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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> McKew v Holland and Hannen and Cubitts (Scotland) Ltd [1969] UKHL 9 (26 November 1969) URL: http://www.bailii.org/uk/cases/UKHL/1969/9.html Cite as: [1969] UKHL 9

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Parliamentary Archives,
HL/PO/JU/4/3/1186

Die Mercurii, 26° Novembris 1969

Upon Report from the Appellate Committee, to whom
was referred the Cause McKew (A.P.) against Holland
& Hannen & Cubitts (Scotland) Limited, that the Com-
mittee had heard Counsel, as well on Thursday the 9th
as on Monday the 13th, days of October last, upon the
Petition and Appeal of Abraham McKew (Assisted
Person), residing at 26 Succoth Street, Glasgow, praying,
That the matter of the Interlocutors set forth in the
Schedule thereto, namely, two Interlocutors of the Lord
Ordinary in Scotland (Lord Robertson) of the 13th of
July 1967 and the 6th of October 1967 respectively, and
also two Interlocutors of the Lords of Session there of
the Second Division of the 30th of September 1968 and
the 15th of October 1968 respectively, so far as therein
stated to be appealed against, might be reviewed before
Her Majesty the Queen, in Her Court of Parliament, and
that the said Interlocutors, so far as aforesaid, might be
reversed, varied or altered, or that the Petitioner might
have such other relief in the premises as to Her Majesty
the Queen, in Her Court of Parliament, might seem
meet ; as also upon the Case of Holland & Hannen &
Cubitts (Scotland) Limited, lodged in answer to the said
Appeal; and due consideration had this day of what was
offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of Her Majesty
the Queen assembled. That the said Interlocutors of the
13th day of July 1967, the 6th day of October 1967, the
30th day of September 1968 and the 15th day of October
1968. complained of in the said Appeal, be, and the same
are hereby, Affirmed, and that the said Petition and
Appeal be, and the same is hereby, dismissed this House :
And it is further Ordered, That the Appellant do pay,
or cause to be paid, to the said Respondents the Costs
incurred by them in respect of the said Appeal, the
amount thereof to be certified by the Clerk of the Par-
liaments, provided that such Order shall not be enforced
without a further Order of this House.

McKew (A.P.) v. Holland & Hannen & Cubitts (Scotland) Limited.




(303704) Dd-(197040) 35 1/70 St.S.

HOUSE OF LORDS







McKEW (A.P.)

v.
HOLLAND & HANNEN & CUBITTS (SCOTLAND) LIMITED

Lord Reid
Lord Hodson
Lord Guest
Viscount Dilhorne
Lord Upjohn




Lord Reid

My Lords,

The Appellant sustained in the course of his employment trivial injuries
which were admittedly caused by the fault of the Respondents. His back and
hips were badly strained, he could not bend, and on several occasions his left
leg suddenly " went away from " him. I take this to mean that for a short
time he lost control of his leg and it became numb. He would have recovered
fully from his injuries in a week or two but for a second accident in which
he suffered a severe fracture of his ankle. The question in this case is whether
the Respondents are liable for the damage caused by this second accident.
If they are so liable then damages have been agreed at £4,915: if they are
not so liable then damages are agreed at £200, the sum awarded in the Court
of Session.

Some days after the first accident the Appellant was offered the tenancy of
a flat in Succoth Street, Glasgow. He went to inspect it accompanied by his
wife and child and a brother-in-law. The flat is approached by a steep stair
between two walls and there was no handrail. When they left the flat the
Appellant sought to descend the stair with his child in advance of his wife
and brother-in-law. The only reliable evidence of what then happened is that
of the Appellant and it is far from clear. I think it best to quote this evidence.
The Appellant first said:

" A.—Well, we came out of the house and I was at the top of the
" stairs with my daughter and I had her by the hand and I think it was
" my brother-in-law closed the door and he was holding it while my
" wife was locking it and I lifted my right foot to go down the stairs and
" as I lifted my right foot this left leg just seemed to vanish under me
" and I threw my daughter back in case I would take her down with
" me ; I found myself going and I couldn't stop and the only thing I
" could do was, instead of toppling down head first, I threw myself and
" I landed on my right—even when I landed on my feet my left went
" from me, but it was mostly my right I landed on."

Then later he said :

" I put my right leg down to go and as I put it down my left leg just
" went and I threw my daughter back and instead of falling I made to
" jump.

" Q.—And did you land on your feet?

" A.—Yes. I ended up sitting down but I was on my feet as I hit
" the ground.

" Q.—Did you jump about 12 feet from the top of the stair down to
" the next landing?

" A.—Well, I jumped ten steps. . . ."

And finally he said:

" I was actually falling, I was completely falling and I had to try and
" stop myself. My right leg was down then and I threw myself so that
" I could land in a standing position instead of falling over and falling
" down and breaking my neck.

" Q.—Did you project yourself into the air with your right foot?

"A.—From the wall and part of my right foot, I kind of pushed
" myself from the wall on the left.

" Q.—Did you not think of falling backwards, just sitting down?

" A.—That was impossible because I was in flight, as a matter of fact,
" I couldn't come back, not unless I reversed my body, and I wasn't
" doing that."

2

The Appellant's case is that this second accident was caused by the
weakness of his left leg which in turn had been caused by the first
accident. The main argument for the Respondents is that the second accident
was not the direct or natural and probable or foreseeable result of their
fault in causing the first accident.

In my view the law is clear. If a man is injured in such a way that his
leg may give way at any moment he must act reasonably and carefully.
It is quite possible that in spite of all reasonable care his leg may give way
in circumstances such that as a result he sustains further injury. Then that
second injury was caused by his disability which in turn was caused by the
defender's fault. But if the injured man acts unreasonably he cannot
hold the defender liable for injury caused by his own unreasonable conduct.
His unreasonable conduct is novus actus interveniens. The chain of causation
has been broken and what follows must be regarded as caused by his
own conduct and not by the defender's fault or the disability caused by it.
Or one may say that unreasonable conduct of the pursuer and what follows
from it is not the natural and probable result of the original fault of the
defender or of the ensuing disability. I do not think that foreseeability comes
into this. A defender is not liable for a consequence of a kind which is not
foreseeable. But it does not follow that he is liable for every consequence
which a reasonable man could foresee. What can be foreseen depends
almost entirely on the facts of the case, and it is often easy to foresee
unreasonable conduct or some other novus actus interveniens as being quite
likely. But that does not mean that the defender must pay for damage
caused by the novus actus. It only leads to trouble if one tries to graft
on to the concept of foreseeability some rule of law to the effect that a
wrongdoer is not bound to foresee something which in fact he could readily
foresee as quite likely to happen. For it is not at all unlikely or unfore-
seeable that an active man who has suffered such a disability will take some
quite unreasonable risk. But if he does he cannot hold the defender liable
for the consequences.

So in my view the question here is whether the second accident was caused
by the Appellant doing something unreasonable. It was argued that the
wrongdoer must take his victim as he finds him and that that applies not
only to a thin skull but also to his intelligence. But I shall not deal with
that argument because there is nothing in the evidence here to suggest that
the Appellant is abnormally stupid. This case can be dealt with equally
well by asking whether the Appellant did something which a moment's
reflection would have shewn him was an unreasonable thing to do.

He knew that his left leg was liable to give way suddenly and without
warning. He knew that this stair was steep and that there was no handrail.
He must have realised, if he had given the matter a moment's thought, that
he could only safely descend the stair if he either went extremely slowly
and carefully so that he could sit down if his leg gave way, or waited
for the assistance of his wife and brother-in-law. But he chose to descend
in such a way that when his leg gave way he could not stop himself. I
agree with what the Lord Justice Clerk says at the end of his opinion and
I think that this is sufficient to require this appeal to be dismissed.

But I think it right to say a word about the argument that the fact that
the Appellant made to jump when he felt himself falling is conclusive
against him. When his leg gave way the Appellant was in a very
difficult situation. He had to decide what to do in a fraction of a second.
He may have come to a wrong decision: he probably did. But if the chain
of causation had not been broken before this by his putting himself in a
position where he might be confronted with such an emergency, I do not
think that he would put himself out of court by acting wrongly in the
emergency unless his action was so utterly unreasonable that even on the
spur of the moment no ordinary man would have been so foolish as to
do what he did. In an emergency it is natural to try to do something to
save oneself and I do not think that his trying to jump in this emergency
was so wrong that it could be said to be more than an error of judgment.
But for the reasons already given I would dismiss this appeal.




3

Lord Hodson

My Lords,

I have had the advantage of reading the Opinion of my noble and learned
friend, Lord Reid, with which I agree.

I would dismiss the appeal.

Lord Guest

My Lords,

The Appellant was injured in an industrial accident on 14th February,
1963, in circumstances under which the Respondents are admittedly respon-
sible. For the injuries sustained by him in that accident the Lord Ordinary
has awarded the Appellant £200 damages. No question arises as to the
Respondents' liability for this accident nor as to the amount of damages.
The injury was not a serious one, but it left the Appellant with a slight
weakness of his left leg which was still present on 7th March, 1963, when
he met with a second accident on the common stair of a house at Succoth
Street, Glasgow. He sustained serious injuries on this occasion when he
fractured his right ankle and left os calcis. This has left him with a serious
permanent disability. The Lord Ordinary found, and his decision was
concurred in by the Second Division of the Court of Session, that the
Appellant cannot recover damages for this second accident as it is too
remote. If, however, he had considered the Respondents liable for the
consequences of the second accident he would have awarded the Appellant
an additional £4,715 damages.

The Lord Ordinary has found the Appellant's explanation of his second
accident confusing, and I am not surprised when his evidence is considered.
He, his wife, his young daughter and his brother-in-law were inspecting a
house in Succoth Street, Glasgow, with a view to his occupancy. He took
with him a measuring tape for taking measurements for carpets and wax
cloth. After leaving the house his account proceeds as follows:

" Well, we came out of the house and I was at the top of the stairs
" with my daughter and I had her by the hand and I think it was my
" brother-in-law closed the door and he was holding it while my wife
" was locking it and I lifted my right foot to go down the stairs and
" as I lifted my right foot this left leg just seemed to vanish under me
" and I threw my daughter back in case I would take her down with
" me ; I found myself going and I couldn't stop and the only thing I
" could do was, instead of toppling down head first, I threw myself and
" I landed on my right—even when I landed on my feet my left went
" from me, but it was mostly my right I landed on."

In cross-examination he explains that he threw himself so that he would
land in a standing position instead of falling over and breaking his neck.
He further explains that he projected himself from the wall with his right
foot and he assents to the suggestion that he jumped the twelve steps clear
hitting the bottom step.

The Lord Ordinary has found that when the Appellant was at the top
of the stairs he made a deliberate and voluntary— " and apparently
" unnecessary " —leap down ten steep steps of the tenement stairway. Upon
this view he has held that the second accident was not a direct and probable
result of the Appellant's first accident.

The Lord Justice-Clerk takes a slightly different approach. He expresses
the view that in the situation in which the Appellant was placed at the top
of the stairs when his left leg gave way with an apparent choice between
two evils the Appellant may not have been unreasonable in jumping as he
did. But the Lord Justice-Clerk considers that as the Appellant's left leg had
" gone away " from him on several occasions before the second accident—
" Yet, with this knowledge and experience, he set out to descend a
" flight of stairs without a stick or other support and without the



4

" assistance, which was available, of his wife or brother-in-law. I
" cannot regard that as a reasonable act and it was, in my opinion, an
" intervening act which broke the chain of causation."

Lord Walker's view is again different. He disagreed with the Lord
Ordinary as to the jump and finds that the real cause of the second accident
was the Appellant's own reckless conduct in hurrying down the stair in the
circumstances. I am doubtful whether the evidence supports a finding of
undue haste.

I am not sure what is Lord Wheatley's approach, but in the concluding
passage of his judgment he appears to be agreeing with the Lord Ordinary
that the jump was something which no reasonable person would have done.

I would have difficulty in faulting the Lord Ordinary's view. If the
Appellant was believed—and the Lord Ordinary bases his judgment upon
his evidence—he performed a not inconsiderable acrobatic feat in jumping
down ten steps clear. " The grand rule " said Lord Kinloch in Allan v.
Barclay 1863 2 M. 873-

" on the subject of damages is that none can be claimed except such as
" naturally and directly arise out of the wrong done ; and such therefore
" as may reasonably be supposed to have been in the view of the
" wrongdoer ".

This has been elaborated, discussed and explained in future cases but never
improved upon. If, on the other hand, the action which resulted in the
injury was " something unaccountable, a new cause which disturbs the
" sequence of events, something which can be described as either unreason-
" able or extraneous or extrinsic the chain of causation is broken." (The
Oropose [1943] P. 32 Lord Wright page 39.) In the ss. Baron Vernon v.
ss. Metagama 1928 S.C. (42) 21 Viscount Haldane at page 25 states that
damages are recoverable if they are the natural and reasonable result of the
negligence and it will assume this character if it can be shown to be such
a consequence as, in the ordinary course of things would flow from the
negligence. " Reasonable human conduct is part of the ordinary course of
" things."

If the Appellant jumped, as found by the Lord Ordinary, I cannot regard
this as reasonable human conduct. But whether this is to judge the
Appellant's conduct in too fine scales I would regard the Lord Justice-Clerk's
ground of judgment as equally satisfactory. The Appellant was still con-
valescent from his first accident when the second accident occurred. He
was limping. He had the experience of his leg giving way. Yet he chose
without assistance, without hanging on to the wall, to commence to descend
those steep stairs holding his young daughter by the hand. Like the Lord
Justice-Clerk I could not characterise such conduct as other than unreason-
able in the circumstances. If this be so, then the chain of causation between
the first and second accident is broken and the Appellant must fail.

I would dismiss the appeal.

Viscount Dilhorne

My Lords,

I have had the advantage of reading the opinion of my noble and learned
friend, Lord Reid. I agree with it and would also dismiss the appeal.

Lord Upjohn

My Lords,
I concur.

(02 14) Dd . 197039 80 11/69 St.S.