THE TEST OF REASONABLE FORESEEABILITY AND

ITS FUTURE IN INDIA

One of the vexed questions of the Law of Torts is the prob-

lem of remoteness of damage. Various tests have been formu-
lated from time to time, but none of them proved to be of uni-
versal application. In 1961, in Overseas Tankship (U.K.) Ltd-, v.
Morts. Dock and Engineering Co. (usually called the Wagon Mound
Case1) the Privy Council rejected the rule pronounced in In re
Polemis and Furness, Withy & Co.2 and re-established the rule
of reasonable foreseeability. The n e w rule, as interpreted in
subsequent cases, has given rise to m a n y complicated issues.
It has, therefore, become imperative to examine the sound-
ness or otherwise of the rule and to explore t h e possibilities of
its adoption in our country. Naturally, the scope of the present
study is confined to the examination of the role of the foresee-
ability rule before the Wagon Mound case, the changes brought
about by this and the subsequent cases and t h e assessment of
the desirability of its adoption in the face of the Indian judi-
cial authorities and the special conditions prevailing in this
country.

The Test of Foreseeability before the Wagon Mound Case

The rule laid down in t h e Wagon Mound case 3 was not

wholly unknown to the courts. It was, for the first time, laid
down by Pollock, C.B., in his separate opinions rendered in two
cases 4 of the Court of Exchequer in 1850. But it seems to have
been thought to be more restrictive and, therefore, was not fol-
lowed except in a few cases. 5 However, it has been traditional
to find some fault with the wrong-doer in order to make him
liable to pay compensation and the 'foreseeability' was reduced
to that purpose. The process began in Smith v. London and
South West Rly. Cofi According to the opinions expressed in

1. 1961 A.C. 388; 2 W.L.R. 126; 1 All E.R. 404.

2. (1921) 3 K.B. 560.
3. (1961) A.C. 388; 2 W.L.R. 126; 1 All E.R. 404.
4. Rigby v. Hewitt 5 Ex. 240; Greenland v. Chaplin 5 Ex. 243.
5. Lynch v. Knight (1861) 9 H.L.C. 577 at 600 (Per Lord Wensley-
dale) and Cory v. France (1911) 1 K.B., 114 at 122.
6. (1870) L.R. 6 C.P. 14.
444 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 3

this case, what a reasonable man can foresee is relevant in deter-

mining whether the defendant's conduct was negligent or not:
and once he has been found negligent he must answer for all
the natural consequences of his wrongful conduct. This and
some other cases7 paved the way for the rule in In re Polemis and
Furness, Withy & Co.,% according to which if the defendant could
reasonably foresee some damage resulting from his wrongful
conduct than he must be held responsible for all direct con-
sequences of that conduct. Thus, what a reasonable man could
foresee was relevant for determining culpability and not com-
pensation.9
After In re Polemis the law for a while seemed to have been
settled. But in the next decade, it was soon realised that where-
as the foreseeability test was too restrictive, the In re Polemis test
also went too far in the other direction. The courts were in-
clined to limit the application of the rule 10 and 'foreseeability'
found its way through the 'duty' concept, though not to the
extent to which it has gone in the Wagon Mound case.11 In both
Smith v. L.S.W. Rly Co.12 and In re Polemis13 there are some dicta
supporting the view that if the wrong-doer could reasonably
foresee any damage to any person then he is guilty of negli-
gence and must answer for all direct or natural consequences of
his conduct. Even on facts, in Smith's case (though not in In re
Polemis) no damage to the plaintiff was foreseeable and In re
Polemis (though not in Smith's case) the damage of kind, which
actually occurred, was not foreseeable. But after 1940 the courts
held that some damage to the plaintiff must be foreseeable be-
fore a person can be held negligent. He cannot just attribute
the wrong to someone else.14 In America this conclusion was
reached much earlier 15 but in England Lord Atkin's famous pro-
nouncement in Donoghue v. Stevenson,1® was made the vehicle

7. See H.M.S. London 30 T.L.R. 196 and Weld-Blundell v. Stiphens

(1920) A.C. 956 (Per Lord Sumner).
8. (1921) 3 K.B. 560 C.A.
9. As already said by Lord Sumner in Weld-Blundell v. Stiphens
(1920) A.C. 956 at 984.
10. See Liesbosch Dredger v. S.S. Edison (1933) A.C. 449.
11. (1961) A.C. 388; 2 W.L.R. 126; 1 All E.R. 404.
12. (1970) L.R. 6 CP 14.
13. (1921) 3 K.B. 560 CA.
14. See Bourhill v. Young (1943) A.C. 92; King v. Phillips (1953) 1 Q.B.
429.
15. See Palsgraj v. Long Island R.R. Co., (1928) 248 N.Y. Rep. 339.
16. (1932) A.C. 562. In fact, the purpose of this case was not to res-
trict but to extend the liability to a reasonable plaintiff even
 1971] TEST OF REASONABLE FORESEEABILITY 445

to achieve the same end without expressly acknowledging the

reception of the American law.
The foreseeability test went only so for before the Wagon
Mound case. 17 There seems to be no clear authority for the view
that the kind of damage, which the plaintiff actually suffered,
must be foreseeable, 18 though some kind of damage to the plain-
tiff must be foreseeable to establish the initial d u t y of care.
Wagon Mound Case19
In this case the appellants' vessel was taking oil in Sydney
Harbour at the Caltex wharf. Through the carelessness of their
servants a large quantity of oil was allowed to spill into the
harbour. The escaped oil was carried by wind and tide beneath
a wharf owned by the respondents, who were ship-builders and
ship-repairers. They were refitting a vessel and for that purpose
their employees were using welding equipment. The distance
between respondent's wharf and the Caltex wharf was 600 feet.
When the respondents' manager oecame aware of the con-
ditions in the vicinity of the wharf, he instructed the workmen
that no welding or burning operations were to be carried on until
further orders. He enquired from the manager of Caltex Co.
whether they could safely carry on the welding operations and
the result of the enquiry, coupled with his own belief as to in-
flammability of the furnace oil on w a t e r in the open led him
to think that he could safely carry on the operations. He gave
instructions accordingly, but directed that all safety precautions
should be taken to prevent inflammable material falling into
the oil.
On the third day, there was an out break of fire. The exact
cause of the fire is unknown, but the most probable explanation
which the Court accepted was that underneath the wharf was
floating a piece of debris with some smouldering cotton waste
or rag on it. It was set on fire by the molten metal falling from
the wharf. Thus, floating oil was set afire and the wharf was
severely damaged. Appellants were held not liable as damage
to the plaintiff by fire was not reasonably foreseeable. Their
Lordships held that the essential factor in determining the lia-
bility for consequences of a tortious act of- negligence is w h e -
ther the damage is of such a kind as a reasonable man should

though there was no contract between the defendant and the

plaintiff.
17. (1961) A.C. 388; 2 W.L.R. 126; 1 All E.R. 404.
18. But see Viscount Simond in Wagon Mound Case (1961) 2 W.L.R.
126 at 141 and Denning, L.J., in King v. Phillips (1953) 1 Q.B. 429
at 441.
19. (1961) A.C, 388; 2 W.L.R. 126: 1 All E.R. 404.
446 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 3

have foreseen. Liability does not, in their Lordships' opinion,

depend solely on the damage being a direct or natural conse-
quence of the act. 20 There is only one criterion for determining
culpability as well as compensation. According to their Lordships
foreseeability is the effective test for both and the direct conse-
quence test leads nowhere but to never ending and insoluble
problems of causation. 21

Foreseeability after the Wagon Mound Case

The rule of foreseeability has been substantially modified

by subsequent cases. In Hughes v. Lord Advocate,22 employees
of the post office opened a manhole in the street and in the
evening left the manhole covered by a canvas shelter, unattend-
ed and surrounded by warning paraffin lamps. A boy of 8 years
accompanied by his uncle aged ten brought one of the lamps
into the shelter. He stumbled over the lamp and the lamp fell
into the manhole. An explosion followed and the boy also fell
into the manhole. He was seriously burnt. In this case it was
foreseeable that the boys might play with lamps and suffer
injury from burns. But the explosion could not have been rea-
sonably foreseen. Even then, the defendants were held liable
on the ground t h a t the injury, which actually resulted, was
not different in kind from the injury, which could reasonably
have been foreseen. Their Lordships held that the fact that the
danger which actually happened was not identical with the danger
reasonably foreseeable, did not necessarily result in the liability
not arising; nor would the fact that the precise development of the
accident, as it actually happened, could not reasonably have
been foreseen absolve the defendant from liability. 2 3 Thus,
according to the test of foreseeability, as interpreted in this case,
the liability depends upon the fact that the breach of duty to
the plaintiff results in damage of the kind, which could have
been reasonably foreseen. The extent of damage and the exact
or precise m a n n e r of its occurrence need not be foreseeable.
The language of the decision is, however, carefully worded.
Although the precise m a n n e r in which the accident happened
may or m a y not be foreseeable, 24 yet it must not be too freakish.
T h e development of the accident m a y not be foreseeable but

20. (1961) 2 W.L.R. 126 at 142.

21. Ibid.
22. (1963) A.C. 837; 1 All E.R. 705; 2 W.L.R. 779.
23. (1963) A.C. 837 at 853.
24. Id. ait 853 (Per Lord Morris).
1971] TEST OF REASONABLE FORESEEABILITY 447

that does not mean that the accident itself would be unforesee-
able.25 It also does not mean that there can be liability where in-
trusion of a new and unexpected factor can be regarded as
the cause of the accident rather than the fault of the defendant.26
The rule, thus interpreted, is in effect similar to that incor-
porated in the American Restatement of Tort which provides that
lt
if the actor's conduct is a substantial factor in bringing about
harm to another the fact that the actor neither foresaw nor
should have foreseen the extent of the harm or the manner in
which it occurred does not prevent him from being liable." 27
The test in the Wagon Mound case28 was further explained in
Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Pty. Ltd.
(usually called the Wagon Mound case No. 2).29 The facts of this
case were the same as in Wagon Mound (No. 1) except that in
No. 1 the plaintiff was the owner of the wharf but in No. 2 the
plaintiffs were the owners of the ships, which were being re-
paired and were damaged by fire. The decision was, however,
different in Wagon Mound (No. 2).
This was mainly due to difference in the evidence adduced in
the two cases and the findings of facts.30 In No. 1 it was found
that the consequences were not at all foreseeable but in No. 2.
Walsh, J., found; (1) that the officers of Wagon Mound would
have regarded the furnace oil as very difficult to ignite on water
—not that they would have regarded 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 would become an actuality only
in very exceptional circumstances.31 The conclusion, which he
reached in his finding No. 5, was that the damage was not rea-
sonably foreseeable by those for whose acts the defendants would
have been responsible.32 It is the findings Nos. 1 to 3 above

25. Id. at 852 (Per Lord Morris).

26. Id. at 845 (Per Lord Reid).
27. See S. 435.
28. (1961) A.C. 388; 2 W.L.R. 126; 1 All E.R. 404.
29. (1966) 3 W.L.R. 498; (1966) 2 All E.R. 709; (1967) 1 A.C. 617.
30. Another factor was that the respondent in Wagon Mound No. 1
could not set up that the owner of Wagon Mound could have
foreseen the consequences for df the owners of Wagon Mound
could have foreseen then their Manager also could have foreseen
They would have, then, been guilty of contributory negligence^
which was a complete defence at that time in New South Wales,
Plaintiffs in No. 2 were free from such embarrassment.
31. (1966) 3 W.L.R. 498 at 503.
32. Ibid.
448 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 3

which led to a different result in this case and this is really a

novel application of the foreseeability test.
The conclusion No. 5 of Walsh, J.'s findings seems to be
based on the meaning of 'reasonable foresight' which was
hitherto assigned to this phrase. 3 3 In Fardon v. Harcourt Riving-
ton,3* Lord Dunedin held that "people must guard against rea-
sonable probabilities but they are not bound to guard against fan-
tastic possibilities." The correctness of this statement was never
questioned. In Bolton v. Stone35 it was expressly approved by
their Lordships. In this case a cricket ball was driven out of the
playground into an unfrequented public road. The event was
plainly foreseeable though the chance of its happening was in-
finitesimal. It was held that a reasonable man would have been
justified in disregarding such a risk. In fact, the foreseeable
consequences for which a person could be held liable were meant
to be probable ones rather than merely possible. 36
However, in Wagon Mound No. 2 37 their Lordships dis-
tinguished these cases from the case in hand, on two grounds.
Firstly, that in those cases activities were not unlawful; and
secondly, that there was no justification in the Wagon Mound
case for not taking precautions. Their Lordships divided the
cases of possible consequences into two categories.

(1) Those in which before the event the risk of its happen-
ing would have been regarded as unreal because the
happening of the event would have been so fantastic
that no reasonable man would pay any attention to it
—a m e r e possibility, which would never occur to the
mind of a reasonable man; and

(2) Those cases in which there is a real or substantial risk.

Cases like Fardon v. Harcourt-Rivington.3* would fall into the
first category. In such cases the question of taking precautions or
of liability, does not arise. On the other hand* both Bolton v.
Stone39 and Wagon Mound,*0 would fall into the second category.
It is in the second type of cases that their Lordships de-
marcated a new field of liability. In such cases a person would

33. Id at 512.
34. (1932) 146 S.L.T. 391.
35. (1951) A.C. 850.
36. Id. at 861 (Per Lord Normandy).
37. (1966) 3 W.L.R. 498.
38. (1932) 146 S.L.T. 14.
39. (1951) A.C. 850.
40. (1966) 3 W.L.R. 498; (1967) 1 A.C. 617; (1966) 2 All E.R. 709.
1971] TEST OF REASONABLE FORESEEABILITY 449

be justified in disregarding the risk if he has some valid reasons

for not taking care, e.g., if it would involve considerable e x -
pense to eliminate the risk. 41 The existence or otherwise of such
a justification in a particular case would depend upon weighing
a risk against the difficulty of eliminating it. In the absence of
such a justification he will be liable.
On the basis of the cases referred to above, the foresee-
ability test requires that a person should be held liable for all
possible consequences of his conduct which could have been
reasonably foreseen, notwithstanding that the extent of damage
and the precise manner of their occurrence could not have been
reasonably foreseen, provided that the risk is not so small or
fantastic as would have never occurred to the mind of a rea-
sonable man and the circumstances are such that a reasonable
person would have been justified in taking no steps to eliminate
it.
The rule thus propounded, is in a w a y wider than that
stated in In re Polemis, because under this rule liability extends
to indirect consequences, notwithstanding the intervening events,
if the consequences were foreseeable. Moreover, the Polemis rule
coupled with the 'duty' concept attached to it as initial r e q u i r e -
ment, could impose liability where there was a probability (not
mere a possibility) of at least some damage to the plaintiff. On
the other hand, the new rule of foreseeability avoids the u n -
reasonableness of the Polemis rule, by disregarding fantastic
possibilities to which no reasonable man would pay attention and
by balancing away the risks of small magnitude and rare occur-
rence.

II.

PROBLEM OF ADOPTION OF THE RULE IN INDIA

The English' law of tort was introduced in India mainly in

the guise of equity, justice and good conscience. It was, t h e r e -
fore, applied keeping in view the special conditions prevailing in
this country. Many rules of English common law relating to this
branch were not applied by judges in India when they found a
particular rule of common law opposed to equity, justice and good
conscience or unsuitable to the conditions prevailing here. For
instance, the doctrine of common employment, 4 2 the rule that

41. (1966) 3 W.L.R. 498 at 511.

42. See Secretary of State v. Rukmini Bai A.I.R. 1937 Nag. 354; Nari-
man Ghadially v. Hindustan Construction Co. 1948. O.C.J# Suit No.
 4
50 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 3

slander is not actionable per se and the rule in Merry Weather v.

Nixon*3 were generally not favoured by the courts. The same
may be said of law regarding maintenance and champerty. 44
In deciding whether a particular rule of English common law
should be adopted in India, the courts, sometimes, took notice of
changes made by the English Statutes. 45 But once a rule was
adopted it was not affected by later English Statutes. 46 A similar
problem is posed by subsequent judicial decisions of the English
courts overruling their previous judgments which had been adop-
ted by the Indian courts. Prior to the abolition of the jurisdiction
of the Privy Council the problem was not so acute because it kept
the laws of the colonies in line with the English law in so far as
it was judicially possible. But since the abolition of its jurisdiction
our courts are no longer bound by its decisions pronounced there-
after. Now if any rule of English common lav/ is changed by the
decision of the Privy Council, it cannot automatically bring about
any change in the Indian law on the subject, however equitable
the new rule may be. Whether or not any such decision should
be applied in our country depends upon the following enquiries:-

1. Is there any provision of the Constitution or Statutory Law

in conflict with the decision?
2. Is there any decision of the Supreme Court of India in
conflict with it?
3. What is the trend of the decisions of the various High
Courts on the subject?

778 of 1944 (unreported, Bom.). For the opposite view see Abdul Aziz
v. Secretary of State A.I.R. 1923 Sind 129 and Brocklebank v.
Noor Ahmode 42 C.W.N. 179.
43. (1799) 8 T.R.186. Under the rule laid down in this case one of
the several wrong doers who paid the whole of the damages had no
right to claim contribution from others. This rule was not applied
by rbhe Allahabad and Nagpur High Courts in Dharni Dhar v.
Chandra Shekhar A.I.R. 1952 All. 759 and Khushalrao v. Bapu Rao
A.I.R. 1942 Nag. 1, respectively. For a detailed Mist of oases which
applied the rule and those which did not apply it, see B. S. Sinha,
Law of Torts (1965) N. 46 p. 163.
44. See Ram Coomar v. Chunder Canto 1876 I.L.R. 2 Cal. 233 (P.C):
4 I.A. 23; Bhagwat Dayal v. Debi Dayal 1903 I.L.R. 35 Cal. 420.
(P.C): 35 I.A. 48; Subhadrayamma v. Venkatapati Raju, (1924)
I.L.R. 48 Mad. 230 (P.C): 52 I.A. 1.
45. See Niyogi, C.J., in Secretary of State v. Rukmini Bai, A.I.R. 1937
Nag. 354.
46. In Governor General in Council v. Constance Zena Wells A.I.R.
1950 P.C. 22 the doctrine Of Common Employment was held to be
applicable in India notwithstanding its abolition in England by the
Law Reform (Personal Injuries) Act of 1948,
1971] TEST OF REASONABLE FORESEEABILITY 451

4. Is the principle, laid down in the decision, consonant with

equity, justice and good conscience; and suitable to the con-
ditions prevailing in India?

If the answer to enquiry No. 1 or 2 is in the affirmative* then

there is no possibility of its application. If, however, both are
answered in the negative, then its application will depend upon
the answers to enquiries Nos. 3 and 4.
Now, so far as the present problem is concerned, there is no
constitutional or statutory provision in direct conflict with the
decision in Wagon Mound cases and there seems to be no decision
of the Supreme Court directly in point. However, In re Polemis
was cited with approval in Panna Lai Jankidas v. Mohan Lai.*7
Though negligence was in issue, yet the case may not be re-
garded as' an authority on the law of tort. The case rests upon
the provisions of the Indian Contract Act. Section 212 of the Act
provides, inter alia, that an agent is bound "to make compensa-
tion to his principal in respect of direct consequences of his own
neglect, want of skill or misconduct, but not in respect of loss or
damage which are indirectly or remotely caused by such neglect,
want of skill or misconduct.'' In view of this clear mandate for
direct consequence test the court, really, had no choice before
it and this case is» therefore, not of ariy help in ascertaining
the position in this developing branch of law.
Now turning to the High Court cases we find a few cases
supporting directly or indirectly the direct consequence test.
In Mrs. Halligue v. Mohan Sundaram,4^ Madras High Court
held that damages can be claimed on the basis of nervous
shock directly attributable to negligence. The court relied on
Hambrook v. Stockes Bros.^ Bourhill v. Young,50 was not
cited. In Nawal Kishore v. Rameshwar,51 where a suit for
damages for wrongful attachment of property was brought
against Nawal Kishore, the court held Nawal Kishore liable
on the ground that in insolvency proceedings the property was
attached at his instance and remained locked up and could not
be let out to any one. The damage to the property was direct
consequence of the attachment and its being locked up by
Nawal Kishore. In another case52 where the Municipal Board

47. A.I.R. 1951 S.C. 144.

48. A.I.R. 1951 M a d 1056.
49. (1925) 1 K.B. 141.
50. 1943 A.C. 92.
51. A.I.R. 1955 All. 594.
52. Municipal Board, Kheri v. Ram Bharosey A.I.R. 1961 All. 430.
 452 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13:3

of Kheri granted a licence to erect a flour mill adjacent to the

respondent's house with the result that as a consequence of
vibrations produced by the mill his house was badly damaged,
the Allahabad High Court held that the Municipal Board was
not liable, for the damage was not the direct consequence of
granting of licence. The Court laid down the following tests of
remoteness:

(i) * 'consequences that are intended by the wrong-doer

will not be too remote. This includes reckless in-
difference to consequences which may, thereby, be
deemed to have been intended:
(ii) * 'consequences that are reasonable and probable and
which* therefore, might have been foreseen are not
too remote:
(iii) ^'consequences which are the direct result of an un-
lawful act or omission are not too remote although
they could not reasonably have been forescent' 53

It is worth noting that in all these cases In re Polemis was

not cited. And in the last mentioned case the foreseeability test
has not been rejected. However, the court was of the view that
in addition to all foreseeable consequences—direct or indirect54'—
the liability extends also to direct consequences which may not
be reasonably foreseeable. Thus, the test, so laid down, is defi-
nitely wider than the foreseeability rule in any of its forms and
is liable to include fantastically possible consequences if they can
be said to be direct ones. There is one thing more, to note, that
all these decisions were laid down before the Wagon Mound
cases and, therefore, the relative merits and demirits of the
two tests were not considered fully.
The trend in later cases seems to be in favour of the foresee-
ability test. In M. Madappa v. K. Kariappa, 55 where the plain-
tiff's orange garden was destroyed by fire started by the de-
fendant in his garden which was adjacent to that of the plain-
tiff, the Mysore High Court expressly following the Wagon Mound
case held:

When the appellant set fire to his land without reasonable

precautions to prevent the same from spreading into the

53. Id. at 432.

54. Ibid. Test No. (ii) indicates this.
55. A I R . 1964 Mys. 80.
1971] TEST OF REASONABLE FORESEEABILITY 453

lands in neighbourhood he was playing with fire and should

be deemed to have foreseen the possibility of the fire spread-
ing into the land adjoining his land and is liable for any
damage caused to them.

In another case56 the Kerala High Court also followed the

foreseeability test as laid down in the Wagon Mound case (No. 1).
In this case some boys from a nearby school gathered on the
roadside to cross it. They waited for a bus which was coming
down from the south to pass. The defendants' lorry was com-
ing 75 to 100 yards behind the bus at a speed of 25 to 30
miles per hour. As soon as the bus passed the boys began to
cross the road and one of the boys was injured by the defen*
dants' lorry. The court held that the defendants were liable
because the accident that happened must have been foreseen
by the defendants.57 Both the Wagon Mound case (No. 1) and
Hughes v. Lord Advocate™ were cited with approval. The
following line from the judgment of Viscount Simond in
Wagon Mound (No. 1) was quoted: " the real and the ef-
fective tests is the foreseeability of the accident—foreseeability
not of the , manner in which the accident happened but
of the occurrence of an accident of the kind."59
The court explained the test of foreseeability as follows:

A reasonable man would so regulate his conduct as to avoid

producing any undesirable consequences which he foresees
as probable. That is the normal standard of careful conduct.
If the conduct in question falls short of that standard it is
negligent. Here the question is not whether the defendant
did actually foresee the consequences that happened as prob-
able. The question is only whether he, as a reasonable man,
ought to have foreseen them. If the circumstances of the
act are such that a reasonable man would have foreseen the
probability of the accident then the defendant who failed
to do likewise or who envisaged it and rejected it as too
remote a chance has to be regarded as having been negli-
gent. It is unnecessary in law to prove that he actually fore-
saw the event or the consequences. It is enough if the cir-
cumstances are such that he as a reasonable man ought to
have foreseen them. When the circumstances of the act indi-

56. Veeran v. Krishna Moorthy, A.I.R. 1966 Ker. I'70,

57. Id. a t 177.
58. (1963) A.C 837: 1 All E.R. 705; 2 W.L.R. 779
59. A.I.R, 1966 Ker. 172 at 176.
454 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 3

cate that certain consequences might ensue, the person must

be held to have foreseen the consequences or at least ought
to have foreseen them. 60

This is clear from the language of the judgment that

the court favoured the foreseeability rule. However, the language
used and the authorities cited suggests that the liability extends
to those consequences which are foreseeable as probable con-
sequences rather than possible ones unless the possibility is
reasonably apparent. 61
Now, from the examination of the above cases it is clear
that the judicial trend is in favour of the foreseeability rule
rather than the direct consequence test, and that the rule is not
in direct conflict with the existing law. The adoption of the rule
must, therefore, depend upon the nature of the rule and its
suitability to the Indian conditions. The following arguments
are generally advanced in favour of the foreseeability rule:—

1. That the rule is rational and simple to apply as it avoids

the use of different criteria for culpability and compen-
sation and is free from subtleties of intervening causes.62
2. That the rule is consonant with the duty concept in Tort
of negligence which depends upon foreseeability by a
reasonable man 63 and is necessary for being logical and
consistent.64 The direct consequence test leads to unjust
and illogical conclusion.65
3. That it is in consonance with the current ideas of justice
and morality. 66

As to the first ground it must be remembered that the rule is

by no means as simple as it appears to be. It requires a lot of
accurate imagination to examine whether a particular damage
was of a kind which the plaintiff could reasonably have fore-

60. Id. at 176-7.

61. See a quotation from the judgment of Lord Du Parck in London
Passenger Transport v. Upson (1949) A.C. 155 at 176.
62. Goodhart, The Imaginary Neckite and the Rule in In re Polemis, 68
L.Q.R. 514; Williams, The Risk Principle, 77 L.Q.R. 179.
63. (1961) 1 All E.R. 404 at 414-415. Also see Holdsworth, HJE.L. Vol.
VIII. 462 et seq.
64. Seavey, Mr. Justice Cardozo and the Law of Torts. 52 Har. L.
Rev. 372; 48 Yale L.J. 390; 39 Col. L. Rev. 20.
65. (1961) 1 All E.R. 404 at 414 (Per Viscount Simond) Also see L.
Wrliight, In re Polemis, 14 Mod. L. Rev. 393.
66. (1961) 1 All E.R. 404 at 413-415.
1071] TEST OF REASONABLE FORESEEABILITY 455

seen. Again, what must be foreseeable is in itself a big question.

The difficulties in the application of the rule to various sets of
facts are well illustrated by the cases of Smith v. Leech Brain,*1
Hughes v. Lord Advocate,^ Doughty v. Turner Manufacturing
Co.™ and Wagon Mound No. 2.™ Besides these difficulties
the thin skull (also called thin skin or egg-shell skull) cases and
rescue cases present special difficulties in reconciliation.71
Though rescue and thin skull cases are difficult to explain,
yet they do not present any such problem as to convince us for
not adopting the rule. It is now well established that when a
person creates some danger he ought to have in contemplation
that somebody may come to the rescue. In the eloquent words of
Cordozo, J., in Wanger v. International Rly. Co.12:

Danger invites rescue. The cry of distress is the summons

to relief. The law does not ignore these reactions of the
mind in tracing conduct to its consequences. It recognises
them as normal. It places their effect within the range of
natural and probable. The wrong that imperils life is a
wrong to the imperilled victim; it is a wrong also to his
rescuer.
Lord Atkin's test, which he laid down in Donoghue v.
Stevenson,™ also leads to the same conclusion. In fact, there is
no dearth of cases in which injury to a rescuer was held fore-
seeable.74
The thin skull cases are, no doubt, a real problem. In
fact, it is not possible to explain all thin skull cases on the
basis of the foreseeability rule. Most of them, however, involve
injuries which are either greater in extent than what was rea-
sonably foreseeable or are caused in a manner which could not
reasonably ha^e been foreseen. They can be decided by applying
the rule as has been explained in Hughes v. Lord Advocate,15
and in Wagon Mound No. 2.76 The difficulty is felt only in

67. (1962) 2 Q.B. 405.

68. (1963) A.C. 837; 1 All E.R. 705; 2 W.L.R. 779.
69. (1964) 1 Q.B. 518.
70. (1967) 1 AC. 617; (1966) 3 W.L.R. 498; (1966) 2 All E.R. 709.
71. See Allen M. Linden, Down with Foreseeability, 47 Can. B.R. 545.
72. (1921) 232 N.Y. Rep. 176 at 180.
73. (1932) A.C. 562 at 580; 1932 AM E.R. 1 at 11.
74. See Haynes v. Harwood, (1935) 1 K.B. 146. Ward v. T.E. Hopkins
& Son, Ltd., (1959) 3 All E.R. 225; Chadwick v. British Transport
Commission, (1967) 2 All E.R. 945.
75. (1963) A.C. 837; 1 All E.R. 705; 2 W.L.R. 779.
76. (1967) 1 A.C. 617) (1966) 3 W.L.R. 498; (1966) 2 All E.R. 709.
456 JOURNAL OF THE INDIAN LAW INSTITUTE tVol. 13 : 3

those cases where the injury is of a kind quite different from what
was reasonably foreseeable. The more the difference, the greater
the difficulty. Cases of slight variance can easily be reconciled
by twisting the rule to cover them. It cannot be said that the
wrong-doer could not as a reasonable man foresee that his vic-
tim might have pre-existing susceptibilities, or that the injury
caused by him might develop into a graver one by rendering him
susceptible to further injuries. For instance, in Smith v. Leech
Brain,11 a workman's lip was burned by spattering of some mol-
ten metal while he was lowering articles into a galvanising tank.
Cancer developed at the site of the burn and three years later
he died of cancer. The court found it difficult in that case to
decide on the principle of reasonable foresight as laid down
in Wagon Mound No.l. 78 There would have been little difficulty
if the case had been decided after Hughes v.Lord Advocate19
and Wagon Mound No. 2.80 There is no doubt that injury through
burns was foreseeable as a probable consequence. There can be
some doubt about the foreseeability of its aggravation and par-
ticularly development into cancer. That cuts and burns may lead
to cancer is not wholly unknown to medical science81 and even to a
common man. The liability could well be extended on the ground
that the damage was reasonably foreseeable as a possible conse-
quence—though not as a probable one. Under, the rule laid down
in Wagon Mound No. 282 when a reasonable man can foresee a
particular kind of injury as a possible consequence of his con-
duct the wrong-doer can be held liable, unless he has some justi-
fication recognised by law or the possibility of damage is so
fantastic that no reasonable man would pay attention to it.
As to the second argument in favour of the foreseeability
test, it must be admitted that in cases of negligence it would, in
fact, be illogical to say that a person does not owe a duty to
avoid a particular damage but he is responsible for that damage.
In the field of negligence the1 duty depends upon foreseeability
of the risk to the plaintiff. If no damage can be foreseen there is
no duty to take care. In other words, the such duty is to avoid
damage to the plaintiff which a reasonable man can forsee—not the
damage which no reasonable person in the same circumstances

77. (1962) 2 Q.B. 405.

78. (1961) A.C. 388; 1 All E.R. 404; 2 W.L.R. 126.
79. (1963) A.C. 837; 1 All E.R. 705; 2 W.L.R. 779.
80. (1967) 1 A C . 617; (1966) 3 W.L.R. 498; (1966) 2 All E.R. 709.
81. Compare Doughty v. Turner Manufacturing Co. Ltd. (1964) 1 Q.B.
518, where potential eruptive qualities of the covers could not be
suspected and were not therefore a known source of danger.
82. (1967) 1 A C . 617; (1966) 3 W.L.R. 498; (1966) 2 All E.R. 709.
 1971] TEST OF REASONABLE FORESEEABILITY 457

can forsee. It would, therefore, be inconsistent with the concept

of duty to make him liable for unforseeable consequences
merely because they directly flow from the wrongful act or
omission of the tort-feasor. To this extent rejection of the In re
Polemis rule and adoption of the foreseeability test rationalize
and simplify the law and lead to logical consistency. The prob-
lem in negligence is essentially of duty which extends to reason-
able foreseeable consequences and no further.
The last ground in support of the test is justice and fairness
and this is vital for our purposes, for the adoption of the rule
will depend upon its equitable nature. The primary purpose of
the law of Torts is said to be shifting of the loss from the victim
to the person who inflicted it on him. The primitive principle
laid down by Bacon and Hale was that in adjudicating upon civil
liability the law looks not at the demerits of the wrong-doer
but at the damage to the injured party. But now-a-days, except
in cases of strict duty, intention or negligence on the part of the
defendant must be proved. It would, therefore, be too harsh
to require a wrong-doer to pay for damages which are
beyond reasonable foresight. Moreover, the interest of the de-
fendant is to be balanced against the competing interest of the
plaintiff. When relief is denied, on account of remoteness, for
injuries caused by the wrong-doer, the wrong-doer gets advant-
age and the person wronged remains without redress. This seems
apparently unjust. But really it is not always so. The activities
which are necessary for society cannot be stopped* though
accidents and injuries due to those activities are but natural.
The activity, which causes risk, must bear the burden—not the
person injured. But the courts in such cases have all along been
concerned with balancing of the two interests, i.e., the compensa-
tion to the injured party—and the maintenance of necessary acti-
vities. For this purpose some limit is necessary so that the neces-
sary activities may not be so burdened as to be ruined. Where
the facilities for cheap insurance are available it would not be
unjust to ask the wrong-doer to compensate for any damage
caused by his activities—whether foreseeable or unforeseeable
Snd whether direct or indirect. But in a country like India,
where such facilities are not available, it would be too much to
increase the liability, and the retention of the foreseeability rule
In its wider sense will be more suitable at present than re-adopt-
lion of the direct consequence test which is also not considered
latisfactory. In order to apply the rule the following questions
must be borne in mind:—
458 JOURNAL OF THE INDIAN LAW INSTITUTE [Vol. 13 : 3

(1) Is the damage of a kind which a reasonable person

could foresee as a possible consequence — not neces-
sarily probable — of his conduct?
(2) If the answer is no, further enquiries are unnecessary.
If yes, the next question is, is there any justification for
not taking precautions?

If the answer to the question No. 2 is in the affirmative the

defendant should not be held liable. If the answer be in the
negative then he should not be allowed to escape the liability.
The existence or otherwise of any justification will depend upon
a number of factors, such as the magnitude of the risk, the
chances of its occurence* the frequency of similar occurences In
the past, the cost of avoidance and the nature and importance of
the activity concerned. None of these, however, can alone be deci-
sive. The court will have to balance the competing interests in
the light of all the relevant facts and circumstances of a
particular case. This flexibility is essential for avoiding injustice
to the parties.

CONCLUSION

In view of the recent trend of judicial decisions and the

relative merits of the foreseeability test, the author, while firmly
rejecting the direct consequence test, reluctantly favours the
foreseeability rule, in the sense explained above, as a transitory
measure. Since in modern society it is possible to make an
activity bear all losses—remote or proximate—caused by it to
others, it would be better to do away with all these limiting
devices and allow damages to innocent sufferers. But cheap insu-
rance facilities in the nature of loss insurance rather than lia-
bility insurance are prerequisite for the successful working of
such a system. So long as we are unable to provide for those
facilities we have to adopt some limiting device. To this effect
the author prefers the foreseeability rule to that of direct conse-
quences. In those spheres in which we can afford loss insurance
facilities in future, absolute liability may be imposed by appro-
priate legislation. In other spheres the liability must be deter-
mined by applying the principle of reasonable foresight, which
has already got the approved of some of our High Courts.

G. S. PANDE*

* LL.M., Lecturer in Law, Lucknow University.