PROVING THINGS 73: FORESEEABILITY: NOT A TEST SET IN STONE BUT A MATTER OF COMMONSENSE

Foreseeability of damages is one of those topics that takes up a lot of space in text books but is rarely an issue in practice.  The question of foreseeability of damages did, however, form a part of the judgment we looked at yesterday Graham & Anor v Campfield & Anor [2017] EWHC 2746 (Ch) Mr Justice Birss.

THE CASE

The claimants ran a funeral business from their land. They were successful in establishing that the nuisance and negligence of the defendants had caused damage to their land.

THE ISSUE OF FORESEEABILITY

One of the grounds of the defendants’ appeal was about foreseeability.  It was argued that one of the claimants was not part of the funeral business operated on the land but worked as an independent sole trader.  His losses, the defendants argued, were not foreseeable.

1. “The fifth point is about the third claimant. The defendants do not challenge that he worked as a stone mason on the site but they submit that he is an independent sole trader and is not part of the business of the first and second claimants. The judge did not take that into account when he made the key finding that harm to the 3^rd claimant was reasonably foreseeable. If he had then he would have rejected that part of the claimants’ case.”

THE JUDGE’S (SHORT) JUDGMENT ON THIS ISSUE

1. The fifth ground relates to the third claimant’s position as a sole trader. The relevant passage in the judgment is paragraph 48. Here the judge notes that Mr Campfield accepts that he knew the garages and shed were used in the past for the storage of funeral business vehicles and wood and that he knew that the third claimant’s shed was erected in 2008. The judge makes the point that Mr Campfield said he did not know until much later that this shed would be used for a stone mason business but the judge finds that it was reasonably foreseeable that this shed would be used for business purposes associated with the funeral business. The point (unspoken but obvious to the judge) was that a stone mason business making headstones was plainly associated with the funeral business, and so the third claimant’s case was proved.

2. In my judgment it makes no difference to this factual analysis that the stone masonry business was being carried on as an independent sole trader rather than as part of the other claimants’ business. What matters was that it was foreseeable the shed would be used for business purposes associated with a funeral business, and that is what was happening. The defendants’ counsel did not cite any authority to support the submission that the fact it was an independent business made any difference as long as the third claimant had brought a claim in his own right. I cannot imagine why it would matter. I reject this ground.