suffered that must be
foreseeable, not the degree of harm actually sustained12. This ensures that a defendant will be liable
12
Horsey and Rackley, (2009), p248
23
if a certain foreseeable type of damage is sustained even if the actual extent of that damage is not
objectively foreseeable. This obviously tilts the balance significantly back in favor of the claimant
in many cases. It is a distinction that seems simple enough at first sight, but case law has illustrated
that the courts have struggled to reach consistent decisions. This is however understandable given
the almost infinite range of possible damage-inflicting scenarios that the courts may be confronted
with and individual rulings appear to turn on precisely how strictly a court defines the concept of
type or form of damage.
ii. THE TEST OF DIRECTNESS (PROXIMATE CAUSE TEST)
"A cause is proximate when it sets in motion a chain of events which result in the loss without the
intervention of any new or independent force.”13
"Proximate cause is that which, in a natural sequence, unbroken by any new cause, produces the
result which would not otherwise have occurred."
Proximate cause relates to the relationship between an event and an injury. In the context of the
law, there must be a sufficient relationship between an event (or act) and a resulting injury in order
to prove legal responsibility (known as 'liability'). This concept is known as causation.
There are two types of causation: cause-in-fact causation and proximate cause.
Cause-in-fact causation can be best described as a 'but-for' chain reaction: But for the action, the
injury would not have occurred. For example, but for Jane turning left at the red light, the car crash
would not have happened.
While cause-in-fact causation is a relatively straightforward concept, proximate cause is harder to

define. If someone suffers an injury that they believe was caused by another person's actions, the
injured party (the plaintiff) may want to sue the actor (the defendant) for damages like medical
bills or lost wages. But in order to prevail in court, the plaintiff must prove that the defendant is
13
Couch on Insurance Hardcover by Ronald A. Anderson (Author), Mark S. Rhodes (Author), Lee R. Russ (Author),
Thomas F. Segalla (Author)
24
liable for his injuries. The same concept applies in a criminal prosecution - that is, the government
must prove that the defendant caused the victim's injury or death. This is where proximate cause
comes into play.
The proximate cause of an injury is the event or act closely related to the injury. This doesn't mean
that the act in question must be the closest in time to the injury. Instead, it must be the primary, or
predominant, cause of the injury. In order to prove that a defendant is liable for the plaintiff's
injury, there must be proof that the defendant's action was the proximate cause of the injury. Since
any action can set off a long sequence of unforeseeable consequences, proximate cause limits the
scope of a defendant's liability.
The most common tort today is the tort of “negligence,” which is short for “negligent infliction of
harm.” The basic idea of a negligence claim is that if one person’s careless conduct causes another
person a physical injury, the injured person is allowed to sue the careless person and thereby to
recover an award of monetary damages to compensate him or her for the injury that was inflicted.
Quite straightforwardly, one can understand the injured person (the plaintiff) as someone who
comes to court demanding to have the putative injurer (the defendant) held responsible for having
inflicted an injury upon him or her. In a wide variety of cases, courts will accede to such a demand
by permitting an injured person to exact damages from a defendant who negligently inflicted the
injury upon the victim.
What is most striking about difficult proximate cause cases is that there is a straightforward sense
in which the defendant’s conduct did cause the plaintiff’s injury. Negligence law famously utilizes
a necessary-condition criterion, or “but-for” test.
 But-for test
A few circumstances exist where the "but for" test is complicated, or the test is ineffective. The
primary examples are:
o Concurrent causes. Where two separate acts of negligence combine to cause an injury to a
third party, each actor is liable. For example, a construction worker negligently leaves the
cover off a manhole, and a careless driver negligently clips a pedestrian, forcing the
25
pedestrian to fall into the open manhole. Both the construction worker and the careless
driver are equally liable for the injury to the pedestrian. This example obeys the but for
test. The injury could have been avoided by the elimination of either act of negligence, thus
each is a but for cause of the injury
o Sufficient combined causes. Where an injury results from two separate acts of negligence,
either of which would have been sufficient to cause the injury, both actors are liable. For
example, two campers in different parts of the woods negligently leave their campfires
unattended. A forest fire results, but the same amount of property damage would have
resulted from either fire. Both campers are equally liable for all damage. A famous case
establishing this principle in the United States is Corey v. Havener.14
o Market share evidence.15Injury or illness is occasioned by a fungible product made by all

the manufacturers joined together in a lawsuit. The injury or illness is due to a design
hazard, with each having been found to have sold the same type of product in a manner
that made it unreasonably dangerous, there is inability to identify the specific manufacturer
of the product or products that brought about the Plaintiff's injury or illness and there are
enough manufacturers of the fungible product joined in the lawsuit, to represent a
substantial share of the market. Any damages would then be divided according to the
market share ratio.
Since but-for causation is very easy to show and does not assign culpability (but for the rain, you
would not have crashed your car – the rain is not morally or legally culpable but still constitutes a
cause), there is a second test used to determine if an action is close enough to a harm in a "chain
of events" to be a legally culpable cause of the harm. This test is called proximate cause, from the
Latin proxima causa.
14
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL HARM 29 cmt. d (Proposed Final Draft No. 1,
2005).
15
Sindell v. Abbott Labs.
26
For actual causation: the question is whether but for the defendant’s conduct, the plaintiff would
not have been injured. In Wagon Mound, we see that the defendant’s negligent conduct plainly
qualifies as a cause of the plaintiff’s injury under the but-for test, leading one to the question of
whether the defect in the plaintiff’s suit in that case (assuming there was a defect) could really be
a defect falling within the rubric of “causation.”
The concept of proximate cause specifically targets that aspect of the concept of causation that is
not captured by the “but-for test”.
The standard lawyer or judge feels in a case like Wagon Mound that there may be something too
attenuated about the connection between the tortious conduct and the injury. In this way, the
proximate-cause requirement seems to presuppose a conception of a normal or standard causal
connection, as opposed to one that is too attenuated or freakish. Courts commonly say that the
harm for which plaintiff seeks compensation must be a “natural and probable” result of the
negligent conduct. Yet it has long been evident that this phrase is not particularly helpful, for it is
clearly not a necessary condition that the causal process leading to the injury be natural in the sense
of being unmediated by additional human agency, and it is just as clearly not a necessary condition
that negligent conduct rendered the injury probable in the sense of being more likely than not to
occur. The degree of intervening human agency and the degree of probability are typically
probative of the intuitive notion of proximate cause, and lawyers and judges certainly bring these
factors into consideration when making a proximate-cause determination. However, this only
deepens the puzzle, because we are led to wonder what the concept is that makes these
considerations seem so clearly relevant.
Over the past century, two “tests” for proximate cause have vied for top position: a foreseeability
test and a directness test. Wagon Mound is the leading case that adopts a foreseeability test. The
court in that case ruled that—assuming it was unforeseeable that an oil leakage would lead to a
massive harbor fire destroying piers and other shoreline property—the negligent leakage of the oil
was not a proximate cause of that damage. More to the point, the court argued that it would be
wrong to extend liability for injuries that were unforeseeable. One reason for this conclusion is
that liability imposition is unfair if it lacks a sort of proportionality to the wrongfulness of the
conduct, and foreseeability is aimed in part at establishing that connection. A second is that there
27
is a sort of irrationality in requiring the defendant to pay for injuries different in character than
those which it supposedly was negligent in failing to guard against. But if the injury for which
plaintiff seeks recovery was unforeseeable, then a fortiori, she was not negligent in failing to guard
against it.
The classic “directness” case is Polemis (In re Arbitration Between Polemis and Furness, Withy
& Co., Ltd. [1921] 3 K.B. 560). Plaintiff chartered a ship to defendant (a company). Stevedores
hired by the defendant were loading cargo through a hold in the boat when one of them negligently
caused a plank of wood to fall into the hold. When the dropped plank landed on something in the
hold below, the friction between the two pieces of wood generated a spark. The spark ignited
benzene gas that had leaked out into the hold, and a fire ensued, destroying the entire ship. The
ship-owner plaintiff argued that the negligent dropping of the plank caused the fire and that the
defendant should therefore be held liable for the ensuing damages. The defendant responded that
this sequence of events was unforeseeable and therefore proximate cause was missing. The court
sided with the plaintiff, reasoning that the linkage between the harm and the negligent act was
actually quite direct, and that directness was the touchstone of proximate cause.
28
CHAPTER 5: EXCEPTION TO NEGLIGENCE- EGGSHELL SKULL RULE
The eggshell skull rule is an important idea related to causation in Tort law. It means that a
defendant is liable for any damages resulting from the injury they caused the claimant. For
example, if A threw a tennis ball at force at B’s head, B might suffer a slight bruise or some
discomfort. But, if B had an underlying brain condition that A had no idea about, the tennis ball
might end up causing permanent brain damage. The eggshell skull rule says that in both situations,
A will responsible for whatever injury is caused to B, even if there was no way A could guess B’s
condition. This might seems really unfair, but try to remember the underlying idea behind the rule.
The important thing to think about is that tort law Gen.ly says that defendants must take claimants
"as they find them", because they are compensating victims for something caused by their original
action. It is about taking responsibility for conscious actions. Damages are not mitigated because
the victim is more susceptible to injury than an average person
In the English case of Smith v Leech Brain & Co.16, an employee in a factory was splashed with
molten metal. The metal burned him on his lip, which happened to be premalignant tissue. He died
three years later from cancer triggered by the injury. The judge held that as long as the initial injury
was foreseeable, the defendant was liable for all the harm.
In 1891, the Wisconsin Supreme Court came to a similar result in Vosburg v. Putney17.In that case,
a boy threw a small kick at another from across the aisle in the classroom. It turned out that the
victim had an unknown microbial condition that was irritated, and resulted in him entirely losing
the use of his leg. No one could have predicted the level of injury. Nevertheless, the court found
that the kicking was unlawful because it violated the "order and decorum of the classroom", and
the perpetrator was therefore fully liable for the injury. The eggshell skull rule will not apply in all
cases.
16
Smith v Leech Brain & Co [1962] 2 QB 405.
17
Vosburg v. Putney 80 Wis. 523, 50 N.W. 403 (Wis., 1891)
29
The eggshell skull rule should not be mistaken for the crumbling skull rule. The plaintiff might
suffer from a detrimental position, pre-existent to the occurrence of the present tort. Under the
crumbling skull rule, the prior condition can only be put into consideration if it can be distinguished
from the new injury. This is to enable apportioning of damages. The individual who caused harm
will take responsibility for placing the plaintiff in a better position. The position should be much
better compared to what they were in before the current situation.
Beyond Physical Injuries
Application of eggshell skull rule beyond physical injuries has remained debatable. It is easier to
compensate for cases where damages are physical. Such injuries can be treated but traumatic
outcomes cannot be healed because they are invisible. Invisible wounds cannot be measured hence
not liable for a specific amount of compensation. The ball of contention has always been whether
accident victims should be compensated if the incident aggravates a pre-existing condition.
According to the rule, if a plaintiff’s condition was excellent and there was no chance of changing,
then the defendant should provide compensation. In this case, the state of health is not put into
consideration. The law is mostly applicable when dealing with the elderly and disabled individuals.
This group is vulnerable to injury due to their existing conditions.
When it comes to psychological damages, the rule might apply partially. In cases where the
plaintiff, is vulnerable due to a past traumatic event, the rule will apply.
 Exceptions
Intervening cause is typically an exception to the eggshell skull rule. Imagine the following. A
critically injures B. As B is wheeled to an ambulance, she is struck by lightning. She would not
have been struck if she had not been injured in the first place. Clearly then, A caused B's whole
injury on the ‘but for’ or NESS test.1819 However, at law, the intervention of a supervening event
renders the defendant not liable for the injury caused by the lightning.
The effect of the principle may be stated simply:
18
March v Stramare (E & MH) Pty Ltd [1993] HCA 12, (1991) 171 CLR 506 (24 April 1991), High Court (Australia).
19
Civil Liability Act 2002 (NSW) s 5D
30
If the new event, whether through human agency or natural causes, does not break the
chain, the original actor is liable for all the consequences flowing naturally from the initial
circumstances. But if the new act breaks the chain, the liability of the initial actor stops at
that point, and the new actor, if human, will be liable for all that flows from his or her
contribution.
If an injury is not immediate, but a separate situation agitates the injury (such as the injured party
being involved in a vehicular collision while being taken to a hospital), the tortfeasor is not liable
under common law in Australia.2021 In Haber v Walker it was held that a plaintiff will not be liable
for a Novus actus interveniens (intervening act) if the chain of causation was broken by a
voluntary, human act or, an independent event, which in conjunction with the wrongful act, was
so unlikely as to be termed a coincidence.20 In Mahoney v Kruschich Demolitions the plaintiff,
Glogovic, was injured while working on the demolition of a power house for the respondent. While
being treated for his injuries, his injuries were exacerbated by the negligent medical treatment of
the appellant, Mahony. It was held that there was no Novus actus as a result of medical treatment
of injuries caused by the defendant’s negligence, unless such treatment is inexcusably bad or
completely outside the bounds of what a reputable medical practitioner might prescribe.21
Right now, the eggshell skull rule only applies to physical injuries. Excluding physical injuries,
there are other types of injuries as well. Car accidents can cause or worsen emotional trauma or
distress as well as physical injuries that are not visible (also known as invisible injuries).
It is easier to apply the eggshell skull rule to visible physical injuries that can be medically treated
and come with clear and concrete monetary costs (in the form of medical bills and insurance
coverage). Emotional wounds and some invisible injuries, like traumatic brain injuries (TBIs)
cannot be treated that way, however.
With emotional and invisible injuries, there is no straightforward way to objectively measure the
amount of pain an individual experiences and equate it to the trauma associated with a physical
injury — even though the emotional impacts of traumatic events are indisputably real and serious.
20
Sindell, at 596
21
Sindell, at 611-12
31
The problem is that the field of neuroscience and its associated technology isn’t yet advanced
enough to quantify emotional pain and trauma. As technology evolves, though, it may force a
reexamination of how we interact with, distinguish between, and evaluate emotional and physical
pain.
32
CHAPTER 6: CONCLUSION
To conclude, I would like to state that, I have critically analyzed both the cases of Re Polemis and
Wagon Mound. Through the analysis it is seen that though both the cases deal with the concept
remoteness under negligence in law of torts, the judgements in both the cases are determined on the
basis of different elements of Law. In the case of Re Polemis & Furness, Withy & Co Ltd (1921)
the judgement and ratio of the case was based on the element of “Proximate Cause” which states
that the harm must be the direct result of the wrongful conduct regardless of how remote the
possibility of that harm. The case of Re Polemis is an example of strict liability, a concept which
has Gen.ly fallen out of favor with the common law courts. The case may now be considered "bad
law", having been superseded by the landmark decisions of Donoghue v Stevenson and The Wagon
Mound (No 1)
In the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly
known as Wagon Mound (No. 1), the judgement and the ratio of the case was based on the principle
of “Foreseeability”. The Privy Council22 held that a party can be held liable only for loss that was
reasonably foreseeable. It was a landmark tort law case, which imposed a remoteness rule for
causation in negligence.
The Cases of Re Polemis and Wagon Mound are landmark judgements of their time taken as a
reference to determine cases of torts even in contemp. times. These cases have contributed a lot to
the development of the concept of negligence under law of torts and hence I personally consider
these cases to be sources of great knowledge of Tort Law which must be studied by all the Law
students to expand their scope of knowledge in Law of Torts.
 Analysis of Hypothesis
After analyzing various sources and scheme of the government the research came to the conclusion
that the hypothesis of the researcher stands totally true. Thus “Ingredients of Nuisance namely
“Foreseeability” and “Proximate Cause” are important ingredients of final judgement and ratio
decidendi made in these cases.”
22
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No. 1) Note: The Privy Council
is an English court that, at the time of this case, was the final appeal court of Australia
33
The judgement and ratio decidendi in the case of Re Polemis & Furness, Withy & Co Ltd (1921)
emphasizes on the element of “Proximate Cause” under negligence in tort law. This can be seen
in final words of the judge Sankey J. while quoting the judgment of the case.
In the case of Re Polemis, SANKEY J. delivered the judgment of the Board and said:
“In the present case, the respondents were in possession of the claimants' vessel. The respondents'
servants were engaged in the work of discharging her, and although finding of the arbitrators is
that the causing of the spark which kindled the petrol vapor could not reasonably have been
anticipated from the falling of the board, I do not think that that affects the legal position. As above
stated, the respondents were in possession of the claimants' ship; they have been found to have
been guilty of negligence, and it was that negligence which caused the destruction of the vessel.
There is a negligent act and consequent damage which under the peculiar circumstances renders
the respondents liable. It appears to me to be a case of mere damages by negligence of the
respondents' servants.
I cannot help thinking, although I do not for a moment suggest that the case took an unreasonable
time, that it is the largeness of the award which is responsible for the length of the argument. As
to the second point, I am of opinion that the words ' unless lost' in clause 5 do not excuse the
respondents because they do not refer to the case of destruction of the vessel by fire caused by the
respondents' negligence.
The same reasoning applies to the fire referred to in the exception clause 21.In the result, the award
of the arbitrators was correct and must be upheld.”23
Therefore, The Court of Appeal held that a defendant can be deemed liable for all consequences
flowing from his negligent conduct regardless of how unforeseeable such consequences are. The
fact that the extent of these consequences was neither subjectively appreciated nor objectively
foreseeable was deemed irrelevant to such a determination and hence the judgement of this case
was based on the concept of “Proximate Cause” under negligence in law of torts.
23
Re Polemis & Furness, Withy & Co Ltd (1921)
34
The Re Polemis case may now be considered "bad law", having been superseded by the landmark
decision of The Wagon Mound (No 1).
The judgement and ratio decidendi in the case of Overseas Tankship (UK) Ltd v Morts Dock and
Engineering Co Ltd, commonly known as Wagon Mound (No. 1) emphasizes on the element of
“Foreseeability” under negligence in tort law. This can be seen in final words of the judge Viscount
Simonds while quoting the judgment of the case.
In the case of Re Polemis, Viscount Simonds delivered the judgment of the Board and said:
“It is, no doubt, proper when considering tortious liability for negligence to analyse its elements
done. It is not the act but the consequences on which tortious liability is founded. ... Who knows
or can be assumed to know all the processes of nature? But if it would be wrong that a man should
foresaw or could reasonably foresee the intervening events which led to its being done.
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. To
demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires
the observance of a min. standard of behavior.”24
The element of “Foreseeability” under Negligence in the law of torts was given a major emphasis
and the court held foreseeability of the act to be more important than the element of proximate
cause and disregarded the strict liability imposed in Re Polemis case.
Therefore in the case of Wagon Mound No.1, the rule est. in Re Polemis case was disapproved by
The Privy Council as being "out of the current of contemp. thought" and held that to find a party
liable for negligence the damage must be reasonably foreseeable. The council found that even
24
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (Wagon Mound No. 1) [1961]
35
though the crew were careless and breached their duty of care, the resulting extensive damage by
fire was not foreseeable by a reasonable person.
36
CHAPTER 7: LIST OF ABBREVIATIONS USED
 Approx. – approx.
 Est. – established
 Misc. – misc.
 Temp. - temporary
 Vs. – Versus.
 Min. - min.
 Mr. - Mr.
 Corp. -Corp.
 Gen. -Gen.
 Hon.- Honorable
 Inc. –Inc.
 Rev.- Rev.
37
CHAPTER 8: BIBILIOGRAPHY
The researcher has consulted following sources to complete the final proposal:
1. Books:
a. RATANLAL & DHIRAJLAL, THE LAW OF TORTS, (27th Ed., 2016, Lexis Nexis).
b. R.K. BANGIA, Law of Torts With Consumer Protection Act, (2016 Ed.,
ALLAHABAD LAW AGENCY)
c. Handbook of the Law of Torts by H Gerald Chapin, (2016, Gale, Making of Modern
Law).
d. Winfield and Jolowicz on Tort (2016)
e. Handbook on the Law of Negligence Paperback by Morton (2016, Wentworth Press,
23rd Ed. (2016)
f. The Law of Negligence by James Henry Deering (2010, Gale, Making of Modern
Law)
g. The Province of the Law of Tort by Percy H. Winfield (2013, Cambridge University
Press Reissue edition )
2. Statutes:
a. CONSTITUTION OF INDIA.
b. CODE OF CRIMINAL PROCEDURE, 1973.
c. INDIAN PENAL CODE, 1860.
3. Websites:
a. Academike
b. iPleaders
c. India Law Journal
d. Legal Service India
e. SCC Online Research Repository
38
CONCEPT OF INJURIA SINE DAMNO
Injuria sine damno –
Let's see meaning of maxim 'injuria sine damno'
1) Injuria - injury to legal right

2) Sine -without
3) Damno - damages, monetary loss.
o Meaning
The meaning of this maxim is injury to legal right without any monetary loss. This is
actionable, because there is violation of legal right, even though plaintiff suffer no loss in term of
money and defendant is liable.
In simple words, Injuria sine damno means Injury without damage or it means infringement of
an absolute private right without any actual loss or damage. Whenever there is an invasion of legal
right, the person in whom the right is vested is entitled to bring an action and may recover damages,
although he has suffered no actual harm. In such case, the person need not prove the actual damage
caused to him. Example Trespass to land or property.
Suppose 'A' enter a private compound without permission of the owner just for asking water,
here the moment 'A' step in, A commit trespass and action can lie against 'A' even no actual damage
is caused.
Here are some famous cases -
39
1) Ashby v/s White, 1703
o Fact-
Plaintiff was legal voter, his name was there in voter list. Defendant was a returning officer, i.e.
in charge of election. Defendant refused the plaintiff to offer or to tender his lawful vote to his
candidate. Plaintiff sued Defendant. For compensation even though no loss is caused in term of
money.
o Issue
Whether defendant is liable.
o Defense of Deft
The plaintiff suffered no loss in money. Moreover, the candidate to whom he was about to offer
/tender his vote got elected. So defendant is not liable.
o Held
Court held that Deft.is liable to pay compensation because he has violated legal right of plaintiff
to vote. Even though plaintiff suffered no actual loss in term of money, or the candidate to whom
plaintiff was interested got elected, defendant has committed a tort and therefore liable to pay
compensation.
2) Ashrafilal Vs. Municipal Corp. of Agra
o Fact
It is the similar case to Ashby v White. The name of plaintiff was deleted, dropped from voter
list by the Deft Corp., so plaintiff couldn't exercise his right to vote. Plaintiff sued Defendant Corp.
for compensation.
o Issue
Is Corp. liable?
40
o Held
Court accepted the principal of Ashby v/s White e.g. injuria sine damnum.
3) Marzetti v/s Williams 1830

(Bank refusing customer’s cheque)
Fact -
Plaintiff was an account holder or customer who was having amount in his account he went to
withdraw money by Self cheque. Though there was sufficient amount in his account, the
Defendant banker refused to pay plaintiff without any reason. So plaintiff filed a suit against
Defendant banker for damage.
Held -
Even though plaintiff suffered no monetary loss. Defendant is liable for refusing customers
cheque and therefore committed tort.
41
CONCEPT OF DAMNUM SINE INJURIA
o Meaning -
1. Damnum - Damage in the sense of money, Loss of comfort, service , health etc.
2. Sine -without
3. Injuria - Infringement of a legal right / injury to legal right.
Damnum sine injuria means damages, monetary loss, to the plaintiff without violation of legal
right, not actionable because no injury to legal right.
In Simple words, Damnum sine injuria means damage without infringement of any legal right.
damage without injury is not actionable. Mere loss of money's worth does not of itself constitute
legal damage. There are many acts which though harmful are not wrongful in the eyes of law,
therefore do not give rise to a right of action in favor of the person who sustains the harm. No one
is to be considered a wrong doer who merely avails himself of his legal rights, though his action
may result in damage to another.
Here are some famous cases -
1) Gloucester Grammar school case
Fact -
Defendant was school teacher in plaintiff's school. Because of some dispute Deft left plaintiff's
school and started his own school. As defendant was very famous amongst students or his teaching,
boys from plaintiff’s school left and joined to defendant’s School. Plaintiff sued defendant for
monetary loss caused.
Held -
Deft not liable. Compensation is no ground of action even though monetary loss in caused if
no legal right is violated of anybody.
42
2) Ushaben vs. Bhagyalaxmi Chitra Mandir
In this case, the plaintiff pleaded before the court of law to issue a permanent injunction order on
the film named, “Jai Santoshi Maa”. According to her, the film hurt the religious feelings of the
plaintiff. It was observed that hurting of religious sentiments did not result in any legal injury, and
also that other then the plaintiff no other person feelings were hurt. Therefore it was held that the
defendant was not liable.
43

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CASE ANALYSIS OF RE POLEMIS AND WAGON MOUND

“CASE ANALYSIS OF RE POLEMIS AND

Ayush Amar Pandey, B.B.A. L.L.B. (Hons.) (2219)

Centre Coordinator, Child Rights Centre, CNLU, Patna

This final draft is submitted in the partial fulfilment of the

Chanakya National Law University, Patna

DECLARATION BY THE CANDIDATE

“CASE ANALYSIS OF RE POLEMIS AND WAGON MOUND”

(Signature of the Candidate)

NAME: AYUSH AMAR PANDEY

COURSE: B.B.A. L.L.B. (Hons.)

ROLL NO: 2219

SEMESTER: 2019-2020 (1st)

NAME: AYUSH AMAR PANDEY

COURSE: B.B.A. L.L.B. (Hons.)

ROLL NO: 2219

SEMESTER: 2019-2020 (1st)

Declaration by the Candidate .......................................................................................................2

Table of Contents ....................................................................................................................... 4-5

CHAPTER 1: Introduction .................................................................................................... 6-10

CHAPTER 4: Concept of Tortious Liability under Negligence as seen in cases of Re Polemis

 The test of reasonable foresight (Foreseeability Test)

 The test of directness (Proximate Cause Test)

CHAPTER 5: Exceptions to Negligence – Eggshell Skull Rule ......................................... 29-32

CHAPTER 6: Conclusion ..................................................................................................... 33-36

CHAPTER 7: List of Abbreviations used..................................................................................38

CHAPTER 8: Bibliography ........................................................................................................39

a) Aims and objectives:

The researcher wants to:

g) Limitations of the study:

CHPATER 2: CASE ANALYSIS OF RE POLEMIS AND FURNESS, WITHY

CHPATER 3: CASE ANALYSIS OF OVERSEAS TANKSHIP (UK) LTD.

VS. MORTS DOCK AND ENGINEERING CO. LTD. (1961) (WAGON

Viscount Simonds delivered the judgment of the Board and said:

o WHEN PRECISE CAUSE CANNOT BE IDENTIFIED

CHPATER 4: CONCEPT OF TORTIOUS LIABILITY UNDER

i. The test of reasonable foresight

Let us see these formulas or rules in detailed manner as follows:

i. THE TEST OF REASONABLE FORESIGHT (FORSEEABILITY TEST)

ii. THE TEST OF DIRECTNESS (PROXIMATE CAUSE TEST)

While cause-in-fact causation is a relatively straightforward concept, proximate cause is harder to

o Market share evidence.15Injury or illness is occasioned by a fungible product made by all

CHAPTER 5: EXCEPTION TO NEGLIGENCE- EGGSHELL SKULL RULE

The effect of the principle may be stated simply:

CHAPTER 7: LIST OF ABBREVIATIONS USED

CONCEPT OF INJURIA SINE DAMNO

Injuria sine damno –

Let's see meaning of maxim 'injuria sine damno'

1) Injuria - injury to legal right

Here are some famous cases -

1) Ashby v/s White, 1703

2) Ashrafilal Vs. Municipal Corp. of Agra

3) Marzetti v/s Williams 1830

CONCEPT OF DAMNUM SINE INJURIA

Here are some famous cases -

1) Gloucester Grammar school case

2) Ushaben vs. Bhagyalaxmi Chitra Mandir

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