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When a tort is committed the question of defendant’s liability arises. Defendant’s liability in any case must have limits or else a person would be ruined. No person is responsible adinfinitum for consequence of his act. According to Salmond there are certain class of cases in which the plaintiff fails because the chain of causation connecting the defendant act with the damage resulting it is of such a nature that the law for some reasons refuses to regard it as sufficiently continuous for liability. Damage of this kind is said to be too remote. Between the defendants act and plaintiffs damage some third factor has intervened.

For example a cyclist negligently hits a pedestrian who was carrying a bomb in his pocket. When the pedestrian is knocked down, the bomb is exploded. The pedestrian and four other persons going on the road died and ten other persons are seriously injured due to the explosion. A building nearby is set on fire due to the same explosion and some women and children therein are sevelry injured. The question is can the cyclist be liable for all these consequences? He is liable only for those consequences which are not too

remote from his conduct. Then the question is what is meant by this too remote consequence? How will you determine?

Until 1850 in England the principles of damage laid down by the courts are not harmonious and the courts either took refuge in scraps of scholastic logic about causa causans and causa causta or indulged in the mistiest generalities such as he that dose the first wrong shall answer for consequential damages or the damages must be the legal and natural consequences of the wrongful act.

Since 1850 two competing views of the test of remoteness of damage have appeared in the law. According to first, which was propounded by Pollock, consequences are too remote if a reasonable man would not have foreseen them. According to the second if a reasonable man would have foreseen any damage to the plaintiff as likely to result from his act then he is liable for all direct consequences of it suffered by the plaintiff whether a reasonable man would have foreseen them or not.

Thus there arise two main tests to determine whether the damage is remote or not. They are: Test of reasonable foresight:

According to this test if the consequences of a wrongful act could have been foreseen by a reasonable man they are not too remote. If on the other hand a reasonable man would not have foreseen the consequences they are remote. In Rigby v. Hewit and Green land V, Chaplin149_{, Pollock CB stated}

that the liability of the defendant is only for those consequences which could have been foreseen by a reasonable man placed in the circumstances of the wrongdoer. According to this test, if I commit a wrong I will be liable only for those consequences which I could have foreseen is too remote a consequence of my wrongful act.

The test of directness:

According to the test of directness, a person is liable for all the direct consequences of his wrongful act whether he could have foreseen them or not, because the consequences which directly follow a wrongful act are not too remote.

The first authority for the view advocating directness test is the case of Smith v. London & South Western Rly Co150_{., the railway co. was negligent in allowing a heap of trimmings of hedges and grass near a railway} line during dry weather. Spark from the railway engine set fire to the material. Due to high wind, the fire was carried to the plaintiff’s cottage which was burnt. The defendants were held liable even though they could not have foreseen the loss to the cottage, because it was a direct consequence of the defendants act.

The above position was accepted in Re Polemis and Furness Withy & Co151_{. case. In this case the} defendants chartered a ship. The cargo to be carried by them included a quantity of Benzene in tins. Due to leakage in those tins some of their contents collected in the hold of the ship. Owing to the negligence of the defendant’s servant, a plank fell into the hold a spark was caused and consequently the ship was totally destroyed by fire. The plaintiffs were entitled to recover damages because it is being a direct consequence of the defendant act.

The test of directness has been rejected by the Privy Council in Overseas Tank ship (UK) Ltd v. Mort’s Dock and Engg Co. Ltd (Wagon Mound Case)152_{. In this case the Wagon Mound an oil burning vessel was} chartered by the appellants, Overseas Tank ship Ltd, and was taking fuel oil at Sydney Port. At a distance of about 600 feet the respondents, Motor Docks Co. owned a wharf, where the repairs of a ship including some welding operations were going on. Due to the negligence of appellant’s servants a large quantity of oil was spilt on the water. The oil which was spread over the water was carried to the respondents wharf. About 60 hours thereafter, molten metal from the respondents wharf fell on floating cotton waste which

150 _{(1870) 3 KB 577} 151 _{(1921) 3 KB 560} 152 _{1962 AC 388}

ignited the fuel on the water and the fire caused great damage to the wharf and equipment. It was also found that the appellants could not foresee that the oil so spilt would catch fire.

The trail court applied the rule of directness and held the OT Ltd liable. The Supreme Court of the New Southwales also followed the Re Polemis rule, held OT liable.

On an appeal the Privy Council held that the Re Polemis was no more good law and reversed the decision of the Supreme Court. The judicial committee of privy council stated that the decision in Re Polemis was objectionable on the ground that 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 to the actor should be liable for all consequences however unforeseeable and however grave so long as they can be said to be direct. It is a principle of civil liability subject only to qualifications which have no present relevance that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule to demand a less is to ignore that civilized order requires the observance of a minimum standard of behavior. Thus it held that the test of reasonable foresight is the better test.

The test of reasonable foresight as laid down in this case was followed in Hyghes v. Lord Advocate153 Doughty v. Turner Manufacturing Co. Ltd (1964) 1 AllER 98

SCM (UK) Ltd v. WJ Whittal & sons (1971) 1 QB 337

However there are several situations where the test of reasonable foresight was not applicable they are: a) when the tort is one of strict liability b) when the claim is under the Fatal Accidents Act c) when the claim is for breach of a Strict Statutory Duty d) when the claim for fraud e) when the damage which was occurred, although foreseeable is not damage of a kind against which it was the duty of the defendant to guard f) when the defendant cannot be said to have caused the damage although that damage was in face foreseeable g) when the damage which has been caused in damage of the same type or kind that might have been foreseen h) Egg-Shell rule: This rule provides that the amount of damage

not to be foreseen so far as the physical condition of the victim is concerned, abnormal circumstances existing at the time of wrongful act do not negative casual connection. So if the consequence of a slight personal injury are aggravated by the state of health of the person injured the wrongdoer is nonetheless liable to the full extent, though he had no knowledge of that state of health and no reason to suspect it. So in the leading case of Smith v. Leech Brain & Co. Ltd154_{, it was held that if a victim of a negligent act} suffers from a pre-cancerous condition which is activated by that act, the wrong doer is responsible for all the disastrous consequences. This is always known as the Egg-Shell rule.

The decision in the Wagon Mound case according to the strict doctrine of precedent is binding only upon some tribunals in the commonwealth and is of only persuasive authority in the final appellate authority in UK. Thus effect of the rule in Wagon Mound case is still doubtful. But whatever be its binding nature the House of Lords, court of appeal and high court expressly stated the Re Polemis law is no longer good, that the wagon mound is the governing authority. So the test of reasonable foresight is the real test to find out remoteness of damage at present.