Torts Case of Remoteness Essays

Torts Case of Remoteness Essays Torts Case of Remoteness Paper Torts Case of Remoteness Paper the owners of Sheerlegs Wharf, were carrying out oxy-acetylene welding and cutting. This work was apt to cause pieces or drops of hot metal to fly off and fall in the sea. So when their manager arrived on the morning of 30th October and saw the thick scum of oil round the Wharf he was apprehensive of fire danger and he stopped the work while he took advice. He consulted the manager of Caltex Wharf and after some further consultation he was assured that he was safe to proceed: so he did so, and the repair work was carried on normally until the fire broke out on 1st November. Oil of this character with a flash point of 170op. is extremely difficult to ignite in the open. But we now know that that is not impossible. There is no certainty about how this oil was set alight, but the most probable explanation, accepted by Walsh J. , is that there was floating in the oil-covered water some object supporting a piece of inflammable material, and that a hot piece of metal fell on it when it burned for a sufficient time to ignite the surrounding oil. The findings of the learned trial judge [i. e. in this case – Wagon Mound No 2] are as follows:- (l) Reasonable people in the position of the officers of the Wagon Mound would regard furnace oil as very difficult to ignite upon water. 2) Their personal experience would probably have been that this had very rarely happened. (3) If they had given attention to the risk of fire from the spillage, they would have regarded it as a possibility, but one which could become an actuality only in very exceptional circumstances. (4) They would have considered the chances of the required exceptional circumstances happening whilst the oil remained spread on the har bour waters, as being remote. (5) I find that the occurrence of damage to the plaintiffs property as a result of the spillage, was not reasonably foreseeable by those for whose acts the defendant would be responsible. 6) I find that the spillage of oil was brought about by the careless conduct of persons for whose acts the defendant would be responsible. (7) I find that the spillage of oil was a cause of damage to the property of each of the plaintiffs. (8) Having regard to those findings, and because of finding (5), I hold that the claim of each of the plaintiffs, framed in negligence, fails. †¦. Of the large number of cases cited in argument †¦based purely on negligence, †¦[t]heir Lordships do not intend to examine these cases in detail. It has now been established by the Wagon Mound No. 1 and by Hughes v. Lord Advocate [1963] A. C. 837 that in such cases damages can only be recovered if the injury complained of was not only caused by the alleged negligence but was also an injury of a class or character foreseeable as a possible result of it. †¦In their Lordships judgment the cases point strongly to there being no difference as to the measure of damages between nuisance and negligence but they are not conclusive. So it is desirable to consider the question of principle. NOTE from CS: The reason for this comparison is that the case was also argued in nuisance and the trial judge found there to be liability in nuisance on the basis that nuisance requires only the natural/direct consequence test whereas Wagon Mound No 1 had changed the law of negligence to require the reasonable foreseeability test. So the House of Lords in Wagon Mound No 2 were looking at both the application of the reasonable foreseeability test for negligence to the negligence claim in Wagon Mound 2 and at whether that same test should be the test for remoteness of damage in nuisance. We are not concerned with the nuisance law aspects, but only with the reasoning that discusses what reasonable foreseeability means in general and in particular in the negligence context. ] †¦Comparing nuisance with negligence the main argument for the respondent was that in negligence foreseeability is an essential element in determining liability and therefore it is logical that foreseeability should also be an essential element in determining the amount of damages: but negligence is not an essential element in determining liability for nuisance and therefore it is illogical to bring in foreseeability when determining the amount of damages. It is quite true that negligence is not an essential element in nuisance. Nuisance is a term used to cover a wide variety of tortious acts or omissions and in many negligence in the narrow sense is not essential. An occupier may incur liability for the emission of noxious fumes or noise although he has used the utmost care in building and using his premises. The amount of fumes or noise which he can lawfully emit is a question of degree and he or his advisers may have miscalculated what can be justified. Or he ay deliberately obstruct the highway adjoining his premises to a greater degree than is permissible hoping that no one will object. On the other hand the emission of fumes or noise or the obstruction of the adjoining highway may often be the result of pure negligence on his part: there are many cases (e. g. , Dollman v. Hillman [1941] 1. All E. R. 355) where precisely the same facts will establish liability both in nuisance and in negligence. And although negligence may not be necessary, fault of some kind is almost always necessary and fault generally involves foreseeability, e. . , in cases like Sedleigh-Denfield v. OCallaghan [1940] A. C. 880 the fault is in failing to abate a nuisance of the existence of which the defender is or ought to be aware as likely to cause damage to his neighbour. †¦ [Note from CS: in this paragraph, the Lords find that reasonable foreseeability is also the remoteness test in nuisance. It is retained in this edit so that you can follow the flow of the case, but, again, you are not responsible for nuisance law for the exam problem. It could not be right to discriminate between different cases of nuisance so as to make foreseeability a necessary element in determining damages in those cases where it is a necessary element in determining liability, but not in others. So the choice is between it being a necessary element in all cases of nuisance or in none. In their Lordships judgment the similarities between nuisance and ot her forms of tort to which the Wagon Mound No. 1 applies far outweigh any differences, and they must therefore hold that the judgment appealed from is wrong on this branch of the case. It is not sufficient that the injury suffered by the respondents vessels was the direct result of the nuisance if that injury was in the relevant sense unforeseeable. It is now necessary to turn to the respondents submission that the trial Judge was wrong in holding that damage from fire was not reasonably foreseeable. In Wagon Mound No. 1 the finding on which the Board proceeded was that of the trial Judge: the defendant did not know and could not reasonably be expected to have known that [the oil] was capable of being set afire when spread on water. In the present case the evidence led was substantially different from the evidence led in Wagon Mound No. 1 and the findings of Walsh J. are significantly different. That is not due to there having been any failure by the plaintiffs in Wagon Mound No. 1 in preparing and presenting their case. The plaintiffs there were no doubt embarrassed by a difficulty which does not affect the present plaintiffs. The outbreak of the fire was consequent on the act of the manager of the plaintiffs in Wagon Mound No. 1 in resuming oxy-acetylene welding and cutting while the wharf was surrounded by this oil. So if the plaintiffs in the former case had set out to prove that it was foreseeable by the engineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in parrying the reply that this must also have been foreseeable by their manager. Then there would have been contributory negligence and at that time contributory negligence was a complete defence in New South Wales. The crucial finding of Walsh J. in this case is in finding 5: that the damage was not reasonably foreseeable by those for whose acts the defendant would be responsible. That is not a primary finding of fact but an inference from the other findings, †¦The vital parts of the findings of fact which have already been set out in full are (1) that the officers of the Wagon Mound would regard furnace oil as very difficult to ignite upon water - not that they would regard this as impossible: (2) that their experience would probably have been that this had very rarely happened -not that they would never have heard of a case where it had happened, and (3) that they would have regarded it as a possibility, but one which could become an actuality only in very exceptional circumstances - not, as in Wagon Mound No. , that they could not reasonably be expected to have known that this oil was capable of being set afire when spread on water. The question which must now be determined is whether these differences between the findings in the two cases do or do not lead to different results in law. In Wagon Mound No. 1 the Board were not concerned with degrees of f oreseeability because the finding was that the fire was not foreseeable at all. So Lord Simonds had no cause to amplify the statement that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen (at p. 426). But here the findings show that some risk of fire would have been present to the mind of a reasonable man in the shoes of the ships chief engineer. So the first question must be what is the precise meaning to be attached in this context to the words foreseeable and reasonably foreseeable. [Note from CS: This is where Weinrib’s extract starts at p 80 in his book. Before Bolton v. Stone [1951] A. C. 850 the cases had fallen into two classes: (1) those where, before the event, the risk of its happening would have been regarded as unreal either because the event would have been thought to be physically impossible or because the possibility of its happening would have been regarded as so fantastic or farfetched that no reasonable man would have paid any attention to it -a mere possibi lity which would never occur to the mind of a reasonable man (per Lord Dunedin in Fardon v. Harcourt-Rivington [1932] 146 L. T. 391) or (2) those where there was a real and substantial risk or chance that something like the event which happens might occur, and then the reasonable man would have taken the steps necessary to eliminate the risk. Bolton v. Stone posed a new problem. There a member of a visiting team drove a cricket ball out of the ground onto an unfrequented adjacent public road and it struck and severely injured a lady who happened to be standing in the road. That it might happen that a ball would be driven on to this road could not have been said to be a fantastic or far-fetched possibility: according to the evidence it had happened about six times in 28 years. And it could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable it was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it. But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so: e. g. that it would involve considerable expense to eliminate the risk, He would weigh the risk against the difficulty of eliminating it. If the activity which caused the injury to Miss Stone had been an unlawful activity there can be little doubt but that Bolton v. Stone would have been decided differently. In their Lordships judgment Bolton v. Stone did not alter the general principle that a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What that decision did was to recognise and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it. In the present case there was no justification whatever for discharging the oil into Sydney Harbour. Not only was it an offence to do so but it involved considerable loss financially. If the ships engineer had thought about the matter there could have been no question of balancing the advantages and disadvantages. From every point of view it was both his duty and his interest to stop the discharge immediately. It follows that in their Lordships view the only question is whether a reasonable man having the knowledge and experience to be expected of the chief engineer of the Wagon Mound would have known that there was a real risk of the oil on the water catching fire in some way: if it did, serious damage to ships or other property was not only foreseeable but very likely. Their Lordships do not dissent from the view of the trial Judge that the possibilities of damage must be significant enough in a practical sense to require a reasonable man to guard against them but they think that he may have misdirected himself in saying there does seem to be a real practical difficulty, assuming that some risk of fire damage was foreseeable, but not a high one, in making a factual judgment as to whether this risk was sufficient to attract liability if damage should occur. In this difficult chapter of the law decisions are not infrequently taken to apply to circumstances far removed from the facts which gave rise to them and it would seem that here too much reliance has been placed on some observations in Bolton v. Stone and similar observations in other cases. In their Lordships view a properly qualified and alert chief engineer would have realised there was a real risk here and they do not understand Walsh J. to deny that. But he appears to have held that if a real risk can properly be described as remote it must then be held to be not reasonably foreseeable. That is a possible interpretation of some of the authorities. But this is still an open question and on principle their Lordships cannot accept this view. If a real risk is one which would occur to the mind of a reasonable man in the position of the defendants servant and which he would not brush aside as far-fetched and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense. In the present case the evidence shows that the discharge of so much oil on to the water must have taken a considerable time, and a vigilant ships engineer would have noticed the discharge at an early stage. The findings show that he ought to have known that it is possible to ignite this kind of oil on water. and that the ships engineer probably ought to have known that this had in fact happened before. The most that can be said to justify inaction is that he would have known that this could only happen in very exceptional circumstances. But that does not mean that a reasonable man would dismiss such a risk from his mind and do nothing when it was so easy to prevent it. If it is clear that the reasonable man would have realised or foreseen and prevented the risk then it must follow that the appellants are liable in damages. The learned Judge found this a difficult case: he says that this matter is one upon which different minds would come to different conclusions. Taking a rather different view of the law from that of the learned Judge, their Lordships must hold that the respondents are entitled to succeed on this issue. †¦