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244 NEGLIGENCE: CAUSATION AND CONTRIBUTORY NEGLIGENCE

straightforward and literał application of the test of reasonable foresee-ability (at least as it has been applied to personal injury cases) leads to an unacceptably wide-ranging liability. "In generał... even though A is j_n fault, he is not responsible for injury to C which B, a stranger to hjm deliberately chooses to do. Though A may have given the occasion for B'ś mischievous activity, B then becomes a new and independent cause."** Much of the case law in this area analyses the problem in terms of the existence of a duty of care to prevent wilful injury by a third party and the problem has already been considered in that context.^2<> lt has been sug-gested that "the question of the existence of duty and that of whether damage brought about by the act of a third party is too remote are simply two facets of the same problem'²⁷ but where the defendant has caused some initial injury to the claimant before the intervention of the third party the cases have continued to look at the question as one of remote-ness. Not surprisingly, however, there is the same reluctance to find the defendant liable for the wilful wrongdoing of others. It has been said that the conduct of the third party must be something very likely to happen if it is not to break the chain of causation²* but if anything, this formulation, whether it is to be regarded as a separate test to be applied after that of reasonable foreseeability,²⁴ or as representing what the hypothetical reasonable man would contemplate³⁰ probably understates the burden on the claimant and "there may be circumstances in which the court would require a degree of likelihood amounting almost to inevitability before it fixes the defendant with responsibility for the act of a third party over whom he had and can have no control."³¹ In Lamb v. Ca md en London Borough³² the defendant's negligence caused the claimant's house to be damaged and become unoccupied but they were not liable for the further damage done by the depredations of squatters, notwithstanding a finding by the Offidal Referee that squatting was "foreseeable". On the other hand, in Ward v. Cannock Chase Disłrict Council on rather similar facts, but where the defendants had been guilty of wilful delay in effecting repairs and where the risk of vandal damage was rather higher, they were found liable for the further loss.³³ The consequence of all of this may be, of course, that precisely the same physical act may or may not break the chain of causation depending on the mental State of the actor: further negligence may be within the risk created by the defendant when w^rilt’ul ¹

fonduct niay not.³⁴ So also, the intervening deliberate act of a child may not break the chain when that of an adult would.¹

The above principles are applicable where there are no special circum-stances imposing upon the defendant a duty to take care to guard against wrongdoing of the third party. If such a duty exists, it would be futile to classify the damage as too remote merely because it was wilfully inflicted. A driver who knocks down a pedestrian would not be liable for theft of the pedestrian’s wallet while he was lying injured, but a bailee, who is under a duty (normally, but not necessarily, arising from a con-tract) to safeguard his bailor's goods, is just as much liable where, by his default, they are stolen by a burglar as he is vv’here they are destroyed in a fire.³*’ In Stansbie v. Trotnan³⁷ a decorator was at work in a house and left it for two hours to get wallpaper. He was alone and had been told by the householder to close the front door whenever he left the house. Instead of doing so he left the door unlocked and during his absence a thief entered the house and stole a diamond bracelet and some clothes. The Court of Appeal held that the decorator was liable for the loss.³** Similarly, in Haynes v. Harwood^3U the defendants were held liable when the claimant was injured by their horses which had been left unattended in the Street and caused to bolt by a mischievous boy. It was negligent to leave the horses unattended precisely because children might interfere.⁴⁰

Intervening act of the claimant. Where it is the claimant's own act or 6.36 omission which, in combination with the defendant's breach of duty, has brought about his damage, then the problem is generally seen as one of contributory negligence. Before there can be any question of contributory negligence, however, it is necessary that both the claimant's lack of care and the defendant's breach of duty shall be found to have been causes of the claimant's damage and in some cases, especially those in which the claimant seeks to recover for damage suffered in a second accident, the

^M awmmment Agency v. Entpnsss Car Co. Ltd (1999) 2 A.C. 22 at 30. A good exampłe is Wat sou u. Kentucky & Indiana Bridgc R.R. 126 S.W. 146 (1916) D negligently derailed a pełrol tanker. X struck a match and caused an cxplosion. New tnal ordered tor failure to leavt* to jury issue ot D's liability upon conflicting testimony that X acted negligently or maliciously. See also Philco Radio. etc. Corp u. J. Spurlittg Ltd (19491 2 K B. 33.

^wSee McGregor, Damagcs (16th ed.), pp 92-94.

⁵⁶ In Lockspeiser Aircmft Ltd v. Bmoklands Aircraft Co. Ltd. The Times, March 7, 1990, the iniruder started a fire which destroyed the goods.

³⁷ (1948J 2 K B. 48. criticised by (.ord Denning M.R. in Lamb's case, above. at 638 but approved by Lord Goff in Smith v. Littiewoods, above at 272. The defendant was not a bailee.

*    But cven in these cases the loss must be within the ambit of the duty. Would the defendant have been liable for malicious damage? For the seizurc of the house by squatters? In Royscot Trust Ltd u. Rogerson (199112 Q.B. 297, D. a dealer, misrepresented to a finance company that a customer taking a car on hire-purchase had paid the minimum deposit required by the finance company (the representation was not alleged to be fraudulent). The customer wrongfully sold the vehicle and this was held. for the purposes of the sta tu tory cause of action under the Misrepresentation Act 1967. s.2(l) to be a reasonably foreseeable act which did not break the chain of causation. The purpose of recjuiring a minimum deposit was to reduce the risk of placing cars with customers who might default and wrongful disposition was just one yariety of default.

*    119351 1 KB. 147.

119351 1 K B. 147 at 153, per Greer LJ. Would the defendant have been liable if an adult had caused the horses to bolt? cf. Topp v. Lindan Country Bus (19931 1 W.L.R. 976, where the matter was considered in terms of dutv.

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Wćld-BlundeU v. Stephen* 119201 A.C. 956 at 986, per Lord Sumner

²*See para. 5.24, above.

²⁷ Perl p. Canuien London Borough [1984J Q.B. 342, per OHver L.J.

³⁰    Home Office v. Dorset Yacht Co. Ltd (19701 A.C. 1004, per Lord Reid. Notę, however, that the majontv ot the House ot Lords regarded this case as about duty, not causation.

²⁹ Limb v. Camdcn London Borough (19811 Q.B. 625 at 647. per Watkins L.J.

“• ibid., at 644, 647. OUver L.J. Lord Mackay in Smith v. Littlcwoods Organisation Ltd, (19871 A.C. 241 would appear to agree, despite the remark at 263E.

³¹    Lamb v. Camdcn London Borough, above at 647, per 01iver LJ.

«(1981 |Q.B. 625.

³³ 119861 Ch. 546. But the defendants were not liable tor theft ot the claimant's goods, perhaps because he could have taken steps himself to secure those. Notę that this case shows (at 558) that Lord Denning M.R. was wrong in Limbs case to assume that claimants will have insurance against these losses.