Once upon
a time and about 60 years ago, a rather careless ship's engineer on the SS
Wagon Mound, allowed furnace oil to leak out through an unclosed valve into the
water in a harbour in Sydney. Today, this would have made him very unpopular -
just ask BP! The oil drifted around on the surface of the water and shlooped up
under a wharf and around several other ships that were moored there. The owners
of the wharf were making repairs on one of the ships. They were welding and
when they saw the spreading bunkering (as it was called) oil, they stopped
their welding activities for fear of setting the whole place alight.
After some enquiries by the owners of the wharf, it was decided that as far as anyone knew, furnace oil was not inflammable when it was spread on water. (Hmm...well it was a long time ago!). They continued their welding activities though having some care to not let stuff drop into the water. In the meantime, the SS Wagon Mound happily went on its way leaving, what was to become, a trail of disaster behind it.
Sadly, in those days, there was not a lot of care for the well-being and cleanliness of water and so there was some cotton waste merrily bobbing along beneath the wharf. Sparks from the welding cascaded prettily down and landed on the cotton which caught fire leading to the ignition of the oil-coated timbers supporting the wharf resulting in a conflagration of devastating consequences.
Unfortunately, the owners of the wharf, when suing the charterers of the Wagon Mound for the damage, argued themselves into a bit of a corner. They argued that it must have been petrol that was spilt into harbour as everybody knows that furnace oil does not burn! Er...so... where did that leave them when it was established that it was not petrol but furnace oil. Well, actually, nowhere because after much fighting in the Australian Courts the case came over to England to be heard at the Privy Council (which is where appeal cases from Australia go to be decided) and they said that it was not "foreseeable" that a fire would result from the spillage of the oil.
So there we have it. This case established foreseeability in English law. Prior to that, if someone was negligent, they were liable for the direct consequences of the negligence (ie dropping a plank into the hold of a ship that had been carrying benzene and when the plank hit the bottom of the hold, it caused a spark which ignited the fumes that were still in there). From this point on, it had to be reasonably foreseeable that your negligence would cause the damage that it had caused before you could be sued for it. If it was too "remote" then you wouldn't be held to be liable for the damage.
In this case and unfortunately for the owners of the wharf, they were very reluctant to argue that fire was the foreseeable result of sparks landing on furnace oil on the water, as it was their workmen who had decided that it wasn't. (I think they call that being hoist by your own petard).
Viscount Simonds, when giving his judgment on the matter, said 'The raison d'être of furnace oil is, of course, that it shall burn, but I find the [defendants] did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water.' (Case citation: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or The Wagon Mound (No 1) [1961] UKPC 1)
Ironically for the owners of the wharf, the owners of the 3 ships that had been moored there and also destroyed in the fire, went on later to sue the charterers of the SS Wagon Mound and succeeded. Based on exactly the same facts as the first case, the Privy Council said that a reasonable ship's engineer would have been aware that his carelessness could cause a risk of fire and as the gravity of the potential damage from such an event was of such great magnitude, there was no excuse for him allowing the oil to escape.
So there you have it. It is now established in English law that you will be able to claim damages where the extent of possible harm from someone's negligence is so great that a reasonable man would guard against it (even if the chance of the loss occurring was very small). (Case citation: Overseas Tankship (UK) Ltd v The Miller Steamship Co or The Wagon Mound (No 2) [1967] 1 AC 617)
The lesson in plain English is this - if you behave in a negligent way without due care and attention to what you are doing and your behaviour causes other people to suffer some kind of loss or damage, then as long as the damage that they have suffered is in your reasonable contemplation, you will be liable for it. Shimples - as they say in Russia!
Tina Morgan www.john-kennedy.co.uk
After some enquiries by the owners of the wharf, it was decided that as far as anyone knew, furnace oil was not inflammable when it was spread on water. (Hmm...well it was a long time ago!). They continued their welding activities though having some care to not let stuff drop into the water. In the meantime, the SS Wagon Mound happily went on its way leaving, what was to become, a trail of disaster behind it.
Sadly, in those days, there was not a lot of care for the well-being and cleanliness of water and so there was some cotton waste merrily bobbing along beneath the wharf. Sparks from the welding cascaded prettily down and landed on the cotton which caught fire leading to the ignition of the oil-coated timbers supporting the wharf resulting in a conflagration of devastating consequences.
Unfortunately, the owners of the wharf, when suing the charterers of the Wagon Mound for the damage, argued themselves into a bit of a corner. They argued that it must have been petrol that was spilt into harbour as everybody knows that furnace oil does not burn! Er...so... where did that leave them when it was established that it was not petrol but furnace oil. Well, actually, nowhere because after much fighting in the Australian Courts the case came over to England to be heard at the Privy Council (which is where appeal cases from Australia go to be decided) and they said that it was not "foreseeable" that a fire would result from the spillage of the oil.
So there we have it. This case established foreseeability in English law. Prior to that, if someone was negligent, they were liable for the direct consequences of the negligence (ie dropping a plank into the hold of a ship that had been carrying benzene and when the plank hit the bottom of the hold, it caused a spark which ignited the fumes that were still in there). From this point on, it had to be reasonably foreseeable that your negligence would cause the damage that it had caused before you could be sued for it. If it was too "remote" then you wouldn't be held to be liable for the damage.
In this case and unfortunately for the owners of the wharf, they were very reluctant to argue that fire was the foreseeable result of sparks landing on furnace oil on the water, as it was their workmen who had decided that it wasn't. (I think they call that being hoist by your own petard).
Viscount Simonds, when giving his judgment on the matter, said 'The raison d'être of furnace oil is, of course, that it shall burn, but I find the [defendants] did not know and could not reasonably be expected to have known that it was capable of being set afire when spread on water.' (Case citation: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or The Wagon Mound (No 1) [1961] UKPC 1)
Ironically for the owners of the wharf, the owners of the 3 ships that had been moored there and also destroyed in the fire, went on later to sue the charterers of the SS Wagon Mound and succeeded. Based on exactly the same facts as the first case, the Privy Council said that a reasonable ship's engineer would have been aware that his carelessness could cause a risk of fire and as the gravity of the potential damage from such an event was of such great magnitude, there was no excuse for him allowing the oil to escape.
So there you have it. It is now established in English law that you will be able to claim damages where the extent of possible harm from someone's negligence is so great that a reasonable man would guard against it (even if the chance of the loss occurring was very small). (Case citation: Overseas Tankship (UK) Ltd v The Miller Steamship Co or The Wagon Mound (No 2) [1967] 1 AC 617)
The lesson in plain English is this - if you behave in a negligent way without due care and attention to what you are doing and your behaviour causes other people to suffer some kind of loss or damage, then as long as the damage that they have suffered is in your reasonable contemplation, you will be liable for it. Shimples - as they say in Russia!
Tina Morgan www.john-kennedy.co.uk
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