(b) Just as in contract law, the position in negligence is that the person ultimately liable in damages is only responsible to the extent that the loss sustained was considered not to be too remote.
The test for remoteness was established in The Wagon Mound (No 1) (1961). The defendants negligently allowed furnace oil to spill from a ship into Sydney harbour, which subsequently caused a fire, which spread to, and damaged, the plaintiff’s wharf. Although the defendants were held to be in breach of their duty of care, they were only liable for the damage caused to the wharf and slipway through the fouling of the oil. They were not liable for the damage caused by fire because damage by fire was at that time unforeseeable (the oil had a high ignition point and it could not be foreseen that it would ignite on water).
The test of reasonable foresight arising out of The Wagon Mound clearly takes into account such things as scientific knowledge at the time of the negligent act. The question to be asked in determining the extent of liability is, ‘is the damage of such a kind as the reasonable [person] should have foreseen?’ This does not mean that the defendant should have foreseen precisely the sequence or nature of the events.
This is illustrated in the case of Hughes v Lord Advocate (1963), where employees of the Post Office, who were working down a manhole, left it without a cover but with a tent over it and lamps around it. A child picked up a lamp and went into the tent. He tripped over the lamp, knocking it into the hole. An explosion occurred and the child was burned. The risk of the child being burned by the lamp was foreseeable. However, the vaporisation of the paraffin in the lamp and its ignition were not foreseeable. It was held that the defendants were liable for the injury to the plaintiff. It was foreseeable that the child might be burned and it was immaterial that neither the extent of his injury nor the precise chain of events leading to it was foreseeable. |
