McKew v Holland & Hannen & Cubitts (Scotland) Ltd

A person whose injury creates a continuing disability must act reasonably in light of the known risk. If that person unreasonably exposes himself to further injury, his conduct constitutes a novus actus interveniens, breaks the chain of causation and relieves the original wrongdoer of liability for the further damage.

Foreseeability is necessary but not sufficient. A wrongdoer is not liable for every consequence that could reasonably be foreseen, since unreasonable intervening conduct may itself be foreseeable. An error of judgment made in a sudden emergency will not ordinarily break the chain unless the response is so unreasonable that no ordinary person would have acted in that way.

The appellant suffered a minor workplace injury for which the respondents admitted responsibility. It left his left leg liable to give way without warning. Several weeks later, knowing of that weakness, he attempted to descend a steep stair without a handrail or available assistance. When his leg gave way, he fell or jumped down several steps and sustained serious, permanent injuries.

The Lord Ordinary awarded £200 for the original injury but held that the second accident was too remote. The Second Division of the Court of Session concurred. The appellant appealed to the House of Lords, where the central issue was whether his conduct broke the causal connection between the respondents’ fault and the second accident.

1. Appeal dismissed unanimously. Lord Reid delivered the leading speech. Lord Hodson and Viscount Dilhorne expressly agreed with it, while Lord Guest reached the same conclusion through substantially similar reasoning.

2. Per Lord Reid, a person whose injury leaves a leg liable to give way must act reasonably and carefully. A wrongdoer remains liable where, despite such care, the disability causes a further injury. If the injured person instead acts unreasonably, that conduct is a novus actus interveniens. It breaks the chain of causation, and the resulting injury is attributed to that conduct rather than to the original fault or disability.

3. Per Lord Reid, foreseeability does not determine the issue by itself. Liability does not attach to every consequence that a reasonable person could foresee. Unreasonable conduct may be readily foreseeable, but damage caused by that intervening conduct remains outside the original wrongdoer’s responsibility.

4. Lord Reid held that the appellant knew his leg might fail suddenly, that the stair was steep and lacked a handrail, and that assistance was available. Reasonable conduct required him either to descend extremely slowly, so that he could sit if the leg failed, or to wait for assistance. By descending in a manner that left him unable to stop when his leg gave way, he unreasonably created the danger and broke the chain of causation.

5. Per Lord Reid, the appellant’s attempt to jump after his leg failed was not itself necessarily sufficient to break the chain. A person confronted with a sudden emergency must decide within a fraction of a second. A mistaken response in that situation is ordinarily an error of judgment, unless it is so utterly unreasonable that no ordinary person would have acted in that way. The chain had, however, already been broken by the appellant’s earlier decision to descend without adequate care or assistance.

6. Lord Guest considered that either the deliberate jump found by the Lord Ordinary or, independently, the unreasonable decision to descend the stairs without assistance was sufficient to break the chain. The award of £200 for the original injury therefore stood, and no damages were recoverable for the second accident.

1. House of Lords: The appeal was dismissed unanimously. The determination that the respondents were not liable for the second accident was affirmed.

2. Second Division of the Court of Session: The court concurred with the Lord Ordinary that damages could not be recovered for the second accident.

3. Lord Ordinary: The appellant was awarded £200 for the original injury. Recovery for the second accident was refused because it was not a direct and probable result of the original accident and was too remote.