Smith v Leech Brain

Facts

The deceased was a labourer employed by Leech Brain and Co Ltd in a factory, where he worked at a galvanising process. Through the employers' negligence, a piece of molten metal struck him on the lip and burned it. The lip had a pre-malignant condition. The burn promoted the development of cancer in the affected tissue, and he died of the cancer about three years later. His widow sued the employers in negligence, on her own behalf and as the personal representative of the estate.

Issue

Whether the employers were liable for the death from cancer, where a burn was a foreseeable consequence of their negligence but the cancer, arising from the deceased's special susceptibility, was not.

Held

Judgment for the widow. The employers were liable for the cancer and the death, though damages were reduced to reflect the chance that he would have developed cancer in any event.

Ratio

• Where the defendant's negligence causes some foreseeable type of damage, the defendant is liable for the whole extent of the damage that results even if the extent or the form of the harm was unforeseeable because of a pre-existing susceptibility of the victim.
• The rule that a defendant takes his victim as he finds him is not displaced by the requirement that the kind of damage must be reasonably foreseeable.

The judgments

Key reasoning

• After the Wagon Mound, the defendant is liable only for the kind of damage that was reasonably foreseeable, but the extent of that damage is not limited by what was foreseeable.
• The relevant kind of damage was a burn, and the cancer was the result of the burn acting on a pre-malignant condition, so the defendants were liable for the entire consequence.
• Because the deceased's susceptibility meant that he might have developed cancer in any event, damages were reduced to reflect the chance of that outcome.

Where it fits in the module

In the FHS remoteness topic, Smith v Leech Brain shows how the thin skull rule survives the foreseeability test set in Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No 1) [1961] AC 388. It is read with Hughes v Lord Advocate [1963] AC 837, on the manner of occurrence, and with Page v Smith [1996] AC 155, which applied the rule to psychiatric harm. Its application to economic vulnerability was considered in Lagden v O'Connor [2003] UKHL 64. The tutorial debate asks how to identify the kind of damage for the purposes of remoteness and whether the thin skull rule is an exception to foreseeability or merely an application of it.

Criticisms

• The thin skull rule sits uneasily with the foreseeability test of remoteness, because it makes liability depend on a susceptibility the defendant could not have known of.
• The definition of the kind of damage is flexible, so a court can choose a broad category such as injury from burning to extend liability or a narrow one to confine it.
• The rule places the full burden of the victim's unusual vulnerability on the defendant, which may be unfair where the defendant could not have taken precautions against it.
• The reduction in damages for the chance that the cancer would have occurred anyway introduces an element of apportionment at the stage of quantum which is difficult to reconcile with the all-or-nothing approach to causation.