A Review of The Test of Reasonable Forseeability in Tortous Negligence

The test of reasonable foreseeability or reasonable foresight is the later, new and current test applied to determine the liability of a tortfeasor. The test of reasonable foreseeability or remoteness of damage has replaced the old test of directness of damage. The test of reasonable foreseeability looks at the foreseeability of the damage, that is, whether the damage alleged is reasonably foreseeable by a reasonable man. The tortfeasor is only liable for the reasonably foreseeable consequence of his conduct.
Under this test, a defendant is liable for all damages which should have been foreseen as the result of his tort by the exercise of ordinary or reasonable foresight. In determining foreseeability, the question to be asked is whether the damage alleged is reasonably foreseeable by a reasonable man. If the damage is reasonably foreseeable by a reasonable man exercising ordinary prudent care, the tortfeasor is liable. If the damage is not reasonably foreseeable by a reasonable man, or if the damage is a far flung, or remote damage, the tortfeasor is not liable.
In other words, under this test, a defendant is liable for all damages which are reasonably foreseeable by a reasonable man as the consequence of the tort in question. While on the other hand, a defendant will not be liable for damages that are not reasonably foreseeable or are too remote or far flung to be a consequence of the tort. The test of reasonable foreseeability of damage as laid down in the Wagon Mound’s case applies the foresight of a reasonable man in determining the:
1. Culpability, that is, blameability or responsibility of a defendant for damages if any; and accordingly his liability to compensate the plaintiff; or
2. Remoteness of damage because the damage is far flung or unrelated and therefore excuse the defendant from liability.
The definition of a reasonable man
In simple terms, the reasonable man in any given case, is the reasonable man in the shoes of the tortfeasor, that is, a reasonable man or person in the position or station in life as the tortfeasor in the case at hand. See Adigun V. A.G. Oyo State (1987) 1 NWLR pt.53, p.678 at 720 per Eso JSC.
The test of reasonable foreseeability of damage or remoteness of damage in detemining responsibility is an objective test, whereby the law puts a hypothetical reasonable man into the shoes of the defendant. The question then becomes what consequences of the tort are reasonably foreseeable to a reasonable man in the shoes of the tortfeasor. Once the reasonably foreseeable consequence is determined, the line is drawn thereat to exclude the consequences or damages that are too remote. The court then proceeds to hold the defendant liable for such damages which a reasonable man in the position of the defendant should have foreseen as the likely consequences of the tort in question.
Therefore the test of reasonable foreseeability or remoteness of damage is restrictive in scope and limits the extent of a defendant’s liability. Thus, damages may be established by the plaintiff, but a defendant may not be held liable unless such damage is found to be reasonably foreseeable.

A classic and breakthrough case which eased up the discombobulated state at which the issue of reasonable foreseeability was is rooted in the famous case of Overseas Tankship (U.K) Ltd. V. Mordock & Eng. Co. Ltd. (No. 1): The Wagon Mound’s case (1961) All ER 404 PC; (1966) AC 388.
The defendant appellants negligently discharged fuel from their ship into Sydney harbour, Australia. The fuel was carried by tide into the plaintiff/respondent’s wharf where the employees of the plaintiff were welding. A piece of cotton floating in the midst of the fuel was ignited by sparks from the welding operation. The floating oil burnt and the fire severely damaged the wharf and the ship which the plaintiff/respondents were repairing.
The Judicial Committee of the Privy Council held that the defendants appellants neither knew nor ought to have known that the oil spilt was capable of catching fire when spread over water. They could not reasonably have foreseen that the oil they discharged would catch fire, which would damage the plaintiff’s wharf, even though the damage was the direct consequence of their negligent oil spillage. The damage was too remote and not reasonably foreseeable and they were not liable for it. The test of liability for the damage done by the fire was the foreseeability of injury by fire and as a reasonable man would not on the facts have foreseen injury by fire, the defendant appellants were not liable.
However, the appellants were liable for fouling up the respondents slipways since the fouling was a reasonably foreseeable consequence of the discharge of the oil. In this case, Viscount Simmonds in the Privy Council said that:
“It does not seem consonant with current ideas of justice or morality that for an act of negligence, however slight or menial, which results in some trivial foreseeable damage, the actor should be liable for all consequences, however unforeseeable and however grave, as long as they can be said to be direct.”
By virtue of the fact that the Privy Council is strictly not part of the English court system, the decision of the Privy Council in the Wagon Mound’s case establishing the test of reasonable foreseeability, had only persuasive influence on English courts, until it was subsequently affirmed by the House of Lords in 1963 in the case of Hughes V. Lord Advocate (1963) AC 837 HL. In that case the House of Lords stated that the test of remoteness of damage established in the Wagon Mound’s case, which makes a tortfeasor liable only for the reasonably foreseeable consequences of his tort, was the correct statement of the law.
In Hughes V. Lord Advocate, the House of Lords made an addition to the test of reasonable foresight by adding that, once the consequence of a conduct is foreseeable, the precise chain, sequence of events, or circumstances leading to the said foreseeable consequence need not be foreseeable or envisaged, so long as
1. The damages or consequences of the tort are within the sphere of reasonable foreseeability or contemplation; and
2. The damages or consequence is not entirely of a different kind which no one can reasonably foresee or contemplate.
In other words, the damages must be reasonably foreseeable for there to be liability, but the precise sequence of events leading to the damage need not be foreseeable. That is to say, once the consequence is foreseeable, the circumstances leading to it need not be foreseeable for the defendant to be liable. A defendant is liable so long as the damages are not of an entirely different kind which a reasonable man will not contemplate. The defendant need not foresee all the possible manners in which his conduct can cause injury. What is required in law is that, some kind of injury is foreseeable and the injury which resulted is a kind that is reasonably foreseeable.
The liability of a tortfeasor is thus limited to the damages which are foreseeable by a reasonable man, as Pollock CB rightly said much earlier in Greenland V. Chaplin (1850) 5 Exch. 243 at 248 thus:
“A person is expected to anticipate and guard against all reasonable consequences, but he is not…expected to anticipate and guard against that which no reasonable man would expect to occur.”
The test of reasonable foreseeability laid down as the basis of liability in the law of tort in the Wagon Mound’s case (Supra), has been followed since then not only by English courts, but by courts in all common law countries. Reasonable foreseeability or remoteness of damage as laid down in this case, is almost the same in tort as in the law of contract.
In Hughes V. Lord Advocate (Supra), two children went to explore a shelter which was covering a man-hole that was opened for repairs in a street. The shelter was unattended but marked by lighted paraffin lamps. A lamp was accidentally kicked by one child into the man-hole and there was an explosion which caused burns to one of the children. It was held that the defendants were liable. Accident by burns by the lamps was reasonably foreseeable, even though explosion was not reasonably foreseeable.
But in Doughty V. Turner Manufacturing Co. Ltd. (1964) 1 QB 518, the plaintiff who was an employee of the defendant company was wearing an asbestos cement covering. A fellow employee of the plaintiff let the plaintiff slip into a cauldron of molten metal. At that time, it was not known that asbestos cement coming into contact with molten metal would cause an explosion. An explosion followed and the plaintiff was injured. In a suit for damages, the English Court of Appeal held that though the accident was a direct result of the action of the defendant’s servant, the damage was not reasonably foreseeable and therefore the defendants were not liable.
Also in Glasgow Corp. V. Muir (1943) AC 448, two picnickers were carrying a tea urn through a passage of the defendant corporation’s tea house. For a reason which was not explained, one of the picnickers slipped and children buying sweets at a corner in the passage were scalded by the hot tea, which splashed from the urn. An action by the children in negligence against the defendant failed because harm by tea was not reasonably foreseeable.

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