|Judgments - Jolley (A.P.) v. Sutton London Borough Council
The short point in the present appeal is therefore whether the judge was right in saying in general terms that the risk was that children would "meddle with the boat at the risk of some physical injury" ( 1 Lloyd's Rep. 439) of whether the Court of Appeal were right in saying that the only foreseeable risk was of "children who were drawn to the boat climbing upon it and being injured by the rotten planking giving way beneath them": per Roch L.J. at  1 W.L.R. 1555. Was the wider risk, which would include within its description the accident which actually happened, reasonably foreseeable?
My Lords, although this is in end the question of fact, the courts are not without guidance. "Reasonably foreseeable" is not a fixed point on the scale of probability. As Lord Reid explained in Overseas Tankship (U.K.) Ltd v. Miller Steamship Co. Pty (The Wagon Mound No. 2).  2 A.C. 617, 642 other factors have to be considered in deciding whether a given probability of injury generates a duty to take steps to eliminate the risk. In that case, the matters which the Privy Council took into account were whether avoiding the risk would have involved the defendant in undue cost or required him to abstain from some otherwise reasonable activity. In Bolton v. Stone  A.C. 850 there was a foreseeable risk that someone might one day be hit by a cricket ball but avoiding this risk would have required the club to incur very large expense or stop playing cricket. The House of Lords decided that the risk was not such that a reasonable man should have taken either of these steps to eliminate it. On the other hand, in The Wagon Mound No. 2, the risk was caused by the fact that the defendant's ship had, without any need or excuse, discharged oil into Sydney Harbour. The risk of the oil catching fire would have been regarded as extremely small. But, said Lord Reid, at p. 642:
My Lords, in this calculation it seems to me that the concession by the council is of significance. The council admit that they should have removed the boat. True, they makes this concession solely on the ground that there was a risk that children would suffer minor injuries if the rotten planking gave way beneath them. But the concession shows that if there were a wider risk, the council would have had to incur no additional expense to eliminate it. They would only have had to do what they admit they should have done anyway. On the principle as stated by Lord Reid, the wider risk would also fall within the scope of the council's duty unless it was different in kind from that which should have been foreseen (like the fire and pollution risks in The Wagon Mound No. 1) and either wholly unforeseeable (as the fire risk was assumed to be in The Wagon Mound No. 1) or so remote that it could be "brushed aside as far-fetched": see Lord Reid at p. 643 of The Wagon Mound No.2.
I agree with my noble and learned friend Lord Steyn and the judge that one cannot so describe the risk that children coming upon an abandoned boat and trailer would suffer injury in some way other than by falling through the planks. Mr. de Navarro says that apart from its rotten planking, the boat was simply a heavy object like any other. It was no more likely to cause injury to the children than any other heavy object they might be able to get hold of. He draws the analogy of a man who negligently leaves a loaded gun where children play with it and one child injures another by dropping it on his toe. The injury does not fall within the scope of the risk created by the fact that it is a gun rather than some other heavy but innocuous object. So Roch L.J. said,  1 W.L.R. 1546, 1555: "had the boat been sound, then no reason for its removal would have existed."
I think that in a case like this, analogies from other imaginary facts are seldom helpful. Likewise analogies from real facts in other cases: I entirely agree with my noble and learned friend Lord Steyn in deploring the citation of cases which do nothing to illuminate any principle but are said to constitute analogous facts. In the present case, the rotten condition of the boat had a significance beyond the particular danger it created. It proclaimed the boat and its trailer as abandoned, res nullius, there for the taking, to make of them whatever use the rich fantasy life of children might suggest.
In the Court of Appeal, Lord Woolf M.R. observed, at p. 1553, that there seemed to be no case of which counsel were aware "where want of care on the part of a defendant was established but a plaintiff who was a child had failed to succeed because the circumstances of the accident were not foreseeable." I would suggest that this is for a combination of three reasons: first, because a finding or admission of want of care on the part of the defendant establishes that it would have cost the defendant no more trouble to avoid the injury which happened than he should in any case have taken; secondly, because in such circumstances the defendants will be liable for the materialisation of even relatively small risks of a different kind, and thirdly, because it has been repeatedly said in cases about children that their ingenuity in finding unexpected ways of doing mischief to themselves and others should never be underestimated. For these reasons, I think that the judge's broad description of the risk as being that children would "meddle with the boat at the risk of some physical injury" was the correct one to adopt on the facts of this case. The actual injury fell within that description and I would therefore allow the appeal.
LORD HOBHOUSE OF WOODBOROUGH
In agreement with the speech delivered by my noble and learned friend Lord Hoffmann and for the reasons he has given, I too would allow this appeal.
I agree that the matter should now be remitted to the Court of Appeal as proposed.
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