Why Smith v Leech Brain & Co Ltd is important
In Smith v Leech Brain & Co Ltd, Lord Parker CJ concluded that a defendant is liable in full for the damage irrespective whether the extent of the damage was reasonably foreseeable. This was based on the orthodox principle that the defendant takes his victim as he finds him. Lord Parker CJ felt that this principle was consistent with the Privy Council’s decision in Wagon Mound.
Mr Smith was employed as a labourer by the defendant. Mr Smith’s role was to remove articles from a tank of molten metal (roughly 400°C) using a crane. The crane had a shield to protect the operator from the hot metal.
One day whilst operating the crane, Mr Smith inadvertently put his head outside of the shield and his lip was struck by some spitting molten metal. The burn was treated, but did not heal. Sadly, having ulcerated it was diagnosed as cancer, from which Mr Smith died a few years later.
Mr Smith’s widow brought a claim against Leech Brain & Co Ltd in the tort of negligence. She argued that they failed to provide a safe working environment for Mr Smith, and this failure in their duty of care caused his death.
Inter alia, Leech Brain & Co Ltd relied on Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound). They argued that the claimant’s loss was not reasonably foreseeable and therefore the damage was too remote.
Leech Brain & Co Ltd were held liable for the damage. The defendant’s negligence caused the loss, and the damage was not too remote.
On the issue of damages, Lord Parker CJ felt able to decide the case without having recourse to Wagon Mound.
He concluded that this case was covered by the orthodox principle that a defendant must take his victim as he finds him. Given the Privy Council did not expressly discuss this principle, Lord Parker CJ concluded they can’t have intended to change or doubt this principle. Therefore, it was irrelevant that the loss might have been greater than what the defendant expected. Instead, all that mattered was whether the type of harm was reasonably foreseeable. He said,
What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim.
Lord Parker CJ was therefore able to avoid formally addressing the conflicting between In Re Polemis and the Privy Council’s judgement in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (Wagon Mound). However, he did say that, had he needed to, he would have followed Wagon Mound, rather than In Re Polemis. In fact, he felt that his judgement was based on judgements before In Re Polemis, rather than the rule in that case. The reason he would do this is to ensure that the common law in the UK reflected the rest of the commonwealth.