LORD JUSTICE STEPHENSON: On a Friday evening in October 1974 at about 8.20 in the twilight Police Constable Knightley rode his motor bicycle the wrong way along a tunnel in Birmingham into collision with Mr. Cotton's oncoming motor car. He sued Mr. Cotton for negligence in causing him serious injuries. He also sued Police Inspector Sommerville and the Chief Constable of The West Midlands as the inspector's superior officer for the inspector's negligence in instructing or at the least permitting him to ride the wrong way. But the person he alleged to be first and foremost responsible for his accident and injuries was Mr. Johns, because it was his negligence in overturning his motor car in the tunnel which was the cause of all the trouble.
The deputy judge had a hard task, not made easier by the surprising fact that not one of the four defendants gave evidence. Though rightly directing himself that he was therefore entitled to draw adverse inferences where the evidence which was given left him in doubt, he nevertheless acquitted everybody concerned, including Police Constable Knightley himself, of negligence except Mr. Johns, the only defendant whose injuries may have explained his absence from the witness-box. That part of the judge's task was made easier - his finding that Mr. Johns was negligent - because it was conceded at the trial. What remained, however, in dispute at the trial was whether his negligence caused-the plaintiff's accident and whether the negligence of the other defendants, or the plaintiff himself, caused or contributed to it. These are the disputed issues raised by Mr. John's appeal to this court and the plaintiff's cross-notice. The Chief Constable and the Inspector have in the course of the appeal been allowed to join Mr. Johns in alleging contributory negligence by the plaintiff.
The Queensway tunnel between Suffolk Street and Great Charles Street has four lanes of traffic, two going north and two going south. The southbound tunnel was at the material time closed for maintenance. Both Mr. Johns* accident and the plaintiff's collision with Mr. Cotton's car happened in the northbound tunnel. The carriageway, divided by a broken white line into two lanes, is 22 feet wide. There are narrow footways on each side and emergency telephones on the nearside wall of the left-hand lane, which was called lane 1. The length of the tunnel is a third of a mile. The speed limit, often exceeded, is 40 miles per hour. The tunnel bends more than halfway along to the right, and the bend is so sharp as to be blind. Mr. Johns' car somersaulted and came to rest upside-down with him inside it, blocking the right-hand lane, which was called lane 2, some 440 feet beyond the right-hand bend and about 40 yards from the exit of the tunnel. One or more bodies of his passengers lay injured and unconscious across the central line dividing the two lanes and partly blocking lane 1.
A Mr. Williams, driving behind Mr. Johns, stopped and used an emergency telephone to report the accident to the Al Sub-Division Controller's office at Steelhouse Lane Police Station, which appears to have received and communicated the message in a somewhat confused form. The plaintiff on patrol duty picked up on his radio a message from the main force control room in Newtown Street and continued on his motor bicycle to the scene. Seeing the position of Mr. Johns' car and the bodies he rode out of the northern exit into the open so as to be able to radio the force control room for two ambulances and a fire appliance. He then rode back to the scene the wrong way against any traffic that might have been coming north past Mr. Johns' car. There he found about four private cars stationary in lane 1 and behind the overturned car in lane 2 a police panda car and a motor bicycle, shortly to be joined by a fire appliance. At the scene were Inspector Sommerville, a Police Constable and a Woman Police Constable, who had apparently arrived in the panda, and Police Constable Easthope, who had dismounted from the motor cycle. The plaintiff got off his motor cycle with the intention of rendering first aid, when the inspector said to him and Police Constable Easthope, "I have forgotten to close the tunnel; you two go back and do it". Thereupon Police Constable Easthope turned his machine round and without objection from the Inspector drove southwards the 3/10ths of a mile back to the southern entrance to the tunnel - or rather the 4/10ths of a mile to the last point for diverting traffic to the surface road - and the plaintiff, without a word to him or to the inspector, followed him at a distance which he put at 20 yards or 40 feet.
Police Constable Easthope hugged his left-hand wall in lane 2, because he thought it easier for drivers approaching in the correct direction to pull to their nearside away from their right-hand bend and safer to try and "tighten the bend". (6A,46E) The plaintiff went over to his right-hand wall in lane 1 "to get the earliest possible view of anything coming the other way round this blind bend to open the bend (38B). Both rode at a speed of 20 miles per hour, showing main beam headlights and flashing blue lights and sounding two-tone horns. Both had nearly reached the entrance after passing a substantial "tailback" of stationary cars in both lanes when they were confronted by Mr. Cotton's car approaching at 35 - 40 miles per hour. It swerved to the left to avoid Police Constable Easthope and collided with the plaintiff near the entrance to the tunnel.
These are the salient facts, as found by the judge, of this unusual and unlucky accident.
I consider first the police action, both of the inspector and the plaintiff and the cases against them before I turn my attention to the case against Mr. Johns, because his liability depends on the nature of what they did. The plaintiff rode the wrong way on instructions from the inspector to close the tunnel. He said that the decision was his (14C) , that it was a hair-raising thing to do, exposing him to very considerable risk of an accident, but done of his own volition (16A); placing him and his brother officer in a situation of very great peril (18E), but done to get the tunnel closed as quickly as possible (19H, 21C). He initially considered going the long way round by St. Chad's Circus north of the tunnel and back by the surface road (which could have been done, according to other evidence, in 3½ minutes), but due to the hazardous situation in the tunnel felt that he had no alternative but to ride the wrong way through the tunnel (8A). This northbound tunnel was an arterial road and the situation in it he thought hazardous because he feared that the tailback of oncoming traffic would fill up the carriageway back nearly as far as the bend and further vehicles, perhaps a coach or a tanker, might come round the bend too fast and into the tailback with much more disastrous consequences. He based that fear on his experiences when policing the motorway and on previous accidents in the tunnel, and I do not see how that evidence could be rejected.
But in assessing it no judge could ignore the plaintiff's position as a still serving member of the West Midlands Police Force and his own evidence (4C) that he got off his machine with the intention of rendering first-aid but got no further because of the instruction he received from the inspector. That clearly indicates to me that he thought that the tunnel had been closed until the inspector told him he had forgotten to close it.
It was, however, his own decision to open the bend by hugging his right-hand wall in lane 1, though Police Constable Easthope had decided to tighten the bend by hugging his left-hand wall in lane 2. The judge held that the plaintiff had a good reason to make that decision and so had P.C. Easthope, and I agree with him. But though the matter gave him considerable concern he concluded that though he himself "would most certainly have tucked myself in behind the leading motor cycle, I do not think I can blame an experienced motor cyclist such as the plaintiff for deciding to take the course which he did take" (89BD). ' Like the judge, I have had some doubt about that. I do not think that the plaintiff was acting unreasonably or negligently in obeying the inspector's orders and riding the wrong way. I do not have to consider whether he would, as he implied, have done the same thing if he had not received that instruction. But I am of opinion that he added to the great and clearly appreciated danger of riding the wrong way by going on to the opposite side to Police Constable Easthope and increasing the risk of a collision which might injure not only himself but other drivers. But the plaintiff had no time to deliberate or consider how best to carry out the order given him and I have come to the conclusion that he ought not to be blamed for taking a decision, on its face sensible, which, because of the other officer's decision, in fact increased the risk instead of reducing it. I would not hold him responsible to any extent for his own injuries.
What of the inspector? We have not the advantage of knowing what he did for certain, because he did not go into the witness-box and we have only his undated report, not disclosed till the morning of the trial because of a successful claim to privilege.
From the evidence we know that Mr. Williams was confused about the points of the compass, told the Al Division Control (correctly) that he was travelling towards the fire station, believed he was in the southbound tunnel and, when asked whether he was northbound or southbound, probably said (incorrectly) that he was in the southbound. And Police Constable Easthope was told by the main force control, with which the plaintiff also was in radio contact, that the accident was in the southbound tunnel. From the evidence we know also that Mr. Williams' message must have been transmitted to Al Division Control, and so to the inspector and the officers with him who had arrived at the scene of the accident between the plaintiff's first and second arrivals there: and that the inspector gave the instruction repeated by the plaintiff in his evidence. From the inspector's report he appears to be telling his superior officer that before entering the tunnel he thought Mr. Williams' telephone call might be a false call and that when he got to the scene he asked Police Constable Easthope and the plaintiff to make their way to the entrance to the tunnel and block it off in order to allow emergency vehicles to remove the injured and Mr. Johns' car at the earliest possible moment; and that it was the two police constables who weighed up the situation and thought the best route would be to travel against the traffic, which would be an easy matter. He would not blame them for that decision and for acting in the best traditions of the force.
Mr. McAulay, on behalf of the inspector and the Chief Constable, sought to rely on the Inspector's report as negativing any adverse inferences that might without it be drawn against him. In my opinion, it confirms those inferences. He may have believed that the accident was not in the northbound tunnel (though it could not have been in the southbound tunnel because that was closed) but was in a tunnel wrongly identified as the Queensway tunnel, or that it was a hoax, so that he had no reason to close the tunnel and had not forgotten to do so and had not told the plaintiff that he had forgotten to do so. Police Constable Easthope could not remember his exact words: the Inspector could have sworn to a version of them consistent with his report and with what his counsel was instructed to put to the plaintiff who would not have it. But though present in court the Inspector did not choose to give evidence and left the judge with the plaintiff's version of the Inspector's instruction, which was entirely inconsistent with his report and, in my view, with his being held in no way to blame for the plaintiff's accident.
Much was made by Mr. McAulay of the plaintiff's evidence that the decision to go against the traffic was his own, in support of the contention that if it was a reasonable thing for an experienced police motor cyclist to do, who was, as the judge said, better able to judge the risks of doing so than the inspector, it was a reasonable order for the Inspector to give, and if either were in fact negligent they were equally to blame, as the judge said he would have found them to be if wrong in acquitting them of negligence. But that does not, in my opinion, touch the Inspector's negligence in forgetting to close the tunnel.
I should have found difficulty in agreeing with the judge that the Inspector's conduct was reasonable and not negligent simply on the plaintiff's evidence of the Inspector's admission that he had forgotten to close the tunnel. The judge found that he was not negligent in failing to close the tunnel on the way in, or in not summoning other assistance to close the carriageway by telephone or the plaintiff's radio, or in giving the instruction to the plaintiff and Police Constable Easthope: he had to take decisions on the spur of the moment, in instructing the plaintiff as he did he was not taking an unwarranted risk, though if it was negligent for the plaintiff to go the wrong way along the tunnel he would have held the Inspector and the plaintiff equally responsible but neither *s negligence unreasonable enough to break the chain of causation.
But in fact there were before the judge, disclosed in the action and put to the plaintiff, who admitted knowledge of them, the police force Standing Orders for Road Accidents and Vehicle Breakdowns in the Queensway Tunnel: and in fact what was done by the Inspector, Police Constable East-hope and the plaintiff was in breach of these orders. They state as follows:
"3. Upon receipt of a call from any of the emergency telephones in the tunnel the 'A'l controller will ascertain from the caller the number of the telephone and the exact location of the incident.
4. The controller will inform Information Room and send two police officers to the end of the tunnel leading to the reported incident. The first officer on the scene will continue to divert traffic on the surface roads away from the tunnel. This will be done firstly by hand signals, and then by placing red and white cones across the entrance together with a diversion sign placed at the wall which leads to the entrance to the tunnel. (All obtained from the 'A' Division Land Rover which will be sent to the scene).
5. The second officer will make his way ON FOOT to the scene of the incident. He will report back to 'A'l control by telephone his assessment of the position giving:
(a) The type of incident - breakdown or accident
(b) The type of services he requires - ambulance, fire appliance or breakdown vehicle. He will obtain the overall weight of any large vehicle and load in order that a suitable recovery vehicle can be called to attend.
(c) The officer will suggest the best route to be used by emergency vehicles attending - whether or not they should arrive along the correct way in the tunnel, or against the one way system.
6. On no account will traffic be allowed to enter the tunnel until the emergency has been cleared. Single-line traffic-working will not be permitted. Fluorescent jackets will be worn by officers who enter the tunnel to deal with emergencies.
7. In the event of a petrol leakage or a deposit of inflammable materials in the tunnel, the Fire Service will be called without delay. The Fire Service will also be informed when it is known that persons are trapped in vehicles.
8. When emergency vehicles are directed to travel the 'wrong-way' along a carriageway in the tunnel, the police officer will escort the vehicle into the tunnel. N.B. This will be done when confirmation is received that all traffic has been stopped.
13. The above instructions have been prepared with the safety of police officers and other emergency personnel in mind. At all times it will be necessary for officers attending incidents in the tunnel to show particular care for their own safety. They should take steps to safeguard themselves and others. Officers unfamiliar with the procedure will be guided by Information Room or 'A'l Control."
The plaintiff was apparently "the first officer on the scene" but the first of the two officers from the controller's office at Steelhouse Lane to be on the scene would appear to have been the Inspector, who was not called to admit or deny it. No officer commenced to direct traffic on the surface roads away from the tunnel at the end of the tunnel leading to the reported incident. Neither officer from the Information Room (identified by the plaintiff as at the material time the main force control office) nor any other officer made his way on foot to the scene of the incident, or reported back to Al control by telephone. Traffic was allowed to enter the tunnel before the emergency had been cleared. On the understanding by the plaintiff and Police Constable Easthope of what the Inspector said to them - and it would be my understanding - their motor bicycles were directed to travel the "wrong way" along the carriageway in the tunnel without a police officer escorting them and without confirmation being received that all traffic had been stopped. They may not have been emergency vehicles, but the plaintiff thought it fair to regard them as such (21A). They could not be escorted into the tunnel because they were already there. The two riders were perhaps their own police escort. But the danger of what they were doing is brought out by paragraph 8, particularly the "N.B.," and particular care for the safety of the plaintiff and Police Constable Easthope was, understandably, conspicuous by its absence.
Both counsel for the plaintiff and counsel for the Inspector and the Chief Constable struggled against these Standing Orders, admittedly known to the plaintiff and Police Constable Easthope and presumably known to the Inspector, by submitting that they were not applicable to this road accident and vehicle breakdown. But they only became inapplicable because of confusion in the control offices of the police beginning apparently with somebody in the Al Division office not knowing where the fire station was or that the southbound Queensway tunnel was closed for repairs and continuing with an assumption by the Inspector that the reported accident could not be in the northbound Queensway tunnel. There was no allegation of a general failure to have or to implement a safe control system, although the judge found no negligence on the part of the police authorities. But the breakdown of the system is relied on by Mr. Wright, for Mr. Johns, as providing evidence of improbable and unforeseeable ineptitude and the breaches of the standing orders are relied on as evidence of intervening negligence like, as Lord Justice Dunn suggested in argument, breaches of the Highway Code.
In my judgment the Standing Orders brought to the attention of police officers the dangers of an accident and emergency in the Queensway tunnel such as this, and reminded them of the need to take care in dealing with such an accident and emergency. They could and should have been complied with and if they had been the plaintiff would probably not have been injured. The plaintiff disobeyed them because ordered. to do so by the Inspector. I am not satisfied that he would have disobeyed them, in spite of the implications of his own evidence, unless he had been given the order. The Inspector may have had some justification for ordering or allowing the plaintiff and Police Constable Easthope to disobey them as well as for disobeying them himself. He may have had some justification for not putting it before the court from the witness-box. But without any explanation why he did not close the tunnel and what he meant by saying he had forgotten to close it, or why the plaintiff should say that if the Inspector had not in fact said it, he must, I think, be judged on the evidence which was given. That satisfies me that he was negligent in not closing the tunnel and in ordering or allowing his subordinates to do a very dangerous thing contrary to Standing Orders. In the circumstances the judge was right to disregard the plaintiff's omission to plead negligence in not closing the tunnel but wrong to attach any importance (if he did so) to the plaintiff's suing him and the Chief Constable as late as he did, and was wrong to dismiss the case against them.
Having assessed the character of the acts or omissions of the plaintiff and the Inspector, I accordingly reach the conclusion that they were causes of the plaintiff's accident and injuries for which the Inspector is in law liable but the plaintiff not. (See 12a).
Now comes the question the judge decided first: were they causes concurrent with the negligence of Mr. Johns or were they new causes which broke the chain of causation? "What is said is", said the judge putting Mr. Jones' case (at p.76F), "that the action of the police was so unforeseeable that it can no longer be said that the negligence of the first defendant (Mr. Johns) had any operative effect on subsequent events". After reviewing some of the relevant authorities he came to his conclusion (at p.84B) "that the injury to the plaintiff was the natural and probable result of the original negligence of Mr. Johns" and that consequently "his negligence was an operative cause of the plaintiff's injury".
In 1924 Mr. Justice Swift held that a woman who had injured her leg in trying to rescue her husband from falling glass could recover damages from those who were negligently repairing the skylight from which the glass fell on him and was not guilty of any contributory negligence (which would then have defeated her claim altogether). In so deciding he stated his opinion that "where a person sustains injury through a combination of acts, some done by the defendants and some by himself, it is for the jury to say, having regard to the whole of the circumstances, whether (1) the injury is the natural and probable consequence of the defendants' act, and (2) whether the plaintiff has been guilty of contributory negligence": Brandon v. Osborne Garrett & Company 1924 1 KB 548, 555. Following that decision Mr. Justice Finlay answered both those questions in favour of a policeman who was injured in stopping a runaway horse negligently left unattended on the highway: Haynes v. Harwood 1934 2 KB 240, 249. This court affirmed his decision in 1935 1 KB 146 and Lord Justice Greer found the decision of Mr. Justice Swift "very helpful" ib.156. At p.153 he said:
"The next point involves a consideration of the maxim "novus actus interveniens", but before dealing with the authorities I wish to point out that it is not true to say that where a plaintiff has suffered damage occasioned by a combination of the wrongful act of a defendant and some further conscious act by an intervening person, that of itself prevents the court coming to a conclusion in the plaintiff's favour if the accident was the natural and probable consequence of the wrongful act. That seems to me to be the necessary result of the decided cases which are accepted as authorities."
After reviewing the authorities he said this (at p.156):
"If what is relied upon as novus actus interveniens is the very kind of thing which is likely to happen if the want of care which is alleged takes place, the principle embodied in the maxim is no defence. The whole question is whether or not, to use the words of the leading case, Hadley v. Baxendale, the accident can be said to be 'the natural and probable result' of the breach of duty. If it is the very thing which ought to be anticipated by a man leaving his horses, or one of the things likely to arise as a consequence of his wrongful act, it is no defence; it is only a step in the way of proving that the damage is the result of the wrongful act.
There can be no doubt in this case that the damage was the result of the wrongful act in the sense of being one of the natural and probable consequences of the wrongful act. It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of the wrongful act".
What was said by Lord Justice Greer has been twice approved by judgments of this court in more recent cases. In Hyett v. Great Western Railway Company 1948 1 KB 45, 347 Lord Justice Tucker said that the first paragraph of the last passage which I have just read concisely summarizes the position with regard to novus actus interveniens. He added a citation from the judgment of Lord Justice Clerk in Steel v. Glasgow Iron & Steel Company Limited 1944 S.C. 237, 251.
"Taking a broad view of the evidence ..... my .......conclusion ..... is that ...... taking the whole circumstances into consideration, his intervention, looked at as a whole, was reasonable and justifiable and a natural and probable consequence of the defender 's negligence which ought reasonably to have been foreseen."
At the end of his judgment Lord Justice Tucker said at page 348:
"In the case of fire if a man is going to act at all, he must act swiftly, and, applying the tests laid down in the two cases referred to, I have reached the conclusion that the act of the plaintiff was not novus actus interveniens breaking the chain of causation, but was the kind of act which the railway company might reasonably have anticipated as likely to follow from their act of negligence in leaving the leaking paraffin on this siding."
In Baker & Another v. T. E. Hopkins & Son Limited 1959 1 WLR 966, 982 Lord Justice Willmer said of the same paragraph in Lord Justice Greer's judgment:
"In Hyett v. Great Western Railway Company these words of Lord Justice Greer were expressly approved and followed by Tucker L.J., with whose judgment the other two members of the court concurred. They must, therefore, be regarded as authoritative so far as this court is concerned. In my judgment, it was a natural and probable result of the wrongdoing of Mr. Hopkins that, in the likely event of someone being overcome by the carbon monoxide poisoning, a doctor would be called in, and that such doctor, having regard to the traditions of his profession, would, even at the risk of his own safety, descend the well for the purpose of attempting a rescue. Unless it can be shown, therefore, that Dr. Baker displayed such an unreasonable disregard for his own safety as to amount to negligence on his own part -with which suggestion I will presently deal - I do not think it can be said that his act constituted a novus actus interveniens."
I shall come back to what Lord Justice Willmer said about the allegation of negligence on the part of the doctor who died in this attempt to rescue. But I consider first whether there is any later or higher authority which would entitle or compel us to regard Lord Justice Greer's statement as no longer binding upon this court.
In Videan & Another v. British Transport Commission 1963 2 QB 650 this court had to consider the position of a stationmaster killed by a carelessly driven "trolley" in rescuing his child trespassing on a railway line. In reversing my decision on that part of his widow's claim Lord Denning, Master of the Rolls, said of Souness, the trolley driver, at p. 669:
"Foreseeability is necessary, but not foreseeability of the particular emergency that arose. Suffice it that he ought reasonably to foresee that, if he did not take care, some emergency or other might arise, and that someone or other might be impelled to expose himself to danger in order to effect a rescue ... Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it."
Pearson L.J. said, at pp. 682-683:
"It was foreseeable by Souness that if he drove his vehicle carelessly into the station he might imperil the stationmaster, as the stationmaster might well have some proper occasion for going on the track in the performance of his duties. For this purpose it is not necessary that the particular accident which happened should have been foreseeable. It is enough that it was foreseeable that some situation requiring the stationmaster to go on the line might arise, and if any such situation did arise, a careless approach to the station by Souness with his vehicle would be dangerous to the stationmaster."
In Chadwick v. British Railways Board [1967] 1 WLR 912, 921, in dealing with injury by shock to a rescuer who survived a better-known railway disaster, Waller J. said:
"The very fact of rescue must, in my view, involve unexpected things happening. I have already indicated, however, that in my view injury by shock was foreseeable from this accident and therefore it can be said that the risk was not different. It is not necessary that the defendants should be able to foresee every step which leads to the injury. In Hughes v. Lord Advocate [1963] AC 837, the way in which the accident happened was said to be unforeseeable, but the House of Lords held that as the danger was foreseeable the defendants were liable, although the steps by which the danger occurred were unforeseeable."
I conclude from these rescue cases that the original tortfeasor, whose negligence created the danger which invites rescuers, will be responsible for injury and damage which are the natural and probable results of the wrongful act, and that those results include injury and damage from accidents of a kind or class which might normally be foreseen or contemplated, though the particular accidents could not be expected. There is no difference between what is natural and probable and what is reasonably foreseeable either in the act of rescue or in the steps taken to accomplish it. If it is natural and probable that someone will come to the rescue it is also foreseeable; if it is foreseeable that in doing so he may take a particular kind of risk or cope with the emergency in ways not precisely foreseeable, his acts will be natural and probable consequences of the wrongful act which created the emergency.
Those alternative formulations of the jury question which has to be decided when an emergency is followed by intervention may seem to draw little distinction between damage resulting from a tort and damage resulting from a breach of contract, or between the first and second limbs of the well-known rule in Hadley v. Baxendale (1854) 9 Exch.341. For this purpose, the purpose of discovering whether 'the intervention is a new cause which breaks the chain of causation, and is not a cause concurrent with the act which preceded it, there may not be much difference. In The Oropesa P.32, 39 Lord Wright, sitting in this court, said:
"To break the chain of causation it must be shown that there is something which I will call ultroneous, something unwarrantable, a new cause which disturbs the sequence of events, something which can be described as either unreasonable or extraneous or extrinsic. I doubt whether the law can be stated more precisely than that".
He went on to quote from the speech of Lord Haldane in Canadian Pacific Railway Company v. Kelvin Shipping Company (1927) 138 L.T., 369, 370 including this passage:
"What those in charge of the injured ship do to save it, may be mistaken, but if they do whatever they do reasonably, although unsuccessfully, their mistaken judgment may be a natural consequence for which the offending ship is responsible, just as much as is any physical occurrence. Reasonable human conduct is part of the ordinary course of things which extends to the reasonable conduct of those who have sustained the damage and who are seeking to save further loss."
All the authorities so far cited preceded the first Wagon Mound case, 1961 AC 388, except Videan and Chadwick. In The Wagon Mound the judgment of the Privy Council given by Viscount Simonds abolished the rule in Re Polemis 1921 3 KB 560 because it ignored the connection between the probable and the foreseeable.
"It is a principle of civil liability", (said Viscount Simonds at p.422) "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.
This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordships, be harmonised with little difficulty with the single exception of the so-called rule in Polemis. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he oughtn't to have foreseen them. Thus it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or, alternatively, on the ground that it was natural or necessary or probable. The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question arises to which the wrong answer was given in Polemis. For, if some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible - and all are agreed that some limitation there must be - why should that test (reasonable foreseeability) be rejected which, since he is judged by what the reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the "direct" consequence) be substituted which leads to no-where but the never-ending and insoluble problems of causation. "The lawyer", said Sir Frederick Pollock, "cannot afford to adventure himself with philosophere in the logical and metaphysical controversies that beset the idea of cause." Yet this is just what he has most unfortunately done and must continue to do if the rule in Polemis is to prevail. A conspicuous example occurs when the actor seeks to escape liability on the ground that the 'chain of causation' is broken by a 'nova causa' or 'novus actus interveniens'."
Their Lordships (who included Lord Reid) had been referred (at pp.402-3) to novus actus interveniens and the cases (inter alia) of Haynes v. Harwood and The Oropesa, and I take the last passage of their judgment to affirm what is implicit in Lord Justice Greer's judgment in Haynes v. Harwood, the application of the reasonable foreseeability test to damage following acts intervening between tort and damage. That is confirmed by a later passage in the judgment at p.426:
"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 was, however, suggested by Mr. Wright, for the defendant Johns, that the speech of Lord Reid in Dorset Yacht Company v. Home Office 1970 AC 1004, 1025 had developed or altered the law and made likelihood, not foreseeability, the test whether human action breaks the chain of causation. In the course of considering whether the Home Office were liable to pay damages to owners of a yacht damaged by Borstal boys carelessly allowed to reach and damage it while trying to escape from Brownsea Island, Lord Reid referred to The Wagon Mound and in a passage quoted in full by the judge said thus:
"Even so it is said that the respondents must fail because there is a general principle that no person can be responsible for the acts of another who is not his servant or acting on his behalf. But here the ground of liability is not responsibility for the acts of the escaping trainees; it is liability for damage caused by the carelessness of these officers in the knowledge that their carelessness would probably result in the trainees causing damage of this kind. So the question is really one of remoteness of damage. And I must consider to what extent the law regards the acts of another person as breaking the chain of causation between the defendants' carelessness and the damage to the plaintiff.
There is an obvious difference between a case where all the links between the carelessness and the damage are inanimate so that, looking back after the event, it can be seen that the damage was in fact the inevitable result of the careless act or omission, and a case where one of the links is some human action. In the former case the damage was in fact caused by the careless conduct, however unforeseeable it may have been at the time that anything like this would happen. At one time the law was that unforeseeability was no defence. But the law now is that there is no liability unless the damage was of a kind which was foreseeable.
On the other hand, if human action (other than an instinctive reaction) is one of the links in the chain, it cannot be said that, looking back, the damage was the inevitable result of the careless conduct. No one in practice accepts the possible philosophic view that everything that happens was predetermined. Yet it has never been the law that the intervention of human action always prevents the ultimate damage from being regarded as having been caused by the original carelessness. The convenient phrase novus actus interveniens denotes those cases where such action is regarded as breaking the chain and preventing the damage from being held to be caused by the careless conduct. But every day there are many cases where, although one of the connecting links is deliberate human action, the law has no difficulty in holding that the defendant's conduct caused the plaintiff loss."
Then between quotations from the judgments of Lord Wright in The Oropesa and of Lord Justice Greer in Haynes v. Harwood he asked the question:
"What, then, is the dividing line? Is it foreseeability or is it such a degree of probability as warrants the conclusion that the intervening human conduct was the natural and probable result of what preceded it? There is a world of difference between the two. If I buy a ticket in a lottery or enter a football pool it is foreseeable that I may win a very large prize - some competitor must win it. But, whatever hopes gamblers may entertain, no one could say that winning such a prize was a natural and probable result of entering such a competition."
But his later quotations from Scott's Trustees v. Moss (1889) 17 R. (Ct. of Sess.) 32 and the passage which follows them (at p.1030 B) make it plain that he was (as the judge said) contrasting the very likely with a mere foreseeable possibility. That passage, also quoted by the judge, is this:
"These cases show that, where human action forms one of the links between the original wrongdoing of the defendant and the loss suffered by the plaintiff, that action must at least have been something very likely to happen if it is not to be regarded as novus actus interveniens breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening human action can more properly be regarded as a new cause than as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think it can matter whether that action was innocent or tortious or criminal. Unfortunately tortious or criminal action by a third party is often the 'very kind of thing' which is likely to happen as a result of the wrongful or careless act of the defendant. And in the present case, on the facts which we must assume at this stage, I think that the taking of a boat by the escaping trainees and their unskilful navigation leading to damage to another vessel were the very kind of thing that these borstal officers ought to have seen to be likely".
There were other occasions on which Lord Reid occupied himself with the outside chance and possible liability for it as foreseeable though so remote as to require no precautions to guard against it and as to justify the reasonable man in neglecting it: e.g. in The Wagon Mound (No.2) 1967 1 AC.617 642 and C. Czarnikow Limited v. Koufos 1969 1 AC 350, 384-5, 390. But though his consideration of degrees of foreseeability and possibility led him in that last case to object to the use of such phrases as 'a serious possibility', or 'a real danger' or 'on the cards', in discussing damages for breach of contract, there is nothing novel in his judgment in the Dorset Yacht Company case except perhaps his insistence on human actions being less easily foreseeable or less likely effects of carelessness than a sequence of natural 'inanimate' reactions. (This may need reconsideration in the light of the very recent decision of this court in Lamb v. Camden Borough Council reported only in The Times Newspaper of 19th March 1981). Nor do the other speeches of their Lordships depart from The Wagon Mound 1961 AC 388 in applying the test of reasonable foreseeability both to the persons to whom duty is owed and to the damage resulting from breach of the duty owed them: they held the risk of the plaintiffs' yacht being damaged by the Borstal inmates to be 'glaringly obvious' or 'manifest and obvious' (per Lord Morris of Borth-y-Gest at p.1033 D and 1035 D), 'reasonably foreseeable' (per Viscount Dilhorne, not dissenting on this point, at p.1043 and per Lord Diplock at p.1071 E), 'eminently foreseeable as likely to happen' (per Lord Pearson at p.1053 A, combining the two concepts which Lord Justice Greer had not distinguished in Haynes v. Harwood and which Viscount Simonds had stated to be largely coterminous in The Wagon Mound).
In my judgment, therefore, we are still bound to follow Lord Justice Greer's approach in Haynes v. Harwood, getting what assistance we can from the epithets used by Lord Wright to distinguish a new cause breaking the chain from another link in the chain.
In this connection I have already cited Lord Denning Master of the Roll's reference in Videan's case to "wanton interference". This may have been derived from the statement of Mr. Justice Cardozo in a passage of his judgment in Wagner v. International Railway Company (1921) 232 N.Y. Rep. 176, 180 frequently quoted, for instance, by Lord Justice Willmer in Baker's case at p.981, that "The risk of rescue, if it be not wanton, is born of the occasion". It finds another echo in the more cautious opinion of Lord Justice Morris in the same case (at p.977):
"....f a rescuer.... acts with a wanton disregard of his own safety it might be that in some circumstances it might be held that any injury to him was not the result of the negligence that caused the situation of danger."
See also what Lord Justice Willmer said in the same case (at p.484) of acts "so foolhardy as to amount to a wholly unreasonable disregard for his own safety"; and what Mr. Justice Barry had said in the judgment which this court was affirming: reported 1958 1 WLR 993 at p.1003.
At one end of the scale is wanton interference or disregard for the rescuer's own safety, which will break the chain? at the other, reasonable conduct which - according to what Lord Haldane said in the Canadian Pacific Railway Company case (and what Lord Justice Maugham said in Haynes v. Harwood 1935 1 KB at p.162) - will not. But there may be many intervening actions which cannot be characterized as either reasonable reaction or wanton intermeddling and recklessness. In this intermediate category come Lord Reid's tortious or criminal acts (wanton enough in one sense), the latter illustrated by the Dorset Yacht Company case, the former by such cases of negligent driving into an obstruction negligently left upon the highway as Rouse v. Squires 1973 QB 889, where Lord Justice Cairns (at p.898C) regarded "those who deliberately and recklessley drive into the obstruction' as disqualified by their own new act from recovering damages from those responsible for the obstruction. Of those who expose themselves to the danger of being injured by the negligence of others, rescuers are of course in a special category. For they will come to the rescue as often by deliberate and courageous choice as by instinctive reaction and they are unlikely to commit any crime or tort in so doing except the tort of failing to take reasonable care, which might be described as recklessness, for the safety of persons likely to be endangered by their actions, including of course themselves.
That brings me to the peculiarity of the present case, or rather to two peculiarities. One is that the action which injured the plaintiff might well have injured others such as Mr. Cotton. The other is that between Mr. Johns' negligent action and the plaintiff's own injury were interposed not merely his own decision to ride the wrong way along the tunnel hugging the wall of lane 1 when P.C. Easthope was riding ahead hugging the wall of lane 2, but a number of other acts and omissions for which he was not responsible, namely, what was submitted to be "the series of acts of ineptitude on the part of the police" in the learned judge's judgment:
"He submits that the first such act of ineptitude was failing to ascertain from Mr. Williams precisely where the collision was. The next one was failing to close the tunnel before going into it in accordance with the standing orders. Having failed to close the tunnel he says it was inept to send the police officers back instead of using the telephone or sending them forward to radio for more assistance. There were, he says, clear breaches of the standing orders - order 3, order 4 and order 8 - and he says it is not foreseeable as likely to happen that police officers will ignore all those standing orders and all these things will happen."
The judge dealt with that submission in this way.
"I think that is looking at the matter from rather too narrow a point of view. It is not suggested, of course, that the first defendant was aware of these standing orders or had any idea what was in them. The issue is whether a motorist driving in that tunnel ought to have foreseen as likely to happen that if he was negligent and created an emergency other members of the public, and in particular police officers, would have to take risks either to rescue him or to protect other motorists. As was said in the two British Transport Commission rescue cases, in particular Mr. Justice Waller's, the very fact of rescue must in any view involve unexpected things happening. Although I do not say that a motorist driving through a tunnel such as this should reasonably foresee that if he is negligent a police officer may drive the wrong way out of the tunnel, nevertheless in my view the motorist ought to foresee that if he is negligent and creates an emergency other people are likely to be put at risk and other people, particularly police officers, fire officers and ambulance officers, are likely to take deliberate risks, as I say, either to rescue him and his passengers or to protect other members of the public. In my view the action of the police officers was the very sort of action which is governed by that principle. It cannot be said, looked at in those general terms, that it was something so unexpected, so unforeseeable as not to be something likely to flow from the original negligence of Mr. Johns. In my view then the injury to the plaintiff was the natural and probable result or a natural and probable result of the original negligence of Mr. Johns. It follows that in my view his negligence was an operative cause of the plaintiff's injury."
It is plain from that clear and persuasive expression of the judge's reasoned opinion that he was asking himself the right question and applying the right law. He was, I think, rightly taking the law to be that, in considering the effects of carelessness, as in considering the duty to take care, the test is reasonable foreseeability, which I understand to mean foreseeability of something of the same sort being likely to happen, as against its being a mere possibility which would never occur to the mind of a reasonable man or, if it did, would be neglected as too remote to require precautions or to impose responsibility: cp. Lord Domedin's judgment in Pardon v. Harcourt-Rivington (1932) 146 L.T. 391, 392. The question to be asked is accordingly whether that whole sequence of events is a natural and probable consequence of Mr. Johns' negligence and a reasonably foreseeable result of it. In answering the question it is helpful but not decisive to consider which of these events were deliberate choices to do positive acts and which were mere omissions or failures to act; which acts and omissions were innocent mistakes or miscalculations and which were negligent having regard to the pressures and the gravity of the emergency and the need to act quickly. Negligent conduct is more likely to break the chain of causation than conduct which is not: positive acts will more easily constitute new causes than inaction. Mistakes and mischances are to be expected when human beings however well trained, have to cope with a crisis: what exactly they will be cannot be predicted, but if those which occur are natural the wrongdoer cannot, I think, escape responsibility for them and their consequences simply by calling them improbable or unforeseeable. He must accept the risk of some unexpected mischances: see Hyett's case per Lord Justice Willmer at p.489 and Chadwick's case per Mr. Justice Waller at p.921. But what mischances?
The answer to this difficult question must be dictated by common sense rather than logic on the facts and circumstances of each case. In this case it must be answered in the light of the true view to be taken of the events leading up to Inspector Sommerville's acts - or rather his act and omission -and the plaintiff's - and P.C. Easthope's - acts, I have expressed my view of all these links in the chain leading from Mr. Johns' negligence to the plaintiff's collision with Mr. Cotton. I have decided, respectfully disagreeing with the judge, that the Inspector was negligent in failing to close the tunnel and, respectfully agreeing with the judge, that the plaintiff was not negligent in riding the wrong way after being ordered to do so by the Inspector or in deciding on the spur of the moment to ride his motor cycle close to the wall in lane 1.
I am also of the opinion that the Inspector's negligence was not a concurrent cause running with Mr. Johns' negligence, but a new cause disturbing the sequence of events leading from Mr. Johns' overturning of his car to the plaintiff's accident and interrupting the effect of it. This would, I think, have been so had the Inspector's negligence stood alone. Coming as it did on top of the muddle and misunderstanding of Mr. Williams' telephone call and followed by the Inspector's order to remedy his own negligence by a dangerous manoeuvre, it was the real cause of the plaintiff's injury and made that injury too remote from Mr. Johns' wrongdoing to be a consequence of it.
In the long run the question is, as Lord Reid said in the Dorset Yacht Company case, one of remoteness of damage, to be answered as has so often been stated, not by the logic of philosophers but by the common sense of plain men: compare the very recent decision of this court in Compania Financiers "Soleada" S.A. v. Hamoor Tanker Corporation Inc. 1981 1 WLR 274 disallowing an item of damage indifferently as too unreasonable or too unforeseeable or too remote to be included in damages for breach of contract. In my judgment, too much happened here, too much went wrong, the chapter of accidents and mistakes was too long and varied, to impose on Mr. Johns liability for what happened to the plaintiff in discharging his duty as a police officer, although it would not have happened had not Mr. Johns negligently overturned his car. The ordinary course of things took an extra-ordinary course. The length and the irregularities of the line leading from the first accident to the second have no parallel in the reported rescue cases, in all of which the plaintiff succeeded in establishing the original wrongdoer's liability. It was natural, it was probable, it was foreseeable, it was indeed certain, that the police would come to the overturned car and control the tunnel traffic. It was also natural and probable and foreseeable that some steps would be taken in controlling the traffic and clearing the tunnel and some things be done that might be more courageous than sensible. The reasonable hypothetical observer would anticipate some human errors, some forms of what might be called folly, perhaps even from trained police officers, and some unusual and unexpected accidents in the course of their rescue' duties. But would he anticipate such a result as this from so many errors as these, so many departures from the common sense procedure prescribed by the Standing Orders for just such an emergency as this? I can see that it is a question on which the opinions of plain men and women in the jury-box and judges who have now to perform their function may reasonably differ. I can only say that in my opinion, the judge's decision carries Mr. Johns' responsibility too far.: in trying to be fair to the Inspector the judge was unfair to Mr. Johns and gave the wrong answer to the first jury question put by Mr. Justice Swift in Brandon's case.
I would for these reasons allow the appeal, set aside the judgment for the plaintiff against the first defendant and the judgment for the third and fourth defendants against the plaintiff, and give judgment for the plaintiff against the third and fourth defendants for damages to be assessed (if not agreed) on the basis of full liability.
LORD JUSTICE DUNN: I agree with the judgment of my Lord and do not wish to add anything.
SIR DAVID CAIRNS: I also agree and I add only two very short footnotes.
It was not suggested at the trial or on the appeal that the plaintiff ought to have closed the tunnel as soon as he arrived at the south end of it. He was apparently "the first officer on the scene", but he may have had some reason other than forgetfulness for not complying with paragraph 4 of the Standing Orders. It would clearly be wrong for this court to attribute negligence to him in this respect.
Secondly, "if the Inspector was negligent in the ways in which I, like my Lord, would hold him to have been, his negligence was clearly one cause of the plaintiff's injuries. It could not be contended on his behalf that the plaintiff's acting in compliance with his orders constituted a break in the chain of causation.
Appeal allowed with costs. Application for leave to appeal to the House of Lords refused.
