4.5 Causation in law and testing remoteness of damage
4.5.2 Applying the reasonable foreseeability test
The critical element of the test in The Wagon Mound is foreseeability of the general rather than the specific type of damage. It is not therefore necessary for the full extent of the damage to be foreseen in order for there to be liability.
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NEGLIGENCE: CAUSATION
CASE EXAMPLE
Bradford v Robinson Rentals [1967] 1 All ER 267
The claimant suffered frostbite when sent on a long journey from Exeter to Bedford by his employers in severe winter weather, being sent in a van without a working heater. The defend- ants argued that in England this type of damage was too remote and unforeseeable for them to be held liable. The court, however, disagreed. The court identified that it was certainly foresee- able that some cold related illness was a possibility in the circumstances. As a result the court felt that it was immaterial that the actual damage was frostbite, and the defendant was held liable.
It is not therefore necessary for the defendant to have contemplated or to have foreseen the precise consequences of the negligent act or omission, provided that he is aware of the possibility of damage resulting.
CASE EXAMPLE
Margereson v J W Roberts Ltd [1996] PIQR P358
The court in this case considered that the owner of an asbestos works should have been aware of the dangers of people inhaling the asbestos dust, even in 1933. In consequence the court was prepared to impose liability on the defendant in respect of mesothelioma contracted by children who played in dust from the factory that collected in the streets around the entrance to the factory and the surrounding area.
If damage is foreseeable then neither is it necessary, when the defendant is negligent, for the precise consequences of the act or omission to be foreseen when some damage is a foreseeable consequence.
CASE EXAMPLE
Hughes v The Lord Advocate [1963] AC 837
Post Office employees working in a hole in the road negligently left a manhole uncovered inside a tent and then left the tent unattended. As a safety precaution the workmen left four lit paraffin lamps at the corners of the tent at night. A boy entered the tent with one of the lamps and when it fell into the hole there was an explosion, the boy fell in also and was burnt.
This was an unlikely chain of events but the court nevertheless held the defendants liable since some fire related damage was a foreseeable consequence of leaving the scene unattended.
If damage is foreseeable it will not matter that the damage is actually more extensive than might have been foreseeable, provided that the kind of damage itself is foreseeable.
CASE EXAMPLE
Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88
Here the defendants were the suppliers of a chemical product to the claimants. The defend- ants negligently failed to warn the claimants that the chemical would explode if it came into contact with water. When one of the claimant’s scientists did expose the chemical to water there was an alarming explosion, causing very extensive damage. The court held that the defendants were liable even though the resultant damage to property was far more severe than might have been foreseen.
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4.5 TESTING REMOTENESS OF DAMAGE
The court will not only be concerned with the likelihood of harm resulting from the defendant’s negligence. It will also take account of the risk that the harm will be greater if it involves a claimant with a particular sensitivity. In this way the defendant is said to have to ‘take the claimant how he finds him’. This is the so- called ‘thin skull’ rule.
CASE EXAMPLE
Paris v Stepney Borough Council [1951] AC 367
The claimant was a mechanic who was already blind in one eye. He was working under a vehicle and trying to undo a tight nut but had not been supplied with safety goggles by his employer, the defendants, as they were legally required to do. The claimant was then injured in his good eye, causing him total blindness. The court held that the defendants were liable for the full extent of the claimant’s blindness, rather than for causing blindness in one eye. The court identified that the claimant’s condition meant that the defendants owed him a higher duty of care than would normally be the case and were in effect responsible for and therefore liable for his total blindness.
The ‘thin skull’ rule operates then so that the defendant will be liable for the full extent of the damage if damage of the type caused is in fact foreseeable.
CASE EXAMPLE
Smith v Leech Brain & Co Ltd [1962] 2 QB 405
An employee suffered a burnt lip as a result of being splashed by molten metal following his employers’ negligence. The burn activated a cancer from which the claimant later died. His lip had actually been in a pre- malignant state at the time of the burn. Some form of harm from the burn was foreseeable. The court held that even though the death from cancer was not immediately foreseeable, harm resulting from the negligence was, and the defendants were held liable as a result.
The same principle can apply even where the harm is psychiatric damage and this is particularly important in employment relationships where employers subject employees to unnecessary stress.
CASE EXAMPLE
Walker v Northumberland CC [1995] 1 All ER 737
A senior social worker had already suffered one nervous breakdown and was allowed to return to work by his doctor on the understanding that his work schedule would not be too excessive or stressful. When in fact the employer subjected the claimant to even more stress this resulted in a second nervous breakdown. The court held that the employer was liable. This was because after the first breakdown they were aware of his susceptibility to stress and did nothing to reduce his workload or the pressure associated with it.
The principle can also apply where the expected damage is physical injury but the claim- ant suffers shock instead and has a particular sensitivity.
The test of reasonable foreseeability and claims for personal injury
In general the cases above seem to indicate that the courts will take a fairly broad view of what is reasonably foreseeable in the event that the damage suffered is personal injury.
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NEGLIGENCE: CAUSATION
CASE EXAMPLE
Jolley v London Borough of Sutton [2000] 3 All ER 409, HL
A council failed to move an abandoned boat for two years. It was well known that children played in the boat and it was a clear danger. A boy of 14 was then hurt when he and a friend jacked up the boat in order to try to repair it. The Court of Appeal felt that the activities engaged in by the boys and therefore the specific type of damage caused were not at all fore- seeable. The House of Lords, however, disagreed with this reasoning. The House acknow- ledged that the boat was dangerous, and as a result that it was quite foreseeable that children coming into contact with the boat might suffer some kind of harm. The precise manner in which the injuries occurred was not important. It was sufficient that some harm was foresee- able for the defendant council to be liable for its negligence.
Nevertheless, there have been occasions on which courts have taken a much narrower view of what is foreseeable. As a result the decisions appear on the surface to work unfairly on the claimant.
CASE EXAMPLE
Tremain v Pike [1969] 3 All ER 1303
The claimant was a herdsman who contracted Weil’s disease during the course of his work.
This is a rare disease and is only contracted through contact with rats’ urine. The claimant argued that this in fact happened when he worked with hay and washed with water that was contaminated with rats’ urine. The court did accept that the defendant had negligently allowed the rat population on his farm to grow too large and that there was some inevitable risk of damage from rats. Nevertheless, the court held that the defendant was not liable since the court considered that the disease was so rare in humans that it was an unforeseeable con- sequence of the negligence.
On occasions it also appears that the test in Hughes v Lord Advocate [1963] AC 837 can be contradicted if the court focuses too closely on the circumstances in which the damage occurs, rather than on the mere fact that some damage is foreseeable.
CASE EXAMPLE
Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518
Here, due to negligence, a cover over a cauldron of heated sodium cyanide was allowed to slide into the liquid in the tank. The cover was made of asbestos compound. There was a chemical explosion and the claimant who was working on the tank was badly burned. The Court of Appeal accepted that it was previously unknown that there would be such a chemical reaction between the asbestos and the sodium cyanide and the court held that the defendants were not liable as a result. The chemical reaction was unforeseeable and the damage was thus too remote. However, there certainly seems to be merit in the claimant’s argument that damage from the liquid if splashed would be foreseeable. In deciding the case the Court of Appeal chose to apply the persuasive precedent of the Privy Council in The Wagon Mound rather than its own previous precedent in Re Polemis.
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4.5 TESTING REMOTENESS OF DAMAGE
The judges will also apply policy reasons in determining whether an outcome is reason- ably foreseeable.
CASE EXAMPLE
Corr v IBC Vehicles Ltd [2008] UKHL 13
An employee was badly injured as a result of his employer’s negligence. He also developed post- traumatic stress disorder as a result and eventually committed suicide. The Court of Appeal accepted that depression was a foreseeable consequence of the original negligence.
On this basis, since suicide is not uncommon in cases of depression, unless any evidence was introduced to the contrary, there was nothing to prevent recovery. The Court commented that to treat the chain of causation as being broken by the suicide would be unjustified and awarded the man’s widow damages under the Fatal Accidents Act 1976. The House of Lords subsequently upheld this ruling. The view had already been confirmed in Rothwell v Chemical and Insulating Co Ltd [2007] UKHL 39 where the House of Lords rejected a similar claim because the employee could not show that his employer should have foreseen the risk of psychiatric injury and the claim did not fall within the exception identified in Page v Smith [1996] AC 155.
In contrast in Grieves v FT Everard and Sons Ltd [2006] EWCA Civ 27 the Court of Appeal was not prepared to accept a causal link between asbestos exposure and the develop- ment of pleural plaques (which could lead to subsequent asbestos related diseases) and a depressive illness based on the fear of contracting such an illness.
The test of reasonable foreseeability and claims for property damage
With few exceptions the courts in general appear to adopt a much narrower approach to what might be considered foreseeable when the damage in question is to property rather than personal injury.
CASE EXAMPLE
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound (No 1)) [1961] AC 388
The trial judge acknowledged that some damage was foreseeable in the circumstances. The judge, however, felt that the type of damage that was foreseeable would be fouling of the harbour and ships moored in it by the oil. He did not feel that fire damage was foreseeable in the circumstances. But since he believed fouling was foreseeable he held that the fire damage was also a direct consequence of the defendant’s negligence. Inevitably the Privy Council could only consider the appeal on this basis.
Even the degree of risk of the type of damage actually caused has been considered nar- rowly thus avoiding imposing liability.
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CASE EXAMPLE
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound (No 2)) [1967] 1 AC 617
The owners of the two ships that were being repaired in the wharf and were damaged in the fire brought this case. The trial judge showed a very narrow approach to foreseeability in rela- tion to an action for property damage. While he accepted, unlike the trial judge in Wagon Mound (No 1), that fire was a foreseeable consequence of the defendant’s negligence, he nevertheless felt that it was so remote as to not give rise to any liability. He was reversed by the Privy Council which held that provided the type of damage was foreseeable, then liability must result and the degree of likelihood was irrelevant. The Privy Council was able to reach this result in the appeal because the trial judge had actually accepted fire damage as a remote but foreseeable consequence of the negligence.