Jolley v Sutton LBC [2000] 1 WLR 1082

Key point

  • The The Wagon Mound (No 1) [1961] AC 388 does not suggest that precise manner in which injury is caused and the extent of injury always need to be reasonably foreseeable to prove negligence, it can depend on the circumstances of the case
  • Where the claimant is a child, the court will typically not require that the precise manner and extent of damage be reasonably foreseeable to prove negligence

Facts

  • The defendant Council (D) failed to take steps remove an old abandoned boat on their land.
  • Two teenage boys, the claimant (C) and his friend started to repair the boat and used a carjack to prop it up.
  • One day, the boat began to wobble and as C tried to craw out, the boat toppled from the carjack and C’s spine was crushed, resulting in C sustaining a broken back and paraplegia
  • C brought a claim under Section 2(2) of the Occupiers’ Liability Act 1957 against D for breach of its common duty of care
  • The High Court held in favour of C on the ground that it was reasonably foreseeable that children will meddle with the boat and sustain injury as a result
  • However, the Court of Appeal held that while D had a duty to remove the boat as it was reasonably foreseeable that children would play on the boat and suffer injury as a result of its rotten condition, it was not reasonably foreseeable that children would prop up the boat to repair it and suffer injury as a result, given the heavy weight of the boat
  • Thus, C’s injury was a different kind from what was reasonably foreseeable and the Court of Appeal denied damages to C

Held (House of Lords)

Appeal allowed; D was liable as the accident and injury was reasonably foreseeable.

Lord Steyn

  • In Hughes v Lord Advocate [1963] AC 837, Lord Reid held that where an accident “was caused by a known source of danger, but caused in a way which could not have been foreseen…that affords no defence.”
  • Lord Woolf MR has questioned the validity of Lord Reid’s statement due to the following statement by Viscount Simonds in The Wagon Mound (No 1) [1961] AC 388: “If, as admittedly it is, B’s liability (culpability) depends on the reasonable foreseeability of the consequent damage, how is that to be determined except by the foreseeability of the damage which in fact happened – the damage in suit?”
  • However, Viscount Simonds should not be taken as suggesting that the both the precise manner in which injury is caused and the extent of injury had to be reasonably foreseeable
  • “The scope of the two modifiers – the precise manner in which the injury came about and its extent – is not definitively answered by either The Wagon Mound (No. 1) or Hughes v. Lord Advocate. It requires determination in the context of an intense focus on the circumstances of each case”

Lord Hoffmann

  • “In the Court of Appeal, Lord Woolf M.R. observed, at p. 1553, that there seemed to be no case of which counsel were aware “where want of care on the part of a defendant was established but a plaintiff who was a child had failed to succeed because the circumstances of the accident were not foreseeable.” I would suggest that this is for a combination of three reasons:
    • first, because a finding or admission of want of care on the part of the defendant establishes that it would have cost the defendant no more trouble to avoid the injury which happened than he should in any case have taken;
    • secondly, because in such circumstances the defendants will be liable for the materialisation of even relatively small risks of a different kind, and
    • thirdly, because it has been repeatedly said in cases about children that their ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated.”
  • “For these reasons, I think that the judge’s broad description of the risk as being that children would “meddle with the boat at the risk of some physical injury” was the correct one to adopt on the facts of this case. The actual injury fell within that description and I would therefore allow the appeal.”

Commentary

This case is an affirmation of the principle in Hughes v Lord Advocate [1963] AC 837, and suggests that it most likely to be applied when the claimant is a child