Remoteness: foreseeability of the type of harm, not the precise manner (Jolley v Sutton LBC)
A housing association in England owns the grassed common area of a block of flats where children regularly play. An abandoned caravan with broken windows has been left there for over a year, despite residents' complaints. The association accepts that it was negligent in failing to remove the caravan, because children might be cut by the broken glass. Two 13-year-old boys decide to turn the caravan into a den. They jack up one end to fix the wheels, and the caravan topples onto one of them, Tobias, breaking his pelvis. The association argues that the only foreseeable risk was of cuts from broken glass.
Which of the following best describes whether Tobias's injury is too remote?
Choose one answer to see the reasoning.
Worked answer
Correct answer C: It is not too remote, because injury to children meddling with the abandoned caravan was a foreseeable type of harm, even if the precise manner of the accident was not.
THE RULE TO REMEMBER
Damage is not too remote if it is of a type or description that was reasonably foreseeable; neither the precise manner in which it occurred nor its extent need be foreseen.
Remoteness: foreseeability of the type of harm, not the precise manner (Jolley v Sutton LBC)
Since The Wagon Mound (No 1), a defendant is liable only for damage of a type or description that was reasonably foreseeable. In Jolley v Sutton LBC [2000] UKHL 31, on similar facts involving an abandoned boat, the House of Lords held that what must be foreseen is not the precise injury but injury of a given description: 'the genus', not 'the particulars'. Neither the precise manner in which the injury came about nor its extent needs to be foreseeable. Children's ingenuity in finding unexpected ways of hurting themselves should not be underestimated, and the correct description of the risk was that children would meddle with the abandoned object at the risk of some physical injury. Tobias's broken pelvis is physical injury from children meddling with the abandoned caravan, so it falls within the foreseeable type of harm. It is therefore not too remote, and the association, which ought to have removed the caravan anyway, is liable.
Why A is wrong: This is the narrow description of risk adopted by the Court of Appeal in Jolley and rejected by the House of Lords.
Why B is wrong: Children meddling with an abandoned object is the very risk the association should have guarded against, so it does not break the chain of causation.
Why D is wrong: The extent or severity of a foreseeable type of injury need not be foreseen.
Why E is wrong: The 'direct consequences' test was replaced by the reasonable foreseeability test in The Wagon Mound (No 1).
A little more practice done.
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