THE MASTER OP THE ROLLS:
THE FACTS
Off Hampstead Heath there is a terrace of houses of quality built in the early 19th century. They are called the Villas on the Heath. One of them belonged to Mrs. Lamb. In 1972 she went to New York and let the house to a tenant. Whilst she was away the local council decided to replace the sewer in the road next to the house. In October 1973 they dug a deep trench a few feet from the front wall of the house. In doing it, they broke into a water main. The water burst out and washed out soil from the foundations of the house. There was subsidence. The walls cracked. It became unsafe to live in. The tenant moved out. Mrs. Lamb, still in America, got her father, her solicitors and her agents to look after her interests. In the summer of 1974 she herself came back for six weeks and made preliminary arrangements for repairs to be done. The work was so extensive that she had her furniture removed and put into store in Harrods' repository. Then she went back to America.
The house - being then left unoccupied and unfurnished -was a sitting target for squatters. In October 1974 they invaded it. Mrs. Lamb returned for three weeks at Christmas. She found the squatters still there. She was appalled at the state of the place. Her solicitors issued a summons under order 113 and managed to get them out. After those squatters had gone, her father got some building labourers to put up a few boards at a cost of £10. The neighbours helped too.
But a few months later, in the summer of 1975, there was a second invasion of squatters. A shifting population. As some went out, others came in. Mrs. Lamb's agents did what they could to get them out. The electricity and gas were cut off. But to no avail. The squatters pulled off the panelling for fuel. They ripped out the central heating and other installations. They stole them. Eventually the police arrested the squatters on a charge of larceny. Whilst they were at the police station, Mrs. Lamb's agents got in and made the premises secure with elaborate reinforced defences. That was in May 1977. The end of the squatters.
Then at last the work of repair was started. It was finished in 1979. The house w as put in first-class order and let once again. Mrs. Lamb then sent the bill in to the council. She said the expense was all due to their negligence or to a nuisance created by them in the course of their work on the sewer. Eventually the council admitted liability for nuisance. The damages were left to an official referee. Over £50,000 was expense due to the subsidence. But nearly £30,000 was the cost of repairing the malicious damage done by the squatters and their thefts.
LORD REID'S TEST
On those facts this point of law arises: Can Mrs. Lamb recover from the council the £30,000 due to the squatters' damage? The official referee (His Honour Judge Edgar Fay, Q.C.) found that it was too remote and was not recoverable. He cited the speech of Lord Reid in Dorset Yacht Go. v. Home Office (1970) AC 1004, especially the passage at page 1030 where Lord Reid said:
"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 that 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".
In our present case the judge applied that passage in these words:
"I would feel disposed, if it were relevant, to hold that squatting was at the material time a reasonably foreseeable risk, but I am quite satisfied that no one familiar with the house and the locality would at any time between the accident in the autumn of 1973 and the first invasion about a year later have said that squatting was likely. It follows that in my judgment the extensive damage caused by the squatters is too remote and cannot form part of the damage payable by the defendants".
WAS LORD REID RIGHT OR WRONG?
Mr. Blom-Cooper (who was himself counsel in the Dorset Yacht case) submitted that Lord Reid was in error in that passage. For once Homer nodded. Presumptuous as it is, I agree.
In the first place the saying of Lord Reid was an obiter dictum. The Dorset Yacht case came up for decision on a preliminary issue. It was whether the Home Office "owed any duty of care to the plaintiffs (the owners of the yacht) capable of giving rise to a liability in damages" (page 1008E). So the question was only as to the duty of care. It was not as to remoteness of damage or as to causation.
Yet, as I have often said, the three questions - duty, causation and remoteness - run continually into one another. So it was natural for the Law Lords to run them together. As I read the speeches they were much concerned to limit the extent of the liability of the Home Office. But they did it in different ways. Three of them did it by restricting the range of persons to whom the duty was owed. Lord Morris of Borth-y-Gest said the duty was owed "to the owners of the nearby yachts" (page 1034D). Lord Pearson said that the duty was owed to the boatowners. He said that "the plaintiffs as boat owner s were in law 'neighbours' of the defendants" (page 1054P). Lord Diplock said that the duty of the Borstal officer was "owed only to persons whom he could reasonably foresee had property situate in the vicinity of the place of detention of the detainee which the detainee was likely to steal or to appropriate and damage in the course of eluding immediate pursuit and recapture" (pages 1070H-1071A).
Now I would test the rulings of the Law Lords by asking: Suppose that, by some negligence of the staff, a Borstal boy -or an adult prisoner - escapes over the wall - or from a working party. It is not only reasonably foreseeable - it is, as we all know, very likely - that he will steal a car in the immediate vicinity. He will then drive many miles, abandon the car, break into a house and steal clothes, get a lift in a lorry, and continue his depredations. On Lord Diplock's test -and I fancy Lord Morris of Borth-y-Gest and Lord Pearson also -the Home Office would owe a duty of care to the owner of the stolen car but to none of the others who suffered damage. So the owner of the car could sue, but the others could not.
But on Lord Reid's test of "very likely" to happen, the Home Office would be liable not only to the owner of the stolen car, but also to all the others who suffered damage: because it was very likely to happen.
That illustration convinces me that Lord Reid's test was wrong. If it were adopted, it would extend the liability of the Home Office beyond all reason. The Home Office should not be liable for the depredations of escaped convicts. The householders should recover for the damage - not against the Home Office but on their insurance policies. The insurers should not by subrogation be able to pass it on to the Home Office.
Another reason why I would reject Lord Reid's test is that I find it difficult to reconcile with the decision in Stansbie v. Troman (1948) 2 KB 48. The decorator was held to be under a duty of care to the householder - to lock the door - but no one could suggest that it was very likely that a thief would walk in and steal the diamond bracelet. Lord Justice Tucker said that the decorator was liable because it was "as a direct result of his negligence that the thief entered by the front door". He was obviously applying Re Polemis (1921) 3 KB 560, which had not then been overruled. If the decision in Stansbie v. Troman is to be justified nowadays, it can only be because it was reasonably foreseeable that a thief might walk in - not that it was at all likely.
The third reason is that I find the test -of "very likely" very difficult to reconcile with the Wagon Mound cases which were summarised by Lord Upjohn in Gzarnikow v. Koufos (1969) 1 AC at page 4220:
"The tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach, however unlikely it may be, unless it can be brushed aside as far-fetched, see Wagon Mound (no. 2) (1967) A.C. at p.643G".
THE ALTERNATIVE TEST
If Lord Reid's test is wrong, what is the alternative test? Logically, I suppose that liability and compensation should go hand in hand. If reasonable foresight is the criterion in negligence, so also it should be in remoteness of damage. That was the test for which Mr. Blom-Cooper, Q.C. contended. He supported it by reference to the case in New South Wales of Chomentowski v. Red Garter Restaurant (1970) N.S.W. 1023, where a head waiter was hit over the head by a robber. The management were negligent in. not taking sufficient precautions. They were held liable because the attack might reasonably have been foreseen, though not very likely.
To my mind that alternative test is also not acceptable. It would extend the range of compensation far too widely. Take the Chomentowski case itself. In England the head waiter would be able to get full compensation for his injuries from the Compensation Board for victims of violent crimes. That would be preferable to making the manager liable for his pardonable want of foresight. Take next the illustration I took from the Dorset Yacht case of the criminal who escapes (owing to the negligence of the prison staff) and breaks into people's houses. Although it could reasonably be foreseen, the Home Office are not liable for his depredations„
Take next the recent case in this court of the wife who suffers nervous shock by being told of the motor accident in which her family were dead or dying. It could reasonably be foreseen. But the negligent driver is not liable in damages for her shock.
THE TRUTH
The truth is that all these three - duty, remoteness and causation - are all devices by which the courts limit the range of liability for negligence or nuisance. As I said recently in the Borag case (Compania Financiers v. Hamoor Tanker Corporation) (1981) 1 WLR 274 at page 281E:
"It is not every consequence of a wrongful act which is the subject of compensation. The law has to draw a line somewhere".
Sometimes it is done by limiting the range of the persons to whom duty is owed. Sometimes it is done by saying that there is a break in the chain of causation. At other times it is done by saying that the consequence is too remote to be a head of damage. All these devices are useful in their way. But ultimately it is a question of policy for the judges to decide. I venture to repeat what I said in Dutton v. Bognor Regis U.D.C.. (1972) 1 QB 373 at page 397:
"It seems to me that it is a question of policy which we, as judges, have to decide. The time has come when, in cases of new import, we should decide them according to the reason of the thing.
"In previous times, when faced with a new problem, the judges have not openly asked themselves the question: What is the best policy for- the law to adopt? But the question has always been there in the background. It has been concealed behind such questions as: Was the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct or indirect? Was it foreseeable or not? Was it too remote? And so forth.
"Nowadays we direct ourselves to considerations of policy",
When Putt on Vs. case reached the House of Lords by way of Anns v. Merton (1978) AC 728, our decision was upheld, This approach - on grounds of policy - was adopted by the Court of Appeal in the recent case about nervous shock, McLaughlin v. O'Brien, Docker & Sons & ors. Liability for nervous shock is limited to those at or near the highway at the time of the accident. It does not extend to those further away.
A QUESTION OP POLICY
Return to the present case.
Looking at the question as one of policy, I ask myself: Whose job was it to do something to keep out the squatters? And, if they got in, to evict them? To my mind the answer is clear. It was the job of the owner of the house, Mrs. Lamb, through her agents. That is how everyone in the case regarded it. It has never been suggested in the pleadings or elsewhere that it was the job of the council. No one ever wrote to the council asking them to do it. The council were not in occupation of the house. They had no right to enter it. All they had done w as to break the water main outside and cause the subsidence. After they had left the site, it was Mrs. Lamb herself who paved the way for the squatters by moving out all her furniture and leaving the house unoccupied and unfurnished. There was then, if not before - on the judge's findings - a reasonably foreseeable risk that squatters might enter. She ought to have taken steps to guard against it. She says that she locked the doors and pulled the shutters. That turned out to be insufficient, but it was her responsibility to do more. At any rate, when the squatters did get in on the first occasion in 1974, it was then her agents who acted on her behalf. They got the squatters out. Then, at any rate, Mrs. Lamb or her agents ought to have done something effective. But they only put up a few boards at a cost of £10. Then there was the second invasion in 1975. Then her agents did recognise her responsibility. They did what they could to get the squatters out. They eventually succeeded. But no one ever suggested throughout that it was the responsibility of the council.
In her evidence Mrs. Lamb suggested that she had not the money to do more. I do not think the judge accepted the suggestion. Her agents could well have made the house secure for a modest sum which was well within her capabilities.
On broader grounds of policy, I would add this: The criminal acts here - malicious damage and theft - are usually covered by insurance. By this means the risk of loss is spread throughout the community. It does not fall too heavily on one pair of shoulders alone. The insurers take the premium to cover just this sort of risk and should not be allowed, by subrogation, to pass it on to others. Just as in Stansbie v. Troman, the householder was no doubt insured against theft of the diamond bracelet. She should have recovered its value from the insurers and not from the decorator whose only fault was that he forgot to put the latch down. It might be decided differently today. It is commonplace nowadays for the courts, when considering policy, to take insurance into account. It played a prominent part in Photo Productions v. Securicor (1980) AC 827. The House of Lords clearly thought that the risk of fire should be borne by the fire insurers who had received the full premium for fire risk - and not by Securicor's insurers, who had only received a tiny premium. That, too, was a policy decision. It was a direct consequence of the Unfair Contract Terms Act 1977. Before that Act, the doctrine of fundamental breach was an essential part of our legal system: so as to protect the small consumer from unjust exemption clauses.
So here, it seems to me, that, if Mrs. Lamb was insured against damage to the house and theft, the insurers should pay the loss. If she was not insured, that is her misfortune.
Taking all these policy matters into account, I think the council are not liable for the acts of these squatters,
I would dismiss this appeal.
LORD JUSTICE OLIVER: The relevant facts have already been recited in the judgment of my Lord and were never seriously in dispute. At the time when the nuisance occurred the appellant was living in the United States and the house had been let to some tenants. They continued to live in the house for a few months after the disaster but moved out in January 1974 thinking, no doubt correctly, that the house was no longer safe for occupation. Fortunately, although the house was unoccupied, the appellant's furniture remained intact and in July 1974 she returned to England in order, among other things, to cope with the emergency, Being then of the view that work on restoring the house would be undertaken in the near future, she removed her furniture into store and the house was from then on empty and unoccupied until it was invaded by squatters in the latter part of 1974. The evidence of one of the neighbouring householders was that the house was well protected. It had shutters, was well locked and bolted and had secure glass. It was not, he said, particularly vulnerable compared with most houses.
When the squatters broke in the neighbours communicated with the appellant and she, through her then solicitors, started proceedings to evict them under order 133 of the Rule s of the Supreme Court. Those proceedings were duly served but it proved unnecessary to obtain an order since the squatters left in January 1975 of their own accord. Thereafter the house was resecured, although perhaps not very effectively. The appellant's father, who was looking after her affairs in England - she having returned to New York before the squatters arrived - arranged with some builders working nearby to board up some of the lower windows with hardboard nailed to the frames and some further boarding was affixed by neighbours, who were naturally concerned at the arrival of squatters in their midst. These measure proved ineffective and some time in the spring or summer of 1975 a fresh lot of squatters broke in. Thereafter until May of 1977 the house was occupied by a shifting population of trespassers. No proceedings were taken to evict them, but an attempt was made to encourage them to leave by cutting off services. The only result of that was that they took retaliatory action by stripping everything in the house and either selling it or burning it. lo doubt that contributed substantially to the staggering figure of £36,000 for making good the damage caused. Finally in May 1977 the appellant's agents managed to secure possession of the house by a combined operation with the local police and thereafter most elaborate precautions were taken to prevent further break-in until the builders arrived on the scene and started the work of repair. Even these do not appear to have been 100 per cent successful but at least there was no further occupation by squatters.
We are not concerned on this appeal with any question of contributory negligence or failure by the appellant to mitigate. These were matters which were canvassed extensively before the official referee although the only case pleaded was that the damage suffered from squatters was too remote. In the course of his judgment he posed a number of questions with regard to the appellant's responsibility in leaving a house empty, but he felt it unnecessary to answer them because of the view which he took on the question of remoteness. In the result there are no findings of fact on these matters upon which this court can act if it takes a contrary view on the question of remoteness. That therefore is and remains the only question -is the damage which was undoubtedly caused as a result of the successive incursions of squatters into this empty house damage for which the respondents, as the authors of the condition of the house, must be held responsible or is it an alien misfortune which the appellant must bear herself as one of the uncompensatable hazards of living in a modern society?
The appellant's case is a very simple one. She says that here was a house rendered unfit for occupation by the fault of the respondents. It needed little imagination to foresee that if a tortfeasor causes such serious damage to a house that it can no longer be occupied that house must inevitably be vacated and cleared and will remain empty for such period as is necessary for the necessary remedial work to be identified, specified, financed and undertaken. That period will almost inevitably be lengthened in the case of very serious damage such as occurred here - damage which in fact exceeded the value of the original building - if the tortfeasor persists, as the respondent did, in resisting any liability at all right up to the last moment. If, at the time when this disaster occurred, you left a house empty for any length of time in the area of Greater London - at any rate empty without a "For Sale" board outside it - the most likely thing in the world was that it would be entered by casual trespassers of one sort or another and probably by regular squatters, and it is notorious that squatters cause just the sort of damage that was caused here. Thus, the argument proceeds, the precise type of damage which has in fact occurred, although not perhaps the severity of it, was a reasonably foreseeable result of the respondent's original wrongful act.
The respondents, on the other hand, argue that although damage which is not reasonably foreseeable is too remote, foreseeability is only one ingredient of remoteness. It is necessary, so it is argued, to demonstrate in addition a further ingredient of a sufficient nexus between the wrongful act and the injury sustained. What is referred to as the "chain of causation" may be broken and the most common example of a break in the chain is the intervening act of a third person over whom the tortfeasor can exercise no control. Such an intervention does not always break the chain and, in particular, it will not do so where the very breach of duty relied on is the duty of the defendant to prevent the sort of intervention which has occurred or where, at the date of the commission of the tortious act, the act of the third party which has given rise to the damage was likely to occur (as opposed to being merely foreseeable).
It was this argument which appealed to the learned official referee. He based himself upon the analysis contained in the speech of Lord Reid in the case of Dorset Yacht Company v. Home Office (1970) AC 1004 at pages 1027-1030 and he concluded that, in cases where what has brought about the damage complained of is the free act of an independent third party, whether that act be innocent or tortious, it is not the enough to demonstrate that the act of the third party was reasonably foreseeable. It is necessary to go further and to show that the act was "likely" to occur. In the light of his findings of fact, he held that the damage was too remote, but in making his findings of fact he had in mind the test which he had just propounded. No complaint can be made about that if the test is right, but there is a considerable difficulty if the test in the light of which the findings are made is not the right test.
The only relevant evidence on this aspect of the case before the learned official referee was that of two neighbours of the appellant which was to the effect that they were aware that there had been problems with squatters in Hampstead, in particular in the Maiden Road area about a, mile away. That was, however, an area of a very different character from that in which the appellant's house was situate and there had been no previous experience of squatters in the Vale of Health. The first witness, Mr. Landell Mills, added: "I think we were all very shocked and surprised when it happened".
What the learned official referee found was this: "There had been no squatters before this case in the better class parts of Hampstead. In the light of this evidence I think I would feel disposed, if it were relevant, to hold that squatting was at the material time a reasonably foreseeable risk, but I am quite satisfied that no one familiar with the house and the locality would at any time between the accident in the autumn of 1973 and the first invasion about a year later have said that squatting was likely. It follows that in my judgment the extensive damage caused by the squatters is too remote and cannot form part of the damage payable by the defendants".
The difficulty about this is that if, as Mr. Blom-Cooper submits, the test of likelihood was a wrong test, then there is no clear finding about whether the risk was a reasonably foreseeable one, for the learned official referee merely states what he thinks that he would have been disposed to find if, contrary to the view which he took, it had been relevant to make a finding on the point. But leaving this difficulty aside for the moment, was the test the right one? I think that it was or that, if it was not, the error lay not in qualifying the general test of foreseeability but in not qualifying sufficiently.
Speaking for myself, I am not able to accept Mr. Laughland's submission in the form in which he put it - namely that reasonable foreseeability is but one ingredient in a composite test of remoteness which involves a further ingredient which he has described as "nexus". This seems to me to be restoring that very fallacy which was exemplified in Polemis (1921) 3 KB 560 and was so decisively rejected in the Wagon Mound (No. 2) (1967) 1 AC 617.' That case established that the test of causation is reasonable foreseeability and I can find no room for the suggestion that even though a particular result may be reasonably foreseen as the consequence of an act yet the result may be too remote a consequence because of a lack of "nexus". Nexus, after all, means only "connection" and it must be comprehended in the very concept of foreseeability itself. If there is, as a matter of fact, no connection between the act and the result, it is difficult to see how the result could be foreseen by any reasonable man as a. consequence of the act.
Mr. Laughland advances his submission as the groundwork for the further submission that, where one of the links in the chain between act and result is the act of an independent third person, the nexus is broken unless that act is not merely foreseen but is either "likely" or "very likely". This concept is reflected in the judgment of the learned official referee in the passage to which I have referred and it is based upon the analysis in the speech of Lord Reid in Dorset Yacht Company Ltd, v. Home Office (1970) AC 1004. His analysis is summarised in the following passage at page 1030 of the report:
"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 that 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".
The views which Lord Reid there expressed are not reflected in the speeches of the others of their Lordships in the case and were, I think, obiter, since there was no scope for argument on the assumed facts that the damage which occurred was not the very thing that was likely to happen. But, obiter or no, Lord Reid's opinion must be at least of the very highest persuasive authority. For my part, however, I very much doubt whether he was, in what he said regarding the likelihood of the act of a third party, intending to bring back into the test of remoteness some further philosophical consideration of nexus or direct or indirect causation. As it seems to me, all that Lord Reid was saying was this, that where as a matter of fact the consequence which the court is considering is one which results from or would not have occurred but for the intervention of some independent human agency over which the tortfeasor has no control, it has to approach the problem of what could be reasonably foreseen by the tortfeasor, and thus of the damage for which he is responsible, with particular care. The immediate cause is known. It is the independent human agency, and one has therefore to ask, on what basis can the act of that person to be attributed back to the tortfeasor? It may be because the tortfeasor is responsible for his actions or because the third party act which has precipitated the damage is the very thing that the tortfeasor is employed to prevent. But what is the position in the absence of some such consideration? Pew things are less certainly predictable than human behaviour and if one is asked whether in any given situation a human being may behave idiotically, irrationally, or even criminally, the answer must always be that that is a possibility, for every society has its proportion of idiots and criminals. It cannot be said that you cannot foresee the possibility that people will do stupid or criminal acts, because people are constantly doing stupid or criminal acts. But the question is not what is foreseeable merely as a possibility but what would the reasonable man actually foresee if he thought about it, and all that Lord Reid seems to me to be saying is that the hypothetical reasonable man in the position of the tortfeasor cannot be said to foresee the behaviour of another person unless that behaviour is such as would, viewed objectively, be very likely to occur. Thus, for instance, if by my negligent driving I damage another motorist's car, I suppose that theoretically I could foresee that, whilst he leaves it by the roadside to go and telephone his garage, some ill-intentioned passer-by may jack it up and remove the wheels. But I cannot think that it could be said that, merely because I have created the circumstances in which such a theft might become possible, I ought reasonably to foresee that it would happen.
Now if this is right it does raise a difficulty over the learned official referee's finding. If the likelihood of human behaviour is an element in reasonable foreseeability the learned official referee's disposition to say that the invasion of squatters was reasonably foreseeable is inconsistent with his actual finding of fact that squatting was unlikely, and that is the only actual finding. What I think, with respect, he was doing in this passage of his judgment was confusing "foreseeable" with "reasonably foreseeable". That indeed would be consistent with the passage from Lord Reid's speech on which he was relying as stating the principle. Lord Reid said in terms that foreseeability "as a possibility" was not sufficient and I think that what the learned official referee has done is to treat that as meaning, in the context, "reasonable foreseeability as a possibility". In the context in which, as I think, Lord Reid was using the expression "as a possibility" (that is to say, as meaning "only a bare possibility and no more") that seems to me to be a contradiction in terms and for the reasons which I have endeavoured to explain it was not what Lord Reid intended and it was not what he said. The critical finding here is, to my -mind, that the incursion of squatters was in fact unlikely.
Given this finding, it seems to me that accepting Lord Reid's test as correct (which Mr. Blom-Cooper challenges) it must be fatal to the appellants' contentions on this appeal, because it constitutes in effect a finding that the damage claimed is not such as could be reasonably foreseen. And that, indeed, seems to me to accord with the common sense of the matter.
The test of remoteness is said to be the same as the test of duty in negligence (see the Wagon Mound (No. 1) (1961) AC 388). If the instant case is approached as a case of negligence and one asks the question, did the respondents' owe a duty not to break a water pipe so as to cause the appellant's house to be invaded by squatters a year later, the tenuousness of the linkage between act and result becomes apparent. I confess that I find it inconceivable that the reasonable man wielding his pick in the road in 1973 could be said reasonably to foresee that his puncturing of a watermain would fill the appellant's house with uninvited guests in 1974. Whilst, therefore, I am not altogether in accord with the learned official referee's reasoning, I think that he came to the right conclusion in the light of his finding of fact, which has not been challenged. Accordingly, the appeal should, in my judgment, be dismissed.
I should perhaps add that I do not dissent from the view of my Lord the Master of the Rolls that the test expressed by Lord Reid - with, as I think, the intention of restricting the ambit of the duty in tort - was incorrect in that it was not exhaustive and did" not go far enough in that direction. To apply a straight test of foreseeability or likelihood to hypothetical circumstances which could arise in relation to the acts of independent third parties in the case of, for instance, carelessness on the part of servants of the Home Office does, as my Lord points out, produce some astonishing results. Suppose that as a result of the carelessness of a prison officer a prisoner escapes and commits a crime of the same type as that for which he is in custody a fortnight later and 400 miles away from the place at which he escaped? Is it any less foreseeable that he will do so than that he will steal his rail fare from a house adjoining the prison? And is the Home Office to be liable without limit until the prisoner is apprehended? Does it make any difference if he is, at the date of his escape, on remand or due for parole? Happily such hypothetical questions do not, on the view that I take, have to be answered in the instant case but whether or not it is right to regard questions of remoteness according to some flexible test of the policy of the law from time to time (upon which I prefer at the moment to express no view) I concur with my Lord, the Master of the Rolls, in regarding the straight test of foreseeability, at least in cases where the acts of independent third parties are concerned, as one which can, unless subjected to some further limitation, produce results which extend the ambit of liability beyond all reason. Speaking for myself, I would respectfully regard Lord Reid's test as a workable and sensible one, subject only to this that I think that he may perhaps have understated the degree of likelihood required before the law can or should attribute the free act of a responsible third person to the tortfeasor. Such attribution cannot, as I think, rationally be made simply on the basis of some geographical or temporal proximity and even "likelihood" is a somewhat uncertain touchstone. It may be that some more stringent standard is required. There may, for instance, be circumstances in which the court would require a degree of likelihood amounting almost to inevitability before it fixes a defendant with responsibility for the act of a third party over whom he has and can have no control. On the learned official referee's finding, however, that does not arise here and the problem can be left for a case in which it directly arises.
LORD JUSTICE WATKINS: "This doctrine of remoteness of damage is one of very considerable obscurity and difficulty". So wrote the editor of the 17th Edition of Salmond on the Law of Torts at page 38. If I did not consciously share that opinion previously from a fairly long acquaintance with the subject I have, since hearing the able submissions made to this court, to confess to feelings of apprehension of never emerging out of the maze of authorities on the subject of remoteness into the light of a clear understanding of it. On my way to providing an answer to the question raised in this appeal I have sometimes felt like Sir Winston Churchill must have done when he wrote:
"I had a feeling once about mathematics - that I saw it all. Depth beyond depth was revealed to me - the byss and abyss. I saw - as one might see the transit of Venus or the Lord Mayor's Show - a quantity passing through an infinity and changing its sign from plus to minus. I saw exactly how it happened and why the tergiversation was inevitable - but it was after dinner and I let it go".
This appeal involves but a single issue. Was the damage done to Mrs. Lamb's house by squatters too remote to be a consequence of the defendants' initial negligent and damaging act which partly destroyed support for the house for which they have to compensate her?
Counsel for the plaintiffs contends that, since the learned official referee intimated in his judgment that if thereby he was applying the only relevant and correct test he would be disposed to hold that an invasion of the undermined house by squatters was a risk reasonably foreseeable by the defendants, the case should go back to him so that he can positively make that finding and give judgment for Mrs. Lamb for the sum claimed in respect of squatters' damage. For, he says, reasonable foreseeability simpliciter of the fresh kind of damage done is, since the case of Wagon Mound (No. 1) (1967) AC 617 the sole test which determines whether fresh damage caused by an act which is independent of and committed later than the initial tortious act is too remote: whether, in other words, it is truly a novus actus interveniens for the damage caused by which a defendant is not liable.
He submits that Lord Reid was out of step with the Wagon Mound test which should always be followed nowadays when in Dorset Yacht Go. v. Home Office (1970) AC 1004 at page 1030 he said:
"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 that 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".
So by, as he did, adopting the opinion of Lord Reid the official referee was also out of step with the Wagon Mound and applied the wrong test to the issue of remoteness. If he had allowed himself to be governed by the Wagon Mound he would inevitably have found for Mrs. Lamb for the considerable damage deliberately and criminally caused by squatters.
I feel bound to say with respect that what Lord Reid said in the Dorset Yacht case does nothing to simplify the task of deciding for or against remoteness especially where the fresh damage complained of has been caused by the intervening act of a third party. It may be that in respect of such an act he is to be understood as saying, without using his remarkable and usual clarity of expression, that damage is inevitably too remote unless it can reasonably be foreseen as likely to occur. If that be so, it could be said that he was not intending to depart from the Wagon Mound test save in cases involving intervening human action to which he would apply a rather stricter than usual test by placing acts which are not likely to occur within the realm of remoteness.
In McKew v. Holland & Hannen & Cubitts (1969) 3 All England 1621 he had given more than a hint of this when he said:
"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 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 that 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 unforeseeable 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".
From the foregoing it is also obvious that Lord Reid would regard some kinds of intervening acts done by third parties as too remote even though they could reasonably be foreseen as likely or quite likely to occur.
The plaintiff McKew had caused fresh damage to himself as a result of taking an unreasonable risk. That he would be likely or quite likely to do this was said to have been reasonably foreseeable. Yet because he had behaved unreasonably in the doing of it, his act was found to be a novus actus interveniens which freed the defendants from all liability for it. This decision has in some quarters been criticised on the basis that it would have been more in accordance with principle to have treated the plaintiff's unreasonable conduct as contributory negligence. I do not agree. I prefer to regard the decision in McKew as a good example of a determination to bring realistic consideration to bear upon the question of fresh damage arising from an event or act occurring subsequently to the initial negligent act in the context of remoteness of damage.
It seems to me that if the sole and exclusive test of remoteness is whether" the fresh damage which has arisen from an event or act which is reasonably foreseeable or reasonably foreseeable as a possibility, or likely or quite likely to occur, absurd, even bizarre, results might ensue in actions for damages for negligence. Why if this test were to be rigidly applied to the facts in the Dorset Yacht case, one can envisage the Home Office being found liable for the damage caused by an escaped Borstal boy committing a burglary in John O'Groats. This would plainly be a ludicrous conclusion.
I do not think that words such as, among others, "possibility", "likely", or "quite likely", assist in the application of the test of reasonable foreseeability. If the crisply stated test which emanates from the Wagon Mound is to be festooned with additional words supposedly there for the purpose of amplification or qualification, an understandable application of it will become impossible.
In my view the Wagon Mound test should always be applied without any of the gloss which is from time to time being applied to it.
But when so applied it cannot in all circumstances in which it arises conclude consideration of the question of remoteness although in the vast majority of cases it will be adequate for this purpose. In other cases, the present one being an example of these in my opinion, further consideration is necessary always providing, of course, a plaintiff survives the test of reasonable foreseeability.
This is because the very features of an event or act for which damages are claimed themselves suggest that the event or act is not upon any practical view of it remotely in anyway connected with the original act of negligence. These features will include such matters as the nature of the event or act, the time it occurred, the place where it occurred, the identity of the perpetrator and his intentions and responsibility, if any, for taking measures to avoid the occurrence and matters of public policy.
A robust and sensible approach to this very important area of the study of remoteness will more often than not produce, I think, an instinctive feeling that the event or act being weighed in the balance is too remote to sound in damages for the plaintiff. I do not pretend that in all cases the answer will come easily to the enquirer. But that the question must be asked and answered in all these cases I have no doubt.
To return to the present case, I have the instinctive feeling that squatters' damage is too remote. I could not possibly come to any other conclusion although on the primary facts I, too, would regard that damage or something like it as reasonably foreseeable in these times.
We are here dealing with unreasonable conduct of an outrageous kind. It is notorious that squatters will take the opportunity of entering and occupying any house, whether it be damaged or not, which is found to be unoccupied for more than a very temporary duration. In my opinion this kind of antisocial and criminal behaviour provides a glaring example of an act which inevitably, or almost so, is too remote to cause a defendant to pay damages for the consequences of it.
Accordingly, I would hold that the damage caused by the squatters in the present case is too remote to be recovered from these defendants.
The reasons I have explained for arriving at this conclusion are, of course, dissimilar from those which led the official referee to a similar one. His approach to the matter was I feel bound to say wrong in my opinion but, since it produced what I believe to be a correct answer to the question posed in the appeal, he cannot be called upon to reconsider his judgment.
I would dismiss this appeal.
(Order; Appeal dismissed. Legal aid taxation of plaintiffs' costs. Matters of costs and leave to appeal to the House of Lords adjourned sine die).
