Hughes v Lord Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Jenkins,Lord Morris of Borth-y-Gest,Lord Guest,Lord Pearce |
| Judgment Date | 21 February 1963 |
| Judgment citation (vLex) | [1963] UKHL J0221-3 |
| Court | House of Lords |
| Docket Number | No. 4. |
| Date | 21 February 1963 |
[1963] UKHL J0221-3
Lord Reid
Lord Jenkins
Lord Morris of Borth-y-Gest
Lord Guest
Lord Pearce
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Hughes (A.P.) against Lord Advocate (as representing the Postmaster General), that the Committee had heard Counsel, as well on Monday the 21st, as on Tuesday the 22d and Wednesday the 23d, days of January last upon the Petition and Appeal of Russell McDonald Leishman Hughes (formerly called Russell McDonald Leishman), residing at 6 Wardlaw Place, Edinburgh (Assisted Person), praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Wheatley) of the 21st of June 1961 and also an Interlocutor of the Lords of Session there of the First Division of the 20th of December 1961, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Right Honourable William Grant, Q.C., M.P., P.C. (Her Majesty's Advocate), as acting under the Crown Suits (Scotland) Act, 1857, and as representing the Postmaster General, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutors of the 21st day of June 1961 and of the 20th day of December 1961, complained of in the said Appeal, be, and the same are hereby Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to pronounce a decree for payment by the Defender to the Pursuer of the sum of seven thousand pounds (£7,000) with interest thereon at the rate of five per centum per annum from the date of citation until payment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Expenses incurred by him in respect of the Action in the Court of Session and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments.
My Lords,
I have had an opportunity of reading the speech which my noble and learned friend, Lord Guest, is about to deliver. I agree with him that this appeal should be allowed and I shall only add some general observations. 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. It cannot be said that they owed no duty to the Appellant. But it has been held that the Appellant cannot recover damages.
It was argued that the Appellant cannot recover because the damage which he suffered was of a kind which was not foreseeable. That was not the ground of judgment of the First Division or of the Lord Ordinary, and the facts proved do not, in my judgment, support that argument. The Appellant's injuries were mainly caused by burns, and it cannot be said that injuries from burns were unforeseeable. As a warning to traffic the workmen had set lighted red lamps round the tent which covered the manhole, and if boys did enter the dark tent it was very likely that they would take one of these lamps with them. If the lamp fell and broke it was not at all unlikely that the boy would be burned and the burns might well be serious. No doubt it was not to be expected that the injuries would be as serious as those which the Appellant in fact sustained. 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.
So we have (first) a duty owed by the workmen, (secondly) the fact that if they had done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries suffered by the Appellant, though perhaps different in degree, did not differ in kind from injuries which might have resulted from an accident of a foreseeable nature. The ground on which this case has been decided against the Appellant is that the accident was of an unforeseeable type. Of course, the pursuer has to prove that the defender's fault caused the accident, and there could be a 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. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in an unpredictable way.
The explanation of the accident which has been accepted, and which I would not seek to question, is that, when the lamp fell down the manhole and was broken, some paraffin escaped, and enough was vaporised to create an explosive mixture which was detonated by the naked light of the lamp The experts agree that no one would have expected that to happen: it was so unlikely as to be unforeseeable. The explosion caused the boy to fall into the manhole: whether his injuries were directly caused by the explosion or aggravated by fire which started in the manhole is not at all clear. The essential step in the Respondent's argument is that the explosion was the real cause of the injuries and that the explosion was unforeseeable.
The only authority cited to us from which the Respondent can derive any assistance is Muir v. Glasgow Corporation, 1943 S.C. (H.L.) 3, and I shall examine that case. The accident occurred in premises occupied by the Corporation. The manageress had given permission for a tea urn to be brought in by visitors and had not cleared some children out of the way. For some unknown reason one of the men carrying the urn let it slip and hot tea poured out and scalded the children. On the question whether the manageress had been negligent Lords Macmillan, Wright and Clauson held that she had no reason to anticipate danger and therefore was not in breach of duty. And that was also the first ground of judgment of Lord Thankerton. So far the case is of no assistance to the present Respondent because in this case there was a breach of duty.
The difficulty is caused by further observations of Lord Thankerton and by the judgment of Lord Romer. Lord Thankerton said that even if he had held that the manageress was in breach of duty "I would hold that the Respondents must fail here as they have not proved what the event was that caused the accident" (p. 9). It may be that that should be linked to an earlier passage:
"In my opinion it has long been held in Scotland that all that a person can be held bound to foresee are the reasonable and probable consequences of the failure to take care, judged by the standard of the ordinary reasonable man. I am unable to agree with Lord Carmont ( 1942 S.C. at p. 140) that the Appellants could be made liable 'even if it were proved that the actual damage to the invitees happened through the tea-urn being spilt in a way that could not reasonably have been anticipated'."
(p. 8). If that means that the mere fact that the way in which the accident happened could not be anticipated is enough to exclude liability although there was a breach of duty and that breach of duty in fact caused damage of a kind that could have been anticipated, then I am afraid that I cannot agree with Lord Thankerton. No authority for this was cited in Muir's case and no authority for it other than Muir's case has been cited in the present case. I find Lord Romer's judgment a little difficult to follow. I think that it is to the same effect, but towards the end of his judgment he points out, I think rightly, that if the ceiling had fallen and upset the urn the Corporation could not have been liable merely because they had failed in a duty to clear the children away. The fall of the ceiling would have been the cause of the damage and not the breach of duty.
It may be that what Lord Romer, and possibly also Lord Thankerton, had in mind was that if the cause of an accident cannot be proved then the accident may have been due to the intrusion of some new and unforeseeable cause like the falling of a ceiling so that the damage cannot be said to have resulted from the defenders' breach of duty. If they meant no more than that, then their observations would be in line with the well-established principle that a pursuer must prove, in the sense of making it more probable than not, that the defender's breach of duty caused the accident; but then those observations would not help the Respondent because we know the cause of this accident. 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.
My Lords,
The facts of this case have been so fully and clearly stated in the Opinions of the Lord Ordinary (Lord Wheatley) and the Lord President (Lord Clyde) that I need not repeat them at length.
It appears that on the 8th November, 1958, workmen employed by the Post Office were working on certain cables under the roadway of a public street known as Russell Road. Two manholes, by descending which access could be had to the cables, were provided in the surface of the street. One only of these manholes was in use. The other was closed and for present purposes can be ignored. The effective manhole was some nine feet deep and provided with a ladder. There was a weather tent covering the area of...
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