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EXTRA-CONTRACTUAL OBLIGATIONS/TORTS 2002-2003 Prof. LARA KHOURY - page 51 / 64

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McGill Faculty of Law: Extra-Contractual Obligations/Torts: Prof. Lara Khoury, 2002-03/Summary by Derek McKee

Civil law uses the criterion of directness: This has been codified in (a.1607): The damage must be the “immediate and direct consequence” of the fault.

Early 20th-century common law used directness too.

In re Polemis and Furness, Withy & Co., [1921] 3 K.B. 560 (C.A.). (CB2p133)

Jurisdiction

England

Facts

Polemis chartered the steamship Thrasyvoulos to Furness. Furness’s employees were loading metal planks onto the ship by dropping them from a crane. One of them created a spark which caused a fire.

Issues

Was the dropping of the metal planks the cause of the fire?

Holding

Yes.

Ratio

The fact that some kind of damage was foreseeable was enough to establish fault. Causation was established because the damage was the direct consequence of the fault. For the purposes of causation, it did not matter that the particular type of damage was not foreseeable.

Comments

This test was criticized in Wagon Mound 1.

Overseas Tankship v. Morts Dock & Eng. (Wagon Mound 1), [1961] AC 388 (PC). (CB2p134)

Jurisdiction

Australia

Facts

The crew of a ship, the Wagon Mound, carelessly spilled a large volume of furnace oil into Sydney Harbour. The oil surrounded the docks belonging to Morts, where two ships were undergoing repairs including welding. When the manager of the repairs saw the oil, he stopped the work, but resumed it when he was told that furnace oil was extremely hard to ignite. Two days after the spill, the oil was ignited, presumably by a piece of hot metal from the welding hitting some debris under the dock, which then set fire to the oil. The docks were badly burned.

Issues

Was the Wagon Mound’s fault in spilling furnace oil the cause of the fire?

Holding

No.

Ratio

Although the spilling of the oil was the direct cause of the fire, it was not foreseeable that such a spilling would cause a fire. Viscount Simonds overturned Polemis and wrote, “…it does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct.’”

Comments

It’s strange how the Wagon Mound owners were found liable to the ship owners (in Wagon Mound 2), but not to the dock owners (in this case!)

Directness v. Foreseeability

How flexible are the directness and foreseeability tests? Does “directness” give judges the discretion to shape liability however they want? Common law and civil law doctrine have both criticized directness. Civil law critics have said that whether it’s direct depends on a judge’s feeling.

However, foreseeability is also a flexible test. The jurisprudence that followed Wagon Mound 1 is inconsistent. What exactly must be foreseen?

It appears to be sufficient to prove that the plaintiff suffered a kind of damage that was foreseeable—it doesn’t matter if you didn’t foresee the manner in which the damage arose.

Hughes v. Lord Advocate, [1963] A.C. 837 (H.L.). (CB2p151)

Jurisdiction

England

Facts

Two telephone workers took a tea break, leaving four paraffin lamps around their tent over an open manhole. Two boys, aged eight and ten, took one of the paraffin lamps and went to explore the manhole. They dropped the lamp into the manhole; some paraffin leaked from it, causing an explosion which badly burned one of the boys.

Issues

Was the telephone workers’ fault in leaving the manhole and lamps unattended the

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