Andrew is right that Darby is correctly decided, but IMHO wrong that it is very close to Bhamra and that Bhamra should have been decided the same way (no liability).  In Bhamra the injury resulted from one of the foreseeable risks that made the defendant's conduct negligent (the allergy risk).  That was not the case in Darby, in which the foreseeable risk that arguably made the non-fencing negligent (getting Weil's disease from contact with the water) was not realized; rather, a different risk (drowning in the water) was realized, which however was not one of the risks that made the defendant's conduct negligent.  Thus, as the Bhamra court stated, in Darby there is a lack of attributable responsibility ('proximate' causation) because the harm did not result from the actual or anticipated realization of one of the risks that made the conduct negligent, while in Bhamra there is attributable responsibility because the harm did result from the realization of one of the risks that made the conduct negligent.

 

Note that, as I explain at length in my previously cited San Diego article, the 'harm results from the risk' formulation (which is how the limitation is phrased in the Resatement Third) is quite different from the 'harm matches the foreseeable risk' or 'harm within the foreseeable risk' limitation with which it is often confused (and was phrased in the initial draft of the Retatement Third, prior to myself and a number of others pointing out the difference and its significance).  The 'harm results from the risk' formulation interpolates between Cardozo's and Andrews' positions on attributable responsibility (whether phrased as duty or proximate cause limitations), and it is consistent with the American and English cases, while the 'harm matches the risk' formulation is not (again, see my San Diego article).

Finally, a plea to Andrew: would you consider putting your comments on top of the copied correspondence, as everyone else does?  It is not only somewhat burdensome to have to scroll all the way down to find your comment, but I often forget that this is your practice and, as occurred during the exchanges on this issue, simply assume that you are re-forwarding others' comments and do not think to scroll down to the bottom to note that you have added a new comment.

 

- Richard