REMOTENESS OF DAMAGES
The rule of remoteness of damages
runs through the whole realm of compensation. A plaintiff is not entitled to
get damages if the damage sustained by the plaintiff is too remote a
consequence of the defendant’s conduct. The chain of causation between the
defendant’s act and the plaintiff’s injury must not be too indirect for no man
is liable in law ad infinitum for the consequences of his acts.
There is a well known Latin
maxim- ‘in jure non remota causa sed proxima spectatur’.
This Latin maxim means that in law, the immediate cause and not the remote
cause of event is regarded.
If the damage is too remote, the
defendant is not liable for the injury to the plaintiff. If, on the other hand,
the act and the consequences are so connected that they are not too remote but
are proximate, the defendant will be liable for the consequences.
An important case law in this
regard is the Scott vs. Shepherd:-
‘In the above mentioned case, ‘A’
threw a lighted squib into a crowd; it fell upon ‘X’. ‘X’, in order to prevent
the injury to him by the lighted squib, threw it further; it fell upon ‘Y’. And
‘Y’ in his turn did the same thing and it then fell upon ‘B’, as a result of
which ‘B’ lost one of his eyes. ‘A’ was held liable to ‘B’. His act was
proximate cause of the damage even though his act was the farthest from the
damage in so far as the acts of ‘X’ and ‘Y’ had intervened in between.’
There are two main tests to
determine whether the damage is remote or not. These are:
1. The
test of Reasonable Foresight:-
According to this test of
reasonable foresight, if the consequences of a wrongful act could have been
foreseen by a reasonable man, they are not too remote. If, on the other hand, a
reasonable man would not have foreseen the consequences, they are too remote.
Eg: If I commit a wrong, I will
be liable only for those consequences which I could foresee, for whatever I
could not have foreseen is too remote a consequence of my wrongful act, and for
which I would not be liable.
2. The
test of Directness:-
According to this test of
directness, a person is liable for all the direct consequences of his wrongful
act, whether he could have foreseen them or not, because consequences which
directly follow a wrongful act are not too remote. If the defendant’s act is
wrongful, then he is liable not merely for those consequences which he could
have foreseen but for all the direct consequences of his wrongful act. This
test was considered incorrect in the famous case of Overseas Tanker
ship (U K) Ltd. Vs. Morts Dock & Engg Co. Ltd.; also called
as The Wagon Mound case.
The law on the subject can be
summarized thus:
· Intended
consequences are not too remote. It includes the consequences due to the
reckless acts of the defendants.
· As
regards unintended consequences,
a. If
they were reasonably foreseeable, they are not too remote;
b. Where
the damages is of a purely pecuniary character the defendant is only liable t
the extent that was reasonably foreseeable;
c. Where
there is physical injury to the person or property, the defendant is liable for
the full extent of the foreseeable kind of such damage, even if the extent or
the manner of its incidence was unforeseeable.
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NOVUS ACTUS INTERVENIENS
The maxim Novus Actus
Interveniens indicates a fresh factor intervening between an initial casual
factor, such as negligent act or omission by the defendant, and its consequence
in the shape of harm to the plaintiff. The harm may or may not ensure will
depend on the circumstances. The intervening act shall be deemed to have broken
the casual connection between the cause and consequence and to have superseded
the original casual factor and replaced by a new one, with consequences for the
legal liability of the person responsible for the final casual action.
In an action for negligence, the
plaintiff will be entitled to claim damages only if the damage suffered by the
plaintiff is caused by the defendant’s conduct. A defendant can be held liable
only for the natural and probable consequences of his act. If a new intervening
act causes the damage, the defendant cannot be held liable for the damage to
the plaintiff.
A consequence will be considered
to be too remote if the chain of causation between the defendant’s act and the
plaintiff’s injury or the damage is broken by the intervention of a new act.
(Novus actus interveniens or an intervening new act)
In such cases it is said that
there is a brake in the chain of causation due to a Novus actus interveniens,
that is, a third party snaps the chain of causation by deliberately intervening
and thereby making himself more than a mere conduit pipe between the original
wrong doer and the ultimate damage.
A Novus actus
interveniens can be constituted in the following three ways:
a. By
an act or omission of a third party; or
b. By
the plaintiff himself; or
c. By
the event of nature.
Eg: A railway company negligently
allowed a carriage to be over crowded. A passenger is robbed in the train. The
railway company cannot be made liable for the robbery of the plaintiff because
the damage to the plaintiff was caused by the independent intervening act of
the pick pocket in the train.
· Novus actus where there are contractual duties:-
Liability for the consequences
caused by a novus actus in the cases in which there is a contract, depends upon
the terms and conditions of the contract, either express or implied.
· Doctrine of Alternate Danger:-
When the plaintiff himself is put
in a position of danger by the defendant’s wrong and has to choose in a moment
what course to take, his action even if it turns out to be mistaken and
unnecessary will not break the chain of causation. The principle is that, when
a person is put in sudden imminent personal danger, he must not be expected to
exercise the same coolness and wisdom which he would have expected to display
apart from an emergency situation.
· Novus actus in pursuance of duty:-
The consequence is direct where a
person intervenes under the compulsion of a legal or probably, only a moral
duty.
Eg: a rescuer; as where a
father seeing his child in peril from a runaway horse dashes out, inspired by
the parental affection to stop the horse and is injured.
· Novus actus in the defence of rights:-
The chain of causation is treated
as unbroken when the person intervening acted in the exercise of the defence of
his rights and without the intention to injure the another. Where the novus
actus must have been anticipated by the defendant, his original act will not be
treated as the direct cause.
· Intervening actor not fully responsible:-
Where the person intervening is
not fully responsible for his acts and the defendant should have foreseen this
irresponsibility, the chain of causation is unbroken and the consequence is
direct.
Eg: The children acting in the
wantonness of infancy and adults acting on the impulses of personal peril may
be and often are only the links in a chain of causation which are extending
from such initial negligence to the subsequent injury.
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FOREIGN TORTS
Difficult questions of
jurisdiction very often arise before the civil courts of one country as to the maintainability
or otherwise of actions for the torts committed outside the territorial limits
of that country, that is, in foreign countries. A foreign country means any
country which is beyond the borders of the State where the action is brought. A
jurisdiction of the State also includes the maritime belt extending to a marine
league from the low watermark outwards.
Eg: A court in the island of Sri
Lanka or a court in the country of Pakistan is foreign to a Court in the Indian
Territory.
Winfield has
deduced or concluded the 3 rules in this concept, which are as
follows:
1. Even
though the defendant’s conduct is not justifiable by the foreign law, if it is
justifiable by the State law where the action is brought, no action would lie.
A rule which is a right within the State should not become wrong simply because
it is considered wrong elsewhere.
2. If
the defendant’s conduct is justifiable by the foreign law, but is tortious
according to the English law, no action for the tort would lie against the defendant
in an English court.
3. If
the defendant’s act is not justifiable by the foreign law and is tortious
according to English law, then the action in tort would lie. An exception
occurs where the injury is to foreign land.
If an act is done abroad a ship
on the high seas, the law of the country whose flag the ship is flying solely
determines that whether the act is tortious or not. The modern rule with regard
to the foreign torts deduced or concluded from the leading cases can be stated
thus:
As a general rule, an act done in
a foreign country is a tort and actionable as such in the mother State only if
it is both:
a. Actionable
as a tort according to the law of the mother state or, in other words, is an
act which if done in the mother state would be a tort, and
b. Actionable
according to the law of the foreign country where it was done.
But a particular issue between
the parties may be governed by the law of the country which, with respect to
that issue, has the most significant or even dominant relationship with the
occurrence and the parties.
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EFFECT OF DEATH OF PARTIES
IN TORTS
A personal cause of action
against a person comes to an end when he died. The rule was contained in the
maxim ‘Actio personalis moritur cum persona’, which
means that a personal cause of action dies with the person. It means that if,
in any case, either the plaintiff or the defendant died, the cause of action
came to an end.
The death of a person who has
either suffered or caused an injury may have a twofold effect:-
i. It may
extinguish the liability on the other hand; or
ii. It may create
the liability on the other.
Eg: Suppose
‘A’ had brought an action claiming damages against ‘B’ for personal defamation,
the death of either ‘A’ or ‘B’ while the action is still pending, will
extinguish the liability of ‘B’ towards ‘A’, for it is a well established
principle of law that a personal action ends with the death of a person (‘Actio
personalis moritur cum persona’).
But suppose ‘A’ had instituted a
suit for the establishment of a right of way to his property over the adjoining
property of ‘B’, the action would survive even after the death of the parties
and the legal representatives of both parties can continue the action.
But the Fatal Accidents Acts
enables certain near relations of the deceased persons such as the deceased’s
wife, husband, parent, children, etc. to bring actions against the defendants
claiming damages. These are the exceptions where the effect of death creates
liability in an action.
Eg: If death
is caused to a person, ‘A’ by the negligent driving of another person, ‘B’,
then ‘A’s widow can bring am action against the defendant claiming damages for
the material loss and suffering caused to her and her children by the act of
the defendant.
The following exceptions have
been recognised to the above rule:
1. Action
under a contract:-
The rule that a cause of action
came to an end with the death of either of the parties did not apply to an
action under the law of the contract. Contractual obligations could be enforced
by or against the legal representatives of the parties to the contract. In case
of contracts of personal service, however, the legal representatives could not be
bound.
2. Unjust
enrichment of tort feasor’s estate:-
If
someone before his death wrongfully appropriated the property of another
person, the law did not allow the benefit of that wrongfully appropriated
property to pass on to the legal representatives of the deceased. The person
entitled to that property was entitled to bring an action against the legal
representatives of the deceased and to recover such property or its value.
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