Malcolm v Dickson
| Jurisdiction | Scotland |
| Judgment Date | 07 June 1951 |
| Docket Number | No. 56. |
| Date | 07 June 1951 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
Lord Birnam.
Reparation—Negligence—Remoteness of injury—House set on fire by painter's negligent use of blow-lamp—Guest at house engaged in salving property from fire—Death of guest from exertion and excitement—Whether death a reasonable and probable consequence of painter's negligence.
A dwelling-house was set on fire, owing, it was alleged, to the negligence of a painter working there with a blow-lamp. A guest who was then residing in the house proceeded, pending the arrival of the fire brigade, first to salve certain valuable papers and personal belongings from an upstairs room by throwing them to the ground below, and then to carry certain goods and articles of furniture from a room on the ground floor into the garden. While engaged in the latter operation he collapsed in an exhausted condition and died a few minutes later. In these circumstances his widow brought an action against the painter's employer for reparation for her husband's death, which she averred to be directly attributable to the sudden and unusual exertion, strain and excitement caused by the fire.
Held that the deceased's death was not on the averments a reasonable or probable consequence of the alleged negligent act of the defender's employee; and action dismissed as irrelevant.
Mrs Doris Lilian Malcolm, as an individual and as tutrix of her infant daughter, Alison Jean Malcolm, brought an action against John Dickson, carrying on business under the firm name of T. P. Dickson & Son, painters and decorators, in which she claimed damages of £7000 for herself and £1000 for her daughter, in respect of the death of her husband, Lieutenant-Colonel John Wright Malcolm.
The pursuer averred that on 6th October 1948, while she and her husband were spending a short holiday at the house of her husband's mother, the house was set on fire by the negligent use of a blow-lamp by one of the defender's employees, who was working in the house at the time—the fire breaking out in the early afternoon, and spreading quickly. She further averred:—(Cond. 2) "… The fire was directly occasioned by the operations of the defender's employee. The deceased, on being informed of the fire, went immediately to a room in the upper part of the house where there were some very valuable papers and personal belongings. The deceased was engaged for some time in salvaging the said papers and personal belongings and articles of furniture. The deceased was particularly engaged in throwing some of these to the ground below from the upper part of the house, where there were considerable fumes and smoke, and later in carrying articles from the ground floor of the house into the garden. He was so engaged in the lower part of the house in carrying out goods and articles of furniture when he collapsed in an exhausted condition and was carried out of the house into the garden, where he died very shortly afterwards. The goods and articles of furniture which he was carrying out from the ground floor belonged to his mother, and at the time when he collapsed the said fire had not become so serious as to involve risk of injury to persons on the ground floor. There was a risk, however, at that time, that the said fire might spread to the ground floor and that damage might eventually be caused to said property on said ground floor by fire and water. There was further the risk that said property might be completely destroyed in said fire. The deceased's death was directly attributable to the sudden and unusual exertion, strain and excitement caused by said fire."
The defender denied that the fire in the house was due to the negligence of his servant. He further averred:—(Ans. 2) "… Admitted that the deceased, when the fire was discovered, after telephoning for the fire brigade went upstairs to a room in the upper part of the house to see about his belongings, personal articles or articles of furniture and that he collapsed and died shortly afterwards. … Explained that the certified cause of the deceased's death was “cerebral hæmorrhage,” and was not due in any way to injury caused by the said fire, fumes or smoke. Extract death certificate is produced herewith." (Ans. 3) "… In any event, esto, which is not admitted, there was any fault on the part of the defender's servants, the death of the deceased was not due thereto, nor was it the natural and probable consequence thereof. Further, the deceased's death was not an event which ought reasonably to have been foreseen as a result of any such fault. The defender believes and avers that the deceased had been in bad health prior to said fire, suffering from heart trouble, and that his death from a cerebral hæmorrhage was entirely coincidental to the fire, and due to the weak state of his health and his peculiar susceptibility to said catastrophe. The deceased was a visitor in the said house, and the defender and his servants had no knowledge of, or reason to anticipate, his presence there."
The defender's averments regarding the health of the deceased were denied by the pursuer.
The pursuer pleaded, inter alia:—"(1) The pursuer and her said daughter, having suffered loss, injury and damage through the fault of the defender's said servant, are entitled to reparation therefor from the defender."
The defender pleaded, inter alia:—"(1) The pursuer's averments being irrelevant et separatim lacking in specification and insufficient in law to support the conclusion of the summons, the action should be dismissed."
On 15th December 1950, after a Procedure Roll discussion, the Lord Ordinary (Birnam) dismissed the action as irrelevant.
At advising on 7th June 1951,—
LORD JUSTICE-CLERK (Thomson).—The pursuer's averments are that her husband, the late Lieutenant-Colonel Malcolm, went to spend a holiday at his mother's. During his visit painters were working in the house. Through negligence during their operations they set the house on fire. The deceased proceeded to salve some of his own belongings and thereafter some of his mother's. While engaged in carrying out goods and articles of furniture he collapsed in an exhausted condition and died shortly after. His death is averred to be "directly attributable to the sudden and unusual exertion, strain and excitement caused by said fire." The pursuer sues the painters for reparation for her husband's death. The Lord Ordinary has dismissed her action as irrelevant.
A wrongdoer is not held responsible for all the results which flow from his negligent act. Practical considerations dictate, and the law accepts, that there comes a point in the sequence of events when liability can no longer be enforced. This rule of convenience and common sense is enshrined in the maxim causa proxima non remota spectatur. It is for this Court to say whether as matter of law the pursuer's claim falls to be classified as proximate or remote. Both sides were agreed as to the test which fell to be applied, and we were referred to various dicta in Bourhill v. YoungSC4 and Muir v. Glasgow CorporationSC.5 I cite but one of these, Lord Macmillan in the former case (at p. 88): "The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed." The test of
proximity is whether what has flowed from the act is what would have been anticipated by a reasonable man as a natural and probable consequence of it. If it fails to pass that test, it is too remote for the law to take cognisance of it.
Furthermore, it is our law, and must be, so long as the doctrine of relevancy is retained, that, if a Court is satisfied that something which flowed from the original act is "remote" in the sense which I have set out, a pursuer's case must be dismissed. The reason for this is that no legal ground of action exists and consequently any jury which awarded damages would be perverse.
The ironical thing is that the very decision which we have to make as matter of law—as to whether a ground of action exists for the determination of a jury—has all the features of a jury question. We have to ask ourselves, as Lord Macmillan pointed out in Muir v. Glasgow CorporationSC1 (at p. 10), "what, in the circumstances of the particular case, the reasonable man would have had in contemplation …" and in this matter, as he goes on to explain, "there is room for diversity of view. … What to one Judge may seem far-fetched may seem to another both natural and probable."
In the present case it is not disputed that the defender ought to have foreseen that the careless use of a blow-lamp would cause fire. It may be that he ought to have foreseen that the owner of the house and her family would seek to salve their property. It is not difficult to think that in these circumstances the occupants might become excited and that the salvage work which they undertook might produce sudden and unusual exertion and strain. But I cannot persuade myself that the impersonal observer by whose reactions I must be guided would have anticipated that the "sudden and unusual exertion, strain and excitement" would cause death to one of these occupants.
That counsel for the pursuer were conscious of the difficulties in their way is shown by their divergent methods of looking at the problem. Mr Johnston asked us to regard the deceased as a normal man and to hold that the circumstances were such as to lead one to foresee the death of a normal man. Mr Guest, on the other...
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