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Test of Directness in Torts


By: Robin Pandey                                                                                             Date: 13/03/2022

Legal Position between 1921 and 1961: (The old law): (Test of directness): The test of directness was for the first time applied in Smith v. London Railway Co. (1870). In this case the servants of the Railway Company, after cutting hedges and grass, negligently left it near the railway line during dry weather. Spark from the railway engine set fire to the heap of grass. Due to high wind, the fire was carried to the plaintiff's cottage which was burnt. The defendants were held liable for negligence of their servants even though they could not have foreseen the loss to the cottage of the plaintiff. Rejecting the test of reasonable foresight the Court observed: "Where there is no direct evidence of negligence, the question what a reasonable man might foreseen is of importance but when it has been once determined that there is evidence of negligence, the person guilty of it is equally liable for its consequences, whether he would have foreseen them or not; because consequences which directly follow a wrongful act are not too remote.”

The test of directness was finally established in the Re Polemis Case (1921). The Court of Appeal rejected the supposed rule that a wrong doer is only responsible for the natural and probable consequences of his act. The Court held that the probability of evil consequences is a test of whether the defendant was negligent or not; but if he was negligent, he is liable for all the direct physical consequences whether probable or not. In this case the defendants had chartered plaintiff's ship, the Polemis, to carry a cargo which contained a quantity of Benzene or petrol. Some of the petrol cases leaked on the voyage and there was petrol vapour in the hold. While shifting some cargo at a port, the stevedores employec, by the chatterers negligently knocked a plank out of a temporary staging erected in the hold, so that the plank fell into the hold and struck something causing a spark which ignited the petrol vapour and consequently the vessel was completely destroyed. It was held that as the fall of the board was due to the negligence of the charter's servants, the charters were liable for all the direct consequences of the negligent act even though such a loss could not have been reasonably foreseen. Thus according to this case,  Scrutton. L.J., said, once the wrongful act is established, the defendant will be liable for the damage which "is in fact directly traceable to the negligent and not due to independent causes having no connection with the negligent act.

The 'direct cause' was interpreted by the House of Lords in Liesbosch Dredger v. Edison. (1933), which had the effect of limiting the scope of the Polemis Case. In that case, owing to the negligence of Edison, the dredger Liesbosch was sunk. The owners of Liesbosch required it for the performance of a contract with a third party, but since they were too poor to purchase a new one, they hired one at an exorbitant rate. They sued the owners of Edison for negligence and their claim for compensation included: () the price of the dredger; and (ii) the hire charges which they had to pay from the date of the sinking to the date they could actually purchase a new dredger.

The House of Lords accepted their claim under the first head and allowed compensation equal to the market price of the dredger comparable to Liesbosch. As regards the second head of claim, the compensation allowed was for loss suffered in carrying out the contract with the third party from the date of the sinking of Liesbosch to the date when another dredger could reasonably have been put to work. Thus, the claim after the time when a new dredger could have been reasonably purchased and put to work was rejected. The reason why a new dredger could not be purchased by the plaintiffs was their poverty and the House considered the additional loss being due to the extraneous cause of poverty and as such too remote.

End of the Polemis rule: In the years after 1922 it appeared as if the Courts were trying to avoid a direct decision on the merits of Re Polemis by holding that there was no duty because the damage to this particular plaintiff was not reasonably foreseeable [as in Bourhill v. Young (1943)], or that the defendant, although under a duty to take care, had observed the requisite standard in the particular case [as in Woods v. Duncan (1946). In the Wagon Mound Case (1961), which is now the leading authority on remoteness of damage, the Privy Council held that the "rule" in the case (that a defendant was to be liable for all the direct consequences of his/her actions) was wrong, because, if it were right, it would mean that a defendant could be liable even for damage that could not be reasonably foreseen. Such a proposition could not be reconciled with important cases that had been decided after the Re Polemis, not least of which was Donoghue v. Stevenson, (1932). After describing the rule in the Re Polemis as irrelevant and strange their Lordship said: "After the event even a fool is wise. Yet it is not the hindsight of a fool, but it is the foresight of a reasonable man which alone can determine responsibility." Thus, foreseeability ultimately becomes the effective test.


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