Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 7. Proximate Cause
There is thus introduced the conception that the negligent actor is not responsible for
consequences which are not “direct” whatever that may mean. . . .
[A review of the subsequent history of the Polemis rule shows 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. . . . For 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.” 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 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. . . .
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. . . .
[I]f 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. 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 . . . .
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 . . .
Wagon Mound (No. 2)
Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co., [1966] 1 A.C. 617
[Plaintiff, owner of vessels undergoing repair in the Mort Bay, brings suit against
Defendant, owner of the Wagon Mound, for damage caused to vessels in the same fire at issue in
Wagon Mound No. 1. The lower court found that Defendant was not liable under negligence
claims, but was liable under nuisance claims. Defendants appealed.]
In The Wagon Mound (No. 1) the finding on which the Board proceeded was that of the
trial judge: “the defendant did not know and could not reasonably be expected to have known that
[the oil] was capable of being set afire when spread on water.” In the present case the evidence
led was substantially different from the evidence led in The Wagon Mound (No. 1) and the
findings of Walsh J. are significantly different. That is not due to there having been any failure by
the plaintiffs in The Wagon Mound (No. 1) in preparing and presenting their case. The plaintiffs
there were no doubt embarrassed by a difficulty which does not affect the present plaintiffs. The
outbreak of the fire was consequent on the act of the manager of the plaintiffs in The Wagon
Mound (No. 1) in resuming oxy-acetylene welding and cutting while the wharf was surrounded by
this oil. So if the plaintiffs in the former case had set out to prove that it was foreseeable by the
345