Allied Maples Group v Simmons & Simmons (a firm)  CA
[Tort - negligence - damage causation and
remoteness - multiple causes - speculative action of a third party -
whether matter of causation or quantum of damages]
D solicitors advised C on the purchase of 4
properties. C bought the company that owned them, and in so doing he
acquired liabilities attached to other properties owned by the company.
D drew up an agreement to enable C to hive off the other properties and
thereby get rid of the liabilities.
Then a third party wanted to sue but could not because the agreement, so
they sued C.
Held: C showed that there was a substantial, and not merely a
speculative, chance that the third party would have taken the action.
[Tort - negligence - damage causation and
remoteness - intervening events - successive causes - remedies -
contributory negligence - proximate cause of injury, both parties]
D drove a car that struck C a pedestrian who was crossing the road.
Neither saw each other because of other traffic. C received injuries to
his leg and ankle.
D had been driving at excessive speed or had failed to keep a proper
look-out, or both; and C had been negligent in not seeing that more than
one car was approaching and in not waiting until they had passed.
Held: The duties of
pedestrians and motorists with regard to keeping a proper look-out were
different and the potential danger of each to other road users was very
different; apportionment of liability, 25 per cent to pedestrian and 75
per cent to driver.
In 1967, three years later, and
before the above matter was decided the claimant was a victim in an armed
robbery during which he was shot in the previously injured leg. C's leg
had to be amputated. D was liable to pay the entire damages for the
injured ankle and not just till 1967, because the supervening injury did
not arise by accident or by a latent condition but by being inflicted on
Hospital Management Committee (1969) QBD
[Tort - negligence - causation in fact – causation essential - negligence alone not
D, hospital where C went because
of stomach pains and vomiting. The doctor refused to examine him and sent
him home untreated; he died of arsenic poisoning five hours later. His
family sued the hospital.
Held: C would probably
have died even if the proper treatment had been given promptly, so the
hospital's negligence was not the cause of his death.
C’s family lost
Council  CA
^[Negligence - remoteness of damage - extent of damage - financial
frailty is not physical weakness]
D constructed a car park used a pile-driver causing
serious structural damage to C's building. C brought an action against the
defendants in negligence and/or nuisance. D admitted liability by disputed
(1) damages were compensatory and should as far as possible put the
injured party in the same position as if the wrong had not been committed.
(2) Commercial sense did not mean C had failed to mitigate the damages and
delays were caused by D, the cost of the repairs was to be assessed as at
the date of the action, i.e. 1978, not 1970's prices.
cf Liesbosch Dredger
Doughty v Turner
Manufacturing Co (1964) CA
[Tort – negligence - remoteness of damage - type of damage]
D factory owner where C worked. C was injured by an asbestos cover
falling into a cauldron of molten metal. It was then unknown that
the extreme heat would cause the asbestos cement to undergo a chemical
change creating or releasing water, which would turn to steam and one or
two minutes later cause an eruption of the molten liquid from the
Held: Following The Wagon Mound and distinguishing
Hughes v Lord Advocate .
D was not liable because the eruption which injured C was not
foreseeable by a reasonable man at the time when the accident happened.
The risk of splashing was foreseeable but what happened was an accident of
an entirely different kind caused by an unexpected factor, viz the
instability of asbestos at high temperature.
Glenhaven (2002) HL
[Tort – negligence – causation - C able to
recover against 'either or both' employers]
D representing a number of
former of employers who failed in their duty of care to prevent workers
contracting mesothelioma by
negligent exposure to asbestos dust. Some workers had already died.
C could not show during which employment he had suffered the
offending dust. Existing rules
of causation required C to prove which employer had been negligent.
Held: C could succeed against either or both employers, and it was up to
them to sort out who would pay what proportion of the award.
C had been employed by more than one employer and,
D had a duty of care to prevent dust inhalation and,
D had been in breach of that duty and,
C had contracted mesothelioma, and
any other cause of mesothelioma could be ruled out but,
C could not (because of the limits of human science) prove during which
employment he had inhaled the dust....
...C was entitled to recover against both his employers.
That conclusion was consistent with
principle, and with authority, properly understood.
Wilsher had been correctly decided on its facts, as a matter of public policy.
The law would be extended in the instant case on the facts:
“...If the mechanical
application of generally accepted rules leads to [an unjust] result,
there must be room to question the appropriateness of such an approach
in such a case."
"... such injustice as may be involved in imposing liability on a
duty-breaking employer in these circumstances is heavily outweighed by
the injustice of denying redress to a victim"
"The concepts of fairness, justice and reason underlie the rules which
state the causal requirements of liability ...The purpose of the causal
requirement rule is to produce a just result ..."
"Any other outcome would be deeply offensive to instinctive notions of
what justice requires and fairness demands."
It had not been suggested in argument that the claimant’s entitlement
against either employer should be for any sum less than the full
compensation to which he was entitled, although either of them could of
course seek contribution against the other or against any other employer
liable in respect of the same damage in the ordinary way (Civil Liability
(Contribution) Act 1978).
The Fairchild decision is a decision on its own particular facts and,
whilst there might be other analogous situations where a
approach to assessing causation is appropriate, that category of case is
to be kept within strict limits and the balance of probabilities test
remains the guiding principle to determining causation.
This decision was refined in
barker v Corus  HL which stated that
damages should be set in proportion to the amount of
time a worker spent with a company.
Froom v Butcher  CA
[Tort – negligence – damages – contributory negligence]
C was injured in a road traffic accident but was not wearing a seat belt,
which at the time was widely recommended but not legally required.
Decisions were never consistent whether it was contributory negligence and
if it were, what level of compensation was payable
Held: C’s damages were reduced by 25%. Failure to wear a seat belt
is contributory negligence if use of a belt would have avoided or lessened
the injuries sustained in the accident.
For the future a deduction of 25% where wearing a seat belt would have
prevented the injuries, or 15% where there would still have been some
injuries but they would have been less severe.
v Pirelli General plc  CA
^[Tort - damages and compensation - deduction - payments from group
insurance deductible from damages]
D employed C who was seriously injured in an accident at work. Whilst C
was off work he received payments form a group insurance scheme. Following
the termination of his employment he received an ill health gratuity
payment from the defendant and a payment under the insurance policy for
‘permanent total disability’. C claimed damages for personal injury.
Held: There was a fundamental difference between a
payment made by an employer to his employee to compensate him for the
consequences of injuries suffered in an accident, and a payment made to a
victim of an accident by a third party out of sympathy for his or her
plight. The instant case did not come within the ‘benevolence exception’
because the payments had been made by the tortfeasor, and the payment of
benefits under the insurance policy was not equivalent, or analogous, to
payments made by third parties out of sympathy.
East Berkshire Health Authority  HL
[Tort – negligence - damage -
causation – medical treatment - loss of chance of recovery]
D the hospital where C, a young boy was taken after
he fell out of a tree injuring his hip. The injury was wrongly diagnosed
and he was thus given inappropriate treatment. He suffered a permanent
disability; the hospital admitted negligence but denied liability.
Held: C had not proved on a balance of probabilities that the
negligent treatment had caused his disability - on the contrary, the
probabilities were 75-25 that it had not. C therefore had no claim
Bridge; C would be entitled to full damage, not just a proportion for loss
of chance of recovery, if C had shown that medical negligence had worsened
Hughes v Lord Advocate (1963) HL
[Tort – negligence – exact type of damage not foreseeable]
D the Post Office employed workmen
who took a break, leaving a manhole covered by a small tent with a
paraffin lamp at each corner. C, one of two boys aged 8 and 10 took one of
these lamps into the tent. One of them tripped, the lamp fell into the
manhole and caused an explosion injuring one boy.
accident was caused by a known source of danger and that made it
foreseeable even though the way in which it happened was unexpected.
An accident to a child through burns, was reasonably foreseeable, and the
further fact that the development of the accident as it actually happened
(viz, the occurrence of the explosion) could not reasonably have been
foreseen did not absolve the defendants from liability, and accordingly C
was entitled to recover damages for negligence.
Humber Oil Terminals Trustee Ltd v Harbour and General Works (Stevin)
[Tort – negligence - foreseeability or type of harm - remoteness
of damage - intervening events - no general duty]
C was repairing a damaged mooring when a second
serious accident occurred which led to extra expense.
Held: The physical conditions
of the soil were foreseeable - such as one would commonly find in
estuaries, i.e. difficult. The soil was at the base of a leg that broke.
A claim can succeed where the conditions are predictable, but the
ground behaves unpredictably when subjected to the contractor’s particular
construction methods, temporary or permanent.
The damages concept in personal injury cases "thin skull of the
claimant" can apply equally to property damage claims.
Hunter v Canary Warf Ltd and London Docklands Development Corporation
[Tort – causation - parties – private
CC alleged that their television reception had been
affected by the building of the
Held: overruling Khorasandjian
on the point that the occupation of property as a home (rather than a
right to exclusive possession) was sufficient capacity to bring an action
in private nuisance. And reaffirming the decision in Malone v
The idea that the complainant needed only a "substantial link" with
the property affected, was too vague, and would transform nuisance from a
tort to land into a tort to the person.
There might be a nuisance if reception was affected by activities (e.g.
involving electrical discharges) on DD's premises, but the mere presence
of a building was not capable of constituting a nuisance.
The law of private nuisance does not extend to personal injuries, which
are properly covered by the tort of negligence.
Jobling v Associated Dairies  HL
[Tort – negligence – breach -
sensitivity of complainant – ‘eggshell skull’ rule]
D the employer of a workman who suffered a slipped
disc through their negligence. His earning capacity was reduced by
half. Four years later, he was found to have a pre-existing spinal disease
unrelated to his accident. When the case came to trial, he was
totally incapable of work.
Held: Doubting and not following their earlier decision in
The employer was liable for only four years' loss of earnings, this being
a rare case in which the "eggshell skull" rule operated to the benefit of
the defendant. The onset of this illness was "one of the vicissitudes of
life relevant to the assessment of damages".
Law Reform (Contributory
Negligence) Act 1945 s.1 (1)
Apportionment of liability in case of contributory negligence
1. (1) Where any person suffers damage as the result partly of his own
fault and partly of the fault of any other person or persons, a claim in
respect of that damage shall not be defeated by reason of the fault of the
person suffering the damage, but the damages recoverable in respect
thereof shall be reduced to such extent as the court thinks just and
equitable having regard to the claimant's share in the
responsibility for the damage:
(a) this subsection shall not operate to defeat any defence
arising under a contract;
(b) Where any contract or enactment providing for the limitation of
liability is applicable to the claim, the amount of damages recoverable by
the claimant by virtue of this subsection shall not exceed the maximum
limit so applicable.
(2) Where damages are recoverable by any person by virtue of the
foregoing subsection subject to such reduction as is therein mentioned,
the court shall find and record the total damages which would have been
recoverable if the claimant had not been at fault.
(3), (4) . . .
(5) Where, in any case to which subsection (1) of this section
applies, one of the persons at fault avoids liability to any other such
person or his personal representative by pleading the Limitation Act 1939,
or any other enactment limiting the time within which proceedings may be
taken, he shall not be entitled to recover any damages . . .
from that other person or representative by virtue of the said
(6) Where any case to which subsection (1) of this section applies is
tried with a jury, the jury shall determine the total damages which would
have been recoverable if the claimant had not been at fault and the extent
to which those damages are to be reduced.
Liesbosch Dredger v SS
Edison  HL
- remoteness of damage – damages must be natural or immediate consequence
of breach - extent of damage - financial frailty is not physical weakness]
D the owner of the
Edison negligently sank a dredger in
The owners of the dredger were too poor to buy a replacement and had to
hire a substitute to carry out an existing contract; it would have been
cheaper to buy, rather than hire.
Held: C’s damages were limited to the cost of the
purchase and to damages for loss of hire between the sinking and the date
when a replacement would have been put into service.
The law cannot take account of
everything that follows a wrongful act; it regards some subsequent
matters as outside the scope of its selection, because "it were infinite
for the law to judge the cause of causes," or consequences of
Malone v Laskey
[Tort – negligence – causation - no cause of action
when there was no contractual relationship between C and D]
D let premises to A, who sublet them to a company B whose manager and his
wife C lived on the premises.
When C was using the toilet the tank fell on her causing injuries.
The tank fell because vibration from a generator next door had made
the tank lose. D sent
competent workmen round to fix the tank, but it still fell on her.
C could not recover on the ground of negligence, for there was no
contractual relation between C and D, and the doing of the repairs was a
voluntary act on the part of defendants not done in the discharge of a
duty to C.
This case had been previously doubted but was reaffirmed by the HoL in
Margereson & Hancock v JW Roberts Ltd (1996) CA
[Tort - negligence - remoteness of damage - foreseeability of harm -
type rather than the extent of damage must be foreseen]
D the owners of a factory near where the two complainants had lived and
played as children. They contracted mesothelioma due to their
exposure to asbestos
Held: D was liable to C
because they knew or ought to have known that asbestos dust was escaping
from the factories into the surrounding street and could cause harm to
people who were exposed to it.
Risk of harm of allowing asbestos dust to escape
factory was foreseeable
As stated by Lord Lloyd in
Page v Smith (1995),
’the test in every case ought to be whether the defendant can reasonably
foresee that his conduct will expose the claimant to the risk
McGhee v National Coal
Board  HL
[Tort - negligence - proximate cause]
D failed to provide washing facilities for C whom they sent to clean out
brick kilns in hot and dirty conditions, and clouds of abrasive brick
dust, C cycled home, further exerting himself caked with sweat and grime.
After some days he was found to be suffering from dermatitis.
Held: D was liable in
negligence because their breach of duty had caused, or materially
contributed to, the injury suffered by C, notwithstanding that there were
other factors, for which D was not responsible, which had contributed to
(1) D’s breach of duty had, for practical purposes, materially
increased the risk of injury to C;
(2) C had shown, on a balance of probabilities, his injury had been
caused or contributed to by respondents’ breach of duty.
Disapproved dictum Lord Wilberforce Wilsher v Essex Area Health
McKew v Holland and Hannen and Cubitts (Scotland) Ltd  HL
^[Tort - negligence - causation - novus actus
D the employer of C who suffered an injury at work which the defendants
were liable, and as a result he occasionally lost control of his left leg,
which gave way under him.
A few days later he went to inspect a flat which was
approached by a steep stair, between two walls, and without a hand-rail.
On leaving the flat he started to descend the stair, holding his young
daughter by the hand and going ahead of his wife and brother-in-law.
Suddenly he lost control of his left leg, threw his daughter back in order
to save her, and tried to jump so as to land in an upright position rather
than falling downstairs. As a result he sustained a severe fracture of his
Held: His act of jumping in the emergency did not break the chain
of causation, but that it had been broken by his conduct in placing
himself unnecessarily in a position where he might be confronted by such
an emergency, when he could have descended the stair slowly and carefully
by himself, or sought the assistance of his wife or brother-in-law.
His conduct therefore amounted to a novus actus interveniens because it
was unreasonable. If he had had no reasonable alternative to acting as he
did, his conduct would not have broken the chain of causation.
McWilliams v Arrol
[Tort – negligence - causation]
D a building firm had not provided a safety belt to a
steel erector who fell 70 feet to his death.
C the widow. D was in
breach of its statutory duty to provide a safety belt (but not to insist
that it be worn), there was evidence to show that the man would probably
not have worn a belt even had it been provided.
Held: the firm's negligence and breach of statutory duty were not
the cause of his death.
Their breach of
duty was not the cause of the damage suffered since (a) on the evidence
deceased would not have worn a safety belt if it had been provided, and
(b) there was no duty on the employers to instruct or exhort the deceased
to wear a safety belt.
Taylor  HL
[Tort - damage - foreseeability]
D negligently set fire to
his house while using a blowlamp. C a fireman was injured while fighting
Held: C’s injuries were a foreseeable result of D's negligence, and it
was irrelevant that he was employed as a fireman and expected to take
risks as part of his job.
Page v Smith  HL
[Tort - negligence - damage causation and
remoteness - multiple causes - remoteness of damage - foreseeability -
psychiatric harm - primary victim ]
D's car collided with C's car. C was physically unhurt, but the accident
caused him to suffer the onset of myalgic encephalomyelitis (ME) from
which he had suffered for about 20 years but which was then in remission.
Held: D had to take his victim
as he found him.
The test in all cases was the same, namely whether the defendant could
reasonably foresee that his conduct would expose the claimant to the risk
of personal injury, whether physical or psychiatric.
C was not required to prove that
nervous shock was reasonably foreseeable by D. It was irrelevant
that D could not have foreseen that the claimant had an ‘eggshell
personality’. Psychiatric illness could be suffered as a consequence
of an accident although not demonstrably attributable directly to physical
injury to the claimant.
Per Lord Lloyd. In the case of secondary victims, i.e. persons who were
not participants in an accident, the defendant will not be liable unless
psychiatric injury is foreseeable in a person of normal fortitude and it
may be legitimate to use hindsight in order to be able to apply the test
of reasonable foreseeability.
Perrett v Collins (1998) CA
[Tort – negligence – duty of care – just to impose
– not restricted by cost of insurance or need for stricter regulation]
D built and flew a kit plane. C was a passenger.
The plane crashed C was injured.
The certifying authority and its inspector were both liable in
negligence having certified an experimental aircraft as fit to be flown,
and the duty extended to any passenger who was carried in the aircraft.
Held: imposing a duty of care, members of the public would expect
to be protected from injury by careful operation of the regulatory system,
and to be compensated if injured by its negligent operation.
Pickford v Imperial Chemical Industries plc  HL
[Tort - negligence - damage causation and remoteness - multiple causes -
ICI, employed C as a secretary, she suffered repetitive strain injury (RSI)
in her hands allegedly caused by typing.
Held: In order to succeed, the onus was on C to prove that her
condition had been caused by repetitive movements while typing. C was not
entitled to damages, since the condition was not reasonably foreseeable in
her case and ICI were not negligent.
Polemis and Furness Withy & Co
- negligence - damage causation and remoteness - type of damage - test of
D chartered a ship had loaded it with petrol. The
ship encountered bad weather and the petrol leaked. While docked at
D's worker carelessly allowed a plank to fall into the hold of the ship.
The falling plank struck something and thereby caused a spark which in its
turn ignited petrol vapour in the hold. The vapour caused a fire which
destroyed the whole ship.
Held: The fire was not a reasonably foreseeable consequence of
allowing the plank to fall. However, it was reasonably foreseeable that
the falling plank would cause some form of damage to the vessel. Because
of this, the court established D’s negligence. Whether the particular
damage caused by the fire was recoverable depended solely on it being a
direct consequence of the negligent act. Although the damage by fire could
not have reasonably been foreseen as a consequence of dropping the plank,
D was therefore liable for the loss of the ship by fire.
The defendants chartered a ship and put in its hold drums of petrol.
was not followed by the Privy Council in The Wagon Mound No.1.
The Wagon Mound is now preferred.
Croydon Health Authority (1997) CA
[Tort – negligence - foreseeability of
D x-rayed C as part of medical for job as nurse.
D failed to inform C and her GP of serious heart problem.
C had a child and later became depressively ill thinking she had
reduced life expectancy.
Held: D not responsible for her becoming pregnant, damages reduced.
UDC  CA
[Tort - foreseeability of damage -
D a local authority provided public toilets. When C
tried to leave the cubicle, she found the handle was missing. After trying
for fifteen minutes to attract attention, she tried to climb out by
standing on the toilet roll holder, but the roll rotated and C slipped and
fell, injuring herself.
Held: her actions were not unreasonable in the circumstances and
the injury was a natural and foreseeable consequence of DD's negligence,
and not too remote. However, her damages were reduced by 25% for her
negligence in relying on the toilet roll as a secure foothold.
Scott v Shepherd 
Ct of CP
[Tort – negligence - remoteness of damage - intervening events]
D (Shepherd) threw a lighted squib into a crowded market house, and it was
thrown from one stallholder to another until it put out the claimant's
Held: Trespass and assault
will lie for originally throwing a squib, which after having been thrown
about in self-defence by other persons, at last put out the claimant’s
De Grey, CJ
"I look upon all that was done subsequent to the
original throwing as a continuation of the first force and first act,
which will continue till the squib was spent by bursting, and I think
that any innocent person removing the danger from
himself to another is justifiable. . . . I do not consider [them]
as free agents in the present case, but acting under a compulsive
necessity for their own safety and self-preservation. The defendant
there was, I think, guilty of a public nuisance, and the [claimant]
could have sued him in case."
Blackstone J thought that
[negligence], and not trespass, would lie against Shepherd.
Simmons v British Steel
plc  HL
– remoteness of damage – primary victim – foreseeable harm includes
psychiatric reaction following initial injury]
D, the steel company that employed C. C fell and hit his head at work. He
suffered depression and a pre-existing skin disease flared up, not because
of the original injury “but from his anger at the happening of the
accident” (lack of apology or support following the accident, and failing
to prevent the accident when warned of the danger).
Held: C was entitled to compensation for the consequences of the
accident and not just for the physical injuries. C’s anger was neither
de minims nor an intervening act.
C was “a
primary victim” according to the classification in
Page v Smith  HL.
A wrongdoer takes his victim as he finds him
Smith v Leech Brain & Co
Ltd  CA.
There must now be added these further qualifications:
(1) that a
defender is liable although the damage may be a
good deal greater in extent than was foreseeable, as he can
escape liability only if the damage can be regarded as
differing in kind from what was foreseeable:
Hughes v Lord Advocate (1963)
it is established that physical injury to the pursuer was foreseeable, it
is unnecessary to ask whether it was foreseeable that he would also suffer
psychiatric injury: Page v Smith 
The general rule is that it must be shown that the injury would not have
occurred but for the act or omission of the defender.
But if a number of factors contributed to the injury it is sufficient that
the contribution which the factor attributable to the defender's fault
made to the injury was material: Wardlaw v
Bonnington Castings Ltd  HL.
Smith v Leech Brain & Co (1962) QBD
[Tort – negligence - foreseeability of damage - application of the 'thin
skull rule' is an exception]
D the employers of a workman who was slightly
splashed by molten metal through his employers' negligence and suffered a
burn on his face. The burn aggravated a pre-existing cancerous condition
and the man died. C his widow sued.
Held: "injury to the person" was regarded as a single kind of
damage and some minor injury at least was foreseeable.
tortfeasor took his victim as he found him, and the decision in
The Wagon Mound did
not override this principle; accordingly, since the type of injury which
the workman suffered was reasonably foreseeable, defendants were liable
for damages claimed, although they could not reasonably have foreseen the
ultimate consequences of the initial injury, viz, that the burn would
cause cancer from which S would die.
Spartan Steel v Martin  CA
^[Tort – negligence - damage
– public policy]
DD While digging a trench negligently cut off the
electricity supply to PC’s steelworks.
Held: the value of the "melt" that was ruined by the power cut,
including the profit directly associated with it was allowed.
However, C did not succeed for loss of profits on four further melts that
could have been completed during the period that the supply was cut off.
The reason was probably the fear of opening the floodgates to many similar
claims if a contractor severed the power supply to a whole estate or even
a small town.
There is no principle of ‘‘parasitic’’ damages in English law to the
effect that there were some heads of damage which, if they stood alone,
would not be recoverable, but would be if they could be annexed to some
other claim for damages, i.e., that the economic loss in respect of the
four ‘‘melts’’ was recoverable as a ‘‘parasite’’ by being attached to the
claim in respect of the first ‘‘melt.’’
Lord Denning MR:
At bottom I think the
question of recovering economic loss is one of policy.
Whenever the courts draw a line to mark out the bounds of duty,
they do it as a matter of policy so as to limit the responsibility of
the defendant. Whenever the
courts set bounds to the damages recoverable--saying that they are, or
are not, too remote--they do it as matter of policy so as to limit the
liability of the defendant.
The differences which undoubtedly exist between what damage can be
recovered in one type of case and what in another cannot be reconciled
on any logical basis. I
agree with Lord Denning MR that such differences have arisen because of
the policy of the law. Maybe
there should be one policy for all cases; the enunciation of such a
policy is not, in my judgement, a task for this court.
Stovold v Barlows  CA
[Tort - damage causation and remoteness - multiple
causes - damages - causation of loss - action taken by third party ]
D solicitors negligently failed deal with the sale of C's house, and the
sale fell through. D had failed to deliver documents on time.
Held: The purchaser
might have preferred the house he actually bought even if the documents
had been sent promptly and, so, the 'loss of chance' would be assessed at
50 per cent.
On the question of causation
where the loss depended upon the action of a third party, the correct
approach is to evaluate the loss of the chance of the sale going ahead as
a result of the defendants’ negligence.
Thompson v James (1998) CA
[Tort – negligence – causation - intervening events]
D a doctor advised C, the parents of a child not to
have a measles vaccination. Child caught measles and suffered brain
damage. Child’s history suggested
to D that immunisation would be more harmful
than to most children.
Held: There was no doubt as to the existence of a duty of care, it
was not fair, just or reasonable to hold the defendant liable for the
general advice he had given to C’s parents.
The advice given by other doctors to whom C
had consulted was an intervening event.
It broke the chain of causation because the parents were not acting
on D’s advice.
It was not foreseeable that the defendant’s
failure to mention the alternative method of immunisation would have had a
significant influence on the decision, given that both the parents and the
defendant knew other doctors would be involved.
Overseas Tankship (U.K.) Ltd v Morts Dock and Engineering Co Ltd (The
Wagon Mound) 
[Tort - negligence - remoteness of damage -
type of damage foreseen]
D carelessly discharged oil from their ship, the
Wagon Mound, into
Harbour. The wind and tide carried the oil beneath C's wharf where welding
operations were being carried on by C's employees. After being advised
that they could safely weld, C's employees continued their work. Some 55
to 60 hours after the original discharge, molten metal set some waste
floating in the oil on fire. The flames quickly developed into a large
fire which severely damaged the wharf. The oil also inhibited the use of
Held: Damage to the wharf by
the pollution of C's slipways was foreseeable. Damage by fire was
not reasonably foreseeable. C was loath to admit the foreseeability of the
fire risk because it was their workmen who actually set the oil alight.
D not liable for the fire
but liable for the fouling
Liability turned on the question of whether
the risk of fire was foreseeable, since furnace oil has such a high
boiling point it is unlikely to catch fire under normal circumstances. In
Wagon Mound 1 and 2, the two sequential claimants argued the risks of fire
in opposite ways. Each of these diametrically different presentations of
the risk of fire was accepted by the very same court as equally true and
Wagon Mound 2
The Wagon Mound (No 2), Overseas Tankship (UK), Ltd v The Miller Steamship
  PC
[Tort - negligence - remoteness of damage -
type of damage foreseen]
D carelessly discharged oil from their ship, the
Wagon Mound, into
Harbour. The wind and tide carried the oil beneath a wharf where welding
operations were being carried on. After being advised that they could
safely weld, they continued their work. Some 55 to 60 hours after the
original discharge, molten metal set some waste floating in the oil on
fire. The flames quickly developed into a large fire which severely
damaged the ships owned by C.
Held: The damage was reasonably foreseeable (though admittedly very
small) and therefore not too remote. If some damage, even minor
damage, of a particular kind was foreseeable, then D would be liable for
all such damage irrespective of the foreseeability of its extent and its
immediate cause. The potential
consequences of that unlikely occurrence were so serious as to give rise
to a duty of care to avoid it.
Comment: C owner of the burned ship played no part in creating the
fire and thus proved that there is a positive, predicable risk that furnace oil might catch fire when spilled in a harbour.
C recovered damages based exclusively on the finding that the risk of fire
(for the same incident as The Wagon Mound 1) was greater than zero and D
should be held responsible for foreseeable risks.
”It follows that in their lordships' view the only question is
whether a reasonable man having the knowledge and experience to be
expected of the chief engineer of the Wagon Mound would have known that
there was a real risk of the oil on the water catching fire in some way:
if it did, serious damage to ships or other property was not only
foreseeable but very likely.”
In Wagon Mound 1 both C and D were eager to say that there was no
foreseeability of furnace oil catching fire in a harbour. D because he
would not be liable if there was no foreseeable risk and C because
otherwise their cause of action could be barred for contributory
negligence (it was a spark from their welding operations that set the fire
going). The court ultimately found that the risk of fire was zero and
denied recovery to C for fire damage because it was unfair to hold D
responsible for such unforeseeable harm.
“So if the [claimants] in the former case had set out to prove that
it was foreseeable by the engineers of the Wagon Mound that this oil
could be set alight, they might have had difficulty in parrying the
reply that then this must also have been foreseeable by their manager.
Then there would have been contributory negligence and at that
time contributory negligence was a complete defence in
New South Wales.”
Area Health Authority
– negligence – causation - proximate cause – the balance of probabilities]
D the hospital where C was born prematurely. D negligently gave C excess
oxygen. The catheter was twice inserted into his vein instead of his
artery. He developed an incurable eye condition.
Held: His blindness could have
been caused by any of half a dozen factors found in premature babies, of
which the hospital's admitted negligence was just one.
The combination of negligence and injury did not in itself create a
presumption of causation.
It was not for D to show an alternative cause but for C to show (on a
balance of probabilities) that the negligence had caused the damage, or
had at least materially contributed to it, and this he could not do.
C lost, a retrial ordered.
Disapproved Fairirchild v Glenhaven Funeral Services Ltd; Fox v Spousal (Midlands) Ltd; Matthews v Associated
Portland Cement Manufacturers (1978) Ltd