Civil law deals with matters that affect everyday people and issues. For most cases, any civil dispute or claim will be assessed and heard under tort law. Derived from the French term “to wrong,” tort law seeks to address just that; to resolve any civil law disputes, and right any civil wrongs.
To make a claim under tort, certain principles and legal tests must be fulfilled. One such element to be met is “Remoteness Of Damage.” Here, the tort lawyer has to ask themselves one question; was the damage inflicted upon the injured party damage that was foreseeable? Was the damage received too remote that those potentially liable could not have predicted or foreseen it, and acted accordingly?
The basis behind that legal question arises from an interesting Australian case, which (currently) remains the leading case regarding remoteness of damage in tort– The Wagon Mound No 1  AC 388 HL. The matter was referred to the British House of Lords from the Supreme Court of New South Wales, and later appeared before the Privy Council as Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound No1)  UKPC1, with a similar verdict. However, The Wagon Mound [No.1] is not to be confused with The Wagon Mound [No.2], which, although dealing with the same cases, addressed the matter of breach of duty of care.
The case itself is quite the story- and is very much one of cause and effect, and crazy chain of events. The ship Wagon Mound was docked in Sydney Harbour in 1951. Crew members working on the ship failed to turn off a tap on the freighter, the result of that was to accidentally leak furnace oil into Sydney Harbour. The oil drifted underneath Sheerlegs Wharf where ships were being repaired. Although the dock workers noticed the oil in the water around them, they were assured that it was not flammable –and resumed their work. The dock workers were using oxyacetylene torches at the time; sparks and hot metal produced by the torches fell into the water, onto cotton waste that was floating on the water. Inevitably, the cotton caught alight- which then set the oil alight.
The ensuing fire substantially damaged the wharf in question, and several ships alongside the wharf at the time. Few people were injured- but the damage to shipping and property was significant. All this was due to a few crew members failing to turn off an oil tap…
The owners and operators of the timber and repair yard, Mort’s Dock, subsequently took legal action against the owners and operators of the Wagon Mound, Overseas Tankship. The New South Wales courts applied the reasoning in Re Polemis & Furness, Withy & Co Ltd  3 KB 560 regarding the question of remoteness. In Re Polemis, a ship was also involved. That ship had ben chartered to take cargo to Furness, and had encountered rough weather en route. As a result, there was gas vapour present below decks. Whilst the ship was being unloaded, a plank was knocked into the hold by the port stevedores. The plank caused a spark –which ignited the gas vapour, burning the ship down.
Subsequent legal action saw Furness dock admit their negligence- but they claimed that the outcome of the negligence (the plank falling) was so remote (the whole ship burning down), that liability should be negated. The Court of Appeal rejected this argument, stating that the actor of any negligent action is liable for any direct outcomes of their action, foreseeable or not.
Applying the Re Polemis principle, the New South Wales courts found Overseas Tankship liable for the damages. Overseas Tankship appealed to the British House of Lords, and the Privy Council. The Privy Council found in favour of the ship owners.
Re Polemis had been perceived by many as unfair in its definition of remoteness. With The Wagon Mound, the Privy Council sought to update the rules of remoteness, and went as far as to state that the principle in Re Polemis was “out of the current of contemporary thought”. Whilst agreeing the Overseas Tankship was indeed guilty of a breach, that could foreseeably have caused some damage, the court found that the extensive fire and damage done to Mort’s Dock was not foreseeable to the reasonable man. As such, the Privy Council dismissed the appeal, and found that the defendant crew of the Wagon Mound was not liable for the damage to Mort’s Dock. Further, the famous test for remoteness, that of reasonable foreseeability, was born. Under that test, the kind and type of damage done by the negligent breach of the actor must be reasonably foreseeable.
Since that fire in Sydney Harbour in 1951, and the Privy Council verdict a decade later, tort law has had the rule that any damage done to another party must have been reasonably foreseeable by those responsible. That element of remoteness of damage needs to be present in all tort cases for a successful claim. Cases involving medical negligence, accidents, personal injury, even accidents at work all need to have that element of reasonable foreseeability.
Taking as an example a work accident claim, the injury done must be reasonably foreseeable by the person responsible for the breach. Under health and safety law, all and every precaution must be taken to ensure the safety of all those in the workplace; if that is breached, in most cases the inured party can make a claim against those responsible, or their employer. Amidst all the criteria of tort law, reasonable foreseeability is one matter that the personal injury lawyer will look for.
That test of reasonable foreseeability, be it in an accident at work claim or a trespass claim, is all due to an incorrectly closed tap on a freighter in Australia, and the crazy chain of events that followed.