Applies far outweigh any differences and they must

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applies far outweigh any differences, and they must therefore hold that the judgmentappealed from is wrong on this branch of the case. It is not sufficient that the injury suffered by therespondents' vessels was the direct result of the nuisance, if that injury was in the relevant senseunforeseeable.Page 10
It is now necessary to turn to the respondents'submission that the trial judge was wrong in holding thatdamage from fire was not reasonably foreseeable. InWagon Mound (No 1)([1961] 1 All ER at p 407; [1961]AC at p 413) the finding on which the Board proceeded was that of the trial judge:[the appellants] did not know and could not reasonably be expected to have known that [theoil] was capable of being set afire when spread on water.In the present case the evidence led was substantially different from the evidence led inWagon Mound (No1)and the findings of Walsh J are significantly different. That is not due to there having been any failure bythe plaintiffs inWagon Mound (No 1)in preparing and presenting their case. The plaintiffs there were nodoubt embarrassed by a difficulty which does not affect the present plaintiffs. The outbreak of the fire wasconsequent on the act of the manager of the plaintiffs inWagon Mound (No 1)in resuming oxy-acetylenewelding and cutting while the wharf was surrounded by this oil. So if the plaintiffs in the former case had setout to prove that it was foreseeable by the engineers of the Wagon Mound that this oil could be set alight,they might have had difficulty in parrying the reply that then this must also have been foreseeable by theirmanager. Then there would have been contributory negligence and at that time contributory negligence wasa complete defence in New South Wales.The crucial finding of Walsh J ([1963] 1 Lloyd's Rep at p 426) in this case is in finding (v): that the damagewasnot reasonably foreseeable by those for whose acts the defendant would be responsible. That is not aprimary finding of fact but an inference from the other findings, and it is clear from the learned judge'sjudgment that in drawing this inference he was to a large extent influenced by his view of the law. The vitalparts of the findings of fact which have already been set out in full are (i) that the officers of the WagonMoundwould regard furnace oil as very difficult to ignite on waternot that they would regard this asimpossible: (ii) that their experience would probably have beenthat this had very rarely happenednot thatthey would never have heard of a case where it had happened, and (iii) that they would have regarded it as apossibility, but one which could become an actuality only in very exceptional circumstancesnot, as inWagon Mound (No 1), that they could not reasonably be expected to have known that this oil was capable ofbeing set afire when spread on water. The question which must now be determined is whether thesedifferences between the findings in the two cases do or do not lead to different results in law.

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Term
Fall
Professor
NoProfessor
Tags
Wind, Wagon Mound, lordships

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