Posted on: December 30, 2020 Posted by: admin Comments: 0

Author : Shrutimanjari Singh, Student at KIIT School of Law.


Tort is also known as an unliquidated damage, a wrongful act, a civil wrong and a breach of legal right just like the breach of contract or trust. If A and B are in a contract and as a breach of contract on the part of A, injuries B, then A has a tortious liability with regards to B.

This article first explains about Tort, Legal damage and Remoteness of Damage. Under Remoteness of Damage, we would learn about remote and proximate damage, the two tests to identify the remoteness of damage and lastly the test of reasonable Foresight and We would discuss the Wagon Mound case.

After the commission of a tort, the main question arises about the liability of the defendant whether he is liable or not and whether he is liable for every event which takes place after he has done the wrongful act or for just some of them. This question arises in tort because the consequence of act might be endless.

Keywords: Tort, Wrongful act, liability, damage.


Tort is derived from a Latin word ‘Tortum’ which meansto twist’, this basically shows that tort is not straight and is an unlawful act. Tort is defined by Winefield as “A tortious liability which arises from a breach of duty[1] which is primarily fixed by law: such duty is generally towards a person and its breach is repressible by action for unliquidated damages.” For example: If A and B are in a contract and A does something and lead to the death of B. Then A is liable for the unliquidated damage.

Some main conditions which should be fulfilled to fulfilled to make someone constitute liability in tort are:

  • Act or omission must be caused in the part of the defendant – act is very important and that to a voluntary act and not a jut a physical act like sleep walking. A will not be liable for tort if he has caused someone damage by sleepwalking or involuntarily.
  • Intention or Negligence or breach of a strict duty[2] must be there by the defendant – Defendant can either do something intentionally or in the state of mind or he can do something carelessly.
  • Damage should be caused to the plaintiff – Damage here means legal damage and if there is no damage then there is no liability. But if plaintiff suffer damage with injury then defendant will not be liable according to Damnum Sine Injuria (Damage without Injury).

The above points make clear amongst which it is clear that damages are very necessary to make a person liable for tort or tortious liability. 


Whenever a wrong act is committed, it leads to a series of consequences. So here we will know that defendant is liable for which consequences. For example: If A is driving a car who negligently hit a cyclist was carrying a bomb which exploded and building the nearby shops which lead to injury. Here the question is whether the driver is liable for all the consequences or not?

But the law does not account him to be liable for all the consequence rather only for the ones which are remote from his conduct. No defendant can be make liable for the consequence after his wrongful act.  Injuria non-remota causa sed proxima spectature[3] says that in law immediate or proximate and not the remote event is regarded.

A line needs to be drawn in between to know for which act is defendant liable by seeing which is remote and which is proximate. Sometimes, act and consequences are so connecting and they remote but still defendant is liable for the acts.

Some cases where act and consequences are so connecting and they are remote but still defendant is liable for the acts are:

  • Haynes v. Harwood[4] – In this case the defendant’s servant left the horse unattended in a crowded street. And then a child threw stone towards the horse which outraged and it charged towards the women and children. While saving them a police man was injured. So, the defendant said that it was the proximate or immediate liability of the kid which lead to the injury of the police men and not his servant as that was a remote act. But the court held that the servant was liable. As, such as act in the part of kid was anticipated but the act of the defendant’s servant was negligent.

To make a defendant fully liable, it is necessary to show that the damage caused to the plaintiff was a real cause due to the defendant’s act or omission. In the case of Lampert v. International Omnibus Co.,[5] The plaintiff was a married woman who filed a case against his husband, the defendant that due to the defendant’s negligence the plaintiff was injured and there was a severe disfigurement. But later it was found out that the disfigurement was present even before the accident. So, the defendant was not held liable as the damage was not due to negligence or any act or omission.


Due to a long list of circumstances and different scenario, two tests were introducing to determine the remoteness of damage.

The two tests are:

  • The test of Reasonable Foresight – According to this test, a defendant is liable for those consequences which could have been foreseen by a reasonable man. It is held that if a wrongful act is foreseen by reasonable person then it is not remote but if it is not foreseen then it is remote. Pollock was an advocate of remoteness who opined in Rigby v. Hewitt and Greenland v. Chaplin[6] that ‘liability of defendant is those consequences which could have been foreseen by a reasonable man placed in the circumstance of a wrongdoer’.
  • The test of Directness – According to this, a defendant is liable for all the direct consequences of his wrongful act, whether he it is remote or not or whether it was foreseen by a reasonable man or not. This test was more appropriated in Re Polemis and Furness, Withy & Co. Ltd.[7] by rejecting the Test of Reasonable Foresight. After the coming of the test of directness, the test of reasonable foresight’s popularity was decreased.

Smith v. London &South Western Railway Company[8] was the first authority where directness test was advocated. In this case, the railway was negligent enough for allowing a heap of trimming of hedge and grass near a railway line during dry weather. Railway engine set fire in the grass and further burnt the plaintiffs house which was there due to the wind. Here, the defendant was held liable even though he could not have foreseen the loss to the cottage. In this case approval was taken from Re Polemis and Furness, Withy & Co. Ltd.[9]


The Wagon Mound Case[10]:

In this case, Overseas Tankship Ltd. appellant’s servant negligently spilt large quantity of oil in the water. About 600 feet apart where the oil was spilt, there was the respondent’s Mock Dock Company who owned a wharf, here some welding work was going on. While wielding, some hot metal fell to the oil and fire was caught and the wharf was burnt and other equipment’s were also damaged. Here, the test of reasonable foresight was used by the Supreme Court even through the appellant could not see that oil spilling and causing fire. The appellant was held liable. But the Privy Council[11] reversed the Supreme court decision and declared Re Polemis decision no more a good law. So, even though it was because of the servant’s negligence, he was not held liable.

The Court of Appeal stated that the Wagon Mound is the governing authority and not Re Polemis.

Some cases were Wagon Mound was followed:

  • Hughes v. Lord Advocate[12]
  • Doughty v. turner Manufacturing Co. Ltd.[13]
  • C.M (United Kingdom) Ltd. v. W.J. Whiitall & Sons.[14]

In conclusion, this article provides a brief about the remoteness of damage and the tests which can be done find out whether a case is remote or not. We also got to know some cases where even if it’s not remote still the defendant can be made liable. We learned by the Wagon Mound case where the test of reasonable foresight is used by the supreme court.

  1. Chandra, M.A., L.L.M., Allahabad Law Agency (2002)
  2. Dr. R. K. Bangia, Dr. Narendra Kumar, Allahabad Law Agency, 24th edition (2017), 2018, 2019.

[1] No one can be said to have any right if no ne owes him any duty.

[2] Rylands v. Fletcher, (1868) LR 3HL 330, J. Lord Cairns, LC; Lord Cranworth.

[3] Dulien v. Weich & Sons (1901) 2 K. B. 669 678.

[4] (1935) 1 K. B. 146.

[5] (1954) 1 W.L.R. 1047.

[6] (1850)5 Ex. 240.

[7] (1921) 3 K.B. 560.

[8] (1869-70) LR 5 CP 98.

[9] To make an act negligent, reasonable presence of anticipated damage should be there. And it I also seen whether a damage can be recovered or not.

[10] UKPC 2,, AC 388, 1 ALL ER 404 (1961)

[11] Wagon Mound was decided by Privy Council but it is still not applicable in England and only has a persuasive value but it is considered good law by the House of Lord.

[12] (1963) A.C. 837.

[13] (1964) 1 Q.B. 518.

[14] (1971) 1 Q.B. 337.

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