FROM THE SUPREME COURT OF NEW SOUTH WALES Are you the Miami Volunteer Fire Department Fire Chief? It is true that in that case the Lord Justice was dealing with damages for breach of contract. It has never been subject to the express scrutiny of either the House of Lords or the Privy Council, though there have been comments upon it in those Supreme Tribunals. Of what relevance is it to that claim that he has another claim arising out of the same careless act? To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. The fact of the case: “Wagon Mound” actually is the popular name of the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961). at p. 258 is particularly valuable and interesting. The fire spread rapidly causing destruction of some boats and the wharf. In the course of repairs, the respondents work This is the old version of the H2O platform and is now read-only. This appeal is brought from an order of the Full Court of the Supreme Court of New South Wales dismissing an appeal by the appellants, Overseas Tankship (U.K.) Ltd" from a judgment of Mr. Justice Kinsella exercising the Admiralty Jurisdiction of that Court in an action in which the appellants were defendants and the respondents Morts Dock & Engineering Co, Ltd. were plaintiffs. In other words, if it is foreseeable that the claimant will suffer a particular injury (e.g. Co. Ltd., also popularly known as the Wagon Mound Case. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour. In Case of an Emergency, call 9-1-1. This appears to be in flat contradiction to the rule in Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens. Of these, three are generally regarded as having influenced the decision. ... Who knows or can be assumed to know all the processes of nature? The relevant facts can be, comparatively shortly slated inasmuch as not one of the findings of fact in the exhaustive judgment of the learned trial Judge has been challenged. Next, one of many cases may be cited which show how shadowy is the line between so-called culpability and compensation. Duncan. It is proper to add that their Lordships have not found it necessary to consider the so-called rule of "strict liability" exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. During the early hours of the 30th October, 1951, a large quantity of bunkering oil was through the carelessness of the appellants' servants allowed to spill into the bay and by 10:30 on the morning of that day it had spread over a considerable part of the bay, being thickly concentrated in some places and particularly along the foreshore near the respondents' property. Here there is no suggestion of one criterion for determining culpability (or liability) and another for determining compensation. In doing so Mr. Justice Manning after a full examination of that case said "To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to apply the decision in In re Polemis with any degree of confidence to a particular set of facts would be a grave understatement. Morts owned and operated a dock in Sydney Harbour. It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. 784. The oil I can only express the hope that, if not in this case, then in some other case in the near future the subject will be pronounced upon by the House of Lords or the Privy Council in terms which, even if beyond my capacity fully to understand, will facilitate for those placed as I am, its everyday application to current problems." It is not the act but the consequences on which tortious liability is founded. As Lord Denning said in King v. Phillips [1953] 1 Q.B. The Wagon Mound Case In this case, the appellants’ vessel was taking oil in Sydney Harbor at the Caltex wharf. The Wagon Mound (No 1) should not be confused with the successor case of the Overseas Tankship v Miller Steamship or "Wagon Mound (No 2)", which concerned the standard of the reasonable man in breach of the duty of care. Lord Wrenbury (the third of the majority) summed up his view of the case by saying : "I am quite unable to follow the proposition that the damages given in the libel actions are in any way damages resulting from anything which Stephens did in breach of duty." Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, commonly known as Wagon Mound (No. Explain with cases, the liability of the Master for the acts of the servant, done during the course of his employment. Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951. 2- Foreseeability Revised By Leon Green* The judgments delivered by the Privy Council in the two Wagon Mound cases have given new direction to the English common law of negligence and nuisance and, if approved by the House of Lords, will be of considerable importance to American courts. An attempt was made before their Lordships' Board to limit in some way the finding of fact but it is clear that it was intended to cover precisely the event that happened. Some hours later much of the oil had drifted to and accumulated on Sheerlegs Wharf and the respondent’s vessels. In the same connection may be mentioned the conclusion to which the Full Court finally came in the present case. The validity of a rule or principle can sometimes be tested by observing it in operation. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. But, it is said, a different position arises if B's careless act has been shown to be negligent and has caused some foreseeable damage to A. Stated differently, foreseeability was the logical link between, and the test for, breach of the duty of care and the damages. For, if some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible - and all are 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 no-where but the never-ending and insoluble problems of causation. Wagon Mound Case: The Re-affirmation of the Test of Reasonable Foresight. LORD RADCLIFFE There the statement in Smith's case was followed, Sir Samuel Evans citing Blackburn J.: "What the defendants might reasonably anticipate is only material with reference to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty of negligence." It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. 5. It may, of course, become relevant to know what duty B owed to A, but the only liability that is in question is the liability for damage by fire. Before turning to the cases that succeeded it, it is right to glance at yet another aspect of the decision in Polemis. You can help us to keep this page up to date: In Glasgow Corporation v. Muir [1943] A.C. 448 at p. 454 Lord Thankerton said that it had long been held in Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of the failure to take care judged by the standard of the ordinary reasonable man, while Lord Macmillan said that "it is still left to the judge to decide what in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen." Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. Thank you. Here was the opportunity to deny the rule or to place it secure upon its pedestal. The" Wagon Mound" unberthed and set sail very shortly after. And Kennedy L.J. This means you can view content but cannot create content. In the case of the "Liesbosch" [1933] A.C. 448 the appellants whose vessel had been fouled by the respondents, claimed damages under various heads. The case arose out of a charter partly and went to arbitration under a term of it and the first contention of the charterers was that they were protected from liability by the exception of fire in the charter party. The Council decided that rather than go with precedent (authority) they would determine a principle from a range of cases, in a similar way as Lord Atkin did in Donoghue v Stevenson, and their principle was primarily a single test for foreseeability which they argued was a logical link between the damage and the liability (culpability). Thus foreseeability becomes the effective test. The defendant was held not to be liable. He gave instructions accordingly but directed that all safety precautions should be taken to prevent inflammable material falling off the wharf into the oil. Spread led to MD Limited’s wharf, where welding was in progress. Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) Also known as: Morts Dock & Engineering Co v Overseas Tankship (UK) Ltd Privy Council (Australia) 18 January 1961 Case Analysis Where Reported [1961] A.C. 388; [1961] 2 W.L.R. The Lords gave Morts the opportunity to sue in nuisance but there is no record of them testing this action in that tort. Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. 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. LORD REID The judgment of Bovill C.J. 66 at p. 85) to say that foreseeability is only disregarded when the negligence is the immediate or precipitating cause of the damage. Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd,[1] commonly known as Wagon Mound (No. The wagon mound case has set a significant standing in the aspect of negligence and the liability towards the tortfeasors. The Wagon Mound (a ship) docked in Sydney Harbour in October 1951. Privy Council Appeal No. Lord Sumner, whose speech their Lordships, like others before them, have not found all respects easy to follow, said : "What a defendant ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty of negligence, that is. The Privy Council's advice soundly disapproved the rule established in Re Polemis, as being "out of the current of contemporary thought" and held that to find a party liable for negligence the damage must be reasonably foreseeable. But it is far otherwise. Contributory negligence is now essential for many determinations and are covered by statutes such as the Civil Liability Act (1936) South Australia which has more recent counterparts in a number of jurisdictions including New South Wales. It may however be observed that in the proceedings there was some confusion. It is a departure from this sovereign principle if liability is made to depend solely on the damage being the "direct" or "natural" consequence of the precedent act. Overseas had a ship called the Wagon Mound, which negligently spilled oil over the water. They did not indicate what damage might have been so anticipated. 537 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd. [1949] 2 Q.B. It was not necessary to argue this question and it was not argued. ... Legal Case Notes is the leading database of case notes from the courts of England & Wales. The Privy Council[2] held that a party can be held liable only for loss that was reasonably foreseeable. The outbreak of fire was due, as the learned Judge found, to the fact that there was floating in the oil underneath the wharf a piece of debris on which lay some smouldering cotton waste or rag; which had been set on fire by molten metal falling from the wharf that the cotton waste or rag burst into flames; that the flames from the cotton waste set the floating oil afire either directly or by first setting fire to a wooden pile coated with oil; and that after the floating oil became ignited the flames spread rapidly over the surface of the oil and quickly developed into a conflagration which severely damaged the wharf. It was repeated by Lord Sumner in the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens [1920] A.C. 956 at p. 983. To Lord Russell of Killowen in the same case the test of liability was whether the defendants (Cammell Laird & Co. Ltd.) could reasonably be expected to foresee that the choking of a test cock (itself undoubtedly a careless act) might endanger the lives of those on board; Lord Macmillan asked whether it could be said that they, the defendants, ought to have foreseen as reasonable people that if they failed to detect and rectify the clogging of the hole in the door the result might be that which followed, and later, identifying, as it were, reasonable foreseeability with causation, he said : "the chain of causation, to borrow an apposite phrase, would appear to be composed of missing links.". The special case submitted by the arbitrators found that the causing of the spark could not reasonably have been anticipated from the falling of the board, though some damage to the ship might reasonably have been anticipated. There was no evidence that the defendant knew of the grating being obstructed. On the other hand, having regard to the course which the case has taken, they do not think that the respondents should be finally shut out from the opportunity of advancing this plea, if they think fit. Even in the inferior courts judges have, sometimes perhaps unwittingly, declared themselves in a sense adverse to its principle. It is doubtful whether In re Polemis and Furness Withy & Co. can survive these decisions. We handle personal injury cases such as car accidents, truck accident, motorcycle accident and auto accident. (as he then was) said: "Foreseeability is as a rule vital in cases of contract; and also in cases of negligence, whether it be foreseeability in respect of the person injured as in Palsgref v. Long Island Rly. affirmed (stating it to be his own view only and not that of the court) that he entertained "considerable doubt whether a person who is guilty of negligence is responsible for all the consequences which may under any circumstances arise and in respect of mischief which could by no possibility have been foreseen and which no reasonable person would have anticipated." There Viscount Simon analysed the conditions of establishing liability for negligence and stated them to be (1) that the defendant failed to exercise due care (2) that he owed the injured man the duty to exercise due care, and (3) that his failure to do so was the cause of the injury in the proper sense of the term. When molten metal dropped by Mort’s workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly damaged. It would perhaps not be improper to say that the law of negligence as an independent tort was then of recent growth and that its implications had not been fully examined. They have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is "direct." [3] Facts. Here all the elements are blended, "natural" or "ordinary consequences," "foreseeability," "proximate cause." This consideration may play a double role. In reasserting this principle their Lordships conceive that they do not depart from, but follow and develop, the law of negligence as laid down by Baron Alderson in Blyth v. Birmingham Waterworks Coy (1856) 11 Ex. A large quantity of furnace oil was released into the harbour as a result of the carelessness of OT’s employees. The Wagon Mound principle. The defendants, charterers of the as. Their Lordships will humbly advise Her Majesty that this appeal should be allowed and the respondents' action so far as it related to damage caused by the negligence of the appellants be dismissed with costs but that the action so far as it related to damage caused by nuisance should be remitted to the Full Court to be dealt with as that court may think fit. He also made the all important finding, which must be set out in his own words. Yet this is just what he has most unfortunately done and must continue to do if the rule in Polemis is to prevail A conspicuous example occurs when the actor seeks to escape liability on the ground that the "chain of causation" is broken by a "nova causa" or "novus actus interveniens.". After the event even a fool is wise. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that followed it that the Full Court was constrained to decide the present case in favour of the respondents. 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