169

Chapter 10
NEGLIGENCE - LEGAL CAUSATION

10.1 DEFINITION AND FUNCTION OF LEGAL CAUSATION

10.2 DIRECT CONSEQUENCE TEST
10.3 REASONABLE FORESEEABILITY TEST
10.4 EGG-SHELL SKULL RULE

10.1 DEFINITION AND FUNCTION OF LEGAL CAUSATION

1. Legal causation is the final requirement to be satisfied in order to establish negligence.
2. In determining legal causation, the issue is whether the kind of damage sustained is one that can be
compensated under negligence (“actionable type of damage”) and is a kind of damage that would flow
from the defendant’s negligence.
3. The function of legal causation is to determine whether the kind of harm suffered is within the range of
ordinary consequences of the defendant’s carelessness and not a remote consequence.
4. Hence, the legal causation element is also known as the ‘remoteness’ element because its function to
determine whether the loss or injury sustained is one that is too remote for compensation.
5. Under negligence principles, even if the defendant owed a legal duty to be careful, was careless and
caused injury or damage, he will not be liable for injuries or damage that do not usually result from the
particular negligent act.
6. The tort of negligence does not allow compensation so long as careless is established. Lines are drawn to
differentiate between types of damage may be compensated and those that may not.
7. In this regard, legal causation serves as a tool to limit the extent of liability, even where the defendant has
been found careless.
8. Thus, if the type of damage or loss suffered is either not recognised in negligence, or is too remote, the
claim will fail.
9. Two tests have been used to determine legal causation:
a) direct consequence test; and
b) reasonable foreseeability.
Tort Law

10.2 DIRECT CONSEQUENCE TEST

1. The ‘direct consequence’ test was employed in Re Polemis and Furness, Withy & Co (1921).
SM

2. The claimants were ship owners who chartered a ship. Due to rough weather, there had been some
leakage from the cargo. When the ship reached the port, gas vapours were discovered below the deck.
The defendant, Furness hired stevedores to help unload the ship, and one of them knocked down a plank
LL.B

which created a spark, ignited the gas, and burnt the entire ship down. The defendant argued that the
damage was too remote because the manner in which it happened was entirely unexpected.
170
3. The issue before the court was whether it was necessary that the specific type of damage was one that
could be anticipated to flow from the defendant’s actions. The defendant argued that although the act was
negligent, the fact that the outcome was not foreseeable should negate liability, because unforeseeable
damage is too remote. However, the court unanimously rejected this argument. Instead it was held, that
when an action is negligent the actor is liable for any direct outcome of the negligent act, even if the
outcome was not foreseeable. Further, the proximity of the act to the outcome is close enough here to
create a liability. A negligent defendant is liable for all direct results of the negligent act, even if they were
not foreseeable before the accident.
4. Warrington LJ in Re: Polemis stated: “The presence or absence of reasonable anticipation of damage
determines the legal quality of the act as negligent or innocent. If it be thus determined to be negligent,
then the question whether particular damages are recoverable depends only on the answer to the question
whether they are the direct consequence of the act.” Further, Scrutton LJ added: “Once the act is negligent,
the fact that its exact operation was not foreseen is immaterial.”
5. The test for remoteness laid down in this case is said to make easier the claimant’s task of establishing
negligence and gaining compensation. It is also said to be harsh on defendant’s as the effect of this test
is to hold defendant’s liable for outcomes that could not humanly be anticipated or prevented through
prior knowledge or foresight.
6. The Privy Council in Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. (“The Wagon
Mound (No. 1)”), discredited the Re: Polemis direct consequence test with the result it is hardly applied
in current times on the issue of remoteness.

10.3 REASONABLE FORESEEABILITY TEST

The ‘reasonable foreseeability’ test was endorsed as the proper test for remoteness by the Privy Council in
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound (No 1)) (1961) as stated
above. The facts of the case are as follows:

1. Due to the defendants’ neglect, furnace oil spilt on to the sea while their ship was in Sydney Harbour. The
claimant undertook ship repairs on its welding site located not far from the oil spill. The oil was carried
by the tide, to the claimant’s welding site where it caused damage to the claimants’ slipways. The claimant
consulted experts about the furnace oil and was assured that there was no chance of the oil igniting
and the claimant decided it was safe to continue the welding works until a supposed minor explosion
on the claimants’ wharf caused cotton waste and molten metal to land in the contaminated water. The
cotton waste acted as a sort of wick, absorbed the furnace oil in the water and when it came in to contact
with the molten metal carrying intense heat, ignited the entire area, causing a blaze that damaged the
claimants’ wharf. The claimant claimed damages for the damage to the slipways and for the fire damage
to its wharf.
© Brickfields Asia College

2. The claimant argued that both types of damage that resulted, i.e. corrosion of slipways and fire damage
due to the oil leak, could not be regarded as too because they were the direct consequence of the
defendant’s negligence. The claimant relied on the direct consequences test in Re: Polemis.
3. The defendant, however, argued, that to hold them liable for damage that went beyond reasonable
contemplation and foresight was overly punitive.
4. The PC decided that the defendant could not be liable for the fire damage, but found them liable for the
damage to the slipway. It was explained that the damage by the fire was not a kind of damage that could
reasonably have been foreseen, while the damage to the slipways were of a kind that was reasonably
 171
foreseeable. Viscount Simonds held, “It does not seem consonant with current ideas of justice or morality
that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage, the
actor should be liable for all consequences however unforeseeable and however grave…”
6. Viscount Simonds also stated: “It is, no doubt, proper when considering tortious liability for negligence to
analyse its elements and to say that the plaintiff must prove a duty owed to him by the defendant, a breach
of that duty by the defendant, and consequent damage. But there can be no liability until the damage has
been done. It is not the act but the consequences on which tortious liability is founded... Who knows or
can be assumed to know all the processes of nature? But if it would be wrong that a man should be held
liable for damage unpredictable by a reasonable man because it was “direct” or “natural,” equally it would
be wrong that he should escape liability, however “indirect” the damage, if he foresaw or could reasonably
foresee the intervening events which led to its being done… It is a principle of civil liability, subject only to
qualifications which have no present relevance, that a man must be considered to be responsible for the
probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore
that civilised order requires the observance of a minimum standard of behaviour.”
7. The PC also went on to hold that the test in Re Polemis was not the proper test to be for remoteness of
damage and that it was wrongly decided.

NEGLIGENCE - LEGAL CAUSATION

8. The principle of remoteness laid down in The Wagon Mound No. 1, thus, is one that depends on whether
the type of harm that occurred could be reasonably foreseen as a consequence of the defendant’s
negligence. If yes, then it would not be too remote and must compensation. If not, then it would be too
remote and cannot be compensated.
9. The following decisions demonstrate the application of the reasonable foreseeability test in varying
circumstances.
10. It must be noted, that when applying the Wagon Mound test, only the kind of damage suffered must be
shown to be reasonably foreseeable, and not the manner in which it occurred.
11. In Hughes v Lord Advocate (1963), two boys, aged 8 and 10, decided to explore an unattended manhole
that had been left by workmen. The manhole was covered by a tent and surrounded by some paraffin
lamps with the intention to warn of the danger. The boys took a lamp down the hole and created an
explosion resulting in extensive burns. It was held that the explosion was unforeseeable however the
burns the boys suffered was foreseeable. The precise manner in which the damage was caused did not

Chapter 10
have to be reasonably foreseen. As long as the defendant could reasonably foresee the ‘kind’ of damage
sustained, it would be too remote for compensation. Here, since injury in the form of burns, is reasonably
foreseeable as a consequence of handling paraffin oil, the defendant was found liable. It was further held
that the defendant could be liable even if the extent of the injury sustained was greater than that which
could be foreseen.
12. Lord Reid stated: “So we have (first) a duty owed by the workmen, (secondly) the fact that if they had
done as they ought to have done there would have been no accident, and (thirdly) the fact that the injuries
Tort Law

suffered by the appellant, though perhaps different in degree, did not differ in kind from injuries which
might have resulted from an accident of a foreseeable nature.”
13. In Doughty v Turner Manufacturing (1964), workmen employed by the defendant negligently allowed a
slab of asbestos to fall into a cauldron of molten metal. The slab slipped into the liquid without causing a
SM

splash but slowly and gradually disintegrated, reacted with the molten metal and triggered an explosion.
Molten metal splashed out of the cauldron causing the claimant to suffer burns.
14. The evidence also showed that, prior to the accident, no one supposed the immersion of an asbestos
concrete compound in a molten metal mixture could lead to an explosion. However, subsequent testing
LL.B
172
showed that an asbestos concrete compound, if immersed in a molten metal mixture, will release water
and the resulting chemical reaction will cause the mixture to explode.
15. The defendant argued that the claimant’s injury occurred through an unforeseeable process involving an
unknown chemical reaction between molten metal and asbestos, and as such that the consequent injury
should also be regarded as unforeseeable and too remote. The defendant invited the Court to distinguish
the present facts with that of Hughes, while the claimant argued that the manner in which the explosion
occurred resulting in the injury does not have to be foreseeable as long the type of injury was foreseeable.
16. The Court of Appeal held that though the accident was a direct result of the action of the defendant’s
servant, the damage was not reasonably foreseeable and therefore the defendants were not liable.
17. Diplock LJ held, “There is no room to-day for mystique in the law of negligence. It is the application of
common morality and common sense to the activities of the common man. He must take reasonable care to
avoid acts or omissions which he can reasonably foresee would be likely to injure his neighbour; but he need
do no more than this. If the act which he does is not one which he could, if he thought about it, reasonably
foresee would injure his neighbour it matters not whether he does it intentionally or inadvertently… In the
state of knowledge as it was at the time of the accident the Defendants could not reasonably have foreseen
that the immersion of the asbestos cement cover in the liquid would be likely to injure anyone must lead
to the conclusion that they would have been under no liability to the Plaintiff if they had intentionally
immersed the cover in the liquid. The fact that it was done inadvertently cannot create any liability, for the
immersion of the cover was not an act which they were under any duty to take any care to avoid…”
18. Further, in explaining the distinction between Doughty and Hughes, Diplock LJ stated: “In Hughes v
Lord Advocate the breach of duty by the defendant was his omission to guard a dangerous allurement to
children which was liable to cause them injury by burning. The infant plaintiff, to whom the duty was owed,
was allured and was injured by burning, although the particular concatenation of circumstances which
resulted in his burns being more serious than they would have been expected to be could not reasonably
have been foreseen. But they were the direct consequence of the defendant’s breach of duty and of the same
kind as could reasonably have been foreseen, although of unforeseen gravity. But in the present case the
Defendants’ duty owed to the Plaintiff in relation to the only foreseeable risk, that is of splashing, was to
take reasonable care to avoid knocking the cover into the liquid or allowing it to slip in in such a way as to
cause a splash which would injure the Plaintiff. Failure to avoid knocking it into the liquid, or allowing it
to slip in, was of itself no breach of duty to the Plaintiff. It is not clear on the evidence whether the dropping
of the cover on to the liquid caused any splash at all. The Judge made no finding on this. However, it is
incontrovertible that, even if there was some slight splash when the cover fell on to the liquid, the Plaintiff
was untouched by it and it caused him no injury. There was thus, in the circumstances of this case, no breach
of duty to the Plaintiff involved in inadvertently knocking the cover into the liquid or inadvertently allowing
it to slip in.”
19. Further, in Bradford v Robinson Rentals (1967), the claimant suffered frost bites when made to travel in
the defendant employers’ vehicle, in extreme cold weather without sufficient heating in the vehicle. The
© Brickfields Asia College

defendant argued that while conditions such as pneumonia were a kind of damage that could be foreseen
as a result of exposure to severe cold, frost bites were not. This argument was rejected as frostbites were
in fact considered to be a reasonably foreseeable outcome, and was not too remote.
20. In the unusual case of Tremain v Pike (1969), the defendant through negligence, exposed the claimant
to rat urine causing the claimant to contract Weil’s disease. This disease was argued to be a rare and
remote occurrence among humans since only cattle were known to develop Weil’s by exposure to rat
urine. The claim failed and the occurrence of Weil’s among humans was unforeseeable and unknown.
The Court also held that the disease contracted by the claimant was of a sufficiently unforeseeable nature
that the defendant had not been in breach of his duty of care in failing to do anything to specifically
 173
mitigate the risk. Whilst it was reasonably foreseeable that the claimant may have suffered some form of
injury from exposure to rodents (such as being bitten), this was an altogether different kind of injury to
that of contracting Weil’s disease.
21. In Jolley v Sutton London Borough Council (2000), a fourteen-year-old was severely injured when a
boat on an abandoned land belonging to the defendant local council, fell on him. The Court of Appeal
found the council not liable, stating that although it was foreseeable that children playing on the boat
are capable of being injured, here, it is completely unforeseeable that a teenager would attempt to repair
a boat. The House of Lords disagreed and stated that foresight of danger was to be judged by looking
at whether the particular risk of injury was of a foreseeable nature. It was further held that due to “the
known ingenuity of children in finding unexpected ways of doing mischief to themselves, and the fact that
the council had conceded that it was under a duty to remove the boat from its grounds”, it was appropriate
to conclude that both the risk of children playing on the boat, and sustaining injury were reasonably
foreseeable. This is known as the broad of view of foreseeability of risk.
22. In Clare v Perry (2005), the claimant alleged that the defendant had been careless in failing to prevent
her from falling off a wall. The claimant, however had been trying to climb down the wall when she fell.
The Court of Appeal rejected her claim finding her injury to be unforeseeable and too remote. The risk
with which the alleged negligence was associated was that of someone falling accidentally and not that

NEGLIGENCE - LEGAL CAUSATION

of someone who deliberately tried to descend it.
23. Corr v IBC Vehicles Ltd (2008) extended the Wagon Mound No. 1 test to cases where psychiatric
injury on the claimant’s part caused him to harm himself. The question in such as case was whether the
claimant’s act resulting in his death (in Corr), should be regarded as too remote.
24. In Corr, the Claimant was the widow of Thomas Corr who died by suicide. Mr Corr had been a
maintenance engineer, working for the defendant. Due to an equipment malfunction at work, Mr Corr
was struck on the right side of his head and most of his ear was severed. The reconstruction of the
ear had been long and painful, requiring several operations and absences from work. Mr. Corr’s face
was disfigured, he suffered unsteadiness, mild tinnitus, severe headaches and difficulty in sleeping. In
addition, he suffered a Post-Traumatic Stress Disorder reliving the accident and having flash backs to
the event. He began to suffer from nightmares, struggled to cope with daily life and struggled with his
work. He felt bitter towards his employers, and was angry that he had never received a proper apology.
He became bad tempered and drank more than he had before the accident. Eventually, he was able to

Chapter 10
force an apology out his employers but soon after this, he was referred by his GP for hospital treatment
and even admitted into hospital after he had taken an overdose. He had become a significant suicide risk.
He was described in a full risk assessment as having recurrent thoughts of jumping off a high building.
He felt that his life was not worth living and that he was becoming a burden on his family. He then killed
himself three days after a psychiatric therapy session, by jumping from the top of a multi-storey car park.
25. The issue before the House of Lords was whether (i) the suicide amounted to novus actus interveniens
so as to break the chain of causation, (ii) whether it was too remote, (iii) whether it could be regarded
Tort Law

as falling within the defence of volenti non-fit injuria, and (iv) whether it could be regarded as
contributory negligence in the alternative. To determine these issues, the question of whether suicide in
the circumstances was reasonably foreseeable.
26. On whether Mr. Corr’s act was reasonably foreseeable, the House of Lords held, the inescapable fact
SM

was that the depression was a foreseeable consequence of the defendant’s breach. The Court of Appeal
had been right to take the view that it was not necessary for the Claimant to show that suicide itself
was foreseeable. It was not a manifestation of severe depression which could be properly held to be so
unusual or unpredictable as to be outside the bounds of what was reasonably foreseeable.
LL.B
174
27. As to whether the suicide did break the chain of causation under ‘novus acus interveniens’, it was held that
Mr Corr’s suicide was not a voluntary informed decision taken by him as an adult of sound mind making
and giving effect to a personal decision about his future. It was the response of a man suffering from a
severely depressive illness which impaired his capacity to make reasoned and informed judgments about
his future, such illness being a consequence of the employer’s wrong doing. In determining this point
as well, the House of Lords ruled on whether Mr. Corr had acted unreasonably. This was linked to the
break-in-the-chain issue. His conduct was not deemed unreasonable given that it was also foreseeable.
The chain of causation remained intact.
28. As to whether Mr. Corr’s act was a voluntary act in terms of the principle volenti non-fit injuria, there
was no suggestion that Mr Corr had consented in any way to the accident and injury which befell him.
This was an argument addressed only to his suicide. But it could not be said that that was something to
which he consented voluntarily and with his eyes open but instead was an act performed because of his
psychological condition, brought about by his employer’s breach of duty.
29. Alternatively, as to whether his actions amounted to contributory negligence, the matter had been
debated before the House of Lords very briefly. It had to be doubted whether it was appropriate to
raise the issue after no more than cursory argument. However, on the basis of the arguments outlined
relating to Novus Actus and unreasonable conduct, the Claimant should be absolved from any cause
or responsibility and if contributory negligence was in issue it should be assessed at 0% according to
Lord Bingham. Lord Scott considered a deduction was appropriate in the sum of 20%; Lord Walker
would make no deduction; Lord Mance considered that policy might lead to the appropriateness of an
element of responsibility on the part of the deceased, small though it might be; Lord Neuberger agreed
with Lord Scott and Lord Mance and took the view that there was room for a finding of contributory
negligence, the quantum of which would be dependent on the degree to which the deceased’s personal
autonomy had been overborne by the impairment and would lie between 50% and 0%.
30. As for the remoteness condition, the House of Lords concluded that the death by suicide was not too
remote, as it was a reasonably foreseeable consequence of the depression which was caused by the
defendant. Lord Bingham explained, “While some manifestations of severe depression might be so unusual
and unpredictable to fall outside the bounds of reasonable foreseeability, suicide could not be so regarded.”

10.4 ‘EGG-SHELL SKULL’ RULE

1. It is settled law that, if an injured claimant had some rare or underlying condition or hypersensitivity that
made him more prone to injury, ow which exacerbated his injury, the defendant would still be held liable
for the claimant’s full injury.
2. The injury would not be regarded as too remote even if it is usually unlikely in the case of someone who
did not suffer from the underlying condition.
© Brickfields Asia College

3. As such, even if the claimant’s condition and the resulting injury was unknown or unforeseeable, the
defendant must take his victim as he finds him and the injury sustained would not be regarded as too
remote.
4. This is the case, provided foreseeability of some injury is foreseeable to a normal person not suffering
from the rare condition or peculiarity.
5. This is the result of the egg-shell skull rule (also referred to as the ‘thin-skull rule’), which translates: “the
defendant must take his victim as he finds him”.
 175
6. The classic formulation of the thin skull rule was the work of Kennedy J. in Dulieu v. White (1901),
wherein it was held, “If a man is negligently run over or otherwise negligently injured in his body, it is no
answer to the sufferer’s claim for damages that he would have suffered less injury, or no injury at all, if he
had not had an unusually thin skull or an unusually weak heart.”
7. In Dulieu, the claimant was pregnant and behind the bar in her husband’s public house. A horse and
cart crashed into the pub. The claimant was not physically injured but feared for her safety and suffered
shock. She gave birth prematurely nine days later and the child suffered developmental problems. The
defendant argued that the harm experienced by the claimant was unique to her existing condition of
being pregnant and that any other person not in the same condition would not have suffered the harm
in question; thus, that the harm should be regarded as unforeseeable and too remote. However, the
defendant was found liable as he was to take his victim as she was found.
8. This rule has been applied consistently when determining remoteness in appropriate circumstances with
academic describing the rule as “surviving” the remoteness obstacle.
9. In Smith v Leech Brain (1969), the claimants’ husband suffered a burn on his lip when molten metal
splashed on his mouth, during a mishap at work. The burn triggered cancer, which resulted in the
husbands’ death three years later. The defendant argued that the death was not a foreseeable consequence

NEGLIGENCE - LEGAL CAUSATION

of the burn on the lip and therefore was too remote. However, it was held following The Wagon Mound,
although the type/kind of injury in question had to be foreseeable, the extent of the injury did not have
to be foreseeable. In any event, The Wagon Mound principle did not displace the age-old ‘egg-shell skull
rule’. The defendant had to take his victim as he found him—on the facts—with the cancerous tissue that
was already present on the lip, before the burn.
10. Further, in Robinson v Post Office (1974), the claimant here slipped and wounded his leg, due to the
defendants’ negligence. At the hospital, while being treated for the injury, he was given an anti-tetanus
jab and developed encephalitis because of an unforeseeable reaction to the serum, brought about by his
rare and peculiar allergy to the serum. The defendant argued that the unforeseeable reaction to the jab
was too remote and that liable should only arise in respect of the injury to the leg. However, the court
applied the ‘egg-shell skull’ rule and the defendant was held liable.
11. Orr LJ, giving the leading judgement started by considering the liability of the hospital and held they
were not liable in administering the injection. It took a few days for Mr Robinson to show symptoms

Chapter 10
and no test carried out before administering the jab could have revealed the allergy. As such, there was
no way the hospital could have stopped the administration of the injection or the harm. The remaining
question was whether the loss was too remote.
12. As in Smith v Leech Brain, Orr LJ decided the case based on the principle that a defendant must take
his victim as he finds him. He concluded that if a claimant suffers greater harm than is reasonably
foreseeable, the defendant remains liable for the full harm so long as the type of harm was foreseeable.
This was further supported by dicta from Lord Reid in Hughes v Lord Advocate. In these circumstances,
it did not matter that it was not reasonably foreseeable that Mr Robinson would suffer this specific
Tort Law

rare illness from the tetanus injection. Rather, the relevant question was whether this type of harm was
foreseeable.
13. The harm was held to be reasonably foreseeable. It was sufficient for liability. It was reasonably foreseeable
SM

the victim would require medical treatment, and there may be complications with this (such as an allergic
reaction). Furthermore, given the type of work, it was also reasonably foreseeable that the victim would
require a tetanus injection.
14. In Liesbosch Dredger v S.S. Edison (1933), the question before the courts was whether the ‘eggshell-
LL.B

skull’ rule could apply in respect of the claimant’s financial weakness. In this case, the defendant’s ship
176
caused damage to the claimant’s jetties resulting in the total loss of the claimant’s dredger when it sank.
It had been engaged on work in the harbour under contract with the harbour board. The claimant
sustained financial losses flowing from the loss of its dredger as the work for the harbour board was
delayed. Further costs had to be incurred to hire another dredger to complete the work without further
delays. The claimant was financially incapable of purchasing a new dredger and sued the defendant for
all losses. The defendant argued that the losses were too remote, but the claimant urged the court to
apply the eggshell-skull rule in view of its weakened financial position.
15. It was held that the sum awarded as damages was restricted to the market price of a comparable dredger
at the time of the loss, together with the cost of transporting her and insuring her. The court should not
take into account a claimant’s want of means when assessing the amount of his loss. Lord Wright said
that “it follows that the value of the Liesbosch to the appellants, capitalized as at the date of the loss, must
be assessed by taking into account: (1.) the market price of a comparable dredger in substitution; (2.) costs
of adaptation, transport, insurance, etc; (3.) compensation for disturbance and loss in carrying out their
contract over the period of delay between the loss of the Liesbosch and the time at which the substituted
dredger could reasonably have been available for use, including in that loss such items as overhead charges,
expenses of staff and equipment, and so forth thrown away, but neglecting any special loss due to the
appellants’ financial position.”
16. However, more recently in Lagden v O’Connor (2004) the opposite stand was taken. In this case, the
parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked
car. While undergoing repairs, the claimant, had to hire another car. He was unable to afford to hire a
car pending repairs being completed, and arranged to hire a car on credit. He now sought payment of
the cost of the credit agreement. The court held that a negligent driver must take his victim as he finds
him. Mr Lagden’s claim was, in essence, a claim for the loss of use of his car while it was in the garage
undergoing the repairs as a result of the accident. He had no choice but to hire the vehicle, and but to do
so on credit. The cost of the credit was recoverable.
17. Lord Hope stated, “The wrongdoer must take his victim as he finds him: talem qualem. This rule applies
to the economic state of the victim the same way as it applies to his physical and mental vulnerability. It
requires the wrongdoer to bear the consequences if it was reasonably foreseeable that the injured party
would have to borrow money or incur some other kind of expenditure to mitigate his damage.”
18. Finally, in Vacwell Engineering Company v BDH Chemicals Ltd. (1977), the court considered whether
the eggshell-skull rule could apply in respect of property damage.
19. In this case, the defendant, BDH Chemicals Ltd, supplied the claimant with chemicals contained in glass
ampoules. This had a label stating ‘harmful vapour’ on it. When the scientists were washing off the labels,
one of the containers shattered and this caused a violent explosion to occur. It was the chemical coming
into contact with water that caused severe damage, including killing one of the scientists, blowing the
roof off the laboratory and shattering surrounding walls. The issues in this case concerned whether
the defendant was liable for unforeseeable damage that was caused by the explosion of the chemicals
© Brickfields Asia College

they had supplied to the complainant. The claimant argued that the ‘eggshell-skull’ applied in that the
defendant had to accept the high-risk to the claimant, even though the event that occurred was unusual.
20. It was held that the defendant was negligent and failed in their duty of reasonable care, as they did
not give sufficient warnings about the chemicals they were marketing to their customers, including
the claimant. A label that only said ‘harmful vapour’ was not enough to properly warn of its explosive
reaction with water. A manufacturer should maintain a proper system that investigates and researches
potential hazards associated with their products before they are sold, in order to inform customers of
these hazards. In this case, it does not matter that the damage was more extensive than could be foreseen;
 177
only the kind of damage has to be foreseeable. Thus, it was irrelevant to claim that the property damage
was unforeseeable and the defendant must be held liable for all damage.
32. Thus, the law on remoteness applicable today can be summarised as follows, in the opinion of the
House of Lords in Simmons v British Steel Plc. (2004), affirmed in Corr. Lord Roger in Simmons, had
summarised the authorities on remoteness and approach as follows:
i) The starting point was that a Defendant was not liable for a consequence of the kind which was
not reasonably foreseeable.
ii) It did not follow that a Defendant was liable for all damage that was reasonably foreseeable. The
Defendant might not be liable for damage caused by an intervening act or unreasonable conduct
on the part of the Claimant.
iii) If the injury was foreseeable the Defendant is liable, even if the damage is greater in extent than
was foreseeable or if it was caused in a way that could not have been foreseeable. The Defendant
has to take his victim as he finds him.
iv) Where personal injury was reasonably foreseeable the Defendant was liable for any personal
injury, whether physical or psychiatric which the Claimant suffers as a result of the wrongful act.

NEGLIGENCE - LEGAL CAUSATION

Essential Reading:

 Re: Polemis and Furness, Withy & Co (1921)

 Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. (“The Wagon Mound (No.
1)”)
https://www.bailii.org/uk/cases/UKPC/1966/1966_10.pdf

 Jolley v Sutton London Borough Council [2000] UKHL 31

https://www.bailii.org/uk/cases/UKHL/2000/31.html

Chapter 10
 Doughty v Turner Manufacturing Company [1964] 1 QB 518
https://professionalnegligenceclaimsolicitors.co.uk/wp-content/uploads/Doughty-v-Turner-
Manufacturing-Company-1963-Lexlaw-Professional-Negligence-Damages.pdf

 Hughes v Lord Advocate (1963) UKHL 1

https://professionalnegligenceclaimsolicitors.co.uk/wp-content/uploads/Hughes-v-Lord-Advocate-
Tort Law

1963-LexLaw-Professional-Negligence-Damages.pdf

 Smith v Leech Brain [1961] 3 All ER 1159

SM

 Lagden v O’Connor [2003] UKHL 64

https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd031204/lagden-1.htm

 Simmons v British Steel Plc [2004] UKHL 20

LL.B

https://publications.parliament.uk/pa/ld200304/ldjudgmt/jd040429/simmon-1.htm
178

 ‘A Reconciliation Problem in Remoteness: Hughes v Lord Advocate and Doughty v Turner

Manufacturing Co. Ltd.’, R.O. Brady, Sydney Law Review, p.169
http://classic.austlii.edu.au/au/journals/SydLawRw/1965/12.pdf

 ‘The Demise of The Thin-Skull Rule’, P.J. Rowe, 1977, 40(4) Modern Law Review, p.377
https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1977.tb02429.x
© Brickfields Asia College