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Haynes v Harwood, [1935] 1 K.B. 146 (1934)

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*146 Haynes v Harwood. Positive/Neutral Judicial Consideration

Court Court of Appeal Judgment Date 30 October 1934 Report Citation [1933. H. No. 3021.] [1935] 1 K.B. 146

Court of Appeal Greer , Maugham and Roche L.JJ. 1934 Oct. 29, 30. Negligence—Plaintiff Police Constable stopping bolting horses—Volenti non fit injuria—Risk in Course of Duty. The plaintiff, a police constable, was on duty inside a police station in a street in which, at the material time, were a large number of people, including children. Seeing the defendants' runaway horses with a van attached coming down the street he rushed out and eventually stopped them, sustaining injuries in consequence, in respect of which he claimed damages:Held: (1.) that on the evidence the defendants' servant was guilty of negligence in leaving the horses unattended in a busy street; (2.) that as the defendants must or ought to have contemplated that some one might attempt to stop the horses in an endeavour to prevent injury to life and limb, and as the police were under a general duty to intervene to protect life and property, the act of, and injuries to, the plaintiff were the natural and probable consequences of the defendants' negligence; and (3.) that the maxim "volenti non fit injuria" did not apply to prevent the plaintiff recovering. Brandon v. Osborne Garrett & Co. [1924] 1 K. B. 548 approved . Cutler v. United Dairies (London), Ld. [1933] 2 K. B. 297 distinguished, and dicta therein questioned. Decision of Finlay J. [1934] 2 K. B. 240 affirmed . *147 APPEAL from a decision of Finlay J. The plaintiff, Thomas John Haynes, a Metropolitan police constable, claimed damages (agreed at 350l.) from the defendants, G. Harwood & Son, for personal injuries sustained by him as a result of the defendants' negligence. On August 24, 1932, a twohorse van belonging to the defendants was left unattended by the driver in Paradise Street, Rotherhithe. He had put a chain on one of the wheels (which was afterwards found broken), but for some reason, possibly because of a stone having been thrown at them by a boy, the horses bolted along the street, which was frequented by a number of persons, including children.

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Haynes v Harwood, [1935] 1 K.B. 146 (1934)

The plaintiff was in the police station in Paradise Street. He was on duty, but not on point duty. He looked out and saw the horses and van coming; he rushed out, seized the reins and eventually stopped the horses, sustaining injuries in so doing. The defendants denied negligence, and said that the plaintiff had voluntarily undertaken the risk of injury, and that they would rely on the maxim "volenti non fit injuria." They also alleged contributory negligence, and also relied on the doctrine of common employment. An executive officer from Scotland Yard gave evidence that the orders of the Metropolitan police provided that all the efforts of a police constable must be directed to the preservation of life and property, but that they contained no express provision that it was his duty to try to stop a runaway horse. Finlay J. held that the defendants were guilty of negligence, and that as they must have contemplated that some one might attempt to stop the horses in an endeavour to prevent injury to life and limb, and also that as the police were under a general duty to intervene to protect life and property, the act of and the injuries to the plaintiff were the natural and probable consequence of their negligence. He held further that the plaintiff did not, within the true meaning of the maxim "volenti non fit injuria," agree to take a risk knowing all the circumstances, but acted pursuant to his *148 official duty. He therefore gave judgment in favour of the plaintiff for 350l., the agreed amount of damages. The defendants appealed. Rowland Thomas K.C. and G. J. Paull for the appellants. The decision of Finlay J. was wrong, first, on the ground that no negligence on the part of the appellants' servant was established. There was no reason to disbelieve his statement that he had put the chain on the wheel of the van; he adopted the procedure which he had invariably followed; he knew his horses; he knew the locality; and there was nothing to suggest to him that the horses were likely to bolt. Moreover, in doing what he did the respondent took the risk of being injured. He was under no duty to attempt to stop the horses. As is said in Beven on Negligence, 4th ed., vol. i., p. 5: "It is clear there is no legal duty on a man seeing another in the water drowning to plunge in and rescue him; nor yet on a passer-by seeing a child under the feet of a horse to pull him out and prevent his being run over." It may be said, and was said, that a police constable is in a different position from a private individual. There is no ground for this assumption. The respondent was not on point duty regulating traffic, and even if he had been, and had abstained from attempting to stop the horses, his position in the force would not have been prejudicially affected. Finlay J. followed and applied the decision of Swift J. in Brandon v. Osborne Garrett & Co.1 , but that case is clearly distinguishable. There Mrs. Brandon incurred the risk of injury, but she did so in order to save her husband, who was in peril from falling glass. Swift J. there said, however 2 : "I do not say that there is a legal duty to risk one's own life to save that of a stranger; indeed, I should unhesitatingly say there was not, but there may be a nearer approach to such a duty to save the life of one's child or wife or husband." That last observation is in line with the dictum of Slesser L.J. in Cutler v. United Dairies (London), Ld.3 , where he said 4 : "There may be cases, where, *149 for example, a man sees his child in great peril in the street and, moved by paternal affection, dashes out and holds a runaway horse's head in order to save his child, and is injured; there there is no novus actus interveniens." Here the circumstances were quite different, and it is submitted that the observations of Scrutton L.J. in the last cited case exactly apply; he there said 5 : "A horse bolts along a highway, and a spectator runs out to stop it and is injured. Is the owner of the horse under any legal liability in those circumstances? On those facts it seems to me that he is not. .... A man is under no duty to run out and stop another person's horse, and, if he chooses to do an act the ordinary consequence of which is that damage may ensue, the damage must be on his own head and not on that of the owner of the horse." In this case the respondent was perfectly aware of the risk he was running and voluntarily incurred it. [ Eckert v. Long Island Railroad Co.6 and Wilkinson v. Kinneil Cannel and Coking Coal Co.7 were also referred to.]

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Haynes v Harwood, [1935] 1 K.B. 146 (1934)

Lastly, the doctrine of common employment applies and excludes any liability of the appellants to the respondent: Hayward v. Drury Lane Theatre, Ld.8 ; Heasmer v. Pickfords.9 The fact of the existence of an emergency does not preclude the application of the doctrine: Houghton v. Pilkington.10 Hilbery K.C. and N. R. Fox-Andrews for the respondent. [GREER L.J. We do not desire to hear you on the point as to common employment.] Here there was clearly a breach of duty on the part of the appellants' servant when he left the horses unattended in a busy street, and the injury to the respondent was directly traceable to that breach of duty. When danger threatened to those in the street, particularly to children, there was a moral and natural impulse to endeavour to ward off that danger, and that is particularly true in the case of a police constable. As Sir Frederick Pollock says (Law of Torts, 13th ed., p. 498): "The law does not think so meanly of *150 mankind as to hold it otherwise than a natural and probable consequence of a helpless person being put in danger that some able-bodied person should expose himself to the same danger to effect a rescue." See also Professor Goodhart's article on "Rescue and Voluntary Assumption of Risk" in Cambridge Law Journal, vol. v., p. 192, where this subject is learnedly considered. [They were stopped.] GREER L.J. This is an appeal from a decision of Finlay J. in which he awarded the plaintiff damages for personal injuries to the agreed amount of 350l. In order to understand the case, and to apply the law, it is necessary that I should state quite shortly the relevant facts. The defendants were the owners of a two-horse van which was being driven by their servant, a man named Bird, on August 24, 1932. The business on which he was engaged on behalf of his employers took him into Quiney's Yard and Quiney's Wharf, on the left-hand side of Paradise Street, Rotherhithe. Bird, who had in the van two horses, one, a mare on the left or near side, the other, a gelding on the right or off side, had to go to the wharf and there unload goods. His van was provided with a chain which, when properly put in position, operates as a drag on the near back wheel of the van. As there is a slope down from the road to the wharf it is usual to put the drag on, and, according to Bird's evidence, he did that on this occasion. When he had finished his unloading Bird had to get a receipt, but instead of waiting where he was for this, he, out of consideration for the wharf owners, who wanted to go on with their work by receiving another van to unload at their wharf, took his two horses and the van out into Paradise Street, and left them standing on the left-hand side of the street facing in the direction of the police station, while he went to get his receipt. In his evidence he said there was no room in the yard for him to have left his van and horses there. Personally, I doubt that, but even accepting for the moment his statement that there was not sufficient room in Quiney's *151 Yard for him to stay there with his van that affords no sufficient excuse for his doing something indicating an absence of reasonable care for the safety of those properly using the highway. He came out, and I accept the evidence which was given on behalf of the defendants by an independent observer who says that what then happened was this: two boys were coming along, and one of them, obviously with a mischievous propensity, threw a stone at the horses which caused them to run away. The horses ran a considerable distance without any one interfering with them until they got opposite the police station, where the plaintiff was in the charge room. Seeing what was happening, he came out into the street and there saw a woman who was in grave danger if nothing was done to rescue her; he also saw a number of children who would be in grave danger if nothing was done by him to arrest the progress of the horses. At great risk to his life and limb, he seized the off-side horse and tried to stop them both. After going about fifteen yards, he succeeded in doing so, but unfortunately one of the horses fell upon him, with the consequence that he suffered serious personal injuries entailing pecuniary loss, which both parties have agreed at 350l. In considering this case one must take into account the nature of the street in which the two horses were left. A little way to the left of Quiney's Yard, on the opposite side of the road, are certain tenement dwellings, and just opposite Quiney's Yard there are dwelling-houses. Coming along on the same side as were the horses and van, one finds a church, a school entrance, and a number of houses which, having regard to the locality, are probably occupied by working-class people with families. We are told that altogether there are three schools in this neighbourhood, and that between 4 and 5 o'clock in the afternoon there are always many children about. It was in this kind of place the defendants' driver chose to leave his vehicle.

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Haynes v Harwood, [1935] 1 K.B. 146 (1934)

It is said for the defendants that the plaintiff is in law without remedy, and in support of this contention certain reasons are given. Before dealing with those, however, I *152 may say that it would be a little surprising if a rational system of law in those circumstances denied any remedy to a brave man who had received his injuries through the original default of the defendants' servant. If the matter concerned this case alone, and we had not to deal with certain dicta in other cases, I should have been content to say that I agreed with the admirable judgment of Finlay J., but in view of those dicta I do not think I ought to be content with dealing with it in that short way. It was said that there was no evidence of negligence on the part of the defendants' driver; secondly, assuming there was some evidence of negligence, the accident happened through the intervention of some consciously acting persons between the wrongful conduct of the defendants' driver and the accident; in other words that there was a novus actus interveniens, and therefore the chain of causation between the cause of the accident and the damage was broken and the plaintiff's claim cannot be sustained. It was said, thirdly, that quite apart from, and independently of, that question the plaintiff himself assumed the risk which he ran and took the risk upon himself, and therefore as the damage he suffered was the result of his own act, he cannot recover. That again is conveniently put into the Latin phrase, "volenti non fit injuria." A further point, which was made only by Mr. Paull, the junior counsel for the defendants, was that the plaintiff was in common employment with Bird, and therefore, upon the rules laid down with regard to common employment, the plaintiff was not entitled to succeed. I propose to consider first, upon general principles, whether these points are sound. What is meant by negligence? Negligence in the air will not do; negligence, in order to give a cause of action, must be the neglect of some duty owed to the person who makes the claim. In this case, if the duty was owed to, among others, the plaintiff - if he is one of a class affected by the want of care or the negligence of the defendants, that is negligence of which the plaintiff can avail himself as a cause of action. What is the negligence complained of here? Mr. Hilbery rightly described it as a *153 failure to use reasonable care for the safety of those who were lawfully using the highway in which this van with the two horses attached was left unattended. I personally have no doubt that a policeman - or indeed any one, and still more a policeman, using the highway for the purpose of stopping a runaway horse and thereby preventing serious accidents and possibly preventing loss of life, is within the category of those lawfully using the highway. Accordingly, I think the first point fails. Of course it does not follow that in all circumstances it is negligence to leave horses unattended in a highway; each case with all its circumstances has to be considered; but the circumstances which make it quite clear that the defendants' servant was guilty of a want of reasonable care in leaving his horses unattended are that this was a crowded street in which many people, including children, were likely to be at the time when the horses were left and before the defendants' servant could get back to them. The defendants' servant had been frequently in the neighbourhood; he had often delivered goods at Quiney's wharf; and he must be taken to know something of the character of the neighbourhood, although he denied any knowledge of schools being there. To leave horses unattended, even for such a short time as three minutes, in a place where mischievous children may be about, where something may be done which may result in the horses running away, seems to me to be negligent - having regard to the proved circumstances. The next point involves a consideration of the maxim "novus actus interveniens," but before dealing with the authorities I wish to point out that it is not true to say that where a plaintiff has suffered damage occasioned by a combination of the wrongful act of a defendant and some further conscious act by an intervening person, that of itself prevents the Court coming to a conclusion in the plaintiff's favour if the accident was the natural and probable consequence of the wrongful act. That seems to me to be the necessary result of the decided cases which are accepted as authorities. The third point relied upon for the defendants is volenti non fit injuria. Unfortunately there is a dearth of authority *154 in this country on the subject, and apparently a wealth of authority in the United States. American decisions of course are not binding upon us, and we must act only upon principles which are accepted in this country. There is also, unfortunately, an observation made, obiter, by Scrutton L.J. in Cutler v. United Dairies (London), Ld.11 , which has to be dealt with and explained, an observation which I think has been much misunderstood and misapplied in the argument put before us. I now deal quite shortly with the authorities: in Lynch v. Nurdin12 the facts were these: the defendant left his horse and cart in the roadway, where he had a right to leave it. Probably he had left it there for a much longer period than the period in this case, but if it is negligent to leave it for one hour it seems to me it may be negligent, though in a less degree, to leave it for three or five minutes. In the road where the defendant left his cart there were a number of children who began to play with the horse and cart; one of them jumped on to the cart; another of them wrongfully set the horse in motion whereby the plaintiff, who was the child upon the cart, was injured. Undoubtedly there was there a novus actus interveniens - namely, the misconduct of the boy who started the horse; but it was held that none the less the accident, and the damage, could be treated as a result of the defendant's wrongful act, because it was to be anticipated that children would do mischievous things, and that any one

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Haynes v Harwood, [1935] 1 K.B. 146 (1934)

who invites or gives an opportunity to mischievous children to do a dangerous thing cannot escape liability on the ground that he did not do the wrong but that it was done by the mischievous children. The law as there laid down has been accepted since 1841, and (it seems to me) is by itself sufficient to decide the question that there is no absolute rule that an intervening act of some third person who is not the defendant is in itself enough to break the chain of causation between the wrongful act and the damage and injury sustained by the plaintiff. In Engelhart v. Farrant & Co.13 *155 the negligence on which the action was based was the negligence of a driver who got off his van to do something which ought to have been done by the boy who accompanied him. While the driver was away the boy started the horse and van, with the result that a serious accident happened to the owner of another vehicle in the neighbourhood. In that case reliance was placed for the defence on the fact that there was an intervening act of the boy for which the employer was not responsible because it was not within the boy's authority to drive the horse at all, that he was not acting for his employers when he did it, and therefore that the employer was not liable. That case went to the Court of Appeal, where Rigby L.J. accurately stated the law as applied to cases of this kind thus 14 : "I am of the same opinion. It is not questioned here that if Mears's negligence is that to which the accident can be attributed the defendant is liable. It was argued, with some show of authority I agree, that wherever between the negligence of a servant and the incident the act of some third person intervenes, and is the proximate cause of the accident, the employer is not liable. I do not consider that that is the state of the law upon the authorities. There are numerous cases. There is the case that Lopes L.J. referred to before Tindal C.J. [ Illidge v. G...