Negligence and Interest

Publication Date01 Jan 1955
DOIhttp://doi.org/10.1111/j.1468-2230.1955.tb00281.x
AuthorDouglas Payne
NEGLIGENCE AND INTEREST
A
COMMENT
A
RULE
requiring the plaintiff
in
an action of negligence to show that
the defendant owed him
a
duty
in
respect of the particular interest
for injury to which he claims damages would, as
Mr.
Machin
suggests in his article
Negligence and Interest,” limit the scope of
the
Polemis
rule by confining liability to the direct consequences of
the defendant’s conduct to that particular interest. But
it
is doubt-
ful whether such a method of limiting liability for the consequences
of an act would indeed lead to satisfactory decisions on remoteness
of damage.
It
is gradually coming to be realised that
it
is impossible to
formulate a mechanical rule of remoteness that will yield satisfactory
results
in
all cases. Nearly fifty years ago Street wrote:
It
[i.e.,
remoteness of damage] is always to be determined
on
the facts of
each case upon mixed considerations of logic, common sense, justice,
policy and precedent.
. . .
The best use that can be made of the
authorities
on
proximate cause is merely to furnish illustrations of
situations which judicious men upon careful consideration have
adjudged to be
on
one side of the line
or
the other.” The same view
was expressed by Andrews
J.
in his dissenting judgment in the
Palsgraf
case
:
The damages must be
so
connected with the negli-
gence that the latter may be said to be the proximate cause of the
former.
. . .
What we do mean by the word
proximate
is that,
because of convenience, of public policy, of a rough sense of justice,
the law arbitrarily declines to trace a series of events beyond a
certain point. This is not logic.
It
is practical politics.
.
.
.
The
problem of proximate cause is not to be solved by any one considera-
tion. There are
no
fixed rules
to govern our judgment.
. .
.
There is in truth little to guide us
other than our common sense.”4
This view has not
in
the past commended itself to the majority
of judges and writers. Lawyers are understandably reluctant to
It
is all
a
question of expediency.
1
17
M.L.R.
405.
2
Foundations
of
Legal Liability
(1906),
Vol.
1,
p.
110.
Flsgraf
V.
Long Island Railroad
Co.
(1928) 248
N.Y.
339.
See
Goodhart,
(1928) 248
N.Y.
339
at pp.
3514.
Edgerton, “Legal Cause,”
(1924)
U.Pa.
L.R.
211, 343,
suggests that the essential problem
is
whether the consequences
are
justly attachable
to the defendant’s ‘Ynduct. Dr. Ellis Lewis (Winfield
on
Tort,
6th ed., p.
99)
concludes that the solution
is
based upon some
inarticulate idea
of
policy, some intuition which comes from long training and
a comprehensive judgment in working out
the
rules of law.’! See also Eldridge,
Modern Tort Problems,
205-12.
The
Palsgraf
Case,”
Essays in Jurisprudence,
p.
129.
43

To continue reading

Request your trial