THE

MODERN L A W R E V I E W
Volume 25

January 1962

No. 1

FORESIGHT AND REMOTENESS

O F DAMAGE I N NEGLIGENCE
IN Overseas Tankship (U.K.)Ltd. v. Morts Dock ds. Engineering
Co., Ltd., an appeal from New South Wales, the Privy Council
has recently held that a defendant is liable in negligence only for
those consequences of his acts that a reasonable man could have
foreseen, and in doing so has repudiated the rule, laid down by
the Court of Appeal in R e Polemis and Furness W i t h y c!+ Co.,
Ltd.,2 that a defendant is liable for all the direct consequences of
his acts, even though unforeseeable. Though English courts are not
bound by the Privy Councils decision, it would be foolish to suppose that the opinion of the Board will be ignored by English
judges. The Privy Council thought that the Polemis rule was
inconsistent with other decisions of the Court of Appeal and House
of Lords.s If this reasoning is accepted, it would clearly be open
to the Court of Appeal to refuse to follow R e Polemis on one or
more of the grounds laid down in Young v. Bristol Aero. CO., and
it is possible that lower courts will feel free to do the same.5

THE WAGONMOUND
The Wagon Mound (as the decision will be called for short)
involved liability for damage done by fire, like many of the leading
English and American cases on remoteness of damage. The
defendants, charterers of the as. Wagon Mound, while taking on
bunkering oil at the Caltex wharf in Sydney Harbour, carelessly
spilt a large quantity of oil into the bay, some of which spread to
the plaintiffs wharf some 600 feet away, where the plaintiffs were
1

4
6

A.C. 388.
2 [I9211 3 K.B.560.
Son, Ltd. V. France, Fenwick d Co., Ltd. [1911] 1 K.B. 114:
Lynch v. Knight (1861) 9 H.L.C.577; Olaugow Corporation v. Muir 431
A.C. 448; Bourhill v. Young [l943] A.C. 6a; Wooda v. Duncan [1946] A.C.
401; Hadley v. Baxcndals (1864) 9 Exch. 341.
[1944] K.B. 718.
See R. v. Northumberland Compenaatwn Appeal Tribunal, am p. Shaw [1951]
1 K.B. 711; Armstrong v. Strain [1961] 1 T.L.R. 856; King v. Phillips
[issa] a AH E.R.469.
[ 19611

i.e., Cory d

1
VOL

21

THE MODERN LAW REVIEW

VOI..25

refitting a ship. On noticing the oil, the plaintiffs ordered their

men to stop using electric and oxy-acetylene apparatus and
telephoned the manager of the Caltex oil Co. t o ask whether it
would be safe to carry on. Having been assured that there was no
danger, the plaintiffs resumed work. Two days later the oil caught
alight and the wharf was seriously damaged by fire.
It was found by the trial judge, Kinsella J.,' that the fire started
by some molten metal falling on a piece of cotton waste or rag
impregnated with oil lying on some debris under the wharf and
then spread to the oil floating on the water. The Caltex manager
and the plaintiffs had both thought that the flashpoint of furnace
oil was too high for it to be set alight when spread on water, and
Kinsella J. held that the defendants could not, in the light of what
was then known, reasonably have foreseen the danger of fire. But
they could have foreseen that the oil might (as it did) foul the
plaintiffs' slipways, and this being so they were, he held, on the
authority of Re Polemis, liable for the damage done by the fire,
which was a direct consequence of the escape of the oil. His
judgment was upheld by the Supreme Court of New South wale^,^
though not without criticism of the Pokmis rule and the result
it led to.
The Privy Council allowed the defendants' appeal for the reasons
given earlier. Since the defendante could not, on the trial judge's
findings, have foreseen the danger of fie, they were not liable in
negligence for the damage done by it. The Privy Council dealt
only with the issue of liability for negligence. The trial judge,
having held the defendants liable in negligence, had not dealt with
the plaintiffs' alternative claim in nuisance. The Privy Council
thought that they should not be shut out from pursuing this
alternative claim, and therefore remitted the case on this issue to
the Supreme Court to be dealt with as the court should think tit.*
Strict liability under the rule in Rylands v. FZetcher was also
expressly excluded from the scope of the judgment.
No useful purpose would be served by a detailed examination
of the Privy Council's discussion of the cases. It was assumed that
all questions of remoteness of damage in liability for negligence
must be governed by a single principle, with the result that cases
like Woods v. Duncan,B Glasgow COTP.v. Muir l o and C o y 4 Son,
Ltd. v. France, Fenwick 4 Co., Ltd.," which turned on the foreseeability of some event occurring, were taken to throw doubt on the
Polemis rule.
6

9
10

His 'udgment i n reported in [l96;8]1 Lloyd's Rep. 576;.

[l95b] 2 Lloyd's Rep. 697.
r18611 A.C. at 427. Since liability in nuisance would. in such 8 situation,
torn bn the erintence of negligence (cf. Longhur8t V; Metropolitan Water
Board [1948] a All E.R. a%), it is odd that the Pnvy Council could contemplate that a claim in nuisance might lead to a different result.
[l946] A.C. 401.
[1943] A.C. 448.
11 [lQll]
1 K.B. 114.

JAN.

1962

FORESIGHT AND REMOTENESS IN NEGLIGENCE

The opinion is somewhat eclectic in its citation of cases and

dicta. The well-known dicta of Lord Denning in Minister of
Pensions v. Chennell l a and Roe V. Ministry of Health are cited
in support of the foresight principle 14: there is no reference to his
rejection of foreseeability (LB the decisive test of causation in Jones
V. Livoa: Quarries Ltd.16 and Cork v. Kirby Maclean Ltd.18 A
passage from the judgment of Lord Russell of Killowen in Bourhill
v. Young I T is also cited in support of the principle,18 but there is
no reference to Lord Wrights firm approval of Re Polemis in the
same case.* Nor is there any reference to the cases where English
courts have followed Re Polemis,20 apart from a suggestion that
Asquith L.J. did so loyally in Thurogood v. Van den Berghs (5.
Jurgens L t d Z 1 As regards the antecedents of Polemis, the wellknown dicta of Channel1 B., Blackburn J. and Kelly C.B. in Smith
v. L. (5. S.W. Ry.aa were dismissed on the ground, inter alia, that
the law o
f negligence as an independent tort was then of recent
growth and that its implications had not then been fully
examined, Iawhile Lord Sumners equally well-known statement,
in Weld-Blundell v. step hen^,^' that foresight goes to culpability,
not to compensation, was said to be unnecessary to his decision and
< fundamentally false.
Lord Sumners dictum was interpreted,
strangely, as postulating a distinction between liability and compensation,28which it is far from clear that he would have wished
to defend.
These points are not mentioned in order to show that the Wagon
Mound, or the foresight principle, is wrong, but merely to
indicate that it is one of thoee not infrequent cases where the earlier
authorities could have been interpreted to support a different conclusion. If the foresight principle is accepted by English courts, it
is to be hoped that it will be because of its merits, and not because
of any supposed compulsion in the earlier cases.
I

[18471 K.B. a60 at 263.

i a [la641 2 Q.B. 66 at 86.

In both caser he,,did in fact ray that foreseeebili!T is disregarded when the
negli enm i n the immediate or precipitating oaure of the damage.

14

[1962! 2 Q.B. BOB at 616-616.

[I9621 2 All E.R. 402 at 407.
[18683 A.C. 92 at 101.
18 [1961] A.C. at 421-422.
1, [1948] A.C. at 106-110.
20 i.e., Hamjrook V. Stokes Bros. [l926] 1 K.B. 141; Aldham v. United Dairies
(London), Ltd. [1940] 1 K.B. 607; Pigney v. Pointers Transport Seroices,
Ltd. [1957] 2 All E.R. 807; KiZlgoZZan v. William Cooks b Co., Ltd. [l966]
2 All E.R. 294; Thurogood v. Van Den Berghs d Jurgenu, Ltd. [l95l] 2 K.B.
537; Schneider v. Eisooitch [lW] 2 Q.B. 480.
2 1 [1961] 2 K.B. 637. No reluctance t
o follow Re Polemir ia apparent in his
judgment.
22 (1870)L.R. 6 C.P. 14 at 20, 21.
aa [l96l] A.C. s t 416.
a4 [191;0]A.C. 866 at 984.
25 [leSl] A.C. at 417, 425.
ar At 426. Cf. Goodhart, Liability and Compensation (1860) 76 L.Q.R. 667
at p. 676.
15
18

17

THE MODERN LAW REVIEW

THE EFFECT
OF

V O ~ .2n
.

THE FORE81GHT PBWCIPLE

Beyond deciding that the defendants in The Wagon Mound were

not liable for the damage done by the fie, the Privy Council did
not consider what the effect of the foresight rule would be in the
various problems of remoteness that come before the courts. I n
this respect the opinion differs from the judgment of Lord Sumner,
in Weld-Blundell v. step hen^,^' who based his preference for the
term direct on a wide survey of the cases. The Privy Council
was content to say, in repudiating Re Polemis, that 6 it is not probable that many cases will for that reason have a different result.
Two recent articles by Dr. Goodhart ap and Dr. Glanville
Williams,se who support the foresight principle, suggest that a
criterion of foreseeability would in fact make little change in the law.
It is unlikely, in the fbst place, to affect the swelled egg-shell
skull rule, under which a tortfeasor must take his victim as he
finds him and is liable for any exceptional harm which results from
some peculiar condition of the plaintiff. Both Dr. Goodhart and
Dr. Williams accept this rule, though they justify it in different
ways. Dr. Goodhart seeks to preserve the purity of the foresight
principle by insisting that although it is unusual to h d a man
with such a skull, it is not so extraordinary as to make the consequences unforeseeable. 8s Dr.Williams, on the other hand, thinks
that the rule is a justifiable exception to the risk principle, though
he would confine it to injury to the person so as to avoid a justification by analogy of the decision in Polemb itself.8a
Liability for ulterior harm is also unlikely t o be affected. In
The City of Linc~ln,~
the plaintiffs ship lost her steering compass
and charts in a collision caused by the defendants negligence. Her
captain made for port as best he could and without negligence ran
aground. It was held that the further damage caused by running
aground was not too remote a consequence of the defendants
negligence. Though they do not consider this particular decision
in discussing liability for ulterior harm, there can be little doubt
that both Dr. Goodhart and Dr. Williams would agree with it,
though here again their explanations of it would probably differ.
Whereas Dr. Williams recognises that foreseeability may not be an
adequate criterion in cases of this sort,55 Dr. Goodharts treatment
of the subject leads one to suppose that he would insist that the
ulterior harm is in fact fore~eeable.~Whatever formula is adopted,
27
28
29
30
31

32
33
34

3.5

[l920] A.C. 956.

[1961] A.C. 8t 422.
Liability end Compfpsation (1960)76 L.Q.R. 667.
The Risk Principle
(1961)77 L.Q.R. 179.
Dulieu v. White [I9011 2 K.B. 669 at 679; Owens v. Liuerpool Cor oration
[1939] 1 K.B. 394 at 400-401; Loce V. Port of London Authority fi969] 2
Lloyds Rep. 641; Salmond, Torts, 12th ed., p. 725.
76 L.Q.R. at p. 677.
77 L.Q.R. at pp. 194-197.
(1889) 16 P.D. 16.
77 L.Q.R. at pp. 198-200.
3 6 76 L.Q.R. 8t p. 583.
I

JAX. 1963

FORESIGHT AND REMOTENESS IN NEGLIGENCE

the courts would almost certainly follow The City of Lincoln and
the other cases in line with it.s7
Dr. Williams, though not Dr. Goodhart, is even prepared to
allow a limited scope to the doctrine of transferred or (derivative negligence, and suggests that a defendant negligent towards
A in respect of some kind of harm should be liable for the same kind
of harm suffered by B, to whom injury is not foreseeable. He
thinks that some such doctrine is necessary t o prevent the risk
theory from producing absurd results, though he recognises the
difficulty of reconciling it with the Bourhill v. Young areaafrisk doctrine. If X fires a t Y in a remote region intending to
kill him,misses him and kills 2,Dr. Williams would, if I understand
him correctly, be ready to hold X liable for 2s death, even though
X could not reasonably expect that any person (other than Y)was
nearby. Since X would, according to the books,a@be guilty of
murdering 2, many will think this a sensible conclusion despite its
offence to the pure doctrine of the relativity of negligence (or
intention).
Both Dr. Goodhart and Dr. Williams think that Re Polemis
itself is wrong, though here again Dr. Williams is ready to extend
liability to consequences which many would regard as unforeseeable. Thus, he approves of the decision of the Privy Council in
Great Lakes 8.8. Co. v. Maple Leaf Milling Co.,O which has often
been cited as an application of the Pdemis rule. In that case the
defendants, in breach of contract, failed t o lighter a ship a t a quay
at the time stipulated and were held liable for the serious damage
caused t o the ship when the water level fell and the ship settled on
a large anchor which no one knew t o be there. Dr. Williams
defends this decision on the ground that a defendant does not
escape liability for a consequence unless a reasonable man, considering the possible outcome of conduct, would safely assume that
it would not occur, whatever else might happen. A competent
observer, in the Great Lakes case, assessing the probable damage,
would, he suggests, have to give a wide range of estimate because
the bed on which the ship settled had not been inspected; whereas,
in R e Polemis, he would have ruled the possibility of fire completely
out of c a l ~ u l a t i o n . ~This
~ explanation is not altogether a happy
one, since it might be said of R e Polemis that the stevedores who
dislodged the plank had not inspected the hold t o canvass the
possibilities. At any rate, to support the Great Lakes case as consistent with the foresight principle involves, as Dr. Williams himself
recognises, two different standards of foresight : a restricted one
when the question is whether a certain risk is one that a reasonable
37
SR
LI@

40
41
42

e.g., The Deapatch (1860)14 M0o.P.C.

77 L.O.R. at DD. 187-189.

83; The Oropesa [1943] P.32.

Kenni, CrirniGl Law, 17th ed., p. 136.

(1924)41 T.L.R. 21.
77 L.Q.R. at pp. 183-1@5.
At pp. 188, 195, 199.

THE MODERN LAW BEVIEW

VOL.25

man mould have foreseen and guarded against (i.e., one of the
reasons for being careful) and a more extensive standard when the
question is whether a consequence is foreseeable so as to make
a defendant liable for it.
If Dr. Williams is correct, the principal effect of adopting the
foresight rule would be to substitute one verbal formula for another.
In place of an avowedly indeterminate criterion of directness, we
shall have an apparently precise, but misleading, criterion of foresight. In view of the several concessions that he makes to the need
to operate the foresight principle so as to produce sensible results,
one naturally wonders why the principle should command such
support as a universal solvent of remoteness problems. It is not
easy to reconcile his views on the egg-shell slrullyyrule, ulterior
harm, transferred negligence, and the Great Lakes case with his
claim t h a t i n future, broadly speaking, there will not be two
questions in the tort of negligence, 8 question of initial responsibility
and one of proximity, but only one question-was the defendant
negligent as regards this damage.4J The explanation ie almost
certainly to be found in what he describes as the strong
intellectual attraction 44 of the rbk principle.

THER.ELATIVITYOF NEGLIGENCE
The intellectual attraction of the foresight principle is founded
mainly on the alleged relativity of negligence to particular
consequences.46 We cannot, it is said, properly speak of negligence
in the ah: an act may be negligent in regard to one consequence, but not in regard t o another. Since negligence consists
in failing to guard against some foreseeable risk, we can, on this
view, characterise an act as negligent only in regard t o foreseeable
consequences. Similar reasoning seems to underly the common
assertion that the reason for impoaing a duty (Le., risk) should
logically limit liability for breach of it.4e
In considering the force of arguments of this sort, it is important
to distinguish between those risks which may fairly be expected to
influence behaviour and the consequences of such a risk materialising. In real life people do not ordinarily reflect on the ultimate
consequences of their actions and could not reasonably be expected
to do SO. If we adjust our behaviour out of regard for others, we
generally do so because we realise that some foreseeable event, such
as skidding in a car or the action of others subject to our control, is
dangerous. Though appreciation of danger will sometimes depend
on a consideration of the possible consequences of the event in
43
44
5

At p. 179.
Ibid.
See Holdaworth, History of English Law, viii, 463; Goodhart, (1930) 89 Yale
L.J. 449, 465; Goodhart, Esaa s in Jurisprudence and the Common Law,
Chap. 6; Williams, (1961) 77 L.Q.R. 17b179; The Wagon Mound [lSSl]
A.C. 988 at 426-426.
Williams, loc. cit., 179-180.

T A X . 1962

FORESIGHT AND REMOTENESS IN NEGLIGENCE

question,4f in most cases the dangerous character of the event is

recognised in a general and rather vague sort of way. We tend in
many fields to accept the teachings of common experience regarding
the events to avoid, without any minute analysis of what may
result from them, and mmetimes without the requisite knowledge
to explore the possibilities were we minded to do so. We know
that open windows on upper floors are dangerous for young children
and so take precautions. The foreseeable event (i.e., falling from
a window) in itself is sufficient to influence our behaviour, and we
would not ordinarily think of the possibility that a person passing
below might be struck and injured by a falling child, though the
consequence Ihight not seem highly extraordinary after the event.
The reasonable man who reflects on the consequences of dangerous
events is merely a figment of the imagination.
If this distinction between dangerous events and their consequences is borne in mind, it is not difacult to extract the grain of
truth from the relativity argument. The negligence of a defendant
will not be relevant to harm in fact caused by it unless the harm
materialises through a dangerous event which he should have foreseen and guarded again~t.~Thus, if I give a loaded gun to a young
child, my negligence would be relevant t o harm caused by the child
firing the gun, but not to harm caused by the child poking the gun
in another childs eye while presenting the gun at him in play.
Similarly, a chemist who carelessly sells poisonous pills would not
be liable if a pill were to lodge in the buyers throat and he were
t o choke to death, since the lodging of a pill in someones throat is
not an event that the chemist should have foreseen and guarded
against. In both these cases the ordinary man would probably
say that the negligence had nothing to do with the harm. The
negligence was not causally relevant.
Similarly, in the field of contributory negligence, if I walk in
47

49

e.g., where the duty arises from some special relationship, as in Paris V.
Stepncy B.C. [l96l] A.C. a67.
In Glasgow Corporation v. Muir [1943] A.C. 448, it was alleged that the
appellantr were negligent in allowin a tea urn to be carried through a
passage-way thronged with children. %he urn was drop d and scalded the
respondent, but there wan no evidence that it was c a u s e rb y jostling. Lord
Romer pointed out that failure to guard y a i n s t jostling would not make the
a pellant~,liablefor any droppin of the urn caused, say. b a sudden fall of
pfaster:
the appellants can onyy be fixed with liability i f it can be shown
that there materialired a,firk that ought to have been within the appellants
reasonable contemplation
(et 467-468). The acme p i n t was stressed by
Greene M.R. and du Parcq L.J. in Aldham v. Uncted Dairies (London),
Ltd. [1940] 1 K.B. 607 at 611, 614, and again by Lord du Parcq in Sewle v.
Wallbank [l947] A.C. 841 at 860.
Cf. Hart and Honor& Causation in the Law (1969)lO%ll,$ who argue that
causal connection must be shown between the harm, and all those enpecta
of the defendants conduct which made it wrongful (at 111). This is said
to depend on some general connection between a set of conditions, including
tP wron ful act, and harm of that mrt. Though the authors avoid the word
risk, $8 effect of their requirement would aeem to e,! the same (in negligence at least) as the rule suggested in the text above.
General connection
makes an event foreseeable.

THE MODERN LAW REVIEW

VOL.

25

the gutter with my back to oncoming traffic, my lack of care for my

own safety is relevant to the risk of being struck by a vehicle, but
not to the risk of being struck on the head by a brick dropped from
a nearby scaffold.60
If a foreseeable event occurs and the harm materialises through
it, it is not easy to see how any criterion of foresight can control
liability for it. Let us suppose, in the example of the loaded gun,
that a bullet fired by the child severs a rope being used on a building
site some distance away to hoist a bucket of cement, with the result
that the man hauling on the rope topples from a scaffold,but manages
to cling by his hands to one of the supporting tubes. A fellow
workman tries, unsuccessfully, to rescue him, and both are injured.
Foresight would seem to have no conceivable relevance to the
question whether I am liable for the injuries suffered by the two
workmen.s
The related argument, that the reason for imposing a duty
should logically limit liability for its breach, merely assumes what
it seeks to prove. Though the risk of some dangerous event occurring may be said to be a reason for being careful and to justify the
imposition of a duty, it does not follow from this that the reason for
imposing the duty, in the sense of the object or policy of the law, is
merely to avoid foreseeable consequences. Indeed, if we distinguish,
as Dr. Williams himself does, between two different standards of
foresight, it scarcely makes sense to argue that the risks which
are foreseeable in the restricted sense (Le., the reasons for being
careful) should logically limit liability to consequences which are
" foreseeable " in the extended sense.
Though foresight of risk
is certainly a condition of liability for negligence, we cannot say
what the reason for imposing duties is, in the sense of the object
which the law seeks to achieve, until we know, among other things,
what the rules of remoteness are. It is a condition of liability under
50

31

See Jones v. Liuos Quarries, Ltd. [lee21 2 Q.B. 608; Smithwick v. H a l l ~t

Upson Co. 69 Conn. 261; 21 Am.St.Rep. 104 (1890) (Wright's Cases on Lou:
of Torts, 2nd ed., 484).
" I t is clearly foreneeable that the speeding driver may hit another cRr and
kill another man. But what of the possibiht that he may only bruise a shin
and cancer may develop from the bruise?
that the car which he collides
with may be thrown out of control and hit a third car, or even a fourth? Or
that he will hit a man, whose body will be thrown aeveral feet through the
air end injure a person on the sidewalk? Or that he will narrowly miss a
pregnant woman, who will be frightened into a miscarriage or that he will
injure her unborn child? Or that he will endanger a child in the street, and
that its rescuer will sustain a broken arm? Or that the person he injures
may be left helpless in the street and be run over by another car? Or that
he will hit a power line pole, mix up electric wires and start a fire, or kill a
woman operating a machine two miles awa ? Or that he will hit a man
carr ing a shotgun, and the gun will be disciarged, and a bystander be shot
in t i e leg? There is a mathematical chance of all these poseibilities. All of
them have ,occurred, and can occur again; and d l of them have b y n held
'proximate by some court. But which of them are ' foreseeap!e in the
sense of being a significant art of the risk recognisable in advance? : Prosser,
" Pals raf Revisited," 62 8ich.L.R.
1, 17-18. [References to American cases
omittef.1

8r

JAN. 1962

FORESIGHT AND REMOTENESS IN NEGLIGENCE

the scienter rule for injuries caused by a wild animal that the animal
should have a propensity to attack mankind. But liability under
the rule is not confined to injuries caused by an attack.s2

REMOTENESSOF DAMAQE
Those who reject the foresight principle as a universal solvent of
causal problems do not of course deny that there are limitations
on liability for the consequences of negligent conduct. The correct solution of a remoteness problem is felt, rather than deduced
from formulated principle^.^^ The merit of a vague criterion like
directness, with its appeal to common sense, is that it allows
scope for the intuitive judgment. The efforts of legal writers, in
the vast literature on the subject, to tie the courts down to precise
rules has probably been misguided. Those who welcome broad
standards of reasonableness in the law of negligence and the uncertainty of outcome which they entail ought not to deny the
courts a measure of discretion in remoteness problems.
It would be a mistake however to conclude that the only alternative to the foresight principle is a wilderness of uncertainty and
arbitrary judgment. If we have regard to what the courts have
actually done in the cases, certain fairly uniform principles will be
found to run through the decisions. Some of these principles are
those which underly the attribution of cause in ordinary lang~age.~
Others, founded on considerations of policy, turn on the nature of
the damage suffered and the manner in which it has been brought
about.

CAUSALRELEVANCE
As we have already seen, a defendant will not be liable in negligence
for harm which materialises through an event which he could not
have foreseen.65 Though a rule making a wrongdoer liable for all
harm that would not have occurred but for the wrongdoing is by
no means inconceivable, and indeed is found in some fields outside
52
j3

54

Behrem v . Bertram Mills Circus, Ltd. [1967] 2 Q.B. 1, 17-18.

I do not dillcuss the cases cited: they are numerous and bewildering; but
the question whether damage i n a sufficiently direct consequence of neQ
ence to be recoverable or too remote is rather a quertioa of first impression :
Lrutton L.J. in The Son Onofre [1922] P. 243 at. 253.
Judges have often invoked common sense in dealing with causal problems: see
Leyland Ship ng Co., Ltd. v. Norwich Union Fire Insurance Society [lQlS]
A.C. 360 at &2 (Lord Dunedin); Yorkshire Dale 8.5. Co Ltd. v. Minirter
of War Tramport [194a] A.C. 691 at 698 (Viscount &mon), 702 (Lord
Macmillan), 706 (Lord Wri ht); Monarch S.S. Co., Ltd. V. AIB Karlahamns
Oljefabriker [1949] A.C.
at 228 (Lord Wright), 232-233 (Lord da Parcq).
The reasoning of Thurogood V. Yon Den Bergha [l96l] 2 K.B. 537, admittedly
conflicts with this rule, since the Court of Appeal there held the defendants
liable for injuries which materialired otherwise than through the only risk,
according to the trial judge, that they could have foreseen. But the decision
itself is not in conflict. Caural relevance turns on the general practical risk
of an event occurrin (8.g.. someone coming into contact with the revolving
blader of an unguar%d fan), not on foresight of some particuler manner of
injury (e.g., a hangin necktie being caught in the blades). See Street, Law,
of Tortr, 2nd ed.,p. 11%

Id

55

10

THE MODERN LAW REVIEW

VOL.26

negligenceP6 the need for causal relevance, in negligence a t least,

is supported both by linguistic usage and ordinary moral judgment.
In the example of giving a loaded gun to a child, which was discussed earlier, the ordinary man would not say that my negligence
was the cause of the injuries suffered by the child who is poked
in the eye and would not think that I should be liable for them.
Many of the cases on remoteness of damage have in fact involved
questions of causal relevance, and this explains why many of the
cases seem to support the foresight principle. The event in question
may be some act or omission of the defendant himself, the conduct
of other^,^' the behaviour of animals,66 some natural event or
the behaviour of the plaintiff.60 If the event through which the
harm materialises is the only one in respect of which there is any
question of negligence, the issue of causal relevance will be indistinguishable from that of negligence itself, since both will turn
on whether the particular event was foreseeable." Lack of causal
relevance is probably the true explanation of the decision of the
House of Lords in Woods v. Duncan.6' Though Cammell Laird
were a t fault in respect of the clogged test-cock in the inner door
of the torpedo tube which Woods opened, they could not have
foreseen that the outer door of the tube would at the time be open
to the sea, and therefore were not liable for the consequences of this
unforeseeable event. This explanation finds some support in the
judgment of Lord Simonds, who thought that no question of
remoteness of damage itself arose.ea
Causal relevance should not be confused with cause in fact,
though the two sometimes overlap. If the defendant can show
that the harm would have occurred even if care had been taken,
and that his negligence was therefore not a necessary condition of
the harm, he will, of course, escape liability.'.
But even where
he cannot show this, he will still escape liability if, as in Woods V.
Duncan and in the example of giving a loaded gun t o a child, the
harm materialises through an event that could not have been
foreseen.
56

57

80

5'
60

61
6'

63
64

e.g., bailment (Lilley v. Doubledoy (1881) 7 Q.B.D. 610); deviation bp

carriers (Doois v. G o r s t t (1830)6 Bin 716).
Cormorthenahire C. C. v. Lewis [lM67 A.C. 666; Hoynca V. Horwood [18961
1 K.B. 146; Daoiea v. Liuerpool Corporotion [I9491 2 All E.R. 176; Stonabie
v. Troman [1948] 2 K.B.48; Ptince V. Gregory [1959] 1 W.L.R. 177; Wells
v. M.W.B. "19311 4 All E.R.639.
Lothall v. A. Joyce & Son [l989] 8 All E.R. 864; Aldhom v. United Dairies
(London), Ltd. [l@40] 1 K.B. 607.
Ryan v. Young8 [1988] 1 All E.R. 692.
London Possenget Tronaport Boord v. Upcon [1949] A.C. 161.
Cf. Stonsbie v. Troman [l948] 2 E.B. 48 and Prince v. ffregory [1859] 1
W.L.R. 177.
[1946] A.C. 401.
At 441442.
Nolan v. Dental Monufocturing Co. [,l968] 2 All E.R. 449. I n rare cases
where concurrent csuoee o rate, the but for teat of cause-in-fact breaks
down, but this doen not s g c t the general argument iir the text. See Hart &
Honorb, Causation in the Low, 116-119; Fleming, Law of Torts, 197-198.

JAN. 1962

FORESIGHT AND REMOTENESS IN NEGLIGENCE

11

So far as causal relevance is concerned, there is no reason to

believe that intervening human acts, whether malicious, negligent
or involuntary, have a status or effect different from other events.
The voluntary or malicious character of an act is relevant only to
the extent that it makes an act improbable or difftcult to guard
against.6s This is not to suggest that the risk of intervention always
gives rise to a duty t o guard again& it. This will depend on the
situation of the defendant and the relationship between the parties.

IMMEDIATEPHYSICAL
HARM
If an event occurs which the defendant ought t o have foreseen
and guarded against, the cases show that he will be liable for any
physical harm which results from the operation of that event on
conditions actually present a t the time, whether those conditions
are foreseeable or not. Smith v. L.
S.W. Ry.,Ob Re Polemis ''
and the Gfeat Lakesb8 case are well known illustrations of this
To this extent the defendant must take the plaintiff and
the consequences as he finds them. That there are not more
decisions in the reports illustrating the rule is almost certainly due
to the fact that it would not occur to the ordinary man to question
the justice of it. It is surely signi5cant that there is no English
decision inconsistent with the rule suggested, though there must
have been innumerable accidents where unexpected factors have
so far as it turned
produced unlikely results. In Sharp V.
on negligence, the defendant, who washed a van in a street, did not
know that the sewer grating was obstructed by ice and therefore
mas not negligent in respect of the risk of ice forming."
It is perhaps possible to imagine cases where the rule would
seem to operate harshly. Dr. Williams cites the example of the
baker in whose house the Great Fire of London ~ltarted.'~ But
calamities of this sort do not as a rule give rise t o legal claims. The
practical limit of a man's liability is, in any case, the extent of his
fortune. An uninsured defendant can be financially ruined by a
single award of damages, even under a foresight rule of remoteness.
It is, moreover, not easy t o Bee how a court, when harm has
in fact occurred, could in practice distinguish between that part
of the harm which is foreseeable and that part which is not. If a
fire started by sparks from a locomotive spreads to the stubble

'6
'7

'8
70

'1
72

Ct. Stansbic v. Trotnun [l948] 9 K.B. 48; Dc la Berr v. Pearson [l908] 1

K.B. 280; London Joint Stock Bank v. Macmillan [l918] A.C. 777; Cobb v.
G . W . Ry. [l893] 1 Q.B. 459; [l894] A.C. 419; Ruofl v. L o n g [1916] 1 K.B.
148; Prince v. Gregory [1959] 1 W.L.R. 177.
(1870) L.R. 6 C.P. 14.
[la211 3 K.B 660.
(19'24) 41 T.L.R. 21.
Sea also the canes cited note 20, aupra.
(1872) L.R.7 C.P. 263.
C j . dtreet, Law- of Torts, 2nd ed., p. 113; Lord Wright, "Re Polernis,"
(1961)14 M.L.R. 3~1,402-40a.
77 L.Q.R.at p. 187.

12

THE MODERN LAW REVIEW

VOL.25

fields of A, B, C, D, E and F in turn, are we reriouely to contemplate that a court, may hold that the stubble fields of, ray, E
and F are outside the pale of a reasonable man's foresight?

LIABILITY
FOB ULTEBIOB
HARM
Ulterior harm is a convenient term to describe harm caused or
aggravated by some contingency which occurs after the event
which the defendant ought to have foreseen and guarded against
and which is causally independent of that event. Examples would
be where a ship damaged in a collision alters course and strikes
a stray mine, or where a man run down by the defendant's
negligence is hit on the head by a falling tile while on his way t o
hospital, or where some infection enters a slight wound and causes
death, or where a person suffers injury in trving to rescue someone
endangered by the defendant's negligence.
It need hardly be said that liability does not extend to all ulterior
h a m . The negligent motorist, in the example above, would clearly
not be liable for the injuries caused by the falling tile, even though
the plaintiff would not have been at the point where the tile fell
but for the original harm.7S Mere cause in fact is not s d c i e n t to
create liability. The principle running through the cases seems
to be that a defendant is liable for ulterior harm only if the wrongful state of affairs brought about by his negligence exposes the plaintiff to a special risk of injury from the sort of contingency which
causes the ulterior
The common sense notion underlying
this rule is that of causal potency; the defendant's negligence renders
the plaintiff specially vulnerable to harm from the sort of contingency which occurs and therefore is the cause of it.
The defendant would thus be liable, in the example cited, for
death caused through infection entering a wound, since the wound
exposes the victim to a special risk of harm from contingencies of
On the other hand, to alter course as the result of a
this
collision does not ordinarily involve any special risk of hitting a
mine and the loss of the ship would therefore be too remote.78 A
good illustration of the rule under discussion is The City of
Lincoln,77 which was referred to earlier." The effect of losing compass and charts in the collision was to expose the plaintiffs' ship
to a special risk of running aground and therefore the ulterior harm
73
74
75

76
77

78

See The Son Ono re [1QT2] P. 243 at 263.

See The Despatcf. (1880) 14 M0o.P.C. 83; The City of Lincoln (1889) 15 P.D.
16; M cM ah n v. Field (laSl)7 Q.B.D. 691; The Oropesa [1943] P. 3%
There seem6 to be no English deoieion exactly in point, but liability can
hardly be doubted. In Keegan v. Minneapolis d St. Louis Ry. Co. (1899)76
Minn. 90, a woman stepped into e hole in the defendants' platform and
sprained her ankle. The s rain developed into inflammatory rheumatism and
endocarditis from which sge died. The defendants were held liable. See
Prosser, Lam of Torts, 2nd ed., 272-274.
See Associated Portland Cement Manufacturers v. Houlder Bros. d Co. (1917)
86 L.J.K.B. 1496.
(1889)15 P.D. 15.
Supra, p. 4 .

,JAN. 1962

FORESIGHT AND REMOTENESS I N NEGLIGENCE

13

was not too remote. So, too, if the nature of the damage caused by
a collision renders a ship less able to resist the force of a gale, then
the defendant will be liable if the ship is driven ashore by a storm.'e
The contingency which causes the ulterior harm may be the
action of some third party. If the defendant runs the plaintiff
down and the plaintiff is struck by another car while lying in the
roadway, the defendant would clearly be liable for the ulterior
harm. American and Canadian courts have also held defendants
liable for property stolen from unconscious victims,s0 and there is
little doubt that an unconscious victim is exposed to a special risk
of robbery. As regards supervening medical negligence, such
English authority as exists seems to be against liability,s1 though
here again American and Canadian courts have held the original
wrongdoer liable.8a Liability ought to turn on the nature of the
supervening negligence and its relation to the original injury. If
the plaintiff is scalded in hospital by an improperly-stoppered hotwater bottle, the original wrongdoer ought not to be liable. But
if the defendant seriously injures the plaintiff's leg and surgical
negligence is responsible for his losing a leg that with care would
have been saved, then the defendant ought to be liable. Whatever
the position as regards supervening medical negligence, it is, at any
rate, clear that if ordinary medical treatment of an injured person
causes harm, because of some unusual condition which could not
have been detected, the original wrongdoer will be liable for it.'J
The abnormality of the contingency which causes the ulterior
harm is probably no bar to liability if the plaintiff is in fact exposed
to a special risk of harm from contingencies of that sort.84 A person
who negligently starts a fire would, it is thought, be liable for any
spread of the fire, whether it is caused by a normal breeze or by
a quite extraordinary gale.8s Similarly, if infection enters a wound,
it is probably irrelevant whether the infection is a common or
exceedingly rare one.
The special risk of ulterior harm that a person is exposed to
often arises from some action taken by the plaintiff himself, or
79
80
81

83

83
84

88

The Despatch (1860) 14 M0o.P.C. 83. See also Leylmd Shipping Co., Ltd. V .
Norwich Union Fire Insuranas Society, Ltd. [1918] A.C. 360.
Prosser, Law of Torts, 2nd ed., 141-142; Pattcn V. Silberschein [19361 3
W.W.R. 169. Contra: Duce v. Rourke [1951] 1 W.W.R. 806 (N.Y.).
Hogan v. Bentinck West Hertle Collieries, Ltd. [1949] 1 All E.R..688.
Wright, Casea on the Law of $orb-, 2nd ed., 432-436; Prosser, Law of Torts,
2nd ed., 2.30.
Bloor v. Lieerpool Derricking d Carrying Co. [1936] 3 All E.R. 399, 402 ( p e r
Oreer L.J.).
The American cases aeem to support this suggestion: see Prosser, Law of
Torts, 2nd ed., p. 273, where he atresees the importance of special
susceptibility.
I n The Despatch (1860) 14 Moo.P.C. 83, where a damaged ship wan driven
ashore by a storm, the court did not concern itself with the question whether
the storm wae abnormal. I n the American case, Johnson V . Kosmos Portland
Cement Co., 6 Cir. 1933, 61 F.2d 193, the defendants negli ently left explosive vapour in a barge. The vapour was ignited by a bolt o f ligtrtning. Thr
defendants were held linble.

14

THE MODERN LAW REVIEW

VOL.

26

some third person, after the event which the ddendant ought to
have guarded against. The rescuer, for example, is exposed to risk
only because he undertakes the rescue. The rule here seems to be
that the defendant is liable if the action taken is a reasonable
response to the actual situation brought about by his negligence
and if the response exposes the plaintiff to a special risk of harm.
The response may be that of the plaintiff or some third party, and
it may range from a purely instinctive reaction, such as clutching
a t a person threatened with injury or throwing away a squib, to
a considered judgment of the best course of action in a certain
situation.sb
The " rescue cases y y are good illustrations of this principle. The
risk taken must not be disproportionate t o the harm which the
rescuer seeks to avoid. These cases are sometimes said to turn on
the foreseeability of the rescuer's intervention, but it is impossible
to accept this explanation. Let us suppose that I take an inexperienced boy climbing in a remote region where I have no reason
to expect any other person to be within many miles of us. By my
negligence I get the boy into a perilous position from which I am
unable to extricate him myself. Suddenly, another climber appears
and is injured in rescuing the boy. It is very difiicult to believe
that the courts would dismiss the rescuer's claim against me on
the ground that I could not have foreseen that he was likely to
come on the scene. If the outcome turns, as suggested, on the
reasonableness of a person's response to the situation which actually
confronts him," foresight of the likelihood of a rescuer is
irrelevant.88 It would be relevant only in a case where a person
puts himself in peril in considering whether a duty is owed to others.
The common-sense notion underlying these " response cases
is that the defendant, in a broad sense, made the actor respond as
he did. This is particularly obvious in those cases, like Scott v.
86

See Scott v. Sheoherd f17781

- .- , 9
- Wm.Rl.
- - .. AW:
-.
- , Brandon
- . v. Osborne. Car,rett d
Co. [l924] 1 K.'B. 648; Jones v. Boyce (1816) 1 Stark.- 493; Clayards V.
Dethick (1648) 12 Q.B. 439; The City of Lincoln (1889) 16 P.D.15; The
Oropesa [1943] P. 32; Hayma v. Hanoood [lW5] 1 K.B. 146; Hyett V.
0.W. Ry. [l948] 1 K.B. 345; Ward v. T. E. Hopkine d Son, LM. C19591 3
All E.R. 2%; Canadian P a c i h Ry. v. Kelvin Shipping Co. (1927) 138 L.T.
369: The Genua (1936)156 L.T. 456: The Guildford [1956] P. 364; Summers
v. Salford Corp. [1948] A.C. 283; Halestrap v..Crcgory [1895] 1 Q.B. 661;
D'Urso v. Satuon ll9gBl 4 All E.R. 26.
In many of th'ese "response" ctases the courts have cited with approval
the dictum of Lindle L.J. in The City of Lincoln (1889) 16 P.D. 16 at 18,
thnt reasonable coniuct is part of the ordinary course of thin 8.''
Cf. the rules r i n g the duty to mitigate demsges. On t%e relation of
remoteness tan the duty to mitigate, nee Mayne d MeGregor on Damages
(lath sd., 1961), 62-66.
"Danger invites rescue. The cry of dirtrean is the summons to relief. The
law does not ignore these reactions of the mind in tracing conduct to its
The risk of rescue, if only it be not wsnton, is born of
consequences . .
the occasion. The emer ency begetr tlrs man. The wrongdoer may not h!ye
foreseen the coming of a deliaerer. H e i s accountable 01 if he had *
Cardoeo J. in. Wagner v. Z n t e r n u t h l Ry. Co., 232 N.Y.Re . 173, 180 (192i)
(italics supplied). This ssitage wtas cited by Willmer
in Word v.
T. E. Hopkrns d Son, Ltd! [l959] 3 All E.R.226 at 941.
~

' I

8'

*a

Z.J.

JAN.

1962

FORESIGHT A N D REMOTENESS I N NEGLIGENCE

15

Shepherd,B' where the response is wholly instinctive. The response

is in fact, in a certain sense, causally dependent on the defendant's
original negligence, and he is liable for it in the same way as he
would be liable for consequences which are causally dependent in
the physical sense, as where a row of skittles is knocked over. This
common-sense notion explains and justifies two recent decisions in
which defendants who seriously injured people were held liable for
their deaths when they committed suicide as the result of their
injuries.@O
The courts are likely to insist on a fairly close temporal sequence
between the original and the ulterior harm in order for the defendant to be liable for the latter. Though there are practical reasons
for this, it also probably accords with ordinary causal notions. A
person who loses an eye or a leg in an accident will be exposed t o
special risks for the rest of his life, yet few would say that the
original wrongdoer's negligence was the cause of some misfortune
which occurs ten years latez, even though it is attributable to his
disability. An Australian court has held that a defendant who
negligently fractured a person's leg was liable for a refracture
which occurred during convalescence when the plaintiff slipped off
a chair on which he was placed.@' This is as far as, and possibly
further than, most courts would be prepared to go." Limitation
of actions and the rule against successive actions on the same facts
limit the practical importance of such problems.

SHOCK
NERVOUS
Injuries attributable t o shock present no special problem where the
shock is caused by or follows some direct impact. Abnormal
susceptibility in such a case is no bar t o recovery. But fear of
fraudulent claims, difficulties of proof and reluctance to place too
heavy a burden on human activity, have made the courts cautious
in allowing recovery for injuries caused by shock where there has
been no direct physical harm. Most American courts do in fact
insist on some impact as a condition of liability.Oa Though the
scope of liability in English law is still uncertain, the general effect
of the cases seems t o be that liability in negligence is limited to
cases where the plaintiff suffers shock through fear of injury either
a@
00

01
82

03

(1773)2 Wm.BI. 892.

Pigney v. Pointer's Tramport Services, Ltd. [l967]2! All E.R.807; Cavanagh
v. London Transport Ezecutive, The Timas,October 23,1956.
Fishlock v. Plummer [1860] S.A.S.R. 178.
In Nolan v. Dental Manufacturing Co., Ltd. [1968] 2 All E.R. 449 at 454.
the plaintiff, having lost an eye in an accident for which the defendants were
held responsible, suffered further injuries before trial through not being
accustomed to avoid objects on his left 8s he passed them. Counsel for
the laintiff seems to have conceded that the defendants were not liable for
the further injuries, though P8Ull J. held that the risk of such further injuries
w88 8 factor to be taken into account in aeaessinq damages for the lost eye.
The "impact " requirement was held to be satisfied in a caee where 8 circira
horse evacuated its bowels into the plaintiff's lap: Proeser, Law of Torts,
2nd ed., 178-179.

16

THE MODERN L A W REVIEW

VOL.25

to himself or to some person specially related to him." I n practice,

recovery seems to be confined to injuries caused by fright."
It is a mistake to try to explain these limitations on causal
grounds. Fright does not embrace every case where shock may
be expected to cause, and does in fact cause, injury. If a woman
becomes ill on hearing that her child has been killed by the defendant's negligence, or on seeing her child's body recovered from a
trench, we cannot adequately explain the denial of any remedy
to her on the ground that the defendant did not cause her injuries
or that her injuries were unforeseeable, in the extended sense in
which advocates of the foresight principle contend that consequences
These limitations on liability for shock, like
are
many other limitations on the scope of liability for negligence, can
only be explained as resting on considerations of
This does not mean that causal problems may not arise in
those cases where liability in negligence for nervous shock is recognised. The shock may, for example, have unexpectedly grave
consequences because of peculiar susceptibility. If so, the defendant will be liable for them under the tdem qualem rule.g8 So, too,
a problem of ulterior harm would arise if a person were to suffer
injury in trying to rescue a woman who swoons through fright
caused by the defendant's negligence. Here again, the element of
shock is unlikely to affect the operation of the rules discussed earlier.

LIABILITY
FOR PECUNIARY
Loss
Liability for pecuniary loss caused by negligence is also subject to
special limitations which cannot be explained on causal grounds.
If the damage suffered is purely pecuniary, it is of course exceptional for there to be any liability at all in negligence. Insurers,
wives, partners and others who sutler pecuniary loss as the result
of physical harm negligently inflicted on another person have no
remedy against the wrongdoer.*' The only exceptions of any practical importance are actions for loss of services and consortium,
DuZieu V. White d SOM [1901] 2 K.B. 669; Hambrook v. Stokes Brox.
"251 1 K.B. 141; Bourhill v. Young El9431 A.C. 92; King v. Philli s [1953]
1 Q.B. 429; Doolcy V. Cammell Laird d Co., Ltd. 19511 1 Lloyd's He 271.
O u m s v. Lioerpool Corpn. [l939] 2 K.B. 894, which extended liability e! ond
injuriee caused by fright, can hardly survive the criticiam of it by the d u n e
of Lords in Bourhill v. Young [1948] A.C. WJ. In Schneider v. Eisoaiich
[I9601 2 Q.H. 430, there wan impact end a breach of dut was made out.
0 6 The Court of Appeal in Hambrook v. Stoker Bros. [&%I
1 K.B. 141 and
King v. Phillip [l968] 1 Q.B. 429 thought that there would be no liability
in negligence for shock caused by hearing of an accident.
97
The refusal to recognine such indirect shocks is not based on the argument
that such a consequence ie not reasonably foreneeable, but is justified on the
ground tt?t the law must drew a line which is practical one for ordinary
urposea : Goodhart (1944)8 Cam.L.J. 266 a t 278.
$ 8 Rambrook v. Stoker Bror. [1925] 1 K.B. 141; Dooley v. Cammell Laird h
Co., Ltd. [196l] 1 Lloyd's Rep. 271; Richards V. Baker [1948] S.A.S.R. 245.
99 Simpson v. Thom on (1877)8 A
.Can. 279; Bert v. Samuel Foz d Co., Lid.
[l9521 A.C. 716; Burgess v. %Er6nce Nightingale Horpital [l95S] 1 Q.B.
349; Cattle v. Stockton Woterworks Co. (1875) L.R. 10 Q.B. 463; SociLiL
Anonyme de Remorquage d HLZice v. Bennetts [1911] 1 K.B. 243.

94

I'

JAS.

1962

FORESIGHT AND REMOTENESS IN NEGLIGENCE

17

which are historical anomalies, and the statutory remedy under

the Fatal Accidents Acts.
If pecuniary loss is suffered by a person physically injured, in
his person or property, the loss is taken into account in assessing
damages for the injury done, but here too there are limitations
on liability which are not genuinely causal. The rule seems to be
that the defendant, in such a case, is liable only for those items of
pecuniary loss which follow in the ordinary course of things from
the injury.' He is therefore liable for medical expenses and 108s
of earnings in the case of personal injuries and for loss of profits if
he damages a profit-earning chattel. But he will not be liable
for any unusual item of pecuniary loss or expense incurred through
peculiar circumstances, such as the plaintiff's lack of funds.'
I n the light of the limited protection of pecuniary interests by
the law of negligence, it is not dBcult to understand why the
courts have refused to extend the talem qtlalem rule to pecuniary
loss. There may be no end t o the fhancial ramifications which
result from physical harm. In commercial matters we must as
a rule look after ourselves, and it is doubtful whether commercial
morality would sanction a rule which treated a negligent defendant
as a virtual insurer against the risks of what may from the outset
have been a financially hazardous enterprise. There is also not
the same practical difficulty in differentiating between various items
of pecuniary loss as there is in differentiating between normal and
abnormal items of physical harm.
Liability for pecuniary loss in negligence, when it exists, seems
to be governed by exactly the same rules as claims for pecuniary
loss in contract, and in view of the overlap between contract and
tort it would be remarkable if the law were otherwise.s Though
the concept of a reasonable man exploring the consequences is
highly artificial, as we saw earlier, and therefore inferior t o the
" ordinary course of things " formula, this is a head of liability
that may be conceded to the supporters of the foresight principle.

INTEBVENLNO
ACTS
The rules considered earlier make it unnecessary to devote special
treatment to the effect of intervening acts in remoteness problems.
Most ot the cases involving intervening acts have been concerned
with causal relevance. It waa suggested earlier that these present
no special problem.' Those which do not involve causal relevance
would seem to be covered by the rules governing liability for ulterior
harm.' The defendant will be liable for harm caused by an intervention if the plaintiff is exposed to a special risk of harm from
1

The Argentino (1888) 13 P.D. 191; (1889)14 App.Cas. 519; The Oreta Holme
[la971 A.C. 596; The Edison [lQSS] A.C. 449; The Kate [l699] P. 165; The
Racine [1906] P. 273; The Harnonider [lW]
P. 1.
The Ediaon [1933] A.C. 449.
In the cases referred to in note 1 sbove no distinction in drawn between liability
4 Supra, p. 10.
6 Supra, p. 12.
in contract and tort.

18

THE MODERN LAW REVIEW

VOL.

25

interventions of that sort or if the intervention is a reasonable

response to the situation wrongfully brought about by the defendant. Otherwise he will escape liability. A motorist who runs a
person down would not, for example, be liable for further injuries
caused by a workman dropping a tool on the plaintiff 's head while
he is lying in the roadway, whether the tool is dropped intentionally,
negligently or by accident. To establish liability one would need
to show that the workman dropped the tool because he was startled
by the sound or sight of the accident.
THE UNFORESEEABLE
PLAINTIFF
The decision of the House of Lords in Bourhill v. Young6 is
regarded by some as having established the rule that a negligent
defendant can never be liable to a plaintiff outside the area of foreseeable risk. Though this conclusion is expressed in terms of
absence of duty, rather than remoteness, and is therefore consistent
with liability for unforeseeable harm suffered by a foreseeable
plaintiff,8 it is only to be expected that advocates of the foresight
principle should lay great stress upon it. Denial of duty is, after
all, only a juridical technique for stating a conclusion : every limitation on negligence liability can, if one wishes, be stated in terms
of absence of duty. I n substance, the unforeseeable plaintiff rule
denies liability, in certain circumstances at least, for unforeseeable
harm, and therefore is clearly relevant to the general issue of
remoteness.
Though there are certainly dicta in Bourhill V. Young9 which
lend support to the '' area of risk " doctrine, it is difficult to accept
that English law has in fact committed itself to this rule. Bourhill
V. Young was a claim for nervous shock, liability for which is, as
we have seen, subject to special limitations, and this feature of the
case can hardly be ignored in interpreting the judgments. Though
it was said by some members of the House of Lords that the fishwife in that case, some distance away from the collision on the far
side of a tram-car, was outside the area of foreseeable risk and
therefore owed no duty of care by the negligent motor-cyclist, this
can hardly be taken to mean that she would not have had a remedy
if a wheel had come off one ot the colliding vehicles and had struck
her after rebounding from the face of 8 building.'O Nor can we
be certain that she would not have recovered for nervous shock
itself if the wheel, in such a case, had narrowly missed her and
the shock was caused by fear of injury to herself. In fact, her shock
resulted merely from hearing the sound of the accident, and from
a
7
8
9
10

[1943] A.C. 92.

Council in The Wagon Mound [1981] A.C. 988 at 426.

A5 Lord Wright thought in Bourhdl V. Young [l943] A.C. 92 at 107-110.
[1943] A.C. 92 a t 96-99 (Lord Thankerton), 102 (Lord Russell), 104 (Lord
Macmillen). 111 (Lord Wright). 117 (Lord Porter).
Denning L.J. in'King v. h i i l i p e [1963] 1 Q.B: 429 at 439-440, thought that
ahe would certainly have recovered in such a cuse.
e.g. the Privy

JAS.

1962

FORESIGHT AND REMOTENESS I N NEGLIGENCE

19

seeing the blood in the road, and it is difRcult t o avoid the conclusion that this was the crucial feature of the case. One is under
no duty to avoid upsetting others by loud noises and the sight of
blood. It was suggested earlier that liability for nervous shock
seems in fact to be confined to injuries caused by fright.
Apart from other objections, the area of risk doctrine is
hardly consistent with some of the results favoured by supporters
of the foresight principle. The Privy Council, in The Wagon
Mound,l seems t o have thought that the extent, as opposed to the
kind, of harm need not be foreseeable,I2 and this view is also supported by Dr. Wil1iams.l3 The area of risk doctrine would exclude
this concession to common sense if the plaintiff, or one of the plaintiffs, is outside the area of risk. It would also exclude any
application of the doctrine of transferred negligence, which Dr.
Williams would also allow in a qualified form.
There is of course a quality of high artificiality in the notion of
a reasonable man defining the area of risk affected by his activities.
If the government prohibits the export of ginger beer, are we to
suppose that an Italian lady who finds a decomposed snail in one of
a few bottles which find their way abroad would be denied a remedy
on the ground that she was outside the area of risk ? Or that, when
a wheel comes off a vehicle and runs freely down the road, that there
is some radial limit, founded on foresight, beyond which liability
will not follow the wheel ? The area of risk )doctrine is not one
of the finest flowers of our jurisprudence.
Lord Atkins famous neighbour dictum in Donoghue v.
Stevensonjs which was taken, in Bourhill v. Young, to support the
doctrine, was put forward as a general explanation of the scope of
negligence liability, i.e., foresight of risk gives rise to a duty, not
as a negative test limiting liability t o those within the area of risk.
The whole question is confused, as Dr. Williams recognises, by a
failure to distinguish between duties of positive action (i.e., liability
for omissions) which are always owed to spec& people and duties
which attach to active conduct, which are owed to people at large.
The only case since Bourhill v. Young in which the area of risk
doctrine has been invoked to deny liability is King v. Phillips,l
also a claim for nervous shock. In other cases where the doctrine
might have been expected to defeat a claim, lip service t o it has
been preserved only by attributing quite extraordinary foresight to
the defendant.In
11
13

15
17
18

12 At 416, 426.
[1961] A.C. 388.
14 Ibid. 187.
77 L.Q.R. 187-190, 193-197.
1 77 L.Q.R. 187-188.
[1932] A.C. 662 at 680.
[1968] 1 Q.B. 429.
e.g., Carmorthenshire C.C. V. Lewis [la661 A.C. 649. %me, L.J., in the
Court of Appeal, thought that almost superhuman vision would h8ve been
reauired to forenee the eocident for which the defendants were held liable bv
thi Houre of Lords. Another mode of escape from the are8 of risk doctrine
is to say that B duty is owed to any person who might happen to be at 8
certain point: nee Farrugia V. 0 . W . Ry. [1947] 2 All E.R. 666 at 667.

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THE MODERN LAW REVIEW

VOL.25

CONTRACTAND TORT
There is a long line of authority for the view that contract and tort
are governed by the same rules of remoteness,19 and there is little
doubt that this is so,'O Many have thought that this throws doubt
on the Polemis rule, on the ground that it clearly conflicts with the
rule in Hadley v. Baxendale.zl But this conflict is apparent rather
than real.
Hadley v. Baacndale and nearly all the leading cases on remoteness of damage in contract have in fact involved claims for purely
pecuniary loss, Since the primary function of the law of contract
is to secure economic expectations, this preoccupation with liability
for pecuniary loss is not surprising. In such cases liability is
limited to those items af pecuniary loss which follow in the ordinary
course of things from the breach.12 I n other words, the rule is the
same as that which governs claims for pecuniary loss in negligence.
It is of course well established that damages for physical harm
may be awarded for breach of contract, if the breach does in fact
cause such harm. Though the cases and textbooks do not expressly
distinguish between claims for pecuniary loss and claims for physical
harm, it is reasonably plain from what the courts in fact do that
claims for physical harm in contract are governed by the same rules
of remoteness as claims for physical harm in negligence." The
Great Lakes case,p4 which was discussed earlier, was a claim in
contract for physical harm and seems to be a straightforward
application of the rule that a defendant is liable for all harm caused
by the operation of an event (i.e., the breach) on unexpected conditions existing at the time.25 R e Polemis itself has heen regarded
by some as a claim in contract, and it is dimcult to believe that the
form of action could have affected the outcome. Innumerable
claims have been brought for physical harm caused by breach of
express or implied terms in contracts for the sale of goods and they
have always been dealt with in the same way as claims in negligence,
with which they have often been coupled." There seems to he no
reported instance of a claim in contract for physical harm caused
by the operation of the breach on existing conditions failing
because the damage was not foreseeable. Though section 58 ( 8 )
of the Sale of Goods Act provides that the measure of damages for
The catieti are listed in Salmoyl, Tortr, l%h,ed., 741.
The effect of the so-called second rule in Hadrey v. Basendale (1854) 9
Exch. 341, is outside the scope of this brief discussion of remoteness in con.
tract and tort, since it hee no bearing on the alleged conflict between Re Polemis
and Hadley v. Bazendale.
2 1 (1854) 9 Exch. 341.
? a Cheshire & Fifoot, Law of Contract, 5th ed., 498-512.
23 See Hart & Honor& Causation in the Lam (1959) 281-287; Porter, 5 Cam.L.J.
1- A6-189.
-- - - - .
14 (1924) 41 T.L.R. 21 (P.C.).
25 See alRo Vails v. HOb80tt (1933) 149 L.1'. 283, where it wati said. in holding
a contract breaker liable
physical damage he cor!d not have foreseen, tha?
the Hadley v. Bazendale ordinary course of things formula allowed recovery
for all " direct damagen.
2' See Atiyah, The Sale 01 Good8 (1957), 191.
19

10

JAN. 1962

FORESIGHT AND REMOTENESS I N NEGLIGENCE

21

breach of warranty of quality is prima facie the difference in value

of the goods (Le., the measure of pecuniary loss), this has not
prevented the courts from awarding the tort scale of damages for
physical injuries caused by breech of ~ a r r a n t y . ' ~
Further discussion of the rule of remoteness in contract is outside the scope of this article. But there is reason to believe that
problems of ulterior harm in contract are governed by the tort
principles discussed earlier, both as regards exposure t o special risk 2 *
and the effect of a reasonable response.a' In a recent case?O a local
authority was held liable for injuries sudtered by a lady who tried
to climb out of a public lavatory in which she was locked in breach
of contract, on the ground that it was a not unreasonable thing
for her to try to do in her predicament.

CONCLUSIONS
Looking back over the development of the law of negligence in
recent years, one is struck by the unfortunate results which have
followed from exaggerating the importance of foresight in negligence
problems. Four landmarks stand out: the attempt of Lord Atkin
in Donoghue v. Stevemonal to rationalise the scope of negligence
in terms of foresight; the "area of risk" doctrine invoked in
Bourhill v. Young 3 2 ; the foreseeable possibility /probability distinction adopted in Bolton v. Stoneaa; and now the foresight rule of
remoteness adopted by the Privy Council in The Wagon
The objections to Lord Atkin's generalisation are well known
and need not be dealt with here. The factors that give rise to
and limit liability for negligence are too complex to admit of any
such simple explanation. Some of the objections to the " area of
risk " doctrine have been dealt with in this article.as The Bolton
v. Stone distinction has been criticised elsewhereae and seems in
fact to have been repudiated by the House of Lords in a later case.a7
The harvest of The Wagon Mound is yet to come.
Generalisations of the character found in the four cases mentioned do not make the law more certain, but rather the reverse.
AS a, guide for the uninitiated to the law of negligence, Lord Atkin's
" neighbour " dictum is merely misleading.
So, too, the foresight
principle of remoteness, if adopted by English courts, will simply
21
28

Z*

50

C j . Wilson v. Rickett, Cookerell d Co. Ltd. [l954] 1 Q.B. 694.

See McMahon v. Field (1881)7 Q.B.D. 591; The Wilhelm (1866) 14 L.T. 636.
Banco de Portugal v. Waterlow- d Sonr Ltd. [1982] A.C. 452; Holden v.

Bostock (1902) l.8 T.L.R. 317; Dee Conrercancy Board v. Conmll [l928] 2
K.B. 159; Le Blanche v. L. d N.W. &. (1876)1 C.P.D. 286.
Sayerr v. Harlow T1.D.C. [1968] 2 All E.R. 342. The Court of A peal held
that nothing turned on whether her claim w m regarded a1 being for breach
of contract or in tort for negligence.
[1932] A.C. 562 at 680.
*a [l943] A.C. 92.
[I9611 A.C. 850 at 861,868,866.
[l96l] A.C. 888.
Su a. p. 35.
" &e
Tort of Negligence " (1953) Current Legal Problems, %6-249.
Carmarthenshire C.C. v. Lewis [l966] A.C. 549 at 665.

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THE MODERN LAW BEVIEW

VOL.

25

conceal from the student the actual operation of the law. It cannot be seriously contended tl-.at the foresight principle will make
the outcome of disputes more predictable than in the past. The
advocates of the principle are far from agreed on the eilect it would
have. The borderline cases recorded in the reporte will still come
before the courts, and almost certainly be decided in the same way
as before, whatever the received formula. As remarked earlier,
the correct solution of a remoteness problem is felt rather than
deduced from formulated principles. The rules discussed in this
article are those which seem to underlie the actual decisions. It
is not suggested that they are or should be consciously applied.
It was said in The Wagon Mound that it is not cc consonant with
current ideas of justice that, for an act of negligence, however
slight or venial, the actor should be liable for all the consequences,
however unforeseeable and however grave, so long as they can be
said to be direct. )s8 Ones 5rst reaction to this opinion is to
wonder whether a jury, in The Wagon Mound, would have echoed
this view on current ideas of justice. In a matter like remoteness
of damage, it is difRcult to assess the justice of any general rule. So
much depends on the facts of each case and the circumstances of
the parties. But one can still venture to doubt the superior morality
claimed for the foresight principle.
In considering whether the principle is calculated, as seems to
be contended, to preserve a due proportion between fault and
liability, it is important to bear in mind that the burden of liability
which must be placed in the scales in any serious discussion of the
subject is the actual bill of damages that a defendant has to meet.
Since all are agreed that foresight is irrelevant in assessing the
measure of darnages for physical harm, it must be purely a matter
of chance whether the size of the bill bears any relation to the
defendants fault.
It is still often cheaper t o kill than to
maim. A momentary lapse in driving a car, or handling a gun,
may result in a bill of damages of E20,000 or more, even under the
foresight rule.
The foresight rule also takes no account of the heinousness of
the defendants fault. Though instances of negligence V ~ I Ygreatly
in their culpability, the foresight of a reasonable man, in theory
at least, is a constant. A judge or jury is likely to be more ready
to extend liability when the breach of duty is highly culpable. In
this respect there is much to be said for a more flexible rule which
would allow the court some discretion.
Insurance against liability and the ability of an enterprise to
shoulder a loss or pa88 it on to consumers are also factors which
should be taken into account in any serious discussion of the moral
claims of the foresight principle. There is growing support for the
view that enterprises should pay for the damage caused by their
30

[1961] A.C. 888 at 429.

JAN.1962

FORESIGHT AND REMOTENESS I N NEGLIGENCE

28

inherent risks, which is in a sense part of the economic cost of

Though the law lags behind popular opinion
in this matter, one can detect the influence of this notion of enterprise liability in the practical operation of motorists, manufacturers
and employers liability, as well as in vicarious liability and the
rule in Rylands v. Fletcher.J Standards of care are screwed up
to such a pitch that all of us are negligent a t some time. Luck,
rather than care, keeps most of us out of the courts. The burden
of liability would be intolerable, as some of the judges have recognised, without insurance against liability. In these circumstances,
it is a little unreal to aim at any balance between fault and the bill
of damages. The question rather is whether the cost, through
insurance, of indemnifying the victims of an enterprise would place
too heavy a burden on it. Fire is a known hazard of the commercial
enterprise of carrying oil, and elaborate precautions are in fact
taken. In The Wagon Mound, the defendant carelessly allowed oil
to escape and the plaintiffs property, without negligence on their
part, was damaged by burning oil. Even if the precise way in
which the oil caught alight could not have been foreseen, it is not
easy to see why the lose should fall on the wholly innocent plaintiffs
rather than on the carrier who carelessly allowed the oil to escape.
The foresight principle, as applied in The Wagon Mound, seems t o
involve the curious notion that a person contemplating an act of
negligence is entitled to know in advance what the limits of his
liability will be.
One suspects that the outcome of The Wagon Mound may in
fact have been influenced by the interval which elapsed between
the escape of the oil and the fire breaking out. A distinction may
be drawn between the act of allowing the oil to escape and the
defendants conduct after the escape. Though negligent in respect
of the escape, they were not negligent, in the light of what was
then known, in taking no action after the escape to prevent injury
t o the plaintiffs. Had they known that the oil was dangerous, they
would have been under a duty to warn the plaintiffs, even if the
escape had been blameless. On this reasoning, their immunity
from liability could be founded, not on lack of foresight before the
escape that oil spread on water could be set alight, but on the fact
that they took all reasonable care after the escape occurred. A
somewhat similar problem would arise if a chemist carelessly sold
some poisonous pills to a customer and then, finding this out, rang
up the customer t o warn him not to take the pills. The customer
is then advised by a doctor friend that the chemist is mistaken
and that the pills are not dangerous. He therefore takes some of
the pills and dies: the chemist was right and the doctor wrong.
Despite his original negligence, the chemist would almost certainly
not be liable for the customers death, even if it should turn out
that the doctors mistake was, for some reason, a reasonable one.
a @ (1866)L.R. 1 Ex. 261; (1869)L.R. 9 H.L. 380.
carrying them on.

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TEE MODERN LAW REVIEW

VOL.25

This euggestion regarding the importance of tbe interval which

elapsed in The Wagon Mound between the escape and the 5re may
be tested by asking whether the result would probably have been
the same if the plaintiffs wharf had been immediately next to the
defendants ship and the fire had broken out, in the way that it
did, before the plaintids became aware of the presence of the oil.
Can we be sure that the Privy Council would then have thought
that liability should turn on the foreseeability of the oil catching
alight in the manner that it did? Suppose that oil is spilt on a
quay and some of it runs into the sea. The oil on the quay is set
alight by the defendants negligence and the fire spreads to the
oil on the water, damaging a ship lying a t anchor. Are we to
believe that the defendants liability stops a t the waters edge?
Though we often speak of negligence as consisting of an act or
omission, strictly speaking negligence is constituted by a state of
affairs. If I leave a car without lights in a dark road, I em negligent throughout the time that the car is a danger t o others, and I
cease to be negligent when the sun rises. If we admit the notion,
suggested above, that an original act of negligence can be cured
by taking reasonable care afterwards to avoid its ill effects, it may
be possible to explain the actual decision in The Wagon Mound on
the ground that the defendants were not in fact negligent.& the
time when the Are broke out.
DOUGLAE
PA=.*

LL.B.;

All Souls Reader in English Law, University of Oxford.