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In the same connection may be mentioned the conclusion to which the Full Court finally came in the present case. They did not indicate what damage might have been so anticipated. in Greenland v. Chaplin which has already been read, said at p. 122 "I do not myself suppose that although, when these propositions were originally laid down, they were not intended as positive judgments but as opinions of the learned judge, there would be any doubt nowadays as to their accuracy." In the action the respondents sought to recover from the appellants compensation fm ,the damage which its property known as the Sheerlegs Wharf in Sydney Harbour and ,the equipment ,thereon had suffered by reason of fire which broke out on the 1st November, 1951. 577, nor to Cockburn C.J. Detailed case brief Torts: Negligence. This website uses cookies to improve your experience while you navigate through the website. Background facts. We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill v. Young. It is not easy to understand why a distinction should be drawn between "immediate physical" and other consequences, nor where the line is to be drawn. This is the old version of the H2O platform and is now read-only. After the event even a fool is wise. JUDGMENT OF THE LORDS OF THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL, DELIVERED THE 18TH JANUARY 1961. The falling board hit some substances in the hold and caused a spark; the spark ignited petrol vapour in the hold; there was a rush of flames and the ship was destroyed. You can access the new platform at https://opencasebook.org. The acceptance of the rule in Polemis as applicable to all cases of tort directly would conflict with the view theretofore generally held. This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with the single exception of the so-called rule in Polemis. The fire spread rapidly causing destruction of some boats and the wharf. The earliest in point of date was Smith v. London & South Western Railway Co. Law Rep. 6 C.P. Privy Council Appeal No. 1], [1961] A.C. 388 (P.C. Their Lordships do not propose to spend time in examining whether the issue there lay in breach of contract or in tort. Just as (as it has been said) there is no such thing as negligence in the air, so there is no such thing as liability in the air. It may however be observed that in the proceedings there was some confusion. (as he then was) said: "Foreseeability is as a rule vital in cases of contract; and also in cases of negligence, whether it be foreseeability in respect of the person injured as in Palsgref v. Long Island Rly. Nevertheless it does establish some damage which maybe insignificant in comparison with the magnitude of the damage by fire, but which nevertheless is damage which beyond question was a direct result of the escape of the oil" This upon this footing that their Lordships will consider the question whether the appellants are liable for the fire damage. Their Lordships are constrained to say that this dictum (for such it was) perpetuated an error which has introduced much confusion into the law. FROM THE SUPREME COURT OF NEW SOUTH WALES [Delivered by VISCOUNT SIMONDS]. In the case of the "Liesbosch" [1933] A.C. 448 the appellants whose vessel had been fouled by the respondents, claimed damages under various heads. The negligent act was nothing more than the carelessness of stevedores (for whom the charterers were assumed to be responsible) in allowing a sling or rope by which it was hoisted to come into contact with certain boards, causing one of them to fall into the hold. These cookies will be stored in your browser only with your consent. This means you can view content but cannot create content. See Also – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC ([1967] 2 AC 617, Bailii, [1966] UKPC 1, [1966] 1 Lloyd’s Rep 657, [1966] 2 All ER 709, [1966] 3 WLR 498) (New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. 1) [1961] The Wagon Mound (No. 253 the defendant's servant in breach of the Police Act washed a van in a public street and allowed the waste water to run down the gutter towards a grating leading to the sewer about 25 yards off. The respondents claim, in the alternative, that the appellants are liable in nuisance if not in negligence. Let the rule in Polemis be tested in this way. But up to that date it had been universally accepted that the law in regard to damages for breach of contract and for tort was, generally speaking, and particularly in regard to the tort of negligence, the same. London (reported in [1914] Prob. When molten metal dropped by Mort’s workmen later set floating cotton waste on fire, the oil caught fire and the wharf was badly damaged. In fact, the judgment shows a strong distaste for causal language, and in principle is ought to leave ‘cause in fact’ as the only remaining question of causation in tort law. Perhaps he would, and probably he would have added: "I never should have thought it possible." But the House of Lords took neither course: on the contrary it distinguished Polemis on the ground that in that case the injuries suffered were the "immediate physical consequences" of the negligent act. This means you can view content but cannot create content. In Sharp v. Powell Law Rep. 7 C.P. University. Smith v Leech Brain and Co Ltd [1962] 2 QB 405. The Wagon Mound no 1 AC 388 House of Lords The defendant's vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour. Course. The relevant facts can be, comparatively shortly slated inasmuch as not one of the findings of fact in the exhaustive judgment of the learned trial Judge has been challenged. Synopsis of … pronouncekiwi - … Nor, clearly, had it at an earlier date occurred to Lord Wensleydale in Lynch v. Knight 9 H.L.C. Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. Even in the inferior courts judges have, sometimes perhaps unwittingly, declared themselves in a sense adverse to its principle. The second case was "H.M.S. The principle is also derived from a case decision The Wagon Mound-1961 A C 388 case reversing the previous Re Polemis principle.. The defendant was held not to be liable. The question of foreseeability became irrelevant and the passage cited from his speech was unnecessary to his decision. This decision is not based on the analysis of causation. Thus it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable. But if it would be wrong that a man should be held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally it would be wrong that he should escape liability, however "indirect" the damage, if he foresaw or could reasonably foresee the intervening events which led to its being done; cf. - Duration: 2:30. But there is nothing in the case to suggest, nor any reason to suppose, that he regarded the measure of damage as different in tort and breach of contract. It is proper to add that their Lordships have not found it necessary to consider the so-called rule of "strict liability" exemplified in Rylands v. Fletcher and the cases that have followed or distinguished it. It is, no doubt, proper when considering tortious liability for negligence to analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach of that duty by the defendant, and consequent damage. OpenLearn from The Open University 47,534 views. This is the more surprising when it is remembered that in that case, as in many another case, the claim was laid alternatively in breach of contract and in negligence. That consideration must begin with an expression of indebtedness to Mr. Justice Manning for his penetrating analysis of the problems that today beset the question of liability for negligence. VISCOUNT SIMONDS This is no more than the old Polemis principle [1921] 3 K.B. The outbreak of fire was due, as the learned Judge found, to the fact that there was floating in the oil underneath the wharf a piece of debris on which lay some smouldering cotton waste or rag; which had been set on fire by molten metal falling from the wharf that the cotton waste or rag burst into flames; that the flames from the cotton waste set the floating oil afire either directly or by first setting fire to a wooden pile coated with oil; and that after the floating oil became ignited the flames spread rapidly over the surface of the oil and quickly developed into a conflagration which severely damaged the wharf. The appellants made no attempt to disperse the oil. [12] The Wagon Mound (No 1) Detailed case brief Torts: Negligence. Out of these cookies, the cookies that are categorized as necessary are stored on your browser as they are essential for the working of basic functionalities of the website. After several hours the oil drifted and was around two ships owned by the Miller Steamship Co that were being repaired nearby. It has never been subject to the express scrutiny of either the House of Lords or the Privy Council, though there have been comments upon it in those Supreme Tribunals. LORD TUCKER Applying the rule in Polemis and holding therefore that the unforeseeability of the damage by fire afforded no defence, they went on to consider the remaining question. But, where they are not, the question arises to which the wrong answer was given in Polemis. LORD MORRIS OF BORTH-Y-GEST The Wagon Mound (No.1) [1961] Uncategorized Legal Case Notes August 26, 2018 May 28, 2019. At some point during this period the Wagon Moundleaked furnace oil into the harbour while some welders were working on a ship. This category only includes cookies that ensures basic functionalities and security features of the website. NTSH FZ 984 views. 2) [1967] Thoburn v Sunderland City Council [2002] Thomas v Clydesdale Bank [2010] Thomas v National Union of Miners [1986] Thomas v Sawkins [1935] Thomas v Sorrell (1673) Thomas v Thomas [1842] Thompson v Foy [2010] Thompson v Gibson [1841] Thompson v Park [1944] Thorner v Major [2009] Disregarded when the negligence is the old version of the law No one would venture to quarrel '' 76,. ) v. Morts Dock and Engineering the inferior courts judges have, sometimes perhaps unwittingly, themselves. Longer be regarded as having influenced the decision in Polemis to a conclusion illogical! His decision arising out of the court purported to propound the law No one would to... Surface of the same careless act gave instructions accordingly but directed that safety! Of these cookies respect of that damage and No other Rep. 6.... It has to be asked, then, why this conclusion should have been held for... 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