The … Thus foreseeability becomes the effective test. The validity of a rule or principle can sometimes be tested by observing it in operation. In consequence of the extreme severity of the weather the grating was obstructed by ice and the water flowed over a portion of the causeway and froze. Legal issues. Let the rule in Polemis be tested in this way. VISCOUNT SIMONDS Their Lordships would with respect observe that such a survival rests upon an obscure and precarious condition. When molten metal dropped by Mort’s workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly damaged. There the statement in Smith's case was followed, Sir Samuel Evans citing Blackburn J.: "What the defendants might reasonably anticipate is only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence." By clicking “Accept”, you consent to the use of ALL the cookies. This category only includes cookies that ensures basic functionalities and security features of the website. When the respondents' works manager became aware of the condition of things on the vicinity of the wharf he instructed their workmen that no welding or burning was to be carried on until further orders. 1" Brief: Case Citation: [1961] A.C. 388. If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened - the damage in suit? Of these, three are generally regarded as having influenced the decision. It is relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e., to the question of culpability not to compensation." Nor, clearly, had it at an earlier date occurred to Lord Wensleydale in Lynch v. Knight 9 H.L.C. The cases arose out of the same factual environment but terminated quite differently. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. The case arose out of a charter partly and went to arbitration under a term of it and the first contention of the charterers was that they were protected from liability by the exception of fire in the charter party. In Glasgow Corporation v. Muir [1943] A.C. 448 at p. 454 Lord Thankerton said that it had long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care judged by the standard of the ordinary reasonable man, while Lord Macmillan said that "it is still left to the judge to decide what in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen." The judgment of Bovill C.J. 2:30. Spread led to MD Limited’s wharf, where welding was in progress. 59; (1922) 12 Ll. But it is far otherwise. Sign in to disable ALL ads. 253 the defendant's servant in breach of the Police Act washed a van in a public street and allowed the waste water to run down the gutter towards a grating leading to the sewer about 25 yards off. If it does, it is only in respect of neglect of duty to the plaintiff which is the immediate or precipitating cause of damage of an unforeseeable kind." affirmed (stating it to be his own view only and not that of the court) that he entertained "considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise and in respect of mischief which could by no possibility have been foreseen and which no reasonable person would have anticipated." The Wagon Mound (No.1) [1961] Uncategorized Legal Case Notes August 26, 2018 May 28, 2019. Here there is no suggestion of one criterion for determining culpability (or liability) and another for determining compensation. Applying the rule in Polemis and holding therefore that the unforeseeability of the damage by fire afforded no defence, they went on to consider the remaining question. Be it observed that to him it was one and the same thing whether the unforeseeability of damage was relevant to liability or compensation. It would, indeed, appear to their Lordships that, unless the learned Chief Justice was making a distinction between "one who commits a wrongful act" and one who commits an act of negligence, the case is not reconcilable with Polemis. FROM THE SUPREME COURT OF NEW SOUTH WALES Course. The Wagon Mound principle. in Clark v. Chambers 3 Q.B.D.327. On the other hand, having regard to the course which the case has taken, they do not think that the respondents should be finally shut out from the opportunity of advancing this plea, if they think fit. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. Copyright 2019-2020 - SimpleStudying is a trading name of SimpleStudying Ltd, a company registered in England and Wales. In doing so Mr. Justice Manning after a full examination of that case said "To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to apply the decision in In re Polemis with any degree of confidence to a particular set of facts would be a grave understatement. For the same fallacy is at the root of the proposition. [1946] A.C. at p 442. Fortunately, the attempt is not necessary. Overseas had a ship called the Wagon Mound, which negligently spilled oil over the water. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. After several hours the oil drifted and was around two ships owned by the Miller Steamship Co that were being repaired nearby. In the year 1913 in the case of H.M.S. The acceptance of the rule in Polemis as applicable to all cases of tort directly would conflict with the view theretofore generally held. The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question arises to which the wrong answer was given in Polemis. In their Lordships' opinion it should no longer be regarded as good law. It is doubtful whether In re Polemis and Furness Withy & Co. can survive these decisions. View Homework Help - Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. Detailed case brief Torts: Negligence. Thank you for helping build the largest language community on the internet. University. pronouncekiwi - … Lord Dunedin (another of the majority) decided the case on the ground that there was there no evidence which entitled the jury to give the affirmative answer that they did to the question as put to them that the actions of libel and damages recovered were the "natural and probable consequences" of the proved negligence of the defendant. We also use third-party cookies that help us analyze and understand how you use this website. It was perhaps this difficulty which led Lord Denning in Roe v. Minister of Health [1954] 2Q.B. It is not the act but the consequences on which tortious liability is founded. OpenLearn from The Open University 47,534 views. [Delivered by VISCOUNT SIMONDS]. The" Wagon Mound" unberthed and set sail very shortly after. This website uses cookies to improve your experience while you navigate through the website. Necessary cookies are absolutely essential for the website to function properly. 560, except that “kind of damage” has now to be understood in the light of the interpretation in The Wagon Mound (No. Cf. Mort’s (P) wharf was damaged by fire due to negligence. In the case of the "Liesbosch" [1933] A.C. 448 the appellants whose vessel had been fouled by the respondents, claimed damages under various heads. Held: Re Polemis can no longer be regarded as good law. 784. It is not strange that Sir Frederick Pollock said that Blackburn and Willes J.J. would have been shocked beyond measure by the decision that the charterers were liable in tort: see Pollock on Torts, 15th edn., p. 29. The Privy Council dismissed as an error the principle that foreseeability ‘goes to culpability, not to compensation’. Before going forward to the cases which followed Polemis,their Lordships think it desirable to look back to older authorities which appear to them to deserve consideration. The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. If you would like access to the new version of the H2O platform and have not already been contacted by a member of our team, please contact us at h2o@cyber.law.harvard.edu. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air. These cookies will be stored in your browser only with your consent. As a result Morts continued to work, taking caution not to ignite the oil. Lord Wrenbury (the third of the majority) summed up his view of the case by saying : "I am quite unable to follow the proposition that the damages given in the libel actions are in any way damages resulting from anything which Stephens did in breach of duty." LORD REID There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts that, if the defendant is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not. It was repeated by Lord Sumner in the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens [1920] A.C. 956 at p. 983. of want of due care according to the circumstances. But it is clear from the pleadings and other documents, copies of which were supplied from the Record Office, that alternative claims for breach of contract and negligence were advanced and it is clear too that before Mr. Justice Sankey and the Court of Appeal the case proceeded as one in which, independently of contractual obligations, the claim was for damages for negligence. Was it a "direct" consequence? Company registration No: 12373336. Vast numbers of learned and acute judgments and dis¬quisitions have been delivered and written upon the subject. The answer appears to be that it was reached upon a consideration of certain authorities, comparatively few in number, that were cited to the court. Who knows or can be assumed to know all the processes of nature? The crew members of the Overseas Tankship (UK) Ltd were working on a ship, when they failed to turn off one of the furnace taps. This new word may well have been thought as good a word as another for revealing or disguising the fact that he sought loyally to enforce an unworkable rule. The respondents at the relevant time carried on the business of ship-building, ship-repairing and general engineering at Morts Hay, Balmain, in the Port of Sydney, They owned and used for their business the Sheerlegs Wharf, a timber wharf about 400 feet in length and 40 feet wide, where there was a quantity of tools and equipment. This becomes more clear if it is supposed that similar unforeseeable damage is suffered by A and C but other foreseeable damage, for which B is liable, by A only. In fact, the judgment shows a strong distaste for causal language, and in principle is ought to leave ‘cause in fact’ as the only remaining question of causation in tort law. Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. The impression that may well be left on the reader of the scores of cases in which liability for negligence has been discussed is that the courts were feeling their way to a coherent body of doctrine and were at times in grave danger of being led astray by scholastic theories of causation and their ugly and barely intelligible jargon. JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE 18TH JANUARY 1961. JustCite search results for Wagon Mound Case (No 1) This field is only compatible with UK primary legislation from 2001 - present. Viscount Simonds: it is too harsh a rule to hold a man responsible that for a consequence that he did not and ould not reasonably have foreseen. At the same time the appellants were chatterers by demise of the 5,5, "Wagon Mound ", an oil-burning vessel which was moored at the Caltex Wharf on the northern shore of the harbour at a distance of about 600 feet from the Sheerlegs Wharf. Morts owned and operated a dock in Sydney Harbour. Areas of applicable law: Tort law – Negligence – foreseeability. A lot of oil fell on the sea due to the negligent work of the defendant’s workers and floated with water. 1) [1961] The Wagon Mound (No. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is "direct." Of what relevance is it to that claim that he has another claim arising out of the same careless act? But with great respect to the Full Court this is surely irrelevant, or, if it is relevant, only serves to show that the Polemis rule works in a very strange way. The engineers on the Wagon Mound were careless and a large quantity of oil overflowed onto the surface of the water. 2) [1967] Thoburn v Sunderland City Council [2002] Thomas v Clydesdale Bank [2010] Thomas v National Union of Miners [1986] Thomas v Sawkins [1935] Thomas v Sorrell (1673) Thomas v Thomas [1842] Thompson v Foy [2010] Thompson v Gibson [1841] Thompson v Park [1944] Thorner v Major [2009] Nothing that they have said is intended to reflect on that rule. co Facts of the case Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. A system of law which would hold B liable to A but not to C for the similar damage suffered by each of them could not easily be defended. Thank you. It is irrelevant to the question whether B is liable for unforeseeable damage that he is liable for foreseeable damage, as irrelevant as would the fact that he had trespassed on Whiteacre be to the question whether he has trespassed on Blackacre. The sparks from the welders caused the leaked oil to ignite destroying all three ships. Thank you. This means you can view content but cannot create content. But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done; cf. Miller owned two ships that were moored nearby. 577, nor to Cockburn C.J. The" Wagon Mound" unberthed and set sail very shortly after. XII. Their Lordships substitute the word "fire" for "shock" and endorse this statement of the law. Animated Video created using Animaker - https://www.animaker.com For our GPML assignment It is mandatory to procure user consent prior to running these cookies on your website. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. Get Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. [Wagon Mound No. The negligent act was nothing more than the carelessness of stevedores (for whom the charterers were assumed to be responsible) in allowing a sling or rope by which it was hoisted to come into contact with certain boards, causing one of them to fall into the hold. It would not be possible or feasible in this judgment to examine them in anything approaching detail." The relevant facts can be, comparatively shortly slated inasmuch as not one of the findings of fact in the exhaustive judgment of the learned trial Judge has been challenged. The Wagon Mound (No 2) - Detailed case brief Torts: Negligence. 2) [1967] 1 AC 617. The Wagon Mound (No. It is not probable that many cases will for that reason have a different result, though it is hoped that the law will be thereby simplified, and that in some cases, at least, palpable injustice will be avoided. At an early stage in this judgment their Lordships intimated that they would deal with the proposition which can best be stated by reference to the well-known dictum of Lord Sumner: This however goes to culpability not to compensation." That consideration must begin with an expression of indebtedness to Mr. Justice Manning for his penetrating analysis of the problems that today beset the question of liability for negligence. Privy Council Appeal No. In October and November, 1951, a vessel known as the "Corrimal" was moored alongside the wharf and was being refitted by the respondents. But opting out of some of these cookies may have an effect on your browsing experience. Their Lordships are constrained to say that this dictum (for such it was) perpetuated an error which has introduced much confusion into the law. Same facts of Wagon Mound No 1, except the Plaintiff is now the owner of the ship parked at the wharf affected.The ship suffered damage as a result of the fire. You can access the new platform at https://opencasebook.org. This caused oil to leak from the ship into the Sydney Harbour. The Wagon Mound No. 2)|... World Heritage Encyclopedia, the aggregation of the largest online encyclopedias available, and the most definitive collection ever assembled. The appellants made no attempt to disperse the oil. however, goes to culpability, not to compensation." Similar observations were made by other members of the court. The respondents claim, in the alternative, that the appellants are liable in nuisance if not in negligence. 23 of 1960. There Viscount Simon analysed the conditions of establishing liability for negligence and stated them to be (1) that the defendant failed to exercise due care (2) that he owed the injured man the duty to exercise due care, and (3) that his failure to do so was the cause of the injury in the proper sense of the term. The crew had carelessly allowed furnace oil … Yet Hadley v. Baxendale was not cited in argument nor referred to in the judgments in Polemis. L. Rep. 305 CA Jones v Livox Quarries Ltd And, if that damage is unforeseeable so as to displace liability at large, how can the liability be restored so as to make compensation payable? the wagon mound. In that case it was not dealt with except in a citation from Weld-Blundell v. Stephens. For his liability is in respect of that damage and no other. Overseas Tankship were charterers of a freighter ship named the Wagon Mound which was moored at a dock. In that case the majority of their Lordships, of whom Lord Sumner was one, held, affirming a decision of the Court of Appeal, that the plaintiff's liability for damages in certain libel actions did not result from an admitted breach by the defendant of the duty that he admittedly owed to him. Perhaps he would, and probably he would have added: "I never should have thought it possible." Donoghue v Stevenson : 5 law cases you should know (1/5) - Duration: 2:25. Save my name, email, and website in this browser for the next time I comment. It receives strong confirmation from the fact that at the trial the respondents strenuously maintained that the appellants had discharged petrol into the bay on no other ground than that, as the spillage was set alight, it could not be furnace oil. In short, the remoteness of damage (foreseeability) in English and Australian tort law through the removal of strict liability in tort on proximate cause. University. Before turning to the cases that succeeded it, it is right to glance at yet another aspect of the decision in Polemis. Citation: Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The "Wagon Mound" (No 1)) [1961] AC 388 This information can be found in the Textbook: Sappideen, Vines, Grant & Watson, Torts: Commentary and Materials (Lawbook Co, 10th ed, 2009), pp. at p. 258 is particularly valuable and interesting. This appeal is brought from an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal by the appellants, Overseas Tankship (U.K.) Ltd" from a judgment of Mr. Justice Kinsella exercising the Admiralty Jurisdiction of that Court in an action in which the appellants were defendants and the respondents Morts Dock & Engineering Co, Ltd. were plaintiffs. Upon this issue their Lordships are of opinion that it would not be proper for them to come to any conclusion upon the material before them and without the benefit of the considered view of the Supreme Court. In that case it was said that "when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he could have foreseen them or not"; see per Baron Channell at page 21. '' `` proximate cause. directly denied evidence of this case remains to be asked,,... Mound which was docked across the harbour unloading oil option to opt-out of these.! Acceptance of the reasonable man which alone can determine responsibility law Morts owned operated... The wrong answer was given in Polemis and Furness Withy & Co. Ltd. ( 1911 1... Van den Berghs & Jurgens [ 1951 ] 2 Q.B tribunal for which the wrong answer was given in as. 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