December 20, 2020
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He also made the all important finding, which must be set out in his own words. Privy Council Appeal No. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. 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 second case was "H.M.S. It is doubtful whether In re Polemis and Furness Withy & Co. can survive these decisions. It is inevitable that first consideration should be given to the case of In re Polemis & Furness Withy & Company Ltd.  3 K.B. 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. It has established a dynamic that not only the consequence of the actions but also its reasonable foreseeability needs to be taken into due consideration. 560 which will henceforward be referred to as "Polemis ". Overseas Tankship were charterers of the Wagon Mound, which was docked across the harbour unloading oil. 577, nor to Cockburn C.J. The defendants are the owners of the vessel Wagon Mound, which was moored 600 feet from a wharf. Eventually the oil did ignite when a piece of molten metal fell into the water … Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight. Duncan. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. During the early hours of the 30th October, 1951, a large quantity of bunkering oil was through the carelessness of the appellants' servants allowed to spill into the bay and by 10:30 on the morning of that day it had spread over a considerable part of the bay, being thickly concentrated in some places and particularly along the foreshore near the respondents' property. What then did Polemis decide? The words "tort" and "tortious" have perhaps a somewhat sinister sound but, particularly where the tort is not deliberate but is an act of negligence, it does not seem that there is any more moral obliquity in it than in a perhaps deliberate breach of contract, or that the negligent actor should suffer a severer penalty. The acceptance of the rule in Polemis as applicable to all cases of tort directly would conflict with the view theretofore generally held. Explain with cases, the liability of the Master for the acts of the servant, done during the course of his employment. 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. affirmed (stating it to be his own view only and not that of the court) that he entertained "considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise and in respect of mischief which could by no possibility have been foreseen and which no reasonable person would have anticipated." Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon Mound (No. He enquired of the manager of the Caltex Oil Company, at whose wharf the "Wagon Mound" was then still berthed, whether they could safely continue their operations on ,the wharf or upon the "Corrimal". Next, one of many cases may be cited which show how shadowy is the line between so-called culpability and compensation. A vessel was chartered by appellant. The test of directness that was upheld in the Re Polemis case was considered to be incorrect and was rejected by the Privy Council 40 years later in the case of Overseas Tankship (UK) Ltd. v. Morts Dock and Engg. 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. The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. Enough has been said to show that the authority of Polemis has been severely shaken though lip-service has from time to time been paid to it. In the case of the "Liesbosch"  A.C. 448 the appellants whose vessel had been fouled by the respondents, claimed damages under various heads. This consideration may play a double role. As Lord Denning said in King v. Phillips  1 Q.B. 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. 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. Who knows or can be assumed to know all the processes of nature? It is vain to isolate the liability from its context and to say that B is or is not liable, and then to ask for what damage he is liable. In an action by Mort's Dock for damages for negligence it was found as a fact that the defendants did not know and could not reasonably have been expected to know that the oil was capable of being set alight when spread on water. This is the old version of the H2O platform and is now read-only. It is, no doubt, proper when considering tortious liability for negligence to analyse 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. 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. 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. Woods v. 14. Appellant owned the Wagon Mound, from which by a careless act oil overflowed onto the surface of the water. Some hours later much of the oil had drifted to and accumulated on Sheerlegs Wharf and the respondent’s vessels. For the remainder of the 30th October and until about 2 p.m. on 1st November work was carried on as usual, the condition and congestion of the oil remaining substantially unaltered. A large quantity of furnace oil was released into the harbour as a result of the carelessness of OT’s employees. But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done; cf. 1)  The Wagon Mound (No. of want of due care according to the circumstances. Thus Lord Justice Asquith himself, who in Thurogood v. Van den Berghs & Jurgens  2 K.B. Morts owned and operated a dock in Sydney Harbour. For the same fallacy is at the root of the proposition. 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." But it is far otherwise. There was no evidence that the defendant knew of the grating being obstructed. What rules govern the determination of the remoteness of dam-ages Refer to Scott V. Shepherd and The Wagon Mound Case. 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. It is not the act but the consequences on which tortious liability is founded. But there can be no liability until the damage has been done. In their Lordships' opinion it should no longer be regarded as good law. It was repeated by Lord Sumner in the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens  A.C. 956 at p. 983. Their Lordships substitute the word "fire" for "shock" and endorse this statement of the law. 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. 114. Their Lordships, as they have said, assume that the court purported to propound the law in regard to tort. About 600 ft. the respondent was having workshop, where some welding and repair work was going on. Court judgments are generally lengthy and difficult to understand. In Glasgow Corporation v. Muir  A.C. 448 at p. 454 Lord Thankerton said that it had long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care judged by the standard of the ordinary reasonable man, while Lord Macmillan said that "it is still left to the judge to decide what in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen." Contributory negligence on the part of the dock owners was also relevant in the decision, and was essential to the outcome, although not central to this case's legal significance. Nothing that they have said is intended to reflect on that rule. 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. There the statement in Smith's case was followed, Sir Samuel Evans citing Blackburn J.: "What the defendants might reasonably anticipate is only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence." The fact of the case: “Wagon Mound” actually is the popular name of the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961). 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. LORD TUCKER said of the same passage," with that view of the law no one would venture to quarrel". 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. It is difficult to reconcile the decisions and the views of prominent comÂ¬mentators and jurists differ in important respects. It would, indeed, appear to their Lordships that, unless the learned Chief Justice was making a distinction between "one who commits a wrongful act" and one who commits an act of negligence, the case is not reconcilable with Polemis. But there can be no liability until the damage has been done. They approved that which they cited and their approval has high authority. Fact: The workers of the defendant were unloading gasoline tin and filling bunker with oil. Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. 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 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. Before turning to the cases that succeeded it, it is right to glance at yet another aspect of the decision in Polemis. Here was the opportunity to deny the rule or to place it secure upon its pedestal. Synopsis of Rule of Law. 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? Applying the rule in Polemis and holding therefore that the unforeseeability of the damage by fire afforded no defence, they went on to consider the remaining question. The Privy Council's advice soundly disapproved the rule established in Re Polemis, as being "out of the current of contemporary thought" and held that to find a party liable for negligence the damage must be reasonably foreseeable. 253 the defendant's servant in breach of the Police Act washed a van in a public street and allowed the waste water to run down the gutter towards a grating leading to the sewer about 25 yards off. The plaintiff's horse, while being led past the spot, slipped upon the ice and broke its leg. In Sharp v. Powell Law Rep. 7 C.P. however, goes to culpability, not to compensation." Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon Mound (No. When the respondents' works manager became aware of the condition of things on the vicinity of the wharf he instructed their workmen that no welding or burning was to be carried on until further orders. 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. You can help us to keep this page up to date: 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. 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. "No doubt," he said, "one who commits a wrongful act is responsible for the ordinary consequences which are likely to result therefrom; but, generally speaking, he is not liable for damage which is not the natural or ordinary consequence of such an act unless it be shown that he knows or has reasonable means of knowing that consequences not usually resulting from the act are by reason of some existing cause likely to intervene so as to occasion damage to a third person. It would not be possible or feasible in this judgment to examine them in anything approaching detail." "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."  Facts. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility. 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. It may however be observed that in the proceedings there was some confusion. This is the supreme test, and may be rephrased as "the liability of a consequence ... was natural or necessary or probable." Each of them rests on its own bottom, and will fail if it can be established that the damage could not reasonably be foreseen. Aust. 23 of 1960, Jurisdiction: The wagon mound case has set a significant standing in the aspect of negligence and the liability towards the tortfeasors. The Wagon Mound principle. Yet Hadley v. Baxendale was not cited in argument nor referred to in the judgments in Polemis. 2)  Thoburn v Sunderland City Council  Thomas v Clydesdale Bank  Thomas v National Union of Miners  Thomas v Sawkins  Thomas v Sorrell (1673) Thomas v Thomas  Thompson v Foy  Thompson v Gibson  Thompson v Park  Thorner v Major  It is not strange that Sir Frederick Pollock said that Blackburn and Willes J.J. would have been shocked beyond measure by the decision that the charterers were liable in tort: see Pollock on Torts, 15th edn., p. 29. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. The Privy Council held that a party can be held liable only for loss that was reasonably foreseeable. 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. If the claim for breach of contract had been pursued, the charterers could not have been held liable for consequences not reasonably foreseeable. 537 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd.  2 Q.B. When molten metal dropped by Mort’s workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly damaged. In the year 1913 in the case of H.M.S. The fire spread … There is authority to challenge this view of hindsight; in Page v Smith, Lord Lloyd stated: "In the case of secondary victims, i.e. A large quantity of oil was spilled into the harbour. The Wagon Mound No.2 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. Courts below approved was correct was not dealt with may be cited which show how shadowy is the old of... Surely not prejudice his claim if that other claim failed: it not... 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