Introduction:
Before getting into climax, first and foremost we need to understand the difference between law and justice. Law is very clear while justice depends upon the use of that law. Law says you do these things or don’t do these things if you don’t obey you are backed by sanctions. But, justice is fluid, not rigid, this depends on the type of circumstances and the facts. E.g., an offender might be punished for less sentence than he deserves, then we can see justice is absent but the law is applied. Law of tort originated from the UK’s common law and it says – “where there is an infringement of right of person or harm caused, there is always liability of the defendant.” There is a famous legal maxim – ‘Injuria non remota causa sed Proxima spectator’ which means the immediate and not remote cause of the event is to be considered.
A wrongful event may cause a single consequence or multiple i.e., series of consequences. The results of a wrongful act may be endless. But, the defendant should not be liable for remote consequences. If the tortfeasor is held liable for all consequences of his wrongful act, then it will manifest injustice. The remoteness of damages is used to investigate the chain of causation and reasonable charges the defendant accordingly. In this process, the elimination of claims of remote causes is done. Exception to it is when the court finds a mens rea in the act of the defendant. Then the question arises, if the event was foreseeable then the defendant should be held liable completely or partially or not even held liable. What are the tests to decide the remoteness of an event? We will explore what are ideal factors required for an unforeseeable event in this principle. In this research, we will explore the principles through common law and case laws of foreign and domestic territories.
Brief History
Before 1850, there was a theory that explains the test of remoteness foreseeability by checking that the consequences were too remote if a reasonable man would not have foreseen them. Another theory was directness which in name itself describes whether the event was foreseen or not, the defendant is liable for all. The courts till 1850 relied upon the saying – “He that does the first wrongs shall answer for all consequential damages.”
Who is Liable?
In 1773, the famous English case Scott v. Shepherd[1] , also known as SQUIB CASE. Here, A threw a lighted squib into a crowd. It fell on X. who threw it further, It fell on Y who threw it away. It fell on B, exploded and blinded one eye. Held, A was liable to B. Though X and Y had intervened, A’s act was the Causa Causans. The defendant pleaded novus actus interveniens but the court rejected this defense. The root cause was A here and held liable.
Later, in the case of Haynes v. Harwood,[2] The defendant’s servants negligently left a house van unattended in a crowded street. At the same time, children started throwing stones on horses and made them full of anger. Policeman to rescue the children and the woman, faced multiple injuries. The defense counsel argued on the remoteness of consequences. The policeman got injured because the small children made horses to behave violently. Thus the court observed that the act of children was a proximate cause and the act of the defendant’s servant was the remote cause.
In Hughes v. Lord Advocate[3], the post office employees opened a manhole and left it unattended in the evening. Then the manhole was surrounded by paraffin lamps. An eight-year-old boy took one of the lamps into the shelter and was playing with it when he lost his balance, he fell into the manhole. There was an explosion due to which the claimant himself fell into the manhole and sustained severe burn injuries. Explosion due to the paraffin lamp was an unforeseen one but there was duty associated with the post office employees. Court observed that the act of employees was a proximate cause and the act of the 8-year claimant was a remote cause. If the manhole wasn’t left unattended, then the whole accident could be prevented.
What is Remoteness?
In Oehler v. Davis[4] a dog collar manufacturer sold a defective dog collar. The collar broke, allowing the dog to escape its owner and bite a stranger. The court decided that the plaintiff had no cause of action against the dog collar manufacturer because the harm was too remote.
Similarly, in the 9 bench case of Waddah Mustapha v. Culligan of Canada[5], it was observed that personal injury to Mr. Mustapha was not reasonably foreseeable by the defendant at the time of alleged tort. And thus the appeal was dismissed by the court. In the case of Doughty v. Turner Manufacturing Company Ltd.[6], some workers inserted an asbestos cement coverslip into a cauldron of hot molten liquid. This resulted in the explosion and caused injury to the plaintiff, who was also a worker of the defendant. The Hon’ble court held that the whole incident was not foreseeable and the defendants were not liable. Though I disagree with the judgment to some extent as there was harm caused to the plaintiff, he is entitled to receive compensation. Every time looking whether the act was foreseen or not, Court should also look at the interests of victims of the accident. Also if the court tries to favor the plaintiff, this law will be a weapon and source of income by alleging false cases. I will reflect on the case of Lewis v. Kehoe[7], where a daycare center mistakenly or negligently allowed a child to consume poison. The daycare center was sued for bruises on a child which resulted in death. Later through investigation, the court came to know that the bruises on the child were due to child abuse. Defendant was not held liable because the cause was too remote.
The question is what kind of approach should the judgment should implement – Liberal or strict? In conclusion of all decisions and discretion of jury/judges in the cases, we can follow up two major test to determine the remoteness and proximate damage:
- Test of Reasonable Foresight
In the case of Overseas Tankship v. Morts Dock & Engineering Co., Ltd.[8] disagreed with the judicial principle of directness test given in Re Polemis case[9]. Privacy Council held that this test should be replaced with the view that if the court finds any unforeseeable element, the defendant should be freed.
Viscount Simond held at pg. 422-423 – “A man must be considered to be responsible for the probable consequences of his act. To demand more is too harsh or to demand less is to ignore that civilized order requires the observance of a minimum standard of behavior.”[10] This case laid down criteria – 1. Culpability – the damages should be determined only for harm caused by his act. 2. Remoteness – the court decides which damage caused is flung or unforeseen to determine the liability of the defendant. If the situation can’t be controlled by a reasonable man, then it is remote and vice versa. The rule is easy and rational to apply for this paradise and is free from subtitles of intervening causes.[11] This rule aligns with the current ideas of justice and morality.[12]
- Test of Directness
In Re Polemis case[13], a plank was negligently fallen and struck somewhere causing a spark. That fire burnt the ship. The House of Lords declared that fire was unforeseeable but the law of tort says if a breach of duty is found, liability coexists. Defendant was held fully liable because to some extent it was foreseeable on part of the worker. This test describes that a tortfeasor is responsible and held liable for all the consequences irrespective of proximate or remote cause to the happening of the event. This direct consequence test is unjust and has illogical conclusions.[14]
Indian Scenario for Test of Remoteness
Indian civil laws are mostly adopted from the common law. Also, a tort is a civil wrong, it becomes necessary to Indian courts whether to adopt the test of directness or reasonability. We need to understand that before bringing any foreign law or statute, it should not contradictory to existing laws. We should check whether there are decisions given by Hon’ble Courts in India regarding the same. We should pre-analyze or predict the problems the enaction or adoption of that particular statute or law can cope up with.
In the Indian case of Madappa v. K.Kariappa[15], the orange garden of the plaintiff was burnt out because of fire attracted from the adjacent burning of land owned by the defendant. Madras High Court expressed the view based on reasonable foresight test saying that the causing of fire was proximate and the defendant should set fire with reasonable precautions in his land. The defendant was held liable.
In another HC case of Veeran v. Krishna Moorthy[16], school students were waiting to cross a road. The defendant’s lorry was heading from behind the bus about 75-100 yards at 25-30 Km/h. Students were waiting for a bus to pass away. The students started crossing the road, one of them was injured by the lorry. The court held the defendant liable as they could have foreseen the cause of the accident. From the above two cases, we can easily interpret that India is adopting the rule of reasonable foresight in their judgments.
Conclusion
Imagine if there no such principles existed, it would be difficult for the court to give the verdict. The laws are not to suppress the wrongdoer and punish for consequences in which he played a very remote cause. It is to the discretion of judges what amount should be charged on defendants. Only because of the principle of reasonable foresight, the proper justice is served in society. I firmly like to reject the idea of directness test as it limits the scope of equity, justice and good conscience (not to forget all the three are sources of law). A wise man once said that – “Agar sau apradhi ko zhodh diye toh chalega lekin ek bekasoor Insan ko sajaa nahi milni chahiye.” The test of reasonable foresight fulfills those above lines. I think the remoteness of damages does not need to be evolved in contract law cases because the parties before agreement knows the risk of breach of contract. In torts, the case is different, here parties are stranger to each other. Before the wagon mound case, it was difficult and contradictory to the concept of justice. But, if there was no reform or introduction of the remoteness of damages, I believe the Indian judiciary could introduce it for the world and work for justice of people.
References:
[1] Scott v. Shepherd, (1773) 96 Eng. Rep. 525.
[2] Haynes v. Harwood , (1935) 1 K.B. 146.
[3] Hughes v. Lord Advocate, (1963) A.C. 837.
[4] Oehler v. Davis, 298 A.2d 895.
[5] Waddah Mustapha v. Culligan of Canada, (2008) 2 SCR 114.
[6] Doughty v. Turner Manufacturing Company Ltd., (1964) 1 Q.B. 518.
[7] Lewis v. Kehoe, 346 So.2d 289
[8] Oversees Tankship v. Morts Dock & Engineering Co., Ltd., (1961) AC 388.
[9] Re Polemis & Furness, Withy & Co. Ltd., (1921) 3 KB 560.
[10] Supra note 7 at p. 422-423.
[11] Williams, The Risk Principle, 77 L.Q.R. 179.
[12] Supra note 8 at 413-415.
[13] Supra note 9
[14] Supra note 8 at p.414.
[15] Madappa v. K. Kariappa, AIR 1964 Mys 80.
[16] Veeran v. Krishna Moorthy, AIR 1966 Ker 172.
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