ABSTRACT
A further question arises as to the foreseeability of the damage. The general rule in relation to the tort of negligence is that if the plaintiff’s injury arose in an unforeseeable way, even though it was a direct result of the defendant’s carelessness, the defendant is not liable: see, for example, Doughty v Turner Manufacturing (1964), in which the plaintiff was injured when an asbestos lid was carelessly dropped into a vat of molten metal, causing an explosion. The possibility of such an explosion had not been known until it happened, and only a controlled experiment after it had happened revealed the cause: a chemical reaction between the asbestos in the lid and the metal in the vat, when the metal reached a certain temperature. It was held that the defendants were not liable. The damage had been unforeseeable and was, therefore, too remote a consequence of the defendant’s action. However, it is probable that the test of remoteness of damage would be modified to accord with the principle laid down in relation to strict liability under the Factories Act in Millard v Serck Tubes (1969). In this case, the defendant had failed to fence a machine, though required to do so in accordance with the Factories Act. The Act imposed strict liability in respect of failure to comply. The plaintiff was injured, but in an unforeseeable manner. It was held that it was irrelevant that the plaintiff’s injury was caused in an unforeseeable way: it was sufficient that if the machine had been fenced, the injury would not have occurred. It would appear likely, therefore, that if a defective product causes injury in an unforeseeable manner, the defendant may nevertheless be liable.
