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3.2.3 Intervening Acts and Remoteness Lecture - Hands on Example

It is October the 31st – Bonfire Night. Beatrix and Bill decide to attend a bonfire organised by their local council on a village green. The event is well-attended, and large crowds gather around the centre-piece: a large bonfire, some 12ft high. There is no safety fence around the bonfire, nor is there a limit to the number of people allowed onto the green. Spectators gather close to the bonfire for warmth.

The council have also organised a fireworks display. Everything is going well until the time comes to set off the fireworks. Although they have been set up correctly, in a freak accident two of the fireworks collide in mid-air and spin-off sideways. They travel half a mile, towards a nearby site owned by the Ministry of Defence, used for storing the components used in manufacturing munitions. Earlier in the day, a window of the factory was broken, and it is in the course of being repaired. Whilst a cover was placed over the window earlier, it has been temporarily removed so that the new window can be installed. The errant fireworks, which are now on their descent, unfortunately fly through this broken window. This causes a massive explosion, destroying the factory. Debris is spread far and wide. A crate of white phosphorus – a component of tracer rounds - is catapulted by the force of the explosion into the air. It flies all the way over to the village green, and lands square in the middle of the bonfire. This dislodges a log which tumbles from the top of the bonfire, and lands on Bill’s leg, causing him severe burns. The crate of phosphorus then ignites. It burns with an intensely piercing white light. Beatrix, who is not expecting this, is looking at the fire when this happens. As a result of the dazzling light, she suffers permanent retina damage, and is left partially blind.

Beatrix’s doctor advises her that had she been just a few yards further away from the bonfire, her sight would have likely been unaffected. Bill’s doctor advises him not to drive for the next month – the burn has damaged the nerves in his leg, and this will affect his ability to brake quickly.

Two weeks later, Bill is late for work. In a panic, he attempts to drive himself to work. He comes to a junction but is aghast to discover that he has lost feeling in his leg as he attempts to brake. This causes a crash in which Bill’s car is written off.

Four weeks after the bonfire incident, Beatrix is diagnosed with a rare form of rapid onset macular degeneration – a condition unrelated to the damage sustained from the bonfire incident, and something which would have occurred regardless. This unfortunately leaves her blind. It is still two months before her claim against the council will be heard by a court.

Both Bill and Beatrix have sought some precursory legal advice.

Bill wishes to claim for the burns he has suffered, and also for the crash, which he says was a result of his injury.

Beatrix wishes to claim for her partial blindness.

They are advised by their lawyer that their claims are perhaps invalid because the damage they have suffered is too remote. They’ve come to you for a second opinion.

Advise Bill and Beatrix on whether their claims are valid or not, concentrating on matters of remoteness.

Answer:

Bill is likely to be able to lodge a successful claim against his local council. As per Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) (No. 1) [1961] AC 388, in order for a claim to be valid the damage must be reasonably foreseeable. In Bill’s case, it arguably is reasonably foreseeable – the council have taken no precautions to ensure spectators do not get too close to the bonfire. Bill is injured by a log which has rolled from the top of the bonfire. This is not an unlikely event by any means – bonfires by their very nature tend to collapse, and this creates a risk of debris falling from them. The council might argue that the damage is too remote – after all, the chain of events which cause the log to roll off of the bonfire is extremely unlikely, requiring a fireworks accident, a broken window and for the crate of phosphorus to have taken an extremely unlucky trajectory. However, as per Hughes v Lord Advocate [1963] AC 837, remoteness depends not on the foreseeability of the exact series of events which cause harm, but instead on the foreseeability of the nature of the harm itself. Since a log rolling from a bonfire and burning someone who is allowed to stand too close is entirely foreseeable, the claim will likely stand.

Although Bill’s car crash can be described as being caused by his burn, and thus the bonfire incident, his decision to drive himself is likely to be seen as an intervening act (or novus actus interveniens). Much like McKew v Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All ER 1621, Bill has autonomously made a poor decision in light of his injuries, and this has caused further harm – in this case damage to Bill’s car. Despite being advised not to drive, he has decided to do so anyway. It would be inequitable to hold the council responsible for Bill’s poor decision making, and so the claim for the damage to his car will likely fail.

Regarding Beatrix’s partial blindness, this is arguably too remote. Again, as per Hughes, remoteness is based on foreseeable harm. Whilst a bonfire burning someone is foreseeable, it burning with a chemical brightness which is intense enough to blind someone is not foreseeable at all. As such, Beatrix’s case can be likened to Doughty – the harm she has suffered is not of a foreseeable nature, and so her claim is likely too remote.

Furthermore, the fact that Beatrix has fallen prey to an unfortunate illness is likely to form as obstacle to her claim. As in Jobling v Associated Dairies Ltd [1982] AC 794, Beatrix has a negligently caused injury which is then ‘overtaken’ by a natural illness. Following this precedent, this means that even if her claim succeeds, her damages are likely to be severely limited to reflect the fact that she was only affected for the four weeks before the onset of macular degeneration.


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