[1961] 3 All ER 1159

S was employed by the defendants as a labourer and galvanizer. Part of his work consisted in lowering articles into a tank of molten metal and flux and subsequently removing them. Whilst he was so engaged, a piece of molten metal spattered out and burned his lip. He later contracted cancer, underwent operations, and died. It was found that the defendants had been negligent, and that the burn was the promoting agency, promoting cancer in tissues which already had a pre-malignant condition. His widow, suing as administratrix and on her own behalf and on behalf of dependent children, claimed damages under the Law Reform (Miscellaneous Provisions) Act, 1934, for loss of expectation of life, and under the Fatal Accidents Acts, 1846 to 1908, on the basis of the burn resulting in cancer causing S's death.

Held - For the purpose of assessing damages a tortfeasor took his victim as he found him, and the decision in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ([1961] 1 All ER 404) did not override this principle; accordingly, since the type of injury which S suffered, was reasonably foreseeable, the defendants were liable for the damages claimed, although they could not reasonably have foreseen the ultimate consequences of the initial injury, viz, that the burn would cause cancer from which S would die.
   Principle stated by Kennedy J in Dulieu v White & Sons ([1901] 2 KB at p 679) applied.
   Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ([1961] 1 All ER 404) considered.
   Per Lord Parker CJ: sitting as a trial judge i should treat myself as able to follow, in the light of the arguments in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd ([1961] 1 All ER 404), decisions of the Court of Appeal prior to Re Polemis and Furness, Withy & Co Ltd 1159([1921] All ER Rep 40) rather than that decision itself (see p 1162, letter c, post).

Notes
As to remoteness of damage in negligence, see 11 Halsbury's Laws (3rd Edn) 278, para 459; and 28 Halsbury's Laws (3rd Edn) 98, para 106; and for cases on the subject, see 17 Digest (Repl) 114, 115, 268-276.

Action
The plaintiff, Mary Emma Smith, as administratrix of the estate of her deceased husband, William John Smith, claimed, in an action commenced by writ dated 11 March 1955, damages from the defendants, Leech Brain & Co Ltd under the Fatal Accidents Acts, 1846 to 1908^a, and the Law Reform (Miscellaneous Provisions) Act, 1934. The plaintiff's husband was a labourer and galvanizer employed by the defendants at the Glaucus Iron Works, Poplar. The articles to be galvanized were lowered into a tank containing molten metallic zinc and flux. The method used depended on the size of the article. All articles were first dipped in hydrochloric acid and the larger articles were then lowered into the tank by means of an overhead crane, from a position behind a sheet of corrugated iron. On 15 August 1950, the plaintiff's husband was operating the overhead crane, using the corrugated iron sheet supplied, when a piece of molten metal or flux struck and burned his lower lip. The burn was treated at the time but he thought nothing of it. Ultimately the place where the burn had been began to ulcerate and get larger. He consulted his general practitioner who sent him to hospital where cancer was diagnosed. Treatment by radium needles enabled the lip to heal and destroy the primary growth. Subsequently, however, secondary growths were observed. Thereafter he had some six or seven operations, and he died of cancer on 14 October 1953.

   Lord Parker CJ found that the defendants were negligent, that there had been no contributory negligence on the part of the plaintiff's husband, and that the burn was the promoting agency, promoting cancer in tissues which already had a pre-malignant condition as a result of his having worked at gas works, where he would have been in contact with tar or tar vapours from 1926 to 1935.
   The case is reported only on the question of remoteness of damage.

17 November 1961. The following judgment was delivered.

LORD PARKER CJ. I am confronted with the recent decision of the Privy Council in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd. For convenience, that case is always referred to as The Wagon1160 Mound. But for The Wagon Mound, it seems to me perfectly clear that, assuming negligence proved, assuming that the burn caused in whole or in part the cancer and the death, this plaintiff would be entitled to recover. It is said on the one side by counsel for the defendants, that, although I am not strictly bound by The Wagon Mound since it is a Privy Council case, I should treat myself as free, using the arguments to be derived from that case, to say that other cases in the Court of Appeal have been wrongly decided, and, particularly, that Re Polemis and Furness, Withy & Co Ltd was wrongly decided, and that a further ground for taking that course is to be found in the various criticisms that have from time to time in the past been made by members of the House of Lords in regard to Re Polemis. On the other hand, it is said by counsel for the plaintiff that I should hold that Re Polemis was rightly decided and, secondly, that, even if that is not so, I must treat myself as completely bound by it. Thirdly, he said that in any event, whatever the true view is in regard to Re Polemis, The Wagon Mound has no relevance at all to this case.
   For my part, I am quite satisfied that the Judicial Committee in The Wagon Mound did not have what I may call, loosely, the "thin skull" cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him. It is unnecessary to do more than refer to the short passage in the decision of Kennedy J in Dulieu v White & Sons ([1901] 2 KB at p 679), where he said:

To the same effect is a passage in The Arpad ([1934] All ER Rep. at p 331; [1934] P at pp 202, 203). But quite apart from those two references, as is well known, the work of the courts for years and years has gone on on that basis. There is not a day that goes by where some trial judge does not adopt that principle, that the tortfeasor takes his victim as he finds him. If the Judicial Committee had any intention of making an inroad into that doctrine, I am quite satisfied that they would have said so.
   It is true that, if one takes the wording in the advice given by Viscount Simonds in The Wagon Mound and applies it strictly to such a case as this, it could be said that they were dealing with this point. But, as I have said, it is, to my mind, quite impossible to conceive that they were, and, indeed, it has been pointed out that they disclose the distinction between such a case as this and the one which they were considering, when they comment on Smith v London & South Western Ry Co. Lord Simonds, in dealing with that case in The Wagon Mound ([1961] 1 All ER at p 409; [1961] AC at p 416), said this:

In other words, Lord Simonds is clearly there drawing a distinction between the question whether a man could reasonably anticipate a type of injury, and the question whether a man could reasonably anticipate the extent of injury of the type which could be foreseen. The Judicial Committee were, I think, disagreeing with the decision in Re Polemis that a man is no longer liable for the type of damage which he could not reasonably anticipate. The Judicial Committee were not, I think, saying that a man is only liable for the extent of damage which1161 he could anticipate, always assuming the type of injury could have been anticipated. That view is really supported by the way in which cases of this sort have been dealt with in Scotland. Scotland has never, as far as I know, adopted the principle laid down in Re Polemis, and yet I am quite satisfied that they have throughout proceeded on the basis that the tortfeasor takes the victim as he finds him.
   In those circumstances, it seems to me that this is plainly a case which comes within the old principle. The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that Mr Smith would die. The question is whether these defendants could reasonably foresee the type of injury which he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends on the characteristics and constitution of the victim. Accordingly, I find that the damages which the plaintiff claims are damages for which these defendants are liable. Before leaving that part of the case, I should say, in case the matter goes further, that I would follow, sitting as a trial judge, the decision in The Wagon Mound; or rather, more accurately, I would treat myself, in the light of the arguments in that case, able to follow other decisions of the Court of Appeal, prior to Re Polemis, rather than Re Polemis itself. As I have said, Re Polemis has been criticised by individual members of the House of Lords, although followed by the Court of Appeal in Thorogood v Van Den Berghs & Jurgens Ltd. I should treat myself as at liberty to do that, and, for my part, I would do so the more readily, because I think that it is important that the common law, and the development of the common law, should be homogeneous in the various sections of the Commonwealth. It would be lamentable if a court sitting here had to say that, while the common law in the Commonwealth and Scotland has been developed in a particular way, yet we in this country, and sitting in these courts, are going to proceed in a different way. However, as I have said, that does not strictly arise in this case.
   [His Lordship assessed the damages, and awarded £1,500 under the Law Reform (Miscellaneous Provisions) Act, 1934, and £1,564 17s under the Fatal Accidents Acts, 1846 to 1908.]

Solicitors: Nutt & Oliver (for the plaintiff); Goldingham, Wellington & Co (for the defendants).

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