Hughes v Lord Advocate

In negligence, foreseeability concerns the type or kind of accident and injury, rather than the precise sequence by which they occur. A defender who creates a known danger cannot avoid liability merely because that danger operates in an unpredictable manner. Liability arises where the breach causes injury of a foreseeable kind, even though the mechanism is unusual and the injury is more severe than expected.

Those who leave potentially dangerous objects where children may foreseeably meddle with them must take reasonable and practicable precautions. A genuinely new and extraneous cause may break the causal connection, but an unexpected manifestation of the danger created by the breach does not.

The appellant, aged eight, entered an unattended canvas shelter erected by Post Office workmen over an open manhole in a public street. Lighted paraffin lamps, a ladder and the manhole attracted the appellant and another child. A lamp fell into the manhole, released paraffin and caused an unexpected explosion. The appellant fell into the manhole and suffered severe burns.

The Lord Ordinary assoilzied the Lord Advocate, representing the Postmaster-General. A majority of the First Division affirmed that decision, Lord Carmont dissenting. Although burning and falling were foreseeable risks, the majority regarded the explosion as an unforeseeable type of accident. The central issue before the House was whether the unusual mechanism made the resulting burning injuries too remote.

1. Disposition. The House of Lords unanimously allowed the appeal. All five Law Lords concluded that the appellant's burning injuries were within the foreseeable danger created by leaving the manhole, lamps and associated equipment unattended.

2. Duty and breach. Lord Guest held that the combined presence of the tent, open manhole, ladder and lighted paraffin lamps created an allurement and a potentially dangerous situation for children. The presence of children in a public street in the heart of the city was reasonably to be anticipated. The workmen should have closed the manhole or provided supervision. Lords Reid, Jenkins, Morris of Borth-y-Gest and Pearce reached the same conclusion concerning fault.

3. Foreseeability of the kind of accident. Lord Guest held that a coherent chain of causation did not require every detail leading to the accident to have been foreseeable. It was sufficient that the accident was of a foreseeable type. The lamp might foreseeably be mishandled or broken, allowing paraffin to escape and ignite. An explosion was merely an unusual means by which that foreseeable burning accident occurred.

   Lord Reid similarly held that burns were foreseeable and did not become different in kind merely because the lamp behaved unpredictably. Lord Jenkins considered the distinction between burning and explosion too fine. Lord Morris regarded the accident as a foreseeable occurrence brought about in an unexpectedly severe and unusual manner. Lord Pearce described it as a variant of the foreseeable risks of burning, conflagration and falling.

4. Extent and mechanism of damage. Per Lord Reid, liability is not excluded because the damage is substantially greater in extent than could have been foreseen. The defender escapes only where the damage differs in kind. The resulting burns were no different in kind from burns caused by an ordinary paraffin fire.

5. Causation and authority. Lord Guest distinguished Muir v Glasgow Corporation. In that case the particular cause of the spill was unknown and the object was not dangerous in the same circumstances. Here the cause was established and involved a known source of danger. Lord Reid added that an unforeseen, extraneous cause could prevent proof that a breach caused the accident, but the unpredictable operation of the known danger did not do so.

1. House of Lords: In Hughes v Lord Advocate [1963] AC 837, unanimously allowed the appeal and rejected the conclusion that the unexpected explosion made the burning injuries unforeseeable.
2. First Division of the Court of Session: By a majority, affirmed the Lord Ordinary's decision; Lord Carmont dissented.
3. Lord Ordinary: Assoilzied the respondent because the explosion was not reasonably foreseeable.