Torts 1 - CASE BRIEF


[1943] AC 448 (HL)


Negligence: Standard

Scene is 15 June 1940, a park with mansion run by Ds (city of Glasgow). Ps visiting as large group (650 kids). They used one shelter to have their tea. Another visiting group, a church one, got permission to use D’s own tea room.

McD (an officer of D) & Taylor (a boy in the church group) carried in D’s tea urn (T in front, at the time of the accident). The urn is a great pot >one metre high, 45 cm wide with the handles, >40 kilos when full of tea. It had to go through a passage-way beside the sweets counter, a little over one metre wide. At the counter (& managing the rooms) was Mrs Alexander, an employee of D.

As the tea urn was brought in, 6 kids (Ps) from the large group were at the counter. McD & T told them ‘Outa the way!’ – they did get out of the way, but part-way through, McD dropped his end & hot tea splashed out onto some of the kids, one of whom was badly scalded. (T managed to stop the urn turning right over.)

No explanation why he dropped it (McD was not called as witness; no-one actually saw it). It’s a normal tea-urn; no danger if carried properly (according to caterer who never had a spill with it). It was, at most, half full. Mrs A testified that she would have got the kids away from urn’s path had she known it contained tea.

HL: for D, unanimously. Below are excerpted comments


We must approach this matter as a jury – and not give undue weight to the fact that a distressing accident did happen. The fact that an accident happens doesn’t demonstrate what the risk of it happening was, especially when (as here) there’s no proof of exactly how it happened.

To say Mrs A should have expelled kids entirely is to make her “an insurer” of their safety.

The urn-carriers had at least as much a duty as Mrs A did, to the kids. (They were able to ask Mrs A to kick the kids out, if that was reasonable).

Anyway they did ask kids to move, & the kids did move.

There’s no evidence of negligence on McD’s part.

There’s no evidence at all, so no evidence that whatever P thinks Mrs A should have foreseen, is what actually happened.

(So even if lack of care is shown, there’s no proof of causation.)


The degree of care required varies directly with the risk involved.

And that is degree: it has never been the law that a man acts ‘at his peril’. There is liability in negligence only for consequences which “a reasonable man of ordinary intelligence & experience” would contemplate – the “reasonable & probable consequences”: Bourhill per me.

The test is impersonal [objective], in the sense that it eliminates personal & idiosyncratic factors. Some people are timorous by nature, others are impetuous; but the reasonable man is free from both “over-apprehension & over-confidence”.

The test is subjective, however, in the sense that it is left to J to decide – and there is room for a diversity of views (as shown here). “What to one J may seem far-fetched may seem to another both natural & probable.”

The thing here [the urn] was not inherently dangerous.
Mrs A had no reason to anticipate this trouble.
She was entitled to assume that the urn was being carried by responsible people (as it was).

The immediate cause of the accident wasn’t carrying the urn through the passage; it was McD dropping it. And there’s nothing but speculation as to how that happened. (Ps “haven’t chosen to enlighten us...”)

“Yet it is argued that Mrs A ought to have foreseen the possibility, nay, the reasonable probability, of an occurrence the nature of which is unascertained. . . . I don’t think so.”


Make D an insurer Impose liability on D regardless of how the injury to P happened – no-fault, or absolute, liability, re some class of P
Act at his peril Same, re some type of activity: if D does it, the legal risks (‘peril’) associated with it is all his.
Vary directly Increase or decrease proportionately: X varies directly with Y if when Y goes up, X goes up too (if X goes down when Y goes up, it ‘varies indirectly with Y’).