McKew v Holland & Hannen & Cubitts (Scotland) Limited

An injured person must act reasonably in response to a disability caused by another’s fault. If reasonable care is taken, a further injury caused by that disability remains attributable to the original wrongdoer. If the injured person’s unreasonable conduct causes the further injury, that conduct is a novus actus interveniens which breaks the chain of causation.

Foreseeability alone does not determine liability. A consequence may be foreseeable yet remain attributable to an intervening unreasonable act. When an injured person reacts to a sudden emergency, an error of judgment will not itself break the chain unless the response is so unreasonable that no ordinary person would have acted in that way.

The appellant suffered minor injuries through the admitted fault of his employer. Those injuries left his leg liable to give way without warning. Several weeks later, while inspecting a flat, he attempted to descend a steep stair without a handrail or available assistance. His leg gave way and he jumped or fell down the stairs, sustaining 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 affirmed that decision. The appellant appealed to the House of Lords, contending that the weakness caused by the first accident also caused the second accident. The central issue was whether his conduct had broken the chain of causation.

1. The appeal was dismissed unanimously. Lord Reid delivered the leading speech. Lord Hodson and Viscount Dilhorne expressly agreed with him. Lord Guest reached the same conclusion by substantially the same causal analysis, and Lord Upjohn concurred.

2. Per Lord Reid, a person whose injury leaves a leg liable to give way must act reasonably and carefully. If a further injury occurs despite reasonable care, it is caused by the disability and remains attributable to the original wrongdoer. If the injured person acts unreasonably and that conduct causes the further injury, the conduct is a novus actus interveniens. It breaks the chain of causation, so the ensuing damage is attributed to that conduct rather than the original fault.

3. Per Lord Reid, foreseeability does not make a wrongdoer liable for every consequence that a reasonable person could foresee. Unreasonable conduct may itself be foreseeable or likely, but it can nevertheless constitute an intervening act which excludes liability for the resulting damage.

4. Per Lord Reid, the appellant knew that his leg might suddenly give way. He also knew that the stair was steep and lacked a handrail. Reasonable conduct required him either to descend extremely slowly, so that he could sit if necessary, or to await assistance from his wife or brother-in-law. By proceeding in a manner which left him unable to stop when his leg failed, he acted unreasonably and broke the chain of causation.

5. Lord Guest likewise held that commencing the descent without assistance, while holding a young child and knowing that the leg had previously given way, was unreasonable. Applying the principles discussed in Allan v Barclay, The Oropose and ss. Baron Vernon v ss. Metagama, he concluded that the second injury was not the natural and reasonable consequence of the original negligence.

6. Per Lord Reid, the appellant’s split-second reaction after his leg gave way was not independently conclusive. Had the chain remained intact until the emergency arose, a mistaken response would have broken it only if the response were so utterly unreasonable that no ordinary person would have acted in that way. The attempted jump was no more than an error of judgment. The chain had already been broken by the appellant’s earlier decision to descend the stair without adequate precautions.

7. The interlocutors of the Lord Ordinary and the Second Division were affirmed. The appellant remained entitled only to the agreed £200 damages for the original injury and was ordered to pay the respondents’ appeal costs, subject to further order before enforcement.

1. House of Lords: The appeal was dismissed unanimously and the interlocutors of the Lord Ordinary and the Second Division of the Court of Session were affirmed.

2. Second Division of the Court of Session: The court affirmed the Lord Ordinary’s conclusion that the appellant could not recover damages for the second accident.

3. Lord Ordinary: Lord Robertson awarded £200 for the original injury but held that the second accident was too remote. He would otherwise have awarded an additional £4,715.