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

Witt & Tani, TCPI 7. Proximate Cause
engineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in
parrying the reply that this must also have been foreseeable by their manager. Then there would
have been contributory negligence and at that time contributory negligence was a complete
defence in New South Wales. . . .
[H]ere the findings show that some risk of fire would have been present to the mind of a
reasonable man in the shoes of the ship’s chief engineer. . . .
[A] properly qualified and alert chief engineer would have realised there was a real risk
here . . . . If a real risk is one which would occur to the mind of a reasonable man in the position
of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion
is to be what that reasonable man would have done in the circumstances, then surely he would not
neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and
required no expense.
In the present case the evidence shows that the discharge of so much oil onto the water
must have taken a considerable time, and a vigilant ship’s engineer would have noticed the
discharge at an early stage. The findings show that he ought to have known that it is possible to
ignite this kind of oil on water, and that the ship’s engineer probably ought to have known that
this had in fact happened before. . . .
Accordingly, their Lordships will humbly advise Her Majesty that the appeal and the
cross-appeal should be allowed and that the judgment for the respondents in the sums of £80,000
and £1,000 should be affirmed.
Notes
1. Foreseeability? The Wagon Mound Cases adds “foreseeability” as an alternative
doctrinal formula in our now quickly growing catalog of doctrinal formulations for the proximate
cause inquiry. Does foreseeability compare favorably with the directness test of Polemis? Does it
clarify the doctrine? The fact that the lower courts in the Wagon Mound Cases disagree on the
reasonable foreseeability of the fire is not promising.
One problem is that the foreseeability standard does not specify anything about the level
of generality at which the foreseeability inquiry is to be pitched. If the question is pitched
abstractly as whether harm to the vessel in the Polemis case, for example, is a reasonably
foreseeable result of the dropping of the board into the hull, the answer is obviously yes. But if
the question is more particular—if instead we ask whether the destruction by fire of the vessel is a
reasonably foreseeable result of dropping the board into the hull—the answer may be no. The
entire foreseeability inquiry turns on the level of generality of the analysis.
Stunningly, there is very little law on the question of the appropriate level of generality. It
is commonly said that the particularities of the harm in question need not be reasonably
foreseeable; nor does the law require that the particular manner in which it came about be
reasonably foreseeable. See, e.g., Kirlin v. Halerson, 758 N.W.2d 436, 451 (S.D. 2008) (“[T]he
exact harm need not be foreseeable. Rather, the harm need only be within the class of reasonably
foreseeable hazards that the duty exists to prevent.”). Thus, in California “it is settled that what is
346