Hughes v Lord Advocate

Where a defendant creates an unattended and foreseeable danger to children, liability does not depend on foresight of the exact sequence by which injury occurs. It is enough that injury of the relevant type or kind was reasonably foreseeable.

An unforeseeable feature in the mechanism of the accident, such as an unexpected explosion rather than an ordinary fire, does not defeat liability if the resulting harm remains within the class of danger created by the negligence. A defendant is not excused merely because the damage occurs in an unusual way or is more severe than expected.

Liability may fail only where a new and independent cause, rather than the defendant’s breach, is truly the cause of the injury.

An eight-year-old boy was severely burned after Post Office workmen left an open manhole, a tented shelter, a ladder and lighted paraffin lamps unattended in a public street during a break. The boy and another child entered the shelter, explored the hole, and one lamp fell into the manhole. Paraffin vapour ignited and exploded, causing the boy to fall into the hole and suffer burns.

The boy sued the Lord Advocate as representing the Postmaster-General, alleging negligence in leaving the site unguarded or unsecured. The Lord Ordinary held that children’s presence and the ordinary dangers of falling or burning were foreseeable, but dismissed the claim because the explosion itself was not reasonably foreseeable. The First Division affirmed by a majority, Lord Carmont dissenting.

The appeal raised the central question whether the claim failed because the precise mechanism of injury, namely the explosion, was unforeseeable, even though burns or a fall were foreseeable consequences of the dangerous allurement left in the street.

Held

1. Appeal allowed unanimously. The House held that the respondent was liable in negligence. Lord Guest delivered the leading speech, with Lord Reid and Lord Pearce expressly agreeing, and Lords Jenkins and Morris of Borth-y-Gest also allowing the appeal on the same essential basis.

2. Per Lord Guest, the Post Office employees owed a duty to take reasonable precautions because the unattended combination of tent, open manhole, ladder and lighted paraffin lamps in a public street amounted to an allurement and a foreseeable danger to inquisitive children. The Lord Ordinary had been entitled to find that children’s presence and interference should reasonably have been anticipated.

3. Per Lords Guest, Reid, Jenkins, Morris and Pearce, the courts below asked the wrong question by isolating the explosion as the decisive event. In a negligence case it is not necessary that the precise details of the accident, or the exact chain of causation, should be foreseeable. It is enough if the accident or injury is of a foreseeable type or kind. Here, burning injury and a fall were foreseeable consequences of leaving the site unguarded.

4. Per Lord Reid, a defender remains liable although the damage is much greater in extent than was foreseeable, unless the damage differs in kind from what was foreseeable. Per Lord Jenkins and Lord Pearce, the distinction between an ordinary paraffin fire and an explosion was too fine. Both were manifestations of the same physical danger of burning or fire created by the negligence.

5. Per Lord Morris, the fact that boys may bring about an expected consequence in a surprising way does not prevent liability. The severe burns were still burns, even though produced by explosive combustion. Per Lord Pearce, the explosion was only an unexpected manifestation of the apprehended danger and remained within the risk created by the negligence.

6. Per Lord Reid, liability would fail only if a new and independent cause had supplanted the breach as the real cause of the injury. That was not this case. The known source of danger was the lamp, and it merely behaved in an unpredictable way.

• House of Lords: appeal allowed. The House reversed the majority decision of the First Division and restored the pursuer’s claim.

• First Division, Court of Session: by a majority, the court affirmed the Lord Ordinary’s dismissal of the action. Lord Carmont dissented.

• Lord Ordinary: the respondent was assoilzied. The Lord Ordinary held that ordinary dangers were foreseeable but treated the explosion as an unforeseeable event fatal to the claim.