MEASURE OF DAMAGES IN CONTRACT AND TORT—LAW AND FACT
| DOI | http://doi.org/10.1111/j.1468-2230.1950.tb00151.x |
| Published date | 01 January 1950 |
| Date | 01 January 1950 |
| Author | Philip S. James |
MEASURE
OF
DAMAGES
IN
CONTRAC'I'
AND TORT-T,AW AND FACT
SINCE
the two recent decisions in
Monarch
S.S.
Co.
v.
Karlu-
hanins Oljefabriker
(AIR)
[lo491
A.C.
196
(on which see
12
M.L.R.
872)
and
Victoria
Laltndry (Windsor)
Ltd.
v.
Newman
(1949)
65
T.L.R.
274;
[lo491
2
K.B.
528:
the proper interpre-
tation of the two rules in
Hadley
v.
Baoendale
(1854)
9
Ex.
854
may be taken to be settled. The first rule is,
it
appears,
to
be
contrasted with the
'
direct consequence
)
rule adopted
for
torts
by the decision
in
the
Poleinis Case
[I0211
8
K.B.
560,
as
a
subjective rule based upon
'
reasonable foresight
'.
Professor
Goodhart's view
((1940)
65
L.Q.R.
189)
that the effect of the
Karlshamns Case
is
to bring the rule for torts into line with the
contract rule does not seem
to
be bone out by
a
fair reading of
Lord Wright's speech upon which the learned Professor relies
:
even if Lord Wright had intended to show disapproval
of
the
Polemis
Rule his remarks would anyhow only have carried the
weight
of
obiter dicta. The second rule in
IZadley
v.
Baxendale
is, it seems, to be treated
as
an application
of
the
first
to
special
circumstances: what would not, in the ordinary course of events,
fall within the orbit of
'
contemplation
'
may sometimes be held to
have done
so
where, due to peculiar circumstances,
a
particular
defendant may be taken to have foreseen special and peculiar
con-
sequences. Broadly, and for the moment uncritically
,
stated, these
are the rules.
The
Kar1shamn.u
Cusc,
then
,
supported by the
h'eivwiun
Case,
hns
at last given us an authoritative statement
of
this branch of
the law.
Lord
Wright's speech will, howerer, be further remem-
bered for the following dictum which he let fall;
'
Remoteness of
damage
),
he remarked,
'
is in truth
a
question of fact
'
(
[1949]
A.C.
at p.
328).
It
is submitted with respect that this is
a
very
important statement. Whatever rules may be laid down for the
general direction of courts
or
the general direction
of
juries on
the issue of damages, the actual decision, since it turns upon
the
'
cause
of
causes and the consequence of consequences
'
must
always depend very largely upon the fncts.
It
is indeed worthy
of note that damages at common law were always
a
'
jury
'
question
(see
(1031)
47
L.Q.R.
815: (1082) 48
L.Q.R.
go),
and it was only
when the findings of juries became subject to review by appellate
courts that any
'
rules
)
were formulated.
A
very neat illustration
of the difficulty of
applying
the first rule has, as
it
happens, arisen
very shortly after the
Karlshamns
decision. In
Collins
v.
Howard
[I9491
1
All
E.R.
507
(in
C.A.
(1049)
208
L.T.
59:
119491
2
All
86
To continue reading
Request your trial