KIIT LAW SCHOOL
Legal Methods Project
Topic: Study of the case Hughes v. Lord Advocate [1963] 1 All E.R. 705
Guided By: Prof. Ahmed Ali Assistant Professor of Law KIIT Law School
By: Amartya Bag B.A. LL.B. (1 st Sem.) Roll: 883006
Contents
Chapter Page 1. Table of Cases .............................................................................. 1 2. Facts ............................................................................................. 2 3. Issues............................................................................................. 2 4. Judgement..................................................................................... 2 5. Conclusion.................................................................................... 5
Table of Cases Blyth v. Waterworks Co. [1856] 11 Ex 781, p. 442 Bolton v. Stone [1951] 1 All E.R. 1078 Donoghue v. Stevenson [1932] All E.R. Rep. 1 11 Doughty v. Turner Manufacturing Co Ltd [1964] All E.R. E.R. 98 98 Glasgow Corpn. v. Muir [1943] 2 All E.R. 44 Harvey v Singer Manufacturing Co Ltd 1960 SC 155 Miller v. South of Scotland Electricity Board [1958] S.C. (H.L.) 34 Polemis v Furness, Withy & Co [1921] 3 KB 560 Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co. Ltd [1961] All E.R. 404
Hughes v Lord Advocate1 Facts On November 8, 1958 evening the appellant, an eight year old boy with his ten year old uncle was walking down a public road known as Russell Road in Edinburg. Some workmen employed by the Post Office were working with cables under the street. For the above purpose 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 3.30 p.m. The workmen left the site at about 5.00 p.m. 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 equipments. 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 equipments) 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 has taken adequate duty of care. A minor issue was brought forward in the case that the children have committed trespass and was liable for contributory negligence. One of the issues had been the question of foreseeablity 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 forwarded 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.
Judgement 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 Lord.
1.
[1963] 1 All E.R. 705; Lord Reid, Lord Jenkins, Lord Morris of Borth-y-Gest, Lord Guest and Lord Pearce were the judges in the case.
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 Donoghue v. Stevenson 1 “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 2 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 and in particular to small and almost certainly inquisitive children. It was therefore their duty that such passerby, “neighbour” in the 3 language of Donoghue 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.” 4 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 not 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. 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 5 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; he thinks that appellant doesn’t have to proof the presence of children on a public road within a city but it was the duty of the defendant 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 6 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.” 1. [1932] All E.R. Rep. 1 at p. 11 2. [1963] All E.R. at p. 709 3. [1932] All E.R. Rep. 1 at p. 11 4. [1963] All E.R. at p. 711
5. [1963] All E.R. at p. 711 6. [1961] S.C. 310 at p. 21
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 defender as well. 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, i.e. 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 defender. But the point doesn’t hold valid for 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 1 manner. In his 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. I would therefore allow the appeal.” Lord Jenkins giving his view on the case, that although the duty of care in this type of case is limited to dangers which are reasonably foreseeable, but one must see that the defender should not escape liability because the way in which the danger have actually aroused is not identical to what has is foreseeable and protected against. He finds no justification to hold someone liable if the accident had occurred from the burning of lamp and not if the lamp had exploded. Lord 2 Jenkins held; “If there is a risk of such fire as that I do not think that the duty of care prescribed in 3 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 in his judgement stated, although circumstances leading to the accident may not be foreseeable but that doesn’t alter the fact that the accident itself was not foreseeable. 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 defenders 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. Finally Lord Morris allowing the appeal said 4 that, “My Lords, in my view there was a duty owed by the defenders 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 5 “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 it would be enough if the type of accident caused was of the same type which is reasonably foreseeable. He was of the view that the lower courts wrongly gave more emphasis on the fact on explosion; and to Lord Guest it was a non essential element. He gave more emphasis on the fact whether burning of 1. [1963] All E.R. at p. 708 2. [1963] All E.R. at p. 710 3. [1932] All E.R. Rep. 1 at p. 11
4. [1963] All E.R. at p. 712 5. See 1960 S.C. at p. 172
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. As both burning of paraffin by a naked flame and an explosion causing due to vaporisation of paraffin are 1 of burning accident and the injuries sustained will be burning injuries. In his view, “… the explosion was an immaterial event in the chain of causation. It was simply one way in which burning might be caused by the potentially dangerous lamp.” 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 (U.K.) Ltd. V. Morts Dock & Engineering Co. 2 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. Lord Pearce allowed the appeal concluding that it would be unfair if the person who have created the risk of fire are held not liable only because the injury caused was by explosion which resulted a sever injury, but didn’t differ from the kind of accident which was foreseeable. All the judges in the case allowed the case in favour of the pursuers 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.
Conclusion The complexity in the case was basically whether the accident occurred was foreseeable in nature and there was negligence on the part of the defenders. To establish whether there was negligence, I would first consider if the defenders owe a duty to take case of the appellant, to check this I would first apply the principle formulated by Lord Atkin in the celebrated case of 3 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.” The defenders had opened a manhole on a public road with some equipment which can be a potential source of danger to the people and especially to the innocent children. Therefore, the defenders owe a duty of care to the “neighbours”, i.e. the passer by and children are reasonably protected from the dangers which may injure them. This principle has been rightly applied by Lord Jenkins and I wholeheartedly agree with his decision. Next, to check the defender was in breach of duty, I would apply the principle devised by 4 Alderson, “Has the defendant omitted to do something which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs, would have done, has he done something which a reasonable and prudent man would not have done.” 1. [1963] All E.R. at p. 714 2. [1961] All E.R. at p. 404; [1963] All E.R. at p. 715 3. [1932] All E.R. Rep. 1 at p. 11 4. Blyth v. Waterworks Co. [1856] 11 Ex 781, p. 442
Applying the principle it is found that the defendant failed to take adequate protection in this case. A reasonable man would have kept someone to look after the site or some thing more reliable in place to protect the intrusive children, the accident wouldn’t have occurred in that case. The fact that the defendant failed to take reasonable care has been well established by Lord Reid, Lord Jenkins and by Lord Morris. I think the judgement was completely valid. When we apply the principle if that breach of duty was the real cause of injury to the plaintiff, one can conclude that the negligence on the part of the defendant by not providing adequate protection has lead to the chain of actions which has caused injury to the appellant. Now, we must see whether the accident was foreseeable, I would like to say that the accident to the precision of chain of causation was not foreseeable event, but an accident from the burn from paraffin lamp is quiet a foreseeable event to a reasonable man. One question may arise was the explosion itself a foreseeable event, the answer which all the judges have agreed is no. Moreover, Lord Keith of Avonholm in Miller v. South of Scotland 1 Electricity Board stated that, “… it is not necessary to foresee the precise accident that happened and similarly it is not necessary in my opinion to postulate foreseeability of precise chain of circumstances leading up to an accident.” 2
Re Polemis (Polemis v Furness, Withy & Co) the appellate court held Again in the case of Re that “the charterers were liable for all the direct consequences of the negligent act of their servants, even though the consequences could not reasonably have been anticipated.”
The degree of care ought to be taken by the defendant must be taken into account for this matter. 3 Applying the principle as stated by Lord Reid in the case of Bolton v. Stone; “Reasonable men do in fact take into account the degree of risk and do not act upon a bare possibility as they would if the risk were more substantial.” Now lets see what the risk in the case is, it is the injury from burns due to breaking of lamp or getting hurt from falling into the manhole. Is the risk of the explosion a bare possibility? From the facts and evidence we can conclude that the explosion is a very rare possibility in the case. So, the question that may arise that the defendant was not guilty in the case as the explosion in this case was nothing but a bare possibility. However, when we see the whole matter as together taking into account whether the injury caused was from burns due to breaking of lamp different from the injury caused by the explosion? In both the cases i.e., burns from breaking of the lamp and explosion of the lamp, the injury will be the same, i.e. injury resulting from burns. Lord 4 Mackintosh in Harvey v Singer Manufacturing Co Ltd stated : "…there was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries…” So, applying this principle we can observe that it would not be possible for the defendant to escape liability as the type of accident was of the same kind. 1. 2. 3. 4.
[1958] S.C. (H.L.) at p. 34 [1921] 3 KB 560 [1951] 1 All E.R. 1078 1960 SC 155 at 172
1
Doughty v. Turner Manufacturing Co Ltd , In the case of Doughty An asbestos cover over a heat treatment bath containing sodium cyanide as a very hot molten liquid was placed. One of the employees carelessly dislodged the cover so that it slid into the bath. The extreme heat caused the asbestos cement to undergo a chemical change. The molten liquid exploded. It erupted from the bath and injured the plaintiff. It was held that the employers were not liable because although risk from splashing was foreseeable this was an accident of an entirely different kind, its cause being the intrusion of a new and unexpected factor, i.e. the chemical change of the chemical compound at high temperature.
Was anything other than the lamp that has intruded into the accident and has acted as an agent to increase the magnitude or changed the type of accident? From the facts we can observe that there is no such element in the case. This angle was rightly brought about about by Lord Reid where he 2 applied the principle to the case of Glasgow Corpn. v. Muir to explain the probability that how the defender can escape liability. Therefore I think it is a legitimate decision by the judges to hold the defender liable; although the accident itself to the precise result was not a foreseeable event but the injury caused was of the same type as that of what was foreseeable. Negligence conduct with respect to fire or combustible matter has been dealt with in the Section 285 of the Indian Penal Code which states: “Whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.” This case may be booked under the above section of the IPC and may be prosecuted as per the provision of the section.
1. 2.
[1964] 1 All E.R. 98 [1943] 2 All E.R. 44
