REMOTENESS PRINCIPLES AND UNJUST RESULTS IN
COMMON LAW AND IN EAST AFRICA*
S.P. Singh**
IN THE field of law of torts, the principles of remoteness of damage are
most complicated and have always puzzled the courts and commentators.
The purpose of this paper is to trace out, the clear principles governing the
law relating to remoteness of damage and to suggest reform in this area.
To begin with, justice demands that a person should be held responsible for all the consequences of his negligent act. But then that justice
would, in the ultimate analysis, unreasonably hamper human activities.
Accordingly, rules of law arise so that a person should not be held responsible ad infinitum for all the consequences of his wrongful conduct. Bacon
in 1630 rendered a maxim in jure non remota causa sed proxima spectatur
for limiting the liability of the negligent actor.1 Although this maxim2
has often been cited, it docs not tell us what is 'remote'. What is
'remote' is, therefore, to be determined on the basis of the principles laid
down by the courts. This inevitably requires us to probe deeply into
the English decisions since law of torts in East Africa is based on the
English common law of torts.3
* The author is grateful to Abraham Kiapi, Dean, Faculty of Law, Makerere
University; for providing all facilities in writing this article.
** LL. M., (Cornell, U.S.A.), P.G.D., Criminology (Luck.), Lecturer in Law, Delhi
University, formerly, Director of Studies, Institute of Company Secretaries of India;
and Head of the Department of Law and Jurisprudence, Faculty of Law, Mdkerere
University, Kampala, Uganda.
1. See Maxims of the Law, reg. 1 (1630); See also James A. McLaughlin, Proximate
Cause, 39 Harv. L. Rev. 149 (1925-26).
2. By this maxim he meant, "it were infinite for the law to consider the causes of
causes, and their impulsions one of another : therefore it contenteth itself with the immediate cause, and judgeth of acts by that without looking to any further degree." Ibid.
3. See, e.g., art. 11 of the East African Order in Council, 1897; s. 15 (2) of the
Uganda Order in Council, 1902; s. 8 (1) of the Judicature Act, Laws of Uganda No. 11
of 1967. Law of tort in East Africa today comprises law of both alien and of customary origin. Custom is formally guaranteed in the statute bocks. Although
customary h w has retained its power in the fields of family law, succession and, to a
limited extent, in criminal law, it has not exerted any real influence on the development of tort law Thus, Jaw of lort in the East African countries is based on
the English common law of torts in so far as it is suitable to local circumstances and
not contrary to any written law. The same situation exists in India. See S.P. Singh,
The Meaning and Definition of Tort, (1972) II Andhra Weekly Reporter 44. However, in East Africa, for socio-economic and political reasons it is clear that the customary
tort law will remain limited to such areas as elopement, adultery, seduction and the
assessment of damages for personal injuries and wrongful death. See E. Veitth, East
African Cases on the Law of Tort, No. 31 (1972).
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Until 1850 in England the principles of remoteness of damage laid
down by the courts were not harmonious and the courts either took refuge
in scraps of scholastic logic about causa causans and causa causata* or
indulged in the mistiest generalities, such as, "he that does the first wrong
shall answer for consequential damages"5 or "the damages must be the legal
and natural consequences"6 of the wrongful act.
Since 1850, however two competing views of the test of remoteness
of damage have appeared in the law. According to the first, which was
propounded by Pollock, consequences are too remote if a reasonable
man would not have foreseen them7; according to the second, if a reasonble
man would have foreseen any damage to the plaintiff as likely to result
from his act, then he is liable for all the direct consequences of it suffered
by the plaintiff, whether a reasonable man would have foreseen them or not.8
In 1921, in an important case of Re Polemis? the Court of Appeal
apparently settled the English law in favour of the second rule. Scrutton,
L.J., in that case defined 'direct consequences' by stating that:
To determine whether an act is negligent, it is relevant to determine
whether any reasonable person would foresee that the act would
cause damage; if he would not, the act is not negligent. But if the
act would or might probably cause damage, the fact that the damage
it in fact causes is not the exact kind of damage one would expect
is immaterial, so long as the damage is in fact caused sufficiently
directly by the negligent act, and not by the operation of independent causes having no connection with the negligent act, except
that they could not avoid its results. Once the act is negligent, the
fact that its exact operation was not foreseen is immaterial. This
is the distinction laid down by the majority of the Exchequer
Earl of Shrewsbury's case, 9 Co. Rep. 46 b (1610).
5. Vicars v. Wilcocks, 8 East. 1 (1806).
6. Wards. Weeks, 1 Bing 211 (1830).
7. Rigby v. Hewitt, 5 Ex. 240 (1850) ; Greenland v. Chaplin, 5 Ex 240-243 (1850).
8. Smith v. London and South Western Rail Co., L.R. 6 C.P. 14 (1870); Weir, Case
Book on Tort 163 (3 rd. ed.) See also Weld-Blundelt v. Stephens, [1920] A.C. 956.
9. In Re Polemis and Furness, Withy & Co. Ltd., [1921] All E.R. 40. The facts
briefly were that a ship was hired under a charter which exempted both the shipowner
and the charterers from liability for fire. Among other cargo the charterers loaded a
quantity of petrol in tins which leaked during the voyage and thus there was a good
deal of vapour in the hold. At Casblanca port, one of the charterers'servant, while
unloading the cargo, carelessly dropped a plank into the hold which caused the fire and
the ship was destroyed. The court found that it was careless to drop the plank, that some
damage to the ship was foreseeable, but that the causing of the fire was not. The Court
of Appeal held the defendants liable for all the direct consequences of the negligence,
even though they could not have reasonably anticipated them.
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Chamber in Smith v. London and South Western Rail Co....and
approved recently by Lord Sumner in Weld-Blundell v. Stephens....10
Thus, in Re Polemis, the judges followed the principles laid down in
Smith v. London andSouth Western Rail Co.,and stated that once an act
has been found to be negligent in the sense that injury to some one is foreseeable, then any persons directly injured by it can recover even though it is
unforeseeable that he might suffer damage in any way. This, however,
would conflict with the basic principle that before liability in negligence
can exist there must be a breach of a duty owed to the plaintiff. According
to Winfield, the question of defendant's initial liability i.e., has he
committed a tort against the plaintiff, must be distinguished from the
secondary question of remoteness of damage i.e., for what consequences of
the defendant's conduct the plaintiff is entitled to recover compensation.
"The case is no authority for liability to the 'unforeseeable plaintiff".11
Re Polemis never attracted the detailed consideration of the House of
Lords. In Dredger Liesbosch v. Steamship Edison,12 the House of Lords,
without having detailed consideration, distinguished the Re Polemis and
restricted its operation. In the Liesbosch case, the appellants, whose
vessel had been fouled by the respondents, claimed damages under various
heads. The respondents admitted their fault for sinking the plaintiff's
dredger, but the question was how much they had to pay. It was argued on
behalf of the appellants, invoking the rule of Re Polemis, that the respondents should be responsible for all the direct consequences whether
reasonably foreseeable or not. The House of Lords held that they could
recover as damages the market price of a dredger and compensation for
loss in carrying out the contract between the date of the sinking and the date
on which the substituted dredger could reasonably have been available
for work; but the claim for extra expenses due to poverty was rejected.
Lord Wright (with whose speech the rest of the Lords concurred), distinguished Re Polemis on the ground that in that case the injuries suffered
were the "immediate physical consequences of the negligent act", and
added :
Nor is the appellants' financial disability to be compared with that
physical delicacy or weakness which may aggravate the damage in
the case of personal injuries, or with the possibility that the injured
man in such a case may be either a poor labourer or a highly paid
10. Id. at 47; see also Weir, supra note 8 at 163. The same principles have been
followed in East Africa. See, for example, Ladha v. Durheim, 2 E A.C A. 9(1835)
Gulam v. Yuwf, 13 E.A.C.A. 25 (1946); K.C.M. Thysen v. W.E. Ltd., (1966) E.A. 288;
O.T. Co. {RoadServices) Ltd. v. A.P. Agency, (1962) Uganda High Court 191.
' 11. Winfield, On Tort III (1965)
12. [1933] A.C. 449.
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professional man. The former class of circumstances goes to the
extent of actual physical damage and the latter consideration goes to
interference with profit-earning capacity; whereas the appellants
want of means was, as already stated, extrinsic.13
Certain points emerge from the principles laid down in the Liesbosch
case. Firstly, it created a distinction between physical disability and plaintiff's impecuniosity and, secondly, it restricted the Re Polemis rule to only
"immediate physical consequences". Tt is respectfully submitted that
both the points are not intellectually satisfactory. There is no logical
reason why the law regards plaintiff's ' 'financial disability" (i.e., impecuniosity) as extrinsic but takes into account "his physical disability". To put
it in other words, if plaintiff has suffered more than expected injuries
because of "physical disability" then the defendant would also be liable
for unexpected injuries; whereas if the plaintiff suffered more than
expected loss because of financial disablility, then the defendant would not
be liable for unexpected loss. Tt is illogical to hold in one way in a
case and the other way in a similar case. It has been said that the
rule is one of policy,14 but it is submitted that it can be challenged in the
House of Lords since there are contract cases which take account of
impecuniosity15 and there is authority that even in cases of tort plaintiff's
impecuniosity may excuse his failure to mitigate the loss.16 In the absence
of any logical reasoning, it is, therefore, submitted that both should be
treated at par. As to the second point, the Law Lords preserved
the rule of Re Polemis that if some damage is foreseeable, then the wrongdoer will be liable for all the direct consequences even if unforeseeable
provided they are "immediate physical consequences". It thus appears
that the Law Lords created a distinction between "immediate physical
consequences" and "immediate other consequences". The former is taken
into account whereas the latter is not. It is not understandable, why a
distinction should be drawn between the two. Moreover, it is really
difficult, if not impossible, to draw a line between "immediate physical
consequences" and "immediate other consequences".
It was this difficulty which was faced by Denning, L.J., in Roe v.
Minister of Health17 where two plaintiffs entered a hospital for minor
surgery and emerged permanently paralysed from waist down because
of contaminated ampoules of the anaesthetic nupercaine, which was
13. Id. at 461.
14. See Lord Wright, Legal Essays and Addresses 113; see also Treital, Law of
Contract 107 (3rd ed., 1970).
15. Muhammad v. AH, [1947] A.C. 414.
16. Chppens Oil Company v. Edinburgh and District Water Trustees, [1907J A.C.
291 ; Robbins v. Meek, (1921) R.T.R. 345.
17. (1954) 2 Q.B. 66,
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injected spinally. It was found as a matter of fact that the only consequences which could reasonably be anticipated was the loss of quantity of
nupercaine, but not the paralysis of the patients. It was argued on behalf
of the plaintiffs that the rule of Re Polemis should be applied in the present
case. Denning, L J., held that :
[B]y reason of the decision of this court in Re Polemis...the hospital
authorities are liable for all the consequences of the initial carelessness of the nurse, even though the consequences could not reasonably have been foreseen. But the decision in Re Polemis is of very
limited application. The reason is because there are two preliminary questions to be answered before it can come to play....It is only
when those two preliminary questions—duty and causation—are
answered in favour of the plaintiff, that the third question,
remoteness of damage, comes into play.
Even then your ability to foresee the consequences may be vital. It
is decisive where there is intervening conduct by other persons. It
is only disregarded when the negligence is the immediate and precipitating cause of the damage, as in Re Polemis and Thurogood v.
Van den Berghs and Jurgens Ltd.u
Finding it difficult to apply the rule of Re Polemis as stated by him,
Denning L.J., adopted a different approach by stating that:
In all these cases you will find that the three questions, duty,
causation, and remoteness, run continually into one another. It
seems to me that they are simply three different ways of looking
at one and the same problem. Starting with the preposition that
a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by
asking the one question: Is the consequences fairly to be regarded
as within the risk created by the negligence? If so the negligent
person is liable for it: but otherwise n o t . . . .
That is the way, in which Singleton L.J. and Hodson LJ.
approached a difficult problem in Jones v. Livox Quarries Ltd...
and I should like to approach this problem in the same way.19
18. See Weir, supra note 8 at 9919. Id. at 99- 00. He then stated :
Asking myself, therefore, what was the risk involved in careless handling
of the ampoules, I answer by saying that there was such a probability of
intervening examination as to limit the risk. The only consequence which
could reasonably be anticipated was the loss of a quantity of nupercaine,
but not the paralysis of a patient. The hospital authorities are therefore
not liable for it. {Ibid).
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It may be noted that how beautifully the restriction of "immediate
physical consequences" imposed on Re Polemis rule by the Law Lords in
Liesbosch case was avoided by Denning, L.J., by stating that foreseeability
is only disregarded when the negligence is the "immediate or precipitating
cause" of the damage. Although he avoided the distinction between immediate "physical consequences" and "other consequences" resulting from the
restriction imposed by Law Lords in the Liesbosch case, yet he could not apply
the rule as stated by him and, therefore, had to adopt a different approach
of'risk' to enforce an unworkable rule. Even if we accept the rule of Re
Polemis, as slated by him, It is unworkable in the difficult problems, as then
was before the court. It would be difficult to draw a line between
'immediate' and 'not immediate' or 'precipitating' and 'not precipitating'
cause of the damage. Accordingly, this principle along with the principle
laid down in Re Polemis subject to restriction imposed by the Law Lords
in the Liesbosch case came into severe criticism in the hands of Lord
Simonds of the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts
Dock Ltd.®* (known as the Wagon Mound (No. I, case). The facts briefly
were that defendant's servants spilt oil on to the water in Sydney Harbour
which ultimately caused the fire and the plaintiff's wharf was damaged.
It was found as a matter of fact that some foreseeable damage was caused
to the plaintiffs wharf from the spillage of the oil in that the oil had
got on to the slipways and interfered with their use but it was unforeseeable that fuel oil spread on water would catch fire. The full court of
the Supreme Court of New South Wales, following Re Polemis, held that
defendants were liable, but the Privy Council reversed the decision
and held that Re Polemis should no longer be regarded as good law. It
is the foresight of the reasonable man which alone can determine responsibility. Viscount Simonds said:
[l]he authority of Polemis has been severely shaken though lipservice has from time to time been paid to i t . . . . [I]t 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." 21
He then added that the rule of Re Polemis read alongwith the restriction of the Liesbosch case is even unworkable and pointed out the difficulty
faced by Denning, L.J.. in Roe's case in enforcing it. He stated:
20. [1961] A.C. 388. See Weir, supra note 8 at 132.
21. See Weir, ibid.
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Let the rule in Polemis be tested in this way. In the case of the
Liesbosch the appellants, whose vessel had been fouled by the
respondents, claimed damages under various heads. 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. Here was the opportunity
to deny the rule or to place it secure upon its pedestal. But the
House of Lords took neither course; on the contrary, it distinguished Polemis on the ground that in that case the injuries suffered
were the "immediate physical consequences" of the negligent
act. It is not easy to understand why a distinction should be drawn
between "immediate physical" and other consequences, nor where
the line is to be drawn. It was perhaps this difficulty which led
Denning L J. in Roe v. Minister of Health to say that foreseeability
is only disregarded when the negligence is the immediate or
precipitating cause of the 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.22
He stated further that "the Polemis rule by substituting 'direct' for
Reasonably foreseeable' consequence leads to a conclusion equally illogical
and unjust... ,"23 He held that it is the foresight of the reasonable man
which alone can determine responsibility.
The essence of the decision is that in negligence cases reasonable
foresight is the criterion not only for the existence of a duty of care but
also for remoteness of damage,24 and the Privy Council clearly attached
importance to the supposed illogicality of using different tests at different
stages25 of the enquiry in any given case.26
It should be noted that the decision of the Privy Council in Wagon
Mound (No. 1) is not formally binding on the English and East
22. Supra note 20 at 423-24.
23. Id. at 424.
24. In Wagon Mound(No. 2) : Overseas Tankship v. Miller Steamship, [1967] A.C,
617, the Privy Council held 'foreseeability* as the test for remoteness of damage in cases
of nuisance also.
25. For example, Denning, L.J., in Roe's case, supra note 17, adopted a different
test of risk.
26. Viscount Simonds said :
[T]f some limitation must be imposed upon the consequences for which
the negligent actor is to be held responsible—and all agreed that some
limitation there must be—why should that test (reasonable foreseeability)
be rejected which, since he is judged by what the reasonable man ought
to foresee, corresponds with the common conscience of mankind, and a
test (the "direct" consequence) be substituted which leads to nowhere but
the never ending and insoluable problems of causation, {Supra note 20
at 423.)
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African courts; whereas the decision of the House of Lords or English
Court of Appeal is. Nevertheless the English and East African judges
seem to have veered away from the doctrine of precedent and to have
accepted the Privy Council's decision as law even though in no case so
far it has been strictly necessary for them to choose between the two
decisions27—the Re Polemis and the Wagon Mound (No. I). The two
important decisions—East African and English—just after the decision of
Wagon Mound (No. I) may be mentioned which can be regarded as the
turning point in the development of remoteness principles in their respective lands.
In the East African case of Overseas Touring Co. (Road Services) Ltd.
v. African Produce Agency (1949) Ltd.2S the plaintiff entered into
a contract with the first defendant whereby the latter was to carry
400 tins of kerosene from Kisumu to Kampala. The first defendant's
lorry collided with the bus of the second defendant; and only 32 tins
were delivered. It was led in evidence that some of the missing 368 tins
were broken open in the accident and that others were stolen by persons
unknown after the accident through no fault or neglect of the first
defendant. The driver of the second defendant's bus was found to be
responsible for the collission. The Uganda High Court, following Re
Polemis, held that "the loss flowed directly from the negligence of the
appellant's servant which caused the accident." On appeal, Alastair
Forbest, Justice of the East African Court of Appeal, held that
the learned judge was fully justified in finding that there had been
a loss of the 368 tins and that the lossfloweddirectly from the
negligence of the appellant's servant which caused the accident... .In
Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (1961) A.C. 388, however, the Privy Council
27. For English cases see: Stevens v. B. & S.G.ILM. Committee, 107 S.J. 748 (1963)
per Paul J.; Doughty v. Turner Manufacturing Co. Ltd., (1964) 1 Q. B. 518 at 525, per
Lord Pearce, at 528 ; per Harman, L.J, (whether or not Wagon Mound is binding,
••we ought to treat it as the law"); at 532, per Diplock, L J., (Re Polemis "is no longer
law"); Steward v. W. A. T. Ltd., (1964) 2 Lloyds Rep. 371; Bradford v. Robinson
Rentals Ltd., (1967) 1 W.L.R. 337; Cook v. Swinfen, (1967) 1 W.L.R. 457;
Tremainv. Pike, (1969) 1 W.L. R. 1556; Wieland v. CI C. Ltd, [1969] 3 All E.R.
1006; Malcolm v. Broadhurst, [1970] 3 All E.R. 508 ; Draper v. Hodder, (1972) 2 Q.B.
556. East African cases: Woodruft v. Duport, (1964) E.A. 404 ; Turner and Anor.v.
U.T.Co.& Anor., CS. No. 390 of 1966 (U) ; Nhuuya sjo Subajiwa v. Jackson s\o
Chiiewa, case No. 193 (1972) Tanzania High Court Digest; Sanga v. Sanga, (1968)
Tanzania High Court Digest 180; A.V. Ratanshi v. S. Singh^ Tanzania High Court
Digest 179 ; East. African Riys and Harbours v. Lalani, (1970) E.A. 443 ; K.N.
Nishyirambeerev* Mubande Distt. Admin., (1972) H.C.B. 61; W.G. Wabuzibav. G.M.
Luweago, (1972) H.C.B. 63; Oluchv. Robinson, (1973) E.A. 108; Erima Nantango &
Others v. Hiral Mohd., C.A. No. 59 of 1974 E.A.C.A. (1975) H.C.B. 3; Sawnya v.
Kamenyero, (1976) H.C.B. 13.
28. (1962) E.A, 190.
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has laid it down that the essential factor in determining liability
for consequences of a tortous act of negligence is whether the
damage is of such a kind as a reasonable man should have foreseen;
and, further that a man should not escape liability however
'indirect' the damage, if he foresaw or could reasonably have
foreseen the intervening events.... Applying that test in the
instant case, it appears to me that, in the conditions prevailing in
East Africa, it is to be foreseen that a traffic accident may result
in a vehicle involved being left unattended through no fault of the
owner, and that in such a case loss of the contents of the vehicle
through pilfirage is not merely foreseeable but highly probable.29
Similarly in England in Smith v. Leech Brain and Co.™ the Court of
Appeal followed the decision of Wagon Mound (No. I). T he facts briefly
were that the plaintiff was employed by the defendants as labourer and
galvaniser; his job was to remove galvanised articles from a tank of
molton metal. The defendants were negligent in not providing adequate
protection. Smith died of cancer in 1953. The court found that the
burn contributed to, or caused in part, at any rate, the cancer and the
death. It was argued that the court was bound by the principles laid
down in the Re Polemis case. But Lord Parker C.J., said that:
I would follow, sitting as a trial judge, the decision in the Wagon
Mound case; or rather, more accurately, I would treat myself in
the light of the arguments in that case, able to follow other
decisions of the Court of Appeal prior to the Polemis case rather
than the Polemis case itself. As I have said, that case has been
criticised by individual members of the House of Lords although
followed by the Court of Appeal in Thurogoodv. Van Den Berghv
andJurgem Ltd}1
He then held the defendants liable by stating that : "the Judicial
Committee in the Wagon Mound case did not have what 1 may
call, loosely, the thin skull cases in mind, it has always been the
law of this country that a tortfeasor takes his victim as he finds
him."32 If the Judicial Committee had any "intention of making an
29. Ibid. See also E, Veitch, East African Cases on the Law of Tort 39.
30. (1962) 2 Q.B. 405.
31. Id. at 415.
32. Id. at 414. In support of this Parker, C.J., quoted a short passage of Kennedy,
J., in Dnlieu v. White and Co., (1901) 2K. B. 669 at 679:
If a man is negligently run over or otherwise negligently injured in his
body, it is no answer to the sufferer's claim for damages that he would
have suffered less injury or no injury at all, if he had not had unusually
thin skull or unusually weak heart.
He also said, "to the same effect is a passage in the judgment of Scutton L.J., in The
^a</case,(1934)P.202.
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inroad into that doctrine, I am quite satisfied that they would have said
so."iJ3
Fte stated further:
The Judicial Committee were, I think, disagreeing with the
decision in the Re Polemis case that a man is no longer liable for
the type of damage which he could not reasonably anticipate.34
According to him
the test is not whether these employers could reasonably havs
foreseen that a burn would cause cancer and that he would die.
The question is whether these employers could reasonably foresee
the type of injury he suffered, namely, the burn. What, in particular
case is the amount of damage which he suffers as a result of that
burn depends upon the characteristic and constitution of the
victim.35
Thus, both English and East African courts followed the decision of
Wagon Mound (No. I) and deviated from the doctrine of common law
precedent. Although it was not necessary for them to do so, for, even
if they were to apply the principles of Re Polemis, the same results
would have been there* However, the Smith case also decided that if
the defendant could reasonably anticipate the 'type of injury', then the
question of extent of damage in the case of 'physical disability' is
immaterial because the tortfeasor takes this victim as he finds him. But
where the subsequent injury/illness is not as a result of the accident, the
wrongdoer will not be held liable if it is not foreseeable.36 The same
principles have been followed by the East African Court of Appeal in the
case of George William Bumba v. Phillip Okeeh.37
33. Ibid.
34. Id. at 415.
35. Ibid.
36. See Hoganv. Bentwick W.H. Collieries (Owners) Ltd., 1949] 1 All E.R. 588.
37 (1974) H.C.B, 273. In this case the appellant sustained severe head injuries
for which he was being treated at Mulago Hospital and two months later he was found
to be suffering from diabetes mellitus which in turn led to blindness. The Uganda High
Court, on the basis of medical report, held that the diabetes and blindness were
coincidence and did not result from the accident. On appeal, the East African Court
of Appeal upheld the decision of the Uganda High Court with the remark that:
[I]t was unfortunate that no physician was called upon to give evidence
and text books state that it (diabetes and consequent blindness) could
develop as a result of severe physical injuries, especially to the head as
was the case here. However, on the basis of the Wagon Mound case in
this case the diabetes was not a result of the accident. Consequently the
blindness which resulted from the diabetes could not be said to have
resulted from the accident. The test of foreseeability applied and so the
diabetes and the blindness were not damage of such a kind as a reasonable man could have foreseen.
Id. at 274.
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It should, however, be noted that in the Smith case, Parker,
C.J., expressly rejected the principles of Re Polemis and accepted
the principles of Wagon Mound (No. I). Yet this decision is noi in
consonance with the principles of "reasonable foresight" laid down
in the Wagon Mound (No. I). If one asks the question, was the claim
in respect of damage of the same type as could have been foreseen? Lord
Parker himself accepted, that a reasonable man would have foreseen the
type of injury i.e., the "burn", and not that the burn could also cause
cancer and death after three years. Lord Parker, C.J., therefore, should
not have perpetuated an unforeseeable 'physical disability' by stating that
the 'tortfeasor takes his victim as he finds him', which is a departure from
the principles laid down by the Privy Council in the Wagon Mound(No. I).
For Viscount Simonds in that case clearly attached importance to the
supposed illogicality of using different tests at different stages of the
enquiry in any given case.38 Yet Parker, C.J., following Wagon Mound
(No. I), made an exception of physical disability by saying that Viscount
Simonds was not having "thin skull cases" in his mind. However, it is
submitted that this exception leads to insoluable problems39 and, if
followed, would become an uncatchable serpent, going beyond the area
of reasonable foresight. Tt has also created problems in nervous shock
cases which led the courts40 and the jurists 41 to adopt a reasonable
approach that the plaintiff should be presumed as a normal healthy person.
This principle is also in consonance with the general principles of law of
torts that the wrongdoer can reasonably anticipate the type or kind of
injury to a normal healthy plaintiff unless his abnormality or susceptibility
is known to the defendant. Even if we take the decisions of the
Smith and George William Bumba cases,42 as they stand, what would
happen in the cases where the question of property is in issue rather
than plaintiff's body, leaving aside the question of plaintiff's impecuniosity?43 Would this principle equally apply to dilapidated, weak and
38. See supra note 26.
39. See Bourhill v. Young, [1943] A. C. 92.
40. Lord Wright stated :
Can it be said, apart from everything else, that it was likely that
a person of normal nervous strength would have been affected in
the circumstances by illness as the appellant was ? Does the criterion
of reasonable foresight extend beyond people of ordinary health or susceptibility, or does it take into account the peculiar susceptibilities or
infirmities of those affected which the defendant neither knew of nor
could reasonably be taken to have foreseen ?
Id. at 109. See also the observation of Lord Porter, id. at 117, and Chadwick v B
Rlys. Board, (1907) 1 W.L.R. 912.
41. See also S.P. Singh. Nervous Shock and Tortious Liability, 13 The Indian
Advocate, No. 2 & 3, pp. 81-94. (1973) ; Winfield, supra note 11 at 252-58.
42. Supra notes 30 and 37.
43. See supra pp. 16-17.
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normal property41 What would happen in those cases where the type of
injury is foreseeable, but it happens in an unforeseeable manner? The
East African Court of Appeal faced this problem in the case of Overseas
Touring Co. (Road Services) Ltd. v. African Produce Agency (1949) Ltd.
andAnor.^ where Justice Alastair Forbes held that "I do not think it
incumbent on the respondent to show the precise manner in which it
happened."46 To the same effect is the judgment of the House of Lords
in Hughes v. Lord Advocate,11 where the employees of the post office
opened a manhole in the street and in the evening left the manhole covered
by a tent unattended. They placed warning paraffin lamps round the
tent. The plaintiff, a boy of eight, alongwith his uncle, a boy of ten, took
a lamp and entered the manhole. As they emerged, the lamp was knocked
into the hole and a violent explosion took place, with flames shooting
thirty feet into the air. The plaintiff was knocked back into the hole
where he sustained serious burns. It was found as a matter of fact that
it was reasonably foreseeable that the children would play with the
unguarded paraffin lamps which might cause burn injuries, but it was
unforeseeable that a paraffin lamp would explode and cause serious
burn injuries. All the Law Lords held the defendants liable. Lord
Morris of Borth-Y-Guest stated:
In order to establish a coherent chain of causation it is not
necessary that the precise details leading up to the accident should
have been reasonably foreseeable: it is sufficient if the accident
which occurred is of a type which should have been foreseeable by
a reasonably careful person... .An explosion is only one way in
which burning can be caused. Burning can also be caused by the
contact between liquid paraffin and a naked flame. In the one
case paraffin vapour and in the other case liquid paraffin is ignited
by fire. 1 cannot see that these are two different types of accident.
They are both burning accidents and in both cases the injuries
would be burning injuries. Upon this view the explosion was an
immaterial event in the chain of causation. It was simply one way
in which burning might be caused by the potentially dangerous
paraffin lamp... . The defender cannot escape liability by contending
that he did not foresee all the possibilities of the manner in which
allurements—the manhole and the lantern—would act upon the
childish mind.48
According to Lord Pearce :
The defenders are therefore liable for all the foreseeable conse44.
45.
46,
47.
48,
See infra, p. 27 'Degree or extent of damage*.
Supra note 28.
Id. at 192.
[1963] A.C. 837.
Id. at S55-56.
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quences of their neglect. When an accident is of a different type
and kind from anything that a defender could have foreseen he
is not liable for it (see The Wagon Mound). But to demand too
great precision in the test of foreseeability would be unfair to the
pursuer since the facets of misadventure are innumerable.., .The
accident was but a variant of the foreseeable. It was to quote the
words of Denning LJ. in Roe v. Minister of Health "within the
risk created by the negligence." No unforeseeable, extraneous,
initial occurrence fired the train
The resulting damage, though
severe, was not greater than or different in kind from that which
might have been produced had the lamp spilled and produced a
more normal conflagration in the hole.49
Thus, the House of Lords held that it was quite unpredictable that a
lamp might explode, but the post office men were in breach of duty in
slaving the manhole unattended because they should have reasonably
anticipated that boys might take lamp into the shelter and that, if the
lamp fell and broke, they might suffer injury from burning. So the lamp,
a known source of risk, caused injury through an unforeseeable sequence
of events, but the defendants were held liable. It is, therefore, not
necessary that the precise details leading upto the accident should have
been reasonally foreseeable. It is sufficient if the accident which occurred
is of a type which should have been foreseeable by a reasonably careful
person.
The effects of this decision are multifarious: (a) this decision should be
taken as an authority in favour of the risk principle in so far as it 'typifies'
the means whereby the injury accrues; (b) the House of Lords corrected
their mistake which they committed in the Liesbosch case by putting the
restriction to 'immediate physical consequences' on the Re Polemic rule;
(c) the House of Lords echoed the principle that it is sufficient if the kind of
damage is foreseeable, the defendant will be liable even though it is much
greater in extent than would have been reasonably anticipated; and (d)
it is not necessary that the precise details leading upto to the accident
should have been reasonably foreseen.
From these decisions of the respective highest courts—Hughes v. Lord
Advocate and Overseas Touring Co. Ltd. v. A.P.Agency, it follows that the
Re Polemis case has been burried in the grave yard and that the Wagon
Mound (No. I) has been legally given a house to live in the United Kingdom and in East Africa. Although these decisions of the House of
Lords and the East African Court of Appeal are on the lines of Wagon
Mound (No. 1) and possibly to some extent have developed it, but there
still remains the questions that how far is it necessary to differentiate
49. Id. at 857-58
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the degree or extent of damage to persons and property, the ways or
manners of causing the damage and the kinds of damage?
Degree or extent of damage
Under the rule of the Hughes case, if the kind of damage to a human
being is foreseeable, the defendant will be liable even though it is much
greater in extent than would have been reasonably anticipated from the
negligence. Where, however, the extent of damage is aggravated by inherent weakness (like pre-malignancy illness, thin-skull or unusually
weak heart etc.,) in the subject, full liability is admitted in the case of
people on the principle the "tortfeasor takes his victim as he finds him."50
But this principle, it is submitted, is not in consonance with the principle
of reasonable foresight as laid down in the Wagon Mound (No. J), and
even in other areas of law of torts.51 Goodhart, however, proffers the
argument that a wrongdoer ought reasonably to anticipate that his victim
might suffer from some abnormal susceptibility.52 It is submitted that
such a hypothesis would dismantle the foreseeability test by striking at
the fundamental rule that liability is always determined on an assumption of normality.53 However, everyone would agree that life is more
valuable than property and on this basis it may logically be argued that
liability in the case of physical injury to human being should be attached
as far as possible. Injuries can never be repaired by damages,
nor can sanctity of life be upheld by their award. It is, therefore, submitted
that in the absence of any logical reasoning, the test of reasonable
foresight towards a normal healthy person should be followed.
Another related question is about the degree or extent of
damage to property. Should the rule "defendant takes his victim as he
finds him" be applied to dilapidated, weak and normal property. The
answer to this is not easy and the matter awaits an authoritative pronouncement. However, if we look at the Liesbosch case,54 the House of
Lords, while restricting the rule of Re Polemis, stated the principle of
"immediate physical consequences" in relation to extent of damage to
property. Similarly in Smith v. Leech Brain and Co.55 Parker, C.J., though
50. Smith \. Leech Brain & Co., supra note 30; and George William Bumba v,
Phillip Okeeh, supra note 37.
51. See, Bourhill v. Young, supra note 39 (a case on nervous shock); Bidwellv.
Briant, The Times, 9 May 1956.
52. A.L. Goodhart, Liability and Compensation, 16L.Q R. 567 at 581.
53. Ibid. See alsoR.W.M. Dias, Remoteness of Liability and Legal Policy, (1962)
Camb. L.J. 178.
54. See supra note 12.
55. Supra note 30. See also, Denning, L.J., in Roe v. Minister of Health, supra
note 17.
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he was speaking with reference to persons, used language of wider import.56
It can be concluded that if the type of damage is foreseeable,
the wrongdoer would also be liable for any extent of damage to property.
It would, thus, follow that so far as the degree or extent of damage is concerned, the Re Polemis' 'direct' rule is still surviving and the Wagon
Mound has not changed it.
Ways or manners of causing the damage
In Wagon Mound (No. / ) , the Privy Council held that foreseeability was
the basic test of liability and criticised the 'direct rule' of Re Polemis where
both the "type of injury" and "precise manner" in which the injury was
caused were not reasonably foreseeable. It, therefore, follows that the
"manners or ways" in which the injury is caused should also be foreseeable. But the East African Court of Appeal in 1962 in Overseas Touring
Co.'s case57 and the House of Lords in 1963 in Hughes v. Lord Advocate™
(where the type of foreseeable injury occurred in an unforeaseeable manner), held that the chain of events leading upto the injury
was irrelevant so long as the wrongful act could be foreseen as a possible
factual cause of the kind of injury. This principle is, more or less, in
consonance with the 'direct' rule of Re Polemis in so far as 'ways or
manners' are concerned, and, thus in this respect again the basic rule of
reasonable foresight laid down in Wagon Mound (No. I) has been
rejected by the House of Lords and the East African Court of Appeal. It is
here some development has been brought about by the courts to the rule
of Wagon Mound (No. I)', otherwise there would have been no liability in
most of the cases if the courts started distinguishing foreseeable and
unforeseeable "manners or ways" of causing the foreseeable damage or
injury. From these decisions, however, it follows that only the "kind of damage" must be foreseeable and not the "precise ways or manners" in which
it is caused. But in Doughty v. Turner Manufacturing Co. Ltd.,59 the Court
of Appeal considered the unforeseeable "manner or ways" which created
the effects of wider range than reasonably foreseeable, as relevant. In that
case the plaintiff was injured not by the splashing of liquid in a vat when
the lid fell into it, but by the effervescence resulting from the interaction of
the material from which the lid was made with the substance in the vat.
The Court of Appeal, however, held that the extent of the effects of the
effervescence was wider than that would have been the extent of any
splashing caused by the fall of the lid. Hence there was no liability.
Although the Hughes and Doughty cases can be distinguished, but the line
56.
57.
58.
59.
Supra note 30 at 415. See also Overseas Touring Co,"s case, supra note 28.
Supra note 28.
Supra note 47.
Supra note 27,
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of distinction is very thin. This proves that since the Wagon Mound (No. 1)
the courts have been forced into a position in which they are bound to
differentiate somewhat narrowly between different ways or manners of
causing such injury. The question is how far these differentiations should
go ? Since the basic test is foreseeability, the answer would seem to lie
somewhere in the definition of what is reasonably foreseeable?
Kind of damage or injury
From the decisions of the House of Lords in Hughes v. Lord Advocate
and that of the East African Court of Appeals in Overseas Touring Co.,
it is now clear that if the kind of injury or damage is foreseeable
then the defendant will be liable, irrespective of the "precise manner" and
"degree" of such damage. But both the above mentioned cases raise a
querry whether, and, if so, how far is it necessary for the law to differentiate
"kinds" or "types" of damage? Should the law be concerned with the
type of injury ? If so, how broadly or narrowly should a kind or type of
injury be formulated ? The lack of any guidance in this respect led to the
difficulties encountered by Payne, J., in an English case of Tremain v. Pike?0
where the plaintiff while employed as a herdsman by the defendant contracted a rather rare disease, leptospirosis, which is normally contracted
through contact with rats' urine. This disease was neither known to the
farming community nor they reasonably ought to have known that the
disease existed as opposed to being bitten by a rat or eating food
contaminated by rats. The learned judge held that the defendants were
not liable because they could not have realised as reasonable men the extent
to which the farm was infested with rats so as to give rise to any sort of
danger whatsoever from their presence. Here it is not possible to argue
against. But the learned judge observed that even if the defendants had
been in breach of duty, in that they ought to have known of the
extent of the infestation by rats and ought to have foreseen
that the plaintiff was or might be exposed to some general hazard
involving personal injury, illness or disease in consequence of such infestation, they were still immune from liability on the ground that the disease
of leptospirosis was at best a remote possibility which they could not
reasonably foresee. According to the learned judge, the disease in
question was "not comparable to the other human disabilities which may
flow from an infestation of rats."61 The kind of injury sufferred here
was a disease contracted by contact with rats' urine. That was entirely
different in kind from the effect of a rat bite or food poisoning by
the consumption of food or drink contaminated by rats. In this he relied
by way of comparison and contrast, upon the earlier decisions & Smith v.
60. Supra note 27.
61, Id at 1561.
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Leach Brain & Co. Ltd.?2 and Bradford v. Robinson Rentals Ltd.™
According to him, in those cases, the risk of injury from a burn or from
extreme cold was foreseeable and it was only the degree of injury or the
development of the sequelae which was not foreseeable.
It would seem from this judgment that how narrow level of abstraction
in respect of foreseeable damage was invoked by the learned judge in
order to determine the liability of the defendant. Ft follows that in
Hughes v. Lord Advocate?* if the other boy in the manhole would have
died of heart attack due to sound of explosion of the paraffin lamp, the
defendants could not be liable because the death occurred due to
unforeseeable type of injury. Such an approach may or may not be
rational or reasonable in principle. The real question is whether such
approach is justifiable and that the narrow level of abstraction to be invoked should be so low as has been done in the Tremain case. Tt is submitted that if this is the way to distinguish different kinds of injuries, no
advantage is gained and that, in essence, no avoidance is possible. Where
does the distinction lie between the Hughes™ and Doughty™ cases or,
between the Bradford67 and Tremain** cases? Surely only in respect of the
extent to which a particular court in the individual case was prepared to
analyse more or less minutely the way and the type of injury caused.
Thus, the Tremain case differentiated between injury from rats by biting
and injury from rats infection. Yet it may be said that the only real type
of injury to be considered was'injury by rats', and not how the precise
injury was suffered. The rationale of these distinctions is said to be the
element of foreseeability. But it is submitted that it should not be viewed in
isolation and if it is viewed at its narrowest level of abstraction, then almost
62. Supra note 27.
63. Supra note 27 . Here in the depths of the worst winter for years the plaintiff,
a radio engineer was, required to drive in unheated vans from Honiton to Bedford and
back, a trip of twenty-four hours in two days; he suffered frostbite, a rare complaint in
England, and recovered damages.
64. Ses supra note 47, for details of the case see supra p. 16.
65. Jbii. Here unforeseeable manner ie„ explosion of lamp, caused foreseeable
iajury of burn but of greater degree. The court did not consider the ways or manners
as relevant and held the defendants liable.
66. Supra note 27. Here unforeseeable manner i.e., effervescence from falling the
lid into the vat, caused injury of unforeseeable wider range than by splashing. The
court considered the ways or manners as relevant and held the defendants not liable.
67. Supra note 27. The court took broader concept of foreseeability in respect of
kind of injury (i e , frostbite—a rare complaint in England) and held the defendants
liable. Soe also Smith v. Leech Brain and Co., supra note 30, where foreseeable
injury of burn caused unforeseeable cancer and death and the defendants were held
liable.
68. Supra note 27. Here some injury by rat's biting or by contammition of food
was foreseeable, but the court took very narrow concept of foreseeability in respect of
type of injury i.e., leptospirosis caused by rats' urine, and held the defendants not liable.
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nothing will be foreseeable. Vague generalisation of foreseeability will cover
almost everything, whereas 'burns' will not include 'cuts'. This is what has
happened in the Tremain case; whereas in the Smith and Bradford cases the
court has taken a more general concept of foreseeability and a broader
level of abstraction in respect of kind or type of injury.
Conclusion
It has been seen that the development of remoteness principles has
really made the liability very remote in English law and consequently
in the East African law. The main problem, however, is: Where to draw a
demarcation line between the narrowest and the broadest level of abstraction in respect of foreseeable damage 7 It has been said that it is a
question of public policy. Lord Denning in the Court of Appeal was
happy to expose the true issue, namely, that of public policy.69 Even the
opinion of the Judicial Committee in the Wagon Mound {No. I) manifested
this policy approach to the whole notion of negligence when their
Lordships discussed the moral and social consequences of the correct
approach to the problem of defining the duty of care of the remoteness
issue.70 The decision in the Wagon Mound (No. 2)71 in relation to nuisance
and remoteness again illustrates the policy consideration. But the Privy
Council left open the whole question relating to tort of absolute, or so
called strict, liability.72 It appears that some chasm exists even with the
courts because so far no court has been prepared to determine conclusively whether directness or foreseeability should be the appropriate test in
such instances. In this context it is submitted that the distinction between
foreseeability andunforeseeability is an inherently vague concept.73 It is not
for nothing that the foreseeability rule has been criticised by some authors
69* Dorset Yacht Co. Ltd. v. Home Office, (1969) 2 Q.B. 412 at 426; Home
Office v. Dorset Yacht, [1970] A.C. 1004 (House of Lords).
70. Supra note 20.
[Ijt 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 damge the actor should be liable for all consequences however unforeseeable and however grave, so long as they can
be said to be direct.
(Per Viscount Simonds).
71. Supra note 24. The Judicial Committee held that foreseeability is relevant in
nuisance also and applied too strict a test in order to hold the defendant liable.
72. "It is proper to add that it is not necessary to consider the so-called rule of
'strict liability' exemplified in Rylands v. Fletcher (1868) L.R. 3 H.L. 330". Per Viscount
Simonds in Wagon Mound (No. I).
73. See for example, Wagon Mound (No. 1) and Wagon Mound (No. 2). Facts were
same in both the cases. In the former it was not foreseeable but in the latter it was.
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and has been shown to be not a reliable tool for the courts to employ.74
Even the eminent jurist, Glanville Williams himself, after extolling the
intellectual attraction of the foreseeability principle, has promptly
abandoned it when led by an ineluctable logic to a conclusion as to the thin
skull cases, which militates against a latent sense of injustice for
plaintiffs.75 In the same context, Goodhart formulated his minor
premise of what is deemed to be foreseeable very broadly in order to reach
a conclusion favourable to the plaintiffs.76 All these together set the
application of the whole foreseeability principle more or less at hazard.
Accordingly, in this extensive and ever widening field the Wagon Mound
(No. 1) principle has no place whatever. The foreseeability rule in relation to remoteness, as pointed out earlier, has already been rejected in
respect of "degree or extent" of damage, 77 "physical disability"1* "financial disability"'79 and the "manners or ways"B0 in which a foreseeable kind
of damage is caused. Even in the area of "kind or type of injury'\sl
the foreseeability rule, as discussed earlier, has, created problems and is
not working well. In East Africa since law of tort is based on the
common law principles82 and the decisions, as discussed earlier, arc also
on the lines of the English decisions, it is submitted that the East African
courts are bound to face the same problems, at least in relation to precise
kind of foreseeable damage or injury. Here greater injustice is possible than
justice to the plaintiff, depending on the attitude of the courts. The purpose of law of torts must be to serve the interests of justice. Whatever
analysis of negligence are invoked, whatever distinctions are done, it must
stem from the ultimate desire and purpose of the law to achieve a just
result in any given case. To do that all the time is difficult. But, atleast,
justice must appear from what is done by the courts. At the present time,
the existing attitude of the English and East African courts reduces the
chances of achieving just result. The judicial policy has now shifted in
favour of the defendant and one is constrained to wonder why this should
be. 83 Law of tort must pay due regard to the point of view of both the
74. See S.P. Singh, supra note 41 ; Allen M. Linden, Down with Foreseeability of
Thin Skulls and Rescuers, 47 Canadian Bar Review 545 (1969).
75- Glanville William, The Risk Princip!e, 77 L.Q.R. 179 at 196 (1961) ; See also
Dias, supra note 53.
76. A.L. Goodhart, Liability and Compensation, supra note 52; see also, Dias,
supra note 53.
77. Discussed supra p. 27 "Degree or extent of damage".
78. Ibid.
79* Dredger Liesbosch v. Steams Steamship Edison, supra note 12.
80. Discussed supra p. 28 "Ways or manners of causing the damage."
81. Discussed supra, p. 29 "Kind of damage or injury"
82. See supra note 3.
83. It is possible "that in view of the legislative creation of strict liability {i.e.,
statutory duty) in the interest of plaintiff the balance is restored by bending the
common law principles so that they favour defendants." See Dias, supra note 53.
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plaintiff and defendant. The basic idea has been that the wrongder
should redress the injury of a person who has suffered it without his fault.
But this does not mean that the wrongdoer should be unduly burdened.
This requires a fine balancing and can be best accomplished if its principles are such as to leave room for the exercise of discretion. A good deal
is still possible even within the framework of the fault principle as declared by the Judicial Committee in the Wagon Mound (No. 1) and that is by
varying far more the 'standard of care' as occasion demands. This could
be indulgently low or stringent to the utmost degree. It may be done
by raising the standards of care in common law negligence when the
interests of the plaintiffs demand that there should be liability. The fault
principle could thus in large measure may even now be applied in favour of
the plaintiffs as well as the defendants, but whether this is done or not will
entirely depend on the sympathies of the courts. But it should be pointed
out here that the concept of reasonable foresight itself is not a reliable
tool for the courts to employ because it is capable of the most catholic
interpretations. It is in this context one harks back to the principle laid
down by the Re Polemis case. What has not always been realised is that
the principle of Re Polemis could likewise have yielded a comparable range
of results. Although it was in favour of the injured persons, it was sufficiently broad to enable a court, if it so wished, to find support for the
wrongdoer in a great many instances.84 It was never understood in a
sense that would have enabled all this, and perhaps more, to be accomplished. "I am not sure it has been everywhere understood":85 so said
one of the famous modern judges. However, now it is extremely unlikely
that the rule in Re Polemis will ever be resurrected under its own name
either in East Africa or in the United Kingdom.
84. See Paynet, The 'Direct' Consequences of a Negligent Act, 5 Current Legal
Problems 189 (1952) Payne, Foresight and Remoteness of Damage in Negligence, 25
Mod. L.R. 1 (1962) See also Dias, supra note 53.
85. Lord Wright, Re Polemis, 14 Mod. L.R. 393 at 410 (1951).
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