A

PROJECT
ON
TORT OF DEFAMATION

(Submitted as a partial fulfillment of the requirements for B.A.LL.B

(HONS)
Five Year Integrated course )
SESSION: 2019-2020
Submitted on: 11/09/2019

Submitted By: Supervised By:

RISHABH DEV NEHRA Dr.Venoo Rajpurohit
Roll No. 124
SEMESTER: 1st SEC: B

University Five Year Law College

 University of Rajasthan,Jaipur

DECLARATION

I, RISHABH DEV NEHRA, hereby declare that this project titled “REMOTNESS OF

DAMAGE IN TORTS” is based on the original research work carried out by me under the

guidance and supervision of Dr.Venoo Rajpurohit The interpretations put forth are based on my

reading and understanding of the original texts. The books, articles and website etc. which have

been relied upon by me have been duly acknowledged at the respective places in the text.

For the present project which I am submitting to the university, no degree or diploma has

been conferred on me before, either in this or in any other university.

Date : 11/09/19 RISHABH DEV NEHRA

Semester – 1st Section - B

 ACKNOWLEDGMENT

I have written this project, “REMOTNESS OF DAMAGE IN TORTS” under the supervision
of Dr. Venoo Rajpurohit, Faculty, University Five Year Law College, University of Rajasthan,
Jaipur. His valuable suggestions herein have not only helped me immensely in making this work
but also in developing an analytical approach this work.
I found no words to express my sense of gratitude for Director Dr. Sanjula Thanvi, and Deputy
Director Mr. Manoj Meena and Mr. Abhishek Tiwari constant encouragement at every step.
I am extremely grateful to librarian and library staff of the college for the support and cooperation
extended by them from time to time.

RISHABH DEV NEHRA

 RESEARCH METHODOLOGY

The method which I have opted for making this project was a Doctrinal method, In this
project. I allude various websites and books to gather knowledge about The Conversion
Under Law of torts.

RESEARCH QUESTIONS

1. What are Remotness Of Damage In Torts?

2. How many ways are there to defame a person ?
3.what's the penalty for Defamation?

OBJECTIVE

The objective in making of this project is to enhance my knowledge in Conversion Under

law of Torts. Also, it will be help me in my Academics and it is important for a Law Student
to know all about the law.
 Chapter:-1

Remoteness of Damage in Torts

Remoteness of damage is an interesting principle especially when analyzing two specific cases.
They are apparently allocated in different areas of law, functioning in England and Wales. In first
case claimant is Overseas Tankship (UK) Ltd and brings a suit against Morts Dock and
Engineering Co Ltd.1 The case lays down principles relating to negligence in law of tort, more
precisely remoteness of damage. Second case Hadley v Baxendale2 is sequentially leading case
on remoteness of damage in contract law. This principle links these two cases together and also
demonstrates differences between them. According to Oxford dictionary of law 3 remoteness of
damage is “the extent to which a defendant is liable for the consequences of his wrongful act or
omission.” Cases mentioned above will be presented in light of this significant principle, which
limit the types of loss that are recoverable.

First of all the facts of the cases are relevant to present principles in area of tort and contract law.
The Wagon Mound No 11case is about the defendant's vessel, The Wagon Mound. It discharged
furnace oil into Sydney Harbour. The wind and tide carried the oil beneath Claimant's wharf
where on by Claimant's employees welding operations were being carried. Claimant's employees
continued their work after being advised that they could safely weld. After about 55 to 60 hours
the original discharge, molten metal set some waste floating in the oil on fire. The flames quickly
developed into a large fire which spread rapidly causing destruction of some boats and the wharf.
Liability turned on the question of whether the damage was foreseeable, since furnace oil has
such a high boiling point it is unlikely to catch fire under normal circumstances. Answer is no
because the defendant could not foresee that the oil discharged would be ignited when a piece of
molten metal would fall upon a floating piece of cotton. Therefore it was held that defendant was
not liable for the fire but liable for the fouling. Liability is founded on the consequences not the
action involved.4
The decision in this case was relied on the test which is based on requirement that the damage
must be of a foreseeable type. According to Harpwood5 in negligence claims claimant has to
establish that the defendant owes them a duty of care and is in breach of that duty. Then he also

1 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No 1) [1961]
Privy Council 1 All ER 404

2 Hadley v Baxendale 1854 9 Exch 341

3 (2006) Oxford Dictionary of Law, Oxford University Press,

4 Per Judge Viscount Simonds in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The
Wagon Mound (No 1) [1961] Privy Council 1 All ER 404
needs to demonstrate that the damage caused was not too remote. Originally a defendant was
liable for all losses which were a direct consequence of the defendant’s breach of duty.
Harpwood6 informs that it is called direct consequence test. This problem presents following
case: Re Polemis & Furness Withy & Company ltd 7. The decision was considered unfair when
defendant could be liable for damage which was not foreseeable and therefore he/she could not
take steps to prevent it. For that reason decision was overruled in the Wagon Mound No 1 and
replaced with a new test for deciding if damages are too remote. Interesting how courts followed
the reasonable foreseeability test established in Wagon Mound No 1 case. The test was
considered and applied in Hughes v Lord Advocate. 8 Cook9 declares that „the key to the Wagon
Mound test is what is meant by a kind of damage.” The defendant is only liable for damage that
is of a kind which is reasonably foreseeable. In Hughes v Lord Advocate the type of damage
which has to be foreseeable type was not too remote. The House of Lords ruled that the plaintiff
was able to claim damages for negligence. What was the reason? The Lords viewed the type of
harm as the important factor. It did not matter whether the explosion was foreseeable.
Consequently, as Harpwood10 relates: in essence, that people might suffer burns was the issue of
foreseeability. On the other hand in Doughty v Turner Manufacturing Company11 the damage was
too remote. It was not foreseeable that an explosion would occur. Harpwood 10 gives entirely
different explanation of the phenomenon. Whilst it may be foreseeable the lid may have caused a
splash resulting in a scold. It was not foreseeable that an eruption would take place resulting in
burns. Another problem is related to confusion as to whether in addition to being damage of a
type which is foreseeable, the damage must occur in a foreseeable manner. Hughes v Lord
Advocate case suggests not but in Tramain v Pike case 12 circumstances were different. A
herdsman discovered Weil's disease during his work on the defendant’s farm. The herdsman sued
in negligence.

5 Harpwood Vivienne, Modern Tort Law, 2003, page 153

6 Harpwood Vivienne, Modern Tort Law, 2003, page 152

7 Re Polemis & Furness Withy & Company ltd [1921] 3 KB 560

8 Hughes v Lord Advocate [1963] AC 837

9 Cook John, Law of Tort, 2007, page 178

10 Harpwood Vivienne, Modern Tort Law, 2003, page 153

11 Doughty v Turner Manufacturing Ltd [1964] 1 QB 518

12 Tremain v Pike [1969] 3 All ER 1303

 Chapter:-2

Kinds of damages
The kind of damage suffered namely infection with a rare disease was seen as entirely different
to what might be reasonably foreseen and that might result from a rat-bite. The defendant was
not held liable because he could not foresee the risk of the initial infection (Cook13). In Jebson v.
Ministry of Defence14 the Court of Appeal awards damages to a soldier who, while off duty and
drunk, fell from a moving army lorry. His initial case was dismissed because his actions were
considered not to be foreseeable. On appeal his case was upheld, it was found that he was owed a
duty of care, even in his drunken state, and that his actions were foreseeable (Harpwood 15). The
House of Lords in Jolley v Sutton London Borough Council16 confirms both that a special duty of
care is owed to children and that the rules of foreseeability do not require the precise manner of
an injury or its extent to be foreseeable. The test is: "Was the wider risk, which would include
within its description the accident which actually happened, reasonably foreseeable?"17

Turning to contract law case- Hadley’s18 (Claimant’s) were the owners of a mill where shaft
broke rendering the mill inoperable. Hadley hired Baxendale (defendant) to transport the broken
mill shaft to engineers of the manufacturer [Joyce & Company] as a pattern for a new
one. Hadley’s servant advised Baxendale’s clerk that the shaft must be sent immediately and, as
the mill was stopped. Baxendale promised delivery for the next day and was paid 2 pounds 4
shillings. Baxendale did not know that the mill would be inoperable until the new shaft arrived.
Baxandale was negligent and failed to perform as promised, causing the mill to remain shut
down for an additional five days. Hadley sued for 300 pounds in damages due to lost profits and
wages. Baxendale appealed.
The issue was whether claimant can recover lost profits. The answer is no. If the Claimant had
made it clear that the mill’s operation was dependent upon getting delivery immediately, the loss
of profits would not have been occurred. Court upheld appeal. Indirect and consequential
damages are only recoverable if they are reasonably foreseeable by both of the parties and
arising naturally at the time of the contract. Although the fact that the mill was closed was
communicated, it wasn’t made completely clear to the defendant that the mill was closed because
of the broken shaft and couldn’t re-open again until it was fixed. For all the defendants knew,
the mill was closed for another reason.19
13 Cook John, Law of Tort, 2007, page 178

14 Jebson v. Ministry of Defence [2000] 1 WLR 2055

15 Harpwood Vivienne, Modern Tort Law, 2003, page 153

16 Jolley v Sutton London Borough Council [2000] 3 AER 409

17 Per Lord Hoffmann in v Sutton London Borough Council [2000] 3 AER 409

18 . Hadley v Baxendale 1854 9 Exch 341

19 Per Anderlosn B in Hadley v Baxendale 1854 9 Exch 341

A new rule was created in this case. According to Oxford Dictionary of law20 under this rule, the
claimant will be able to recover losses arising naturally, according to the usual course of things.
This is the first limb of a test and second limb is slightly different. Where the unusual damage
results from special circumstances that may be reasonably supposed to have been “in the
contemplation of both parties”, at the time the contract was made, as a serious possibility if a
breach occurred. First limb of the test is objective and refers to so-called common damages. As a
consequence of the first limb of the rule in Hadley v Baxendale, the party in breach is deemed to
expect the normal consequences of the breach, whether he actually expected them or not. Under
the second limb of the rule, the party in breach can only be held liable for abnormal
consequences where he has actual knowledge that the abnormal consequences might follow or
where he reasonably ought to know that the abnormal consequences might follow (Taylor 21). In
Victoria Laundry v Newman Industries22 it was held that the ordinary loss of profits fell within
the first limb and was recoverable. The exceptional profits on government contracts fell within
the second limb and were not recoverable as the defendant had no knowledge that the boiler was
required to fulfil unusually profitable contracts. Lord Asquith described the required degree of
probability that the loss would occur as such that "a reasonable man" "could foresee" that the
loss was "likely so to result," or a "serious possibility," or "a real danger," and the probability
was "on the cards"23. Evolution of test of remoteness in contract law was also noticed in The
Heron24 case. The plaintiff sued for the difference between the amount that would have been
received if the contract had been performed and the amount the plaintiff actually got. Issue was
whether the plaintiff shall receive the requested damages. However the rule was: If the loss is
foreseeable, then it may be compensated. Courts argued about how serious the risk of loss must
appear at the time of contract in order to be considered foreseeable.25

Cases presented above are evidences of existing differences between contract and tort in
remoteness of damage. The most important distinction in my point of view is that a higher degree
of foreseeability is required in contract than in tort. In breach of contract cases the question was,

20 (2006) Oxford Dictionary of Law, Oxford University Press

21 Taylor & Taylor, Contract Law Directions, 2009, page 303

22 Victoria Laundry v Newman Industries [1949] 2 KB 528

23 Ziegel J., Duggan Anthony; Commercial and Consumer Transactions: Cases, Texts and Materials, 2002,
page 684

24Koufos v Czarnikow (C) Ltd, the Heron II (1969) 1 AC 350

25Cheshire, Fifoot & Furmstons Law of Contract, 2007, page 759

‘were the consequences of such a kind that a reasonable man at the time of the contract being
made would have contemplated them as being substantially probable?’ In tort the question was,
‘were the consequences such that a reasonable man would foresee them as being probable? It
was suggested that the degree of probability in tort was lower than that of contract. When there is
breach of contract and also the damage is physical, the tort test is applicable however the stricter
contractual test is applicable to economic loss. 26 In tort law there is a need to foresee the type of
injury sustained by the claimant and not the extent and severity of it (Hughes v Lord Advocate;
Jolley v Sutton London Borough Council). Conversely, contract law does focus upon extent and
severity (Victoria Laundries case). Another, and more complex distinction, lies in the "temporal"
requirements of each test. Foreseeability in tort law is important before the breach of duty is
committed. Foreseeability in contract law becomes relevant after breach of contract. In both
contract and tort there is an objective element in judging remoteness. In tort, the standard of
foreseeability is that of the reasonable man. In contract, the imputed contemplation is judged by
the standard of the reasonable man.27In both cases, this objective assessment may be modified by
the particular ability of the defendant to foresee or contemplate the type of loss in the
circumstances. In tort, the test takes the reasonable man in the circumstances pertaining at the
time the tort occurs. In contract, the circumstances are those within the contemplation of the
parties at the time the contract was made.

To conclude the two important cases for remoteness in each branch of law are Wagon Mound
(No 1) and Hadley v Baxendale for Tort and Contract respectively. The former case decides that
a defendant will only be liable for damage which is a foreseeable consequence of the breach of
duty and the latter case decides that a claimant can only recover damages for the consequences of
a breach which were foreseeable (arising naturally) and, more obviously, for consequences which
the defendant knew would occur. To demonstrate the connection between tort and contract in the
area of remoteness of damage I may simply quote Treitel28 who says” Developments in England
suggest that the tort analogy may have pushed too far, but there is no doubt of its influence in the
development of the foreseeability test in contract”.

BIBLIOGRAPHY

26 Per Lord Denning H. Parsons(livestock) ltd. V Uttley Ingham & Co. Ltd. (1978)

27 Harris D., Campbell D., Halson R., Remedies in Contract and Tort, 2005, page 315

28 G.H Treitel, Remedies for breach of Contract- A comparative Account, 1998, page 152-153
1. R. K. BHANGIA – LAW OF TORTS
2. WINFILED - LAW OF TORTS
3. www. IndianKanoon .com
4. www.lawctopus.com
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