Weld-Blundell v Stephens

Viscount Finutay. My Lords, the action
in this case was brought to recover damages for negligence in
the custody of a letter intrusted by the appellant (plaintiff)
to the respondent (defendant) as his agent. It is alleged in
the statement of claim that by reason of the respondent's
breach of duty the document came to the knowledge of two
persons, Comins and Lowe, who brought actions against the
appellant and recovered damages in respect of defamatory
statements made in the letter.

The case was tried with a jury before Darling J. The jury
found in favour of the plaintiff with 650]. damages, but the
learned judge upon further consideration entered judgment
for the defendant. The Court of Appeal entered judgment
for the plaintiff for 20s. without costs, and the present appeal

_to your Lordships' House has been brought, asking that

judgment should be entered for 650/., the amount of the jury's
verdict and costs.

The appellant had invested a considerable amount of
money in a company called the Float Electric Co., Ld., and
was greatly dissatisfied with its management. On receiving
a further request for advance of money for the undertaking,
he determined to employ the respondent, who is a chartered

(1) [1892] 2 Q. B. 524, 533-4. (3) 60 L. J. (Q. B.) 231.
(2) 1 Ex. D. 91. (4) (1871) L. R. 6 Ch, 212, 218.

A. C. AND PRIVY COUNCIL.

accountant, and had acted for him before, to investigate the
affairs of the company. He wrote to him a letter dated
May 4, 1915, out of which these proceedings have arisen. In
that letter he complained of the mismanagement of the
company, and made severe reflections upon the conduct of

963

Bi. Ly: (BS)
1920

oss
WELD-
BLUNDEIL
v.
STEPHENS.

Mr. Hurst, the manager, and of Mr. Lowe and Mr. Comins, V#™t Finley.

who had also taken part in its affairs. The letter requested
the respondent to go to the bank and get an inspection of the
ledger of the company, and then, if necessary, to go on and
make inquiries of Mr. Hurst, the manager of the company's
office. The respondent handed the letter to his partner,
Mr. Swift, asking him to attend to the business. Mr. Swift
went to the bank, taking the letter with him, and examined
the ledger. He then went on to see Mr. Hurst and had some
conversation with him. While in the office he unfortunately
pulled out of his pocket, along with some other papers, the
appellant's letter to him and left it lying on the floor. On
getting back to his own office he realized the loss of the letter
and telephoned to Mr. Hurst to look for it and return it to
him. Mr. Hurst found the letter and before returning it to
Mr. Swift had a copy taken and certified. This copy he
showed to Mr. Lowe and Mr. Comins. Each of these gentle-
men brought an action against the appellant. Mr. Lowe
recovered a verdict for a thousand pounds damages, but by
consent this was in the Court of Appeal reduced to 2501.
Mr. Comins recovered a verdict for 500/. It was ruled in both
cases that the letter was written on a privileged occasion,
but the jury in each case found that there was express malice
_on the part of the present appellant. Judgment was entered
for 250]. and 5001. accordingly with costs, and the appellant
had to pay 16791. in respect of these judgments.

The appellant then brought this action against Mr. Stephens
the respondent, to recover damages, alleging that these two
actions had been brought in consequence of the negligence
of Mr. Stephens and his partner in the custody of the libellous
letter. The statement of claim was delivered on July 20,
1917, and claimed damages for the defendant's failure to
take proper care of the letter. The defendant denied the

3 T 2 3

964 HOUSE OF LORDS [1920]

H. L. (E.) negligence, and counterclaimed for 45/. in respect of
1920 professional services rendered to the appellant.

Wetp- The following are the questions put by the learned judge to
BLUNDELL : 5 : ,
6. the jury, with their answers :—
Satara § "Darling J. Was it the duty of the defendant to keep

Viscount Finlay. secret the letter of the 4th May written by the plaintiff to
the defendant ?

*A.—Yes.

'"'Did the defendant neglect his duty in regard to the said
letter so that the contents thereof were disclosed or came
to the knowledge of Mr. Hurst ?

'a Nee

«' Were the actions for libel brought by Lowe and Comins
against the plaintiff and the damages recovered by them
the natural and _ probable consequence of the proved
negligence of the defendant ? |

«A.—Yes. Damages 6501.

'(To the Jury): I understand, Gentlemen, in not giving
the full amount claimed you acted on what I suggested,
that the conduct of the plaintiff himself was responsible to
some extent for the damages which were awarded.

'¢ 4.—The Foreman of the Jury: Quite so."

On further consideration, Darling J. entered judgment.
for the defendant on the ground that the liability of
the plaintiff in damages was in respect of his own wrongful
act in publishing the libel, and he rested his decision on
two grounds :

1. He dealt first with the maxim which had been invoked
by the defendant ex turpi causa non oritur actio, and the

_ contention that the alleged contract of agency related to the
custody of a malicious libel by the plaintiff himself.

Darling J. said (Appendix, p. 161 B) :—

** After much consideration I have, however, come to the
conclusion that our law does not, and cannot, imply any
such promise or term as that which the plaintiff alleges,
and therefore no breach of contract or dereliction of duty
was committed by the defendant." ;

2. The learned judge went on to say that were the case

A. C. AND PRIVY COUNCIL. 965

otherwise, there would remain the question whether the H.'L. (E.)
plaintiff could recover against the defendant damages conse- 1920
quent on the action for libel against the plaintiff by Lowe and | Wexp-
Comins. He said (Appendix, p. 161, E, F) :— iaicyok 2
/ | The question to be decided may, I think, fairly be put STEPHENS.
in these words : ' Can one recover damages against another Viscount Finlay
because he has had to make reparation for a wrongful act
committed by himself?' I think he cannot."
_ An appeal was brought to the Court of Appeal asking that
judgment should be entered for the plaintiff, the present
appellant, for 650/., the amount given by the jury. The
Court of Appeal were divided in opinion. Scrutton L.J. was
in favour of the appellant, but Bankes L.J. and Warrington L.J.
were of another opinion. They disagreed, indeed, with
Darling J.'s view that the action was not maintainable.
Bankes L.J. said (Appendix, p. 239 A) :—
'Under these circumstances I do not myself see any
objection to holding that the contract as found by the jury
in the present case was neither an illegal contract nor one
eontrary to public policy."
Warrington L.J. said (Appendix, p. 244 G to 245 A) :—
'"On the whole I can see no reason founded on public
policy or any other ground why an agent should be, at
liberty to disclose evidence of a private wrong committed
by his principal, and I come to the conclusion that the
implied obligation of the defendant in reference to the
plaintifi's documents in general extended to the letter of the
4th May, 1915."
The decision of the Court of Appeal on this point was obvi-
ously right, and no attempt was made on behalf of the
respondent to impugn the correctness of this portion of the
judgment. Indeed, any decision to the contrary would
involve consequences at once extravagant and unreasonable.
4It would be startling if it were the law that an agent who is
'negligent in the custody of a letter handed to him in con-
| fidence by his principal might plead in defence that the letter
was libellous. There may, of course, be cases in which some
'higher duty is involved. Danger to the State or public duty

| 966 HOUSE OF LORDS [1920}

H. L. (E.) may supersede the duty of the agent to his principal. But
1920 nothing of that nature arises in this case.

"——~

WeELD- The majority of the Court of Appeal then proceeded to
ae consider the question whether, assuming the appellant to have
STEPHENS,

ee a right of action against the respondent, he was entitled to
Viscount FiPPY: recover the special damages claimed in respect of the actions
by Lowe and Comins for libel. They held that he was not so
entitled, as the damages in these actions were given in respect.
of the plaintiff's own wrongful act in publishing a malicious

libel.

This part of the case has been elaborately argued before
your Lordships, and there has been urged at the Bar of your
Lordships' House a further objection to this head of damage
which is not noticed in the judgments of the Court of Appeal—
namely, that the actions were not the result of the respondent's
negligence, but were caused_by a novus actus interveniens
on the part of Hurst, by whom the existence of the libel was
made known to Lowe and Comins. I shall deal with these
two grounds in the order in which I have mentioned them.

1. The majority of the Court of Appeal held that, as the
plaintiff's letter was a malicious libel, the actions against him

- with their damages and costs were the result of his own wrong

and that therefore he could not recover from the defendant in
respect of them.

Tn arriving at this conclusion the Lords Justices relied upon
the law laid down by Kennedy J. in Burrows v. Rhodes. (1)
Kennedy J. in that case said :—

x. It has, I. think, long been settled law that if an act is
manifestly unlawful, or the doer of it knows it to be unlaw-
ful, as constituting either a civil wrong or a criminal
offence, he cannot maintain an action for contribution or
for indemnity against the liability which results to him
therefrom."

This passage has no application to a case like the present in
| which a letter written by a principal to his agent on the
business of the agency contains reflections upon the character
of other persons. It is the duty of the agent to treat such a

(1) [1899] 1 Q. B. 816, 828.

A. ¢. AND PRIVY COUNCIL.

document as confidential, and to take reasonable care to
prevent its falling into the hands of others. The case bears
no analogy to the class of authorities cited by Kennedy J.
in which a man about to commit a crime or civil wrong takes
an indemnity from another against the consequences. In
the case of an agent, the fact that a letter contains libellous
matter is really an additional reason for care in its custody,
and a natural consequence, if such documents got abroad,
would be an action for damages by the person libelled.
In the present case the agent, knowing what was in the letter,
took upon himself the duty of safeguarding it, and he must
be liable for any damage which directly and naturally results
from his failure to do his duty in this respect.

Reliance was also placed by the Lords Justices on the
decision of this House in Neville v. London Express News-
paper.(1) That was an action for maintenance, and it
was decided in this House that an action for damages
for maintenance will not lie in the absence of proof of special
damage. In that case the action maintained was one to
compel the repayment of money which had been obtained by
fraud. The London Express Company were the maintainers
and the special damage alleged in the action against them for

maintenance was that the plaintiff had been compelled to.

refund the money so obtained. It was decided that this
was not special damage which would support an action for
maintenance. It would be obviously absurd that a debtor
who had wrongfully resisted payment until he was compelled
to pay by action should be entitled to recover in proceedings
for maintenance the amount which he owed, and which had
been recovered from him in the action. The observations on
which the respondent in the present case relied were made
with reference to an action to recover damages for mainten-
ance. It cannot be laid down as a general proposition that,
if a wrongful act is done, the natural consequence of which is

967

H. L. (E.)
1920

see,
WELD-
BLUNDELL
Vv.
STEPHENS.

Viscount Finlay.

that the plaintiff's creditor proceeds to enforce his rights, this .

may not form a head of damage. This applies with special
force with reference to a case in which, by the negligence of
(1) [1919] A. C. 368,

968

By, Li (BS)
1920

ee
WELD-
BLUNDELL
; 0.
STEPHENS,

Viscount Finlay.

HOUSE OF LORDS [1920]

the agent, facts have been divulged which might support
claims for damages for tort against his principal.

Reference was made in argument to the leading case of
Merryweather v. Niwan (1) and the more recent authorities in
which the doctrine on that subject has been developed. I
cannot think that cases under this head have any relevance
to the present. What they decide is that there is no liability
to contribution arising out of the mere fact that damages for a
tort have been recovered against two persons; and further
that, if it appears that there was a combination to do an act
manifestly wrongful, no express contract by .one of the parties
to indemnify the other would be enforceable. This rests on
broad considerations of policy, as it is obviously inexpedient
that the law should encourage any combination to commit a
tort. There was nothing of the kind in the present case.
The facts which gave rise to the liability of Mr. Weld-Blundell
to Mr. Comins and to Mr. Lowe occurred when he wrote and
delivered the letter to Mr. Stephens, and Mr. Stephens was
no party to that act. It is no part of the policy of the
law that immunity should be extended to breaches of trust
committed by an agent in revealing information which
has been given to him in confidence as to facts on which
possible claims for damages might be preferred against his
principal.

It was sought by the respondent to assimilate the case to
one of liability for debt, and it was said that under no circum-
stances can damages be recovered in respect of the fact that
the plaintiff has been compelled to pay money which he owes.
This doctrine cannot be of universal application. No such
general deduction can be drawn from the doctrine laid down
in Neville's Case (2), where the money had been obtained by
fraud, where restitution was a duty and retention was in
itself dishonest. Actions for maintenance are of a very special
nature, but even in them the doctrine in Neville's Case (2) is
not always applicable. For instance, I do not think that
Neville's Case (2) would govern a case in which the defendant
in an action of maintenance had incited a lender to call in the

(1) (1799) 8 T. R. 186. (2) [1919] A. C. 368.

A. CG. AND PRIVY COUNCIL.

loan and had maintained an action for the purpose. Pay-
ment might otherwise have been allowed to stand over for a
long period, and it would be for a jury to appraise the chances
of this. The amount of the debt would not be recoverable,
but the wrongful act of the maintainer might occasion
inconvenience and damage calling for compensation.

Similar considerations would apply where the defendant
has been guilty of any actionable wrong. If in consequence
of that wrong a creditor calls in his debt, why should not this
form an item of damage in an action against the wrongdoer ?
The damages would, of course, not be measured by the whole
amount of his debt, but regard might be had to the probability
that but for the defendant's wrong the money might have
been allowed to remain in the hands of the borrower till a
more convenient season.

The consequences might be serious to a mercantile firm
even of the highest standing if all those who have legal claims
against the firm were set in motion at once to enforce their
claims. A third person who by malice or negligence in dis-
charge of his duty to such a firm brings about such pressure
by creditors would 'plead in vain that all that happened was
the enforcement of legal debts. The fact that they would
have been enforced at some time might prevent liability for
the whole amount, but it would be startling if it afforded
complete immunity to misconduct by an agent which might
entail the ruin of his principal's business.

The extension of the supposed rule as to debts to cases of
enforcement of liability for torts which results from the mis-
conduct of an agent would lead to some remarkable results.
Take the present case as an illustration. Mr. Weld-Blundell
had written a confidential letter to his agent on a privileged
occasion. That letter contained libellous matter for which
Mr. Weld-Blundell might be made liable if the jury should
find that he had been influenced by express malice. The
question of damage in respect of the actions for libel brought
in consequence of the defendant's misconduct must be deter-
mined on the same principle which would apply if the defendant
had maliciously and for the purpose of inducing the persons

969

H. L. (E.)
1920
WELD-
BLUNDELL

vw.
STEPHENS.

Viscount Finlay.

970

H. L. (E.)
1920

——_
WELD-
BLUNDELL
v.
STEPHENS.

Viscount Finlay.

HOUSE OF LORDS [1920]

libelled to bring their actions against Mr. Weld-Blundell
communicated to them the fact that the libellous letter had
been written. Mr. Weld-Blundell was under no sort of
obligation to Mr. Comins or Mr. Lowe to reveal to them the
existence of this letter in order that they might have the oppor-
tunity of bringing actions against him. He would indeed be
bound to endeavour to remove any unfavourable impression
which the letter might have created on the mind of his agent
with regard to Mr. Comins and Mr. Lowe, but there is in such
a case nothing that corresponds to the duty that is incumbent
on a fraudulent person to make restitution, or on a debtor to
pay his debts on demand. :

Somewhat similar considerations might apply if the agent's
breach of confidence had led to an action for penalties. A
man may without any moral delinquency have made himself
liable to penalties to a considerable amount at the suit of any
common informer. It could not be suggested that there
would be any obligation upon him to make these facts gener-
ally known in order to give an opportunity to any person who
might be so minded to play the part of the common informer.
Under such circumstances it may well be, as was suggested in
Neville's Case (1), that any person who maintained an action
for such penalties would be liable to substantial damages in
respect of the penalties, the payment of which had been com-
pelled by the maintained action. It might be no answer that
there was a legal liability to pay the penalties, as that potential
legal liability would never have become effective but for the
wrongful act of the maintainer. The same observations might
apply if the action for penalties was due to the betrayal by an
agent of his principal's confidence.

It is not disputed that the defendant was guilty of a breach
of duty as agent. A direct consequence of that breach of
duty (subject only to the question of the effect of Hurst's
intervention with which I shall deal under another head) was
that Mr. Comins and Mr. Lowe brought the actions for libel
which, but for the defendant's breach of duty, would never
have been brought. It must have been in the contemplation

(1) [1919] A. C. 368.

A. C. AND PRIVY COUNCIL. 971

of the parties that if the letter were allowed to get abroad, H. L. (E.)
actions might very probably be the result, and indeed this —_1920
probability was the great reason which imposed the duty of | Wxup-
precaution in the custody of such a document. The result ec
of the defendant's negligence was that these actions were ST#PHENS.
brought against his principal, Mr. Weld-Blundell. There is YS¢oust #imlsy-
no legal principle to exclude the damages in such actions from
being taken into account, in 'estimating the damages payable
by the agent. To hold that no such damages could be
recovered would be to give practical immunity in many cases
to agents who have allowed the secrets of their principals to
become known.
It is not necessary to consider the question on which
Rowlatt J. in Leslie v. Reliable Advertising Agency (1) differed
from Lord Coleridge J. in Cointat v. Myham (2) or the dictum
of Lord Lyndhurst in Colburn v. Patmore (3). The ground on
which Rowlatt J. held that there can be no indemnity in
respect of the result of a criminal prosecution is that it is
against the policy of the law that the punishment for crime
should be mitigated by any contribution in any form from
another. No such question arises in the present case where
the question relates merely to civil liability.
I cannot agree with the decision of the majority of the
Court of Appeal that damages were not recoverable from the
agent in respect of actions for libel resulting from his
negligence in not taking care of the letter.
Y 2. But at the hearing in your Lordships' House it was
further contended that the actions for libel were not the result
of the agent's negligence, but of the wrongful act of Hurst in
making the letter known to Lowe and Comins. This point was
not raised before Darling J. It appears from the transcript
that it was raised in the Court of Appeal by the junior
counsel for the respondent at the close of his argument. It
was not received with favour by the Court, and no notice was
taken of it in the judgment. The point is not made in the
respondent's case either in the body of the case or in the

(1) [1915] 1 K. B. 652. (2) [1913] 2 K. B. 220.
(3) 10. M. & RB. 73.

972

H. L. (E.)
1920

WELD-
BLUNDELL

v
STEPHENS,

Viscount Finlay.

HOUSE OF LORDS [1920]

reasons. It has, however, been argued at the Bar of your
Lordships' House, and must be dealt with.

In answer to the second question put by the learned judge
at the trial, the jury found that the actions for libel brought
by Lowe and Comins against the plaintiff and the damages
recovered by them were the natural and probable consequence
of the proved negligence of the defendant. The jury did not
give the full sum which the plaintiff had had to pay in these
actions ; no doubt because they thought that if the plaintiff
had acted reasonably the matter might have been settled on
more favourable terms. The contention now raised is that
in point of law the learned judge at the trial was bound to
withdraw from the jury the consideration of these actions as
an element in the damages, as they were really the result of
what Hurst did and not of the respondent's negligence. It
is urged by the respondent that the act of Hurst in supplying
Comins with a copy of the letter was dishonourable, and so it
was. By the negligence of the respondent the letter had
been left on the floor of Hurst's office. It might have been
picked up by any person who had access to the office. If
the person who picked it up happened to be a gentleman, no
mischief would in all probability have followed, as he would
have returned it to the respondent or his partner Mr. Swift.
But the person who negligently leaves a paper of this descrip-
tion lying on the floor can hardly say that its being picked up
by some one who is not a gentleman is so remote a contingency
that it may be disregarded in ascertaining what are the natural
consequences of the negligence. It may be picked up by
some one who is not sensible of the obligations of honour in
such matters, and the divulgation of its contents may then
follow. The necessity for special care with regard to docu-
ments of this kind arises from the very fact that there are a
great many people about who are not very scrupulous. Such a
letter may be picked up by some one who reads the letter, and
then from a spirit of mischief or by way of amusement talks
about it or shows it to some person concerned. Every one
knows that such an occurrence is very possible, nay probable.
It appears to me that if this point had been taken before

A. C. AND PRIVY COUNCIL.

Darling J. he would have been bound to say that the matter
could not be withdrawn from the jury. I feel very little doubt
that if this point had been raised by counsel for the defendant
in his address to the jury they would have said, and rightly
said, among themselves that you must take human nature as it
is, and that it is precisely because there are mischievous and
dishonourable people about that it is necessary to be very
careful in the custody of such documents.

The fact that the damage was caused by the act of
some third person does not prevent its being recoverable
if such an act was a natural and probable consequence
even though wrongful. I may refer in illustration to
some of the cases which have been cited: Hngelhart v.
Farrant (1); Clark v. Chambers (2); Burrows v. March
Gas & Coke Co. (3); Rex v. Moore (4); and Scott's Trustees
v. Moss. (5) In Bowen v. Hall (6) Brett LJ., with the
concurrence of Lord Selborne, then Lord Chancellor,
expressed himself as follows :—

''The decision of the majority' (in Lumley v. Gye) (7)

'* will be seen, on a careful consideration of their judgments,

to have been founded upon two chains of reasoning. First,

that wherever a man does an act which in law and in fact

—_—

probable consequence of it, produce injury to another, and
which in the particular case does produce such an injury,
an action on the case will lie. This is the proposition to be
deduced from the case of Ashby v. White. (8) If these
conditions are satisfied, the action does not the less lie
because the natural and probable consequence of the act
complained of is an act done by a third person: or because
such act so done by the third person is a breach of duty
or contract by him, or an act illegal on his part, or an act
otherwise imposing an actionable liability on him. It has
been said that the law implies that the act of the third

(1) [1897] 1 Q. B. 240. (5) 17 RB. 32.
Oy 8 @._B. D.: 327: (6) 6 Q. B. D. 333, 337, 338.
(3) L. R. 7 Ex. 96. (7) (1858) 2 E. & B. 216.

(4) 3 B. & Ad. 184. (8) (1703) 2 Ld. Raym. 938.:

973

H. L. (E.)
1920

2s
WELD-
BLUNDELL
v.
STEPHENS.

Viscount Finlay.

is a wrongful act, and such an act as may, as a natural and »

Vv.
STEPHENS.

Viscount Finlay.

HOUSE OF LORDS [1920]

party, being one which he has free will and power to do

or not to do, is his own wilful act, and therefore is not

the natural or probable result of the defendants' act.

In many cases that may be so, but if the law is so to

imply in every case, it will be an implication contrary

to manifest truth and fact. It has been said that if
the act of the third person is a breach of duty or
contract by him, or is an act which it is illegal for
him to do, the law will not recognise that it is a natural
or probable consequence of the defendant's act. Again,
if that were so held in all cases, the law would in some
refuse to recognise what is manifestly true in fact. If the

judgment of Lord Ellenborough in Vicars v. Wailcocks (1)

requires this doctrine for its support, it is in our opinion

wrong. We are of opinion that the propositions deduced
above from Ashby v. White (2) are correct."

It must be borne in mind that the present is an action for
breach of duty by an agent in failing to take proper care of a
document intrusted to him. It is admitted that he failed
to discharge that duty, and the very thing happened which
it was his duty to guard against. The precise chain of cir-
cumstances which would ensue from negligence could not,
of course, be foreseen. If the letter had been picked up by
Lowe or Comins it would hardly be denied that the bringing
of the actions would have been a natural and direct conse-
quence. So if it had been picked up by a servant whose gossip
about it came to the knowledge of Lowe and Comins. I
am unable to discover any principle of law which would
justify us in holding that this head of damage ought to have
been withdrawn from the jury. It was eminently a question
for them as to the natural consequence of the defendant's
breach of duty. The jury very properly discounted the
amount of damages as they appreciated the fact that
the appellant's own conduct had probably aggravated
his loss.

In my opinion the judgment of the Court of Appeal should
be reversed, and judgment should be entered for the appellant

(1) 8 East, 1. (2) 2 Ld. Raym. 938.

A. C. AND PRIVY COUNCIL.

975

for 6501., the amount of the verdict, with costs in the Courts H. L. (E.)
1920

——

WELD-

below and in this House.

Lorp Dunepin. My Lords, the noble and learned Lord

BLuN
Vv

DELL

on the Woolsack has stated so fully and accurately the facts ST™?#ENS-

out of which this case arises that I need say nothing as regards
them. I am in accordance with him as to the first point
which was raised before Darling J., and dealt with by the
Court of Appeal. There remain two reasons for which it is
argued the plaintiff cannot recover the damages he asks as
special damage.

'My noble and learned friend states one of them as raising
the question of whether the damage suffered was the natural
consequence of the negligence committed or was the result
of a novus actus interveniens. Another way of stating what
probably is in the circumstances of this case the same question
is to ask whether the damages alleged are not too remote. A
variety of cases have been cited in support of the proposition
that the result may be a natural and probable result although
it was indirect. That may be so, I do not doubt.

In addition to the authorities already cited I would add the
well-known squib case of Scott v. Shepherd (1), and another
case which is probably not known here, decided, and I think
rightly decided, in the Court of Session: WScoft's Trustees v.
Moss. (2) In that case the occupant of a recreation ground
in the vicinity of a large town advertised that a descent from
a balloon would be made by parachute within the grounds at
a certain time. The descent was made into a field of turnips
on a farm adjoining the grounds, and a crowd which had
assembled outside the grounds rushed in and injured the
fences and turnips. The farmer sued the occupant of the
recreation grounds, the Lord Ordinary sustained a plea of
irrelevancy, and dismissed the action, but the Inner House
recalled that judgment and granted the issue to go to a jury
which asked the question whether what had happened was
the natural and probable result of what the defendant had
done. I have, however, come to the conclusion that there

(1) 3 Wils. 403; 2 W. BI. 892. (2) 17 R. 32.

976

H. L. (E.)
1920

At,
WELD-
BLUNDELL
v.
STEPHENS.

Lord Dunedin.

HOUSE OF LORDS [1920]

was here no evidence which entitled the jury to give the
affirmative answer they did to the question as put to them
that the actions for libel and the damages recovered were
the natural and probable consequence of the proved negli-
gence of the defendant. I think one may here repeat in
terms with change of names the words of Tindal C.J. in Ward
v. Weeks (1): ''It was the repetition of the words by Hurst
to Lowe and Comins, which was the voluntary act of a free
agent, over whom the defendant had no control, and for
whose acts he is not answerable, that was the immediate
cause of the plaintiff's damage."

I now pass to the other point, and on this I am again con-
strained to differ from the opinion expressed by my noble
and learned friend. The point as it precisely arises may be
a new one, that is to say, we were not informed by counsel
of any case which exactly covers the circumstances of this one,
nor have I been able to find such a case for myself. This is what
makes it possible to distinguish, as my noble and learned
friend has done, between this case and such cases as Burrows v.
Rhodes (2) and Neville v. London Express Newspaper. (3)
But though the cases are distinguishable upon the ground
that the application of the principle is to be found in different
circumstances, yet in my opinion the underlying principle is
the same. To take first the case of contribution between
wrongdoers, which is the first instance given by Kennedy L.J.
in the passage cited; why is there no contribution among
wrongdoers ? Only I think because of the underlying pro-
position that no man can claim damages when the root of the
damage which he claims is his own wrong, for in certain
cases there may be contribution.. The rule even in England,
laid down in Merryweather v. Nixan (4), is not a universal
rule, but is qualified by the necessity that the doer of the wrong
who is suing his joint wrongdoer for contribution '' must be
presumed to have known that he was doing an unlawful act "' :
Adamson v. Jarvis (5) and Lord Herscheil in Palmer v. Wick

(1) 7 Bing. 211, 215. (3) [1919] A. C. 368.
(2) [1899] 1 Q. B. 816. (4) 8 T. R. 186.
(5) (1827) 4 Bing. 66, 73.

A. ¢. -. AND PRIVY COUNCIL.

and Pulieneytown Steam Shipping Company.(1) In other
words, if the underlying proposition is absent the rule does
not apply. .

Then as regards Neville's Case. (2) It was found by the
majority in this House that the maintenance of the action
was wrong against the plaintiff although the maintained action
was successful. Once it was successful the natural and
probable consequence was that the plaintiff had, as a defendant
in action, to pay the sums found due. Yet he was not entitled
to recover the same as special damage. I confess I can see
no ground on which such a result could be reached except
the application of the principle for which I am contending.
It does not seem to me in the least to explain the matter to
say that the action of maintenance is a very peculiar action.
I quite agree. If I may put aside for the moment my duty
of considering English law alone in this, an English case, and
may look at it with eyes which are always open to consider
the English law as a foreign system, I think it is a cumbersome
curiosity of English law. Nevertheless it exists and forms a
liability. It appears to me that the liability which arose in
Neville's Case (2) from its being successfully shown that the
action was a maintained action differs, once it is established,
no whit from the liability supposed ex hypothesi tobe estab-
lished in this case from negligence, and the result would, in
my judgment, have been clear to give as damages the peculiar
loss to which the plaintiff was put as the necessary result of
the success of the maintained action, were it not for the pro-
position that a man, as Darling J. puts it, cannot recover
damages because he has had to make reparation for a wrongful
act committed by himself.

In the case of M' Naughton v. Caledonian Ry. Co. (3) the
late Lord President Inglis, then Lord Justice-Clerk, said as
follows: '' Where an event is brought about directly by the
culpa of two persons, whether joint or several, where the culpa
of each has contributed to produce the event, and the event
would not have been produced but for the culpa of both,

(1) [1894] A. ©. 318, 324. (2) [1919] A. C. 368.
(3) (1858) 21 D. 160, 163.
AXy (G5 BPD: 3 U 3

977

H. L. (E.)
1920

——_
WELD-
BLUNDELL
v.
STEPHENS.

Lord Dunedin..

978

H. L. (E.)
1920

SEX
"WELD-
'BLUNDELL
v.
STEPHENS.

Lord Dunedin.

HOUSE OF LORDS [1920]

there can be no claim as between these persons for reparation
of injury flowing from that event." I am well aware that this
was said in a case of accident where the point in question was
what is ordinarily termed "' contributory negligence," and it
could easily be said that the proposition must be read secun-
dum subjectam materiem. None the less it is expressed as a
general proposition, and in my humble opinion as a general
proposition it is sound. A general proposition is not neces-
sarily vitiated as such because the subjecta materies will
permit, though it does not enjoin, a limited application.

For these reasons I am of opinion that the result reached
by Darling J. and the majority of the Court of Appeal was
right and that the appeal should be dismissed with costs, and
I move accordingly.

Lorp Sumnrer. My Lords, in this case neither the character
nor the validity of the contract is now in dispute. The fact
and the nature of the respondent's breach of it are accepted,
and the only issue is between substantial and nominal
damages.

The plaintiff pleaded an employment of the defendant as
an accountant, alleging an implied obligation to keep his
instructions secret. The case-made was not a republication
of the appellant's libel or an intentional or wilful disclosure
of his letter, but a want of care in the custody of it, whereby
its contents became known to the parties whom it defamed.
Each member of the Court of Appeal expressly states the
obligation, which the defendant broke, to have been an obli-
gation to use care (Bankes L.J., pp. 236 E and 241 A;
Warrington L.J., pp. 241 D, 242 D, 245 C, and Scrutton L.J.,
248 A and C), and one of the grounds given for the decision
against the appellant is that his case is really a claim for
indemnity and not for damages due to want of care. As
Warrington L.J. puts it: "If the plaintiff is right, the
obligation not to disclose is equivalent to an obligation
to indemnify the plaintiff against the liability to pay
the amount recovered for damages and costs in an
action brought as a consequence of the disclosure."' The

| ee N

A. C. AND PRIVY COUNCIL.

appellant accepts this decision in the statement which he
makes in para. 8 of his case: "The present action was
then commenced by the appellant against the respondent
to recover damages for the respondent's breach of duty
(charged as a breach of an implied term of his contract
of employment) to use reasonable care to keep secret the
contents of his said letter."

This view of the contract and the breach is accordingly
the basis of the present debate, for so far there is no appeal
from the decision below. That a man may in some cases
contract to be indemnified against his own torts is obvious,
but that is not the point. If I do not discuss the question
whether a man can lawfully contract with another to repay
to him what he is compellable to pay to those whom he libels,
I do not wish it to be supposed that I affirm that he can.
We have nothing to do here with any duty (which could
only be contractual) to hold the appellant harmless from
liability for what he had written or to save him from himself
or to recoup him even for self-inflicted losses, nor with any
undertaking to insure against the risk of the contents of the
letter becoming known or absolutely to keep them secret in
all events and to guard against the letter being read by
anybody, for no such contract is before your Lordships.

Again, this contract of employment contains no special
term as to the extent or measure of damages, express or
implied. '' The damage," says Bowen L.J. in Cobb v. Great
Western Ry. Co. (1), '' must be such as would flow from the
breach of duty in the ordinary and usual course of things.
That is the general rule, both in contract and in tort, except

that in contract the law does not consider as too remote such )

damages as were in the contemplation of the parties atthe

979

H. L. (E.)
1920

——
WELD-
BLUNDELL
v.
STEPHENS.

Lord Sumner.

time when the contract was made. Subject to that, only —

such damages can be recovered as were immediately and
naturally caused by the breach." This special application
to contracts of the rule as to remoteness depends, like other
matters of contract, on mutuality and agreement, on some
communication between the parties at or before the time when
(1) (1893) 62 L. J. (Q. B.) 335, 387.
3 U 2 3

980

H, L. (E.)
1920

ae
WELD-
BLUNDELL
v.
STEPHENS.

Lord Sumner,

HOUSE OF LORDS [1920]

the contract is made, or some knowledge and acceptance by the
one party of the purpose or intention of the other in entering
into the contract. There is no evidence of anything of the
kind here. It is true that the respondent said that he realized
the letter was dangerous when he got it, but that answer did
not purport to refer to actions brought upon it. There are
plenty of other ways in which it might make mischief, and
indeed when Mr. Stephens asked the counsel who was cross-
examining him (Record p. 44 C), "' Do you mean dangerous
in the sense that it was libellous ? " all the answer he got was :
'' A highly dangerous letter to the interests of Mr. Weld-
Blundell unless it was kept from the knowledge of those
whose names are referred to in it." To that it was that he
replied that he realized it was dangerous. As a matter of
fact, nothing passed between the parties on the subject, and
so far was any such special contemplation from the appellant's
mind that, when Messrs. Comins & Co.'s solicitors asked him
to apologize for his letter, his answer was: ''I suppose you
will not venture to deny my right, even in this land of fools
and rogues, to say or write what I please to my own servants,
such as Comins, Hurst, Stephens, etc., more especially when,
as in this case, I limit my remarks to what is and has been
a subject of common knowledge to and among all of them or,
as you put it, among the entire gang in my employment."
(Record p. 81.) Clearly Mr. Weld-Blundell thought he could
write to Mr. Stephens what he liked without being under any
legal liability, whether the letter became known or not. There
is no evidence that any such thing was in the contemplation
of either party ; certainly it was not in that of both. There
is therefore no ground for applying to the defendant's breach
of contract in this case any other measure of damages than
such as would have applied if it had been a breach of a non-
contractual duty.

Now the only damages of which there was any evidence
consisted. of the damages and costs, both the successful
plaintiffs' and his own, which were recovered against the
appellant or incurred by him in the libel actions. Obviously
there might have been other substantial damages recoverable:

A. C. AND PRIVY COUNCIL.

against Mr. Stephens, if they could have been proved—for
example, the cost of advertising for the lost document and
getting it back; but how is the appellant to show that his
payment of the above-mentioned damages and costs was
the respondent's doing or the respondent's fault ?

My Lords, either the sums which the appellant had to
pay were the direct result of what he did himself and were
self-inflicted injuries, or they were caused not by Mr. Stephens
but by Mr. Hurst. As to the costs, the appellant brought
them on himself by electing to defend what in truth were un-
defended actions. If it be said that, until express malice
was found by the jury his liability might be only nominal,
that it was reasonable for him to take his chance on this issue,
and that he was put in the position of having to elect by the
respondent's want of care, the fact still remains that he was,
in part at least, the author of his own wrong by publishing
the libel at all. To say that Mr. Weld-Blundell gave Mr.
Stephens the opportunity of making him liable and that
Mr. Stephens took it and did so, is to my mind a mere quibble.
The appellant's liability did not depend on or spring from
Mr. Stephens, unless a mere occasion is identified in law with
cause. The way in which the appellant must naturally and
necessarily state. his case seems to me to put this view in a
nutshell. '"' True it is," he says, "that I libelled Messrs.
Comins and Lowe to Mr. Stephens; but, if Mr. Stephens had
not lost my letter, they would have known nothing about it,
and I should have escaped the consequences of my own wrong-
doing." My Lords, what is this but saying in plainer lan-
guage: '' My own act was the causa causans of the judgment
against me, and Mr. Stephens's omission to be careful was
the causa sine qua non." From the moment when the libel
was published the appellant was under legal liability, and the
effect of the action was merely to ascertain its amount and to
compel the appellant to discharge it. If he had been in
possession of lost property, belonging to Mr. Comins, and
the letter had betrayed to the owner the secret of its where-
abouts; if he had encroached on Mr. Lowe's land and the
letter had apprised that gentleman of the fact, just before a

981

H. L. (E.)
1920
= 1
WELD-
BLUNDELL

v.
STEPHENS.

Lora Sumner.

982
HL. (E.)
1920

WELD-
BLUNDELL

v.
STEPHENS.

Lord Sumner.

HOUSE OF LORDS [1920]

title accrued by lapse of time; if he had owed a debt to them

and the letter had recalled it to their attention, I can hardly
suppose that the several judgments recovered could be alleged
to be caused by the respondent, even though it was by his
fault that Messrs. Comins and Lowe got at the letter. As
Bankes L.J. says: "' The damages and costs in question are
payable by reason of the plaintiff's own wrongdoing and were
legally recoverable from him independently of the defendant's
breach of his obligation."

As to Neville v. London Express Newspaper (1), I confess I
should have thought from the report of that case that your
Lordships had there laid down a principle which would now
be in point, but in deference to the noble Viscount, who was
a party to that decision and whose opinion is to the contrary,
I forbear to express any concluded judgment upon. it.

If, however, the damages, of which evidence was given,
were not simply caused by the appellant's publication of the
libel, they arose in actions directly and immediately brought
about by the intervention of Mr. Hurst. In my opinion
the evidence on this point was all one way, and there was
nothing to the contrary to be left to the jury. The point
was taken in the Court of Appeal, and I am unable to under-_
stand why your Lordships are not to decide it now. It is a
question of law. The responsibility of Mr. Stephens ended
with Mr. Swift, his partner, who was careless but did not
drop the letter intentionally. No authority was given by Mr.
Stephens to Mr. Hurst in the matter. It was never intended
that he should read or make use of the letter. It was no part
of his duty to do so. I may add, though I do not think it
makes the respondent's irresponsibility any clearer, that
Mr. Hurst appears to have involved himself in conversion
and detinue of the document and in sundry original publica-
tions of the rather complicated collection of libels which it
contained. He was an independent actor and a mischief-
maker.

It is important to recall exactly what the evidence is as to
Mr. Hurst. It is given by Mr. Swift, who was not contra-

(1) [1919] A. C. 368.

A. C. AND PRIVY COUNCIL.

983

dicted nor was his cross-examination directed to shaking his H. L. (E.) ,

evidence on this point. He received the letter from the
respondent for the purpose of making the investigation
desired by the appellant. So far there was no breach at all.
He dropped it carelessly in Mr. Hurst's room. He discovered
that he had lost the letter before Mr. Hurst found it, and he
telephoned to him about it. Mr. Hurst looked about the
room and replied '' There is a letter under the chair in my
office where you were sitting." Mr. Swift replied: '' Well !
It is a private letter ! Do not read it! Just put it in an enve-
lope and send it along to me,'"' and Mr. Hurst said, "I will
do that straight away.'' Next day he said, when asked why
it had not arrived, "I could not catch the post, because I
was detained, but you will get it by the second." This was
only a half-truth. What really detained Mr. Hurst was that
he was getting a certified copy of the letter made, which was
ultimately the foundation of the plaintiffs' case in the actions
brought against the appellant.

My Lords, what canon is to be applied to such a case? It
is argued that the respondent is- liable for any damage, which
is '"'a natural consequence" or "'a natural and necessary
consequence"? of his breach of duty; that the conduct of
Mr. Hurst was " under the circumstances probable," and that
Mr. Stephens was therefore responsible for it; that the
respondent's breach of duty was "the effective cause of the
litigation," and that Mr. Hurst's "intervening negligence
does not affect "' this result. '

What are '"'natural, probable and necessary '' consequences ?
Everything that happens, happens in the order of nature and
is therefore "natural." Nothing that happens by the free
choice of a thinking man is " necessary,"' except in the sense
of predestination. To speak of " probable" consequence is
to throw everything upon the jury. It is tautologous to speak
of "' effective '' cause or to say that damages too remote from
the cause are irrecoverable, for an effective cause is simply.
that which causes, and in law what is ineffective or too remote
is not a cause at all. I still venture to think that direct
cause is the best expression. Proximate cause has acquired

?

99

1920
WELD-
BLUNDELL -
v.
STEPHENS,

Lord Sumner.

984

HOUSE OF LORDS [1920]

H. L. (E.) a special connotation through its use in reference to contracts

1920 | of insurance. Direct cause excludes what is indirect, conveys
Sait | . ° ° ° ° ' °
Wetpv- | the essential distinction, which causa causans and causa sine

BLUNDELL
ot qua non rather cumbrously indicate, and is consistent with
STEPHENS.

Lord "Sumner.

\the possibility of the concurrence of more direct causes than
lone, operating at the same time and leading to a common
result as in Burrows v. March Gas & Coke Co. (1) and Hill v.
|New River Co. (2)

As, however, these different epithets and tonal are used
almost indiscriminately, something more must be done than
to choose an epithet which has been used in a decided case.
It is necessary to consider whether the facts of the case cited
raise a question of causation belonging to the same category
as that under discussion. The crux of the present question
is the intervention of Mr. Hurst between the respondent and
Messrs. Comins and Lowe. Further, no want of care has
to be proved here against the respondent, for he accepts the
decision that he broke his contract by his partner's omission
to be careful, though not by any deliberate, intentional or
wanton breach. This at once makes it possible to lay aside

i large classes of authorities. What a defendant ought to

have anticipated as a reasonable man is material when the

question is whether or not he was guilty of negligence, that.
is, of want of due care according to the circumstances. This,
however, goes to culpability, not to compensation: Blyth v.
Birmingham — 'Waterworks (3); Smith v. London and South
Western Ry. Co. (4), per Blackburn J. Again, what ordinarily
happens, or may reasonably be expected to happen, is material
where a mere series of physical phenomena has to be investi-
gated and the remoteness of the damage or the reverse is to
be decided accordingly. Such a case is Sharp v. Powell (5),
unless indeed it be regarded as a decision on negligence or no
negligence. At any rate it is not this case. Again, between
the negligence of a defendant and the infliction of hurt or
loss on a plaintiff, the action of human beings may intervene
(1) L. R. 7 Ex. 96. (3) (1856) 11 Ex. 781.

(2) (1868) 9 B. & 8. 303. (4) (1870) L. R. 6 GC. P. 14, 21.
(5) (1872) L. BR. 7 C. P. 253.

A. C. AND PRIVY COUNCIL.

in a great variety of ways, the action of children or other
irresponsible creatures, of persons in a state of excusable
ignorance acting without any intention to injure others
(Elkins v. M'Kean (1)); of persons in a state of excusable
alarm produced by the wrongful acts of the defendant (Scott v.
Shepherd (2); Jones v. Boyce (3)); of persons acting in the
exercise or the defence of their rights and without intention
to injure others (Clark v. Chambers (4); The Sisters (5) ;
Halestrap v. Gregory (6)-); of persons acting as the defendant
meant them to act or acting as the defendant must have
foreseen that they would act, in consequence of things done
by him for his own purposes or in a state of indifference as
to the result to others: Scott's Trustees v. Moss (7); Rex v.
Moore. (8) Mr. Hurst's action is none of these. Equally
we may lay aside the cases where dangerous things, or things
capable of being dangerous if left exposed to the interference of
others, have been treated as imposing special duties of care on
those who are responsible for their being left where strangers
can make them a source of danger to persons brought into
contact with them. Such cases are Illidge v. Goodwin (9) ;
and Lynch v. Nurdin.(10) Darling J. thought that this
case might be treated as if the letter was an "explosive "
dangerous in itself and concealing its real character from
ordinary examination. The analogy was a false one. The
letter could not " go off"' of itself. If let alone, it was quite
harmless, and Mr. Hurst's only motive for meddling with it
must have been either its patent utility for mischief-making
or his moral disapproval of Mr. Weld-Blundeéll's own wrong-
doing. There is a special line of cases relating to things
supposed to be dangerous in themselves—horses and guns,
lamps and hair washes, railway trucks and railway turntables ;
but a document has been expressly held not to belong to this
category: Le Lievre v. Gould. (11)

(1) (1875) 79 Penn. Rep. 493. (6) (1895) 64 L. J. (Q. B.) 415.
(2) 2 W. Bl. 892. (7) 17 R. 32.

(3) (1816) 1 Stark. 493. (8) 3 B. & Ad. 184.

(4) 3 Q. B. D. 327. (9) (1831) 5 C. & P. 190.

(5) (1876). 1 P. D. 117. (10) (1841) 1 Q. B. 29.
p (11) [1893] 1 Q. B. 491.

£

985

H. iL. (B.)

WELD-
BLUNDELL
Vv.
STEPHENS.

Lord Sumner

986

H. L. (E.)
1920

=
WELD-
BLUNDELL
v.
STEPHENS.

Lord Sumner.

———_——__=

ee

HOUSE OF LORDS [1920

As applied to the present circumstances, what principles
and what decisions are in point ? The object of a civil inquiry
into cause and consequence is to fix liability on some responsible
person and to give reparation for damage done, not. to inflict
punishment for duty disregarded. The trial of an action for
damage is not a scientific inquest into a mixed sequence of
phenomena, or an historical investigation of the chapter of
events by which Mr. Weld-Blundell, the libeller of Messrs.
Comins and Lowe, came to be their judgment debtor. It is
a practical inquiry, the object of which is to settle the question
whether the appellant's payment of damages and costs to
these gentlemen was Mr. Stephens's doing, and whether it was
Mr. Stephens who made Messrs. Comins and Lowe go to law.
If Mr. Weld-Blundell cannot prove that it was so the loss lies
where it fell.

In general (apart from special contracts and relations and
the maxim Respondeat superior), even though A. is in fault,

' he is not responsible for injury to C. which B., a stranger
_to him, deliberately chooses to do. Though A. may have

given the occasion for B.'s mischievous activity, B. then
becomes a new and independent cause—e.g., Cobb v.
Great Western Ry. Co.(1); Attorney - General. v. Conduit
Colliery Co.(2) It is hard to steer clear of metaphors.
Perhaps one may be forgiven for saying that B. snaps
the chain of causation; that he is no mere conduit pipe
through which consequences flow from A. to C., no mere
moving part in a transmission gear set in motion by A.;
that, in a word, he insulates A. from C. It is quite plain that
when Mr. Swift dropped the letter and found out his loss, the
matter would have ended there but for the idle hands of
Mr. Hurst. He gave the letter a fresh start, and on his
original impulse it came to be sued on. Precisely the same
result would have happened if the person who dropped the
letter in Mr. Hurst's office had previously got it by picking
Mr. Swift's pocket. Again, the matter cannot be worse for
Mr. Stephens than if he had shown Mr. Hurst the letter him-
self, that is, had published to him Mr. Weld-Blundell's original

(1) (1894) 63 L. J. (Q. B.) 629. (2) (1894) 11 Times L. R. 57.

A. C. AND PRIVY COUNCIL.

libel. What then? Would the respondent have been liable
if Mr. Hurst had republished it (as indeed he did) without
authority from him, and not in accordance with any intention
or desire on his part, actual or imputable 2? Ward v. Weeks (1)
says no. The case is ninety years old, and I see no reason to
doubt it. The repetition, says Tindal C.J., was '' the volun-
tary act of a free agent, over whom the defendant had no
control, and for whose acts he is not answerable,' and this
repetition '' was the immediate cause of the plaintifi's damage."
Yet, taking men as we find them, few things are more certain
than the repetition of a calumny confidentially communicated,
even on an honourable understanding of secrecy.

987

H. L. (E.)
1920

es
WELD-
BLUNDELL
v.
STEPHENS.

Lord Sumner. —

I gather that the appellant's real argument is this: Why —

was it the respondent's duty to take care of the letter ?
Because it contained not only his instructions but several
libels. What was the importance of taking care of it as a
libel 2 Because in the hands of others an inconvenient use
might be made of it—for example, the person whom the
-.appellant had wronged might be enabled to make him right
his wrong. Why should the respondent be concerned with
that ? Because he might expect that if he lost the letter
something of the sort might happen. Why should he expect
that such a use might be made of the letter by the finder ?
Because we must take men as we find them, and we find
them as often bad as good. Thus Mr. Hurst's misbehaviour
was the natural and probable consequence of Mr. Swift's
carelessness. vs

Tf there is any basis for this argument, I do not see why it

stopped where it did. There can be no doubt that, if Messrs. ,

Comins and Lowe had had the letter sent to them by a person
who had stolen it, this action would have failed, even though
the respondent had by his carelessness enabled the thief to
get access to the letter. Why is the lme drawn at Mr. Hurst's
conduct ? If an expectation that other people will do wrong,
when they are given the chance, be the foundation of the
respondent's responsibility for what Mr. Hurst did, it would
equally extend to the conduct of a criminal.

(1) 7 Bing. 211, 215.

988

HAL. (E.)
1920

Com
WELD-
BLUNDELL
v.
STEPHENS.

Lord Sumner.

ees

HOUSE OF LORDS [1920]

- The importance of the point is this. It is said that the jury's
third finding is conclusive because there was evidence to go
to the jury which would support it. This evidence is either
the respondent's admission above quoted, that he realized
that the letter was dangerous, or it is the general effect of the
circumstances of the case as a jury would regard them. I
cannot see that there is any evidence in law in either case,
because I cannot see that the mere probability that actions
might be brought for the libels can turn Mr. Hurst's act into
the respondent's act. It might be material if the question
of want of care were in dispute, but it is not. Remoteness
of damage is a question of cause and effect, a different question.
That a jury can finally make A. liable for B.'s acts merely
because they think it was antecedently probable that B.
would act as he did apart from A.'s authority or intention
seems to me to be contrary to principle and unsupported by
authority.

I turn to the cases cited by the appellant. They certainly
do not determine the present question nor does it seem to me
that Clark v. Chambers (1) at any rate is a decision on the
measure of damage or on the causal connection between the
wrong act done and the wrong suffered at all. What the
defendant Chambers there did was deliberately done for his
own purposes in disregard of the rights of others generally,
and what the intervening party did was in defence of his
rights and not obviously dangerous to others. When the
reasoning is summed up by the Court, stress is laid on the
fact that the defendant's act was a deliberate and unlawful

obstruction of a right of way, and no fewer than three grounds

are stated for the decision: (1.) that it is covered by Scott v.
Shepherd (2), a case which has no bearing on the present appeal ;
(2.) that the defendant, when he laid this trap, must have
anticipated that some one entitled to use the road would abate
the nuisance he had created, and took the risk of it; and
(3.) that there was a duty upon him to safeguard others from
the effects of anything that might lawfully be done in removing
his obstruction. I think many persons have felt difficulty

(1) 3 Q. B. D. 327, 338. (2) 2 W. Bl. 892.

A. C. AND PRIVY COUNCIL.

in fitting Clark v. Chambers (1) into any coherent relation
with the rest of the law on this subject. Lindley L.J., for
example, in The Bernina (2) is fain to treat it as a case of joint
concurrent negligence of the defendant, who should have
provided a light, and of the person who moved the chevaux
de frise and left it in the dark. No difficulty need be felt
now in saying that the case has no place in the present argu-
ment. Bowen v. Hall (3) is a case in which the third party's
act, rightful or wrongful, was precisely what the defendant
intended to bring about. The point argued was that the
third party's act was in itself wrongful, and for that reason
only was too remote, which is not the point here. Engelhart's
Case (4) should be read with McDowall's Case (5), for the
latter purports to follow the principle, whatever it is, of the
former. Both relate to responsibility for the intervention
of irresponsible young persons. In the former stress is laid
on the zeal of the lad, who officiously started the horse, think-
ing that he was doing his master a service though in disregard
of his orders. Even so, the case is said to be on the border
line, and Lopes L.J. says the liability would have been the
same if no one had been left with the horse and an entire
stranger had started it, which clearly shows that he conceived
the case to depend on the special responsibility of those who
leave animals unattended in public places. Unless the
decision really turns, as argued by counsel and held by Lord
Esher, on the continuing negligence of the man, who ought
to have remained in charge of the horse all the time and
whose omission was an effective cause concurrent with the
boy's officious interference with the horse, and so follows
Illidge v.' Goodwin (6), I think the case was insufficiently
considered, and, when necessary, should be prepared to
review it. In McDowall's Case (5) on the contrary the railway
company was exonerated from responsibility for what was
held to have been due to the intervening action of others,
though it had just as much reason to anticipate what

(1) 3Q. B. D. 327, 338. (4) [1897] 1 Q. B. 240.
(2) (1887) 12 P. D. 58. (5) [1903] 2 K. B. 331.
(3) 6 Q. B. D. 333. (6) 5 0. & P. 190.

989

H. L. (E:)
1920

case
WELD-
BLUNDELL
Vv.
STEPHENS.

Lord Sumner.

990 HOUSE OF LORDS [1920]

H. L. (E.) happened as the present respondent had, and perhaps more,
1920 for the intervening agents were young boys. De la Bere v.
Wetp- Pearson (1) turns on the implications of the particular contract.
oe It. was more than a mere contract to use care; it approxi-

STEPHENS. mated to a warranty of the fitness of an article supplied.

Lord Sumner. What the defendant had agreed to do was to recommend an
honest inside broker; he recommended an outside broker,
who was a rogue, and the consequences of his roguery were
held to be covered by the contract as construed.

Great stress was laid on Lord Wensleydale's language in
Lynch v. Knight (2), namely, "' to make the words actionable,
by reason of special damage, the consequence must be such
as, taking human nature as it is, with its infirmities, and
having regard to the relationship of the parties concerned,
might fairly and reasonably have been anticipated and feared
would follow from the speaking the words." It must be
remembered what Lynch v. Knight (2) was. The defendant
had been guilty of making deliberate and continued accusa-
tions against his step-sister to her husband, obviously intend-
ing to produce some effect on him adverse to her. Lord
Campbell wrote of him, 'he having intended the husband
to believe that it was true, and having intended the husband
to act upon it." (3) Thus the first question was, whether
what the husband did was within the class of action he was
intended to take, or arose from some '"'idiosyncrasy of the
particular husband." If it was the former, the defendant's
further argument was, that as the husband was not in law
bound to put*her away in consequence nor was warranted in
doing so, this particular consequence was not special damage.
One must read Lord Wensleydale's words with reference to
this argument. I do not think he would have spoken of
"human nature with its infirmities'? in connection with
Mr. Hurst, for that would be stretching charity into condona-
tion, nor is there any evidence of any relationship between
Mr. Hurst and Messrs. Comins and Lowe beyond the fact that
he knew who they were. Lord Wensleydale's view was that

(1) [1908] 1 K. B. 280. (2) 9 H. L. C. 577, 600.
(3) 9 H. L. ©. 590.

A. C. AND PRIVY COUNCIL.

what Lynch intended Knight to do would extend to what
any reasonable man would have feared that he would do,
but this was not part of the decision, nor is it applicable to
this case, for here the respondent had no such intention as
Lynch had. Their Lordships all concurred in rejecting the
argument that the husband's conduct could not be material
unless it was his legal right or duty to act as he did, but they
held that the defendant must succeed because it was not
reasonable for the husband to have taken so serious a course
on an imputation of mere "levity of manners" requiring
only vigilance on his part. The passage in question is, there-
fore, no warrant for the proposition which the appellant
founds on it. The contention is not raised here that
Mr. Stephens escapes liability for Mr. Hurst's acts merely
because they were tortious, or that Mr. Hurst stood in any
special relationship to Messrs. Comins and Lowe. The bare
unqualified contention is that the defendant is liable, as for
the consequences of his partner's carelessness, for anything
done by Mr. Hurst, which, taking men as we find them, a jury
might think it natural for Mr. Hurst to do. This proposition,
if right, makes a clean sweep of a vast body of decided cases,
as mere indications of which I need only mention Parkins v.
Scott (1) and Bree v. Marescaux (2), for more than half of
human kind are tale-bearers by nature, and a good many
people "naturally" take advantage of any opportunity to
be dishonest, if they see anything to be got by it.

My Lords, I think the appeal fails and should be dismissed
with costs, and as the point relating to the decision of the
Court of Appeal to deprive the appellant of his costs of the
action has not been argued, I think the judgment of the
Court of Appeal should be upheld.

Lorp Parmoor. My Lords, the appellant, on May 4, 1915,
wrote to the respondent a letter instructing him to investigate
the affairs of the Float Electric Company. This letter con-
tained libellous statements referring to Lowe, a previous
manager of the.company, and to Comins, the auditor, which,

(1) 31 L. J. (Ex.) 331. (2) 7 Q. B. D. 434.

991

H. L. (E.)
1920

ae
WELD-
BLUNDELL
v.
STEPHENS.

Lord Sumner.

992

H. L. (E.)
1920
WELD-
BLUNDELL

v.
STEPHENS.

Lord Parmoor

HOUSE OF LORDS [1920]

on the subsequent trial on a libel action, were held to be
malicious. The respondent handed the letter to his partner,
who dropped or left it in the room of the manager, Hurst, at
the offices of the Float Company. The manager found and
read the letter and communicated its contents to Lowe and
Comins, who brought actions of libel against the appellant,
alleging as the publication, the publication to the respondent.
The plaintiffs succeeded in both actions, the judge ruling that
the occasion was privileged, but the jury finding that the
appellant had acted maliciously. The sum paid by the
appellant for damages and costs amounted to 16791. 14s. 8d.

The appellant then commenced an action against the
respondent, charging him that he had broken an implied term
in his contract of employment, to use reasonable care to
keep secret the contents of the said letter, and basing his claim
for damages on the sums which he had had to pay for damages,
and costs in the libel actions. The action was tried before
Darling J., and the jury found :—

"(1) That it was the duty of the defendant to keep
secret the letter of May 4th, written by the plaintiff to the
defendant.

(2) That the defendant had neglected his duty in regard
to the said letter, so that the contents were disclosed or
came to the knowledge of Mr. Hurst. .

(3) Damages 650/., on the ground that the plaintiff
himself was responsible to some extent for the damages
awarded in the libel actions."'

These findings are not questioned in the appeal, and in my
opinion they are not open to discussion in this House. On
further consideration, Darling J. held that the injuries sustained
by the appellant were traceable to his own unlawful act,
and that the maxim "Ex turpi causa non oritur actio"' applied,
and further that the plaintiff could not recover damages
against another because he had'had to make reparation for a
wrongful act committed by himself. At the same time the
learned judge expressed his agreement with the finding of the
jury: that the bringing of the libel actions, and the resulting
loss to the plaintiff, were the natural consequence of the

A. C. AND PRIVY COUNCIL.

defendant's negligent disclosures. The Court of Appeal were
unanimous in deciding that the appellant had a good cause
of action against the respondent, and held by a majority that
only nominal damages were recoverable. The only question
raised in debate before your Lordships is, whether nominal
damages are alone recoverable.

My Lords, the decision of the Court of Appeal affirms the
proposition that there is in law no objection to an obligation
undertaking not to disclose a libellous document, where the
libellous document is not criminal in character, and the party
who undertakes the obligation is not in the position of a joint
tort feasor. In my opinion this carries the appellant a long
way, and the question of damages must be carefully dissoci-
ated from the question of a right of action. If the respondent
had been in the position of a joint tort feasor, he would not

993
H. L. (E.)
1920

——~
WELD-
BLUNDELLI.
v.
STEPHENS,

Lord Parmoor.

have been liable in the action, and the question which arises *

in this appeal, as to whether more than nominal damages are
recoverable, would not have arisen. This decision, however,
leaves open the question whether an obligation to indemnify
a plaintiff against a liability consequent on the disclosure
of his own wrong is an obligation which may be enforceable
at law.

This issue is airestly raised where damages are claimed on
the basis of the damages and costs incurred in any libel action
'or actions which have resulted from the disclosure by an agent
of libellous documents entrusted to him for safe custody. On
this point Scrutton L.J. formed a different conclusion from
Bankes and Warrington L.JJ., and the case is one of great
difficulty.

The first matter for consideration is whether the obligation
undertaken by the respondent was intended by the parties
themselves to include such a liability for damages in the
event of the negligent disclosure of the libellous document.
With some hesitation J have formed the opinion that this
question should be answered in the affirmative. I agree
with Darling J. that, subject to the objection of law, which
does not appear to me to have been present to the mind of
either party when the' contract: was made, the damages

A. C. 1920. 3 xX 3

994

H. L. (E.)
1920

ees
WELD-
BLUNDELL
v.
STEPHENS.

Lord Parmoor.

HOUSE OF LORDS [1920]

claimed are, as found by the jury to be, the natural and pro-
bable result of the negligent disclosure. Apart from such
damages, there was no suggestion during the course of the
trial that loss and expense had been incurred by the appellant.
I should further be prepared to find, if necessary, that the
damages, as claimed, were within the contemplation of the
parties when the contract was made. That there is no general
objection to a contract in this form is evidenced by such
a case as Agius v. Great Western Colliery (1), where the
unsuccessful defendant recovered, as damages for breach of
contract, both the damages awarded against him in an
action resulting from that breach, and the costs of his
unsuccessful defence : the judge at the trial finding that the
course taken by the plaintiff in defending the action against
him was reasonable.

The objection, however, taken on behalf of the respondent,
is that it is not material that the damages awarded have been
found to be the natural and probable result of the breach
of the contract, or that they were within the contemplation
of the parties at the time of entering into the contract, seeing
that they are not legally recoverable on the principle stated
by Darling J.: '"'Can one recover damages against another
because he has had to make reparation for the wrongful act
committed by himself ?"' Or to put the question in a different
form, are damages, which would otherwise be recoverable,
as being the natural result of a breach of contract, or as being
within the contemplation of the parties, incapable of being
recovered because they are founded on the costs incurred to
make reparation for a wrongful act committed by himself 2
If this principle is applicable, then it follows that the damages
and costs incurred in the libel actions would not be recoverable
by the appellant, although the contract should contain an
express promise of indemnity from the respondent. This
position was not contested in the able argument on behalf
of the respondent.

My Lords, I think that the proposition stated in this general
language is too wide, and that there are circumstances in

(1) [1899] 1 Q. B. 413.

A. C. AND PRIVY COUNCIL.

which an indemnity can be claimed against a wrongful act
of a plaintiff which is not either criminal or wilful in its
character. With this limitation in mind, I should be content
to take the law as laid down by Kennedy J. in the case of
Burrows v. Rhodes (1): 'It has, I think, long been settled
law that if an act is manifestly unlawful, or the doer of it
knows it to be unlawfui, as constituting either a civil wrong
or a criminal offence, he cannot maintain an action for con-
tribution or for indemnity against the liability which results
to him therefrom. An express promise of indemnity to him
for the commission of such an act is void..... Where the
circumstances constituting the unlawfulness of the act are
known to the doer of it, his inability to claim contribution or
'indemnity appears to me to be clear.'' Does the libellous
document, intrusted to the respondent, which was in itself
privileged, but which was found to be malicious, come within
an act " manifestly unlawful, or which the doer of it knows
to be unlawful'? ? There appears to be no direct authority,
but Scrutton L.J. expresses the opinion: 'I cannot say that
Mr. Weld-Blundell must be taken to have known that he
was committing an unlawful act, so as to lose all protection
if the letter was revealed.' In other words, the learned
Lord Justice finds that the wrong was not wilful, and comes
within the category of cases in which a plaintiff can legally
claim indemnity against his own negligent act or the negligent
act of those for whom he is responsible. In T'rinder, Anderson
& Co. v. Thames and Mersey Marine Insurance Co. (2), the
negligent navigation was held not to defeat a claim to recover
on a marine insurance policy, although such negligent action
had directly conduced to the collision, but it is indicated that
the conclusion would have been different if the negligence
had been wilful. The same principle applies in the case of
fire policies, with the same distinction between negligence and
a wilful act. In Cointat v. Myham (3) a claim for damage
was allowed in respect of a fine and costs, as well as for a loss
of trade. On the other hand, in the case of Leslie v. Reliable
(1) [1899] Q. B. 816, 828. (2) [1898] 2 Q. B. 114.
(3) [1913] 2 K. B. 220.
3 X 2 3

995

H. L. (E.)
1920

i)
WELD-
BLUNDELL
v.
STEPHENS.

Lord Parmoor.

» 996

H. L. (E.)
1920

ae
WELD-
BLUNDELL
v.
STEPHENS.

Lord Parmoor,

HOUSE OF LORDS [1920]

Advertising Agency (1), it was held that, as the plaintiffs had
been convicted of sending a money-lending circular, without
having reasonable grounds for believing the addressee to be of
full age, the claim was not maintainable. I desire in the pre-
sent appeal to express no opinion as to what the legal result
would be in a case in which damages in the nature of an

'indemnity for a criminal act are sought to be recovered. In

such a case questions of public policy would arise which do
not arise in the present appeal. On the whole I agree with
the judgment on this point of Scrutton L.J., and, apart from
authority, I can see no reason why, if the action is maintain-
able, damages in the nature of an indemnity should not be
recovered, if such damages can be regarded either as the
natural and probable result of the negligence, or as in>
the contemplation of the parties when they entered into
the contract.

It was further contended on behalf of the respondent that
the damages were too remote, in that the actions for libel
were directly attributable not to the negligence of the
respondent, but to the action of Hurst in disclosing the libel-
lous document to Lowe and Comins. This point was not
raised at the trial before Darling J., and is not referred to in
the judgment of the Court of Appeal, but the intervening
negligence of a third party does not necessarily in law render
the negligence too remote, and if it had been intended to
raise this point it should have been raised at the trial of the
action so that the necessary relevant question might have been
left,to the jury. It is sufficient to refer to the case of Engelhart
v. Farrant (2), in which the defendant was held to be liable
where the negligence of his driver in leaving a cart was the
effective cause of the damage, when in his absence a lad drove
on, and came into collision with the plaintiff's carriage. This
principle was recognized in the case of McDowall v. Great
Western Ry. Co. (3), although it was held in that case that
the evidence did not support the finding of the jury, and
that the negligence of the defendants was not the effective

(1) [1915] 1 K. B. 652. (2) [1897] 1 Q. B. 240.
(3) [1903] 2 K. B. 331.

A. ¢. AND PRIVY COUNCIL.

997

cause of the accident. I would refer also to the cases of H. L. (E.)

Clark v. Chambers (1); Bowen v. Hall (2); and Lynch v.
Knaght. (8)

In my opinion the judgment of the Court of Appeal should
be reversed and judgment entered for the appellant for the
amount of the verdict.

Lorp Wrensury. My Lords, by his letter of May 4, 1915,

the plaintiff Weld-Blundell published to the defendant.

Stephens with express malice a libel upon certain persons,
including Lowe and Comins. The relevant facts for the
moment stop there. Whether Lowe and Comins knew it or
_ not, there existed by reason of those facts a cause of action

against Weld-Blundell at the suit of each of them. He lay
under a legal obligation to pay damages for his wrongful act.
They subsequently learned that they had this cause of action.
Each of them sued and recovered damages and costs. Those
damages were, of course, the pecuniary equivalent of the
wrong done to the parties libelled. Weld-Blundell in those
actions suffered no damage at all. He had to pay money,
but a defendant is in no sense damaged by being compelled
by legal process to satisfy his legal obligation.

In that state of facts Weld-Blundell, in the present action,
seeks to recover from Stephens the money he has had to pay
to Lowe and Comins. He is entitled, he says, to recover it
because Stephens, in breach of duty to him, did such acts as
that Lowe and Comins became aware that they had the above
right of action. If Stephens had not committed that breach
of duty Lowe and Comins would not have known that they
had, or might not have known that they had, and would not
have exercised their right of action, and Weld-Blundell would
not have been compelled to pay money. He is damaged, he
says, by the amount of money he has had to pay, and Stephens
is liable to him in the amount of damages and costs in the libel
actions as damages for Stephens's negligence and breach of
duty.

(1) 3 Q. B. D. 327. (2) 6 Q. B. D. 333.
(3) 9 H. L. ©. 577, 600.

1920

er
WELD-
BLUNDELL
v.

STEPHENS.

998

H. L. (E.)
1920

es
WELD-
BLUNDELL
v.
STEPHENS.

Lord Wrenbury.

HOUSE OF LORDS ; [1920]

My Lords, there is, in my judgment, more than one answer
to this contention. 4

The relations between Weld-Blundell and Stephens were
such that the latter no doubt owed a duty to the former, and
in that duty he was negligent. Weld-Blundell's liability to
pay money to Lowe and Comins, however, arose not from that
negligence, but from his own wrongful act in indulging in
malicious libel. And the amount he had to pay was measured
by his own wrongful act. It bore no pecuniary relation to
Stephens's wrongful act. Stephens's act was not the cause
(whether with or without the word "' effective '') of his having
to pay, but was an act without which possibly he would never
have been called upon to pay. It was not causa causans
but at most causa sine qua non.

In discharging his liability to pay damages for malicious
libel Weld-Blundell suffered no damage at all. A man is not
damnified by being compelled to satisfy his legal obligation.
In Neville v. London Express Newspaper (1) the House were
unanimous upon this proposition.

Further, the following passage in the judgment of
Kennedy J. in Burrows v. Rhodes(2) correctly, in my
judgment, states the law :—

"Tt has, I think, long been settled law that if an act is
manifestly unlawful, or the doer of it knows it to be unlaw-
ful, as constituting either a civil wrong or a criminal offence,
he cannot maintain an action for contribution or for indem-
nity against the liability which results to him therefrom.
An express promise or indemnity to him for the commission
of such an act is void."

In support of this proposition he cites Shackell v. Rosier (3) ;
Arnold v. Clifford (4); and Martyn v. Blithman. (5)

In the present case Weld-Blundell did an unlawful act in
libellng Lowe and Comins. He cannot by legal process
reimburse himself for the consequences and throw the cost
upon another.

(1) [1919] A. C. 368. (4) (1835) 2Sumner's Circuit Court _
(2) [1899] 1 Q. B. 816, 828. Reports U.S. 238.
(3) 2 Bing. N. C. 634. (5) (1611) Yelv. 197.

A. C. AND PRIVY COUNCIL. 999

Further, notwithstanding what was said by Kelly C.B. in H. L. (B)

Riding v. Smith (1), I think Ward v. Weeks (2) is good law. 1920
"There is ample authority," said Bramwell L.J. in Bree v. _ Watv-
Marescaux (3) "to shew that a man is not liable for damage eas bar
occasioned by a repetition of the slander; that is to say, S™?#®%*
if A. said to B. that C. stole his sheep, though A. would be © V2"
liable to C. for such slander, yet if B. repeat this slander, A.,
- the original speaker, would not be responsible for this." See
also Lindley J. in Clarke v. Morgan. (4) The proposition
thus stated, however, requires, I think, qualification. If,
for instance, A. expressly authorized B. to repeat the slander,
or if from the surrounding circumstances it is to be inferred
that he anticipated and wished that he should repeat it, the
proposition would not, I think, be true: Speight v. Gosnay (5) ;
Ratcliffe v. Evans. (6) atl

The present case is not one of slander, but of libel. But
not only had Weld-Blundell not authorized Stephens to repeat
the libel, he had sent him the letter containing the libel under
such circumstances that he (Stephens) owed him the duty not
to disclose it. Assuming that rt can be said that Stephens
made publication to Lowe of the libel on Comins and made
publication to Comins of the libel on Lowe, nothing results
from this, for: (1.) Weld-Blundell was not liable in respect of
that publication which he had not authorized, and (2.) he was
made liable not for that publication, but for the publication
made by Weld-Blundell to Stephens, and the last-mentioned
publication had been made and its consequences incurred
before the events happened, that Swift dropped the letter
and Hurst picked it up and wrongfully read it, and as a result
Lowe and Comins were informed. Nothing that Stephens
did created the liability under which Weld-Blundell lay. I
am quite unable to follow the proposition that the damages
given in the libel actions are in any way damages resulting
from anything which Stephens did in breach of duty.

And if it be worth while to pursue it further, that which

(1) 1 Ex. D. 91, 94. (4) (1877) 38 L. T. 354.

(2) 7 Bing. 211. (5) 60 L. J. (Q. B.) 281.
(3) 7 Q. B. D. 484, 437. (6) [1892] 2 Q. B. 524, 530.

"1000

HL. (E.)
1920

WELD-
BLUNDELL

v.
STEPHENS.

Lord Wrenbury.

HOUSE OF LORDS [1920]

Stephens did in breach of duty was not that he informed
Lowe and Comins, but that he negligently gave Hurst the
opportunity to commit another wrongful act—namely, that of
reading the letter—an opportunity of which he wrongfully
availed himself, and then did the act of informing Lowe and
Comins.

My Lords, we have heard little, and I have so far said
nothing, as to the question discussed below and on which the .
Court of Appeal expressed an opinion—namely, whether the
duty (although the Court of Appeal call it a contract) found |
by the jury to keep secret the letter of May 4 was contrary
to public policy. All the Lords Justices held that it was not.
I fully agree. The contrary proposition would seem, to be
that public policy requires that a man should spread a malicious
libel to the best of his ability, or at least that he should inform
the party libelled (if he does not already know it) in order
that he may be induced to bring an action. I do not think
public policy requires anything of the kind. , A

In my judgment -the order under appeal is right. There
was a duty: there was negligence: there was no special
damage. The damages are nominal. I think the appeal
should be dismissed with costs.

Order of the Court of Appeal, in part complained
of, affirmed and appeal dismissed with costs.
Lords' Journals, May 13, 1920.