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. This finding was reached after a wealth of evidence which included that of a distinguished scientist Professor Hunter. however, goes to culpability, not to compensation." It is proper to add that their Lordships have not found it necessary to consider the so-called rule of "strict liability" exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. At some point during this period the Wagon Moundleaked furnace oil into the harbour while some welders were working on a ship. Thus it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable. Thank you for helping build the largest language community on the internet. Save my name, email, and website in this browser for the next time I comment. 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 Supreme Court of New South Wales. 560, except that “kind of damage” has now to be understood in the light of the interpretation in The Wagon Mound (No. There Lord Russell of Killowen said : "In considering whether a person owes to another a duty a breach of which will render him liable to that other in damages for negligence, it is material to consider what the defendant ought to have contemplated as a reasonable man. Their Lordships are constrained to say that this dictum (for such it was) perpetuated an error which has introduced much confusion into the law. JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE 18TH JANUARY 1961. It would not be possible or feasible in this judgment to examine them in anything approaching detail." 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 earliest in point of date was Smith v. London & South Western Railway Co. Law Rep. 6 C.P. 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. 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." The Privy Council dismissed as an error the principle that foreseeability ‘goes to culpability, not to compensation’. It would surely not prejudice his claim if that other claim failed: it cannot assist it if it succeeds. Privy Council Appeal No. Of these, three are generally regarded as having influenced the decision. of want of due care according to the circumstances. 537 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949] 2 Q.B. LORD TUCKER On the face of it, The Wagon Mound (No 1) determines that there should no longer be different tests for the breach of duty, and the extent of the damage which is recoverable. (discussed by Professor Goodhart in his Essays, p. 129), Donoghue v. Stevenson and Bourhill v. Young, or in respect of intervening causes as in Aldham v. United Dairies (London) Ltd. and Woods v. Duncan. 59; (1922) 12 Ll. The Wagon Mound principle. 1) [1961] The Wagon Mound (No. Background facts. In Bourhill v. Young [1943] A.C. 91 at p. 101 the double criterion is more directly denied. Some doubt was expressed in Polemis as to whether the citation of which these learned judges so emphatically approved was correct. The wharf and the "Corrimal" caught fire and considerable damage was done to the wharf and the equipment upon it. It was perhaps this difficulty which led Lord Denning in Roe v. Minister of Health [1954] 2Q.B. This decision is not based on the analysis of causation. It may however be observed that in the proceedings there was some confusion. What is not suggested is that the wrongdoer is liable for the consequences of his wrongdoing whether reasonably foreseeable or not, or that there is one criterion for culpability, another for compensation. Any cookies that may not be particularly necessary for the website to function and is used specifically to collect user personal data via analytics, ads, other embedded contents are termed as non-necessary cookies. 23 of 1960, Jurisdiction: It is doubtful whether In re Polemis and Furness Withy & Co. can survive these decisions. Next, one of many cases may be cited which show how shadowy is the line between so-called culpability and compensation. It is with the greatest respect to that very learned judge and to those who have echoed his words, that their Lordships find themselves bound to state their view that this proposition is fundamentally false. He also made the all important finding, which must be set out in his own words. [12] The Wagon Mound (No 1) Detailed case brief Torts: Negligence. For the remainder of the 30th October and until about 2 p.m. on 1st November work was carried on as usual, the condition and congestion of the oil remaining substantially unaltered. Upon this Mr. Justice Manning said: "Notwithstanding that, if regard is had separately to each individual occurrence in the chain of events that led to this fire, each occurrence was improbable and, in one sense, improbability was heaped upon improbability, I cannot escape from the conclusion that if the ordinary man in the street had been asked, as a matter of common sense, without any detailed analysis of the circumstances, to state the cause of the fire at Mort's Dock, he would unhesitatingly have assigned such cause to spillage of oil by the appellant's employees." This caused oil to leak from the ship into the Sydney Harbour. 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. The outbreak of fire was due, as the learned Judge found, to the fact that there was floating in the oil underneath the wharf a piece of debris on which lay some smouldering cotton waste or rag; which had been set on fire by molten metal falling from the wharf that the cotton waste or rag burst into flames; that the flames from the cotton waste set the floating oil afire either directly or by first setting fire to a wooden pile coated with oil; and that after the floating oil became ignited the flames spread rapidly over the surface of the oil and quickly developed into a conflagration which severely damaged the wharf. 2:30. The Wagon Mound (1) crops up in following areas of law in Clark v. Chambers 3 Q.B.D.327. Their Lordships refer to this aspect of the matter not because they wish to assert that in all respects to-day the measure of damages is in all cases the same in tort and in breach of contract, but because it emphasises how far Polemis was out of the current of contemporary thought. L. Rep. 305 CA Jones v Livox Quarries Ltd In reasserting this principle their Lordships conceive that they do not depart from, but follow and develop, the law of negligence as laid down by Baron Alderson in Blyth v. Birmingham Waterworks Coy (1856) 11 Ex. 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. 14. Donoghue v Stevenson : 5 law cases you should know (1/5) - Duration: 2:25. The fire spread rapidly causing destruction of some boats and the wharf. From the tragic case of Woods v. Duncan [11946] A.C. 401, the facts of which are too complicated to be stated at length, some help may be obtained. Her mast was lying on the wharf and a number of the respondents' employees were working both upon it and upon the vessel itself, using for this purpose electric and oxy-acetylene welding equipment. 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. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) Also known as: Morts Dock & Engineering Co v Overseas Tankship (UK) Ltd Privy Council (Australia) 18 January 1961 Case Analysis ... (No.1) [1923] 1 K.B. Smith v Leech Brain and Co Ltd [1962] 2 QB 405. Year: 1961: Facts: 1. Areas of applicable law: Tort law – Negligence – foreseeability. Synopsis of … But this observation followed a passage in which His Lordship, directing his mind to the problem of causation, had asked what were "natural, probable and necessary consequences," and had expressed the view that "direct cause" was the best expression. It is true that in that case the Lord Justice was dealing with damages for breach of contract. 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. This accords with the general view thus stated by Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562 at p. 580 "The liability for negligence, whether you style it such or treat it as in other systems as a species of 'culpa,' is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay." Overseas Tankship chartered a freighter ship named the Wagon Mound which was taking on bunker oil at Mort's Dock in Sydney. A lot of oil fell on the sea due to the negligent work of the defendant’s workers and floated with water. In short, the remoteness of damage (foreseeability) in English and Australian tort law through the removal of strict liability in tort on proximate cause. 429 at p. 441 "There can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by shock." This cri de coeur would in any case he irresistible but in the years that have passed since its decision Polemis has been so much discussed and qualified that it cannot claim, as counsel for the respondents urged fur it, the status of a decision of such long standing that it should not be reviewed. Vast numbers of learned and acute judgments and dis¬quisitions have been delivered and written upon the subject. University. Nevertheless it does establish some damage which maybe insignificant in comparison with the magnitude of the damage by fire, but which nevertheless is damage which beyond question was a direct result of the escape of the oil" This upon this footing that their Lordships will consider the question whether the appellants are liable for the fire damage. 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. Legal issues. Was it a "direct" consequence? Animated Video created using Animaker - https://www.animaker.com For our GPML assignment This category only includes cookies that ensures basic functionalities and security features of the website. 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. We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young. It is not the act but the consequences on which tortious liability is founded. The Wagon Mound (No 1): lt;p|> | |For the successor case on the reasonable man test for breach, see |Wagon Mound (No. 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." It has never been subject to the express scrutiny of either the House of Lords or the Privy Council, though there have been comments upon it in those Supreme Tribunals. The sparks from the welders caused the leaked oil to ignite destroying all three ships. Aust. Similar observations were made by other members of the court. 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. The Wagon Mound No.2 [1967] 1 AC 617 Privy Council The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour due to the failure to close a valve. 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." Wagon Mound was moored 600 feet from the Plaintiff’s wharf when, due the Defendant’s negligence, she discharged furnace oil into the bay causing minor injury to the Plaintiff’s property. If the line of relevant authority had stopped with Polemis, their Lordships might, whatever their own views as to its unreason, have felt some hesitation about overruling it. Here was the opportunity to deny the rule or to place it secure upon its pedestal. What then did Polemis decide? said of the same passage," with that view of the law no one would venture to quarrel". It was upon this footing that the Court of Appeal held that the charterers were responsible for all the consequences of their negligent act even though those consequences could not reasonably have been anticipated. Thus Lord Justice Asquith himself, who in Thurogood v. Van den Berghs & Jurgens [1951] 2 K.B. This. Thank you. The words "tort" and "tortious" have perhaps a somewhat sinister sound but, particularly where the tort is not deliberate but is an act of negligence, it does not seem that there is any more moral obliquity in it than in a perhaps deliberate breach of contract, or that the negligent actor should suffer a severer penalty. But it is far otherwise. This is the old version of the H2O platform and is now read-only. Company registration No: 12373336. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. 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. The Polemis rule by substituting "direct" for "reasonably foreseeable" consequence leads to a conclusion equally illogical and unjust. 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. The results of this enquiry coupled with his own belief as to the inflammability of furnace oil in the open led him to think that the respondents could safely carry on their operations. In Minister of Pensions v. Chennell [1947] 1 K.B. 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. This appears to be in flat contradiction to the rule in Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens. 23 of 1960. On the face of it, The Wagon Mound (No 1) determines that there should no longer be different tests for the breach of duty, and the extent of the damage which is recoverable. Their Lordships, as they have said, assume that the court purported to propound the law in regard to tort. pronouncekiwi - … JustCite search results for Wagon Mound Case (No 1) This field is only compatible with UK primary legislation from 2001 - present. 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. The crew had carelessly allowed furnace oil … Fortunately, the attempt is not necessary. That might be relevant for a tribunal for which the decision was a binding authority: for their Lordships it is not. Overseas had a ship called the Wagon Mound, which negligently spilled oil over the water. This website uses cookies to improve your experience while you navigate through the website. Each of them rests on its own bottom, and will fail if it can be established that the damage could not reasonably be foreseen. London (reported in [1914] Prob. Held: Re Polemis can no longer be regarded as good law. Listen to the audio pronunciation of Wagon Mound (No 1) on pronouncekiwi. We use cookies on our website to give you the most relevant experience by remembering your preferences and repeat visits. There is thus introduced the conception that the negligent actor is not responsible for consequences which are not "direct," whatever that may mean. Their Lordships would with respect observe that such a survival rests upon an obscure and precarious condition. 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. Lord Sumner, whose speech their Lordships, like others before them, have not found all respects easy to follow, said : "What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligence, that is. 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." In this case, the Privy Council distinguished between foreseeability and unforeseeable types of damage: ‘the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen’. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that followed it that the Full Court was constrained to decide the present case in favour of the respondents. It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. Spread led to MD Limited’s wharf, where welding was in progress. The respondents were admittedly at fault; therefore, said the appellants, invoking the rule in Polemis, they were responsible for all damage whether reasonably foreseeable or not. 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. "The lawyer," said Sir Frederick Pollock, "cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause." Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. This means you can view content but cannot create content. Be it observed that to him it was one and the same thing whether the unforeseeability of damage was relevant to liability or compensation. 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." For the same fallacy is at the root of the proposition. OpenLearn from The Open University 47,534 views. 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. Morts owned and operated a dock in Sydney Harbour. NTSH FZ 984 views. 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.