En la gestión del aprendizaje

court does not concern itself with trivialities. This is a principle the court may consider in appropriate cases in determining liability.

SELF ASSESSMENT EXERCISE 1

The plaintiff’s husband died that night of arsenic poisoning according to the report of the coroner’s inquest. The issue was whether “but for” the doctor’s failure to examine the deceased would he have died? The court held that if the deceased had been examined and treated with proper care, he would probably have died anyway. It could not be said conclusively that the doctor’s failure to treat the deceased was the cause of his death. The hospital was accordingly not liable.

McWilliams V. Sir William Arrol & Co. Ltd. (1962) 1 WLR 295

A worker who was erecting steel fell from the building where he was working and died. If he had been wearing a safety harness he would not have fallen to death. The defendants who were his employers were under a legal duty under statute to provide all the workers with safety harness. They were in breach of that duty by failing to provide them on the day of the accident.

However, it was proved that on previous occasions when the employer provided safety harness, the deceased worker had not bothered to wear it. The court held that the defendants were not liable. The inference was that even if a safety harness had been provided on the day of the accident, the deceased would not have worn it and so would have died anyway.

Cause and the limit of liability for damage

The tort must have caused the damages claimed. The damage must be the natural or reasonably foreseeable consequence of the tort, otherwise the defendant would not be liable. In other words, it must be possible to draw a causal link or connection between the tort and the damage. The tort must be what caused the damage. Generally, the damage for which compensation is claimed must be a reasonably foreseeable consequence of the tort alleged. The damages must not be too remote from the tort for the action to succeed.

Where an injury is the reasonably foreseeable result of a tort, a court will usually award compensation for it.

On the other hand, where the damage suffered is too remote to be the consequence of the tort, the claim will usually fail. As a general rule, court will only award damages for the natural or reasonably foreseeable consequences of a tort. This is so because in law, a person is taken as intending the natural consequences of his action. It is always assumed that there must be a limit to a defendant’s liability. An example of the application of this principle of putting a limit to the liability of a tortfeasor is the case of:

Liesbosch Dredger V. Edison Steamship: The Edison (1933) All ER 144.

The plaintiff contractors who were doing a dredging work lost their ship due to the negligence of the defendant’s ship which ran into it and caused it to sink. Due to impecuniosity, the plaintiff could not replace its ship and continue its contract job and consequently, the company suffered financial embarrassment. They sued the defendant

claiming for the loss of the ship and for consequential financial embarrassment which followed the loss of the ship.

The House of Lords held that damages would lie for loss of the ship, which was the natural and reasonably foreseeable result of the defendant’s negligent navigation that caused it to sink. But the defendant were not liable for the alleged financial embarrassment suffered by the plaintiff which was a consequence of consequences. In this case, Lord Wright took time to explain the principle of law that there must be a limit to the extent, amount or scope of damages a defendant should be made to pay in these words:

“The appellants actual loss in so far as it was due to their impecuniosity, arose from that impecuniosity as a separate and concurrent cause, extraneous to and distinct in character from the tort. The impecuniosity was not traceable to the respondent’s acts and in my opinion was outside the legal purview of the consequences of these acts. The law cannot take account of everything that follows a wrongful act; it regards some subsequent matters as outside the scope of its selection because it were infinite to trace the cause of causes or consequence of consequences. Thus, the loss of a ship by collision due to the other vessel’s sole fault, may force the ship owner into bankruptcy and that again may involve his family in suffering, loss of education or opportunities in life, but no such loss could be recovered from the wrongdoer. In the varied web of affairs, the law must abstract some consequences as relevant, not perhaps on grounds of pure logic but simply for practical reasons. In the present case, if the appellant’s financial embarrassment is to be regarded as a consequence of the respondent’s tort, I think it is too remote.”

See also Obasuyi V. Business Ventures Ltd. (1995) 7 NWLR pt. 406, p. 184 CA.

Thus for instance, damages will not be awarded for the plaintiff’s distressed financial position, impecuniosity or his failure to mitigate his loss; to do so, would amount to holding the defendant liable for the consequence of consequences, which is not the aim of the law of tort. Accordingly, where a plaintiff proves that a defendant’s wrongful conduct caused his loss, he may not be able to recover damages if his loss is not the natural or reasonably foreseeable result of the defendant’s conduct. Therefore, a defendant is not liable for the consequence of consequences and a plaintiff has a duty to mitigate his loss by preventing continuous loss.

The tests for determining the extent of liability for damage

When is a loss the natural outflow of a tort? When is a tort the cause of a damage? When is an injury too remote to be the result of a tort? How do we determine when a harm is the reasonably foreseeable result of a tort and therefore deserving compensation. On the other hand, when is a damage too remotely connected to a tort that it cannot be the consequence of the tort and therefore not deserving an award of compensation?

The modern test used by courts for determining the liability of a defendant is the test of remoteness of damage, otherwise known as the test of reasonable foreseeability of damage as laid down by the Judicial Committee of the Privy Council of the House of Lords in the Wagon Mound’s case (No. 2). (1967) 1 AC 617 PC. However, for historical understanding, we shall look at the old test of liability which is the test of directness of damages, before looking at the new test, known as the test of remoteness of damages or reasonable foreseeability. In other words, we shall examine:

1. The old test of directness of damage - which has been abolished and is no longer being used because the test was hard and unfair to defendants, as the liability of a defendant for damages was too wide under the test of directness of damages; and 2. The test of remoteness of damage or reasonable foreseeability of damage – This is

the new or current test for determining the extent, amount or scope of damage for which a defendant should be liable. The test of foreseeability of damage limits or restricts the liability of a defendant to the damages which are reasonably foreseeable to a reasonable man in his shoes. Accordingly, under the test of remoteness of damage, the liability of a defendant is reasonably limited and he is not liable for the consequences of the consequences of his tort.

The Test of directness of Damage

The test of directness of damage was the old test for determining liability in tort. The test was laid down by the English Court of Appeal in the case of Re Polemis and Furness Withy & Co. (1921) All ER 40. This old test is no more in use as it was overruled in the Wagon Mound’s case. However, we shall look at it for historical purposes. The test of directness of damage or test of direct consequence was a test of the directness of damage, that is, the nearness connection or relationship of the damage to the tortuous act. This test was used to determine whether a loss was a direct result or direct consequence of a tort.

Under this test, a defendant was liable for all damages which were the direct result of his tort, whether or not such damage was foreseeable. In other words, the defendant was liable for all the damages which were the direct consequences of his tort, whether or not such damage was foreseeable by a reasonable man. Accordingly, under the old test, a person was liable in damages for all the direct consequences of his tort, even though such consequences were not foreseeable by a reasonable man and whether or not the damages are far flung or whether or not the damages are the consequence of consequences. Thus, under the old rule, the liability of a tortfeasor could be wide, much and far flung.

In Re Polemis and Furness Withy & Co. (supra), Charterers employed stevedores to unload the hold of a ship that contained drums of petrol. Due to leakage of the drums, the hold of the ship contained inflammable vapour. A stevedore negligently knocked a plank into the hold which caused a spark that ignited the petrol vapour into fire. The fire destroyed the ship. The ship owners sued the charterers and stevedores for its loss. The English Court of Appeal held that even though the stevedore could not reasonably have

foreseen that his negligent act would destroy the ship, the loss of the ship was a direct consequence of his negligent act. The charterers who hired the stevedores were vicariously liable to pay for the loss of the ship.

The test of directness of damage was a wide and a hard rule. Under the test, a tortfeasor was liable for all the damages that were the direct result of his tort, whether or not the damages were reasonably foreseeable or not and whether such damage was immediate and natural or far flung and remote. The test of directness of damage caused a lot of hardship to defendants; as a defendant’s liability under it was seemingly endless. It was not a good law. For this reason, it was abolished and overruled in the Wagon Mound’s case (supra) in which the test of reasonable foreseeability or test of remoteness of damages was established as the new test for determining the liability of a defendant for his tort.

Comparatively, the principle of directness provides a wider ambit to find a defendant liable. The extent of a defendant’s liability was much wider under the directness rule. As a result, a defendant could be held liable for every damage directly traceable to the tort in question, whether or not such alleged consequences were reasonably foreseeable or not.