625

1 Q.B.
[COURT OF APPEAL]

LAMB

AND ANOTHER V.

CAMDEN LONDON BOROUGH COUNCIL

AND ANOTHER

[1977 L. No. 1895]

B
1981 Feb. 4, 5, 6;
March 18

TJ

Lord Denning M.R., Oliver

and Watkins L.J J.

Damages Remoteness Foreseeability Subsidence to house

resulting from water escaping from damaged water main
House left unoccupied and unfurnished for repairs^Subsequent occupation of house by squattersWhether squatters'
damage too remoteWhether finding that squatting not
" likely " correct test
The plaintiffs were the owners of a house in Hampstead
which in 1972 had been let furnished to a tenant. In October
1973 while the defendants, the local council and their contractors, were replacing a sewer in the adjoining road, a
water main was broken and the escaping water undermined
the foundations of the house. In consequence the house subsided, the walls cracked and the tenant moved out. In the
summer of 1974, the first plaintiff made preliminary arrangements for the repair of the house, had the furniture put into
store and in August 1974 returned to New York where she
had been living. The house was left unoccupied and unfurnished. In October 1974 squatters invaded the house. They
were ejected:in January 1975 and the plaintiffs had boarding
put up on the house. In the summer of 1975 the house was
again occupied by a second invasion of a shifting population
of squatters who were not ejected until May 1977 after they
had done damage amounting to almost 30,000. On the
plaintiffs' claim for damages for negligence and nuisance
against the defendants, liability in nuisance was admitted.
On the issue of damages the official referee said that
while he would be " disposed, if it were relevant, to hold that
squatting was at the material time a reasonably foreseeable
risk" he was "quite satisfied that no one familiar with the
house and the locality would at any time between the accident in the autumn of 1973 and the first invasion about a
year later have said that squatting was likely " and he held
that the damage caused by the squatters was too remote
to form part of the damages payable by the defendants.
On appeal by the plaintiffs: Held, dismissing the appeal, that the test of the reasonable foreseeability of damage where acts of independent third
parties or events or acts not connected with the original
tortious act were concerned needed care in its application
if the ambit of liability was not to be unreasonably extended
(post, pp. 634G, 635D, 636A-C, 642E-F, 643E644B, 646D-F);
and that, accordingly, since (per Lord Denning M.R.) as a
matter of policy it was the responsibility of the owner of the
house to see that it was secured when left unoccupied and
, unfurnished and to insure it against damage and theft, (per
Oliver L.J.) the official referee's finding was in effect a
finding that it could not have been reasonably foreseen that
the breaking of the water main in 1973 would cause the house

626
Lamb v. Camden Council (C.A.)
[1981]
to be occupied by squatters in 1974 and 1975, (per Watkins
L.J.) the squatters' behaviour was of an outrageously anti- A.
social and criminal kind, the damage done by the squatters
was too remote and the official referee had reached the right
conclusion although (per Lord Denning M.R. and Watkins
L.J.) in considering whether squatting was " likely " he had
applied the wrong test (post, pp. 634E-F, 636A-C, 637C-D, 643
B-E, 647D-F).

Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388, a
P.C. and Overseas Tankship (U.K.) Ltd. v. Miller Steamship
Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617,
P.C. applied.
Dictum of Lord Reid in Dorset Yacht Co. Ltd. v. Home
Office [1970] A.C. 1004, 1030, H.L.(E.) not applied.
Per Lord Denning M.R. Duty, remoteness and causation
are devices by which the courts limit the range of liability
for negligence or nuisance (post, p. 636E).
C
Per Watkins L.J. A robust and sensible approach to
the question of remoteness will often produce an instinctive
feeling that the event or act being weighed in the balance is
too remote to sound in damages (post, p. 647B-C).
The following cases are referred to in the judgments:
Anns v. Merton London Borough Council [1978] A.C. 728; [1977] D
2 W.L.R. 1024; [1977] 2 All E.R. 492, H.L.(R).
Chomentowski v. Red Garter Restaurant Pty. Ltd. (1970) 92 W.N.
(N.S.W.) 1070.
Compania Financiera " Soleada" S.A. v. Hamoor Tanker Corporation
Inc. (The Borag) [1981] 1 W.L.R. 274; [1981] 1 All E.R. 856, C.A.
Czarnikow (C.) Ltd. v. Koufos [1969] 1 A.C. 350; [1967] 3 W.L.R.
1491; [1967] 3 All E.R. 686, H.L.(E.).
E
Dorset Yacht Co. Ltd. v. Home Office [1969] 2 Q.B. 412; [1969] 2
W.L.R. 1008; [1969] 2 All E.R. 564, C.A.; [1970] A.C. 1004; [1970]
2 W.L.R. 1140; [1970] 2 All E.R. 294, H.L.(E.).
Dutton v. Bognor Regis Urban District Council [1972] 1 Q.B. 373;
[1972] 2 W.L.R. 299; [1972] 1 All E.R. 462, C.A.
McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All
E.R. 1621, H.L.(Sc).
p
McLoughlin v. O'Brian [1981] Q.B. 599; [1981] 2 W.L.R. 1014; [1981]
1 All E.R. 809, C.A.
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd.
(The Wagon Mound) [1961] A.C. 388; [1961] 2 W.L.R. 126; [1961]
1 All E.R. 404, P.C.
Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. (The Wagon
Mound (No. 2) [1967] 1 A.C. 617; [1966] 3 W.L.R. 498; [1966] 0
2 All E.R. 709, P.C.
Photo Production Ltd. v. Securicor Transport Ltd. [1980] A.C. 827;
[1980] 2 W.L.R. 283; [1980] 1 All E.R. 556, H.L.(E.).
Polemis and Furness, Withy & Co. Ltd., In re [1921] 3 K.B. 560, C.A.
Stansbie v. Troman [1948] 2 K.B. 48; [1948] 1 All E.R. 599, C.A.
The following additional cases were cited in argument:
JJ
Bolton v. Stone [1951] A.C. 850; [1951] 1 All E.R. 1078, H.L.(E.).
Brauer v. New York Central & Hudson River Railroad Co. (1918) 103
Atl. 166.

627
1 Q.B.
Lamb v. Camden Council (C.A.)
Cobb v. Great Western Railways Co. [1894] A.C. 419, H.L.(E.).
A
Davies v. Liverpool Corporation [1949] 2 All E.R. 175, C.A.
Dodd Properties {Kent) Ltd. v. Canterbury City Council [1980] 1 W.L.R.
433; [1980] 1 All E.R. 928, C.A.
Engelhart v. Farrant & Co. [1897] 1 Q.B. 240, C.A.
Haynes v. Harwood [1935] 1 K.B. 146, C.A.
Iron and Steel Holding and Realisation Agency v. Compensation Appeal
Tribunal [1966] 1 W.L.R. 480; [1966] 1 All E.R. 769, D.C.
B
McDowall v. Great Western Railway Co. [1903] 2 K.B. 331, C.A.
Monarch Steamship Co. Ltd. v. Karlshamns Oljefabriker {A IB) [1949]
A.C. 196; [1949] 1 All E.R. 1, H.L.(Sc).
Oropesa, The [1943] P. 32, C.A.
Parsons (H.) (Livestock) Ltd. v. Uttley Ingham & Co. Ltd. [1978] Q.B.
791; [1977] 3 W.L.R. 990; [1978] 1 All E.R. 525, C.A.
Radford v. De Froberville [1977] 1 W.L.R. 1262; [1978] 1 All E.R.
C
33Rouse v. Squires [1973] Q.B. 889; [1973] 2 W.L.R. 925; [1973] 2
All E.R. 903, C.A.
Ruoff v. Long & Co. [1916] 1 K.B. 148, D.C.
Scott's Trustees v. Moss (1889) 17 R. (Ct. of Sess.) 32.
Scott v. Shepherd (1773) 2 Wm.Bl. 892.
Scholes v. North London Railway Co. (1870) 21 L.T. 835.
rv
Singleton Abbey (Owners) v. Paludina (Owners) [1927] A.C. 16,
H.L.(E.).
Taupo Borough Council v. Birnie [1978] 2 N.Z.L.R. 397.
Writtle (Vicar of) v. Essex County Council (1979) 77 L.G.R. 656.

from Judge Fay, an Official Referee.

By writ of July 5, 1977, the plaintiffs, Rosemarie Joyce Wittman
Lamb (feme sole) and her father, Gustav Rudolf Wittman, as freehold
owners of 6, Villas on the Heath, Vale of Health, Hampstead, N.W.3
(" the house "), claimed damages for negligence and nuisance against the
defendants, Camden London Borough Council and J. Murphy & Sons
Ltd. The house had been the matrimonial home of the first plaintiff
and her former husband and held by them as joint freehold owners. In
1972 they moved to New York and the house was let. In March 1977
the title to the house was registered in the Land Registry in the names
of the plaintiffs.
The defendants admitted liability for nuisance and on the issue of
damages the official referee, Judge Fay, on March 8, 1978, gave judgment
for the plaintiffs for 28,038 plus 6,439 interest a total of 34,477 in
respect of the subsidence of the house. The official referee after citing
Lord Reid in Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004;
1027-1030, said that his task was " to decide whether invasions by squatters
were likely to follow the events " in the case. He concluded that " the
extensive damage caused by the squatters," which' had been agreed at
29,29605 for " vandals, squatter damage and theft" was " too remote
and cannot form part of the damage payable by the defendants."
The plaintiffs appealed. They sought an order that the judgment
be varied and judgment be entered for the plaintiffs for a further
36,655-47 (including 2,71522 V.A.T.) damages on the grounds that
the judge was wrong in. law in holding that'the damage done to the
APPEAL

JJ

628
Lamb v. Camden Council (C.A.)

[1981]

house by squatters between 1974 and 1976 (1) was not caused by the .
defendants' admitted nuisance (2) was too remote because it was not
likely to have occurred in view of his finding that squatting was at the
material time a reasonably foreseeable risk he ought to have held that
the damage was not too remote (3) was not likely in October 1973.
By a respondents' notice under R.S.C., Ord. 59, r. 6 (2), the defendants contended that the judgment should be affirmed on the additional
ground that if (contrary to the defendants' contention) the judge should B
have held that the damage done to the house by squatters between 1974
and 1976 was not too remote because it was reasonably foreseeable
then the plaintiffs' claim to recover damages for that damage failed
because on the facts found by the judge such damage was foreseeable
to the plaintiffs, and the effective cause of the damage was the plaintiffs'
own failure to guard against such damage.

... The facts are stated in the judgments of Lord.Denning M.R. and
Oliver L.J.
Louis Blom-Cooper Q.C. arid John Dyson for the plaintiffs. The
official referee said.that.the damage done by the squatters was reasonably
foreseeable but that it was not likely. The proper test is reasonable foreseeability and on that basis the plaintiffs must succeed because they have ^
a finding in their favour. Foreseeability and likelihood are distinct concepts. One may foresee something that is not likely to happen. Once
the concept of reasonableness is imputed to foreseeability, that imports
the idea that that which is foreseeable is likely to happen.
The plaintiffs' argument falls under five heads. (1) The measure of
damages awarded against a tortfeasor is to be assessed on the basis of E
restoring the plaintiff as far as possible to the status quo ante. The
principle upon which the court makes such assessment must not be so
narrowly interposed as to prevent the judge doing justice between the
parties. See Monarch Steamship Co. Ltd. v. Karlshamns Oljefabriker
(A/B) [1949] A.C. 196, 221-224 (per Lord Wright) and 232-233 (per Lord
du Parcq), approved by Lord Morris of Borth-y-Gest in C. Czarnikow Ltd. v
v. Koufos [1969] 1 A:C. 350, 397.
*
(2) The independent act of third parties, whether lawful or unlawful
in casu, squatters' who stole and damaged the plaintiffs' propertywhich
contributes to the injurious effect of the original negligence/nuisance
will not excuse the original tortfeasor if such independent act ought
reasonably to have been foreseen: such act does not break the chain of
causation. See H. Parsons (Livestock) Ltd. v. Uttley Ingham & Co. Ltd. G
[1978] Q.B. 791, a case which lies at the heart of this appeal to which
the official referee was not referred; Stansbie v. Troman [1948] 2 K.B.
48; Taupo Borough Council v. Birnie [1978] 2 N.Z.L.R. 397, 401-403 and
409-411 and Brauer v. New York Central & Hudson River Railroad Co.
(1918) 103 Atl. 166. The test is what the defendants ought reasonably
to have foreseen.
;

(3) The test for remoteness of damage and for causation is the same
namely, is the damage a reasonably foreseeable consequence of the tort?
See Compania Financiera " Soleada " S'.A. v. Hamoor Tanker Corporation

629
1 Q.B.

Lamb v. Camden Council (C.A.)

Inc. (The Borag) [1981] 1 W.L.R. 274; Overseas Tankship (U.K.) Ltd. v.
Morts Dock & Engineering Co. Ltd. (The Wagon Mound) [1961] A.C.
388 and Iron and Steel Holding and Realisation Agency v. Compensation
Appeal Tribunal [1966] 1 W.L.R. 480.
(4) The official referee's reliance upon Lord Reid's speech in Dorset
Yacht Co. Ltd. v. Home Office [1970] A.C. 1004, 1027-1030, to the effect
that the test of remoteness of damage is the likelihood of harm and not
B its reasonable foreseeability, was wrong. That decision was concerned
with the existence or otherwise (and the extent of) a duty founded solely
on the existence of control over third parties; it does not deal with
established duties founded on the existence of a relationship between plaintiff and defendant, whose extent (in so far as it relates to harm done by
third parties) turns upon the foreseeability of such harm and in which the
Q power to control the conduct of those third parties is not the source
of the duty but is material only to the question of power to have prevented
the harm. See Chomentowski v. Red Garter Restaurant Pty. Ltd. (1970)
92 W.N. (N.S.W.) 1070.
(5) There is no direct relationship between the duty on a plaintiff to
mitigate his damages and the measure of damages to be assessed against a
tortfeasor. A plaintiff is not obliged, in order to reduce the damages for
D
which a tortfeasor is liable, to take action which he cannot afford to do;
this is the more so where the defendant persists in denying his liability as
a tortfeasor. See Dodd Properties (Kent) Ltd. v. Canterbury City Council
[1980] 1 W.L.R. 433; Taupo Borough Council v. Birnie [1978] 2
N.Z.L.R. 397; The Borag [1981] 1 W.L.R. 274 and Radford v. De
Froberville [1977] 1 W.L.R. 1262.
E
As to the law on mitigation of damages, see R.S.C., Ord. 59, r. 6 (2),
and Ord. 58, r. 5 (1) (a): an appeal lies to the Court of Appeal " from a
decision of an official referee on a point of law . . . only " (save under (b)).
The court cannot revoke the official referee's finding on mitigation; it could
only send the case back for re-hearing. As to the standard of conduct
expected of a plaintiff on mitigation of damage, see McGregor on Damages,
p 14th ed. (1980), para. 233 and especially para. 241.
What Lord Reid said in Dorset Yacht Co. Ltd. v. Home Office [1970]
A.C. 1004, 1030, was obiter, was not part of the ratio decidendi and was
not adopted by the other members of the House. The case was not
about remoteness of damage but of public policy in relation to the duty
of care (see per Lord Pearson and Lord Diplock at pp. 1056E and 1058D
respectively) and the case was dealt with on the scope of the duty of care.
G [Reference was made to Lord Denning M.R.'s judgment in the Court of
Appeal [1969] 2 Q.B. 412, 425 (on Stansbie v. Troman [1942] 2 K.B. 48)
and 426.] With respect, Lord Reid's dicta stands on its own and it relates
only to the duty of care and not to reasonable foreseeability. Remoteness
was not an issue on the appeal. Overseas Tankship (U.K.) Ltd. v. Miller
Steamship Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617 was,
IT on the other hand, a clear case of human intervening action.
Bruce Laughland Q.C. and Richard Woodhouse for the defendants.
This is a case in nuisance and all the evidence of mitigation of loss
came from the plaintiffs. The cost of mitigation of loss is relevant. The

Q.B. 198123

630
Lamb v. Camden Council (C.A.)

[1981]

way in which the official referee expressed himself is to be read as importing

a view (but not a finding) that the plaintiffs had not taken reasonable steps
to exclude squatters; compare how he dealt with foreseeability. He did not
find it necessary to make a finding on reasonable foreseeability. The
defendants were not in control of the plaintiffs' house or of the thieves and
vandals who broke into the house. It was the plaintiffs who were in
control of the house. The defendants were never invited to secure it.
Remoteness and causation are not synonymous concepts, even though on
the facts of many cases they may not require differentiation. " Remoteness " i s sometimes used'to include absence of causation or a break in the
chain of causation. " Remoteness " also signifies the extent of the protection which the law affords to a plaintiff for the particular damage suffered.
"Causation" relates to the question whether the defendant has been
proved to have'caused the particular damage.
This is an appeal about causation. Is there a sufficient nexus between
the tortious digging of the hole in the road in 1973 and the vandalism
and theft committed by independent wrongdoers begun a year afterwards
and completed: over three years afterwards?
The general test or limit of remoteness of damage is that a defendant
is not liable for damage flowing from his tort unless it is foreseeable:
The Wagon Mound [1961] A.C. 388. But that is the first hurdle which
a plaintiff must overcome. If a plaintiff satisfies the first test, he does not
necessarily succeed if the claim of causation is broken by the intervening
act of a third party, although the mere fact of an intervening act does not
necessarily break the claim of causation.
Justice to the defendant requires that he should not be required to
pay for damage suffered by the plaintiff unless he is the cause of the
damage, and not just the author of the first of a series of acts: see per
Lord Denning M.R. in H. Parsons (Livestock) Ltd. v. Uttley Ingham &
Co. Ltd. [1978] Q.B. 791, 801D-E et seq.
Cases where the chain of causation is not broken include Engelhart v.
Farrant & Co. [1897] 1 Q.B. 240, where the defendant was in charge of
the cart; Scott v. Shepherd (1773) 2 Wm.Bl. 892, where the intervening
third party or parties acted on the impulse of the moment; Haynes v.
Norwood [1935] 1 K.B. 146, where an emergency was negligently created;
Rouse v. Squires [1973] Q.B. 889, an example of concurrent causes of
action; Vicar of Writtle v. Essex County Council (1979) 77 L.G.R. 656,
658, 663-664 (applying Lord Reid in Dorset Yacht Co. Ltd. v. Home
Office [1970] A.C. 1004, 1026-1030); Davies v. Liverpool Corporation
[1949] 2 All E.R. 175; (Chomentowski v. Red Garter Restaurant Pty. Ltd.
(1970) 92 W.N. (N.S.W.) 1070, 1070-1076 and Stansbie v. Troman [1948]
2 K.B. 48.
Dorset Yacht Co. Ltd. v. Home Office [1970] A.C. 1004 was decided
on a preliminary issue. The House of Lords approached the question
whether there was an unbroken chain of causation between the Home
Office's control and the damage to the yacht. Lord Reid at p. 1027E-F
saw it as a question of remoteness and of how far the act of another
person breaks the chain of causation: see p. 1030A-D. Lord Morris of
Borth-y-Gest at p. 1034c referred to the "likelihood of doing some

631
1 Q.B.

Lamb v. Camden Council (C.A.)

injury." Throughout the judgments there is continual reference to

damage which is " likely " to result: see per Lord Reid at p. 1030c; per
Lord Morris at pp. 1035D, " manifest and obvious risk," 1037H, " someone who would be closely and directly affected by the act or omission "
and 1093B; per Lord Pearson at pp. 1052B-C, 1053A-B and 1054. Lord
Pearson was saying that the action of the boys was foreseeable because
it was likely to occur. One starts from the position that the damage
must be reasonably foreseeable as likely to occur. If the plaintiffs' submissions are right, the duty for defendants will be higher where there
is no control, so the defendants in the present case would have less
protection from the law than the Home Office had. Lord Reid's test
(p. 1030) was applied in Taupo Borough Council v. Birnie [1978] 2
N.Z.L.R. 397, 411.
Is there a sufficient nexus between the tortious act and the damage?
The law recognises that the consequences of an act can be infinite and
a line has to be drawn somewhere. In the Dorset Yacht case [1970]
A.C. 1004 the issue was limited to the facts on the pleadings. The
further that one gets in time and space from the negligent act the stronger
becomes the argument for a break in the chain. At the end of the day,
it is for the judge, as a jury, to ask himself whether there is a sufficient
nexus with the tortious act. [Watkins L.J. referred to Salmortd on Torts,
17th ed. (1977), pp. 541-542 and Bolton v. Stone [1951] A.C. 850 as the
genesis of what Lord Reid said.]
As to where the chain of causation is broken, see Ruoff v. Long & Co.
[1916] 1 K.B. 148; Scholes v. North London Railway Co. (1870) 21 L.T.
835; McDowall v. Great Western Railway Co. [1903] 2 K.B. 331 and
Singleton Abbey (Owners) v. Paludina (Owners) [1927] A.C. 16.
The chain of causation is broken where the the intervention between
the defendant's tort and the damage suffered by the plaintiff is a voluntary
and intentional act by an independent third party, especially a wrongdoer,
intending to cause the damage complained of unless (a) the defendant was
under a duty to prevent such intervention and/or damage or (b) the act
of the third party was very likely (or likely) at the time of the tort. In
Stansbie v. Troman [1948] 2 K.B. 48 and the Dorset Yacht case [1970]
A.C. 1004 there was a duty to prevent the injury suffered.
It is the damage that must be reasonably foreseeable; and this damage
was not. There is an implied finding by the official referee that the first
plaintiff did not act reasonably. The defendants do not want the case
remitted, but if the court is against them, the matter should be remitted
for the official referee to make a finding on whether the plaintiffs' failure
to take precautions against squatters was the effective cause of the damage.
Dodd Properties (Kent) Ltd. v. Canterbury City Council [1980] 1 W.L.R.
433 was concerned with commercial realities. Where liability is denied
impecuniosity may be a factor in considering what it is reasonable for a
plaintiff to do by way of mitigation, but there are other factors like the
cost and ease of taking mitigating precautions and the risk in not taking
them.
- All the leading text books treat novus actus interveniens as a special
topic. If a defendant's liability is for all damage that is reasonably

632
Lamb v. Camden Council (C.A.)

[1981]

foreseeable and the test is the same for remoteness and causation, the
concept of novus actus interveniens becomes redundant.
Blom-Cooper Q.C. in reply. The duty of a tortfeasor is to act reasonably to mitigate the damage. If the defendants chose to delay before
making any admission of liability they took upon themselves the risk of
liability for the damage flowing from the accident. The splitting of the
test for causation and remoteness is unsound in law: The Borag [1981]
1 W.L.R. 274, 281H; The Wagon Mound [1961] A.C. 388, 422-423; Iron
and Steel Holding and Realisation Agency v. Compensation Appeal
Tribunal [1966] 1 W.L.R. 480, 491-492, per Winn L.J. and see per Phillimore L.J. in the Court of Appeal in Dorset Yacht Co. Ltd. v. Home
Office [1969] 2 Q.B. 412, 435. The test in The Wagon Mound [1961] A.C.
388, 422, was reasonable foreseeability; " likely " does not come into the
question. There are good legal policy grounds for applying what is there
propounded for the test of whether the particular type of damage is within
the scope of the duty of care. Since The Wagon Mound [1961] A.C. 388
the courts have become entirely familiar with the test of " reasonable
foreseeability " for both causation and remoteness. It is a simple test
which gets away from seas of semantics; and it produces just results.
Conscious intervening acts will often not be foreseeable and the original
tortfeasor will not be responsible for them. What is reasonably foreseeable limits the extent of the tortfeasor's liability in a sensible way.
The doctrine of novus actus interveniens was designed as a necessary
limitation on the pre-Wagon Mound rule to cure the unjust results of the
In re Polemis and Furness, Withy & Co. Ltd. [1921] 3 K.B. 560 doctrine.
The law now says that the tortfeasor is liable for what is reasonably
foreseeable. Control has never been a deciding factor. In Taupo
Borough Council v. Birnie [1978] 2 N.Z.L.R. 397, 401, 405, the test was
reasonably foreseeable. The extent of the loss does not matter. The
dictum of Lord Reid in the Dorset Yacht case [1970] A.C. 1004, 1030
was a case of Homer nodding. Lord Reid had cited Scott's Trustees v.
Moss (1889) 17 R. (Ct. of Sess.) 32, where the issue was reasonable foreseeability, which the official referee contrasted with likelihood; Haynes
v. Harwood [1935] 1 K.B. 146 (see pp. 152, 153 (foot), 156, 160-161)
and The Oropesa [1943] P. 32, 36-38. There is nothing in those three
cases to justify Lord Reid's departure from the reasonably foreseeable
test. The official referee wrongly jettisoned the test of reasonable foreseeability by applying that of likelihood.
Cur. adv. vult.

_,

G
March 18. The following judgments were read.
LORD DENNING

M.R.

The facts
Off Hampstead Heath there is a terrace of houses of quality built in JJ
the early 19th century. They are called Villas on the Heath. One of
them belonged to Mrs. Lamb, the first plaintiff. In 1972 she went to
New York and let the house to a tenant. Whilst she was away the

633
1 Q.B.

Lamb v. Camden Council (C.A.)

Lord -Denning M.R.

local council, the first defendant, decided to replace the sewer in the
road next to the house. In October 1973 their contractors, the second
defendants, dug a deep trench a few feet from the front wall of the
house. In doing it, they broke into a water main. The water burst out
and washed out soil from the foundations of the house. There was
subsidence. The walls cracked. It became unsafe to live in. The
tenant moved out. Mrs. Lamb, still in America, got her father, the
second plaintiff, her solicitors and her agents to look after her interests.
In the summer of 1974 she herself came back for six weeks and made
preliminary arrangements for repairs to be done. The work was so
extensive that she had her furniture removed and put into store in
Harrods' repository. Then she went back to America.
The housebeing then left unoccupied and unfurnishedwas a
sitting target for squatters. In October 1974 they invaded it. Mrs.
Lamb returned for three weeks at Christmas. She found the squatters
still there. She was appalled at the state of the place. Her solicitors
issued a summons under R.S.C., Ord. 113, and managed to get them out.
After those squatters had gone, her father got some building labourers
to put up a few boards at a cost of 10. The neighbours helped too.
But a few months later, in the summer of 1975, there was a second
invasion of squatters. A shifting population. As some went out, others
came in. Mrs. Lamb's agents did what they could to get them out.
The electricity and gas were cut off. But to no avail. The squatters
pulled off the panelling for fuel. They ripped out the central heating
and other installations. They stole them. Eventually the police
arrested the squatters on a charge of larceny. Whilst they were at the
police station, Mrs. Lamb's agents got in and made the premises secure
with elaborate reinforced defences. That was in May 1977. The end
of the squatters.
Then at last the work of repair was started. It was finished in 1979.
The house, the title in which had been registered in the Land Registry
in March 1977 in the names of the plaintiffs, was put in first-class order
and let once again. Mrs. Lamb then sent the bill to the council. She
said the expense was all due to their negligence or to a nuisance created
by them in the course of their work on the sewer. Eventually the
council admitted liability for nuisance. The damages were left to an
official referee. About 50,000 was expense due to the subsidence.
But nearly 30,000 was the cost of repairing the malicious damage done
by the squatters and their thefts.

G
Lord Reid's test
On those facts this point of law arises: can Mrs. Lamb recover from
the council the 30,000 due to the squatters' damage? The official
referee, Judge Edgar Fay, found that it was too remote and was not
recoverable. He cited the; speech of Lord Reid in Dorset Yacht Co. Ltd. v.
Home Office [1970] A.C. 1004, especially the passage where Lord Reid'
H
said, at p. 1030:
" These cases show that, where human action forms one of the
links between the original wrongdoing of the defendant and the

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Lamb v. Camden Council (C.A.)

[1981]

loss suffered by the plaintiff, that action must at least have been
something very likely to happen if it is not to be regarded as novus
actus interveniens breaking the chain of causation. I do not think
that a mere foreseeable possibility is or should be sufficient, for then
the intervening human action can more properly be regarded as a
new cause than as a consequence of the original wrongdoing. But
if the intervening action was likely to happen I do not think that
it can matter whether that action was innocent or tortious or B
criminal. ' Unfortunately, tortious or criminal action by a third
party is often the ' very kind of thing' which is likely to happen
as a result of the wrongful or careless act of the defendant. And
in the present case, on the facts which we must assume at this
stage, I think that the taking of a boat by the escaping trainees
and their unskilful navigation leading to damage to another vessel Q
were the very kind of thing that these Borstal officers ought to have
seen to be likely."
In our present case the judge applied that passage in these words:
" In the light of [the evidence] I think I would feel disposed, if it
were relevant, to hold that squatting was at the material time a
reasonably foreseeable risk, but I am quite satisfied that no one D
familiar with the house and the locality would at any time between
the accident in the autumn of 1973 and the first invasion about a
year later have said that squatting was likely. It follows that in my
judgment the extensive damage caused by the squatters is too
remote and cannot form part of the damage payable by the
defendants."

Was Lord Reid right or wrong?

Mr. Blom-Cooper (who was himself counsel in the Dorset Yacht
case) submitted that Lord Reid was in error in that passage. For once
Homer nodded. Presumptuous as it is, I agree.
In the first place the saying of Lord Reid was an obiter dictum, p
The Dorset Yacht case came up for decision on a preliminary issue.
It was whether the Home Office " owed any duty of care to the plaintiffs [the owners of the yacht] capable of giving rise to a liability in
damages": see p. 1008E. SO the question was only as to the duty of
care. It was not as to remoteness of damage or as to causation.
Yet, I have often said, the three questionsduty, causation and
remotenessrun continually into one another. So it was natural for the G
Law Lords to run them together. As I read the speeches they were much
concerned to limit the extent of the liability of the Home Office. But
they did it in different ways. Three of them did it by restricting the
range of persons to whom the duty was owed. Lord Morris of Borthy-Gest said, at p. 1034D-E, the duty was owed " to the owners of the
nearby yachts." Lord Pearson said that the duty was owed to the JJ
boatowners: he said at p. 1054F that "the plaintiffs as boatowners were
in law ' neighbours' of the defendants." Lord Diplock said, at pp.
1070H-1071A, that the duty of the Borstal officer was

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Lord Denning M.R.

" owed only to persons whom he could reasonably foresee had

property situate in the vicinity of the place of detention of the
detainee which the detainee was likely to steal or to appropriate
and damage in the course of eluding immediate pursuit and
recapture."

Now I would test the rulings of the Law Lords by asking: Suppose
g that, by some negligence of the staff, a Borstal boyor an adult prisonerescapes over the wallor from a working party. It is not only
reasonably foreseeableit is, as we all know, very likelythat he will
steal a car in the immediate vicinity. He will then drive many miles,
abandon the car, break into a house and steal clothes, get a lift in a
lorry, and continue his depredations. On Lord Diplock's testand I
fancy Lord Morris of Borth-y-Gest and Lord Pearson alsothe Home
C Office would owe a duty of care to the owner of the stolen car but to
none of the others who suffered damage. So the owner of the car could
sue, but the others could not. But on Lord Reid's test of " very likely "
to happen, the Home Office would be liable not only to the owner of
the stolen car, but also to all the others who suffered damage: because
it was very likely to happen.
D
That illustration convinces me that Lord Reid's test was wrong. If
it were adopted, it would extend the liability of the Home Office beyond
all reason. The Home Office should not be liable for the depredations
of escaped convicts. The householders should recover for the damage
not against the Home Office but on their insurance policies. The
insurers should not by subrogation be able to pass it on to the Home
E Office.
Another reason why I would reject Lord Reid's test is that I find
it difficult to reconcile with Stansbie v. Troman [1948] 2 K.B. 48. The
decorator was held to be under a duty of care to the householderto
lock the doorbut no one could suggest that it was very likely that
a thief would walk in and steal the diamond bracelet. Tucker L.J.
F said, at p. 52, that the decorator was liable because it was " as a direct
result of his negligence that the thief entered by the front door." He
was obviously applying In re Polemis and Furness, Withy & Co. Ltd.
[1921] 3 K.B. 560, which had not then been overruled. If the decision
in Stansbie v. Troman [1948] 2 K.B. 48 is to be justified nowadays,
it can only be because it was reasonably foreseeable that a thief might
G walk innot that it was at all likely.
The third reason is that I find the test of " very likely " very difficult to reconcile with the Wagon Mound cases [1961] A.C. 388; [1967]
1 A.C. 617 which were summarised by Lord Upjohn in C. Czarnikow Ltd.
v. Koufos [1969] 1 A.C. 350, 422C-D:
" . . . the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach however unlikely
it may be, unless it can be brushed aside as far-fetched. See the
Wagon Mound cases ([1961] A.C. 388; [1967] 1 A.C. 617)."

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[1981]

The alternative test

If Lord Reid's test is wrong, what is the alternative test? Logically,
I suppose that liability and compensation should go hand in hand. If
reasonable foresight is the criterion in negligence, so also it should be
in remoteness of damage. That was the test for which Mr. BlomCooper contended. He supported it by reference to the case in New
South Wales of Chomentowski v. Red Garter Restaurant Pty. Ltd.
(1970) 92 W.N. (N.S.W.) 1070, where a head waiter was hit over the B
head by a robber. The management were negligent in not taking
sufficient precautions. They were held liable because the attack might
reasonably have been foreseen, though not very likely.
To my mind that alternative test is also not acceptable. It would
extend the range of compensation far too widely. Take the Chomentowski case itself. In England the head waiter would be able to get full Q
compensation for his injuries from the Criminal Injuries Compensation
Board for victims of violent crimes. That would be preferable to making
the manager liable for his pardonable want of foresight. Take next the
illustration I took from the Dorset Yacht case [1970] A.C. 1004 of the
criminal who escapes (owing to the negligence of the prison staff) and
breaks into people's houses. Although it could reasonably be foreseen,
D
the Home Office are not liable for his depredations.
Take next the recent case in this court* of the wife who suffers
nervous shock by being told of the motor accident in which her family
were dead or dying. It could reasonably be foreseen. But the negligent driver is not liable in damages for her shock.
The truth
E
The truth is that all these threeduty, remoteness and causation
are all devices by which the courts limit the range of liability for
negligence or nuisance. As I said recently, in Compania Financiera
"Soleada" S.A. v. Hamoor Tanker Corporation Inc. [1981] 1 W.L.R.
274, 281E-F. " . . . it is not every consequence of a wrongful act which is
the subject of compensation. The law has to draw a line somewhere." p
Sometimes it is done by limiting the range of the persons to whom duty is
owed. Sometimes it is done by saying that there is a break in the chain
of causation. At other times it is done by saying that the consequence
is too remote to be a head of damage. AH these devices are useful in
their way. But ultimately it is a question of policy for the judges to
decide. I venture to repeat what I said in Dutton v. Bognor Regis
Urban District Council [1972] 1 Q.B. 373, 397:
G
" It seems to me that it is a question of policy which we, as judges,
have to decide. The time has come when, in cases of new import,
we should decide them according to the reason of the thing. In
previous times, when faced with a new problem, the judges have not
openly asked themselves the question: what is the best policy for
the law to adopt? But the question has always been there in the H
background. It has been concealed behind such questions as: Was
McLoughlin v. O'Brian [1981] Q.B. 599.

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Lord Denning M.R.

the defendant under any duty to the plaintiff? Was the relationship between them sufficiently proximate? Was the injury direct
or indirect? Was it foreseeable, or not? Was it too remote? And
so forth. Nowadays we direct ourselves to considerations of
policy."
When Dutton's case reached the House of Lords by way of Anns v.
Merton London Borough Council [1978] A.C. 728, our decision was
upheld. This approachon grounds of policywas adopted by the
Court of Appeal in the recent case about nervous shock, McLoughlin
v. O'Brian [1981] Q.B. 599. Liability for nervous shock is limited to
those at or near the highway at the time of the accident. It does not
extend to those further away.
C A question of policy
Return to the present case
Looking at the question as one of policy, I ask myself: whose job
was it to do something to keep out the squatters? And, if they got
in, to evict them? To my mind the answer is clear. It was the job
of the owner of the house, Mrs. Lamb, through her agents. That is
D how everyone in the case regarded it. It has never been suggested in
the pleadings or elsewhere that it was the job of the council. No one
ever wrote to the council asking them to do it. The council were not
in occupation of the house. They had no right to enter it. All they
had done was to break the water main outside and cause the subsidence.
After they had left the site, it was Mrs. Lamb herself who paved the
way for the squatters by moving out all her furniture and leaving the
house unoccupied and unfurnished. There was then, if not beforeon
the judge's findingsa reasonably foreseeable risk that squatters might
enter. She ought to have taken steps to guard against it. She says
that she locked the doors and pulled the shutters. That turned out to
be insufficient, but it was her responsibility to do more. At any rate,
when
the squatters did get in on the first occasion in 1974, it was
p
then her agents who acted on her behalf. They got the squatters out.
Then, at any rate, Mrs. Lamb or her agents ought to have done something effective. But they only put up a few boards at a cost of 10.
Then there was the second invasion in 1975. Then her agents did
recognise her responsibility. They did what they could to get the
squatters out. They eventually succeeded. But no one ever suggested
G throughout that it was the responsibility of the council.
In her evidence Mrs. Lamb suggested that she had not the money
to do more. I do not think the judge accepted the suggestion, Her
agents could well have made the house secure for a modest sum which
was well within her capabilities.
On broader grounds of policy, I would add this: the criminal acts
TT heremalicious damage and theftare usually covered by insurance.
By this means the risk of loss is spread throughout the community.
It does not fall too heavily on one pair of shoulders alone. The
insurers take the premium to cover just this sort of risk and should not

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Lamb v. Camden Council (C.A.)

[1981]

be allowed, by subrogation, to pass it on to others. Just as in Stansbie A

v. Troman [1948] 2 K.B. 48, the householder was no doubt insured
against theft of the diamond bracelet. She should have recovered its
value from the insurers and not from the decorator whose only fault
was that he forgot to put the latch down. It might be decided differently
today. It is commonplace nowadays for the courts, when considering
policy, to take insurance into account. It played a prominent part in
Photo Production Ltd. V. Securicor Transport Ltd. [1980] A.C. 827. B
The House of Lords clearly thought that the risk of fire should be borne
by the fire insurers who had received the full premium for fire risk
and not by Securicor's insurers, who had only received a tiny premium.
That, too, was a policy decision. It was a direct consequence of the
Unfair Contract Terms Act 1977. Before that Act, the doctrine of
fundamental breach was an essential part of our legal system: so as to Q
protect the small consumer from unjust exemption clauses.
So here, it seems to me that if Mrs. Lamb was insured against damage
to the house and theft, the insurers should pay the loss. If she was
not insured, that is her misfortune. Taking all these policy matters
into account, I think the council are not liable for the acts of these
squatters. I would dismiss this appeal.
OLIVER L.J. The relevant facts have already been recited in the
judgment of Lord Denning M.R. and were never seriously in dispute.
At the time when the nuisance occurred Mrs. Lamb, the first plaintiff,
was living in the United States and the house had been let to some
tenants. They continued to live in the house for a few months after
the disaster but moved out in January 1974 thinking, no doubt correctly,
that the house was no longer safe for occupation. Fortunately, although
the house was unoccupied, Mrs. Lamb's furniture remained intact and
in July 1974 she returned to England in order, among other things, to
cope with the emergency. Being then of the view that work on restoring
the house would be undertaken in the near future, she removed her
furniture into store and the house was from then on empty and unoccupied until it was invaded by squatters in the latter part of 1974. The
evidence of one of the neighbouring householders was that the house
was well protected. It had shutters, was well locked and bolted and had
secure glass. It was not, he said, particularly vulnerable compared with
most houses.
When the squatters broke in the neighbours communicated with
Mrs. Lamb and she, through her then solicitors, started proceedings to
evict them under R.S.C., Ord. 113. Those proceedings were duly served
but it proved unnecessary to obtain an order since the squatters left
in January 1975 of their own accord. Thereafter the house was
resecured, although perhaps not very effectively. Mrs. Lamb's father,
the second plaintiff, who was looking after her affairs in Englandshe
having returned to. New York before the squatters arrivedarranged
with some builders working nearby to board up some of the lower
windows with hardboard nailed to the frames and some further boarding
was affixed by neighbours, who were naturally concerned at the arrival

JJ

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JJ

Lamb v. Camden Council (C.A.)

Oliver LJ.

of squatters in their midst. These measures proved ineffective and

some time in the spring or summer of 1975 a fresh lot of squatters broke
in. Thereafter until May 1977 the house was occupied by a shifting
population of trespassers. No proceedings were taken to evict them,
but an attempt was made to encourage them to leave by cutting off
services. The only result of that was that they took retaliatory action
by stripping everything in the house and either selling it or burning it.
No doubt that contributed substantially to the staggering figure of
36,000 for making good the damage caused. Finally in May 1977
Mrs. Lamb's agents managed to secure possession of the house by a
combined operation with the local police and thereafter most elaborate
precautions were taken to prevent further break-in until the builders
arrived on the scene and started the work of repair. Even these do not
appear to have been 100 per cent, successful but at least there was no
further occupation by squatters.
We are not concerned on this appeal with any question of contributory negligence or failure by Mrs. Lamb to mitigate. These were
matters which were canvassed extensively before the official referee
although the only case pleaded was that the damage suffered from
squatters was too remote. In the course of his judgment he posed a
number of questions with regard to Mrs. Lamb's responsibility in
leaving a house empty, but he felt it unnecessary to answer them because
of the view which he took on the question of remoteness. In the
result there are no findings of fact on these matters upon which this
court can act if it takes a contrary view on the question of remoteness.
That therefore is and remains the only questionis the damage which
was undoubtedly caused as a result of the successive incursions of
squatters into this empty house damage for which the defendants, as
the authors of the condition of the house, must be held responsible or
is it an alien misfortune which Mrs. Lamb must bear herself as one of
the uncompensatable hazards of living in a modern society?
Mrs. Lamb's case is a very simple one. She says that here was a
house rendered unfit for occupation by the fault of the defendants. It
needed little imagination to foresee that if a tortfeasor causes such
serious damage to a house that it can no longer be occupied that house
must inevitably be vacated and cleared and will remain empty for such
period as is necessary for the necessary remedial work to be identified,
specified, financed and undertaken. That period will almost inevitably
be lengthened in the case of very serious damage such as occurred
heredamage which in fact exceeded the value of the original building
if the tortfeasor persists, as the defendants did, in resisting any
liability at all right up to the last moment. If, at the time when this
disaster occurred, you left a house empty for any length of time in
the area of Greater Londonat any rate empty without a " For Sale "
board outside itthe most likely thing in the world was that it would
be entered by casual trespassers of one sort or another and probably
by regular squatters, and it is notorious that squatters cause just the
sort of damage that was caused here. Thus, the argument proceeds,
the precise type of damage which has in fact occurred, although not

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Lamb v. Camden Council (C.A.)

[1981]

perhaps the severity of it, was a reasonably foreseeable result of the

defendants' original, wrongful act.
The defendants, on the other hand, argue that although damage
which is not reasonably foreseeable is too remote, foreseeability is
only one ingredient of remoteness. It is necessary, so it is argued, to
demonstrate in addition a further ingredient of a sufficient nexus between
the wrongful act and the injury sustained. What is referred to as the
" chain of causation " may be broken and the most common example
of a break in the chain is the intervening act of a third person over
whom the tortfeasor can exercise no control. Such an intervention
does not always break the chain and, in particular, it will not do so
where the very breach of duty relied on is the duty of the defendant
to prevent the sort of intervention which has occurred or where, at
the date of the commission of the tortious act, the act of the third
party which has given rise to the damage was likely to occur (as
opposed to being merely foreseeable).
It was this argument which appealed to the official referee. He
based himself upon the analysis contained in the speech of Lord Reid
in Dorset Yacht Co. Ltd. v.'Home Office [1970] A.C. 1004, 1027-1030
and he concluded that, in cases where what has brought about the
damage complained of is the free act of an independent third party,
whether that act be innocent or tortious, it is not enough to demonstrate that the act of the third party was reasonably foreseeable. It is
necessary to go further and to show that the act was " likely" to
occur. In the light of his findings of fact, he held that the damage
was too remote, but in making his findings of fact he had in mind the
test which he had just propounded. No complaint can be made about
that if the test is right, but there is a considerable difficulty if the test
in the light of which the findings are made is not the right test.
The only relevant evidence on this aspect of the case before the
official referee was that of two neighbours of Mrs. Lamb which was
to the effect that they were aware that there had been problems with
squatters in Hampstead, in particular in the Maiden Road area about a
mile away. That was, however, an area of a very different character
from that in which Mrs. Lamb's house was situate and there had been
no previous experience of squatters in the Vale of Health. The first
witness, Mr. Landell Mills, added: " I think we were all very shocked
and surprised when it happened."
The official referee found:
" There had been no squatters before this case in the better class
parts of Hampstead. In the light of this evidence I think I would
feel disposed, if it. were relevant, to hold that squatting was at the
material time a reasonably foreseeable risk, but I am quite satisfied
that no one familiar with the house and the locality would at any
time between the accident in the autumn of 1973 and the first
invasion about a year later have said that squatting was likely.
It follows that in my judgment the extensive damage caused by
the squatters is too remote and cannot form part of the damage
payable by the defendants."

**

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Oliver LJ.

The difficulty about this is that if, as Mr. Blom-Cooper submits,

the test of likelihood was a wrong test, then there is no clear finding
about whether the risk was a reasonably foreseeable one, for the official
referee merely states what he thinks that he could have been disposed
to find if, contrary to the view which he took, it had been relevant to
make a finding on the point. But leaving this difficulty aside for the
moment, was the test the right one? I think that it was or that, if it
was not, the error lay not in qualifying the general test of foreseeability
but in not qualifying sufficiently.
Speaking for myself, I am not able to accept Mr. Laughland's submission in the form in which he put itnamely that reasonable foreseeability is but one ingredient in a composite test of remoteness which
involves a further ingredient which he has described as " nexus." This
seems to me to be restoring that very fallacy which was exemplified in
In re Polemis and Furness, Withy & Co. Ltd. [1921] 3 K.B. 560 and
was so decisively rejected in Overseas Tankship (U.K.) Ltd. v. Miller
Steamship Co. Pty. (The Wagon Mound (No. 2)) [1967] 1 A.C. 617.
That case established that the test of causation is reasonable foreseeability and I can find no room for the suggestion that even though a
particular result may be reasonably foreseen as the consequence of an
act yet the result may be too remote a consequence because of a lack
of " nexus." Nexus, after all, means only " connection " and it must
be comprehended in the very concept of foreseeability itself. If there
is, as a matter of fact, no connection between the act and the result, it
is difficult to see how the result could be foreseen by any reasonable
man as a consequence of the act.
Mr. Laughland advances his submission as the groundwork for the
further submission that, where one of the links in the chain between
act and result is the act of an independent third person, the nexus is
broken unless that act is not merely foreseen but is either " likely " or
" very likely." This concept is reflected in the judgment of the official
referee in the passage to which I have referred and it is based upon the
analysis in the speech of Lord Reid in Dorset Yacht Co. Ltd. v. Home
Office [1970] A.C. 1004. His analysis is summarised in the following
passage, at p. 1030:
"These cases show that, where human action forms one of the
links between the original wrongdoing of the defendant and the
loss suffered by the plaintiff, that action must at least have been
something very likely to happen if it is not to be regarded as
novus actus interveniens breaking the chain of causation. I- do
not think that a mere foreseeable possibility is or should be
sufficient, for then the intervening human action can more properly
be regarded as a new cause than as a consequence of the original
wrongdoing. But if the intervening action was likely to happen I
do not think that it can matter whether that action was innocent
or tortious or criminal. Unfortunately, tortious or criminal action
by a third party is often the ' very kind of thing' which is likely
to happen as a result of the wrongful or careless act of the
defendant."

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Lamb v. Camden Council (C.A.)

[1981]

The views which Lord Reid there expressed are not reflected in the
speeches of the others of their Lordships in the case and were, I think,
obiter, since there was no scope for argument on the assumed facts that
the damage which occurred was not the very thing that was likely to
happen. But, obiter or no, Lord Reid's opinion must be at least of
the very highest persuasive authority. For my part, however, I very
much doubt whether he was, in what he said regarding the likelihood
of the act of a third party, intending to bring back into the test of
remoteness some further philosophical consideration of nexus or direct
or indirect causation. As it seems to me, all that Lord Reid was saying
was this; that where as a matter of fact the consequence which the
court is considering is one which results from or would not have
occurred but for the intervention of some independent human agency
over which the tortfeasor has no control, it has to approach the problem
of what could be reasonably foreseen by the tortfeasor, and thus of
the damage for which he is responsible, with particular care. The
immediate cause is known. It is the independent human agency, and
one has therefore to ask, on what basis can the act of that person be
attributed back to the tortfeasor? It may be because the tortfeasor
is responsible for his actions or because the third party act which has
precipitated the damage is the very thing that the tortfeasor is employed
to prevent. But what is the position in the absence of some such consideration? Few things are less certainly predictable than human
behaviour and if one is asked whether in any given situation a human
being may behave idiotically, irrationally, or even criminally, the answer
must always be that that is a possibility, for every society has its proportion of idiots and criminals. It cannot be said that you cannot foresee
the possibility that people will do stupid or criminal acts, because people
are constantly doing stupid or criminal acts. But the question is not
what is foreseeable merely as a possibility but what would the reasonable
man actually foresee if he thought about it, and all that Lord Reid seems
to me to be saying is that the hypothetical reasonable man in the position
of the tortfeasor cannot be said to foresee the behaviour of another
person unless that behaviour is such as would, viewed objectively, be
very likely to occur. Thus, for instance, if by my negligent driving I
damage another motorist's car, I suppose that theoretically I could
foresee that, whilst he leaves it by the roadside to go and telephone his
garage, some ill-intentioned passer-by may jack it up and remove the
wheels. But I cannot think that it could be said that, merely because I
have created the circumstances in which a theft might become possible,
I ought reasonably to foresee that it would happen.
Now if this is right it does raise a difficulty over the official referee's
finding. If the likelihood of human behaviour is an element in reasonable foreseeability the official referee's disposition to say that the
invasion of squatters was reasonably foreseeable is inconsistent with his
actual finding of fact that squatting was unlikely, and that is the only
actual finding. What I think, with respect, he was doing in this passage
of his judgment was confusing " foreseeable " with " reasonably foreseeable." That indeed would be consistent with the passage from Lord

JJ

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Lamb v. Camden Council (C.A.)

Oliver LJ.

Reid's speech on which he was relying as stating the principle. Lord.

Reid said in terms that foreseeability " as a possibility." was not sufficient
and I think that what the official referee has done is to treat that as
meaning, in the context, "reasonable foreseeability as a possibility."
In the context in which, as I think, Lord Reid was using the expression
"as a possibility" (that is to say, as meaning "only a bare possibility
and no more ") that seems to me to be a contradiction in terms and
B for the reasons which I have endeavoured to explain it was not what
Lord Reid intended and it was not what he said. The critical finding
here is, to my mind, that the incursion of squatters was in fact unlikely.
Given this finding, it seems to me that accepting Lord Reid's test
as correct (which Mr. Blom-Cooper challenges) it must be fatal to the
plaintiffs' contentions on this appeal, because it constitutes in effect a
Q finding that the damage claimed is not such as could be reasonably
foreseen. And that, indeed, seems to me.to accord with the common
sense of the matter.
The test of remoteness is said to be the same as the test of duty in
negligence: see Overseas Tankship (U.K.) Ltd. v. Morts Dock &
Engineering Co. Ltd, (The Wagon Mound) [1961] A.C. 388. If the
instant case is approached as a case of negligence and one asks
D
the question, did the defendants owe a duty not to break a waterpipe
so as to cause the plaintiffs' house to be invaded" by squatters a year
later, the tenuousness of the linkage between act and result becomes
apparent. I confess that I find.it inconceivable that the reasonable man
wielding his pick in the road in 1973 could be said reasonably to foresee
that his puncturing of a water main would fill the plaintiffs' house
E with uninvited guests in 1974. ' Whilst, .therefore, 1 am not altogether 'in
accord with the official referee's reasoning,. I think that he came to the
right conclusion in the light of his finding of fact,, which hjas not. been
challenged. Accordingly, the appeal should, in. my, judgment, be
dismissed.
I should perhaps add that I do not dissent from the view of Lord
F Denning M.R. that the test expressed by Lord Reidwith, as I think, the
intention of restricting the ambit of the duty in tortwas incorrect in
that, it was not exhaustive and did not go far enough in that direction.
To apply a straight test of foreseeability or likelihood to hypothetical
circumstances which could arise in relation to the acts of independent
third parties in the'case of, for instance, carelessness on the part of
servants of the Home Office does,-as-Lord Denning M.R. points out,
G produce some astonishing results. Suppose that as a result.of the carelessness of a prison-officer a prisoner escapes.and qommits a crime-of
the same type as that for which he is in custody a fortnight later and
400 miles away from the place at which, he escaped? Is it any less
foreseeable that he will do so than that he will steal his rail fare from
a house adjoining the prison? And is the Home. Office to be liable
without limit until the prisoner is' apprehended? .Does it make-an^
difference if he is,, at the date of. his escape, on remand dr. due. for
parole? Happily such hypothetical questions d6 not, on the view that
I take, have to be answered in the instant case but whether or, not it is

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Oliver LJ.

Lamb v. Camden Council (C.A.)

[1981]

right to regard questions of remoteness according to some flexible test

of the policy of the law from time to time (upon which I prefer at the
moment to express no view) I concur with Lord Denning M.R. in
regarding the straight test of foreseeability, at least in cases where the
acts of independent third parties are concerned, as one which can, unless
subjected to some further limitation, produce results which extend the
ambit of liability beyond all reason. Speaking for myself, I would
respectfully regard Lord Reid's test as a workable and sensible one, B
subject only to this; that I think that he may perhaps have understated
the degree of likelihood required before the law can or should attribute
the free act of a responsible third person to the tortfeasor. Such attribution cannot, as I think, rationally be made simply on the basis of
some geographical or temporal proximity and even " likelihood " i s a
somewhat uncertain touchstone. It may be that some more stringent
standard is required. There may, for instance, be circumstances in
which the court would require a degree of likelihood amounting almost
to inevitability before it fixes a defendant with responsibility for the act
of a third party over whom he has and can have no control. On the
official referee's finding, however, that does not arise here and the
problem can be left for a case in which it directly arises.
D
WATKINS LJ. " This doctrine of remoteness of damage is one of
very considerable obscurity and difficulty." So wrote the editor of
Salmond on Torts, 17th ed. (1977), p. 538. If I did not consciously
share that opinion previously from a fairly long acquaintance with the
subject I have, since hearing the able submissions made to this court,
to confess to feelings of apprehension of never emerging out of the _
maze of authorities on the subject of remoteness into the light of a
clear understanding of it. On my way to providing an answer to the
question raised in this appeal I have sometimes felt like Sir Winston
Churchill must have done when he wrotef:
" I had a feeling once about mathematics, that I saw it alldepth
beyond depth was revealed to me>the byss and the abyss. I saw, as
one might see the transit of Venusor even the Lord Mayor's Show, F
a quantity passing through infinity and changing its sign from plus
to minus. I saw exactly how it happened and why the tergiversation was inevitable: and how one step involved all the others.
It was like politics. . . . But it was after dinner and I let it go! "
This appeal involves but a single issue. Was the damage done to
Mrs. Lamb's house by squatters too remote to be a consequence of the **
defendants' initial negligent and damaging act which partly destroyed
support for the house for which they have to compensate her?
Counsel for the plaintiffs contends that, since the official referee
intimated in his judgment that, if thereby he was applying the only
relevant and correct test he would be disposed to hold that an invasion
of the undermined house by squatters was a risk reasonably foreseeable H
by the defendants, the case should go back to him so that he can
t see My Early Life, ch. 3.

645
1 QB.

Lamb v. Camden Council (C.A.)

Watkins LJ.

. positively make that finding and give judgment for Mrs. Lamb for the
sum claimed in respect of squatters' damage. For, he says, reasonable
foreseeability simpliciter of the fresh kind of damage done is, since
The Wagon Mound [1961] A.C. 388, the sole test which determines
whether fresh damage caused by an act which is independent of and
committed later than the initial tortious act is too remote: whether, in
other words, it is truly a novus actus interveniens for the damage caused
B by which a defendant is not liable.
He submits that Lord Reid was out of step with The Wagon Mound
test which should always be followed nowadays when in Dorset Yacht
Co. Ltd. v. Home Office [1970] A.C. 1004,1030 he said:
". . . where human action forms one of the links between the
original wrongdoing of the defendant and the loss suffered by the
Q
plaintiff, that action must at least have been something very likely
to happen if it is not to be regarded as novus actus interveniens
breaking the chain of causation. I do not think that a mere foreseeable possibility is or should be sufficient, for then the intervening
human action can more properly be regarded as a new cause than
as a consequence of the original wrongdoing. But if the intervening action was likely to happen I do not think that it can matter
D
whether that action was innocent or tortious or criminal. Unfortunately, tortious or criminal action by a third party is often the
'very kind of thing' which is likely to happen as a result of the
wrongful or careless act of the defendant."
So by, as he did, adopting the opinion of Lord Reid the official referee
was also out of step with The Wagon Mound [1961] A.C. 388 and
E applied the wrong test to the issue of remoteness. If he had allowed
himself to be governed by The Wagon Mound he would inevitably have
found for Mrs. Lamb for the considerable damage deliberately and
criminally caused by the squatters.
I feel bound to say with respect that what Lord Reid said in the
Dorset Yacht case [1970] A.C. 1004, 1030, does nothing to simplify the
P task of deciding for or against remoteness especially where the fresh
damage complained of has been caused by the intervening act of a
third party. It may be that in respect of such an act he is to be
understood as saying, without using his remarkable and usual clarity of
expression, that damage is inevitably too remote unless it can reasonably
be foreseen as likely to occur. If that be so, it could be said that he was
not intending to depart from The Wagon Mound test [1961] A.C. 388
G save in cases involving intervening human action to which he would
apply a rather stricter than usual test by placing acts which are not
likely to occur within the realm of remoteness.
In McKew v. Holland & Hannen & Cubitts (Scotland) Ltd. [1969]
3 All E.R. 1621, Lord Reid had given more than a hint of this when he
said, at p. 1623:
PI
" A defender is not liable for a consequence of a kind which is
not foreseeable. But it does not follow that he is liable for every
consequence which a reasonable man could foresee. What can be
foreseen depends almost entirely on the facts of the case, and it is

646
Watkins L.J.

Lamb v. Camden Council (C.A.)

,[1981]

often easy to foresee unreasonable conduct or other novus actus

interveniens as being quite likely. But that does not mean that the A
defender must pay for damage caused by the novus actus. It
only leads to trouble that if one tries to graft on to the concept of
foreseeability some rule of law to the effect that a wrongdoer is not
bound to foresee something which in fact he could readily foresee
as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take JJ
some quite unreasonable risk. But if he does he cannot hold the
defender liable for the consequences."
From the foregoing it is also obvious that Lord Reid would regard some
kinds of intervening acts done by third parties as too remote even
though they could reasonably be foreseen as likely or quite likely to
occur.
The plaintiff McKew had caused fresh damage to himself as a result
of taking an unreasonable risk. That he would be likely or quite
likely to do this was said to have been reasonably foreseeable. Yet
because he had behaved unreasonably in the doing of it, his act was
found to be a novus actus interveniens which freed the defendants from
all liability for it. This decision has in some quarters been criticised on
the basis that it would have been more in accordance with principle to
have treated the plaintiff's unreasonable conduct as contributory negligence. I do not agree. ,1 prefer to regard the decision in McKew
V. Holland & Hannen & Cubitts {Scotland) Ltd. [1969] 3'All E.R. 1621
as a good example of. a determination to bring realistic consideration to
bear upon the question of fresh damage arising from an event or act
occurring subsequently to the initial negligent act in the context of
remoteness of damage.
It seems to me that if the sole and exclusive test of remoteness is
whether the fresh damage which has arisen from an event or act which
is reasonably foreseeable or reasonably foreseeable as a possibility, or
likely or quite likely to occur, absurd, even bizarre, results might ensue
in actions for damages for negligence. Why, if this-test-were to be
rigidly applied to the facts in the Dorset Yacht case [1970] A.G. 1004,
one can envisage the Home Office being found liable for the damage
caused by an escaped Borstal boy committing a burglary in John
O'Groats. This would plainly be a ludicrous conclusion.
I do not think that words such as, among others, " possibility,"
"likely," or "quite likely," assist in .the application of the test of
reasonable foreseeability. If the crisply stated test which" emanates from
The Wagon Mound [1961] A.C. 388 is to be festooned with additional
words supposedly there for.'the purpose of amplification or qualification,
an understandable" application of it will become impossible. In my
view The Wagon Mound test should always be applied without any of
the gloss which is from time to time being applied to it. ;
".
But when "so applied it cannot in all circumstances-in whieh it arises
conclude consideration of the'question of remoteness although in the
vast majority of cases it will be adequate for this purpose. In other
cases, the present one being an example of these in my opinion, further

p
t

647
1 Q.B.

Lamb v. Camden Council (C.A.)

Watkins LJ.

consideration is necessary, always providing, of course, that a plaintiff

survives the test of reasonable foreseeability.
This is because the very features of an event or act for which
damages are claimed themselves suggest that the event or act is not
upon any practical view of it remotely in any way connected with the
original act of negligence. These features will include such matters as
the nature of the event or act, the time it occurred, the place where it
B occurred, the identity of the perpetrator and his intentions and responsibility, if any, for taking measures to avoid the occurrence and matters
of public policy.
A robust and sensible approach to this very important area of the
study of remoteness will more often than not produce, I think, an
instinctive feeling that the event or act being weighed in the balance is
too remote to sound in damages for the plaintiff. I do not pretend
that in all cases the answer will come easily to the inquirer. But that
the question must be asked and answered in all these cases I have no
doubt.
To return to the present case, I have the instinctive feeling that
squatters' damage is too remote. I could not possibly come to any
other conclusion, although on the primary facts I, too, would regard that
D damage or something like it as reasonably foreseeable in these times.
We are here dealing with unreasonable conduct of an outrageous
kind. It is notorious that squatters will take the opportunity of entering
and occupying any house, whether it be damaged or not, which is found
to be unoccupied for more than a very temporary duration. In my
opinion this kind of anti-social and criminal behaviour provides a glaring
example of an act which inevitably, or almost so, is too remote to cause
a defendant to pay damages for the consequences of it.
Accordingly, I would hold that the damage caused by the squatters
in the present case is too remote to be recovered from these defendants.
The reasons I have explained for arriving at this conclusion are, of
course, dissimilar from those which led the official referee to a similar
one. His approach to the matter was I feel bound to say wrong in my
F opinion but, since it produced what I believe to be a correct answer to
the question posed in the appeal, he cannot be called upon to reconsider
his judgment. I would dismiss this appeal.
Appeal dismissed.
Matters of costs and leave to
appeal adjourned sine die.
Solicitors: Bernard Sheridan & Co.; Wilkinson, Kimbers & Staddon.
July 23. The Court of Appeal (Lord Denning M.R., Oliver and
Watkins L.JJ.) ordered that the defendants' costs of the appeal after
taxation be paid by the plaintiffs, who were legally aided; that the money
H in court (17,750) be subject to a charge in favour of The Law Society;
and refused the plaintiffs' application for leave to appeal to the House of
Lords.
A. H. B.