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234 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NEGLIGENCE

6.24 This case concerned an obligation to provide information on the basi_s of which the claimant could take a decision. The position is differem where the defendant undertakes to advise generally upon the wisdorrt of entering into a transaction, for he will then be liable for all the foreseeable consequences of it.⁵⁸ The linę between the two categories may be hard to draw. In Aneco Reinsurance Underwriting Ud v. Johns & Higgs Ltd⁴" th_e defendant brokers, acting on behalf of the claimant reinsurers, negligently failed to disclose certain facts on a proposal for further reinsurance of _a $10 million portion of a risk to be carried by the claimants. This meant that the re-reinsurers, who would have refused cover had they known the fuli facts, lawfully repudiated the claim. However, the claimants lost $35 million on the risk as a whole. The majority of the House of Lords held that the brokers were liable for the fuli amount. Had the brokers carried out their duty properly they would have become aware that cover was not obtainable in the market on commercially sensible terms and the claimants would, therefore, have declined the main risk and suffered no loss, and in the view of the majority the duty of the brokers was not merely to seek to obtain valid cover and report on having done so, but to advise on the market's estimation of the risk.⁵⁰ For Lord Millett, dissent-ing, it was not enough that the brokers might have volunteered their estimation of the State of the market, the question was whether such an estimation was within the scope of the duty they had undertaken and he thought that they had not done so.

It is not wholly obvious why responsibility for risks like market forces should be imposed on the defendant even where his function is to advise the claimant as to the wisdom of a transaction, at least where those risks are as apparent to the claimant as to the defendant. In Banąne Bnixcllcs Lord Hoffmann gave an example⁵¹ of a doctor giving negligent advice to a mountaineer about the fitness of his knee. If the mountaineer were to be injured on an expedition because his knee gave way, the doctor might be liable; but if the mountaineer were injured by a foreseeable risk of moun-taineering unconnected with his knee (for example, being hit by a rock fali) the doctor would not be liable for that. That conclusion is plainly correct, though it is debatable whether it is correct to say that this is because the injury "would have occurred even if the advice had been correct",⁵² sińce the mountaineer would not have gone on the expedition if he had known the truth. It seems better to say that the rock fali is a mere coincidence (like the victim of a road accident being injured in another road accident while in the ambulance on the way to hospital) or (which amounts to the same thing) that it is not within the risk created by the

** Banque Briixdles La mirr t at (1997) A.C 214.

•*(2001) UKHL 51; (2002) 1 Lloyd* Hep 157.

hitcruentfon Board for Agricultural Produce v. Lcidig (2000) Llovd's Hep. P.N. 144 ⁵¹ (19971 A.C. at 213. ^w ibid.

doctor's negligence. But suppose the doctor is consulted by a patient with history of heart trouble and the doctor negligently advises him that the hest way to improve his fitness is to take up again the climbing activities ₀f his youth. It is not difficult to say that the doctor could be liable if the oatient suffers a heart attack, but is he now to be responsible for death in [he rock fali? That is just as much a coincidence as in the other case. perhaps the answer lies in what the doctor's duty is, that is to say to _advise the mountaineer about his health, not his physical safety.

(1) Intendcd conseąuences

Intended consequences are never too remote.⁸³ "The intention to injure 6.25 the plaintiff... disposes of any question of remoteness of damage."³⁴ However, the liability of an intentional wrongdoer is not limited to the intended consequences and it will extend at least to such as are foreseeable. Scott v. Shepherd⁵⁵ may be regarded as a classical instance of this. D throws a squib into a crowd. A, in alarm, throws it away and B does likewise. The squib ends its journey by falling upon C, exploding and putting out his eye. A certainly intended to scare somebody or other. With equal certainty he did not, in common parlance, "intend" to hurt C, much less to destroy his eye. But he was nevertheless held liable to C, because the law insists, and insists quite rightly, that fools and mischievous persons must answer for consequences which common sense would unhesitatingly attribute to their wrongdoing.⁵⁶ Indeed, the intentional wrongdoer's liability may extend beyond the foreseeable because intentional torts have not necessarily been affected by Tlie Wagon Mound. A fraudster is liable for unforeseeable consequences^S7 and an intentional departure from the terms of a bailment may make the bailee subject to the liability of an insurer.⁵⁸

(2) Unintended consecpiences (a) Existing States of affairs

Pecuniary amount of the damage. If the defendant injures a high 6.26 income earner or a piece of property with a high intrinsic value (such as antique vase) he cannot argue that he had no reason to expect the

The Restalcment of Torts, 2d, ss 870, 915. qualifies the rule by adding, "except where the harm results 6om an outside (orce the risk of which is not incrcased by the defendant s act". "But this exception is unreal, for all the iliustrations are explicable on some other ground (e.g. winili non fi! injurin) or are _M nierely cases in which all the conseąuences were not intended.

Quinn u. Lcalham 119011 A.C 495 at 537. jur Lord Lindley. _h<1773) 2 W.BI. v892.

^See also para. 3.2, above.

^See para. n.i4, belo w.

®^ut a trespasser to land is not liable tor unintended, indirect and unforeseen damage: .V!nyfair Ltd v. Peors (19871 1 \.Z-L.R. 459 (Tire in wrongfully parked car).