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

Witt & Tani, TCPI 7. Proximate Cause
thus determined to be negligent, then the question whether particular damages are recoverable
depends only on the answer to the question whether they are the direct consequence of the act. . . .
[B]ut when it has been once determined that there is evidence of negligence, the person guilty of it
is equally liable for its consequences, whether he could have foreseen them or not.” . . . In the
present case it is clear that the act causing the plank to fall was in law a negligent act, because
some damage to the ship might reasonably be anticipated. If this is so then the appellants are
liable for the actual loss, that being on the findings of the arbitrators the direct result of the falling
board. . . . On the whole in my opinion the appeal fails and must be dismissed with costs.
SCRUTTON, L.J.
. . . I cannot think it useful to say the damage must be the natural and probable result.
This suggests that there are results which are natural but not probable, and other results which are
probable but not natural. I am not sure what either adjective means in this connection; if they
mean the same thing, two need not be used; if they mean different things, the difference between
them should be defined. . . . In this case, however, the problem is simpler. To determine whether
an act is negligent, it is relevant to determine whether any reasonable person would foresee that
the act would cause damage; if he would not, the act is not negligent. But if the act would or
might probably cause damage, the fact that the damage it in fact causes is not the exact kind of
damage one would expect is immaterial, so long as the damage is in fact directly traceable to the
negligent act, and not due to the operation of independent causes having no connection with the
negligent act, except that they could not avoid its results. . . . In the present case it was negligent
in discharging cargo to knock down the planks of the temporary staging, for they might easily
cause some damage either to workmen, or cargo, or the ship. The fact that they did directly
produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does
not relieve the person who was negligent from the damage which his negligent act directly caused.
For these reasons the experienced arbitrators and the judge appealed from came, in my opinion, to
a correct decision, and the appeal must be dismissed with costs.
Notes
1. Directness? All three judges agree that the foreseeability of harm affects only the
assessment of negligence, not whether the defendant is liable for the full extent of damages—at
least of damages that are “direct” consequences.
Does this “directness” language actually clarify the standard? We can add directness to
the list of formulations offered in the Ryan case. Does it help clarify matters in Scott v. Shepherd
a hundred and fifty years earlier?
2. Unexpected types? What about the suggestion of appellant’s junior counsel? The
argument, as recounted and then rejected in the opinion, was that when the damages are of a
different type than might reasonably have been expected, such damages are remote. Is this a
sound distinction?
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