Lamb v Camden London Borough Council

Damage caused by the deliberate criminal acts of independent third parties may be too remote from an earlier tort even where that conduct was reasonably foreseeable. Foreseeability remains central, but it does not invariably determine whether the intervening conduct is attributable to the original tortfeasor.

The court may consider the likelihood and nature of the intervention, its temporal and geographical relationship to the original wrong, the parties’ ability and responsibility to prevent it, and broader questions of legal policy. On that basis, a public authority whose nuisance rendered a house uninhabitable was not liable for later malicious damage and theft committed by squatters.

The council admitted liability in nuisance after sewer works broke a water main, washed soil from beneath the claimant’s house and made it uninhabitable. The furnished house was initially secured, but it was later emptied in anticipation of repairs. Successive groups of squatters then entered and caused extensive malicious damage and theft.

An official referee held that the squatters’ damage was too remote because, although squatting might have been foreseeable, it was not likely. The owner appealed. The central issue was whether the independent criminal conduct constituted an intervening cause for which the council bore no legal responsibility.

1. Appeal dismissed unanimously. The damage caused by the squatters was too remote from the council’s nuisance and was not recoverable.

2. Lord Denning MR held that duty, causation and remoteness are mechanisms by which the law limits the consequences for which a tortfeasor must compensate a claimant. Their ultimate application may involve questions of policy. He rejected as both too broad and too narrow any rule depending exclusively upon whether the intervening conduct was reasonably foreseeable or very likely.

   The responsibility for securing the empty house and removing trespassers rested upon the owner and her agents, not the council. The council was not in possession and had no right to enter. The normal availability of insurance against theft and malicious damage also supported leaving the loss where it fell. Lord Reid’s likelihood formulation in Dorset Yacht Co v Home Office [1970] AC 1004 was disapproved as an obiter statement which could produce an unreasonably extensive liability.

3. Oliver LJ concluded that reasonable foreseeability remained the governing concept. No additional and independent requirement of causal “nexus” should be restored. Where damage results from the free act of an independent person, however, the foreseeability inquiry must be approached with particular care. Human conduct cannot ordinarily be attributed to a tortfeasor unless, viewed objectively, it was very likely to occur.

   The official referee’s operative finding was that an incursion by squatters was unlikely. That finding meant that the damage was not reasonably foreseeable as a consequence of breaking the water main. Oliver LJ nevertheless accepted that an unqualified foreseeability test could extend liability beyond reason and suggested that an even more stringent degree of likelihood might sometimes be required.

4. Watkins LJ held that the reasonable-foreseeability test should initially be applied without verbal gloss. It is sufficient in most cases, but it does not invariably conclude the inquiry. Where the claimant survives that threshold, the court may consider the nature, time and place of the intervening act, the perpetrator’s identity and intention, responsibility for preventive measures, and public policy.

   Although squatters’ damage was reasonably foreseeable, their outrageous, antisocial and criminal conduct was, on a practical assessment, too remote. The official referee had therefore reached the correct result despite employing an inappropriate likelihood formulation.

• Court of Appeal: The owner’s appeal was dismissed unanimously; the squatters’ damage remained irrecoverable as too remote. [1981] EWCA Civ 7
• High Court, Queen’s Bench Division: The official referee, His Honour Judge Edgar Fay QC, held that the malicious damage and theft committed by squatters were too remote from the admitted nuisance. No citation is stated.