Re The Heron II [1969] 1 AC 350

Lord Reid

• He says that Lord Asquith’s use of the “reasonably foreseeable” is wrong, since a result, however unlikely, might be reasonably foreseeable.

• What is really required is that Defendant did foresee the harm and that, had the defendant thought about it, he would have seen the likelihood of it occurring as having a “very substantial degree of probability”.

• He also says that the phrases such as “on the cards” or “serious possibility” etc. are unhelpful as they set the standard of risk of the harm occurring too low. 

Lord Morris

• As a reasonable businessman Defendant must have known that late delivery of the sugar would cause Plaintiff some loss.

• He says that Lord Asquith’s phrase that a reasonable person would have foreseen that the breach was “liable to result” in harm was bad as it is vague and doesn’t set a standard of likelihood. 

Lord Hodson

• The phrase “liable to result” is good and no more vague than the use of the word “likelihood”. 

Lord Pearce

• “Liable to result” = “serious possibility” or a “real danger”.

• These phrases lower the standard of probability that the breach has to cause the loss and this is good (unlike the requirement of Hadley that the breach had to be “probable” i.e. more likely than not). 

Lord Upjohn

• “Serious possibility” or “real danger” are good tests, but reasonable foreseeability is not the test in contract. 

Professor Burrows

• The best explanation of the judgments is that whereas a slight risk of harm occurring is all that’s needed in tort, a serious possibility of loss occurring is needed in contract. 

RELATED CASES

• Hadley v Baxendale