Hughes v Lord Advocate

Facts

Post Office workmen opened a manhole in a street in Edinburgh. They left it covered by a tent, with a ladder lowered into it, and with paraffin lamps placed around it as warning lights. They then left for a tea break, and the area was unattended. Two boys, aged eight and ten, took a lamp and the ladder and went into the tent. One of them, Hughes, knocked the lamp into the manhole. The paraffin vaporised and there was an explosion, in which Hughes fell into the hole and was severely burned. It was accepted that burns from the lamp were foreseeable, but the explosion was not a likely result of what happened.

History

The Court of Session held that the Post Office was not liable, because the explosion, which was the cause of the injury, was not foreseeable. The House of Lords allowed the boy's appeal.

Issue

Whether the defendants were liable when the boy suffered burns by a route that was not foreseeable, namely an explosion caused by the vaporisation of paraffin, although burns from the lamp were a foreseeable risk of their leaving the manhole unattended.

Held

Appeal allowed. The workmen had been negligent in leaving the open manhole unattended with lamps, because it was foreseeable that children might be attracted to it and be burned. The injury was of a foreseeable kind, and it did not matter that the precise way in which the harm occurred was unforeseeable.

Ratio

• A defendant is liable for damage of a kind that was reasonably foreseeable, even though the precise sequence of events that led to it, or the extent of the harm, could not have been foreseen.
• Where the risk is of children being burned by an unattended lamp, injury by burns resulting from an explosion is within that risk, because it is the same type of damage and the explosion is a variation of the foreseeable danger, not a different kind of event.

The judgments

Key reasoning

• The workmen had left the manhole and the lamps in a place where children might be attracted to them, and the danger of burns to a child who tampered with the lamps was a foreseeable risk that they should have guarded against.
• The explosion was an unusual way for the burns to be caused, but it was a development of the known risk of fire, so the damage was of the same type as that which could have been foreseen.
• The Privy Council decision in The Wagon Mound (No 1) [1961] AC 388 requires foreseeability of the type of damage, not the manner in which it occurs, and the Court of Session had applied it too strictly.

Where it fits in the module

In Tort (FHS), on Remoteness, Hughes is the central case on the width of the type of damage which has to be foreseeable. It is read with the Wagon Mound (No 1) [1961] AC 388, Doughty v Turner Manufacturing Co Ltd [1964] 1 QB 518, Jolley v Sutton LBC [2000] 1 WLR 1082 and Corr v IBC Vehicles Ltd [2008] UKHL 13. The FHS question is how the court decides what counts as the same type of damage and what degree of unlikelihood in the mechanism is permitted, whether the test reflects a principled concept of the risk that makes conduct negligent, and how it relates to the thin skull rule.

Criticisms

• The distinction between a variant of a foreseeable danger and a different kind of danger depends entirely on how the court describes the foreseeable risk, so the test is indeterminate and can produce either outcome on the same facts.
• By allowing liability for an explosion that was not foreseen, the decision stretches the foreseeability test towards a rule that makes a defendant liable for all direct consequences of the breach, which the Wagon Mound had rejected.
• The approach leaves unclear how unlikely the mechanism of harm can be before the damage becomes a different kind, and so the dividing line between Hughes and Doughty is hard to explain.
• The decision gives special weight to the vulnerability of children, which is reasonable in the facts but is not a principle of remoteness and can obscure the test.