Page 1

ICLR: Appeal Cases/1961/OVERSEAS TANKSHIP (U.K.) LTD. APPELLANTS; AND MORTS DOCK &
ENGINEERING CO. LTD. RESPONDENTS. (THE WAGON MOUND.) ON APPEAL FROM THE
SUPREME COURT OF NEW SOUTH WALES. - [1961] A.C. 388

[1961] A.C. 388

OVERSEAS TANKSHIP (U.K.) LTD. APPELLANTS; AND MORTS DOCK &

ENGINEERING CO. LTD. RESPONDENTS. (THE WAGON MOUND.) ON APPEAL
FROM THE SUPREME COURT OF NEW SOUTH WALES.

[JUDICIAL COMMITTEE]

1961 Jan. 18.

VISCOUNT SIMONDS, LORD REID, LORD RADCLIFFE, LORD TUCKER and LORD MORRIS OF
BORTH-Y-GEST

Damages - Negligence - Remoteness - Damage directly caused by negligent act - Dangerous thing -
Furnace oil - Spilled on harbour waters - Fire - Causation - Damage to wharf - Foreseeability of
consequences the effective test of liability - One criterion for determining liability and compensation.

Australia New South Wales - Negligence - Furnace oil spilled on harbour waters - Fire - Foreseeability of
consequences the test of liability - Remission of claim founded on nuisance.

Ship's Names - Wagon Mound.

The decision in In re Polemis and Furness Withy & Co. [1921] 3 K.B. 560; 37 T.L.R. 940, C.A., that the
defendant was responsible for all the consequences of his negligent act - held in that case to have been the
direct result of the act - whether reasonably foreseeable or not, is not good law (post, p. 422).

The essential factor in determining liability for the consequences of a tortious act of negligence is whether
the damage is of such a kind as the reasonable man should have foreseen. Liability does not depend solely
on the damage being the "direct" or "natural" consequence of the precedent act; but if a man should not be
held liable for damage unpredictable by a reasonable man because it was "direct" or "natural," equally he
should not escape liability, however "indirect" the damage, if he foresaw or could reasonably have foreseen
the intervening events which led to its being done. Foreseeability is thus the effective test - the "direct"
consequence test leads to nowhere but the never-ending and insoluble problems of causation (post, pp. 423,
426).

There is not one criterion for determining culpability (or liability) and another for determining compensation;
unforeseeability of damage is relevant to liability or compensation - there can be no liability until the damage
has been done; it is not the act but the consequences on which tortious liability is founded (post, pp. 424,
425).
 Page 2

Dicta of Lord Russell of Killowen in Bourhill v. Young [1943] A.C. 92, 101; [1942] 2 All E.R. 396, H.L.(Sc.),
and of Denning L.J. in King v. Phillips [1953] 1 Q.B. 429, 441; [1953] 2 W.L.R. 526; [1953] 1 All E.R. 617,
C.A. applied.

Dictum of Lord Sumner in Weld-Blundell v. Stephens [1920] A.C. 956, 983; 36 T.L.R. 640, H.L. disapproved.
[1961] A.C. 388 Page 389

Sharp v. Powell (1872) L.R. 7 C.P. 253 considered.

Per curiam: 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 the actor should be liable for all
consequences however unforeseeable and however grave, so long as they can be said to be "direct" (post,
p. 422).

While an oil-burning vessel, of which the appellants were the charterers, was taking in bunkering oil in
Sydney Harbour a large quantity of the oil was, through the carelessness of the appellants' servants, allowed
to spill into the harbour. During that and the following day the escaped furnace oil was carried by wind and
tide beneath a wharf owned by the respondents, shipbuilders and ship repairers, at which was lying a vessel
which they were refitting, and for which purpose their employees were using electric and oxyacetylene
welding equipment. Some cotton waste or rag on a piece of débris floating on the oil underneath the wharf
was set on fire by molten metal falling from the wharf, and the flames from the cotton waste or rag set the
floating oil afire either directly or by first setting fire to a wooden pile coated with oil and thereafter a
conflagration developed which seriously damaged the wharf and equipment on it.

In an action by the respondents to recover from the appellants compensation for the damage it was found by
the trial judge on the evidence that the appellants "did not know and could not reasonably be expected to
have known that it [the furnace oil] was capable of being set afire when spread on water"; and that apart from
the damage by fire the respondents had suffered some damage in that oil had congealed upon and
interfered with the use of their slipways, which was "damage which beyond question was a direct result of the
escape of the oil":-

Held, on the footing that the damage was the direct result of the escape of the oil, that, applying the test of
foreseeability, the appellants who, as found by the trial judge, could not reasonably be expected to have
known that the oil would catch fire, were not liable for the damage.

In re Polemis and Furness Withy & Co. Ltd. (supra) not followed.

Smith v. London and South Western Railway Co. (1870) L.R. 6 C.P. 14; H.M.S. London [1914] P. 72; 30
T.L.R. 196; Weld-Blundell v. Stephens (supra); Rigby v. Hewitt (1854) 5 Exch. 240; Greenland v. Chaplin
(1850) 5 Exch. 243; Hadley v. Baxendale (1854) 9 Exch. 341; Cory & Son Ltd. v. France, Fenwick & Co. Ltd.
[1911] 1 K.B. 114; 27 T.L.R. 18, C.A.; Glasgow Corporation v. Muir [1943] A.C. 448; 59 T.L.R. 266; [1943] 2
All E.R. 44, H.L.(Sc.); Hay or Bourhill v. Young (supra) and Woods v. Duncan [1946] A.C. 401; 62 T.L.R.
283; [1946] 1 All E.R. 420, H.L. considered.

The "strict liability" rule in Rylands v. Fletcher (1868) L.R. 3 H.L. 330; (1866) L.R. 1 Exch. 265, H.L. not
 Page 3

considered (post, p. 427).

[1961] A.C. 388 Page 390

Order of the Supreme Court of New South Wales, so far as it related to damage caused by negligence,
reversed, but action remitted for that court to deal with it so far as it relates to damage caused by nuisance.

APPEAL (No. 23 of 1960) from an order of the Full Court of the Supreme Court of New South
Wales (Owen, Maguire and Manning JJ.) (December 3, 1959) dismissing an appeal by the
appellants, overseas Tankship (U.K.) Ltd., from a judgment of Kinsella J. exercising the Admiralty
Jurisdiction of that court (April 23, 1959) in an action in which the appellants were defendants and
the respondents, Morts Dock & Engineering Co. Ltd., were plaintiffs.

The following facts are taken from the judgment of the Judicial Committee: In the action the
respondents sought to recover from the appellants compensation for 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 November 1, 1951. For that damage they claimed that the
appellants were in law responsible.

The relevant facts can be comparatively shortly stated inasmuch as not one of the findings of fact in
the exhaustive judgment of the trial judge had been challenged.

The respondents at the relevant time carried on the business of ship-building, ship-repairing and
general engineering at Morts Bay, Balmain, in the Port of Sydney. They owned and used for their
business the Sheerlegs Wharf, a timber wharf about 400 feet in length and 40 feet wide, where
there was a quantity of tools and equipment. In October and November, 1951, a vessel known as
the Corrimel was moored alongside the wharf and was being refitted by the respondents. Her mast
was lying on the wharf and a number of the respondents' employees were working both upon it and
upon the vessel itself, using for that purpose electric and oxy-acetylene welding equipment.

At the same time the appellants were charterers by demise of the s.s. Wagon Mound, an
oil-burning vessel, which was moored at the Caltex Wharf on the northern shore of the harbour at a
distance of about 600 feet from the Sheerlegs Wharf. She was there from about 9 a.m. on October
29 until 11 a.m. on October 30, 1951, for the purpose of discharging gasolene products and taking
in bunkering oil.

During the early hours of October 30, 1951, a large quantity of bunkering oil was, through the
carelessness of the appellants'
[1961] A.C. 388 Page 391

servants, allowed to spill into the bay, and by 10.30 on the morning of that day it had spread over a
considerable part of the bay, being thickly concentrated in some places and particularly along the
foreshore near the respondents' property. The appellants made no attempt to disperse the oil. The
Wagon Mound unberthed and set sail very shortly after.

When the respondents' works manager became aware of the condition of things in the vicinity of
the wharf he instructed their workmen that no welding or burning was to be carried on until further
orders. He inquired of the manager of the Caltex Oil Company, at whose wharf the Wagon Mound
 Page 4

was then still berthed, whether they could safely continue their operations on the wharf or upon the
Corrimal. The results of the inquiry coupled with his own belief as to the inflammability of furnace oil
in the open led him to think that the respondents could safely carry on their operations. He gave
instructions accordingly, but directed that all safety precautions should be taken to prevent
inflammable material falling off the wharf into the oil.

For the remainder of October 30 and until about 2 p.m. on November 1 work was carried on as
usual, the condition and congestion of the oil remaining substantially unaltered. But at about that
time the oil under or near the wharf was ignited and a fire, fed initially by the oil, spread rapidly and
burned with great intensity. The wharf and the Corrimal caught fire and considerable damage was
done to the wharf and the equipment upon it.

The outbreak of fire was due, as the judge found, to the fact that there was floating in the oil
underneath the wharf a piece of débris 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.

1960. Oct. 26, 27, 31; Nov. 1, 2, 3, 7, 8, 9. Ashton Roskill Q.C., C. L. D. Meares Q.C. (Australia)
and Michael Kerr for the appellants. The flash point of furnace oil is about 170ºF., and the oil
floating on sea water cannot reach that temperature. The trial judge found that the appellants did
not know and could not reasonably be expected to have known that the oil on the water was
capable of being set on fire. That is a very important finding,
[1961] A.C. 388 Page 392

reference should be made was that some of this oil had congealed on the respondents' slipways
and interfered with their use. It is the appellants' contention that this fact is irrelevant. It is further to
be observed that no claim against the appellants was raised in respect of it, and there was no proof
of the respondents having thereby suffered any damage. The judge concluded that on the basis of
the decision in In re Polemis and Furness Withy & Co.1 (hereafter called "Polemis") the appellants
were on the facts guilty of negligence. What constitutes negligence is the first major point in the
case. On the appellants' appeal to the Full Court of the Supreme Court of New South Wales the
main heads of appeal were, first, that Polemis was wrongly decided, and, secondly, that if it was
right, the damage by fire was not the direct consequence of the appellants spilling the oil. The
second point calls for independent consideration before this Board. The judgment of the Full Court
contains a critical analysis of the decision in Polemis, and the conclusion was reached that it would
not be proper to regard that decision otherwise than as binding on them. Manning J., however,
giving the judgment of the court, said that it would be a gross understatement to say that he was
able to apply that decision with any degree of confidence, and he expressed the hope that the
House of Lords or Judicial Committee of the Privy Council would pronounce on it in the near future.

Reliance is placed on that part of the Full Court's judgment which analyses this admittedly difficult
decision - Polemis. The present case is of some general importance and interest since it raises
directly, and for the first time, the question whether Polemis was rightly decided. On the second
point there are two heads; namely, if Polemis is right: (1) Was the damage by fire the direct
consequence of the spilling of the oil? (2) Was it due to independent causes?

The argument is put on five grounds - the first two run together and must be argued together. (1)
The damage by fire to the respondents' wharf was not a reasonably foreseeable consequence of
 Page 5

the appellants' act in spilling the furnace oil into Morts Bay. Therefore the appellants' act in spilling
the oil did not constitute actionable negligence at the suit of the respondents. The fact that the
spilled oil polluted the respondents' slipways

1 [1921] 3 K.B. 560; 37 T.L.R. 940, C.A.

[1961] A.C. 388 Page 393

is irrelevant. (2) The basis of the decision in Polemis is misconceived, i.e., the authorities relied on
in Polemis do not provide the foundation for that decision which it is claimed that they do. (3) The
rule in Polemis, namely, that the damage is recoverable if direct but not foreseeable is not correct.
(4) If, contrary to the above submissions, the appellants' act in spilling the oil afforded a cause of
action in negligence to the respondents, and if the rule in Polemis is sound, the damage by fire to
the respondents' wharf was not directly caused by the appellants' negligence; therefore Polemis
does not apply. (5) The remarkable and unforeseeable combination of circumstances here
constituted novus actus interveniens; therefore Polemis does not apply.

Negligence involves breach of duty causing the damage. There is no actionable breach of duty
unless it can be shown that at the time of the act the consequences of the act were reasonably
foreseeable. The test is objective, the requisite foresight being that of the reasonable man. [The
judgments of Sankey J.2 and of the Court of Appeal3 in Polemis were then read.] The first
submission on Polemis is that the issue was one of contract, namely, the construction of the
exceptions clause in a time charterparty. If that be so, it is difficult to regard the case as a
satisfactory authority on the tort of negligence or on what constitutes a cause of action in
negligence. That submission may be elaborated under three heads. First, negligence is read by
implication into the exceptions clause: it does not, in the context of the exceptions clause, mean the
same as the tort of negligence. The exceptions clause means that the charterers were not
responsible for the fire unless caused by their carelessness. It is doubtfully correct to say, as
Warrington L.J. said,4 that the claim was based on the tort of negligence. Secondly, and still on the
exceptions clause, it would seem that the decision in Polemis can be sustained only if the
charterers were careless in relation to the fire through failing to provide against what was
unforeseeable, namely, the fire, because the damage by fire, though unforeseeable, was the
"direct" consequence of their carelessness. Thirdly, the Court of Appeal held, in effect, that the
exception of fire was not foreseeable because the charterers had been careless not in relation to
the fire, which was not foreseeable, but in relation to some other peril, namely, the carelessness of
the Arab stevedores engaged by the charterers,

2 (1921) 37 T.L.R. 696; 26 Com. Cas. 281; 7 Ll.L.Rep. 196.

3 [1921] 3 K.B. 560.

4 Ibid. 573.
 Page 6

[1961] A.C. 388 Page 394

which was not excepted. Polemis is therefore not a satisfactory authority for the reasons so far
advanced on what constitutes the tort of negligence.

If Polemis can be considered purely as a tortious matter without regard to the contractual basis of
the relationship of the parties, it is difficult to see how (apart from the supplementary finding of fact
by the arbitration tribunal) the charterers could have been held liable in tort for the action of the
stevedores, who clearly could not have been their servants. The stevedores were merely engaged
by the charterers' agents. No principle of vicarious responsibility would result in the charterers
being held liable for the carelessness of the stevedores. Hence, no doubt, the supplementary
finding of fact that the stevedores were the charterers' servants.

There are three cases on which Polemis is based. First, Smith v. London and South Western
Railway Co.5 The statement in that case by Kelly C.B. that "there was negligence in the defendants
in not removing these trimmings, and that they thus became responsible for all the consequences
of their conduct,"6 involves (i) the view that one can have negligence in the air, and (ii) that if X by
an act which is negligent in relation to Y, because it is foreseeable that X's act will injure Y, injures
Z, then X is liable to Z for injury which Z suffers as a direct consequence of X's act. Those two
conclusions, (i) and (ii), are not the law, and there appears to be no case which supports them. In
Haynes v. Harwood7 it is expressly said that "negligence in the air will not do,"8 and that "it is not
necessary to show that this particular accident and this particular damage were probable; it is
sufficient if the accident is of a class that might well be anticipated as one of the reasonable and
probable results of the wrongful act."9 That accurately states the position, and it is not reconcilable
with what, it is submitted, necessarily follows from the dictum of Kelly C.B. in Smith's case.10 As a
dictum it is wrong; if a mere dictum it can be disregarded; if it means what it appears to mean, it is
irreconcilable with later authorities, viz., Bourhill v. Young11; Woods v. Duncan.12

5 (1870) L.R. 6 C.P. 14.

6 Ibid. 20.

7 [1935] 1 K.B. 146; 51 T.L.R. 100, C.A.

8 [1935] 1 K.B. 146, 152.

9 Ibid. 156.

10 L.R. 6 C.P. 14, 20.

 Page 7

11 [1943] A.C. 92; [1942] 2 All E.R. 396, H.L.

12 [1946] A.C. 401.

[1961] A.C. 388 Page 395

Another aspect of Smith's case13 must be mentioned. When that case was decided it had not
previously been suggested that there was any difference between the measure of damages in
contract and in tort. In that regard reference may be made to Horne v. Midland Railway Co.,14
which was decided three years after Smith's case15 and by a court consisting of very much the
same judges. Smith's case was not, however, referred to. From this it may be inferred that Smith's
case was not intended to depart from well-recognised lines with regard to damages in contract and
in tort. Further, the view of the Chief Baron in Smith's case does not correspond with the position in
the law of the United States of America as enunciated in Palsgraf v. Long Island Railway Co.16

The second case which was said to support the view in Polemis is H.M.S. London.17 In that case,
however, the judge regarded the consequence, i.e., the strike, as foreseeable. It was "not
unexpected." So regarded, the case affords insufficient foundation and support for the decision in
Polemis.

The third case on which Polemis is based is Weld-Blundell v. Stephens.18 A short passage in a
long speech of Lord Sumner's is here relied on: "What are the 'natural, probable and necessary'
consequences? Everything that happens, happens in the order of nature and is therefore natural.
 What a defendant ought to have anticipated as a reasonable man is material when the question
is whether or not he was guilty of negligence, that is, of want of due care according to the
circumstances. This, however, goes to culpability, not to compensation."19 Those words of Lord
Sumner were not, it is submitted, considered in Polemis20 in the light of the facts of Weld-Blundell
v. Stephens. That case was based on breach of contract. If foreseeability is irrelevant to
remoteness of damage (as Polemis decided), and Lord Sumner's dictum can be read as supporting
this, it must be equally applicable in contract and in tort. This would involve the consequence that
the first rule in Hadley v. Baxendale21 is wrong. Hitherto this has never been suggested and
Hadley v. Baxendale was never referred to in Polemis.

In two subsequent cases the Court of Appeal must have taken

13 L.R. 6 C.P. 14.

14 (1873) L.R. 8 C.P. 131, 140.

15 L.R. 6 C.P. 14.

 Page 8

16 (1928) 248 N.Y. 339.

17 [1914] P. 72, 80; 30 T.L.R. 196.

18 [1920] A.C. 956; 36 T.L.R. 640, H.L.

19 [1920] A.C. 983-984.

20 [1921] 3 K.B. 560, 570.

21 (1854) 9 Exch. 341.

[1961] A.C. 388 Page 396

Lord Sumner's passage as obiter: Stansbie v. Troman22; Davies v. Liverpool Corporation.23 In

Weld-Blundell v. Stephens24 the direct consequence" with which Lord Sumner was concerned was
not a physical consequence. Yet in a later case, Liesbosch, Dredger v. Owners of S.S. Edison,25
Lord Wright said that Polemis was limited in its scope to immediate physical consequences of
negligence. In Polemis the Court of Appeal were relying on a dictum in Weld-Blundell26 which, in
the light of the decision in the Liesbosch,27 had no applicability on the facts of Polemis, because no
physical consequence was involved in Weld-Blundell.

In Thurogood v. Van den Berghs & Jurgens Ltd.28 Polemis appears to have been accepted by the
Court of Appeal without argument as authoritative and then applied to wholly different
circumstances. In that case the court propounded the rule that, if the court concludes that the act of
X might have injured Y in a foreseeable way (though it did not) but does injure Y in an
unforeseeable way, X is liable. The decision invites the further comment that the defendant incurred
no liability to the plaintiff until the plaintiff had been injured in an unforeseeable way. The only
damage that was foreseeable was hypothetical and was therefore not damage in the legal sense.
This decision shows the difficulties which are inherent in the Polemis decision. Moreover, it is not
easy to reconcile the observations of Asquith L.J. in Thurogood's case29 with his observations in
Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd.30

The next submission is that the decisions on which Polemis is based are not consistent with a
number of subsequent decisions. In Hambrook v. Stokes Brothers31 the defendant's negligence
was admitted on the pleadings. That admission is material to a true appreciation of the case. In
Bourhill v. Young32 Lord Russell of Killowen said: "In considering whether a person owes to
another a duty a breach of which will render him liable to that other in damages for negligence, it is
material to consider
 Page 9

22 [1948] 2 K.B. 48, 51; 64 T.L.R. 226; [1948] 1 All E.R. 599, C.A.

23 [1949] 2 All E.R. 175, C.A.

24 [1920] A.C. 956.

25 [1933] A.C. 449, 461; 49 T.L.R. 289, H.L.

26 [1920] A.C. 956.

27 [1933] A.C. 449.

28 [1951] 2 K.B. 537, 550; [1951] 1 T.L.R. 557; [1951] 1 All E.R. 682, C.A.

29 [1951] 2 K.B. 537, 539.

30 [1949] 2 K.B. 528; 65 T.L.R. 274; [1949] 1 All E.R. 997, C.A.

31 [1925] 1 K.B. 141, 143, 150, 158; 41 T.L.R. 125, C.A.

32 [1943] A.C. 92, 100; [1942] 2 All E.R. 396.

[1961] A.C. 388 Page 397

consideration may play a double role. It is relevant in cases of admitted negligence  to the
question of remoteness of damage, i.e., to the question of compensation not to culpability, but it is
also relevant in testing the existence of a duty as the foundation of the alleged negligence, i.e., to
the question of culpability not to compensation." In this passage Lord Russell was in effect
expressing the view that Polemis was wrong. The following submissions may be formulated as
arising from Bourhill v. Young32: (1) The area of risk, although not defined, is clearly not limited to a
geographical area; it includes an area of risk of sustaining damage such as that of which the
plaintiff complained in the action. (2) The defendant will not be liable unless it is reasonably
foreseeable that the damage complained of in the action is within such area of risk. (3) Whether or
not damage of any particular character is within such area of risk will turn on the circumstances of
 Page 10

each case. Damage will not be within the area of risk if it is of a character that could not reasonably
have been foreseen as likely to be caused by the careless act. (4) The materiality of the area of risk
will not arise in all cases, but it will or may arise where the damage is of a character that could not
reasonably have been foreseen.

Bourhill's case32 recognises and reconciles a possible conflict between two approaches to the
problem of whether or not a defendant is guilty of negligence. One approach starts with the alleged
negligent act and asks: "Were the consequences of the act foreseeable?" The other approach
starts with the consequences of the alleged negligent act and asks: "What was the cause?" The
latter approach has involved judges in adjectival distinctions, viz., "direct," "proximate," "dominant,"
which defy accurate definition. The former approach gives effect, first, to the view that it is for the
consequences of his act that the law of torts holds a defendant responsible, and, secondly, that it is
only for the foreseeable consequences that a defendant should be held responsible, because it is
only against such consequences that he can take precautions. This approach can be further
developed by regarding a duty of care as involving a duty to guard against a reasonably
foreseeable risk to one's neighbour in law and a cause of action in negligence for breach of such
duty as complete only if the damage sustained is of a character that it is reasonably foreseeable
would result from the breach of duty.

The remaining authorities which are not consistent with the

32 [1943] A.C. 92.

[1961] A.C. 388 Page 398

decisions on which Polemis is based are Glasgow Corporation v. Muir33: Lord Thankerton there
said that "it has long been held in Scotland that all that a person can be held bound to foresee are
the reasonable and probable consequences of the failure to take care, judged by the standard of
the ordinary reasonable man"; Woods v. Duncan,34 in particular the speeches of Viscount Simon,
Lord Russell and Lord Simonds; Bolton v. Stone35: Malcolm v. Dickson.36 This last case is of
particular importance as showing beyond doubt that the Polemis decision does not form part of the
law of Scotland and as indicating that Scots law considers that damage cannot be direct if it is not
foreseeable.

Finally, on this branch of the argument, it is not easy to reconcile the judgment of Denning L.J. in
King v. Phillips37 with the decision in Polemis. In Roe v. Minister of Health38 Denning L.J. said: "It
is so easy to be wise after the event and to condemn as negligence that which was only a
misadventure. We ought always to be on guard against it "; and later: The decision in In re
Polemis is of very limited application."

Next, the rule in Polemis is wrong because, if it is right, a person can, and on occasions will, be
held liable for the unforeseeable consequences of his act. This is manifestly contrary to justice.
Irrespective, however, of such considerations, this branch of the argument involves the problem
whether the Polemis rule is limited to contract cases, limited to tort cases, or applicable to both. In
this connection three conflicting views have been expressed, a fact of itself sufficient to raise
doubts as to the soundness of the rule. First, it has been said that the rule is limited to contract
cases. This seems to be based on the view that Polemis should itself be regarded as a case of
 Page 11

contract and on a passage in the judgment of Sargant L.J. in Hambrook v. Stokes Brothers.39
There appears to be no other authority for this suggestion, which is difficult to sustain if only
because it would contradict the first rule in Hadley v. Baxendale.40

The second view is that the rule in Polemis is limited to tort cases: see Lord McNair, "This Polemis
Business," (1931) 4

33 [1943] A.C. 448, 454; 59 T.L.R. 266; [1943] 2 All E.R. 44, H.L.

34 [1946] A.C. 401, 421, 426, 436-437; 62 T.L.R. 283; [1946] 1 All E.R. 420, H.L.

35 [1951] A.C. 850; [1951] 1 T.L.R. 977; [1951] 1 All E.R. 1078, H.L.

36 1951 S.C. 542, 547, 550.

37 [1953] 1 Q.B. 429, 437; [1953] 2 W.L.R. 526; [1953] 1 All E.R. 617, C.A.

38 [1954] 2 Q.B. 66, 83; [1954] 2 W.L.R. 915; [1954] 2 All E.R. 131, C.A.

39 [1925] 1 K.B. 141, 164; 41 T.L.R. 125, C.A.

40 9 Exch. 341.

[1961] A.C. 388 Page 399

366; Halsbury's Laws of England, 2nd ed., vol. 10, p. 102. This view seems to be more favoured
by textbook writers than the third possibility, namely, that the rule is applicable both in contract and
in tort. Both these views are, however, inconsistent with decisions which show that, at any rate
when Polemis was decided, the rule as to remoteness of damage was the same in contract and in
tort.

Polemis, to the effect that the rule governing remoteness of damage in tort is the same as that
prescribed for breach of contract by the first rule in Hadley v. Baxendale41: see The Notting Hill42;
The Argentino43; Cobb v. Great Western Railway Co.44; H.M.S. London45; R. & H. Hall Ltd. v. W.
H. Pim (Junior) Co. Ltd.46; The Metagama47; The Edison48; Liesbosch, Dredger v. Owners of S.S.
Edison49; The Arpad50; Haynes v. Harwood51; Domine v. Grimsdale52 and Hyett v. Great
 Page 12

Western Railway Co.53 It follows from these authorities that damages for negligence are only
recoverable if the damage in question could reasonably have been foreseen as likely to arise
"naturally, i.e., according to the usual course of things" (in the words of the first rule in Hadley v.
Baxendale54 from the act or omission complained of, otherwise such damage is too remote. In the
present case, having regard to the finding that damage by fire could not have been foreseen as a
consequence of the negligence in allowing furnace oil to escape, the damage by fire to the
respondents' wharf is too remote in law. There appears to be no case in which it has been
authoritatively suggested that one has to apply one measure of damages in tort and another
measure in contract. The cases cited indicate authoritatively that the measure of damages is the
same. They are cited to undermine the rule in Polemis by showing how ambiguous is its
application.

The cases of Smith v. Green,55 Pearson v. Cox56 and Hyett v. Great Western Railway Co.57 show
that the

41 9 Exch. 341.

42 (1884) 9 P.D. 105, C.A.

43 (1888) 13 P.D. 191, C.A.; affd. (1889) 14 App.Cas. 519.

44 [1893] 1 Q.B. 459, 464, C.A.; affd. [1894] A.C. 419.

45 [1914] P. 72; 30 T.L.R. 196.

46 (1927) 33 Com.Cas. 324, H.L.

47 (1927) 29 Ll.L.Rep. 253, 254.

48 [1932] P. 52, 62, 68.

49 [1933] A.C. 449.

50 [1934] P. 189, 216; 50 T.L.R. 505, C.A.

 Page 13

51 [1935] 1 K.B. 146; 51 T.L.R. 100, C.A.

52 (1937) 106 L.J.K.B. 386, 392.

53 [1948] 1 K.B. 345; 63 T.L.R. 411; [1947] 2 All E.R. 264, C.A.

54 9 Exch. 341.

55 (1875) 1 C.P.D. 92, 94-96.

56 (1877) 2 C.P.D. 369, 372, C.A.

57 [1948] 1 K.B. 345, 346-347.

[1961] A.C. 388 Page 400

Hadley v. Baxendale58 words "naturally, i.e., according to the usual course of things," mean natural
and probable. Hadley v. Baxendale58 is authoritative. It was not, however, cited in argument or
referred to in the judgments in Polemis. Sir Frederick Pollock (Pollock on Torts, 1939 ed., pp.
29-30) thought that Polemis might be regarded as having been decided per incuriam because
Hadley v. Baxendale was not drawn to the attention of the court. The rule in Polemis cannot be
reconciled with the first rule of Hadley v. Baxendale. Any attempt to reconcile the two cases
involves, in the words of Sir Frederick Pollock, "a violent artificial construction." Lord Porter in
Morrison Steamship Co. Ltd. v. Greystoke Castle (Cargo Owners)59 said that "the Polemis case
added a further liability, viz., damage consisting of the direct physical consequences of the tortious
act whether they would reasonably be anticipated or not." This view was, however, unnecessary to
the decision and no authority supports it. "Naturally" as used in Hadley v. Baxendale60 cannot
mean "directly" as used in Polemis. The test is: "Is the damage of such a character as a defendant
could reasonably be expected to have anticipated?" The test is objective, viz., what a reasonable
man would have foreseen. Such a test is consonant with justice. It also avoids linguistic niceties of
a quasi-philosophical character. It is practical. Moreover, to acknowledge the existence of one rule
as to liability and another and different rule as to unforeseeable consequential harm means that
closely related aspects of the same problem are governed by rules expressing widely divergent
policies. The Polemis rule has, it is submitted, no pride of ancestry. It should - to complete the
quotation - be allowed no hope of posterity.

Two cases referred to in Polemis - Rigby v. Hewitt61 and Greenland v. Chaplin62 - are both tort
cases. Analysis of the reports of the judgments in those cases does not bear out the inconsistency
suggested in argument in Polemis. Whichever version is accepted, the judgments of Pollock C.B.
contain clear expression of view (even if obiter) that damage, to be recoverable, should be
reasonably foreseeable. There are a number of cases on this aspect of the matter. In Sharp v.
 Page 14

Powell63 judgment was for the defendant on the ground that "the injury was not

58 9 Exch. 341.

59 [1947] A.C. 265, 295; 63 T.L.R. 11; [1946] 2 All E.R. 696, H.L.

60 9 Exch. 341.

61 (1850) 5 Exch. 240; 19 L.J. Exch. 292.

62 (1850) 5 Exch. 243; 19 L.J. Exch. 295.

63 (1872) L.R. 7 C.P. 253.

[1961] A.C. 388 Page 401

or likely consequence to result from his permitting his van to be washed in the public street." The
same principle, it is submitted, is inherent in the well-known statement of Lord Dunedin in Fardon v.
Harcourt-Rivington64: "In other words, people must guard against reasonable probabilities but they
are not bound to guard against fantastic possibilities." The limitation of reasonable damage to loss
which might reasonably have been foreseen as a consequence of the wrongful act has been
endorsed in other cases: see Lynch v. Knight,65 Clark v. Chambers,66 Cory v. France67 and
Clinton v. J. Lyons & Co. Ltd.68 This view of the law was current among textbook writers before
Polemis: see Salmond on Torts, 1st ed., p. 99 et seq., and Mayne on Damages, 9th ed., p. 45 et
seq. Professor Goodhart in 68 L.Q.R. 514 discusses the difficulty of coherently expressing the
basis of liability for damages since the rule in Polemis. The above body of authority is persuasive. If
the Polemis rule is sound, Cox v. Burbridge69 cannot be reconciled with it. See also Blyth v.
Birmingham Waterworks Co.70 In Mayne on The Law of Damages, 1st ed. (1856), at p. 19, it is
said: "All the previous cases, according to English law, are resolved by answering the question: Is
the particular result such as might have been contemplated by the parties, as naturally flowing from
the act done? The same question, upon the same principle, solves a number of other cases. "
That was two years after Hadley v. Baxendale,71 and is in line with the cases which have been
referred to.

There are two additional arguments with regard to Polemis. The first arises out of the decision in
the Liesbosch case.72 The Polemis rule is a rule as to remoteness of damage. Such a rule is
unlikely to be sound if its applicability is to be confined to a particular type of damage, namely, to
immediate physical consequences. The second argument arises out of the decision in Gorris v.
Scott.73 That case suggests that there is no room for the application of the Polemis rule to damage
caused by a statutory tort. Therefore, if the rule in Polemis is sound, a different rule will exist
according to whether the tort is a common
 Page 15

64 (1932) 146 L.T. 391, 392.

65 (1861) 9 H.L.C. 577, 600.

66 (1878) 3 Q.B.D. 327, 336-338.

67 [1911] 1 K.B. 114, 122, 133; 27 T.L.R. 18, C.A.

68 [1912] 3 K.B. 198, 203-205, 210-211; 28 T.L.R. 462.

69 (1863) 13 C.B.N.S. 430.

70 (1856) 11 Exch. 781.

71 9 Exch. 341.

72 [1933] A.C. 449.

73 (1874) L.R. 9 Exch. 124.

[1961] A.C. 388 Page 402

law tort or a statutory tort. This is anomalous. [Reference was also made to Director of Public
Prosecutions v. Smith.74] Polemis was regarded as an effective decision in Thurogood's case,75
but there is no approval of it in that case. Thurogood's case affords scant support for the view,
suggested by the respondents here, that Polemis has long been acted upon. Aldham v. United
Dairies (London) Ltd.76 was not a case in which Polemis was acted upon, although it has been
referred to as a case in which Polemis was followed. Even if Polemis has been acted on, the Board
should not thereby be deterred from concluding that it is wrong.

The next submission is that the damage here was not direct. Damage, it has been said, cannot be
direct unless it is proximate, and if it is proximate it must be foreseeable. Since the damage here,
 Page 16

on the concurrent findings of fact, was not foreseeable, it was not direct. That approach is
conclusive. The only definition of what is meant by "direct" would appear to be that of Scrutton L.J.
in Polemis77 and the dictum of Lord Sumner in the Weld-Blundell case.78 The following test is
suggested as to what is meant by "direct": "Was the injury caused by the working out of the
injurious tendencies of the negligent act through known natural laws of cause and effect to its final
result, or did some outside agency, not in itself created by the wrongdoer, intervene to divert the
consequences to some new and different end?" It would seem that damage would not be direct if it
was not the immediate consequence or physical consequence, or if it arose as the result of the
co-operation of some extraneous matters: see the Liesbosch.79 on the facts of the present case,
therefore, the fire damage was certainly not immediate - it was two-and-a-half days after the oil was
spilled into the harbour - and it certainly arose as the result of the co-operation of extraneous
matters. The damage here was not direct. [Minister of Pensions v. Chennell80 was referred to.]
This point does not, however, arise if the Polemis rule is not sound.

Lastly, the question of novus actus interveniens is linked with what has just been submitted. The
authorities on it have

74 [1960] 3 W.L.R. 546; [1960] 3 All E.R. 161, H.L.

75 [1951] 2 K.B. 537.

76 [1940] 1 K.B. 507; 56 T.L.R. 201; [1939] 4 All E.R. 522, C.A.

77 [1921] 3 K.B. 560, 577.

78 [1920] A.C. 956.

79 [1933] A.C. 449.

80 [1947] K.B. 250; 62 T.L.R. 753; [1946] 2 All E.R. 719.

[1961] A.C. 388 Page 403

already been cited: Haynes v. Harwood,81 King v. Phillips,82 Woods v. Duncan83 and Roe v.
Minister of Health.84 There are two further cases: The Oropesa85 and Latham v. R. Johnson &
Nephew Ltd.86 The remarkable concatenation of circumstances in this case, which are described
in the judgment below as "a most extraordinary and unusual combination" and "improbability was
heaped upon improbability," do constitute, in the light of the definitions to which attention has been
drawn, novus actus interveniens. One must look at this particular combination of all the
 Page 17

circumstances. Nobody could reasonably have foreseen that the circumstances would so combine
as to produce this conflagration.

Meares Q.C. following. With regard to novus actus interveniens, there may well be a force which is
passive, but that has little bearing on the actual issues in this case. Another example of novus
actus interveniens is a force which is in existence at the time of the carelessness but which actively
operates after the carelessness is committed. Lord Simonds in Woods v. Duncan87 referred to a
combination of circumstances which could not be foreseen. It would be difficult to imagine - and
there is certainly no precedent for it in the books - any more extraordinary combination of
circumstances than existed in the present case. Not only was the combination of circumstances
leading up to the fire even more coincidental and extraordinary than in Woods v. Duncan,87 but, in
addition, it was known to nobody who gave evidence at that time that the result itself could have
been foreseen.

R. L. Taylor Q.C. and Russell Bainton (both of Australia) for the respondents. It is submitted: (1)
that the respondents are entitled to retain this verdict for the reasons given by the trial judge. This
involves that the principles to be extracted from the Polemis decision correctly state the law; that
Polemis itself was correctly decided and is a decision on liability for damages in tort; that the
decision has not been overruled or disapproved and, unless manifestly wrong or per incuriam,
should not be disturbed. (2) The appellants' negligent act caused the damage by fire to the
respondents' wharf. That question of fact was found in the respondents' favour by the trial judge
and by

81 [1935] 1 K.B. 146.

82 [1953] 1 Q.B. 429.

83 [1946] A.C. 401.

84 [1954] 2 Q.B. 66.

85 [1943] P. 32; 59 T.L.R. 103; [1943] 1 All E.R. 211, C.A.

86 [1913] 1 K.B. 398; 29 T.L.R. 124, C.A.

87 [1946] A.C. 401.

[1961] A.C. 388 Page 404

 Page 18

the Court of Appeal. These are concurrent findings of fact. (3) If the Polemis principle is not to be
followed, the respondents are entitled to hold the verdict because the damage to their wharf was
the natural consequence of the appellants' negligence, and this does not involve any challenge to
the only relevant specific finding by the trial judge. (4) The facts pleaded and proved establish that
the damage complained of resulted from the commission by the appellants of a public nuisance
actionable at the suit of the respondents. In this respect foresight as to the character of the damage
in fact caused is irrelevant.

The reasons for judgment in Polemis have for so long been acted upon that they ought not now to
be departed from: Thurogood v. Van den Berghs & Jurgens Ltd.88; Malleys Ltd. v. Rogers89;
Dickson v. Commissioner for Railways (Qld.).90 [Reference was made to the argument in
Polemis91 and to Scrutton on Charterparties, 16th ed., p. 4, para. 2.] The presence of a clause of
delivery and redelivery in a time charter was considered in Italian State Railways v.
Mavrogordatos.92 Not only is there nothing in the proceedings right up to the Court of Appeal to
warrant the suggestion that Polemis was a decision on contract, but all the references that have
been made to it are references to it on the tort of negligence. Polemis has been understood and
followed as applicable in cases involving the actionable tort of negligence; it is a curious thing if it
has been misunderstood for 40 years. The confusion arises mainly from a failure to appreciate the
significance of the time charter and the position raised by the pleadings. Mr. Roskill submitted that
there was no satisfactory factual basis for the decision in Polemis. There is. Mr. Roskill apparently
adopted in its entirety the criticism of Polemis by Manning J. in the court below. It is all based,
however, on a complete misconception that Polemis decided a contractual question whether the
charterers failed to deliver the vessel. On the true construction of the clause there could not be a
claim for redelivery. Secondly, there is the misconception that the parties litigated on the meaning
to be attached to the words to be implied in clause 21, the words being "loss other than loss caused
by the negligence of the charterers."

With regard to the decisions which Mr. Roskill said did not support Polemis, the first,

88 [1951] 2 K.B. 537.

89 (1955) 55 S.R.(N.S.W.) 390.

90 (1922) 30 C.L.R. 579.

91 15 Asp.M.C.N.S. 398, 399.

92 [1919] 2 K.B. 305, 311.

[1961] A.C. 388 Page 405

Smith v. London and South Western Railway Co.,93 correctly represents the law as it then was; the
 Page 19

defendant was liable for all the direct consequences whether he could foresee them or not. What
was said by Winfield in Selected Legal Essays, p. 70 (an article which appeared in (1934) 34
Columbia Law Review), where he traces the growth of the duty concept and its development in the
English cases, is adopted. Smith's case93 was a decision on whether or not there was sufficient
evidence to go to the jury on the issue of negligence; the statement of principle was that, if the
defendant was negligent, then he was liable for the consequences of his negligence irrespective of
whether he could foresee them or not. See also Bartlett v. Winnipeg Electric Railway Co.,94 a case
in the Supreme Court of Canada before Polemis was decided. The significance of the decision in
H.M.S. London95 is that Sir Samuel Evans adopted what was said in Smith's case.96 In
Weld-Blundell v. Stephens97 the majority of the Law Lords used the direct test to cut down the area
of responsibility. The plaintiff failed because the consequence was not the direct result of the
defendant's breach of duty. Mr. Roskill said that that decision did not support Polemis. It was
concerned with remoteness of damage.

Thurogood's case98 is cited for (i) the statement as to the criticism of Polemis in the intervening
years, and (ii) it is a clear and direct application in 1951 of the Polemis principle. It has not been
shaken and is a binding authority so far as the Court of Appeal is concerned. So far as the actual
decision in Rigby v. Hewitt99 went, it was one which anticipated Polemis. See also Greenland v.
Chaplin.100 It would be unfair to leave the respondents to bear the damage solely caused by the
appellants. [Winfield on Torts, 6th ed., p. 97, was referred to.] What was said in Hambrook v.
Stokes Brothers101 cannot be regarded as a criticism of Polemis. Aldham v. United Dairies
(London) Ltd.102 was a direct application of the Polemis rule, and Polemis was referred to in
Adelaide Steamship Co. v. The King.103 What the judges said in Bourhill v. Young104 was
referable to the facts of that case, which are entirely different from those here. It will be seen that all
the Lords were dealing with the case from the point of view of duty, and not of damage.

93 L.R. 5 C.P. 98, 103; L.R. 6 C.P. 14, 21.

94 [1920] 1 W.W.R. 95.

95 [1914] P. 72, 77.

96 L.R. 5 C.P. 98.

97 [1920] A.C. 956, 975.

98 [1951] 2 K.B. 537.

99 5 Exch. 240.
 Page 20

100 5 Exch. 243.

101 [1925] 1 K.B. 141, 164.

102 [1940] 1 K.B. 507, 512.

103 [1923] 1 K.B. 59, 65; 38 T.L.R. 864, C.A.

104 [1943] A.C. 92, 98.

[1961] A.C. 388 Page 406

Polemis does not lay down a rule of universal application and say that in every case one is liable for
direct consequences. In Glasgow Corporation v. Muir105 there was no duty cast on the defendant,
for the reason that there was no danger reasonably foreseeable of injury to any person. It does not
conflict in any way with what was said in Polemis. Woods v. Duncan106 takes nothing from
Polemis. In all the speeches it was said that there was no breach of a duty owed in the particular
circumstances.

The respondents submit that the appellants are liable for the damage caused by the fire because
such damage was directly traceable to acts of the appellants, which constituted either negligence or
a public nuisance. As to negligence: the appellants owed a duty to persons so closely and directly
affected by their acts or omissions that they ought at the time of those acts or omissions to have
had them in their contemplation as being so affected, the duty was to take reasonable care to avoid
spilling a large quantity of furnace oil onto the water of Morts Bay: Donoghue v. Stevenson,107 per
Lord Atkin. The same proposition may be stated as that the appellants owed a duty to conduct the
operation of bunkering with such reasonable care as would avoid the risk of injury to persons within
that which the appellants ought to have reasonably contemplated as the area of potential danger
which would arise as the result of the spillage of the oil: Bourhill v. Young108 per Lord Thankerton.
The respondents ought reasonably to have been in the appellants' contemplation, at the time of
bunkering, as likely to be closely or directly affected by the spillage of the oil, or within the area of
potential danger which would arise as a result of the spillage, because it was obviously likely that
such oil would be carried by wind and tide into the Bay. In fact the spillage did cause the damage in
question; the appellants' failure to take reasonable care was the cause of the damage, which was
recoverable from them by the respondents.

In Woods v. Duncan109 the thing itself was of no danger, whereas in the present case the oil
increased the risk of damage by fire. The last case in which Polemis was followed in the Court of
Appeal (by a majority) was Kilgollan v. William Cooke & Co. Ltd.110; the particular injury there was
not reasonably foreseeable. In the Liesbosch case111 Lord Wright said that Polemis
 Page 21

105 [1943] A.C. 448.

106 [1946] A.C. 401.

107 [1932] A.C. 562, 580.

108 [1943] A.C. 92, 98.

109 [1946] A.C. 401.

110 [1956] 1 W.L.R. 527; [1956] 2 All E.R. 294, C.A.

111 [1933] A.C. 449, 461.

[1961] A.C. 388 Page 407

correctly stated the law, and the other Lords agreed with his speech. Bolton v. Stone112 was
basically a decision on whether the judge's finding on an issue of fact was correct; there is nothing
in any of the speeches which is inconsistent with Polemis. The reference to Polemis by Denning
L.J. in Jones v. Livox Quarries Ltd.113 is relied on as directly rejecting the argument of the
appellants here. Denning L.J. again referred to Polemis in Roe v. Minister of Health.114

Polemis has been followed in Commonwealth courts: Dickson v. Commissioner for Railways
(Qld.)115; Chester v. Waverley Corporation116; and it was referred to as correctly stating the law in
Victorian Railways Commissioners v. Speed117 and Hoyt's Pty. Ltd. v. O'Connor.118 In New South
Wales both branches of Polemis have been accepted as correctly decided: Malleys Ltd. v.
Rogers,119 and it has been followed in South Australia: Richards v. Baker,120 and in New Zealand
it has been applied extensively: Barrett v. Hardie & Thompson Ltd.121; Cervo v. Swinburn (Ferretti,
Third Party)122; Williams v. B.A.L.M. (N.Z.) Ltd. (No. 3)123; Hibberds Foundry Ltd. v. Hardy.124 Of
the relevant Canadian cases, Bartlett v. Winnipeg Electric Railway Co.125 was decided before
Polemis. In F. W. Jeffrey & Sons Ltd. v. Copeland Flour Mills Ltd.126 Polemis was applied. In Duce
v. Rourke127 it was held that the damages there were not too remote although the defendant could
not have foreseen them. Polemis is cited in Honan v. McLean.128 The last Canadian case, Seaway
Hotels Ltd. v. Consumer's Gas Co.,129 is, it is submitted, a case in which the Polemis principle was
applied.

There is no conflict between Polemis and Hadley v. Baxendale130; Polemis is a decision on liability
for negligence in tort; Hadley's case was an action for breach of contract, and not only did it not
purport to say anything about the measure of damages in tort but it gave as the reasons for the two
rules it promulgated matters which would be quite invalid as reasons for an action
 Page 22

112 [1951] A.C. 850, 868.

113 [1952] 2 Q.B. 608, 615.

114 [1954] 2 Q.B. 66, 84.

115 (1922) 30 C.L.R. 579, 583.

116 (1939) 62 C.L.R. 1, 6, 29.

117 [1928] V.L.R. 150, 166.

118 [1928] V.L.R. 222, 235.

119 (1955) 55 S.R., N.S.W. 390, 393.

120 [1943] S.A.S.R. 245, 249.

121 [1924] N.Z.L.R. 228.

122 [1939] N.Z.L.R. 430, 435.

123 [1951] N.Z.L.R. 893, 899.

124 [1953] N.Z.L.R. 14.

125 [1920] 1 W.W.R. 95.

 Page 23

126 (1922) 52 Ont.L.R. 617, 628.

127 [1951] 1 W.W.R. 305, 307.

128 [1953] 8 W.W.R. 523, 529.

129 [1959] Ont.L.R. 177.

130 9 Exch. 341.

[1961] A.C. 388 Page 408

in tort. [Reference was made to the statements of principle in The Arpad.131] There appears to be
no case in which the precise point that the damages in contract and in tort are the same has been
decided. In Great Lakes Steamship Co. v. Maple Leaf Milling Co. Ltd.132 it was the presence of the
anchor which caused the damage there. That case is cited for the proposition that the defendants,
having made a breach of their contract, were liable for damages which in fact flowed from the
breach, although they did not know, and neither party knew, that the cause of the damage existed.

Mr. Roskill drew a distinction between the way in which the rule is expressed in Hadley v.
Baxendale133 and in Polemis and said that as those two cases were in conflict the rule in the
former prevailed. That involved an examination of the cases in which it was said that the rules were
the same, and also of the cases where the expression "natural and direct" occurred: The
Susquehanna134; The Argentino.135 All that Kelly C.B. is saying in Rigby v. Hewitt136 is that at
least every person is responsible for such consequences as he could reasonably foresee. "Direct"
was preferred to "natural" in the Weld-Blundell case137; it was framed in tort, but was a decision on
breach of contract; the real point at issue, however, was whether the damages were too remote.
Lord Dunedin is using the words "natural and probable" in a sense different from "foreseeable."
Lord Sumner is not saying that "natural and probable" is wrong, but that in that particular case,
which was a novus actus case, they are not the appropriate expressions; the appropriate
expression was "direct." He rejects "probability" as the test so far as remoteness of damage is
concerned. He said that different tests must be applied according to the category of the case under
consideration. Gorris v. Scott138 was considered in Grant v. National Coal Board.139 That
concludes the observations that Polemis was rightly decided.

Smith v. London and South Western Railway Co,140 has now become a rule of law; it has been
followed since 1871; the observations of Lord Goddard in

131 [1934] P. 189, 201, 232; 50 T.L.R. 505, C.A.

 Page 24

132 (1924) 41 T.L.R. 21, P.C.

133 9 Exch. 341.

134 [1926] A.C. 665; 42 T.L.R. 639, H.L.

135 13 P.D. 191, 200, C.A.

136 5 Exch. 240.

137 [1920] A.C. 956.

138 (1874) L.R. 9 Exch. 124.

139 [1956] A.C. 649, 655; [1956] 2 W.L.R. 752; [1956] 1 All E.R. 682.

140 L.R. 6 C.P. 14.

[1961] A.C. 388 Page 409

Carmarthenshire County Council v. Lewis141 are apposite. As to the effect of the rule, what was
said by Lord Porter in Morrison Steamship Co. Ltd. v. Greystoke Castle142 is adopted; and there
may be added to that what Lord Sumner said in the Weld-Blundell case143 and what Denning L.J.
said in Roe v. Minister of Health.144 Mr. Roskill said that foreseeability is the only test and that he
is not liable for this damage because he could not have reasonably foreseen it. It is not disputed
that in many cases that may be the test, but the respondents here contend for a different test, the
Polemis test, in a limited class of case.

It is submitted that where a person is under a duty to take care towards another, then, if he does
any act which he should foresee may cause damage or injury to that other, he is responsible for
any physical damage directly caused by that act, whether he could have foreseen that damage or
not. That rule is exemplified by Polemis itself, in Thurogood's case145 and in Kilgollan v. William
Cooke & Co. Ltd.146

The next proposition for which we contend is that where a person has committed a tort and caused
damage by negligence he is liable for all the physical damage directly resulting from his tortious act,
even if it differs in type or character from the damage which he or the reasonable man could have
foreseen as the result of his tortious act. Put more shortly, where the tortious act has caused both
 Page 25

foreseeable physical damage and unforeseeable physical damage of a different kind, character or
type, the defendant is liable for all. The second limb is that the defendant in this case committed the
tort of causing damage by negligence because this case is taken a step further than Polemis. In
Polemis there was no damage alleged or in fact caused by the plank which fell into the ship other
than the spark which precipitated the conflagration. In this case there has been found as a fact that
damage was caused to the plaintiffs' property and that damage sounded in financial loss.

On the basis that there was foreseeable physical injury caused and that the defendants were guilty
of the tortious act of causing damage by negligence, it is submitted that they are responsible for all
the physical damage resulting from that act, and that, if it were not foreseeable - which is not
conceded - if in fact it was directly caused by the act of negligence, that concludes the

141 [1955] A.C. 549, 560; [1955] 2 W.L.R. 517; [1955] 1 All E.R. 565.

142 [1947] A.C. 265, 295.

143 [1920] A.C. 956.

144 [1954] 2 Q.B. 66, 84.

145 [1951] 2 K.B. 537.

146 [1956] 1 W.L.R. 527; [1956] 2 All E.R. 294, C.A.

[1961] A.C. 388 Page 410

matter, this being a question of remoteness of damage only. If one leaves out of consideration the
question whether they in fact foresaw this damage, it is simply a case of the defendants' negligent
act causing the oil to escape. The fire which consisted of the oil burning was the direct result of that
act, since if they had not put the oil there it could not have been there to cause the fire. In this case
foreseeability alone is not the appropriate test; the appropriate test is that laid down by Lord Porter
as stated above.

This case was put as a Polemis case; alternatively, the appellants were negligent long before there
ever was a fire, because they must have realised at that point that the oil would constitute a danger
of injury to the respondents by fire. The appellants' first submission was that the damage by fire to
the respondents' wharf was not a reasonably foreseeable consequence of the appellants' act in
spilling the furnace oil into Morts Bay, and that therefore that act did not constitute actionable
negligence at the suit of the respondents. That is unsound for these reasons: before the oil
escaped the appellants were under a duty not only to prevent injury to the respondents but to
 Page 26

refrain from acts which might cause damage or injury to them; and the question whether they were
negligent, as distinct from the actionable tort of negligence, is to be determined at that point of time.
They have been guilty of a breach of duty to the respondents and nothing that happened thereafter
could alter that fact. The appellants' proposition involves this, that, until one has seen the full extent
of what has resulted from what they did, one is not in a position to say whether they have
committed a breach of their duty, because they say that it is only for foreseeable consequences
that they owe a duty, and one cannot tell whether the damage was foreseeable or not until one
finds out what it was. Their submission is contrary to all the principles which have been laid down
on this branch of the law, and also contrary to the good sense of the matter. [Reference was made
to Donoghue v. Stevenson.147]

The only question here is really one of remoteness of damage, and that is in substance a question
of fact: Mehmet Dogan Bey v. G. G. Abdeni & Co. Ltd.148

If the Board comes to the conclusion that the principle in Polemis is wrong, then, despite that, in the
light of the fact that

147 [1932] A.C. 562, 580.

148 [1951] 2 Q.B. 405, 409; [1951] 2. T.L.R. 30; [1951] 2 All E.R. 162.

[1961] A.C. 388 Page 411

it has been for so long acted on, it should be allowed to stand; the basis of that submission being
that it has been acted on in this country since Smith v. London and South Western Railway Co.,149
and has been acted on in Canada since prior to Polemis and has been followed in New South
Wales and the other States of Australia for so long and also in New Zealand.

On the question of causation, the argument for the appellants was that it was not the appellants'
negligent act which caused the damage because there was a novus actus interveniens, and they
rely on the concatenation of circumstances as constituting novus actus. Whether or not the breach
resulted in or caused this damage is a question of fact on which there are concurrent findings:
Yorkshire Dale Steamship Co. Ltd. v. Minister of War Transport.150 How it can be said that the
very things and circumstances that they should have taken into account in deciding whether their
act might cause damage to the respondents, and which were the very things which the appellants
either knew or should have foreseen, can thereafter constitute a novus actus, it is difficult to see.
This cannot be novus actus; it would be a curious argument that the very circumstances which
make it incumbent on them to foresee the danger of injury can be said to amount to a novus actus.

It is further submitted that irrespective of the rule in Polemis the appellants committed the tort of
negligence when they allowed this oil to escape when they could foresee the possibility of danger
to the respondents of injury by fire. The damage was in fact directly traceable to the discharge of
the oil and not to the operation of independent causes having no connection with the discharge of
the oil except that they could not avoid its results. The damage was foreseeable. Furnace oil
floating on water can in certain circumstances be ignited and the resulting fire is likely to do
 Page 27

damage to foreshore installations: Eastern Asia Navigation Co. Ltd. v. Fremantle Harbour Trust
Commissioners151; that case, where oil caught fire on water, is cited to show what are the physical
properties of this particular oil, because it is in light of those that one is to judge the extent of the
duty which the appellants owed.

Bainton following. Causing harm to land adjoining a public highway by a user of the highway
constitutes the commission of

149 L.R. 6 C.P. 14.

150 [1942] A.C. 691, 706; 58 T.L.R. 263; [1942] 2 All E.R. 6.

151 (1951) 83 C.L.R. 353.

[1961] A.C. 388 Page 412

a public nuisance and one actionable at the suit of the proprietor of any such land who has suffered
greater injury than members of the public in general. For the purpose of that rule navigable waters
fall into the same category as public highways, and foreshore proprietors fall into the same
category as owners of land adjoining a highway. Secondly, it is irrelevant to such a cause of action
that the person whose activities caused the harm did not foresee the type or the extent of the harm
that his acts would cause. Thirdly, damages are recoverable for the physical injuries in fact caused
by the nuisance irrespective of whether the person causing it could have foreseen the type or
extent of the damage.

[The point having been taken for the appellants that it was not in the circumstances open to the
respondents to raise the point of nuisance, the Board, after a short adjournment, said that in the
event of the appellants succeeding on the main question they would preserve the right of the
respondents to have the issue of nuisance raised in the courts of New South Wales, if those courts
thought it proper to deal with it further.]

Ashton Roskill Q.C. in reply. It is unnecessary to qualify or withdraw any of the opening
submissions for the appellants. At the basis of these submissions was the contention that one rule
as to liability and another as to unforeseeable consequential harm meant that closely related
aspects of the same problem were governed by rules expressing widely divergent policies. The
whole tenor of the submissions was that the same rule as to foreseeability governed both. The test
is whether the damage was of a character such as the appellants could reasonably be expected to
have anticipated.

As to the decision in Polemis being of long standing, the House of Lords in the Morrison Steamship
Company case152 in 1946 overruled The Marpessa,153 which had stood since 1891. Further,
Polemis has never before arisen for consideration by this Board or the House of Lords. Of the four
groups of cases relied on by the respondents - Australian, New Zealand, Canadian and English - so
far as the Australian and New Zealand cases are concerned, it was conceded, obviously rightly,
 Page 28

that in all the State cases the State High Court felt obliged to treat Polemis as sound law. No case
that has been cited from Australia, New Zealand or Canada would, however, have been decided
differently if Polemis had never been decided at all. None of the Canadian

152 [1947] A.C. 265.

153 [1891] P. 403.

[1961] A.C. 388 Page 413

cases are true Polemis cases because (a) in all of them the decisions can be rationalised on the
ground that the damage sustained was foreseeable, and (b) in one - Bartlett v. Winnipeg Electric
Railway Co.154 - there is the further factor that the Supreme Court purported to have based its
decision on Smith v. London and South Western Railway Co.155 Exactly the same comment - that
the damage was foreseeable - can be made on all the English decisions save one, Thurogood's
case,156 which can be used to illustrate the fallacy that lies somewhere near the root of the rule in
Polemis. [Reference was also made to Kilgollan's case157 and The Argentino.158] The very
conflict about whether Polemis is a rule in contract or in tort or in both casts doubt upon its
soundness.

Damages in nuisance follow the same rule as damages in negligence with regard to remoteness,
and damages in trespass follow the same approach. [Reference was also made to Read v. J.
Lyons & Co. Ltd.,159 The Arpad,160 the Great Lakes Steamship case161 and Donoghue v.
Stevenson.162] It is not merely contrary to law, but injustice, for a person to be held responsible for
consequences which he cannot foresee.

1961. January 18. The judgment of their Lordships was delivered by VISCOUNT SIMONDS , who stated the
facts set out above and continued: The trial judge also made the all-important finding, which must be set out
in his own words: "The raison d'être of furnace oil is, of course, that it shall burn, but I find the defendant did
not know and could not reasonably be expected to have known that it was capable of being set afire when
spread on water." This finding was reached after a wealth of evidence, which included that of a distinguished
scientist, Professor Hunter. It receives strong confirmation from the fact that at the trial the respondents
strenuously maintained that the appellants had discharged petrol into the bay on no other ground than that,
as the spillage was set alight, it could not be furnace oil. An attempt was made before their Lordships' Board
to limit in some way the finding of fact, but it is clear that it was intended to cover precisely the event that
happened.

one other finding must be mentioned. The judge held that

 Page 29

154 [1920] 1 W.W.R. 95.

155 L.R. 6 C.P. 14.

156 [1951] 2 K.B. 537.

157 [1956] 2 All E.R. 294.

158 13 P.D. 191.

159 [1947] A.C. 156; 62 T.L.R. 646; [1946] 2 All E.R. 471.

160 [1934] P. 189.

161 41 T.L.R. 21.

162 [1932] A.C. 562.

[1961] A.C. 388 Page 414

apart from damage by fire the respondents had suffered some damage from the spillage of oil in that it had
got upon their slip-ways and congealed upon them and interfered with their use of the slips. He said: "The
evidence of this damage is slight and no claim for compensation is made in respect of it. Nevertheless it
does establish some damage, which may be 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." It is upon this footing that their Lordships will consider the question whether the appellants are liable for
the fire damage. That consideration must begin with an expression of indebtedness to Manning J. for his
penetrating analysis of the problems that today beset the question of liability for negligence. In the year 1913
in the case of H.M.S. London,1 a case to which further reference will be made, Sir Samuel Evans P. said:
"The doctrine of legal causation, in reference both to the creation of liability and to the measurement of
damages, has been much discussed by judges and commentators in this country and in America. Vast
numbers of learned and acute judgments and disquisitions have been delivered and written upon the subject.
It is difficult to reconcile the decisions; and the views of prominent commentators and jurists differ in
important respects. It would not be possible or feasible in this judgment to examine them in anything
approaching detail." In the near half-century that has passed since the learned President spoke those words
the task has not become easier, but it is possible to point to certain landmarks and to indicate certain
 Page 30

tendencies which, as their Lordships hope, may serve in some measure to simplify the law.

It is inevitable that first consideration should be given to the case of In re Polemis and Furness Withy & Co.
Ltd.2 which will henceforward be referred to as Polemis. For it was avowedly in deference to that decision
and to decisions of the Court of Appeal that followed it that the Full Court was constrained to decide the
present case in favour of the respondents. In doing so Manning J., after a full examination of that case, said:
"To say that the problems, doubts and difficulties which I have expressed above render it difficult for me to
apply the decision in In re Polemis with any degree of confidence to a particular set of facts would be a grave
understatement. I can only

1 [1914] P. 72, 76; 30 T.L.R. 196.

2 [1921] 3 K.B. 560; 37 T.L.R. 940, C.A.

[1961] A.C. 388 Page 415

express the hope that, if not in this case, then in some other case in the near future, the subject will be
pronounced upon by the House of Lords or the Privy Council in terms which, even if beyond my capacity fully
to understand, will facilitate, for those placed as I am, its everyday application to current problems." This cri
de coeur would in any case be irresistible, but in the years that have passed since its decision Polemis has
been so much discussed and qualified that it cannot claim, as counsel for the respondents urged for it, the
status of a decision of such long standing that it should not be reviewed

What, then, did Polemis decide? Their Lordships do not propose to spend time in examining whether the
issue there lay in breach of contract or in tort. That might be relevant for a tribunal for which the decision was
a binding authority: for their Lordships it is not. It may, however, be observed that in the proceedings there
was some confusion. The case arose out of a charterparty and went to arbitration under a term of it, and the
first contention of the charterers was that they were protected from liability by the exception of fire in the
charterparty. But it is clear from the pleadings and other documents, copies of which were supplied from the
Record Office, that alternative claims for breach of contract and negligence were advanced, and it is clear,
too, that before Sankey J. and the Court of Appeal the case proceeded as one in which, independently of
contractual obligations, the claim was for damages for negligence. It was upon this footing that the Court of
Appeal held that the charterers were responsible for all the consequences of their negligent act even though
those consequences could not reasonably have been anticipated. 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. 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. The special case submitted by the
arbitrators found that the causing of the spark could not reasonably have been anticipated from the falling of
the board, though some damage to the ship might reasonably have been anticipated. They did not indicate
what damage might have been so anticipated.

There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts that, if the
defendant is guilty of negligence, he is responsible for all the consequences whether
[1961] A.C. 388 Page 416
 Page 31

reasonably foreseeable or not. The generality of the proposition is perhaps qualified by the fact that each of
the Lords Justices refers to the outbreak of fire as the direct result of the negligent act. There is thus
introduced the conception that the negligent actor is not responsible for consequences which are not "direct,"
whatever that may mean. It has to be asked, then, why this conclusion should have been reached. The
answer appears to be that it was reached upon a consideration of certain authorities, comparatively few in
number, that were cited to the court. Of these, three are generally regarded as having influenced the
decision. The earliest in point of date was Smith v. London & South Western Railway Co.3 In that case it was
said that when it has been once determined that there is evidence of negligence, the person guilty of it is
equally liable for its consequences, whether he could have foreseen them or not": see per Channell B.4
Similar observations were made by other members of the court. Three things may be noted about this case:
the first, that for the sweeping proposition laid down no authority was cited; the second, that the point to
which the court directed its mind was not unforeseeable damage of a different kind from that which was
foreseen, but more extensive damage of the same kind; and the third, that so little was the mind of the court
directed to the problem which has now to be solved that no one of the seven judges who took part in the
decision thought it necessary to qualify in any way the consequences for which the defendant was to be held
responsible. It would perhaps not be improper to say that the law of negligence as an independent tort was
then of recent growth and that its implications had not been fully examined. The second case was H.M.S.
London,5 which has already been referred to. There the statement in Smith's case was followed, Sir Samuel
Evans citing Blackburn J.6: "What the defendants might reasonably anticipate is only material with reference
to the question whether the defendants were negligent or not, and cannot alter their liability if they were guilty
of negligence." This proposition, which provides a different criterion for determining liability and
compensation, goes to the root of the matter and will be discussed later. It was repeated by Lord Sumner in
the third case which was relied on in Polemis, namely, Weld-Blundell v. Stephens.7 In that case the majority
of their Lordships, of whom Lord

3 (1870) L.R. 6 C.P. 14.

4 Ibid. 21.

5 [1914] P. 72.

6 Ibid. 77.

7 [1920] A.C. 956, 983; 36 T.L.R. 640, H.L.

[1961] A.C. 388 Page 417

Sumner was one, held, affirming a decision of the Court of Appeal, that the plaintiff's liability for damages in
certain libel actions did not result from an admitted breach by the defendant of the duty that he admittedly
owed to him. Lord Dunedin (another of the majority) decided the case on the ground that there was there no
evidence which entitled the jury to give the affirmative answer that they did to the question as put to them
that the actions of libel and damages recovered were the "natural and probable consequences" of the proved
negligence of the defendant. Lord Wrenbury (the third of the majority) summed up his view of the case by
 Page 32

saying8: "I am quite unable to follow the proposition that the damages given in the libel actions are in any
way damages resulting from anything which Stephens did in breach of duty." Lord Sumner, whose speech
their Lordships, like others before them, have not found all respects easy to follow, said9: "What a defendant
ought to have anticipated as a reasonable man is material when the question is whether or not he was guilty
of negligence, that is. of want of due care according to the circumstances. This. however, goes to culpability,
not to compensation." But this observation followed a passage in which His Lordship, directing his mind to
the problem of causation, had asked what were "natural, probable and necessary consequences," and had
expressed the view that "direct cause" was the best expression. Adopting that test he rejected the plaintiff's
claim as too remote. The question of foreseeability became irrelevant and the passage cited from his speech
was unnecessary to his decision. Their Lordships are constrained to say that this dictum (for such it was)
perpetuated an error which has introduced much confusion into the law.

Before going forward to the cases which followed Polemis, their Lordships think it desirable to look back to
older authorities which appear to them to deserve consideration. In two cases, Rigby v. Hewitt10 and
Greenland v. Chaplin,11 Pollock C.B. affirmed12 (stating it to be his own view only and not that of the court)
that he entertained "considerable doubt whether a person who is guilty of negligence is responsible for all the
consequences which may under any circumstances arise and in respect of mischief which could by no
possibility have been foreseen and which no reasonable person would have

8 [1920] A.C. 956, 999.

9 Ibid. 984.

10 (1850) 5 Exch. 240.

11 Ibid. 243.

12 Ibid. 248.

[1961] A.C. 388 Page 418

anticipated." It was not necessary to argue this question and it was not argued.

Next, one of many cases may be cited which show how shadowy is the line between so-called culpability and
compensation. In Sharp v. Powell13 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. In consequence of the extreme severity of the weather the grating was obstructed by ice
and the water flowed over a portion of the causeway and froze. There was no evidence that the defendant
knew of the grating being obstructed. The plaintiff's horse, while being led past the spot, slipped upon the ice
and broke its leg. The defendant was held not to be liable. The judgment of Bovill C.J. is particularly valuable
and interesting. "No doubt," he said,14 "one who commits a wrongful act is responsible for the ordinary
consequences which are likely to result therefrom; but, generally speaking, he is not liable for damage which
 Page 33

is not the natural or ordinary consequence of such an act unless it be shown that he knows or has
reasonable means of knowing that consequences not usually resulting from the act are by reason of some
existing cause likely to intervene so as to occasion damage to a third person. Where there is no reason to
expect it, and no knowledge in the person doing the wrongful act that such a state of things exists as to
render the damage probable, if injury does result to a third person it is generally considered that the wrongful
act is not the proximate cause of the injury so as to render the wrongdoer liable to an action." Here all the
elements are blended, "natural" or "ordinary consequences," "foreseeability," "proximate cause." What is not
suggested is that the wrongdoer is liable for the consequences of his wrongdoing whether reasonably
foreseeable or not, or that there is one criterion for culpability, another for compensation. It would, indeed,
appear to their Lordships that, unless the learned Chief Justice was making a distinction between "one who
commits a wrongful act" and one who commits an act of negligence, the case is not reconcilable with
Polemis. In that case it was not dealt with except in a citation from Weld-Blundell v. Stephens.15

Mention should also be made of

13 (1872) L.R. 7 C.P. 253.

14 Ibid. 258.

15 [1920] A.C. 956.

[1961] A.C. 388 Page 419

Cory & Son Ltd. v. France Fenwick & Co. Ltd.16 In that case Vaughan Williams L.J., citing the passage from
the judgment of Pollock C.B. in Greenland v. Chaplin which has already been read, said17: "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."
And Kennedy L.J. said of the same passage," with that view of the law no one would venture "to quarrel."
Some doubt was expressed in Polemis as to whether the citation of which these learned judges so
emphatically approved was correct. That is irrelevant. They approved that which they cited and their approval
has high authority. It is probable in any case that it had not occurred to them that there was any such
dichotomy as was suggested in Polemis. Nor, clearly, had it at an earlier date occurred to Lord Wensleydale
in Lynch v. Knight,18 nor to Cockburn C.J. in Clark v. Chambers.19 The impression that may well be left on
the reader of the scores of cases in which liability for negligence has been discussed is that the courts were
feeling their way to a coherent body of doctrine and were at times in grave danger of being led astray by
scholastic theories of causation and their ugly and barely intelligible jargon.

Before turning to the cases that succeeded it, it is right to glance at yet another aspect of the decision in
Polemis. Their Lordships, as they have said, assume that the court purported to propound the law in regard
to tort. 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.
Yet Hadley v. Baxendale20 was not cited in argument nor referred to in the judgments in Polemis. 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. If the claim for breach of contract had been pursued, the
charterers could not have been held liable for consequences not reasonably foreseeable. It is not strange
 Page 34

that Sir Frederick Pollock said that Blackburn and Willes JJ. would have been shocked beyond measure by
the decision that the charterers were liable in tort: see Pollock on Torts, 15th ed., p. 29. Their Lordships refer
to this aspect of the matter not

16 [1911] 1 K.B. 114; 27 T.L.R. 18, C.A.

17 [1911] 1 K.B. 114, 122.

18 (1861) 9 H.L.C. 577, H.L.

19 (1878) 3 Q.B.D. 327.

20 (1854) 9 Exch. 341.

[1961] A.C. 388 Page 420

because they wish to assert that in all respects today the measure of damages is in all cases the same in tort
and in breach of contract, but because it emphasises how far Polemis was out of the current of contemporary
thought. The acceptance of the rule in Polemis as applicable to all cases of tort directly would conflict with
the view theretofore generally held.

If the line of relevant authority had stopped with Polemis, their Lordships might, whatever their own views as
to its unreason, have felt some hesitation about overruling it. But it is far otherwise. It is true that both in
England and in many parts of the Commonwealth that decision has from time to time been followed; but in
Scotland it has been rejected with determination. 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. Even in the inferior courts judges have, sometimes perhaps unwittingly, declared themselves in a
sense adverse to its principle. Thus Asquith L.J. himself, who in Thurogood v. Van den Berghs & Jurgens
Ltd.21 had loyally followed Polemis, in Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd.,22 holding
that a complete indemnity for breach of contract was too harsh a rule, decided that23 "the aggrieved party is
only entitled to recover such part of the loss actually resulting as was at the time of the contract reasonably
foreseeable as liable to result from the breach." It is true that in that case the Lord Justice was dealing with
damages for breach of contract. 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. The words "tort" and
"tortious" have perhaps a somewhat sinister sound but, particularly where the tort is not deliberate but is an
act of negligence, it does not seem that there is any more moral obliquity in it than in a perhaps deliberate
breach of contract, or that the negligent actor should suffer a severer penalty. In Minister of Pensions v.
Chennell24 Denning J. (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 Railway25 (discussed by Professor Goodhart in
 Page 35

21 [1951] 2 K.B. 537; [1951] 1 T.L.R. 557; [1951] 1 All E.R. 682, C.A.

22 [1949] 2 K.B. 528; 65 T.L.R. 274; [1949] 1 All E.R. 997, C.A.

23 [1949] 2 K.B. 528, 539.

24 [1947] K.B. 250, 253; 62 T.L.R. 753; [1946] 2 All E.R. 719.

25 (1928) 248 N.Y. 339.

[1961] A.C. 388 Page 421

his Essays, p. 129), Donoghue v. Stevenson26 and Bourhill v. Young,27 or in respect of intervening causes
as in Aldham v. United Dairies (London) Ltd.28 and Woods v. Duncan.29 It is doubtful whether In re Polemis
and Furness Withy & Co.30 can survive these decisions. If it does, it is only in respect of neglect of duty to
the plaintiff which is the immediate or precipitating cause of damage of an unforeseeable kind." Their
Lordships would with respect observe that such a survival rests upon an obscure and precarious condition.

Instances might be multiplied of deviation from the rule in Polemis, but their Lordships think it sufficient to
refer to certain later cases in the House of Lords and then to attempt to state what they conceive to be the
true principle. In Glasgow Corporation v. Muir31 Lord Thankerton said32 that it had long been held in
Scotland that all that a person can be bound to foresee are the reasonable and probable consequences of
the failure to take care judged by the standard of the ordinary reasonable man, while Lord Macmillan said
that33 "It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable
man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to
have foreseen." Here there is no suggestion of one criterion for determining culpability (or liability) and
another for determining compensation. In Bourhill v. Young34 the double criterion is more directly denied.
There Lord Russell of Killowen said35: "In considering whether a person owes to another a duty a breach of
which will render him liable to that other in damages for negligence, it is material to consider what the
defendant ought to have contemplated as a reasonable man. This consideration may play a double role. It is
relevant in cases of admitted negligence (where the duty and breach are admitted) to the question of
remoteness of damage, i.e., to the question of compensation not to culpability, but it is also relevant in
testing the existence of a duty as the foundation of the alleged negligence, i.e., to the question of culpability
not to compensation." This appears to be in flat contradiction to the rule in

26 [1932] A.C. 562, H.L.

27 [1943] A.C. 92; [1942] 2 All E.R. 396, H.L.

 Page 36

28 [1940] 1 K.B. 507; 56 T.L.R. 201; [1939] 4 All E.R. 522.

29 [1946] A.C. 401; 62 T.L.R. 283; [1946] 1 All E.R. 420, H.L.

30 [1921] 3 K.B. 560, C.A.

31 [1943] A.C. 448; 59 T.L.R. 266; [1943] 2 All E.R. 44, H.L.

32 [1943] A.C. 448, 454.

33 Ibid. 457.

34 [1943] A.C. 92.

35 Ibid. 101.

[1961] A.C. 388 Page 422

Polemis and to the dictum of Lord Sumner in Weld-Blundell v. Stephens.36

From the tragic case of Woods v. Duncan,37 the facts of which are too complicated to be stated at length,
some help may be obtained. There Viscount Simon analysed the conditions of establishing liability for
negligence and stated them to be (1) that the defendant failed to exercise due care (2) that he owed the
injured man the duty to exercise due care, and (3) that his failure to do so was the cause of the injury in the
proper sense of the term. He held that the first and third conditions were satisfied, but inasmuch as the
damage was due to an extraordinary and unforeseeable combination of circumstances the second condition
was not satisfied. Be it observed that to him it was one and the same thing whether the unforeseeability of
damage was relevant to liability or compensation. To Lord Russell of Killowen in the same case the test of
liability was whether the defendants (Cammell Laird & Co. Ltd.) could reasonably be expected to foresee that
the choking of a test cock (itself undoubtedly a careless act) might endanger the lives of those on board;
Lord Macmillan asked whether it could be said that they, the defendants, ought to have foreseen as
reasonable people that if they failed to detect and rectify the clogging of the hole in the door the result might
be that which followed, and later, identifying, as it were, reasonable foreseeability with causation, he said38:
"The chain of causation, to borrow an apposite phrase, would appear to be composed of missing links."

Enough has been said to show that the authority of Polemis has been severely shaken though lip-service
has from time to time been paid to it. In their Lordships' opinion it should no longer be regarded as good law.
It is not probable that many cases will for that reason have a different result, though it is hoped that the law
will be thereby simplified, and that in some cases, at least, palpable injustice will be avoided. For it does not
 Page 37

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 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

36 [1920] A.C. 956, 984.

37 [1946] A.C. 401.

38 Ibid. 431.

[1961] A.C. 388 Page 423

consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that
civilised order requires the observance of a minimum standard of behaviour.

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. For, if it is asked why a man should be responsible for the natural or necessary or
probable consequences of his act (or any other similar description of them) the answer is that it is not
because they are natural or necessary or probable, but because, since they have this quality, it is judged by
the standard of the reasonable man that he ought to have foreseen them. 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. The two grounds have been treated as coterminous,
and so they largely are. But, where they are not, the question arises to which the wrong answer was given in
Polemis. For, if some limitation must be imposed upon the consequences for which the negligent actor is to
be held responsible - and all are agreed that some limitation there must be - why should that test (reasonable
foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee,
corresponds with the common conscience of mankind, and a test (the "direct" consequence) be substituted
which leads to no-where but the never-ending and insoluble problems of causation. "The lawyer," said Sir
Frederick Pollock, "cannot afford to adventure himself with philosophers in the logical and metaphysical
controversies that beset the idea of cause." Yet this is just what he has most unfortunately done and must
continue to do if the rule in Polemis is to prevail A conspicuous example occurs when the actor seeks to
escape liability on the ground that the "chain of causation" is broken by a "nova causa" or "novus actus
interveniens."

The validity of a rule or principle can sometimes be tested by observing it in operation. Let the rule in Polemis
be tested in this way. In the case of the Liesbosch39 the appellants, whose vessel had been fouled by the
respondents, claimed damages under
 Page 38

39 [1933] A.C. 449; 49 T.L.R. 289, H.L.

[1961] A.C. 388 Page 424

various heads. The respondents were admittedly at fault; therefore, said the appellants, invoking the rule in
Polemis, they were responsible for all damage whether reasonably foreseeable or not. Here was the
opportunity to deny the rule or to place it secure upon its pedestal. 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. 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. It was
perhaps this difficulty which led Denning L.J. in Roe v. Minister of Health40 to say that foreseeability is only
disregarded when the negligence is the immediate or precipitating cause of the damage. This new word may
well have been thought as good a word as another for revealing or disguising the fact that he sought loyally
to enforce an unworkable rule.

In the same connection may be mentioned the conclusion to which the Full Court finally came in the present
case. 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. Was it a "direct" consequence? Upon
this Manning J. said: "Notwithstanding that, if regard is had separately to each individual occurrence in the
chain of events that led to this fire, each occurrence was improbable and, in one sense, improbability was
heaped upon improbability, I cannot escape from the conclusion that if the ordinary man in the street had
been asked, as a matter of common sense, without any detailed analysis of the circumstances, to state the
cause of the fire at Mort's Dock, he would unhesitatingly have assigned such cause to spillage of oil by the
appellant's employees." Perhaps he would, and probably he would have added: "I never should have thought
it possible." But with great respect to the Full Court this is surely irrelevant, or, if it is relevant, only serves to
show that the Polemis rule works in a very strange way. After the event even a fool is wise. But it is not the
hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility. The
Polemis rule by substituting "direct" for "reasonably foreseeable" consequence leads to a conclusion equally
illogical and unjust.

At an early stage in this judgment their Lordships intimated that they would deal with the proposition which
can best be

40 [1954] 2 Q.B. 66, 85; [1954] 2 W.L.R. 915; [1954] 2 All E.R. 131, C.A.

[1961] A.C. 388 Page 425

stated by reference to the well-known dictum of Lord Sumner: This however goes to culpability not to
compensation." It is with the greatest respect to that very learned judge and to those who have echoed his
words, that their Lordships find themselves bound to state their view that this proposition is fundamentally
false.

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. But there can be no liability until the damage has been done. It is not the act but the
consequences on which tortious liability is founded. 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. Suppose an action brought by A for
 Page 39

damage caused by the carelessness (a neutral word) of B, for example, a fire caused by the careless
spillage of oil. It may, of course, become relevant to know what duty B owed to A, but the only liability that is
in question is the liability for damage by fire. It is vain to isolate the liability from its context and to say that B
is or is not liable, and then to ask for what damage he is liable. For his liability is in respect of that damage
and no other. If, as admittedly it is, B's liability (culpability) depends on the reasonable foreseeability of the
consequent damage, how is that to be determined except by the foreseeability of the damage which in fact
happened - the damage in suit? And, if that damage is unforeseeable so as to displace liability at large, how
can the liability be restored so as to make compensation payable?

But, it is said, a different position arises if B's careless act has been shown to be negligent and has caused
some foreseeable damage to A. Their Lordships have already observed that to hold B liable for
consequences however unforeseeable of a careless act, if, but only if, he is at the same time liable for some
other damage however trivial, appears to be neither logical nor just. This becomes more clear if it is
supposed that similar unforeseeable damage is suffered by A and C but other foreseeable damage, for
which B is liable, by A only. A system of law which would hold B liable to A but not to C for the similar
damage suffered by each of them could not easily be defended. Fortunately, the attempt is not necessary.
For the same fallacy is at the root of the proposition. It is irrelevant to the question whether B is liable for
unforeseeable damage that he is liable for foreseeable damage, as irrelevant as would the fact that he had
[1961] A.C. 388 Page 426

trespassed on Whiteacre be to the question whether he has trespassed on Blackacre. Again, suppose a
claim by A for damage by fire by the careless act of B. Of what relevance is it to that claim that he has
another claim arising out of the same careless act? It would surely not prejudice his claim if that other claim
failed: it cannot assist it if it succeeds. Each of them rests on its own bottom, and will fail if it can be
established that the damage could not reasonably be foreseen. We have come back to the plain common
sense stated by Lord Russell of Killowen in Bourhill v. Young.41 As Denning L.J. said in King v. Phillips42:
"there can be no doubt since Bourhill v. Young that the test of liability for shock is foreseeability of injury by
shock." Their Lordships substitute the word "fire" for "shock" and endorse this statement of the law.

Their Lordships conclude this part of the case with some general observations. They have been concerned
primarily to displace the proposition that unforeseeability is irrelevant if damage is "direct." In doing so they
have inevitably insisted that the essential factor in determining liability is whether the damage is of such a
kind as the reasonable man should have foreseen. This accords with the general view thus stated by Lord
Atkin in Donoghue v. Stevenson43: "The liability for negligence, whether you style it such or treat it as in
other systems as a species of 'culpa,' is no doubt based upon a general public sentiment of moral
wrongdoing for which the offender must pay." It is a departure from this sovereign principle if liability is made
to depend solely on the damage being the "direct" or "natural" consequence of the precedent act. Who
knows or can be assumed to know all the processes of nature? 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. Woods v. Duncan.44 Thus
foreseeability becomes the effective test. In reasserting this principle their Lordships conceive that they do
not depart from, but follow and develop, the law of negligence as laid down by Baron Alderson in Blyth v.
Birmingham Waterworks Co.45

It is proper to add that their Lordships have not found it

41 [1943] A.C. 92, 101.

 Page 40

42 [1953] 1 Q.B. 429, 441.

43 [1932] A.C. 562, 580.

44 [1946] A.C. 401, 442.

45 (1856) 11 Exch. 781, 784.

[1961] A.C. 388 Page 427

necessary to consider the so-called rule of "strict liability" exemplified in Rylands v. Fletcher46 and the cases
that have followed or distinguished it. Nothing that they have said is intended to reflect on that rule.

One aspect of this case remains to be dealt with. The respondents claim, in the alternative, that the
appellants are liable in nuisance if not in negligence. Upon this issue their Lordships are of opinion that it
would not be proper for them to come to any conclusion upon the material before them and without the
benefit of the considered view of the Supreme Court. On the other hand, having regard to the course which
the case has taken, they do not think that the respondents should be finally shut out from the opportunity of
advancing this plea, if they think fit. They therefore propose that on the issue of nuisance alone the case
should be remitted to the Full Court to be dealt with as may be thought proper.

Their Lordships will humbly advise Her Majesty that this appeal should be allowed, and the respondents'
action so far as it related to damage caused by the negligence of the appellants be dismissed with costs, but
that the action so far as it related to damage caused by nuisance should be remitted to the Full Court to be
dealt with as that court may think fit. The respondents must pay the costs of the appellants of this appeal and
in the courts below.

Solicitors: William A. Crump & Son; Light & Fulton.

C. C.

46 (1868) L.R. 3 H.L. 330, H.L.

Page 41