Hughes v Lord Advocate (1963)

The Wagon Mound (No. 1) (1961) replaced the directness test of Re Polemis with reasonable foreseeability: a defendant is liable only for damage of a kind he could reasonably have foreseen. That raised an obvious question. How precisely must the harm be foreseen? Must the defendant have foreseen the exact way the accident happened?

Hughes is the House of Lords' answer, applying the Wagon Mound test. It is enough if the type or kind of harm was foreseeable. The precise manner in which it came about, and its extent, need not have been foreseen. In Lord Reid's words: "This accident was caused by a known source of danger, but caused in a way which could not have been foreseen, and in my judgment that affords no defence."

On 8 November 1958 Post Office workmen opened a manhole in Russell Road, Edinburgh, to reach a telephone cable. The manhole was about nine feet deep. They put a shelter tent over it and placed four lighted red paraffin warning lamps around the site. At about 5 p.m. they left for a tea break. They took the ladder out of the manhole and left it beside the shelter, pulled a tarpaulin over the entrance leaving a gap of about two feet, and left the lamps burning. No one was left in charge.

The appellant, aged eight, and his uncle, aged ten, came along. They took a red lamp, entered the tent, brought in the ladder and a rope, and went down into the manhole with the lamp. After they came out, the appellant tripped over the lamp and it fell into the hole. There was an explosion, with flames reaching thirty feet. The appellant fell into the manhole and suffered very severe burns.

The accepted explanation was that paraffin escaped from the broken lamp, vaporised, and was ignited by the flame. The experts agreed this was so unlikely as to be unforeseeable.

He sued the Lord Advocate, as representing the Postmaster-General. The Lord Ordinary dismissed the claim, and a majority of the First Division affirmed. Lord Carmont dissented. Both courts below held that the accident was not reasonably foreseeable because the explosion was not.

1. Were the Post Office workmen in breach of a duty of care to children who might be attracted to the unattended site?
2. Is a defendant excused from liability because the harm came about through an unforeseeable event (the explosion), when harm of the same kind (burns) was foreseeable?

The appeal was allowed unanimously. The Post Office was liable.

Breach of duty

The lamps, tent, ladder and open manhole in a public street were an allurement to children. Their presence was reasonably to be anticipated. The trespass point raised below was not pursued in the House of Lords. Lord Reid: "I am satisfied that the Post Office workmen were in fault in leaving this open manhole unattended and it is clear that if they had done as they ought to have done this accident would not have happened."

Kind of harm, not manner or extent

Lord Reid held that burns were foreseeable, and that the defender is liable even for greater damage than expected: "But a defender is liable, although the damage may be a good deal greater in extent than was foreseeable. He can only escape liability if the damage can be regarded as differing in kind from what was foreseeable." Here, "The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way." He distinguished the case where "the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender", and said: "But that is not this case."

Lord Guest set out the test most students quote: "In order to establish a coherent chain of causation it is not necessary that the precise details leading up to the accident should have been reasonably foreseeable: it is sufficient if the accident which occurred is of a type which should have been foreseeable by a reasonably careful person". He held that burning by explosion and burning by spilt paraffin were not different kinds of accident: "They are both burning accidents and in both cases the injuries would be burning injuries. Upon this view the explosion was an immaterial event in the chain of causation."

Lord Morris of Borth-y-Gest: "The fact that the features or developments of an accident may not reasonably have been foreseen does not mean that the accident itself was not foreseeable." The appellant "was in my view injured as a result of the type or kind of accident or occurrence that could reasonably have been foreseen."

Lord Jenkins: "To my mind the distinction drawn between burning and explosion is too fine to warrant acceptance."

Lord Pearce tied the case directly to The Wagon Mound: "When an accident is of a different type and kind from anything that a defender could have foreseen he is not liable for it (see The Wagon Mound [1961] A.C.388). But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable". On these facts: "The accident was but a variant of the foreseeable."

Muir v Glasgow Corporation distinguished

The respondent relied on Muir v Glasgow Corporation (1943), where children were scalded by tea from a dropped urn. It was distinguished. In Muir the tea urn was not a potentially dangerous object, and the way the tea came to be spilled was never established. Here there had been a breach of duty, and the cause of the accident was known.

Under the reasonable-foreseeability test for remoteness, a defendant in breach of duty is liable if the damage is of a type or kind that was reasonably foreseeable. He is not excused because the precise sequence of events, or the way the harm came about, was unforeseeable. Nor is he excused because the harm was greater in extent than could have been foreseen. He escapes only where the damage differs in kind from what was foreseeable, or where a new and unexpected factor, rather than his fault, caused the accident.

• Remoteness of damage: Discuss the rules of remoteness of damage in negligence, with reference to Re Polemis and The Wagon Mound. After setting out Re Polemis (directness) and Wagon Mound (No. 1) (foreseeability), use Hughes to show how the House of Lords applied the new test: kind of harm, not manner or extent. Lord Pearce's speech cites The Wagon Mound expressly.
• Problem question: a defendant leaves a hazard; the claimant is injured by a freak mechanism but suffers a foreseeable type of injury. Apply Lord Guest's test and Lord Reid's point that a known source of danger which behaves unpredictably is no defence. The defendant is liable.
• Allurement to children: Discuss the duty owed to children attracted by dangerous objects. Use Lord Morris's opening passage and Lord Pearce's description of the lamp, ladder, tent and hole as an allurement.
• Always say it is a House of Lords decision on appeal from Scotland. It is not an Indian decision.