Ogwo v Taylor
| Jurisdiction | UK Non-devolved |
| Judge | Lord Mackay of Clashfern,Lord Bridge of Harwich,Lord Elwyn-Jones,Lord Templeman,Lord Ackner |
| Judgment Date | 19 November 1987 |
| Judgment citation (vLex) | [1987] UKHL J1119-1 |
| Date | 19 November 1987 |
| Court | House of Lords |
[1987] UKHL J1119-1
House of Lords
Lord Chancellor
Lord Bridge of Harwich
Lord Elwyn-Jones
Lord Templeman
Lord Ackner
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Bridge of Harwich. I agree that this appeal should be dismissed for the reasons which he gives. I am glad to note that my noble and learned friend's reasoning accords with the opinion of Lord Guthrie in Flannigan v. British Dyewood Co. Ltd. [1969] S.L.T. 223
My Lords,
I shall refer to the parties to the appeal before your Lordships as the plaintiff and the defendant. The defendant was the occupier of a small terrace house on two floors in Hornchurch. He attempted to burn off paint from the fascia boards beneath the eaves of his house with a blow lamp and in so doing set fire to the premises. The fire brigade were called and the plaintiff, an acting leading fireman, arrived with the first fire appliance. Smoke was coming from the house, but it was impossible to locate the seat of the fire from outside. The plaintiff and a colleague entered the house wearing breathing apparatus and the usual fireman's protective clothing and armed with a hose. In due course they located the seat of the fire in the roof space. The rafters to the rear of the house were well alight from the eaves to the ridge. The two firemen were able, with the aid of a step-ladder, to squeeze through a small hatch to get into the roof space and in due course to bring the fire under control by playing their hose on it. The heat within the roof space was intense until they were able to relieve it by kicking out some of the roof tiles, as they had been trained to do in such a situation. The plaintiff, although he did not realise it until after he came down from the roof, suffered serious burn injuries to his upper body and face from scalding steam which must have penetrated his protective clothing.
The plaintiff's claim for damages was tried by Nolan J. who had no difficulty in finding that the defendant had negligently started the fire, but nevertheless dismissed the plaintiff's claim on the ground that the injuries he sustained were not a reasonably foreseeable consequence of the defendant's negligence. The Court of Appeal [1987] 2 W.L.R. 988 (Dillon, Stephen Brown and Neill L.JJ) reversed the judge and gave judgment for the plaintiff in the agreed sum, inclusive of interest to the date of judgment, of £14,402. The defendant appeals by leave of your Lordships' House.
The finding of negligence is not challenged. Mr. Crowther Q.C., for the defendant, expressly disclaimed any intention to rely on the defence of volenti and accepted that the appeal turned solely on the issues of foreseeability, proximity and causation. He relied on the judge's conclusion as a finding of fact which an appellate court should not disturb.
I find it convenient to examine the issues first in the light of basic and well established principles of general application and only later to consider the authorities concerned specifically with injuries sustained by professional firemen performing their duties in fighting fires occasioned by negligence. It is important, however, to emphasise at the outset that no suggestion of any kind is made of fault on the part of the plaintiff and the chain of events leading to his injuries must accordingly be considered on the footing that he himself acted throughout precisely as was to be expected of a properly trained and properly equipped fireman in the circumstances which confronted him.
The trial judge expressed his conclusion on foreseeability in the following passage:
"The question here is whether it could be foreseen that Mr. Ogwo, going up into the roof and remaining there, in conditions of intense heat, would suffer the burns from which he did suffer, even though he was a trained fireman and had been sent to a fire without extraordinary features. Here it seems to me that the plaintiff cannot succeed, because it seems that neither the plaintiff himself nor his colleague were able to foresee, looking into that apparently ordinary loft of an ordinary house, the danger that confronted them to the the extent of the injuries caused. Of course they saw there was danger, but they did not anticipate that Mr. Ogwo would come out badly burned, as he was."
The emphasis added is mine and the words emphasised demonstrate where the judge appears to me to have fallen into error. The proper question to be asked is not whether the particular injuries sustained by the plaintiff were reasonably foreseeable, still less whether they were actually foreseen. As Lord Reid put it in Hughes v. Lord Advocate [1963] A.C. 837, 845, a negligent defendant "can only escape liability if the damage can be regarded as differing in kind from what was foreseeable." Of course, the plaintiff entering the loft did not foresee the nature or severity of the injuries he was going to suffer. As the judge said, he could see there was danger, but a man with the courage which a fireman must constantly be called on to show has no time in such a situation to reflect on the precise nature and extent of the risks he is running. Looked at, as it should be, from the point of view of the negligent defendant who started the fire in the loft, he could foresee that the fire brigade would be called, that firemen would use their skills to do whatever was both necessary and reasonably practicable to extinguish the fire and that, if this involved entering the loft and playing a hose on the fire, they would be subject to any risks inherent in that operation, of which the risk of a scalding injury was certainly one. This was a real risk occasioned by setting fire to the rafters of a small terrace house, a risk which the defendant could have avoided by elementary care and without difficulty or expense to himself and certainly not a risk which a reasonable man would brush aside as far fetched. It therefore satisfies the criterion of foreseeability posed as the test of remoteness by Lord Reid, delivering the judgment of the Privy Council in Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty (The Wagon Mound (No. 2)). [1967] 1 A.C. 617, 643-4.
Mr. Crowther also sought to argue that the defendant owed the plaintiff no duty of care. Here again, the case to me seems to fall clearly within the principle enunciated in the classic passage from the speech of Lord Atkin in Donoghue v. Stevenson [1932] A.C. 562, 580. The plaintiff was a person so closely and directly affected by the defendant's act that the defendant ought reasonably to have had him in contemplation as being so affected when directing his mind to the acts or omissions called in question, in this case using the blow lamp without taking care to avoid setting the rafters alight.
So far as causation is concerned, no more need be said than that the links in the chain of causation from the negligence which started the fire to the injuries which the plaintiff sustained were clearly continuous and unbroken.
On the face of it, therefore, this seems to me a straightforward case of a plaintiff to whom the defendant owed a duty of care suffering injury as a reasonably foreseeable consequence of a breach of that duty by the...
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