4.1 WHEN PLAINTIFF MAY BE REFUSED COMPENSATION?

A plaintiff who has suffered damage in consequence of the act of the defendant may be
disentitled to recover compensation:
(1) Because the defendant's act was not wrongful at all;
(2) Because the plainti ff is not the person to whom the defendant owed the duty
which he has violated;
(3) Because the damage is not a kind recognized by the law;
(4) Because the damage has been caused in a manner which the law does not
recognize as a sufficient ground of liability.

Presently we are concerned only with the last ground.

The plaintiff must prove that I:is damage was caused by the defendant's breach of duty
and that the damage was not too remote. The first element is sometimes called causation
in tact, and the latter causation in law. Causation in fact deals with the question whether
as a matter of fact the damage was caused by the breach of duty. “

FACTUAL CAUSATION

‘Butfor’ rest

The starring point for assessing whether the defendants’ breach of duty is a factual cause
of the plaintiffs damage is the ‘but for’ test. This basic test is whether the damage would
not have occurred but for the breach of duty.

• Barneti v. Chelsea and Kenisngton Hospital Management Committe• [ 1969] 1

QB 428
The plaintiff's husband attended the defendant's hospital and complained of vomiting.
The doctor in casualty refused to examine him and he was told to see his own doctor in
the morning if he still felt unwell. Five hours later he died of arsenic poisoning. The
defendants owed the deceased a dutv of care which tiiey had breached by failing to
examine him. They were held liable as the evidence established that, even if he had been
examined, he would have died before diagnosis anö treatment could have been carricd
out. As tiie deceased wou1 d hsve died regardless of the breacii of duty, the breach was not
a cause of his death.

In most cases the ‘but for’ test presents no di fficulties. However, there are areas where
the test presents problems. Those are in relation to the degree of probability of damage
occurring, negligent omissions, multiple causes of harm and economic loss.

1. Degree of probability of dnmage

If there is uncertainty as to whether the defendant's negligence has caused the damage, it 0
has to be determined what degree of probability of damage occurring has to be
established by the plainer ff.

104
 Clearly it would be an absurd result for both defendants in the three-house fire problem to
escape liability on casual grounds. It is true that it is hard to say that either of the two
defendants as individuals could easily have prevented the harm to the plaintiff, since to
have done so would have involved not only acting carefiilly with respect !o their our
property, but also preventing the carelessness, or the consequences of the carelessness, of
the other defendant. But jointly, between them, the defendants could have prevented the
harm by acting carefully.

A number of ways out of the three-house fire problem could be suggested. A more
satisfactory way out of the thre•-house fire problem, and one with a more general
application, is to replace ‘but for’ with the more accurate necessary element of a
sufficient set’ test (the NESS test). In the NESS test, the defendant's carelessness causes
the plaintiffs injury if it was a necessary step in a series of events which were in
themselves sufficient to produce the harmful resuit. It does not matter whether there
were other sufficient sets around, as long as the set under discussion was sufficient.

Thus, in the three-house fire problem, one asks whether the fire started carelessly in the
first defendant's house. Clearly it was. Even if the other fire had not happened the
lä lRtÏfrS hou.se would still have been destroyed. Then one asks whether that sequence of
events would still be sufficient if the defendant had not been careless. The answer is
probably not. The defendant's carelessness was therefore a necessary element of a set of
events that was sufficient to produce the harm. Hence it caused the harm. The same
analysis applies equally to the fire started by the other defendant. Both defendants are
careless, both cause the harm, both are liable.

Conseculive cases

Difficult o.uestions or factual causation arise when the plaintiff is affected by

consecutive, but unrelated acts or events. In Performance Cars Ltd. x'. Abrahams D1
collided with the plaintiffs' car causing damage which required that the whole of the
tower part of the bodywork be resprayed. Before this could be done D2 collided with tb.e
car in such a way that had there been no earlier collision the whole of the lower part of
the bodywork would have to be resprayed. Judgment against DI remai.ned unsatisfied so
the plaintiffs sought to reco:’cr the whole cost of respraying from D2. It was held this was
not recoverable. D2 could be responsible only for the additional damage inflicted on an
already damaged vehicle. The need for a total respray arose .not from ti:e act of D2, but
from the antec•.de».i and independent act of DI.

In Baker v. Willoughby the defendants admitted negligence in respect of an injury to the

plaintiffs leg which would have significantly affected his mobility. Before the case came
to court the plaintiff was shot in that same leg in a robbery and the leg had to be
amputated. The defendants argued that their liability was limited to the loss caused by
the original injury up to the date of the robbery. The loss occasioned thereaBer derived
from
the loss of the leg altogether and that was the responsibility of the robbers. The House of
Lords field that the defendants were liab!e for all the consequences of thc original iiijurJ
just as if the second incident had never occurred. To find otherwise would be an
injustice
106
 to the plaintiff for (even if the robbers could be sued) they could be held liable only for
the additional damage inflicted on an already damaged leg. The plaintiff would have gone
uncompensated for the difference between a “sound” and a “damaged” leg. He should not
- be allowed to fall between :wo tortfeasors. The ‘but for’ test was subordinated to
requirements oFjustice.

Vicissitffdes of life

The impact of Baker v. Willoughby is, however, radically limited by the subsequent
judgment of the House of Lords in Jobling v. Associated Dairies in which, albeit Baker v.
Willoughby was approved on its special facts, the reasoning therein was heavily
criticized. The plaintiff suffered a back injury at work in 1973 for which his employers
admitted liability. In 1976 the plaintiff succumbed to myelopathy, a condition rendering
him totally unfit for work and unrelated to his original injury. The defendants were held
liable only for the incapacity suffered by the plaintiff from 1973 to 1976 when
supervening illness tendered him unable to work at all.
“When the supervening illness or injury which is the independent cause of loss
of earning capacity had manifested itself before trial, the event has demonstrated
that the plaintiff had never sustained the tortious injury, his earnings would now
be reduced or extinguished. To hold th• tortfeasor liable to pay damages for a
notional continuing loss of earnings attributable to the tortious injury is to put the
plaintiff in a better position than he would be in if he had never suffered the
tortious injury.”

The courts must take proper account of the “vicissitudes of life” taken into account as a
matter of course in assessing damages for future loss. The defendant should not be held
responsible for a loss, which quite regardless of his act would have overtaken the
plaintiff. Jobling v. Associated Dairies cannot be satisfactory reconciled with Baker v.
Willoughby. Lords Russell and Keith distinguish between successive torts and tortious
injury followed by the onset of disease. But that is hard to justify. Why should the
original defendant remain liable for the notional consequences of his original fault wh•n
the plaintiff unhappily falls victim to a second tort, yet be relived of continuing
responsibility for that opinion of disability inflicted by him if the plaintiff succumbs to
disease (or a non-tortious accident).

4.2 REiiJOTENESS, i.e.,‘LEGAL CAUSE.TION

The possible consequences of any human conduct are endless. The defendant’s
wrongdoing may trigger a series of events which truly “but for” his fault would never
have occurred. The law does not, however, impose indefinite liability. A line must be
drawn to con fine the responsibility of the defendant to those consequences of his fault
which it is proper for him to shoulder. Damage must not be too remote. The defendant
should not be held liable for more damage than he had bargained for, for more damage
than fairly can be said to rcsul t from his wrongdoing. Alas while it is easy to state a
general principle that some damage will be disregarded as too remote from the

107
 defendant's fault, drawing the line of remoteness is complex in the extreme. “It is
something like having to draw a line between night and day; there is a great duration of
twilight when it is neither night nor day; but through you cannot draw the precise line,
you can say on which side of the line the case is.” Lord Z'right, ‹n the similar context, has
observed:
“The law cannot take account of everything that follows a wrongful act; it regards
some subsequent matters as outside the scope of its selection, because it were
infinite for the law to judge the causes of causes, or consequences of
consequences. In the varied web of affairs the !aw must abstract some
consequ-nces as relevant, not perhaps on ground of pure logic but simply for
practical reasons.”

Consequences of an unlawful act might be intended as well as unintended. Application of

the remoteness principles in boih respects is discussed below.

Intended consequ•nces

“The intention to injure the plaintiff disposes of any question of remoteness.”

Consequences intended by the defendant will never be too remote. Where the defendant
is reckless as to, in the sense of indifferent to, the consequences of his act, such
consequences will he treated as intended. In Scof/ v. Shepherd the defendant threw a
lighted firework into the marketplace. It fell close to A, who in alarm flung it away from
his so that it landed on B's stall. Who similarly acted on a reflex throwing the firework
away from him so that it ultimately hit and injured the plaintiff. The defendant was held
liable. He acted in reckless disregard of the consequences of his conduct and the
intervening conduct of A and B, in the agony of the moment, was an obvious result of his -
original fault. Where the defendant acts deliberately committing an intentional tort, and
the consequence is one he should hav• foreseen, his is liable for all such consequences
whether he wiiled them or not. He is presumed to intend consequences he should have
had regard to.

Unintended consequences

iVluch more problematic than the extent of responsibility for intended consequences is
the vexed o,uestion of liability for unintended consequences. WF at limit (if any) should
be plsced ori the defendan.t’s respor.sibility for the chain of consequenc•s •vloic h in fact
ensue from his wrongdoing? -The-Court‘ of Appeal has he!d that in decei: a!l the stage
directly attributable to the de1”endant's fraud is reco verable, r•gardless of whether or
not such damage was reasonably foreseeable. The limitations on recoverable
damage
applicable in negligence and nuisance as a result of the Wagon Hound (No. 7d and Jo. 2)
do not apply in deceit. Nor, it is suggested, is there authority to support any restriction of
liability to foreseeable kinds of damage alone in any of the intentionaJ torts. Liability in
such torts extends to all the consequences which can be linked to the tortious conduct,
provided those consequences are properly attributable to the defendant’s conduct and not
l‹i surric no vus oc/no’ infe: r€rtirru.
›’ ' 108
 Smith v. London & South Western Railway Co.
(1870) LR 14

In this case the railway ccmpany was negligent in allowing a heap of trimmings of
hedges and grass near a railway line during diy weather. Spark from the railway engine
set fire to the material. Due to high wind the fire was carried to the plaintiff's cottage
which was burnt. The defendants were held liable even though they could not have
foreseen the loss to the cottage.

Re an Arbitration between Polemic and Furness, Withy & Co.

[1921) A11 ER Rep. 40

This was a dispute between the characters and owners of a ship which was
destroyed while under charter. At Casablanca, the charterers had employed Arab
stevedores to unload the cargo. One of them dropped a heavy plank into the hold,
which was full of petrol vapour. On impact, the plank caused a spark, fhe spark ignited
the vapour, and the ship was destroyed. The arbitrator found that it was careless to drop
the plank, that some damage to the ship was foreseeable, but that causing of the spark
and the ensuing fire were not. He awarded the owners damages of $196, 165 odd
(equivalent of 20 months hire). Sankey, I confirmed the award, and so did the Court of
Appeal.

Bankes, L,3
In the present case the arbitrators have found as a fact that the failing of the plank was
due to the negligence of the defendant's servants. The fire appears to me to have been
directly caused by the falling of the plank. Under these circumstances I consider that it is
immaterial that the causing of the spark by the falling of the plank could not have been
reasonably anticipated. Th• appel lants junior counsel sought to draw a distinction
between the anticipation of the extent of damage resulting from a negligent act, and the
anticipation of the type of damage resulting from such an act. He admitted that it could
not lie in the mouth of a person whose negligent had caused damage to say that he could
not reasonably have rorese•n the extcnt of tfie damage, but he contended that the
negligent person was entitled to rely upon the fact that he could not reasonably have
anticipated the type of damage which resu!ted from his negligent act. I do not think that
the distinction can be admitted. Given !he breach of duty which constitutes the
negligence, and given the dam.age as a direct resuit cf the- ncgiigence, the anticipations of
the person whose negl.gent act has produceo the dä mage appear to me to be irrelevant. I
consider that the damages claimed ai'e no* too remote. . .

Warrington, LI
...The result may be summarized as follows: The presence or absence of reasonable
anticipation of damage determines the legal quality of the act as negligent or innocent. If
it be thus determined to be negligent, then the question whether particular damages are
recoverable depends only on the answer to the question whether they are the direct
titjjlSpqtjt;Iltiu up the ;jct. S tifÏi0 Ît;il( fiutllol i tÿ fOl‘ the ] l'OÿOSitiOiJ iS afforded Î http itlî V.
London and South Western Ry . ..

110
 hundred feet in length and forty feet wide, where there was a quantity of tools and
equipment. In October and November 195 1, a vessel known as the Corrimal was moored
alongside the wharf and was being refitted by the respondents. Her mast lying on the
wharf and a number of the respondents' employees were working both on it and on the
vessel itself, using for this purpose electric and oxy-acetylene welding equipment. At the
same time, the appellants were charterers by demise of the s.s. Wagon Mound, an oil-
burning vessel which was moored at the Caltex Wharf on the northern shore of the
harbour at a distance of about six hundred reet from the Sheerlegs Wharf. She was there
from about 9 a.m. on October 29, until 1 l a.m. on October 30, 195 l, for the purpose of
discharging gasoline products and taking in bunkering oil. During the early hours of
October 30, 1951, a large quantity of bunkering oil was, through the carelessness of the
appellants' servants, allowed to spill into the bay, and, by 10.30 on t.he morning of that
day, it had spread over a considerable part of the bay, being thickly concentrated in some
places and particularly along the foreshore near the respondents' property. The appellants
made no attempt to dispense the oil. The Wagon Mound iinberthed and set sail very
shortly after. When the respondents' works manager became aware of the condition of
things in the vicinity of the wharf, he instructed their workmen that no welding or
burning was to be carried on until further orders. He inquired of the manager of the
Caltex Oil Co., at whose wharf the Wagon Mound was then still berthed, whether they
could safely continue their operations on the wharf or on the Corrimal. The results of this
inquiry, coupled with his own belief as to the inflammability of furnace oil in the open,
led him to think that the respondents could safely carry on their operations. He gave
instructions accordingly, but directed that all safety precautions should be taken to
prevent inflammable material falling off the wharf into the oil. For the remainder of
October 30 and until about 2 p.m. on November 1, work was carried on as usual, the
condition and congestion of the oil remaining substantially unaltered. But at about that
time the oil under or near the wharf was ignited and a fire, fed initially by the oil, spread
rapidly and burned with great intensity. The wharf and the Corrimal caught fire and
considerable damage was done to the wharf and the equipment on it.

The outbreak of fire was due, as the learned iudge found, to the fact that there was
floating in the oil underneath the wharf a piece of debris on which lay sonic smouldering
cotton waste or rag which had been set on fire by molten metal falling from tbe wharf,
that the cotton waste or rag burst in to flames; that the flames from the cotton waste set
tire floating oil a fire either directly or by first setting fire to a wooden pile coated with
oil and that, aft.•r the. floating c.i h•camc ign!:•d the frames spread rapidly over the
surface
of the oil and quic.fly deve!oped intir a conflagration which ’severely damaged the wharf. y
There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts
that, if the defendant is guilty of negligence, he is responsible for all consequences,
whether reasonably foreseeable or not. The generality of the proposition is, perhaps
qualified by the fact that each of the Lords justices refers to the outbreak of fire as the
direct result of the negligent act. There is thus introduced the conception that the
negligent actor is not responsible for consequences which are not “direct”, whatever that
may mean.

112
 precipitating cause of the damage. T'his new word may well have been thought as good a
word as another for revealing or disguising the fact that he sought loyally to enforce an
unworkable rule. In the same connection may be mentioned the conclusion to which the
full court finally came in the present case. Applying the rule in Polemis and holding,
therefore, that the unforeseeability of the damage by fire afforded no defence, they went
on to consider the remaining question. Was it a “direct” consequence? On this, Mannings,
I said:
“Notwithstanding that, if regard is had separately to each individual occurrence
in the chain of events that led to this fire, each occurrence was improbable and, in
one sense, improbability was heaped upon improbability. I cannot escape from
the conclusion that if the ordinary man in the street had been asked, as a matter
of common sense, without any detailed analysis of the circumstances, to state the
cause of the fire at Morts Dock, he would unhesitatingly have assigned such cause
to spillage of oil by the appellants ‘employees’.”

Perhaps he would, and probably he would have added “I never should have thought it
possible.” But, with great respect to the‘ full court, this is surely irrelevant, or, if it is
relevant, only serves to show that the Polemis rule works in a very strange way. After the
event even a fool is wise. Yet it is not the hindsight of a fool, but it is the foresight cf the
reasonable man which alone can determine responsibility. The Polemis rule by
substituting “direct” for “reasonably foreseeable” consequence, lends to a conclusion
equally illogical and unjust.

Who knows or can be assumed to know all the processes of nature? But if it would be
wrong that a man should be held liable for damage unpredictable by a reasonable man
because 't was “direct” or “natural”, equally it should be wrong that he should escape
liability, however “indirect” the damage, if he foresaw or could reasonably foresee the
intervening events which led to its being done: cf. Woods v. Duncan. Thus, foreseeability
becomes the effective test.

Their Lordships will humbly advise. Her Majesty that this appeal should be allowed and
the respondents' action so far as it related to damage caused by the negligence of the
appellants be dismissed with costs.

SCSI (Un:•te Kingdom) Ltn. v. W J th ittall & Son Ltd.

[1970] 3 All ER 245

Lord Den ning, MR

This is preliminary question of law. We have to assume these to be the facts. On 20
November 1967, the defendants, a firm of building contractors, were working in a road in
West Bromwich, called Birmingham Road. There were several factories in the road. The
task of the defendants was to rebuild the boundary wall of one of the factories in the road.
The task of thc defendants was to rebuild the boundary waJl of one of the factories next to
the road. They dug a treiicli and one of’ their men was hammering a metal tube into the
bottom of the trench. He hit a brick but did not stop his hammering. Hc went on and cut

114
 I put on one side, therefore, the distinction between direct and indirect, and ask myself
simply: did the defendants owe a duty of care to the plaintiffs. I think it plain they did.
’Fiiey were working near an electric cable which they knew, supplied current to all the
factory owners in the neighbourhood. They knew that if they damaged the cable, the
current would be cut off and damage would be suffered by the factory owners. Those
simple facts put them under a duty to take care not to injure the cable. This was a duty
which they owed to all the factory owners in the vicinity. It comes straight within the
principle laid down by Lord Atkin in Donoghue v. Stevenson. Applying that case, I hold
that the defendants are liable for all the maierial damage done to the plaintiffs and any
loss of profit consequent thereon.

In this case I think that the defendants are liab!e for the material damage done to the
plaintiffs and the loss of profit truly consequent thereon; but not for any other economic
loss. I would dismiss the appeal.

Buckley, LJ
The plaintiffs rely on the principle enshrined in Lord Atkin's well known statement in
Donoghue v. Stevenson, that ’you must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour’, and he
defined neighbours as “...persons who are so closely and directly affected by my act that
1 might réasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question”.

Thesiger, J has decided in their favour. The defendants appeal against his decision.
Counsel for the defendants has contented that special consideration apply where the act
complained of has resulted in an interruption of the supply or delivery of commodity or
service. He points out that damage to an electric cable may injure a very large number of
persons who receive their supply of electricity through that cable over very wide area,
and his contention is that the duty of care, which arises in circumstances of the kind
contemplated by Lord Atkin, ought not to apply to such a case. He said that the principle
has not been so widely applied hitherto and that the court ought not to extend its
application, because it is socially.. unacceptable that anyone should be exposed to a risk
involving a possibility of so many claims and of such magnitude

The damages which are claimed by the plaintiffs in the present case are confined to
dam.age to physical property of the plaintiffs and to economic loss directly co*.sequential
cri that physicäl damä ge. Tfiere was sorñ e discussion, ’in“thé cö urse of the argilment,
whether a piaintiff in a case of this character can claim economic loss which is not
consequential on physical damage, but that point does not arise in this case and I for my
part would prefer not to express any concluded opinion on it. Counsel for the defendants
does not dispute that, if the plaintiffs are entitled to recover damages in respect of
physical injury suffered as the result of the defendants act, they are also entitled to
recevez damage of an economic character directly flowing from that physical injury. The
qucstion for consideration may therelÔ re he fOrmUl£lted thtls: jS there £t duty in law not to
interrupt the supply or dcli-zcry of’ a cuiniiiudity or service to a person by a careless act in
cireumstances where it is foreseeable that such intemiption will result in physical damagc

116
 the only likely source of that support was the damages which he was awarded which I
assessed as slightly above 45,500 pounds. Indeed, because of the time that he is likely to
remain in prison, it is unlikely that he will benefit personally from that award for a
very long time indeed, if at all.

Before I gave the first judgment, I raised the question with counsel as to what the
position would be if, as 1 anticipated, the victims of his attacks, having heard about the
award of damages, decided to sue the plaintiff. I had in mind that it was possible that at
least five ladies, on the evidence which 1 had in that case, might wish to bñ ng
proceedings in respect of attacks which he had inflicted. The point which I raised with
counsel require consideratior› by them, and it was agreed that I should give my
judgment as arranged, but that counsel should have time to consider the matter.

So far as the main question is concemcd, the issue appears to me to be this. Are the
damages that the plaintiff has to pay to his victims so remote that, although they are a
consequence of the accident, they are not recoverable at law? In approaching the matter
that way, I start with the foresee ability test, which is now generally accepted to govern
issues of this nature. That was the test propounded in Wagon Mound case. I refer in
particular to a short passage in the speech of Viscount Simons:
“It is a principle of civil liability, subject only to qualifications which have no
present relevance, that a man must be considered to be responsible for the
probable consequences of his act. To demand more of him is too harsh a rule, to
demand less is to ignore that civilized order requires the observance of a
minimum standard of behaviour.”

With regard to that general statement certain glosses have been recognized and
established. The first of these, so far as the circumstances of this case are connected, is
the t“act that a defendant must take the plaintiff as he finds him. The second gloss
'+bich
must be borne in mind with regard to the general principle is that, as long as the ‹iamage
suffered is of the type which is foreseeable, it will be recoverable, although it is not
necessarily foreseeable that damage of that precise nature would be suffered.

Under the foreseeability rule it is left to the court to decide whether or not a particular
head of damages is foreseeable. There must at ways be cases where there can be loss
caused as- a result of an accident of this sort, but the loss is not foreseeable. in
considering tit is matter it is re!evant to have regard to question of policy, because policy
must play a part in deciding whether or riot a particular loss should be recoverable as a
m‹iiter of raw. So far as the question of foreseeability is concerned, it is important to
bear in mind what was said by the House of Lords in McLoughlin v. 0 ’Brian. That case
dealt with the question of foresee ability in relation to establishing a duty of care and not G
the question of foresee ability in relation to the issue whether or not a particular head of
damages is recoverable. However, it seems to me that everything that their Lordships
said with regard to the circumstances there under consideration are equally applicable
here. Lord
Wilberforce said:
“. .. the boundaries of a man's responsibility for act.s nf negligence have to be
fixed as a matter of policy. Whatever is the correct jiirisprudential analysis, it
does
118
 in traffic accidents often give rise to personality changes which are significant and a real
head of damage to the person who has sustained the injuries. The real difference here is
that the plaintiff is now not seeking to recover in respect of his own injuries or in respect
on his direct financial loss, but the indirect loss he suffers as a result of having to pay
damages to a third party.

Both my intellectual and instinctive response to approaching the matter in that way is
that, as I have already indicated, the loss is not recoverable by the plaintiff either from
the driver of the car or that driver's insurers. I consider that this approach is supported
by the following considerations. First of all, if a victim of thes• attacks had had a child,
would the defendant, that is the driver, and his insurers be responsible for
maintaining that chi Id? The person who raped the mother certainly should be so
responsible, but, in my view, it would be contrary to common sense to suggest that a
careless driver should have to saddle himsel f with that sort of long-term expanse.

Again, one of the victims who sought damages yesterday before me alleged that the
consequence of the attack on her was the break-up of her marriage. I did not accept that
that was indeed the consequence. But, if I had come to a different conclusion, are the
driver and his insurers to be taken to have foreseen that this would be the result of his
neg!igent driving? I answer the question No. Furthermore, I bear in mind that where a
person sustains the sort of personal injuries that this plaintiff sustained, many years later
he could attack a further victim. He is detained at the present time and is regarded as a
category ’A’ prisoner for this very reason. Is the court to be required to give a
declaration to the plaintiff that he is entitled to be, in effect, indemnified in respect of
any claim which is brought against him in respect of any further attack of thit nature†

That brings me to a separate argument which was advanced on behalf of the defendants.
It was argued that it would be contrary to public policy that the plaintiff should be
indemnified for the consequences of his crime. I am bound to say that to allow the
plaintiff to succeed would certainly be distasteful.

It could be said that that approach should be equally applied in respect of the present
claim which is being advanced on behalf of the plaintiff, In my view, if I am wrong in my
judgment in regard to the question of foreseenbility, then this in fact would be a further
ground for holding that the plaintiff is not entitled to be indemnified for h.:‹s criminal
attacks on the two ladies concerned.

lt might be said that the approach which I have just indicated should appiy equally in b
respect of the claim which was put forward on his behalf which resulted in my awarding
the plaintiff some 45,000 pounds and his costs. However, although the matter was not
argued before me, it seems to me, as I have already indicated, that there are very real
differences between the claim which was then being put forward. The award of the
45,000 ponds, which was the subject of my first judgment, does provide a fdnd which not
only benefits the plaintiff in respect of the injuries that he undoubtedly suffered, but also;
of course, provides him with the resources which make it possible for the victims who
have sued him to recover those damages if they succeed in an action against him. ln

120
 addition, of course. it does provide the means whereby his former wife and his child can
receive support; and I conclude by noting that it is true that the amount that he recovered
is in excess of the amount that I awarded yesterday, but, in bearing that in mind, it should
not be forgotten that, but for this accident, the plaintiff would not be spending his life or
)
”

the best part of his life in prison as a category ‘A’ prisoner and would nol be subject to
all the deprivations that are there involved and furthermore, would have had the chance
of providing means for the support of his former wife and child, other than out of the
damages which he was awarded. It follows, therefore, that this claim is dismissed.

KIND OF DAMAGE

A number of principles have emerged on remoteness of damage. The following two

need to be noted:

• If the kind of damage suffered is reasonably foreseeable, it docs not matter that
the damage came about in an unforeseeable way.

ff“ughes v. Lords Advocate

[1963] 1 All ER 705

On November 8, 1958 the appellant, who was then aged eight, was in company with
aiiother boy aged ten in Russell Road, Edinburgh. There, near the edge of the roadway,
was a manhole, some nine feet deep, over which a shelter tent had been erected, and
four paraffin warning lamps were placed at its comers. Post office employees opened
the manhole for the purpose of getting access to a telephone cable. The time wzs
about 5
p.m. and the site was unattended, the employees having left for a tea break. They had
removed the ladder from the manhole, leaving the ladder beside the shelter; and they
had pulled a tarpaulin cover the entrance to the shelter, leaving a space of about two
feet between the lower edge of the tarpaulin and the ground. The lamps were left
burning. The boys took one the paraffin lamps and the ladder into the tent to explore.
Shortly thereafter
the appellant tripped over the lamp, which fell into the manhole. An explosion followed.
The appellant was thrown into the manhole and suffered severe burns. On the evidence
the cause of the explosion was found to be that paraffin frcm the lamp escaped, formed
vapour and was ignited by the flame; this particular development of events was not
reaso ableloreseeoble; acco.King to the-expert evidence,‘ but there •vas noi otiier
feasible explanation and this explanation was accepted as established

Lord Reid
My Lords, I have had an opportunity of reading the speech which my noble and learned
friend Lord Guest is about to deliver. I agree with him that this appeal should be allowed
and I shall only add some general observations. I am satisfied that the Post Office
workmen were in fault in leaving this open manhole unattended and it is clear that if
they had doric as they ought to havc done, this accident would not have happened. lt
cannot he said that they ow•d no duty to the appellant. But it has been held that the
appellant cannot recover damages.

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 It was argued that the appellant cannot recover because the damage which he suffered
was of a kind which was not foreseeable. That was not the ground of judgment of the
First Division or of the Lord Ordinary and the facts proved do not, in my judgment,
support that argument. 'fire appellant's injuries were mainly caused by burns, and it
cannot be said that injuries from bums were unforeseeable. As a warning to traffic the
workmen had set lighted red lamps round the tent which covered the manhole, and if
boys did enter the dark tent it was very likely that they would take one of these lamps
with them. If the lamp fell and broke it was not at all unlikely that lhe boy would be
burned and the burns might well be serious. No doubt it was not to be expected that the
injuries would be as serious as those which the appellant in fact sustained. But a
defender is liable, although the darr•.age may be a good deal greater in extent than was
foreseeable. He can only escape liability i f the damage can be regarded as differing in
kind from what eras foreseeable.

So we have (first) a ‹iuty owed by the workman, (secondly) the fact that if they had done
as they ought to have done there would have been no accident, and (thirdly) the fact that
the injuries suffered by the appellant, though perhaps different in degree, did not differ in

• kind from injuries which might have resulted from an accident of a foreseeable nature.

This accident was caused by a known source of danger, but caused in a way which could
not have been foreseen, and in my judgment that affords no defence. I would therefore
allow the appeal

Lord Jenkins
In a word, the Post Office had brought on the public highway apparatus capable of
constituting a source of danger to passers by and in particular to small, and almost
certainly inquisitive, children. It was therefore their duty to see that such passers by,
“neighbours” in the language of Donoghue v. Stevenson, were, so far as reasonably
practicable, protected from thee various obstacles, or (to children) allurements, which
the workmen had brought to the site. It is clear that the safety precautions taken by the
Post Office did not in this instance measure up to Lord Atkin's test.

The only remaining question appears to be whether the occurrence of any explosion such
as did in *act take place in the manhole was a happening which should reasonably have
been foreseen by the Post Office employees.

lt‘ is true that the duty of care exp•cted‘ in cas• cf this son is confined to reasonably
roreseeable dangers, but it does not necessarily follow that liability is escaped because
the danger actually materializing is not identical with the danger reasonably foreseen
and guarded against. Each case must depend on its danger reasonably foreseen and
guarded against. Each case must depend on its own particular facts. For example (as
pointed out in the opinions), in the present case the paraffin did the mischief by
exploding, not burning, and it is said that, while a paraffin fire (caused, e.g., by the
upsetting of the
lighted lamp or otherwise allowing its contents to leak out) was a reasonably foreseeable
risk so soon as the pursuer got access to the lamp, an explosion was not. To my mind the
distinction drawn between burning and explosion is too fine to warrant acceptance.
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 and might in some way bum himself. That is just what happened. the pursuer did burn
himself, though his burns were more grave that would have been expected. The fact that
the features or developments of an accident may not reasonably have been foreseen
does not mean that the accident itself was not foreseeable. The pursuer was in my view
injured as a result of the type or kind of accident or occurrence that could reasonably
have been foreseen. . I consider that the defenders do not avoid liability because they
could not have foretold the exact way in which the pursuer would play with the alluring
objects that had been left to attract him or the alluring objects that had been left to
attract him or the exact way in which is so doing he might get hurt.

Lord Guest
Concentration has been placed in the courts below on the explosion which it was said
could not have be•n foreseen because it was caused in a unique fashion by lhe paraffin
forming into vapour an.d being ignited by the naked flame of the wick. But this, in my
opinion, is to concentrate on what is really a non-essential element in the dangerous
situation created by :he allurement. The test might better by put thus: Was the igniting of
paraffin outside the lamp by the flame a foreseeable consequence of the breach of duty?
In the circumstances there was a combination of potentially dangerous circumstances
against which the Fosi office had to protect the appellant. If tiiese formed an allurement
to children it might have been foreseen that they would play with the lamp, that it might
tip over, that it might be broken, and that when broken the paraffin might spill and be
ignited by the flame. All these steps in the chain of causation seem to have been accepted
by all the judges in the courts below as foreseeable. But the explosion was the agent
which caused the burning and was unforeseeable, therefore the accident according to
them, was not reasonably foreseeable. In my opinion this reasoning is fallacious. An
cxplosion is only one way in which burning can be caused. Burning can also be caused
by the contact between liquid paraffin and a naked flame. In the one case paraffin vapour
and in the other case liquid) paraffin is ignited by fire. I cannot see that these are two
different types of accident.

« Provided :hat the .kind or damage is reasonabiy foreseeable, it does not matter that
it is more extensive than could have been foreseen.

Th• “egg-shell sir all”primcipi'e

The 'fagon Mound did not displace thc principie that the defendant must take his victim
as he finds him. lt has for long been the law that if a person is: “negligently run over or
otherwise negligently injured in his body, it is no answer to the sufferer's claim for
damages that he would have suffered less injury, if he had not had an unusually thin
skull or an unusually weal heart”. This principle is as applicable to ’nervous shock’ as to
any other sort of personal injury, and applies even where the foreseeable danger is of
physical
trauma but the plaintiff is shocked, because of his susceptible personality, into mental
illness, even though no physical injury has in fact occurred. It has also been applied
where the immediate cause of the loss is voluntary conduct by the plaintiff to which his

124
 personality may have predisposed him bul which would not have occurred but for his
injury, but the conduct in question was the commission of a crime and it seems that in
such a case the plaintiffs claim would now be barred by public policy. The plaintiffs
) weakness cuts botfi ways, however: his damages are likely to be less than those of a
“no.ma!” person suffering the same overall injury in order to reflect the greater risk to
which he was exposed be the normal vicissitudes of life.
. . . .. ..................... ...............................................

Vacwell Engineering Co. Ltd. v. BDH Chemicals Ltd.

(1971] l QB 88

The defendants supplied a chemical to the plaintiffs but failed to warn that it was liable
to explode on contact with water. A scientist working for the plaintiffs placed the
chemical in water. This caused a violent explosion resulting in extensive damage. The
defendants were held liabie. Some prGperty damage was foreseeable and the fact that it
was more extensive than might have been foreseen did not matter.

COMPETING TESTS OF ‘DIRECTNESS’ AND ‘REASONABLE FORESIGHT’ COMPARED

It seems, therefore, that the Wagon Mound has made little difference to the law in terms
of practical result, and, indeed, Viscount Simonds indicated that this would probably be
so in the Wagon Mound itself. That case has, however, undoubtedly produced a change
of principle and it is right, therefore, to conclude with some brief discussion of its merits
as compared with those of Re Polemis. Much has been written on this subject but two
points only can be considered here:

1) Siwylicity

The Privy Council laid much stress upon the difficulties of the directness test. If
foreseeability is treated as a question of fact to b• decided upon once and for all at the
trial, then, no doubt, the task of the appellate courts is made easier by the change, *ut the
application of the law to the facts is made correspondingly more difficult. If, on the other
hand, questions of for seeability are open in the appellate courts — and the Wagon
Mound (No. 2) indicates that they are — their tliei‘e se-mins no reason for supposing
that the
- foreseeability test is-anyr casie. -than. ‹directness. On the co.ntrary, not only does th• change
forin the one to the other raise the question of the meaning of “kind” of damage but it
“gets rid of the di fficulties of determining causal connection by substituting the
difficulty of determining the range and extent of foresight of the hypothetical reasonable
man.” The fact is that the issue of remoteness of damage is not susceptible to short cuts.
“There is no
substitute for dealing with the particular facts, and considering all the factors that bear on
them, inter-locked as they must be. Theories . .. have not improved at all on the old words
‘proximate’ and remote’ with the idea they convey of some reasonable connection
between the original negligence and its consequences, between the harm threatened and
the harm done.”

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 2) Fairness

According to the Privy Council the test of directness works unfairly: “It does not seem
consonant with current id•as ofjustice or morality that for an act of negligence, however
slight or venial, which results in some trivial foreseeable damage the actor should be
liable for all consequence however unforeseeable and however grave, so long as they can
be said to be ‘direct’.” It is no doubt hard on a negligent defendant that he should be held
liable for unexpectedly large damages, but it is not clear that the final outcome is any
fairer if the plaintiff is left without redress for damage which he has suffered through no
fault of his own. Bearing in mind that negligence involves the creation of an
unreasonable risk of causing some foreseeable damage to the plaintiff it might be thought
that even though Justice” may be impossible of achievement where unforeseeable
damage occurs, greater injustice is produced by the Wagon Mound than by Re Polemis.

4.3 EFFECT OF AN INTERVENING ACT

It remains to consider how far, if at all, the general principles of remoteness of damage
are affected by the circumstance that the damage has been brought about by some
overwhelming supervening event which is of such a character that it relegated into
history matters which would otherwise be looked on as causative factors. Such an event
or act is often called a now actus inierveniens. In discussing this difficult subject it will
be helpful to recall that it is beyond question that human action does not per se sever the
connected sequence of acts. There are two main views as to the proper test of causation
in such a case. This one is that of foreseeability or probability, the other is that of
isolation. It is in dealing with the effect of a novus actus intetveniens that the divergence
between these two views is most marked.

The foreseeabilityi or probahilit•y test

This test involves two propositions: first, if a consequence which actually results from
the defendant's tort is a probabl• or foreseeable consequence, then the defendant may be
liable; secondly, if a consequence which actually results from the defendant's tort is an
improbable or unforeseeable consequence, then the defendant is not liable. If the novus
cictus intervenirris is iinforeseealile, it is much easier to recognize it as entirely
ind•pendent and so efficier.: fn i** own effects that it shou!d y:roperly be regarded as
having reiegateci the original act io an ever.I of mereiy nistorical significance. But if the
novus actus is foreseeable, the defendant may be responsible, for it is often easy to
foresee unreasonable conduct.

The isolation test

’1’he isolation test is best expressed in the words of Lords Sumner in Weld-Blundell v.
Stephens. “In general (apart from special contracts and relations and the maxim @
respondent superior), cvcn though A is in fnult, he is no: responsible for injury to C,

126
 which B, a stranger to him, deliberately chooses to do. Though A may have given the
occasion for B's mischievous activity, B then becomes a new and independent cause.”

L IABILI TY ¥YH ERE INTERVENINC ACT FORESSEABLE

There are undoubtedly many decisions which are expressed to rest upon the principle that
damage which is the foreseeable or probable consequence of the defendant's
wrongdoing is imputable to him notwithstanding an intervening act. The only
qualification is that human actions are less easily foreseeable than a sequence of rational
in.animate reactions. It must always be a question of fact in each case whether the
intervening aci or omission was foreseeable, but the cases fall into five categories.

4 Novus actus intentionally procured by defendant

Clearly the defendant will be liable wherever he has actually authorized or instigated the
intervening act, or omission. On one view he will also be liable if he has intentionally
induced or procured the intervening act by putting the necessary means, opportunity, or
inducement in the way of him who does it.

4 Where the novus actes is a natural and probable result of the breach of duty

Green, LJ in Haynes v. Harwood said: “If what is relied upon as now ac/m interveniens
is the very kind of thing which is likely to happen if the want of care which is alleged
takes place, the principle embodied in the maxim is no defence. The whole question is
whether or no:, to use the words of the leading case, Hadley v. Baxendale, the accident
can be said to be ‘the natural and probable result’ of the breach of duty.”

,y 4 Where the intervening actor is not fully responsible

Again the chain of causation is not broken and the consequence is direct if the novus
actus inferveniens is the act of some person who is not fully responsible for his acts, and
whose lack of responsibility should have been foresee-n, such as a child, or a workman
in a factory whose senses have been dulled by routine work.

“l'he docfrine of” “a/feriiafive danger ”

One of thnmost.familier exemples of this branch of the law is oî a person acting ir. a
state of excusable alarm produced by tr.• del‘endants’ own wron.grul/act. Thns, in
Scot! s’.
S'liepliei-d the detendant threw a iighted squib into the market-hou e ai klilborne Port ou a
fair day. The squib fell upon the stall of Yates, who sold gingerbr ad; one Willis, in order
to prevent injury to hiinsel f and the goods of Yates, instantly icked up the squib and
threw it across the market place; it landed upon the stall of e Ryal, 'who also sold
gingerbread, and who in his tum threw the squib to another part f the market-house. On
this occasion the squib buist in the piaintifPs face and destr yed one of his eyes. A
majority of the Court of Common Pleas held that the defeddant was responsible in
ti cbpasb. “lt lias bccn ui'gcd that flic interventiun of a free agent will make a
difference;

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 b.ut I do not consider Willis and Ryal as free agents in the present case, but acting under a
compulsory necessity for their own safety and self-preservation.”

4 Where the intervening ñ ct is dane in pursuance of a duty

On the same principle the consequence is direct where the intervening act is that of a
person acting under the compulsion of a legal or even only a moral duty. The commonest
example is the rescue cases. The action of the rescuer follows naturally and properly in
the natural sequence of events from the act of the wrongdoer.

P Where the intervening act is done in defence of rights

Again the chain of causation is not treated as broken when the intervening act is that of a
person acting in the exercise or defence of his rights and without intention to injure
others. So it is a foreseeable consequence of obstructing a highway that some passer by

•“ may lawfiilly attempt to abate the nuisance and in so doing create a source of danger.

A CTS DONE TO M INIMIZE DAMAC E

It is the duty of the plaintiff to minimize damage, so no act which he does reasonably
with that object in view will break the chain of causation. The duty to mitigate damage is
really an application of the broad principle of contributory negligence, so that the
plaintiff cannot recover damages for an aggravation or prolongation of his injuries which
is due to his town neglect or willful default.

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