Hughes v Lord Advocate

Hughes v Lord Advocate [1963] UKHL 8 is a famous Scottish delict case decided by the House of Lords on causation. It is also influential in the English law of tort.

Facts

On November 8, 1958 evening the appellant, an eight-year-old boy with his ten-year-old uncle was walking down Russell Road, Edinburgh. Some Post Office employees were repairing cables under the street. They opened a manhole on the surface of the road, which was nine feet deep and put a weather tent on it. A ladder was put inside the manhole for access. The tent was again covered with a tarpaulin for better protection, but the workmen left one of the corners a gap of two feet and six inch. They had also fixed four red paraffin lamps on the site to warn the traffic since 3.30pm. The workmen left the site at about 5pm for a tea break to a nearby Post Office building. Before leaving, they took out the ladder and put it on the ground outside the tent.

While the workmen were out, the plaintiff and his uncle arrived at the site and started meddling with the equipment. They picked up one of the lamps and entered the tent. They took the ladder along with which was kept outside the site in order to explore the manhole. Thereafter, they took a piece of rope (which was not a part of the Post Office equipment) and tied it to the lamp and went inside the manhole. After exploring the manhole they succeeded to come out of the manhole safely. Somehow, the appellant tripped over the lamp, and it fell into the manhole. The lamp broke, the paraffin within leaked, the paraffin vaporised which resulted to an explosion with flames reaching up to thirty feet. Due to the impact of the blast, the appellant fell into the hole and suffered severe injuries from burns.

Issues

The case was primarily based on the negligence of the Post Office workers in leaving the site of work unattended with the lamps burning. They owe a reasonable duty of care to prevent the children from entering the site which could be an “allurement” for the children. This was one of the issues that were raised; whether the respondent had taken adequate duty of care. A minor issue was brought forward in the case that the children have committed trespass and were liable for contributory negligence. One of the issues had been the question of foreseeability in the presence of children on Russell Road. Although the appellant suffered from injuries which were of higher degree, a question raised whether the explosion caused the accident and kind of injury suffered was of different type than that could have been foreseeable. However, the major issue which was involved in the case was whether the accident was foreseeable in nature. The case was brought forward from the First Division of the Court of Session, which limited the liability of the respondent on the grounds that although the danger to children was foreseeable the accident was not of a foreseeable nature.

Judgment

Contributory negligence

The respondent pressed that the children were trespassers and have done contributory negligence. However, the First Division Court holds that a Post Office doesn’t have a sufficient exclusive interest in the middle of the road to support a claim of trespass. Taking into consideration the relative young age and mind of the appellant, it was agreed by both the parties the appellant had not performed an act of contributory negligence. This point was not persisted in the House of Lords.

Duty of care

On the question of whether the respondent had taken reasonable care to prevent the accident, has been doubted by Lord Jenkins on following the well known standard described by Lord Atkin in the case of Donoghue v. Stevenson: “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Lord Jenkins commented on the question of taking reasonable care by following the test suggested by Lord Atkin, that “In a word, Post Office had brought on the public highway apparatus capable of constituting a source of danger to passer-by ... It was therefore their duty that such passerby, “neighbour” in the language of Donoghue v. Stevenson, were, so far as reasonably practicable, protected from the various obstacles, or (to children) allurements, which the workmen had bought to the site. It is clear that the safety precautions taken by the Post Office did not in this instance measure up to Lord Atkin’s test.” Lord Morris gave a suggestive answer to the question, that “Exercising an ordinary, and certainly not an over-exacting degree of prevention the workmen should, I consider, have decided, when the tea break came, that someone had better be left in charge who could repel the intrusion of inquisitive children.” This shows that the judge doubted that the respondent had performed his duty of care, had there been someone to guard the place or have put some other reasonable protection, the accident would have never happened.

Presence of children

The presence of children on Russell Road by the respondent had been considered as an unforeseeable event. The argument was put forward both in the First Division and in the House of Lords; the argument got the support of Lord President in the First Division Court. The Russell Road has been considered as a quiet road and more particularly on Saturdays, moreover the nearest residential house was four hundred yards away. Lord Morris concluded on this matter following the judgement of Lord Ordinary, as “If, of, course, there was no likelihood that children might appear, different considerations would apply. But children did appear, and I find no reason to differ from the conclusion of the Lord Ordinary that the presence of children in the immediate vicinity of the shelter was reasonably to be anticipated.”

Lord Guest on the basis of the judgement by Lord Ordinary and facts believed that appellant doesn’t have to prove the presence of children on a public road within a city but it was the duty of the respondent to prove the children was unforeseeable. The facts could not be proved due to lack of evidence. The evidences provided were completely based on the observation of the Post Office workers during their five days of work on the street and they had no previous experience of the traffic at any other time.

Moreover, Lord Guest followed the reasoning given by Lord Ordinary that it was reasonable to anticipate the danger that might arise due to meddling of Post Office equipments by children and their entrance into the shelter. Where he held that, “... the normal dangers of such children falling into the manhole or being in some way injured by a lamp, particularly if it fell or broke, were such that a reasonable man would not have ignored them.”

Cause of injuries and foreseeability

In the case, it has been well established from the facts and evidence that the explosion occurred was due to leaking of paraffin from the lamp as a result the appellant was severely injured; this fact was accepted by the respondent. According to Lord Reid, the appellant sustained injuries from burns and the injury of this type was foreseeable. Although the degree of burn was of higher category, the respondent cannot escape liability by pressing the argument that the injury resulted was of a higher degree. If the injury was of a different kind than the foreseeable type the defender could have escape liability.

Lord Reid continued that as the cause of the accident – the explosion from paraffin lamp – is known, it leaves no ground to prove the accident was caused from an unknown source and there could be a case where the intrusion of a new and unexpected factor could be regarded as the case of accident, rather than the fault of respondent. But the point was not considered valid in this case due to the known cause of the accident. It was concluded by Lord Reid that the accident in question “was but a variant of foreseeable” and it mattered not it may have arisen in an unforeseeable manner. He would therefore allow the appeal.

Lord Jenkins give a similar view, finding no justification to hold someone liable if the accident had occurred from the burning of lamp and not if the lamp had exploded. Lord Jenkins held that: “If there is a risk of such fire as that I do not think that the duty of care prescribed in Donoghue v Stevenson is prevented from coming into operation by the presence of the remote possibility of the more serious event of an explosion. I would allow this appeal.”

Lord Morris was also in agreement, saying that the injury suffered by the appellant was of a higher degree, but that resulted of the kind or type of accident which was foreseeable. He also stated that the respondent should not escape liability just because they could not foresee the exact way in which the appellant would play with the equipment kept at the site or the way in which he may get hurt. Allowing the appeal, Lord Morris answered that there was a duty owed by the respondent to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from the liability because they didn’t envisage “the precise concatenation of circumstances which lead up to the accident.”

Lord Guest pointed out that for making a coherent chain of causation it is not necessary to follow the minute details leading up to the accident to be reasonably foreseeable, but only that the type of accident caused was of a foreseeable type. He was of the view that the lower courts wrongly gave more emphasis on the fact on explosion; to Lord Guest it was a non-essential element. He gave more emphasis on the fact whether burning of paraffin outside the lamp was a reasonable foreseeable event. The lower courts had already concluded these events as a reasonable foreseeable event, but they were of the view the explosion was an unforeseeable event. Lord Guest argued this as a “fallacious” claim. Lord Guest concluded in his judgement that, the accident and the injuries sustained by the children should have been reasonably foreseen by Post Office employees and was in breach of duty to take adequate protection against the accident. He allowed the appeal for the pursuers.

Lord Peace cited the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd in which it has been held that a person is not liable if the accident is of a different type than the type which was foreseen by the person. It would be unjust to check each and every details of the foreseeability test too minutely when the case deals with things that can be allurement to children leads to an accident and hard to foresee the exact way in which the accident may take place.

All the judges in the case allowed the case in favour of the appellant arguing that although the accident occurred was not identical to what was expected doesn’t mean that the person is not liable if the type of accident is same as of the type which was foreseeable.

External links

• Full text of decision from BAILII.org