Although the stevedore would have foreseen that careless loading might cause some damage to the workers, cargo, or the ship, it was beyond probability that the actual total loss would occur, yet the defendant was held fully liable. The
Re Polemis decision was disapproved of, and its test replaced, in the later decision of the
Privy Council in the
Wagon Mound (No. 1) [1961].
Re Polemis has yet to be overruled by an English court and is still technically "good law". However, it was disapproved by the Privy Council, whose decisions are not binding but are strongly persuasive on English courts. The upshot is that the strict liability principle in
Re Polemis has not been followed, and the case may be considered "bad law". • The move away from strict liability meant that it was more likely that a defendant would not be liable, and the Scots court in
Hughes v Lord Advocate tried to find a middle way. It created the concept of "foreseeability of the class of harm"; that is, one need not foresee the actual harm, provided one could foresee a "class of harm" into which the unforeseeable result fell. Happily, this allowed two young boys who had suffered burns to be compensated; but in the English case of
Doughty v Turner Manufacturing the claimant was less favoured: this factory worker who was injured in an eruption when a fellow employee careless dropped a lid into a vat of hot liquid was unable to recover as the court held that whist "splashing" was foreseeable, the actual "eruption" fell outside the "foreseeable class of harm". • Since 1932, defendants will be liable in negligence only if could have been foreseen that the breach of the duty of care towards the claimant would cause loss, damage or injury. An exception that still applies is the
talem qualem rule, (or "
eggshell skull rule") in cases of additional results of intentional illegal harm, to
personal injury, as in
Smith v Leech Brain. ==See also==