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  • Subject area(s): Engineering
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  • Published on: 7th September 2019
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This assignment will examine the approach of the Irish Superior Courts has taken regarding remoteness in light of the statement by Viscount Simonds in Overseas Tankship (UK) Ltd. v Morts Dock and Engineering Co. Ltd. (The Wagon Mound No 1), stating, “The authority in Polemis has been severely shaken...In their Lordship’s opinion, it should no longer be good law.” Remoteness will also be considered in other areas where liability is a factor.


To determine remoteness, the issue of causation should be established to show that the defendant had a duty of care which they breached either intentionally or unintentionally. The factual and legal causes must be identified to eliminate all irrelevant possible defendants. The factual cause is based on a factual or scientific examination of the actions of the defendant that can be related to the plaintiff’s injury. There must be a link between the actions and the injury for liability to arise, however, factual liability alone is not sufficient enough to impose ultimate liability. The ‘but for’ test is used to distribute responsibility in cases where only one major cause can be established. The question asked is ‘but for the action of the defendant’s would the injury have arisen?’ An example of such a case can be seen in Barnett v Chelsea and Kensington Hospital Management Committee , where the plaintiff’s husband was turned away from hospital without a proper examination by a doctor, later dying from arsenic poisoning. The court found that the plaintiff’s husband would have died anyway, therefore, the hospital was not responsible or liable. In more complex cases, the ‘but for’ test is considered insufficient, especially in cases of various potential causes.

The approach practiced to identify legal cause is legal principle, used in cases of uncertain cause(s) which require a value judgement rather than scientific assessment to ascertain where liability will reside. Causation may be complex to prove where there is more than one possible cause. Numerous formulations have developed to aid in the difficulty of proving causation in these circumstances such as successive or concurrent cause. An example of such is the case of Performance Cars Ltd v Abraham , where the defendant hit the plaintiff’s car causing damage and requiring a respray but two weeks previous to this incident the plaintiff’s car was involved in a similar incident by a negligent driver which the damage also required a respray. The respray from the first incident had not occurred, the plaintiff sought damages from both parties. The court held the defendant in the second incident was not liable for the plaintiff’s car respray as it already required a respray and was only liable for the additional damage.

Novus actus interveniens is one way to disqualify a factual cause from the case, where an intervening act will absolve the defendant from liability. This type of act can be brought about by a third party or an independent act. A clear case of an intervening act breaking the chain of causation can be seen in Breslin v Corcoran and MIBI , the defendant left his car unlocked with the keys in the ignition outside a busy shop in Dublin. The car was subsequently stolen and struck the plaintiff. The court found that the defendant was careless but Butler J. had no doubt that the chain of causation had been clearly broken, although the defendant could have foreseen the car being stolen, he could not have foreseen the reckless driving of the third party that stole the car.


As previously noted, factual and legal cause had to be examined in order to explore remoteness as remoteness is possibly included under the term ‘legal cause’. Remoteness deals with the limitation of liability for damage incurred by a defendant when a breach of duty has occurred. This is a test of whether the defendant could have reasonably foreseen the risk at the time of the breach of duty. In Ireland, remoteness is used to determine the amount of responsibility the defendant is liable for. A defendant is always liable for damages caused intentionally however unlikely the resulting damage. There are two basic common law approaches of remoteness, ‘direct consequences’ and ‘reasonable foresight’ that were debated but ultimately resolved in the landmark decision of the Court of Appeal in Re Polemis and Furness, Withy & Co Ltd . The direct approach applies full liability if the damage directly resulted from the defendants actions, where the reasonable foresight suggests liability should only be attached where damage was foreseeable. In the case of Re Polemis, Furness chartered the Polemis to carry a cargo of petrol and benzene. While discharging, a heavy plank fell into the hold and caused an explosion, which eventually destroyed the ship. The falling of the plank was due to defendant’s negligence. This case was to be settled by an arbitrator but the defendant argued that the damages were too remote and appealed the issue. The court dismissed the appeal with Bankes LJ stating ‘it is immaterial that the causing of the spark by the falling of the plank could not have reasonably been anticipated’ adding, ‘given the breach of duty which constitutes negligence and given the damage as a direct result of that negligence, the anticipations of the person whose negligent act has produced the damages appears to me to be irrelevant.’ This is a case that clearly shows that the direct consequences approach was used, a defendant is liable for all consequences of his actions up to the point of novus actus interveniens or proof of a pre-existing cause in addition to the defendant’s actions. This approach was adopted by the English courts for decades until the case of Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound)  where the Privy Council rejected the approach. This case introduced foreseeability as a basis to evaluate whether liability should affix to the outcome of the defendant’s negligence. The premise behind this approach is that the extent of the outcome cannot always be foreseen, so even though negligence is present, a defendant cannot be liable for all unforeseeable risks.

The above mentioned case, the Wagon Mound No. 1, is a case where a ship loading oil spilled some in to the Sydney Harbour which flowed to a nearby wharf where other ships were undergoing repairs. The oil ignited, possible from the welding causing extensive damage to the docks and the ships harboured there. The court found the defendants not to be liable even though they were negligent and the fire was a direct consequence of their actions because they could only be held liable for the foreseen damage. Due to the high temperature required to ignite the oil, foreseeability could not be extended to setting the harbour on fire. Viscount Simonds stated, ‘their Lordships...have been concerned primarily to displace the proposition that unforeseeability is irrelevant if damage is direct. In doing so, they have inevitably insisted that the essential factor in determining liability is whether the damage is of such a kind as the reasonable man should have foreseen.’  However, in the case of Wagon Mound No. 2, taken by the owner of a ship damaged in the fire, arguing new evidence that the chance of the oil igniting was foreseeable, the court found the defendant liable.

The Irish Courts

One year on from the Wagon Mound No. 1 case, the Irish courts adopted a similar premise in the case of O’Mahony v Ford  declining the plaintiff’s claim for a type of injury unforeseeable although other injuries that did not occur were foreseeable. The decision in the Wagon Mound case has continuously been approved by the Irish courts and provides a correct approach to remoteness in negligence cases. The decision in Carey v The Cork Consumer Gas Company also applied the foreseeability of damage rule. The plaintiff brought a claim against the defendant after he contracted a disease due to repeated exposure to silica dust, the defendants were held not liable although the injury was a direct consequence of the inhalation of the silica dust. The court found the injury itself was unforeseeable as it was an uncommon disease and exposure to the silica dust was limited.

In Purtill v Athlone , the Supreme Court dealt with a claim from a young boy injured from an activity at an abattoir. At the time, many young boys would often go to the abattoir to witness the slaughtering of animals by a pistol-like instrument and detonators. The gate and door to the abattoir were always open and the young boy on many occasions took detonators from the abattoir to explode in his back garden or shed. On one occasion, the detonator exploded and the young boy was injured, losing his eye. The young boy sued the abattoir for negligence, the abattoir claiming he was a trespasser and they owed no duty of care to the young boy. The abattoir also claimed the young boy was guilty of contributory negligence and the injury was too remote to be foreseen. The court rejected the claim of trespass and examined the issues of proximity and foreseeability. The Supreme Court found the relationship to be proximate due to the frequency that the young boys entered the abattoir and that the damage could have been foreseen given the ease of entry to the abattoir to take the detonators. Walsh J, stated that “When the danger is reasonably foreseeable, the duty to take care to avoid injury to those who are proximate, when their proximity is known … is based upon the duty that one man has to those in proximity to him to take reasonable care that they are not injured by his acts.”

In a similar case heard before the Irish courts, McNamara v ESB , a young boy injured when entering an ESB substation that was fenced off by wire meshing and barbed wire. There were easily reachable uninsulated conductors at the ESB substation and that was the reason for the barbed wire at the top of the wire meshing where the accident took place. At the time the ESB were aware that children were entering the substation and experts hired by the plaintiff, an architect and an engineer heavily criticised the temporary fence, therefore, the court found the ESB liable for damages on the basis of proximity and foreseeability. These cases suggest the approach held by the Irish court after the controversial decision in Re Polemis was overturned by the decision in the Wagon Mound case where foreseeability of damage is the main rule even if damages are remote.

Remoteness in Concurrent Liability Cases

There is a variation between tests of remoteness of damage in tort and contract. The courts apply the legal principle to determine the level of responsibility the defendant has on the plaintiff’s loss. The test is broader in tort as there would be no recourse for a plaintiff to protect themselves without directing to the risk in advance. Unlike in contract, where a loss can only be claimed if it was considered at the time the contract was entered and the parties having the opportunity to bring attention to any irregular risks and take protective measures to these areas. This was confirmed by the courts in the recent case of Wellesley Partners LLP v Withers LLP , where the remoteness test applied to both contractual and tortuous duties, stating, the contractual test as more restrictive, “reasonable completion” and the tortuous test as less restrictive, “reasonable foreseeability”. The claim in this case referred to a mistake made by Wellesley’s solicitor Withers when drawing up a partnership agreement, allowing Wellesley’s new partner to exit the contract sooner than Wellesley requested the solicitor to include in the agreement. Wellesley claimed to have lost a £6 million contract. A solicitor has a duty of care to their clients to exercise reasonable care and thus, if fails, are liable in contract and in tort unless expressly excluded. Withers argued the £6 million contract loss was too remote if the contractual test was applied but the court decided to apply the tortuous test of remoteness finding in favour of Wellesley. Withers appealed this decision to the Court of Appeal , Floydd LJ stating, “where, as in the present case...contractual and tortuous duties to take care in carrying out instructions exist side by side, the test for recoverability of damage for economic loss should be the same, and should be the contractual one.” The court found the contract loss too remote even though they applied the more restrictive “reasonable contemplation” test.  

Egg-Shell Skull Rule

This principle, take the victim as you find them, asserts that no matter what weakness a victim may have the negligent party is still liable. The well-known case of Smith v Leech, Brian & Co Ltd  confirmed that the rule survived after the Wagon Mound case. The plaintiff brought a claim against the defendant for the death of her husband. The plaintiff’s husband suffered a burn to his lip from a piece of molten metal due to the negligence of the defendant while employed by him. He had a pre-existing condition due to previous employment where his lip was in a pre-malignant condition. Due to the burn from the molten metal, the plaintiff’s husband developed cancer that led to his death. The court found in favour of the plaintiff’s claim. Lord Parker CJ stating, ‘The test is not whether these employees could reasonably have foreseen that the burn would cause cancer and that he would die. The question is whether these employees could reasonably foresee the type of injury he suffered, namely the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends on the characteristics and constitution of the victim. Accordingly, I find that the damages which the widow claims are damages for which the defendants are liable.’

The Irish Supreme Court approved of this decision citing it in Burke v John Paul & Co Ltd  with Budd J stating that he would ‘entirely adopt the reasoning of Lord Parker’. This was a case where the plaintiff claimed damages for a hernia which he developed during employment by the defendant due to the bluntness of the cutting equipment provided which required the plaintiff to use additional effort. The defendants argued that the injury was a result of a congenital defect and could not have been foreseen. The High Court agreed with the defendant but the Supreme Court ordered a retrial. Budd J delivered the only judgement, which was in agreement with the plaintiff that the injury suffered was foreseeable and found the defendant liable.


It is evident from the cases above that the Irish courts adopted the foreseeabaility principle in light of the statement by Viscount Simonds in Overseas Tankship (UK) Ltd. v Morts Dock and Engineering Co. Ltd. (The Wagon Mound No 1).  The case of O’Mahony v Ford , one year on from the Wagon Mound case, where the Irish courts declined the plaintiff’s claim for a type of injury unforeseeable was a prime example of the courts agreeing with Viscount Simonds with regards to Polemis on foreseeability when he stated “In their Lordship’s opinion, it should no longer be good law”.

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