(X) Haynes v Harwood [1935] 1 KB 146, CA

The plaintiff, a police constable, was on duty inside a police station in a street in

which, at the material time, were a large number of people, including children.

Seeing the defendants' runaway horses with a van attached coming down the street

he rushed out and eventually stopped them, sustaining injuries in consequence, in

respect of which he claimed damages:-

Held, (1) that on the evidence the defendants' servant was guilty of negligence in

leaving the horses unattended in a busy street; (2) that as the defendants must or

ought to have contemplated that some one might attempt to stop the horses in an

endeavour to prevent injury to life and limb, and as the police were under a general

duty to intervene to protect life and property, the act of, and injuries to, the plaintiff

were the natural and probable consequences of the defendants' negligence; and (3)

that the maxim "volenti non fit injuria" did not apply to prevent the plaintiff

recovering.

Brandon v. Osborne Garrett & Co. [1924] 1 K. B. 548 approved. Cutler v. United

Dairies (London), Ld. [1933] 2 K. B. 297 distinguished, and dicta therein

questioned.

Decision of Finlay J. [1934] 2 K. B. 240 affirmed.

A company, which carried on business as builders and contractors, undertook work

on a well which involved clearing it of water. The well was some fifty feet deep and

about six feet in diameter. H, a director of the company, and W and another

workman employed by the company, erected a platform twenty-nine feet down the

well and some nine feet above the water and lowered on to it a petrol-driven pump.

After the engine of this pump had worked for about one and a half hours it stopped

and a haze of fumes was visible in the well. The working of the petrol engine

created also a dangerous concentration of carbon monoxide, a colourless gas. H

returned to the well after working hours that evening and observed the haze and

noticed a smell of fumes. On the following morning at about 7.30 a.m. H instructed

the two workmen to go to the well, but said to W "Don't go down that bloody well

until I come". The workmen arrived at the well at about 8.15 a.m., and, before H

had arrived, one of the workmen went down the well and a few minutes later the

other workman also went down it. Both were overcome by fumes. A doctor, who

was called to the well, went down the well with a rope tied to his body in order to

see if he could rescue the men, though be had been warned not to go. He also was

overcome by fumes. Endeavour was made to haul him to the surface by the rope,

but the rope caught in a down pipe in the well and he could not be brought to the

surface until help arrived some time later. He died shortly afterwards. The court

found that H had acted in good faith but that he lacked experience and did not

appreciate the great danger that would be created in the well and did not seek

expert advice on the proper method of emptying the well. In actions for damages

for negligence resulting in the death of W and the doctor damages were awarded,

but those awarded in the case of W were apportioned, one-tenth of the

responsibility being attributed to W. On appeal,

Held: (i) the defendant company were liable for negligence causing the death of W

because the method adopted to empty the well had created a situation of great

danger to anyone descending the well on the morning in question, and the

defendant company were negligent in that no clear warning of the deadly danger

was given to W on that morning, H's order not to go down the well until he came

being insufficient to discharge the defendant company's legal duty to take

reasonable care not to expose W to unnecessary risk, though the apportionment of

one-tenth of the responsibility to W would not be disturbed.

(ii) the defendant company were liable for negligence causing the death of the

doctor because it was a natural and proper consequence of the defendant

company's negligence towards the two workmen that someone would attempt to

rescue them, and the defendant company should have foreseen that consequence;

accordingly the defendant company were in breach of duty towards the doctor.

Dictum of Lord Atkin in M'Alister (or Donoghue) v. Stevenson ([1932] All E.R. Rep.

at p. 11) applied.

(iii) no defence to the claim arising out of the death of the doctor was

afforded either (a) by the principle of novus actus interveniens, for that did not

apply where, as in the present case, the act in question was the very kind of thing

that was likely to happen as a result of the negligence. Dictum of Greer, L.J., in

Haynes v. Harwood ([1934] All E.R. Rep. at p. 107) applied.

or (b) by the maxim volenti non fit injuria, for that could not be successfully invoked

as a defence by a person who had negligently placed others in a situation of such

peril that it was foreseeable that someone would attempt their rescue. Dictum of

Greer, L.J., in Haynes v. Harwood ([1934] All E.R. Rep. at p. 108) applied.

(iv) the doctor had not acted recklessly or negligently and had neither caused nor

contributed to his own death.

Per Willmer, L.J.: bearing in mind that danger invites rescue, the court should not

be astute to accept criticism of the rescuer's conduct from the wrongdoer who

created the danger.

Decision of Barry, J. ([1958] 3 All E.R. 147) affirmed.

UNIT _II

Ubi Jus Ibi Remedium is a Latin legal maxim which means "where there is a right there is a remedy". The basic principle contemplated in the maxim is that, when a person's right is violated the victim will have an equitable remedy under law. The maxim also states that the person whose right is being infringed has a right to enforce the infringed right through any action before a court. All law courts are also guided with the same principle of Ubi Jus Ibi Remedium.

A tort is a civil wrong for which the remedy is an action for unliquadated damage, thus the main remedy for tort is an action for damage. This principle explain about the right of an injured person that “where there is a right there is also remedies” it is mainly the right to damage which brings such

wrongful act within the category of torts. The maxim ubi jus ibi remedium means that where there is a right there is remedy that is to say whenever the right is violated the person whose right has been infringed has remedy against the person who has violated it

The maxim is also said to mean that there is no wrong without a remedy that is to say that whenever someone is wrong he is given some remedies thus we see that these interpretation means one and the same thing. In Ashby-v-White (supra)it should however be noted that the maxim does not mean that there is legal remedy for every moral or politic wrong

(II)INJURY IN TORT

The personal injury and tort law category includes topics related to the mechanics, types, elements, defenses and remedies associated with tort law. A personal injury and tort law definition also encompasses concepts related to other aspects of substantive and procedural personal injury law. While it can encompass a broad range of possible legal wrongs, "personal injury" is a term most frequently associated with a few common types of legal claims, such as slip-and-fall, auto accident, or professional malpractice cases. A comprehensive tort law definition would include these common types of claims, along with a host of other possible injuries -- anything from negligent hiring by an employer, to negligent pollution by a corporation that results in environmental damage or causes illnesses in a nearby population. Some torts, like trespassing or defamation, sometimes don't even have to result in actual injury to be legally actionable.

Personal injury and tort law involves civil proceedings which seek monetary relief for harm suffered from a failure to act or breach of duty to act. The victim of the personal injury-- who sustains injury or suffers damage--is known as the plaintiff . The person who's action or inaction caused the damage is known as the defendant ortortfeasor .

(IV)Intention in tort

The problem with this description is that it is circular, at least if we view the statement as an attempt to set out in general terms the type of intent that must be established to hold a defendant liable in tort. How do we know that someone has the intent necessary to find his conduct unlawful? According to Prosser, we see if the actor intended to bring about an unlawful invasion; where the definition of such an invasion depends on the actor’s intent. In this article I will try to avoid the circularity problem in defining intent. I will argue that intent standards in tort law are objective and serve important regulatory functions. The intent standards can be explained on the basis of the incentive effects of

tort liability rules. Intent standards are easier to understand if we work backwards from an understanding of the desired impact of the rules to the language of the rules themselves. The core of my argument is that intent rules work primarily as pricing mechanisms that internalize costs optimally, in the sense that they induce potential tortfeasors to choose the option that is least costly to society. The intent standard for battery discourages socially undesirable acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery, and because of this it encourages (or avoids discouraging) the speech that is often intermixed with potentially threatening conduct. The intent standards for cases of economic predation (inducement of breach of contract, unfair competition) reflect the same

(V) Vicarious liability:it means the liability of one person for the torts committed by another. Under the law of tort the general rule is that every person is responsible for his own acts. But there are circumstances where liabilityattached to a person for the wrongs committed by others.How Vicarious liability arises – 1.Liability to Ratification2. Liability by special relationship 3. Liability by abatement Normally, the person who is liable for a wrong is he who does the wrong. But liability for another may arise where thedoer of the act and the persons sought to be held liable therefore are related to each other as 1. master and servant, 2owner and independent contractor, 3 principal and agent, 4 company and its directors, 5 guardian and ward.Principles on which vicarious liability is justified1.He who does an act through another, is deemed in law to do ithimself. A person who puts another in his place to do a class of acts in his absence, necessarily leaves him todetermine according to the circumstances that arise when an act of that class is to be done. 2.Respondent superior – The master is answerable for every such wrong of the servant or agent as is committed in the course of the service,though no express command or privity of the master is proved.How far a master is liable to third person for tortsof his servant-According to salmond a wrongful act is said to be done “ in the course of employment if (i) it isauthorized by the master, (ii) is a wrongful and unauthorized mode of doing some act authorized by the master.When is master liable :- 1.where the wrong is the natural consequence of the authorized act.2. where the wrong isdue to the servant’s negligence.3. The wrong may be due to excess or mistaken execution of a lawful authority.4. Thewrong may be a willful wrong 5.The wrong may be die to servant’s fraudulent act 6.The wrong may be due toservant’s criminal act

UNIT III Volenti non fit injuria is a defence of limited application in tort law. A direct translation of the latin phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. Where the defence of volenti applies it operates as a complete defence absolving the Defendant of all liability. It is often stated that the Claimant consents to the the risk of harm, however, the defence of volenti is much more limited in its application and should not be confused with the defence of consent in relation to trespass.   The defence of volenti non fit injuria requires afreely entered and voluntary agreement by the Claimant, in full knowledge of the circumstances, to absolve the Defendant of all legal consequences of their actions. There is a considerable overlap with contributory negligence and since the introduction of the Law Reform (Contributory Negligence) Act 1945, the courts have been less willing to make a finding of volenti preferring to apportion loss between the parties rather than taking an all or nothing approach. The requirements of the defence are thus: 1. A voluntary 

2. Agreement 

3. Made in full knowledge of the nature and extent of the risk.A rescuer is not regarded as having freely and voluntarily accepted the risk: Baker v TE Hopkins & Son Ltd [1959] 1 WLR 966 Case summary This applies to professional rescuers: Haynes v Harwood [1935] 1 KB 146 Case summary  Ogwo v Taylor [1987] 3 WLR 1145 Case summary If however, there is no real need to rescue, the Claimant may be held volens:Cutler v United Dairies [1933] 2 KB 297 Case summary

 

For reasons of policy, the courts are reluctant to criticise the behaviour of rescuers. A rescuer would not be considered volens if:

1. He was acting to rescue persons or property endangered by the defendant’s negligence;

2. He was acting under a compelling legal, social or moral duty; and

3. His conduct in all circumstances was reasonable and a natural consequence of the defendant’s negligence.

An example of such a case is Haynes v. Harwood [1935] 1 KB 146, in which a policeman was able to recover damages after being injured restraining a bolting horse: he had a legal and moral duty to protect life and property and as such was not held to have been acting as a volunteer or giving willing consent to the action - it was his contractual obligation as an employee and police officer and moral necessity as a human being to do so, and not a wish to volunteer, which caused him to act.in this case the court of appeal affirmed a judgement in favor of a policeman who had been injured in stopping some runaway horses with a van in a crowded street . The policeman who was on duty , not in the street , but in a police station , darted out and was crushed by one of the horses which fell upon him while he was stopping it.It was also held that the rescuer's act need not be instinctive in order to be reasonable,for one who deliberately encounters peril after reflection may often be acting more reasonably than one who acts upon impulse.

By contrast, in Cutler v. United Dairies [1933] 2 KB 297 a man who was injured trying to restrain a horse was held to be volens because in that case no human life was in immediate danger and he was not under any compelling duty to act.

RIGHT OF PRIVATE DEFENCE

Darshan Singh Vs State of Punjab / Criminal Appeal 1057 of 2002

Date of Judgment : 15.01.2010

19.   We deem it appropriate to briefly discuss the principle of right of private defence and how the

courts have crystallized this principle in some important judgments.

20.   Relevant provisions dealing with the right of private defence are sections 96 and 97 of the Indian

Penal Code.

“96. Things done in private defence. – Nothing is an offence which is done in the exercise of the right

of private defence.

97. Right of private defence of the body and of property. – Every person has a right subject to the

restrictions contained in Section 99, to defend–

First.- His own body, and the body of any other person, against any offence affecting the human body;

Secondly.- The property, whether moveable or immoveable, of himself or of any other person, against

any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass,

or which is an attempt to commit theft,      robbery, mischief or criminal trespass.”

21. Section 100 of the Indian Penal Code is extracted as under:

“100. When the right of private defence of the body extends to causing death. –

The right of  private defence of the body extends, under the restrictions mentioned in the last

preceding section, to the voluntary causing of death or of any other  harm to the assailant, if the

offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated,

namely: –

First. — Such an assault as may reasonably cause the apprehension that death will otherwise be the

consequence of such assault;

Secondly. — Such an assault as may reasonably cause the apprehension that grievous hurt will

otherwise be the consequence of such assault;

Thirdly. — An assault with   the   intention   of  committing rape;

Fourthly. — An assault with the intention of gratifying unnatural lust;

Fifthly. — An assault      with    the   intention   of kidnapping or abducting;

Sixthly. — An assault with the intention of wrongfully confining a person, under circumstances

which may reasonably cause him to apprehend that he will be unable to have recourse to the public    

authorities for his release.”

22. Section 100 of the Indian Penal Code justifies the killing of an assailant when apprehension of

atrocious crime enumerated in several clauses of the section is shown to exist. First clause of Section

100 applies to cases where there is reasonable apprehension of death while second clause is attracted

where a person has a genuine apprehension that his  adversary is going to attack him and he

reasonably believes that the attack will result in a grievous hurt. In that event he can go to the extent

of causing the latter’s death in the exercise of the right of private defence even though the latter may

not have inflicted any blow or injury on him.

23.       It is settled position of law that in order to justify the act of causing death of the assailant, the

accused has simply to satisfy the court that he was faced with an assault which caused a reasonable

apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not

is    a    question    of   fact   depending   upon   the   facts   and circumstances of each case and no

strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of

assault and other surrounding circumstances should be taken into account while evaluating whether

the apprehension was justified or not?

SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE

24.       The rule as to the right of private defence has been stated by Russel on Crime (11th Edn.,

Vol.1, p.491) thus:

“….. a man is justified in resisting by force anyone  who manifestly intends and endeavours by

violence   or surprise to commit a known felony against either his person, habitation or

property. In these cases he is not obliged to retreat, and may not merely resist the attack where

he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict

between them he happens to kill his attacker, such killing is justifiable.”

When enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal provisions,

certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the

Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the

citizens, when faced with grave danger.      The law does not require a law-abiding citizen to behave

like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this

court there is nothing more degrading to the human spirit than to run away in face of danger. The right

of private defence is thus designed to serve a social purpose and deserves to be fostered within the

prescribed limits.

25.   Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition 1998-99) aptly

observed that self-help is the first rule of criminal law.   It still remains a rule, though in process of

time much attenuated by considerations of necessity, humanity, and social order. According to

Bentham, in his book `Principles of Penal Laws’ has observed “the right of defence is absolutely

necessary”.    It is based on the cardinal principle that it is the duty of man to help himself.

26.   Killing in defence of a person, according to the English law, will amount to either justifiable or

excusable homicide or chance medley, as the latter is termed, according to the circumstances of the

case.

27.   But there is another form of homicide which is excusable in self-defence. There are cases where

the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account

of the initial provocation given by the person who has to defend himself in the end against an assault

endangering life.

28.   The Indian Penal Code defines homicide in self-defence as a form of substantive right, and

therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the

special rule of English Law as to the duty of    retreating will have no application to this country

where there is a real need for defending oneself against deadly assaults.

29.   The right to protect one’s own person and property against the unlawful aggressions of others is

a right inherent in man.   The duty of protecting the person and property of others is a duty which man

owes to society of which he is a member and the preservation of which is both his interest and duty. It

is, indeed, a duty which flows from human sympathy.

As Bentham said: “It is a noble movement of the heart, that indignation which kindles at the

sight of the feeble injured by the strong. It is noble movement which makes us forget our danger

at the first cry of distress….. It concerns the public safety that every honest man should

consider himself as the natural protector of every other.” But such protection must not be

extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and

disorder. The right has, therefore, been restricted to offences against the human body and those

relating to aggression on property.

30.   When there is real apprehension that the aggressor might cause death or grievous hurt, in that

event the right of private  defence of the defender could even extend to causing of death. A mere

reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled

position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a

right to take revenge.

31.   Right of private defence of person and property is recognized in all free, civilised, democratic

societies within certain reasonable limits. Those limits are dictated by two considerations:

(1) that the same right is claimed by all other members of the society and

(2) that it is the State which generally undertakes the responsibility for the maintenance of law and

order.

The citizens, as a general rule, are neither expected to run away for safety when faced with grave and

imminent danger to their person or property as a result of unlawful aggression, nor are they expected,

by use of force, to right the wrong done to them or to punish the wrong doer of commission of

offences.

32.   A legal philosopher Michael Gorr in his article “Private Defense” (published in the Journal “Law

and Philosophy”  Volume 9, Number 3 / August 1990 at Page 241) observed as under:

“Extreme pacifists aside, virtually everyone agrees that it is sometimes morally permissible to

engage in what Glanville Willams has termed “private  defence”, i.e., to inflict serious (even

lethal) harm upon another person in order to protect oneself or  some innocent third party from

suffering the same”.

33.   The basic principle underlying the doctrine of the right of private defence is that when an

individual or his property is faced with a danger and immediate aid from the State machinery is not

readily available, that individual is entitled to protect himself and his property. The right of private

defence is available only to one who is suddenly confronted with the necessity of averting an

impending danger not of self creation. That being so, the necessary corollary is that the violence

which the citizen defending himself or his property is entitled to use must not be unduly

disproportionate to the injury which is sought to be averted or which is reasonably apprehended and

should not exceed its legitimate purpose.

34.   This court in number of cases have laid down that when a person is exercising his right of private

defence, it is not possible to weigh the force with which the right is exercised.    The principle is

common to all civilized jurisprudence. In Robert B. Brown v. United States of America (1921) 256

US 335, it is observed that a person in fear of his life in not expected to modulate his defence step by

step or tier by tier. Justice Holmes in the aforementioned case aptly observed “detached reflection

cannot be demanded in the presence of an uplifted knife”.

35.   According to Section 99 of the Indian Penal Code the injury which is inflicted by the person

exercising the right should commensurate with the injury with which he is threatened. At the same

time, it is difficult to expect from a person exercising this right in good faith, to weigh “with golden

scales” what maximum amount of force is necessary to keep within the right every reasonable

allowance should be made for the bona fide defender. The courts in one voice have said that it would

be wholly unrealistic to expect of a person under assault to modulate his defence step by step

according to attack.

36.   The courts have always consistently held that the right of private defence extends to the killing of

the actual or potential assailant   when   there   is   a   reasonable   and   imminent   apprehension of

the atrocious crimes enumerated in the six clauses of section 100 of the IPC. According to the

combined effect of two clauses of section 100 IPC taking the life of the assailant would be justified on

the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to

the person exercising the right. A person who is in imminent and reasonable danger of losing his life

or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his

assailant either when the assault is attempted or directly threatened.

UNIT IV

Remoteness: the basic rule

Even if the tort caused the damage, that is not the end of the story. A breach of duty may considerably change the course of subsequent events, but the defendant will not be liable for everything that can be traced back to the original wrongdoing. The remoteness issue limits the extent of the defendant’s liability. This too can be illustrated by our ordinary use of language.

Claudia travels to work in London: the only convenient way is by train from her local station. One day she finds that a train has been derailed outside the station and blocked the line. She therefore has to return home. During the morning an intruder breaks in and shoots her in the leg. It would be natural for her to say, ‘I was absent from work yesterday because my train was derailed.’ But it would not be natural for her to say, ‘I was shot in the leg yesterday because my train was derailed’. Yet it is true that, if there had been no derailment, she would not have been at home and would not have been shot. There is however a feeling that the link between the shooting and the derailment is not close enough. In legal language, the shooting is too remote a consequence of the derailment. Like causation, the remoteness issue is relevant to all torts in which proof of damage is essential, or in which the claimant is seeking Law of tort

42 University of London External Programme compensation for specific losses. The test of what consequences are too remote, however, is not formulated in the same way in all torts. In every tort involving damage, you will have to learn what the test of remoteness of damage is. Later in this chapter we will consider the way in which the test is formulated in the tort of negligence. The main

purpose of the rules of causation is to exclude those things that are not the cause of the damage. If the same damage would have been suffered even if there had been no breach of a duty of care, then the claimant loses. But the opposite is not true.

Even if the damage would not have been suffered without the breach of duty (i.e. the breach of duty is a cause of the damage), it does not follow that the defendant is liable. The breach of duty may initiate a whole chain of further events – but some of these will be treated as too ‘remote’ from the original negligence for it to be appropriate to hold the defendant answerable for those distant

outcomes. At one time the test of remoteness of damage in the tort of negligence was said to be whether the damage was the direct consequence of the breach of duty. If it was merely indirect,

particularly if there was something which ‘broke the chain of causation’, then the defendant was not liable. This test was particularly associated with the decision of the Court of Appeal in

Re Polemis [1921] 3 KB 560.

The acceptable test: foreseeable consequences Since 1964 the accepted test has been that the defendant is liable for damage only if it was the foreseeable consequence of the breach of duty. The Privy Council so decided in The Wagon Mound (No 1)

[1961] 1 AC 388.

Furnace oil had been negligently spilled from a ship in Sydney Harbour. The oil had been carried to nearby docks where welding operations were in progress. A piece of cotton waste caught fire, the temperature was raised sufficiently to ignite the oil and the resulting fire destroyed the docks and ships moored there. The New South Wales courts, applying the English rule of the time, held that (on the evidence presented) the great fire was not foreseeable, but that it was the direct consequence of the spillage and therefore the defendants were liable. The Privy Council disagreed. The defendants should be liable only for what could reasonably have been foreseen. The Privy Council gave two reasons. A test of foreseeability was (a) simpler and (b) more just, because it was unfair to hold a careless defendant liable for more than could have been foreseen when and if he thought about the consequences before committing the act of negligence. ‘It is hoped that the law will thereby be simplified and that, in some cases at least, palpable injustice will be avoided.’ (per Viscount Simonds)

Activity 4.5

Why did Viscount Simonds say that the test of remoteness should be foresight and not directness? Are his reasons justified?

4.4 Qualifications of the basic test Viscount Simonds certainly thought that the substitution of the new test would not affect the outcome of many cases. Foresight is not a term that can be applied mechanically. The way it is used can be understood only by examining a selection of cases in which it has been considered. A very narrow test would mean that the defendant would be liable only if the very thing which happened was what would be expected and therefore foreseen: a very wide interpretation would suggest that the defendant would be liable for everything that you could imagine happening unless it was utterly far-fetched. The approach in the cases decided since 1961 falls between these two extremes, but is probably closer to the latter. The following are reasons why the effect has not been great:

(a) How much is foreseeable?

The significance of the new test was considered by the House of Lords in Hughes v Lord Advocate [1963] AC 837. More recently the House has again considered the problem and analysed both the Wagon Mound (No 1) and Hughes v Lord Advocatein Jolley v Sutton London Borough Council [2000] 1 WLR 1082. This is in fact a case based on the Occupiers’ Liability Acts (see Chapter 6), but the common law principles were discussed and applied.

These cases show that it is not necessary to foresee precisely what happened. In particular it is not necessary to foresee either (i) the severity of the damage or (ii) the precise manner in which it occurred. It is sufficient if the injury is of the type that could be foreseen, even it came about in an unexpected way or was much more severe than expected.

This can be illustrated by the facts of Jolley. The defendant council had in breach of duty failed after several months to remove a derelict cabin cruiser that had been abandoned on its land. The issue was whether the council could foresee only that small children would be injured by clambering over it, or whether (as actually happened) teenaged children would be injured by jacking it up and working underneath it in order to make it seaworthy. This is in the end a matter of judgment – the Court of Appeal

unanimously held that the accident was not foreseeable, the House

of Lords unanimously held that it was.