NOTES
Remoteness of Damage in Tort:
Penman v. Saint John Toyota Ltd.
The case of Penman et al. v. Saint John Toyota Ltd. et al.,’ decided
in the New Brunswick Supreme Court, Appeal Division, highlights
the need for judges to keep separate in their minds the legal require-
ments for establishing initial liability in negligence and the rules
which then come into play to determine the extent and measure of
damages once liability has been established.
The facts of Penman’s case were straightforward. The plaintiff’s
Buick automobile was damaged by the carelessness of one Hurd, an
employee of the defendant. Due to a strike at the General Motors
plant, delivery of parts was delayed and the automobile was not
repaired for five and one-half months. For the first month the
plaintiff used a taxi to get to and from work; for the following four
and one-half months, he rented an automobile. The trial judge, in
determining whether there could be recovery for the cost of the car
rental, stated:
‘Was the action of Mr.
There is only one question to be determined:
Penman in renting the car a reasonable step in the circumstances?’ I
cannot in any way state that it was unreasonable and I find as a fact
that it was reasonable… 2
The appellants however on appeal relied on the Wagon Mound (No.
1) case 3 and argued that since the delay in the repair of the automo-
bile was not reasonably foreseeable, there should be no liability for
the rental account incurred because of the strike.
At this point it becomes necessary, in order to deal with this argu-
ment, to clarify the function and the interpretation the Courts have
accorded the Wagon Mound (No. 1) foreseeability test in the law of
negligence. To create liability in negligence it is necessary to show
that a legal duty exists, that the duty is owed to the particular
plaintiff, that the conduct in question was careless and that the
carelessness caused all the damage for which there is to be recovery.
1 (1973), 30 D.L.R. (3d) 88.
2 Ibid., 89.
3 Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd.
(The Wagon Mound), [1961] A.C. 388; [1961] 1 All E.R. 404 (P.C.).
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[Vol. 19, No. 3
In addition, since Wagon Mound (No. 1) was decided it is necessary
to show that “the damage is of such a kind as the reasonable man
should have foreseen”.4 If these requirements are met initial liability
exists. One may then progress to ask for what extent of damage the
defendant is liable and how should the damage be calculated in
monetary terms bearing in mind the plaintiff’s duty to minimize his
damages.5 At this later stage foreseeability is irrelevant. This follows
from the leading English House of Lords decision in Hughes v. The
Lord Advocate,” which lays down that the Wagon Mound (No. 1)
requirement of foreseeability of the kind of damage in suit is relevant
neither to the extent of damage nor to the precise manner of its
infliction.
In Penman’s case once the kind of damage in suit was shown
to be foreseeable in the general sense (i.e. once it was proven that
damage to the plaintiff’s automobile resulting from a collision was
foreseeable), the question whether the extent of damage in the shape
of the inflated rental charge was foreseeable was irrelevant. There
was no need for the majority in the Appeal Division to accept the
appellants’ argument and state as they did:
Assuming the consequences for which a tortfeasor is liable in damages
are limited to those which are foreseeable, I am of the opinion that
delays due to strikes in automotive plants are foreseeable.7
That they entertained this argument is more remarkable because
the same members of the New Brunswick Appeal Division had quoted
and applied the interpretation given to the Wagon Mound (No. 1)
case by the Hughes case the previous year. In Stewart v. Levigne 8
the court held that the kind of damage in suit was foreseeable
after quoting the following passage: 9
I do not read the Wagon Mound (No. 1) as dealing with the extent of the
original injury or the degree to which it has affected the plaintiff, still
less do I regard it as requiring foreseeability of the manner in which that
original injury has caused harm to the plaintiff.o
4 Ibid., 426 per Viscount Simonds. On this aspect of the law of negligence
see Dias, Remoteness of Liability and Legal Policy, (1962) Camb. L.J. 178 and
Trouble on Oiled Waters, (1967) Camb. L.. 62.
5 See generally for this analysis of the tort of negligence Clerk & Lindsell on
Torts 13th ed. (1969) and Dias, The Duty Problem in Negligence, (1955) Camb.
LJ. 198.
6 [1963] A.C. 837; [1963] 1 All E.R. 705 (H.L.).
7 (1973), 30 D.L.R. (3d) 88, 95.
8 (1972), 4 N.B.R. (2d) 452.
9 From the judgment of Eveleigh,J. in Weiland v. Cyril Lord Carpets Ltd.,
[1969] 3 All E.R. 1006, 1009 who in turn was approving Hughes v. The Lord
Advocate.
10 (1972), 4 N.B.R. (2d) 452, 464.
1973]
NOTES
These two New Brunswick decisions, Stewart and Penman, serve
to emphasize how little practical difference the introduction of the
Wagon Mound (No. 1) foreseeability requirement has made to the
actual decisions of the courts.
Assuming initial liability, it is clear that neither before nor after
Wagon Mound (No. 1) was foreseeability relevant to the extent or
to the quantum of damages.1 Further, the foreseeability requirement
has been so diluted by not requiring foreseeability of the extent or
the precise manner of infliction that it is difficult to find examples of
cases where recovery has been denied to a plaintiff who would have
succeeded under the “directness test” of Re Polemis.2 Nor are the
cases where recovery has been denied in any way a fulfilment of the
high ideals of logic and justice on which the Privy Council based the
Wagon Mound (No. 1) test.13 Two examples will suffice.
In Tremain v. Pike 14 a farm worker was denied recovery when
he contracted leptospirosis from contact with rats’ urine while
working on a rat-infested farm. Payne, J. was prepared to hold that
although it was foreseeable that the plaintiff would suffer personal
injury from rat bites or rat contamination of food what actually
happened was “entirely different in kind” and was unforeseeable.
In Doughty v. Turner 15 a workman was denied recovery after an
asbestos lid fell into hot molten liquid and exploded causing the
liquid to erupt and burn him. Only injury by splashing was held to
be foreseeable and this was considered different in kind from what
actually happened. Lord Pearce, a member of the unanimous Court
of Appeal in Doughty, was moved to conclude his judgment by
saying:
I have great sympathy with the plaintiff who suffered injury through no
fault of his own.16
Lord Pearce’s remark is a recognition that although the Wagon
Mound (No. 1) has achieved justice for the defendant, this is not
11 See eg. Shulhan v. Peterson, Howell & Heather (Canada) Ltd. (1966), 57
D.L.R. (2d) 491 (Sask. Q.B.), a case on identical facts which achieved the same
result as the instant case by applying Polemis.
12 Re Polemis and Furness, Withy & Co., [1921] 3 K.B. 560.
13 For an extravagant attack on the Wagon Mound (No. 1) test and on the
other attempts of the courts to provide a workable rule which balances the
interests of both plaintiff and defendant see Linden, Canadian Negligence Law
(1972), 261-276.
14 [1969] 1 W.LR. 1556. For a penetrating discussion of this and the following
case see Dias, Kind and Extent of Damage in Negligence, (1970) Camb. LJ. 28.
15 [1964] 1 All ER. 98; [1964] 2 W.L.R. 240 (CA.).
16 [1964] 1 All E.R. 98, 101.
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[Vol. 19, Nio. 3
synonymous with justice for the plaintiff. It is this factor which has
led to the adoption of the solution in the Hughes case. That solution
has been the adoption of a broad and imprecise definition of the
Wagon Mound (No. 1) requirement of foreseeability of the kind of
harm in suit so that although the results of individual cases are hard
to predict the opportunity is present for the courts to do justice not
only to the plaintiff (whom Polemis favoured) nor only to the
defendant (whom Wagon Mound (No. 1) favoured) but to whomever
is the more meritorious party.
P.M. Worboys *
* B.A., LL.B. (Cantab.), Assistant Professor of Law, University of Western
Ontario.
