Tort Law11

Remoteness of Damage 

Even when a dft has been held to owe the ptf a duty of care, tort law must still determine the extent of the dtf’s liability. This is the aspect of “remoteness” in negligence law. This aspect of legal inquiry, like the question of duty of care, is, shorn of excessive verbiage, essentially a judicial mechanism for regulating what Lord Wright termed “the consequences of consequences.”

A Magic Formula? 

Courts and legal scholars have formulated tests or formulae which can be applied to solve problems of remoteness. For example, “cause” and “proximate cause”, have been used in various cases. These formulas have been helpful but ultimately, remoteness questions are determined by the application of what Klar calls “common sense, pragmatics, and politics.” Klar, at 333.

A Magic Formula 

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A careful evaluation and analysis of the case law strongly suggests that the liability of dft is a result of a careful balance of the judge’s perception of the role of tort law in society vis-à-vis the overall impact of that decision on existing jurisprudence. Remoteness issues deal with the scope of liability in reference to the injuries or damage caused to the ptf by the dft’s negligent behaviour.

Foreseeability and Remoteness 

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The test of foreseeability is central to the elements of duty of care, breach of duty and remoteness. However, these elements often overlap or coincide. Whether a ptf is foreseeable or not but there are different possible injuries arising from the dft’s negligence, then duty and remoteness issues are distinct. On the other hand, where a ptf is plainly foreseeable by virtue of her vulnerability to a type of injury, duty and remoteness coincide. Palsgraf

Foreseeability and Remoteness 

On the former, the English case of Meah v. McCreamer is illuminating. Ptf’s personality was changed as a result of a car accident. This personality disorder led him to sexually assault 2 women. He was jailed for the assaults, and, as well, sued by his victims. He in turn sued the driver responsible for the car accident claiming as damages the judgment awarded against him in the civil assault suits. Was this too remote? Held: Too remote. The 2 women might as well sue the driver.

Tests for Remoteness 

As many remoteness cases often show, it is not enough for the ptf to show that the dft breached her duty of care to the ptf and that an injury resulted from the breach. It is also imperative that ptf must show that the injury suffered it not too remote from the dft’s negligent behavior. The problems of remoteness may be illuminated by the facts of, and decision of the court in the case of Falkenham v. Zwicker.

Falkenham v. Zwicker 

As the dft drove in excess of posted speed limit on an extremely slippery highway, a cat ran onto the road. Dft braked, swerved and lost control, hitting ptf/farmer’s fence. The impact sheared off five or six fence posts and scattered fence staples on the ground. Several months later, the farmer’s cows ingested the fence staples. Some of the cows died. Ptf sued in negligence. Was the dft liable for the damage done to the ptf?

Remoteness and Logical Cause 

The notion of remoteness does not concern itself with the question of whether the dft’s negligence is the FACTUAL or LOGICAL cause of the ptf’s injury: it accepts that as given. Rather, remoteness delimits the point at which the dft’s negligent conduct will no longer be considered a LEGAL cause of the ptf’s injury. All the tests on “remoteness” require subjective judgment and are often based on policy.

Re Polemis: The Directness Test 

In the famous case of Re Polemis, the English CA established the principle that once having proved negligence, a ptf is entitled to compensation for all damages “DIRECTLY traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results.” Per Scrutton, L.J.,

Re Polemis 

Charterers of MV Re Polemis loaded petrol in the vessel. During the voyage, some of the petrol tins leaked. As a result, petrol vapor accumulated in the hold. At the next port, charterers hired stevedores to relocate the leaking tins from the upper deck to the lower deck. The stevedores used planks for this purpose. By the negligence of the stevedores, a plank fell on one of the tins, ignited the vapor and as a result, the Re Polemis was destroyed. The fire was not foreseeable.

Re Polemis 

In arriving at their decision, their lordships rejected the competing idea that a dft is only liable for the “intended” or “natural and probable” consequences of a negligent conduct. Similarly, by adopting the “directness” test, their lordships rejected the view that the appropriate test was one of “reasonable foreseeability.” The ratio in Re Polemis was revisited and rejected in another famous case, MT Wagon Mound.

MT Wagon Mound #1 

Bunker oil was carelessly discharged into the bay surrounding the Port of Sydney. The oil spread to the foreshore and wharf where ship repairs were being conducted by owners of the dock. A spark from welding operations ignited a rag which was floating in the water, and this in turn set the oil on fire. The floating fire on Sydney Port destroyed ptf’s wharf. Ptf sued the ship’s charterers. At the lower court, the trial judge found that the dft’s did not know and could not reasonably be expected

MT Wagon Mound # 1 (Cont’d) 

…to have known that oil was capable of being set on fire when floating on water. It was not denied that the initial act of discharging bunker oil in the port was negligent. The damage expected from such negligence would probably be pollution of the port and damage to marine life. The question at the PC was whether the ratio of Re Polemis would be upheld or rejected. In their judgment, the PC explicitly rejected Re Polemis. In its stead, the PC instituted the “reasonable foreseeability” test.

Ratio of Wagon Mound #1 

“For it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be “direct”.

MT Wagon Mound #1 (Cont’d) 

It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilized order requires the observance of a minimum standard of behaviour.”

The Wagon Mound 

While the Wagon Mound’s emphasis on the injustice and immorality of holding a dft liable for consequences that could not have been foreseen and hence unpreventable is admirable, its focus is a little narrow. It ignores the loss distribution function of negligence law and gives the short shrift to the ptf. More importantly, the reasonable foreseeability test is no clearer than the directness test of Re Polemis.

Modification of Wagon Mound 

Courts began tinkering with Wagon Mound in the subsequent case of Hughes v. Lord Advocate. The Post Office employed workmen who took a break leaving a manhole covered by a small tent with a paraffin lamp at each corner. One of the 2 boys aged 8 and 10 took one of these lamps into the manhole. This caused a chain of events which was totally unforeseeable. Paraffin escaped from the lamp, vaporized, and the explosive mixture thus created was detonated by the lamp.

Hughes v. Lord Advocate 

The plaintiff suffered serious burns and sued the Post Office. In holding the Post Office liable in negligence, the HOL reasoned that although the sequence of the events was nor foreseeable, the type of injury was. In other words, as long as the TYPE of injury is reasonably foreseeable, the test of remoteness is satisfied.

Hughes and Wagon Mound 

Did Hughes break with Wagon Mound? While Hughes did not clearly abandon Wagon Mound, its reasoning however suggests that Wagon Mound should not be taken too literally. It would seem that Hughes has found favour in Canada. For example, in the Assiniboine case, a 14 year old drove a snowmobile, ran out of control and fractured a gas pipe. The gas escaped, entered a building and exploded. The court held that the accident was generally foreseeable.

Remoteness After Hughes 

It may be said that in the aftermath of Hughes, merely requiring foreseeability of the TYPE of damage, rather than the KIND OF ACCIDENT which produced it, has diminished Wagon Mound and indeed, virtually resurrected Re Polemis as the judicial test for determining remoteness.

Wagon Mound II 

Five years after the accident in Wagon Mound at the Port of Sydney, a strikingly similar accident resulted in Wagon Mound 2. Ptfs in were the owners of other vessels damaged by the burning ship. At the trial court, the judge held that although reasonable persons would regard the ignition of oil on water as a possibility, however, since it was a “remote” possibility, it could not be considered as a reasonably foreseeable occurrence. Hence, he dismissed the action on “remoteness.”

Wagon Mound II 

On appeal to the PC, the Councilors, per Lord Reid revisited the ratio in Wagon Mound II and arrived at the conclusion that although “remote”, the possibility of a fire was a “real” risk, which a reasonable person would not have ignored. In the reasoning of the Council, the risk of fire was a “serious” one and the steps taken to prevent it fell short. Consequently, the dft was held negligent. Undeniably, the ratio is inconsistent with Wagon Mound I as it virtually resurrected Re Polemis.

The Aftermath of W. Mound II 

Judicial inconsistencies on the test for remoteness clearly demonstrates that at the end of the day, the question of remoteness, is indeed an exercise in judicial policymaking. Many questions of remoteness have not been resolved by an automatic invocation of “reasonable foreseeability.” In fairness, courts have often admitted the policy content of the remoteness question.

Policy in “Remoteness” Question 

In Spagnolo’s case: dft negligently failed to provide security at a car park. A car stolen from the park was involved in a collision with ptf’s car. The accident occurred 6 days after the theft. In determining the remoteness question, Zuber J.A.stated that “the term reasonably foreseeable’ contains more policy than fact as courts struggle with the issue of remoteness of damage.” Some judges have admitted using their “instinctive feeling” to resolve the question of remoteness.

Factors Influencing Policy 

Admitted that policy considerations shape judicial engagement with “remoteness”, in the interest of consistency and reasonable degree of predictability, there are factors that influence the role of policy in remoteness questions. These include the foreseeability of the injury, their probability, their seriousness, the nature and degree of the dft’s misconduct, the relative financial strength of the parties, et cetera.

The Talem Qualem Rule 

It has always been the law that the dft takes his victim with all the victim’s qualities (talem qualem). This is colloquially referred to as the “Eggshell”” or the “Thin Skull” rule. In Smith v. Leech Brain, a widow whose husband died of cancer sued the dft. The deceased had suffered a burn on his lip caused by a piece of molten metal, and this injury ultimately led to cancer. The court reaffirmed the rule that a tortfeasor takes his victim as he finds him.

The Talem Qualem Rule 

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Although the deceased’s burn was reasonably foreseeable, the cancerous development was not. But the test is not whether the dft could reasonably have foreseen that a burn would cause cancer and that the victim would die. The test is whether the dft could reasonably have foreseen the type of injury suffered, that is, the burn. Is the thin-skull rule an exception to Wagon Mound 1? Or is it consistent with the foresight principle?

Marconato v. Franklin 

A woman, slightly injured in a car accident, developed symptoms of depression, hostility, anxiety, tension, hysteria and paranoia. Her personality changed from a happy and contented woman to a very unhappy woman. The court held that a wrongdoer must take his victim with all their peculiar susceptibilities and vulnerabilities.

The Thin Skull Rule 

The classic thin skull case often arises where a ptf’s injury is of the kind that was foreseeable, but becomes more serious because of a pre-existing condition. The law is that although the ptf might have had an inherent weakness or susceptibility, s/he is entitled to full compensation for the results caused by the dft’s negligence.

The “Crumbling Skull” Rule 

The talem qualem rule has a variation known as the “crumbling skull” rule. The latter simply recognizes that where an asymptomatic and degenerative condition was inherent in the ptf’s “original position’, the dft need not put the ptf in a position better than his or her original position. The dft is liable for the injuries caused, even if they are extreme, but need not compensate the ptf for any debilitating effects of the degenerative condition which the ptf would have experienced anyway.

Smith v. Maximovitch 

Ptf lost 8 teeth in a collision. Because his remaining teeth were in poor condition, as a result of pyorrhea, they were unsuitable to anchor bridgework and, therefore, all the teeth had to be extracted and dentures put in. The ptf received damages for all the teeth, except that they were evaluated in accordance with their worth at the time of loss. For a full explanation of Crumbling Skull rule see Justice Major in Athey v. Leonati.

Malcolm v. Broadhurst 

A husband and wife were both injured, physically and mentally, in a car accident caused by the dft’s negligence. The husband’s serious injuries led to his intellectual deterioration. In addition, his personality changed. He became bad-tempered and violent. Her husband’s changed behaviour caused additional nervous symptoms in the wife, aggravating a pre-existing nervous condition. The court awarded damages for the aggravated nervous symptoms.

The Law on Thin Skull 

There is merit to the argument that the thin skull rule gives the short shrift to reasonable foreseeability. Neither the class or kind nor the extent of the injury can be reasonably foreseen in the case of a thin skull victim. The uncertainty surrounding the extent of the thin skull rule is demonstrated by the conflicting rationes decidendi in suicide cases.

Novus Actus Interveniens 

An interveneing act is one that arises after the dft’s negligent act and either precipitates or worsens the ptf’s damage or injury. The question that arises is whether the original wrongdoer is to be held for loss contributed to by the external force or whether in the favoured legal terminology, it “snapped the chain of causation.” Negligence law has distinguished between culpable and nonculpable acts of third parties.

Novus Actus Interveniens 

Tort law makes a distinction between “natural or logical” later events that act on a situation already created by the dft and “unnatural or abnormal” later events that act on the situation created by the original wrongdoer.

Non-Culpable Intervention 

On the former, the doctrine of novus actus will not ordinarily clear a dft from further responsibility, if it can be fairly considered as not an ABNORMAL incident of the risks created by him. In other words, if the alleged novus actus is “part of the ordinary course of things” liability will attach. Similarly, a dft will not escape liability by the complications introduced from the operation of natural forces such as rain, ice, or foul weather.

Non Culpable Intervention 

Similarly, normal and reasonable response to the stimulus of the hazard engendered by the dft’s original act of negligence will not afford the dft exoneration. Thus, injuries sustained or worsened as a result of typical human reaction such as fear of impending injury to oneself or the desire to avert harm or to escape an inconvenience, will not excuse the original wrongdoing by the dft. The law considers such reactions to be foreseeable to make the dft answerable for the resulting injury.

Novus Actus Interveniens 

In Squibb’s case,a wag threw a lighted firework into a market whence it was tossed from one stall to another in order to save the wares until it eventually exploded in the ptf’s face. The wag was held liable. As Fleming has submitted, “it makes no difference, that in hindsight, it would have been better to leave well alone: a passenger who jumps from a vehicle out of control may recover for his broken bones, though he might have remained unscathed had remained still.”

Novus Actus Interveniens 

Similarly, injuries or damage arising from reasonable rescue attempts are blamed on the dft. Mistaken judgments made by a rescuer are also blamed on the dft. For example, in Cunningham’s case, a painter who unlawfully lefts a ladder standing on the pathway after his day’s work was held responsible when some passer-by moved out of the way but placed it so insecurely that it fell on the ptf.

Novus Actus Interveniens 

However, if the risk taken by the ptf is excessive, it is a matter of degree whether it should bar his recovery altogether on the theory that the damage is too remote, or to be regarded merely as a contributory negligence so as to reduce the award. Thus, legal responsibility ceases with the occurrence of an event quite outside the range of ordinary experience. Liability does not reach into infinity in time. Thus, an injury sustained after convalescence may not be blamed on the 1st dft.