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Trouble on Oiled Waters: Problems of The Wagon Mound (No. 2)*

Published online by Cambridge University Press:  16 January 2009

R. W. M. Dias
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Extract

“yet from those flames No light, but rather darkness visible” (Milton)

The foreseeable consequences of spilling a large quantity of furnace oil from the ss. Wagon Mound into Sydney Harbour have been in dispute now in two separate appeals to the Judicial Committee of the Privy Council. The cases will go down to posterity as The Wagon Mound (No. 1) and The Wagon Mound (No. 2). What was certainly not foreseeable was the complex forensic tangle to which the decisions have led.

Type
Research Article
Information
The Cambridge Law Journal , Volume 25 , Issue 1 , April 1967 , pp. 62 - 82
Copyright
Copyright © Cambridge Law Journal and Contributors 1967

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References

1 Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound (No. 1)) [1961]Google Scholar A.C. 388; and Overseas Tankship (U.K.) Ltd. v. The Miller Steamship Co. Pty. Ltd. and Another (The Wagon Mound (No. 2)) [1966] 3 W.L.R. 498Google Scholar.

2 The Wagon Mound (No. 1) [1961]Google Scholar A.C. 388.

3 Roe v. Ministry of Health [1954] 2 Q.B. 66Google Scholar.

4 For the subsequent case-history, see Fourth Cumulative Supplement to Clerk & Lindsell on Torts, 12th ed., §§ 330–335c (giving the cases until October 1, 1965)Google Scholar, and the Fifth Supplement (giving the cases until December 31, 1966).Google Scholar For a select bibliography until 1962, see Dias, R. W. M., “Remoteness of Liability and Legal Policy” [1962]Google Scholar C.L.J. 178, n. 2. See Jones, Further R., “Remoteness Rules in Tort” (1962) 4 Sydney L.R. 99Google Scholar; Anon., “Negligence: the Duty of Foresight” (1963) 234 L.T. 255; Gibson, R. D., “The Wagon Mound in Canadian Courts” (1963) 2 Osgoode, Hall L.J.416Google Scholar; Simmons, E. B., “Foreseeability in Negligence to Children” (1963) 107 S.J. 994Google Scholar; Glass, A., “Remoteness and Precedent” (1964) 108 S.J. 777Google Scholar; Havard, J. and Hogan, B., “Remoteness of Damage: Medicine, Science and Law” (1964) 4 Med. Sc. and Law 151Google Scholar; Tiley, J., “Foresight and Remoteness” (1965) 109 S.J. 822Google Scholar.

5 The Wagon Mound (No. 2) [1966] 3 W.L.R. 498Google Scholar; on which see A.L.G., Note in (1966) 82 L.Q.R. 444; Buxton, R. J., “Nuisance and Negligence Again” (1966) 29 M.L.R. 676Google Scholar.

6 [1963] 1 Lloyd's Rep. 402 at p. 426.

7 [1966] 3 W.L.R. at p. 509.

8 Ibid. at p. 512.

9 e.g., Benmax v. Austin Motor Co. Ltd. [1955]Google Scholar A.C. 370; Wheat v. E. Lacon & Co. Ltd. [1966] 2 W.L.R. 581Google Scholar.

10 [1966] 3 W.L.R. at p. 509.

11 Ibid. at p. 510.

12 Another minor difficulty of the case is to know what is its ratio decidendi. The defendants were held liable in negligence because fire damage was foreseeable. This is unaffected by the question whether foreseeability is or is not relevant to nuisance. If might be thought, therefore, that the ruling on the latter point is obiter. It is submitted, however, that it is part of the ratio because (1) the issue of foreseeability in nuisance was raised and argued, and the decision on it reverses the vital decision of the lower court: Jacobs v. London County Council [1950] A.C. 361 at pp. 369–371Google Scholar. (2) The finding in favour of the defendants in nuisance is the basis for apportioning costs, which is part of the ultimate order: Pinchin v. Santem Insurance Co. Ltd., 1963Google Scholar (2) S.A. 254 (W.L.D.). (3) Ratio is what subsequent courts choose to regard as such, and it is unlikely that any court will treat the ruling on nuisance otherwise.

13 [1966] 3 W.L.R. at pp. 508–509.

14 Winfield, P. H., “Nuisance as a Tort” (1931) 4 C.L.J. 189Google Scholar; Newark, F. H., “The Boundaries of Nuisance” (1949) 65 L.Q.R. 480Google Scholar; G. W. Reed, Case-note (1950) 28 Can.B.R. 782; D. Lloyd, Case-note (1951) 14 M.L.R. 499; Prosser, Torts, Chap. 14.

15 See the author's articles, “The Duty Problem in Negligence” [1955] C.L.J. 198; and “Breach Problem and the Duty of Care” (1956) 30 Tulane, L.R. 377, especially at pp. 400–408.Google Scholar

16 It may be thought that some of these could be combined or transposed; but this will not make any difference to the answers that need to be given. The pattern of six questions is only a convenient method of presenting them.

17 Whether foreseeability governs the extent of damage as well as its kind has not yet been clearly answered. The trend seems to be that it does not: see Fourth and Fifth Supplements to Clerk & Lindsell on Torts, §§ 330–335c.

18 Kinnear, Lord in Black v. Fife Coal Co. [1912] A.C. 149 at p. 159Google Scholar; du Parcq, L.J. in Deyong v. Shenburn [1946] K.B. 227 at p. 233Google Scholar.

19 [1966] 1 Q.B. 569; see also John C. Dalziel (Airdrie) v. Burgh of Airdrie, 1966 S.L.T.(Sh.Ct.) 39Google Scholar.

20 Per Wilberforce, Lord in Goldman v. Hargrave and Others [1966] 3 W.L.R. 513 at p. 523Google Scholar. See also Pearson, L.J. in Videan v. British Transport Commission [1963] 2 Q.B. 650 at p. 678Google Scholar.

21 By the author, “Remoteness of Liability and Legal Policy” [1962] C.L.J. at pp. 193–197.

22 Daborn v. Bath Tramways Motor Co. Ltd. [1946] 2 All E.R. 333 at p. 336Google Scholar; Paris v. Stepney Borough Council [1951]Google Scholar A.C. 367; Latimer v. A.E.C. Ltd. [1953]Google Scholar A.C. 643; Watts v. Hertfordshire County Council [1954] 1 W.L.R. 835 at p. 838Google Scholar; Haley v. London Electricity Board [1965]Google Scholar A.C. 778.

23 [1951] A.C. 850. This case should be compared with Hilder v. Associated Portland Cement Manufacturers Ltd. [1961]Google Scholar 1 W.L.R. 1434, where the likelihood of harm was large. Such being the case it was negligent of the defendants to have allowed a sporting activity on their premises.

24 [1966] 3 W.L.R. at p. 511. This statement supersedes his own earlier remark in Bolton v. Stone [1951] A.C. 850 at p. 867Google Scholar, where he said, “I do not think it would be right to take into account the difficulty of remedial measures.”

25 Roe v. Ministry of Health [1954] 2 Q.B. 66 at p. 85.Google Scholar

26 [1961] A.C. 388 at p. 422.

27 [1966] 3 W.L.R. at p. 503.

28 Ibid. at p. 511.

29 A good example used to be the occupier's duty prior to the Occupiers' Liability Act 1957. This was defined by law as a duty to guard against injury from “unusual dangers” and “traps” depending respectively on whether the plaintiff was an invitee or a licensee.

30 Palsgraf v. Long Island Railroad (1928) 248 N.Y. 339Google Scholar; Bourhill v. Young [1943]Google Scholar A.C. 92. For foreseeability of injury to a number of persons, including plaintiff, see Farrugia v. Great Western Railway Co. [1947] 2 All E.R. 565, especially at p. 567.Google Scholar

31 [1932] A.C. 562.

32 [1961] A.C. 388.

33 Disapproving of Re Polemis, Furness Withy & Co. Ltd. [1921] 3 K.B. 560Google Scholar, which had said in effect that “property damage” remains the same kind of damage whether inflicted by fire or fouling. For the difficulties of both interpretations, see references in note 4, ante.

34 Per Denning, L.J. in King v. Phillips [1953] 1 Q.B. 429 at pp. 441–442Google Scholar, approved in The Wagon Mound (No. 1) [1961] A.C. 388 at p. 426.Google Scholar See also Dooley v. Cammell Laird & Co. [1951] 1 Lioyd's Rep. 271Google Scholar; Boardman v. Sanderson [1964]Google Scholar 1 W.L.R. 1317.

35 Bourhill v. Young [1943] A.C. 92 at pp. 98–99Google Scholar, 102–103, 105 (per Lords Thankerton, Russell and Macmillan); King v. Phillips [1953] 1 Q.B. 429 at p. 443Google Scholar (per Hodson L.J.).

36 [1925] 1 K.B. 146.

37 “I do not appreciate the nature of the admission, unless it is an admission of negligence which, if supported by damage, would give the plaintiff a cause of action. This seems made plain by the fact that the only traverse in the defence is that the negligence caused the damage and by the, to me, conclusive fact that the same admission of negligence covers the cause of action by the infant plaintiff to whom the duty is not in dispute”: ibid. at p. 156.

38 [1966] 3 W.L.R. at p. 509.

39 Stansbic v. Troman [1948] 2 K.B. 48Google Scholar. See the statement by Winn, L.J. in Iron and Steel Holding and Realisation Agency v. Compensation Appeal Tribunal [1966] 1 W.L.R. 480 at p. 492.Google Scholar

40 Haynes v. Harwood [1935] 1 K.B. 146Google Scholar; Hyett v. Great Western Railway Co. [1948] 1 K.B. 345Google Scholar; for danger to defendant himself, see Baker v. T. E. Hopkins & Sons Ltd. [1958] 1 W.L.R. 993 at p. 1004 (affirmed [1959] 1 W.L.R. 966Google Scholar).

41 It is because foreseeability of harm to the rescuer and foreseeability of a novusactus are both conditions of actionability that rescuers are treated as coming under either Question 3 or 4.

42 e.g., The Oropesa [1943] P. 32Google Scholar; Pigney v. Pointers Transport Services Ltd. [1957] 1Google Scholar W.L.R. 1121; Freeman v. Minister of Pensions and National Insurance [1966] 1 W.L.R. 456Google Scholar; Quinn v. Burch Bros. (Builders) Ltd. [1966] 2Google Scholar W.L.R. 1017; and see generally Clerk & Lindsell on Torts, §§ 302–311.

43 e.g., Haley v. London Electricity Board [1965]Google Scholar A.C. 778.

44 [1961] A.C. 388; Clerk & Lindsell on Torts, p. 187; Fourth Cumulative Supplement, § 335c.

45 For development, see Dias, R. W. M., “Remoteness of Liability and Legal Policy” [1962]Google Scholar C.L.J. 178.

46 On this, see Winfield on Tort, 7th ed., pp. 330–333.

47 [1966] 3 W.L.R. at p. 508 (emphasis supplied).

48 Hart, H. L. A., “Negligence, Mens rea and Criminal Responsibility” in Oxford Essays in Jurisprudence (ed. Guest, A. G.), p. 29Google Scholar.

49 [1966] 3 W.L.R. at p. 508.

50 As in Weller [1966] 1 Q.B. 569Google Scholar, where for the purpose of the preliminary issue, carelessness was admitted.

51 Ante, p. 73.

52 In The Wagon Mound (No. 1) [1961]Google Scholar A.C. 388, Viscount Simonds expressly left on one side cases of strict liability when discussing foreseeability: at pp. 426–427.

53 [1949] A.C. 275. I am much indebted to Mr. Jolowicz for stressing the importance of this case in this connection.

54 Salmond on Torts, 14th ed., pp. 84, 90; Winfield on Tort, 7th ed., p. 397; Street, The Law of Torts, 3rd ed., pp. 212, 215.

55 [1966] 3 W.L.R. at p. 508.

56 Per Wilberforce, Lord in Goldman v. Hargrave and Others [1966] 3 W.L.R. 513 at p. 518Google Scholar.

57 Per Lord Wright in Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880 at p. 904.Google Scholar

58 The usual examples are Christie v. Davey [1893] 1 Ch. 316 and Hollywood Silver Fox Farm Ltd. v. Emmett [1936] 2 K.B. 468Google Scholar. It is arguable that in both these cases the nature of the interference was such as to constitute a nuisance notwithstanding malice in the defendant.

59 Malice and intention are not separate torts because they were obvious grounds of liability even in the earliest times. In those days the law was concerned with the plaintiff's point of view, i.e., with deeds. “Torts” were given names according to the type of result, e.g., assault, battery, etc. Negligence evolved as a tort in the 19th century, by which time the point of view was shifting from that of the plaintiff to that of the defendant, from the deed to the doing. It thus represents a different classification according to doing. Malice and intention having already been fragmented by classification according to deed, they could hardly be reclassified. Nuisance is based on a deed—unreasonable interference with use of property. This, therefore, is the “tort” even though such interference may result from malice, intention or carelessness, or even without any of these.

60 Per Lord Reid [1966] 3 W.L.R. at pp. 508–509. An authority to the contrary, Farrell v. John Mowlem & Co. Ltd. [1954] 1 Lioyd's Rep. 437, was disapproved: at p. 507Google Scholar.

61 Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880 at p. 904Google Scholar.

62 Read v. J. Lyons & Co. Ltd. [1947] A.C. 156 at p. 183Google Scholar.

63 [1966] 3 W.L.R. at p. 508.

64 Pwllbach Colliery Co. Ltd. v. Woodman [1915] A.C. 634 at p. 638.Google Scholar I am obliged to Dr. T. Ellis Lewis for this reference.

65 [1966] 3 W.L.R. at p. 508. Another example is public nuisance in respect of which an injunction will lie. Mr. Jolowicz kindly drew my attention to this.

66 If liability in nuisance requires only foreseeability of the kind of interference, but not of its full extent, this is in line with the general development in tort that a defendant is answerable even for the unforeseeable extent of the kind of damage that was foreseeable. This is no more than the old Polemis principle [1921] 3 K.B. 560, except that “kind of damage” has now to be understood in the light of the interpretation in The Wagon Mound (No. 1) [1961]Google Scholar A.C. 388. Cf. notes 17 and 33, ante.

67 [1940] 1 K.B. 229.

68 [1966] 3 W.L.R. at p. 508. Suppose that an artificial projection over the highway falls unforeseeably. It narrowly misses a pedestrian, but on striking the ground explodes a gas leak from beneath the pavement. The pedestrian is injured by the blast. Even if liability is strict, it could be argued along the line of this paper, that there should be no liability. For, assuming that the projection does fall, however unforeseeably, the kind of damage that is foreseeable from such an event is injury from impact, not from fire. (This example is borrowed from a problem set in the Law Tripos.)

69 Ibid. at p. 509.

70 Ibid. at pp. 504–506.