Professional Documents
Culture Documents
Ian Yeats
Paula Giliker
Mary Luckham
This guide was prepared for the University of London International Programmes by:
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Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen
Mary College, University of London.
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Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law
Tutor, St Hildas College, Oxford.
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This is one of a series of subject guides published by the University. We regret that
owing to pressure of work the authors are unable to enter into any correspondence
relating to, or arising from, the guide. If you have any comments on this subject guide,
favourable or unfavourable, please use the form at the back of this guide.
If you have any comments on this subject guide favourable or unfavourable please
use the form at the end of this guide.
Law of Tort
page i
Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1
1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3
Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4
1.5
The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1
2.2
2.3
Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
3.3
Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
31
4.4
4.5
40
5.2
5.3
5.4
53
5.5 Rescuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
76
page ii
7.2
7.3
89
8.2
9.2
9.3
False imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . .
113
125
12 Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
12.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
12.2 What does the claimant have to prove? . . . . . . . . . . . . . . . . . . 157
12.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
12.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Law of Tort
page iii
13 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
13.1 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
13.2 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
13.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
193
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
194
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
195
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
196
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
197
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
197
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
200
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 204
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
page iv
Notes
1 Introduction
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1
1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1.3
Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.4
1.5
The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
page 2
Introduction
Tort is a branch of the civil law (as opposed to criminal law) based on a claim that the
defendant has caused injury or loss to the claimant by breaking a relevant obligation
imposed by the general law. This definition tells you nothing about what conduct is
tortious. You will understand that only when you know what counts as injury or loss
and what obligations the law imposes. Very broadly, tort law is one of the methods
by which people who have suffered injuries are compensated. It deals with whether
losses should lie where they fall or should be transferred to someone thought to be to
blame (not necessarily in a moral sense) for what has happened. Of course the person
to blame will often be insured or will be a large company or government department
and so the losses will often be spread more widely. For example, when a person is
injured by a careless motorist, the motorists insurance company will pay the damages
and the ultimate costs of the accident will fall on the general community who pay
insurance premiums.
Broadly speaking, the law of tort took its present shape in the nineteenth century
although of course it has developed considerably since then. Those interested in a
historical introduction may refer to Lunney and Oliphant, Chapter 1: General
Introduction, Section I Historical development of tort law; Winfield and Jolowicz,
Chapter 2: The structure if tort law: history and influences, Section 1 The forms of
action: trespass and case.
Learning outcomes
By the end of this subject guide, you should be able to:
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describe the relationship between tort and certain other branches of law
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explain the relationship between different torts and the bases of liability in each
tort
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identify the principal policy difficulties with the contemporary law of tort
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On the impossibility of a
definition of tort see Murphy,
Chapter 1: Overview of the
law of torts, Section 1 What is
a tort; Winfield and Jolowicz,
Chapter 1: The Nature and
Functions of the Law of Tort,
Section 1 Nature of the law of
tort; on the aims or functions
of tort again see Winfield and
Jolowicz, Chapter 1: Nature
and Functions of the Law of
Tort, Section 1 Nature of the
law of tort; and Markesinis
and Deakin, Chapter 1:
Introduction, Section 1 Tort
at the crossroads and Section
5 Functions of tort.
page 3
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For example, the tort of defamation (see Chapter 12) protects the distinct interest
of reputation: in respect of some elements liability is strict and in respect of others
liability depends on proof of fault. In order to try and restrict misuse of the law and
stop trivial or non-viable claims from commencing, the Defamation Act 2013 provides
that unless publication of a statement has caused or is likely to cause serious harm to
the reputation of the claimant it is not defamatory.
strict (e.g. consumer protection legislation): liability does not depend on proof of
fault on the defendants part
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based on the ultimate motive or purpose of the defendant (rare in English law).
Note: tortious is
pronounced torshus.
page 4
How should the law of tort relate to alternative sources of compensation? (See
Winfield and Jolowicz, Chapter 1: Nature and Functions of the Law of Tort, Section
3 Tort and other sources of compensation and Markesinis and Deakin, Chapter 1:
Introduction, Section 7 Alternative systems of compensation.) The main sources
are the social security system and insurance either by potential claimants (e.g. life
insurance) or by potential defendants (e.g. car insurance). You are not expected to
know the details of these systems but their existence affects (and perhaps should
affect more) the content of tort law, and the relation between different sources of
compensation is relevant to the calculation of damages (see Chapter 13).
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How far should liability be based on fault? (See Markesinis and Deakin, Chapter 1:
Introduction, Section 6 Fault as the basis of tortious liability).
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To what extent should public bodies be liable for failures in regulatory systems?
(See Chapter 5).
1.2 Sources
In your study of this subject, you will have to consider the following sources of law.
Cases
Most of the law of tort is judge-made and is to be found in reported cases. This process is
continuing and you should think about the direction in which the courts are moving as
well as the content of decided cases (see, for example, the developments in relation to
economic loss, in Chapter 5). In answering a question, as in advising a client or employer,
you have to be able to judge how a court might decide a future case as well as describing
what has been decided in past cases. You should also consider how appropriate
judge-made law is as a source of new developments. Compare the willingness of the
courts to be creative in relation to economic loss (see Chapter 5) and their refusal to
be so in relation to environmental protection (see Chapter 11). Some cases are merely
illustrations and applications to particular facts of well-established principles: they can
be used as illustrations in handling problem questions in examinations. Other cases are
the source of important principles: the judgments are discursive, discuss issues of policy
and suggest lines of development for the future. These cases have to be studied with
more care. The ability to identify important cases increases with experience, but you can
be guided by the way in which particular cases are discussed in the textbooks.
Statutes
Some statutes replace or partly replace areas of the common law (e.g. Occupiers Liability
Acts 1957 and 1984); some provide additional protection over a wide field (e.g. Consumer
Protection Act 1987); some effect minor amendments only.
They may apply an existing tort. If a public authority in England kills someone
(contrary to Art 2) or tortures someone (contrary to Art 3) this plainly falls
within the existing English law of tort.
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They may modify an existing tort. For example, Art 2 requires the state to
provide protection against being killed and Art 3 requires the state to provide
protection against inhuman and degrading treatment. An existing English tort
may have to be modified in order to provide the necessary protection. See in
particular Chapter 5.
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They may create a new right of action in damages: this is analogous to the
existing tort of breach of statutory duty. This is discussed more fully in Chapter
7. It should be noted that section 8 of the Human Rights Act 1998 provides
that a person is not entitled to an award of damages merely because a public
authority has acted unlawfully under the ECHR, and the court has a discretion
to decide whether an award is necessary in a particular case.
Lunney, M. and K. Oliphant Tort law: text and materials. (Oxford: Oxford
University Press, 2013) fifth edition [ISBN 9780199655380].
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakins tort law. (Oxford:
Oxford University Press, 2012) seventh edition [ISBN 9780199591985].
Murphy, J. Street on torts. (Oxford: Oxford University Press, 2012) 13th edition
[ISBN 9780199554447].
Rogers, W.V.H. Winfield and Jolowicz on tort. (London: Sweet & Maxwell, 2010)
18th edition [ISBN 9781847037930].
These are quite lengthy and explore topics in greater depth and with more
background than is essential, and also cover topics which are not included in your
syllabus.
Useful collections of cases and materials:
Weir, T. A Casebook on tort. (London: Sweet & Maxwell, 2004) 10th edition
[ISBN9780421878808].
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page 6
Giliker, P. and S. Beckwith Tort. (London: Sweet & Maxwell, 2011) fourth edition
[ISBN 9780414046085].
McBride, N. and R. Bagshaw Tort law. (Harlow: Longman, 2012) fourth edition
[ISBN 9781408295731].
These give an overview of the subject and its role but are not sufficiently detailed to
serve as textbooks. A stimulating socio-legal work which addresses many of the policy
issues (see Policy questions, section 1.1.2 above) is:
These journals may also contain general articles of interest. Judges increasingly make
reference to such articles in developing principles in new or difficult areas of law. Such
articles also frequently draw attention to the way in which particular problems are
dealt with in other countries with similar problems.
page 7
Problem questions
Most important
Examination questions do
not ask you to write down
everything you know about
a topic.
Your aim should be to answer
the questions that the
Examiners have asked, and
use only material relevant to
those questions.
You will be given a set of facts and either asked to advise one or more of the characters
or to discuss issues of tortious liability which arise. You must avoid simply identifying
the subject matter of the problem (for example, negligent mis-statements) and
writing all you know about it. Before writing, you should analyse the facts carefully to
work out the relation between the parties and the legal issues to which they give rise.
You can then select the legal principles which are relevant and marry the facts and
the legal principles into a logically structured answer. You do not literally set out your
answer in the form of advice but you must remember that you are solving a problem
and not simply writing an account of a particular area of law. Most problems contain
at least some issues where the law is not entirely clear; you have to identify these and
suggest the solution to which you think a court will be likely to come and give your
reasons for doing so. Problem questions seldom relate only to material in a single
chapter. You may expect to have to answer questions that involve more than one
tort or involve issues that are discussed in different chapters. In this guide specimen
questions are not found at the end of every chapter.
Essay questions
Such questions rarely ask for a straightforward account of a particular topic. They ask
you to write critically about a particular topic, to compare one topic with another, to
suggest reforms and improvements, to analyse the reasons which lie behind particular
areas of law and so forth.
In both kinds of question the most common error is irrelevance. You must identify the
precise issues(s) raised and direct your answer to it (them).
Why critically?
Because the Examiners want
to see if you understand the
subject well enough to write
about it as a lawyer would
sometimes a particular point
of view has to be argued and
sometimes you have to write
from both sides of the issue.
page 8
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1
2.2
2.3
Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
page 10
Introduction
Negligence is the most important modern tort: its study should occupy about half the
course. It is important because of the great volume of reported cases and because it is
founded on a principle of wide and general application. This chapter explains the basic
structure of the tort and describes the organisation of the material in subsequent
chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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indicate some of the social and policy questions that have influenced the
development of the tort of negligence.
Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a
general overview of the tort of negligence, illustrated mainly, but not exclusively,
by cases involving careless conduct giving rise to death, personal injuries or
damage to property.
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Chapter 5 deals with more complex areas that have been the subject of much
litigation in recent decades: liability for careless advice or information; liability for
psychiatric injuries and for purely economic damage; liability for failures to take
action to avoid harm; liability for failures of supervisory or regulatory functions.
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Chapter 6 deals with the liability of two particular categories of defendants: that
of occupiers towards those on their premises, and that of employers towards their
employees.
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page 12
The underlying idea in a negligence action is very simple. If the claimants injuries
result from behaviour that falls short of socially acceptable standards, then there
should be compensation. If they do not, then the victim should bear the loss
without compensation. Since carelessness is not generally criminal, the tort of
negligence is the means by which the law attaches consequences to unacceptable
behaviour. Lord Diplock once described negligence as the application of common
sense and common morality to the activities of the common man (Doughty v
Turner Metal Manufacturing Co [1964] 1 QB 518, noted in Chapter 4). In a number of
recent cases the House of Lords has based its conclusions for or against liability by
reference to what people generally would regard as fair. See for example Alcock v
Chief Constable of South Yorkshire (Chapter 5) and Rees v Darlington Memorial Hospital
NHS Trust [2003] UKHL 52, [2004] 1 AC 309 (Chapter 3). The public view of what is
fair may change over time. One question to consider is how far the law correctly
reflects a public sense of fairness.
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There is a way in which liability in negligence does indeed affect behaviour and may
force defendants in ways that are arguably not to the general benefit. Courts are
increasingly aware of the so-called compensation culture, the desire to identify
someone who is able to pay for injuries. The fear is that there will be a defensive
reaction that drives out many socially useful activities. Schools may stop arranging
excursions for pupils for fear of claims by injured pupils. Institutions such as homes for
the elderly or nurseries for children may close if the costs of liability insurance become
prohibitive. There may be other defensive consequences. Family doctors may refer
too many healthy patients to specialists to protect themselves against negligence
claims, thereby adding to the costs of the health service and delaying appointments
for patients in need of specialist services. As a recent example of a judicial fear of
the compensation culture, see Tomlinson v Congleton Borough Council [2003] UKHL
47: [2004] 1 AC 46 (Chapter 6). Section 1 of the Compensation Act 2006 also aims to
address the deterrent effect of potential liability on the organisation and pursuit of
worthwhile activities.
Activity 2.1
Write down brief notes on what Tomlinson v Congleton Borough Council [2003] tells
you about the effects of compensation culture.
You will return to this case in Chapter 6: you will find an easy introduction to the
ideas of compensation culture in the speech of Lord Hoffmann.
No feedback provided
page 13
page 14
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1
Duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2
3.3
Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
page 16
Introduction
This chapter introduces the first two elements in establishing an action in the tort
of negligence. Did the defendant owe the claimant a duty to take care? Was the
defendant in breach of that duty?
Learning outcomes
By the end of this chapter and associated readings, you should be able to:
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identify the various tests that have been suggested for the existence of a duty of
care
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discuss the duty concept in the context of some particular situations, namely,
controlling others, duty of lawyers and duty to unborn children
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Essential reading
Winfield and Jolowicz, Chapter 5: Negligence: Duty and Breach, Section 1 Duty
of care: general and Sections 35.
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Second, Lord Atkin enunciated a broad principle of liability. A duty was owed to
persons who are so closely and directly affected by my act that I ought reasonably
to have them in contemplation as being so affected He described such people as
my neighbours: so his definition of the duty is called the neighbour principle.
2. A revised test
There were many developments in the law of negligence in the years following that
decision. These led Lord Wilberforce to redefine the neighbour principle. He turned it
into a two-stage test in Anns v Merton London BC [1978] AC 728 at 75.
The first question was whether there was a sufficient relationship of proximity
or neighbourhood such that in the reasonable contemplation of the defendant
carelessness on his part may be likely to cause damage to the claimant. If so, a
prima facie duty of care arose. The second question was whether there were any
considerations which ought to negative or reduce or limit the scope of the duty of
care or the class of persons to whom it was owed.
This test came under criticism in the following years as being too expansive and
indeed the Anns case was itself overruled in 1991 (see Chapter 5).
3. The current test: foresight, proximity and fairness
The test is now stated in this form. The claimant has to show three things if there is to
be a duty of care:
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There is no single case identified with this test, but one of its best expositions is in
Caparo Industries v Dickman [1990] 2 AC 605. There is a particularly helpful discussion
of the test by Bingham LJ in the Court of Appeal in the same case: Caparo Industries v
Dickman [1989] QB 653 at 67880. Notice that the decision of the Court of Appeal in
that case was overruled by the House of Lords. For details, see Chapter 5.
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They are very general. It is possible to understand what they mean in practice only
after studying a number of illustrative cases.
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Policy considerations are explicit in the second and third tests, but are implicit in
Lord Atkins test as well. Notice his use of ought and reasonably. There is a large
moral component to his test. It is not just about what can be foreseen, but about
what ought to be foreseen.
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These tests are of most use when the law is uncertain. These are concepts that
judges use when deciding whether or not a duty of care ought to be recognised
in new situations. Once a duty situation is recognised, the test in a sense drops
out of the picture. So, in an examination context, there is no need to go through
the Caparo test unless either the situation is a novel one, where there are no
clear precedents, or you are trying to argue that the law ought to be changed (as
was done by the House of Lords in respect to the liability of lawyers; see Duties
of lawyers in 3.2.1 below). If the question you are answering is about a motorist
knocking down a pedestrian, the duty of care is established by many previous cases
and there is no need to go through the tests for establishing a duty afresh.
Is there a duty at the abstract level (the notional duty or duty in law): for example,
does a motorist owe a duty of care to other road users? Or do barristers owe a duty
of care to their clients?
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Is the particular claimant within the scope of the duty of care (duty in fact or the
problem of the unforeseeable claimant): for example, was this particular road user
owed a duty by this particular motorist?
Notice that many commentators prefer to treat the second question duty in fact
either as a matter of breach of duty or as a matter of remoteness of damage.
Some cases then are clear. Users of machinery, etc., on the roads, on building sites, in
workplaces owe a duty of care to those likely to be affected. So do doctors, nurses,
dentists, hairdressers, etc., providing services to the public. Below there is a series of
illustrations of the application of the concept of duty of care, in situations where there
has been doubt. More complex and developing examples are discussed in Chapter 5.
page 19
C (Claimant)
X (Third party)
Proposed
action
D (Defendant)
Examples of this problem would include the following:
a. Should a school (or a
keep it locked up to
a pedestrian?
pedestrian?
In the diagram above X is the child, the guest and the thief.
As a general rule English law does not impose a duty, reasoning that the fault is that of
X and not that of D. But exceptionally a duty may arise. In deciding whether a duty of
care arises, it is relevant to ask:
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What is the relationship between X and D? Does D have some responsibility over X?
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See Home Office v Dorset Yacht Co [1970] AC 1104; Carmarthenshire County Council v Lewis
[1955] AC 549; Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; AttorneyGeneral of British Virgin Islands v Hartwell [2004] UKPC 12, [2004] 1 WLR 1273.
The issues discussed in this paragraph are similar to, and overlap with, issues discussed
later in this guide: (a) whether the act of X amounts to a new and intervening cause
breaking the link between C and D (see Chapter 4); (b) whether D can be liable for an
omission to act where he fails to take steps that would prevent X from causing harm
(see Chapter 5).
The issues discussed in this paragraph must be distinguished from the question of
vicarious liability (see Chapter 13). This paragraph concerns the primary liability of
defendants for their own tort in failing to control others. In vicarious liability the
defendant is liable for a tort committed by someone else. In the Dorset Yacht case both
ideas are present. The Home Office were vicariously liable for the torts of the borstal
officers. But the borstal officers were not vicariously liable for the torts of the boys:
they were primarily liable for their own torts in allowing the boys to escape and cause
page 20
harm. In the Hartwell case both vicarious liability and primary liability were considered
as alternative causes of action.
A very similar problem arises where in effect C and X are the same person. In the
examples given above would the school, host or car owner owe a duty of care to the
child, guest or thief? How far should defendants have to protect claimants against
their own folly? Of course there are many cases where the defendant has specifically
accepted responsibility for the safety of others, but the principle may extend further
than that. See: Jebson v Ministry of Defence [2000] 1 WLR 2055.
Duties of lawyers
Lawyers of course owe a duty of care to their clients, but until recently it was thought
that no duty was owed by barristers (and later solicitors also) in respect of work
closely connected with the presentation of their case in court. Putting it in terms of
the Caparo test, it would be said that, while there was foresight and proximity, it was
not fair, just and reasonable to impose liability.
The House of Lords has now decided that in contemporary conditions there are no
policy reasons sufficient to justify this immunity and it should be abolished: Arthur JS
Hall v Simons [2002] 1 AC 615.
The circumstances in which a duty is owed and the scope of the duty are considered
by the House of Lords in Moy v Pettman Smith (a firm) [2005] UKHL 7, [2005] 1 WLR 581.
Activity 3.1
Examine the reasoning of the House of Lords in Hall v Simons. What policy reasons
previously were thought to justify the immunity? Why are those policy reasons no
longer thought enough to justify it?
where the child is healthy and is being raised in a loving family (McFarlane)
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where the child is healthy but the mother did not want children because of her
own disability (Rees).
See McFarlane v Tayside Health Board [2000] 2 AC 59; Parkinson v St James and Seacroft
University Hospital NHS Trust [2001] EWCA Civ 530, [2002] QB 266; Rees v Darlington
Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309.
Activity 3.2
a. How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton London
Borough Council and Capro Industries v Dickman differ? In what respects are they
similar?
b. D is gardening at the front of her house. She goes into the house to pour herself
a drink and leaves a spade lying in the garden. X, a passer-by, picks it up and
attacks C, Ds neighbour. Is D liable to C? (In answering this question, think about
various possibilities as to who X is, which might affect your answer.)
c. To what extent is there (and should there be) liability:
i. if a person negligently injures a pregnant woman and the child is born dead
ii. a doctor negligently fails to identify a risk that a foetus has been damaged
and does not suggest an abortion: the child is born disabled
iii. a mother takes drugs throughout pregnancy: the child is born with a severe
problem of drug dependency.
d. Clarissa thinks that she may be pregnant and consults a pregnancy advisory
service. They confuse her records with those of another client and inform her
that she is not pregnant. By the time she discovers that she is pregnant, it is too
late for an abortion. Advise her.
Summary
There is no liability in negligence unless there is a duty to take care. This establishes
the necessary link between the claimant and the defendant. Such duties are widely
recognised. In cases of doubt the modern test is whether there was foreseeability and
proximity and it was fair, just and reasonable to impose the duty.
page 21
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page 23
compared to a reasonable person with the relevant skill or qualification. This is not
always as easy as it might be.
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For one thing, there is sometimes doubt as to exactly what skill or qualifications
the defendant professes to have.
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For another, there may be doubt as to whether a large group (say car drivers
or doctors) should be sub-divided into smaller categories for the purpose of
comparison with reasonable members of the group.
In the examples that follow it is more important to understand the reasoning and how
it might be applied in other contexts than to know whether a particular defendant was
or was not held to be negligent on a particular set of facts.
Defining the group
In these cases the problem was one of defining the group to which the defendant
belonged: Phillips v Whiteley [1938] 1 All ER 566. Did the defendant, who had pierced
the claimants ears, have to show the care of a reasonable surgeon or of a reasonable
jeweller?
In Shakoor v Situ [2000] 4 All ER 181 there is an interesting analysis of how to treat
a practitioner of traditional Chinese medicine working in England. Was he to be
compared to a reasonable orthodox doctor, a reasonable traditional doctor practising
in China or a reasonable traditional doctor practising in England?
Many cases involve car drivers. The only standard of care is that of a reasonable driver,
whether the actual driver is highly experienced, newly qualified or even just a learner.
It is irrelevant that the learner driver defendant was doing as well as she could, given
her lack of experience, if a reasonable driver would have done better: Nettleship v
Weston [1971] 2 QB 691.
Medical negligence
A large number of the cases involving special skills concern medical negligence. The
defendant is to be compared with a reasonable person of the same specialism and
status: a general practitioner is not judged by the same standards as a consultant
cardiologist and so on.
There is a special problem with medical defendants (and to some extent with
members of other professions). There is often no single right way of proceeding.
Faced with a particular patient, one doctor might recommend surgery, but another
might recommend treatment with drugs. The courts do not insist that one of these
approaches must be right and the other wrong: they require that the defendant has
acted in a way that would be supported by a body of respectable medical opinion.
This is sometimes called the Bolam test as set out in that case. This test allows the
medical profession to some extent to determine appropriate standards for itself, but
the courts reserve the right to strike down a medical practice as unreasonable (as
explained in Bolitho).
Other examples of the application of this principle are: Whitehouse v Jordan [1981]
1 WLR 246; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; and
Wilsher v Essex Area Health Authority [1987] QB 730. (This is the decision of the Court of
Appeal. The case went to the House of Lords, but only on the issue of causation and not
on the issue of breach of duty (see Chapter 4).)
The most controversial application of the Bolam test occurs where it is alleged that
the doctor failed to give the patient sufficient warning of the risks of the proposed
treatment (or possibly of the risks of not having the treatment). English law in principle
applies the Bolam test and asks whether the information given was in accordance with
what a respectable body of medical opinion would have done, but Australian courts
have taken a view more generous to the patient and ask what a reasonable patient
would expect to be told. See Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871
and Rogers v Whitaker (1992) 175 CLR 479.
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The English approach is sometimes criticised as showing a doctor knows best attitude
and ignoring the autonomy of the patient. The professional bodies now encourage
greater openness and encourage doctors to explain the advantages and disadvantages
of particular treatment unless there is a good reason for not doing so. It will now be
more difficult for a doctor to argue that a reluctance to be open about the advantages
and risks of treatment is in accordance with medical opinion. For a more recent
example, although it is principally concerned with causation issues (see 4.1.1), see
Chester v Afshar [2005] 1 AC 134.
If you are considering a claim for the consequences of medical treatment, you should
think of different ways of presenting the argument. Most cases are based on the idea
that the individual doctor (or nurse, etc.) is negligent and that the health authority or
private hospital is vicariously liable. For the details of vicarious liability, see Chapter 13.
In some cases it may be appropriate to consider arguing whether the health authority
or hospital is itself negligent, e.g. by entrusting a procedure to an inappropriately
junior doctor, or by overworking its staff so that they are too tired and make mistakes.
The approach described in medical cases would certainly apply to professions similar
to medicine, such as dentistry or physiotherapy. The extent to which the courts will be
willing to defer to professional opinion in other professions is less certain, although
it is likely to apply in all cases where different members of the profession might
reasonably take different views. For the example of solicitors, see Edward Wong Finance
Co Ltd v Johnson, Stokes and Master [1984] AC 296, and of rugby referees, see Vowles v
Evans [2003] EWCA Civ 318, [2003] 1 WLR 1607.
Summary
The actual defendant is to be compared with how a reasonable person would have
acted in the same circumstances. Where a particular skill (driving for example) or
professional expertise (medical for example) is involved, the appropriate comparison
is with a person with the same skill or expertise.
Activity 3.3
a. What is the level of the duty of care to be shown by:
i. a newly qualified solicitor
ii. a learner driver
iii. a 12-year-old child?
b. What standard of care would have to be shown by Deirdre, an ambulance driver,
(i) when taking a seriously ill patient to hospital and (ii) when driving her family
to the seaside in the family car?
c. D is a general practitioner. He prescribes certain tablets for his patient C, who is
very fat. A recent article in a specialist journal of cardiology has suggested that
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d. D parks his car on a hill and walks away. Shortly afterwards, the car moves off
downhill and strikes C. It is not clear why this has happened. Advise C.
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Need to
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3.1
Duty of care
3.2
3.3
Breach of duty
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2
4.3
4.4
4.5
page 30
Introduction
Negligence is one of those torts in which damage must be proved (see Chapter 1).
Once a breach of duty has been established, the claimant must therefore also show
that the breach has resulted in injury or damage (the causation issue) and that the
injury or damage is sufficiently closely connected to the breach (the remoteness
issue). You will understand what is meant by sufficiently closely connected in the
particular context of negligence after studying this chapter.
Causation and remoteness are the essential links between the breach of the obligation
imposed by law and the damage. It is commonly said that causation is essentially a
factual and logical question, but that remoteness is a legal question, based on policy
considerations about the appropriate extent of a defendants liability. In broad terms
this is true, but Lord Hoffmann has recently stated that the rules laying down causal
requirements are creatures of the law and that it is possible to explain their content
on the grounds of fairness and justice in exactly the same way as the other conditions
of liability (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]).
You must therefore consider the policy reasons behind most of the decisions in this
chapter.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
uu
state and explain the basic rule defining the causal link between the breach of
duty and the damage
uu
uu
identify circumstances in which the basic rule produces unacceptable results and
may have to be modified
uu
uu
explain the concept of remoteness of damage in general and identify the basic
rules of remoteness in the tort of negligence
uu
uu
explain the concept of new and intervening cause and relate it (a) to the actions
of third parties and (b) to actions by the claimant subsequent to the negligence
of the defendant.
Essential reading
Markesinis and Deakin, Chapter 5: Liability for damage caused: causation and
remoteness.
4.1 Causation
Causation is relevant to all torts in which proof of damage is essential. The problem is
usually discussed in detail in the context of negligence, but the principles apply more
broadly, and some of the cases referred to in this section involve claims in other torts
as well as in negligence. You must always remember to link the tort (i.e. the breach
of duty in the case of negligence) and not merely the defendant to the damage. An
example will illustrate the importance of this.
A baby has brain damage: it has recently been vaccinated. If there is a claim for
compensation, it will always be necessary to establish (on scientific evidence) that the
vaccine caused the damage. If the claim can be brought within a tort of strict liability
(see Chapter 1 for definition), nothing more need be proved in terms of causation. This
is not so if the claim is in negligence, e.g. alleging that a doctor in breach of the duty
of care failed to carry out proper tests to discover whether the baby had an allergy to
the vaccine. It will then be necessary, in addition to showing that the vaccine caused
the damage, to show that the breach of duty caused the damage. If the proper tests
carefully administered would not have revealed the allergy, then the baby would still
have been damaged and the breach of duty would not be a cause of the brain damage.
You will find that the causation issue sometimes (though exceptionally) gives rise
to difficult questions, but the underlying idea is very simple. We use the language of
causation every day without much difficulty, and we understand that the language
of causation is used in different ways in different contexts. We may for instance say,
I was late for work to-day because the 7.30 train was cancelled. Here we know that
the cancellation made lateness inevitable. But we do not know for certain that we
would have been on time if the train had been running. Something else might have
happened to delay us. On the other hand we often hear about research into the causes
of disease. Advertisements for cigarettes may carry a warning that smoking causes
lung cancer, but we know that here there is no inevitability: many non-smokers
develop cancer and many smokers do not. We need more information before we can
talk of the cause of the disease in any particular sufferer. You should make use of your
knowledge of the ordinary usage of the language of causation in analysing problems.
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i. There may be doubt about what the natural course of events would have been if
the defendant had behaved properly.
uu
For example, the defendant doctor failed to diagnose the claimant as having an
illness in need of treatment. Was it so serious that the defendant would have
died even if the proper diagnosis or treatment had been given? See: Barnett v
Kensington and Chelsea Hospital [1969] 1 QB 428.
uu
The claimant fell overboard into icy water. The defendants rescue effort was
inadequate. Would the claimant have perished in the cold water before even a
competent rescuer could have saved her? See: The Ogopogo [1971] 2 Lloyds 410.
ii. There may be doubt about how the defendant would subsequently have behaved if
he had done what he should have done in performance of the duty.
uu
Look again at Bolitho v City and Hackney Heath Authority [1998] AC 232 (see
Chapter 3). You will see that the doctor in breach of her duty failed to attend
a patient, but she successfully argued that the action she would in fact have
taken if she had attended would not have been negligent (because it was in
accordance with a respectable body of professional opinion) and would not
have saved the patient. The child would therefore still have been dead even
if she had performed her duty by attending. Therefore her culpable failure to
attend was not a cause of the death.
iii. There may be doubt about how the claimant would subsequently have behaved if
the defendant had done what should have been done.
uu
The defendant doctor may have failed to warn the patient about the risks of
treatment: would the patient have decided to have the treatment anyway?
If so, the failure to warn cannot be a cause of the damage if one of the risks
occurs. The defendant employers may have failed to provide safety equipment
for their employees: would the deceased employee have used it if it had been
provided? If not, then the failure to provide it was not the cause of the injuries.
See: McWilliams v Sir William Arrol [1962] 1 All ER 623.
uu
This issue has recently been considered by the House of Lords in Chester v
Afshar [2004] UKHL 41 [2005] 1 AC 134 where a majority of the House of Lords
took a view very favourable to the claimant. You must address the policy
reasons for this view. The surgeon had advised the claimant to undergo surgery
but in breach of duty had failed to advise her of the risk. The claimant did not
show that she would probably never have had the operation, but she did show
that she would have taken her time and consulted friends and therefore would
not have had the actual operation on the particular day that she did have it.
The House of Lords held that she had therefore established that the breach
of duty was a cause of her injury. Notice however that the sort of injury was
something that happened on very rare occasions for no very obvious reason.
The result would surely have been different if the injury had been due to some
previously unknown peculiarity of the claimant, so that it might well have
happened to her even if the operation had been postponed and performed on
a different day.
Note that in cases (ii) and (iii) it is particularly important to scrutinise the evidence
given by the defendant and (if living) the claimant because their view of how they
would have behaved may be coloured by what has now happened. It may seem harsh
that the claimant in McWilliams had to prove that the deceased would have worn the
safety harness if it had been provided, but it should be noted that the evidence was in
fact very strongly to the effect that it was highly unlikely that he would have done so.
iv. There may be doubt about how other people would have behaved if the defendant
had done what should have been done. Here the test may be different, and this will
be considered shortly.
Activity 4.1
a. C steps into the road immediately in front of a car: the driver is exceeding the
speed limit and talking on her mobile phone. C is struck and injured. Is D liable
for the injuries?
b. C collapsed with chest pains. D did not call an ambulance, but gave C a large
glass of brandy. C dies. What more do we need to know in order to establish the
cause of Cs death?
c. C is employed by D. D in breach of duty has stopped providing safety helmets
because they were rarely worn. C falls to the ground and suffers serious head
injuries. Advise C.
In all of the cases in (i) to (iii) the normal but for test seems to be applied, but
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economic rather than physical damage. That may explain the difference. Another
explanation may be that what was in question was how other people (e.g. the
prospective employer in Spring) would have behaved, and there would be no evidence
on this point.
It may be therefore that in cases under (iv) above the damage is properly to be regarded
as the loss of a chance, and that it is not necessary to prove on a balance of probabilities
that the other people would have behaved in a particular way.
The decision in Hotson is consistent with an earlier decision of the Court of Appeal in
Cutler v Vauxhall Motors [1970] 2 All ER 56. The defendants injured the claimant who as a
result had an operation for varicose veins. He would, more likely than not, have required
such an operation in a few years time even if the injury had not occurred. Therefore the
majority of the court held that the operation was not caused by the defendants breach
of duty. Students often unthinkingly misapply this case. It can be relevant only where the
damage is a one-off event such as an operation from which the claimant fully recovers. If
the breach of duty causes the claimant, for example, to lose a leg which would probably
have had to be amputated in a few years anyway, the claimant is certainly entitled to
damages at least for the additional years without a leg.
Activity 4.2
C, aged 21 and in her final year at university, is swimming in a council swimming
pool. She suffers cramp and starts to drown. The lifeguard employed by the council
is not at his post. C is eventually rescued but has suffered brain damage and will
need constant care. It is possible that, if the lifeguard had been there, she would
have been rescued in time to prevent the brain damage. It is possible that she
would have had an excellent degree and realised her ambition of working as a
solicitor in a large City firm. Advise C.
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On those facts both events were torts. Would it make a difference to the way in which
you think you would finish the sentence if either Edwardss blindness or the loss of his
legs was the result of a natural disease?
The problem can also be presented in this way.
In the following diagram the claimant was originally earning 40,000 per year. As a
result of an accident he has to take a lighter job earning 15,000 per year. Six months
later he suffers a further (unrelated) accident and is unable to work ever again.
1st event
2nd event
40,000
1
15,000
2
The damages in the box marked 1 are attributable only to the first event, those in the
box marked 2 only to the second event. The problem lies with the damages in the
shaded area, since either the first or the second event would, in the absence of the
other, have brought about that damage. One thing is clear. If the first event is a natural
occurrence such as a disease, then the tortfeasor responsible for the second event
takes the victim as he finds him (i.e. as a person earning 15,000 per year) and cannot
be liable for the damages in the shaded area. But what if the first event was a tort and
the claim is against that tortfeasor? Does the tortfeasor continue to be liable for the
loss in the shaded area even after the occurrence of the second event, which would
independently cause the same loss?
The House of Lords has considered this problem in Baker v Willoughby [1970] AC 467 and
Jobling v Associated Diaries Ltd [1982] AC 794.
It is best to start with Jobling. He had been injured in an industrial accident and
permanently disabled. Some years later, before damages had been assessed, he was
found to be suffering from a disabling disease that rendered him unfit for work. The
House decided that the defendant was not required to compensate for the losses after
the onset of this disease. The House was critical of (but did not overrule) the earlier
decision in Baker. Bakers leg had been permanently damaged in a road accident. He
had to change his job and was shot by robbers (who were of course tortfeasors but
were never found) and as a result his leg was amputated. The House had held that
the damage was not subsumed in the new tort, but the negligent motorist continued
to be answerable for the damage to the leg (and its continuing economic and other
consequences). There would be an obvious harshness if Baker were to lose his damages
because he was the victim of two torts and not just one, but it is not easy to formulate a
principle explaining why Bakers claim was not extinguished, but Joblings was.
It is necessary to stress again that both cases were concerned with continuing liability
for the consequences of the original injury and not with liability for the additional
consequences of the second injury. It was not for instance argued that the defendant
in Baker was liable for the amputation. We will consider that kind of situation later.
Activity 4.3
C is knocked down by D, a careless motorist. Because of his injuries he has to give up
his job as a financial analyst and is unemployed. He is walking on the beach when
he is struck by a freak wave. He suffers severe head injuries that would make him
unemployable. Advise C.
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Activity 4.4
a. Did the claimant win or lose on the causation issue in each of the following
cases: McGhee, Wilsher and Fairchild?
b. Consider the following statements:
i. The claimants injuries were certainly caused by a tortious breach of duty.
ii. The claimants injuries were certainly caused by the defendant.
Which of these statements are true of the facts in the three cases mentioned in
question (a)?
Feedback: You will find a helpful list of factors near the beginning of Lord Binghams
speech in Fairchild. You should then match this list against the facts of the other cases.
state and explain the basic rule defining the causal link between the breach of
duty and the damage
uu
uu
identify circumstances in which the basic rule produces unacceptable results and
may have to be modified
uu
Summary
The fundamental rule is that the tort must cause the damage (i.e. if the tort had not
occurred the claimant would not be in the same position). This must be shown on
a balance of probabilities. There are however difficult situations where there are
competing causes and the fundamental rule has to be abandoned or modified in order
to prevent injustice.
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Activity 4.5
Why did Viscount Simonds say that the test of remoteness should be foresight and
not directness? Are his reasons justified?
No feedback required.
uu
and (ii) it was foreseeable that the claimant would suffer some physical injury
uu
and (iii) the particular claimant has a particular susceptibility or abnormality and as
a result suffers more serious injury or injury of a different type from that which was
foreseen, then the defendant is liable for that further injury.
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The obvious situation is this: the defendant has carelessly struck the claimant on the
head. It is foreseeable that the claimant will suffer cuts and/or bruises. The particular
claimant however has an exceptionally thin skull (an egg-shell skull) and sustains a
fractured skill and serious brain damage. That was not foreseeable, but the defendant
is still liable for it.
There is a good example in Robinson v Post Office [1974] 2 All ER 737.
Notice that this case involves both a true causation point and an egg-shell skull point.
The defendant was liable for the negligent grazing of the claimants shin. The claimant
had an unforeseeable allergy. The hospital administered an antitetanus injection
without carrying out the appropriate tests. Robinson had an allergy to the injection
and the reaction caused brain damage. There were two elements to the decision:
uu
The evidence was that, even if the proper tests had been carried out, the allergy
would not have been detected. Therefore the hospitals negligence was not a cause
of the brain damage (i.e. the but for test (see 4.1.1) was not satisfied).
uu
Once the hospitals negligence was out of the way, the allergy was the equivalent
of an egg-shell skull and, though it was unforeseeable, the defendant was
nevertheless liable for it.
c. Financial weaknesses
What happens if the claimant has a financial rather than a physical weakness?
If the defendant injures a claimant who happens, however unforeseeably, to be a
leading soccer star whose career is ruined, then the defendant has, as with the eggshell skull cases, to take the victim as he finds him, i.e. to compensate the claimant
for his actual loss. What has to be foreseen is physical injuries that were result in loss
of employment. Once that has happened, the defendant has to compensate for the
actual loss suffered.
The position used to be less clear where the claimant suffers additional damage
because of poverty. The leading case was Liesbosch Dredger v SS Edison [1933] AC 448 and
many attempts have been made to explain and distinguish it. The House of Lords has
however now decided that dicta in the Liesbosch case should not be followed.
See also Lagden v OConnor [2003] UKHL 64 [2004] 1 All ER 277 [see from [45][62]).
C (injured)
X (intervening
conduct)
D (negligent)
D negligently collides with Cs car and injures him. On the way to the hospital the
ambulance driver X crashes into a tree and causes C severe injuries. Or at the hospital
a nurse Y administers to C the wrong dose of the drug and causes brain damage. Or
a patient Z goes berserk and stabs C repeatedly. Is D liable not only for the original
injuries but also for the more serious later injuries caused by X, Y or Z? This is the
problem of the new and intervening cause (in the cases this is often expressed in Latin
page 41
as nova causa interveniens or as novus actus interveniens). Clearly if it had not been for
Ds negligence C would not have been in the ambulance or in the hospital and would
not have suffered further injuries. Therefore they were in a factual sense caused by the
original negligence: but were they too remote?
A word of warning: students often find it difficult to distinguish between this problem
and that described in 4.2.1. It is now possible to make the distinction more fully. Think
of the facts in the last paragraph. C may have been a professional footballer. The
injuries sustained in the original car accident may have ended his career. We may be
interested in knowing whether D continues to be liable for those consequences even
after the stabbing which would independently have destroyed his career. That is the
problem dealt with in 4.2.1 and associated with cases such as Baker v Willoughby. The
problem now being considered arises if it argued that D is also liable for the additional
consequences resulting from the stabbing.
The triangular situation just described should remind you of the case of Dorset Yacht Co
v Home Office [1970] (see Chapter 3). That case is usually analysed in terms of whether
the borstal officers owed a duty of care to the owners of the yacht. Lord Reid reached
the same conclusion by considering whether the acts of the boys were a new and
intervening cause and deciding that they were not. He held that the original tortfeasor
could be liable for intervening human conduct, whether that was criminal, negligent
or innocent, but only if it was something very likely to happen: a mere foreseeable
possibility was not enough. That phrase has been considered in a number of later
cases.
Activity 4.6
Look at the Dorset Yacht, Lamb, Smith and Al-Kandari cases. In which of these cases
was the defendant liable for the consequences of the criminal behaviour of others?
Identify the differences in facts that led to liability in these cases and not in the others.
page 42
b. Gross negligence by the hospital unconnected with the initial injury (e.g.
amputating the wrong leg). The implication of Robinson v Post Office is that in such
cases the defendant would not be liable for the aggravation of the injuries.
c. Where the hospitals negligence falls between those two, it is likely that it would
not break the chain of causation, but that both the original defendant and the
hospital would be jointly liable for the consequences. There is not conclusive
authority on that point.
Activity 4.7
Cecil is injured in a road accident caused by the negligence of Delia. He is advised by
the doctors not to return to work for three months. He is very conscientious and is
bored at home, and his employer has a backlog of work. Cecil returns to work after
a month, but two days later while working on a stepladder he turns dizzy and falls
to the ground, breaking his arm. Is Delia liable for the broken arm?
explain the concept of remoteness of damage in general and identify the basic
rules of remoteness in the tort of negligence
uu
uu
explain the concept of new and intervening cause and relate it (a) to the actions
of third parties and (b) to actions by the claimant subsequent to the negligence
of the defendant.
both scenarios: was Ursulas negligence the cause of the original injuries?
(Chester v Afshar again).
ii. On the first scenario, was Ursula also liable for the additional consequences of
lifting mother (McKew, etc.)?
iii. On the second scenario, did Ursula continue to be liable for the original
consequences (loss of job as plumber) even after lifting mother (Baker v
Willoughby and Jobling)?
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Need to
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revise?
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Revision
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4.1 Causation
4.2
4.3
4.4
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.1
5.2
5.3
5.4
5.5 Rescuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
page 46
Introduction
Until the middle of the 20th century the tort of negligence was very largely concerned
with careless conduct resulting in personal injuries or damage to property. Most of
the illustrative cases in Chapters 3 and 4 were of that kind. In this chapter you have
to study the major growth areas of the last 50 years. The material in this chapter is
substantial and often quite difficult, for the following reasons:
1. There is a large volume of new case law.
2. Many of the cases involve two or even three of the topics listed below.
3. There are conflicting policy aims and objectives.
4. There has not been a steady pattern of development. In some areas (see
particularly liability for economic loss and psychiatric injury) the law may at first
have expanded too rapidly and the courts began to retreat from some of the
early advances. More recently there have been signs of further expansion. It is
particularly important that you should be sensitive to the historical development
and to the current outlook of the courts.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
uu
uu
explain the reasons why the courts have been hesitant about allowing recovery
of compensation for such loss
uu
uu
identify the circumstances in which claims for economic loss may or may not
succeed
uu
explain and discuss the uncertainties that exist in this area of law and the scope
for reform
uu
explain why there are problems with allowing recovery for psychiatric damage
uu
uu
uu
uu
uu
explain the circumstances in which people may have positive duties to take
action to protect others or to prevent injuries to others
uu
explain the extent of liability if a person does take action to protect others or to
prevent injury to others when not under a duty to do so
uu
explain the circumstances in which a body with statutory powers may be under a
common law duty of care in exercising or deciding not to exercise them
uu
describe the reasons for doubt about the appropriate scope of liability of bodies
exercising regulatory, supervisory and similar powers
uu
explain the impact of the European Convention on Human Rights (ECHR) on the
liability of such bodies
uu
Essential reading
Murphy, Chapter 3: Duty of care II: recognised harm, Section 5 Pure economic
loss.
Winfield and Jolowicz, Chapter 5: Negligence: Duty and Breach, Section 2 Duty
of care: specific problems.
5.1 Liability for pure economic loss and for negligent misstatements
There is a very close relationship between these topics: a number of leading cases
involve mis-statements that caused financial or economic loss to the claimant. It is
therefore convenient to discuss them together although you will discover that there
are cases about economic loss that do not involve careless advice or information. It is
also necessary to examine some of the history of these topics in order to understand
the present position.
A claimant suffers personal injuries: damages are recoverable for the economic
consequences of the personal injuries, such as lost wages or salary if the claimant is
unable to work because of the injuries.
uu
The claimants property is damaged. The claimant can recover for the economic
consequences, which might be: the reduction in the value of the property or the
cost of repairing it and might include the loss of profit from the use of the property.
uu
where there is physical injury to a person other than the claimant or to the
property of some person other than the claimant.
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uu
uu
A general rule against recovery of economic loss is clear and easy to apply.
uu
Claimants can often make good their economic loss in other ways than by claiming
compensation: for example, if a factory has to shut down because of loss of power,
it may be possible to make up for lost production by having extra shifts later.
uu
It may make more economic sense for potential claimants to insure against
possible economic losses that they may suffer rather than for potential defendants
to insure against economic losses that they may cause.
uu
For a time after the decision in the Hedley Byrne case it was thought that damages for
economic loss might be recoverable as readily as for physical damage, but this did not
happen. The pattern of cases is described below.
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Summary
The present state of the law is not entirely settled. For a period after 1964 there was
an expansion of liability for economic loss followed after about 1980 by a period of
restriction. Since the 1990s there has been a greater willingness to entertain claims.
You will have to think carefully in the light of these cases and policy concerns when
liability will arise: this is likely to occur where the defendant can be said to have acted
for the benefit of an individual or a class of individuals, specifically to protect them
from a particular kind of economic loss or to confer on them a particular kind of
economic benefit.
Activity 5.1
a. List the factors which might have led the House of Lords to come to different
decisions in Caparo v Dickman and Smith v Eric S Bush.
b. D, a university lecturer, is asked to write references in support of job
applications by two students, Andrew and Betty. She confuses Andrew (who
had been expelled for cheating) and Anthony and writes that Andrew was an
excellent student. Andrew is appointed to the job and steals money from his
employer. She says that Betty is expected to get a lower second class degree.
Betty is not appointed. In the end she is awarded an upper second class degree.
Is D liable?
c. D writes a reference for C, an applicant for a postgraduate degree. Is he able to
exclude his liability?
Activity 5.2
Are Cs economic losses recoverable from D in the following cases?
a. D advises C to invest his money in Slushfund plc. The company collapses and
C loses his money. In order to meet his immediate financial needs, he has to
borrow at a high rate of interest.
b. Ds employee, digging a hole in the road, damages a water main. The water
supply has to be cut off for two days and Cs factory has to close for that period.
There is no production and C is late in meeting an urgent order.
c. C is given as a present a computer manufactured by D. There is a fault in the hard
disk and C has to spend 500 putting it right.
d. C is given as a present a computer manufactured by D. There is a fault in the hard
disk. As a result files containing the draft of his doctoral thesis are corrupted and
C loses six months of his research work.
e. C has made a contract with X to maintain Xs central heating system for a fixed
sum for a year: D negligently causes extensive damage to the system.
uu
explain the reasons why the courts have been hesitant about allowing recovery
of compensation for such loss
uu
uu
identify the circumstances in which claims for economic loss may or may not
succeed
uu
explain and discuss the uncertainties that exist in this area of law and the scope
for reform.
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ii. The claimant must have perceived the events or their aftermath (how soon is an
aftermath?) with his own unaided senses: it is not enough to be told about it later.
The notion of the aftermath derives from McLoughlin where Mrs M saw her relatives
in the same state as they had been in after the accident. Should that be essential?
iii. The claimant must have suffered through an immediate sudden impact on his or
her senses.
iv. The claimant must not have a special sensitivity to shock: the shock must be
foreseeable in a person of reasonable fortitude (but, so long as some psychiatric
injury is foreseeable, its precise form or severity does not have to be foreseen).
Where the defendant caused himself serious injuries by negligent driving (i.e. the
defendant and the primary victim were in a sense the same person), he was not liable
to his father who went to the scene as a member of the rescue services. For the policy
reasons behind the decision, see Greatorex v Greatorex [2000] 1 WLR 1976.
Activity 5.3
Can C recover for psychiatric injury if:
a. she hears on the radio that there has been a mining disaster at the nearby pit
where her son works?
b. she is wrongly told by D that her son has been killed in Australia (D had confused
C with the mother of the deceased)?
c. she sees her pet dog run over by a careless motorist?
explain why there are problems with allowing recovery for psychiatric damage
uu
uu
uu
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5.3.4 Defendant who was not under a duty to act but voluntarily did so
What should be the scope of the duty of a defendant who was not under a duty to act
but voluntarily did so?
Suppose that in The Ogopogo the owner of another yacht in the vicinity tried to rescue
the passenger but did so incompetently. Should there be liability? One view is that
the other owner would be under no obligation to act, but by acting had assumed
responsibility for the passenger and therefore had to show reasonable care. The snag
with that view is that it would be a disincentive to go to peoples help.
So the better view appears to be that the volunteer rescuer is liable only if the rescue
makes matters worse than if nothing had been done. This is supported by East Suffolk
River Catchment Board v Kent [1941] AC 74 and Stovin v Wise [1996] AC 923.
If this is right, then it is important to note the difference from the position on causation
in 5.3.3. Where the rescuer is a volunteer not under a duty to act, then it is necessary to
compare what the position of the claimant is now with what it would have been if no
rescue at all had been carried out. If the victim would probably have died if there had
been no rescue at all, then the defendants incompetent efforts are not a cause of death.
Much depends on what is meant by making matters worse. If other people are deterred
from trying to rescue because of the defendants attempts, then he may have made
matters worse (see e.g. Kent v Griffiths in 5.4).
Activity 5.4
a. Why does English law recognise only a moral and not a legal duty to take
positive action to assist others?
b. C is visiting D at Ds country house. C falls ill and asks D to send for a doctor. D
tells C not to make a fuss and does not do so. In what circumstances, if any, is D
liable?
c. C is swimming offshore and gets into difficulties and calls for help. D, a strong
swimmer, sets off to rescue him. When he sees who C is, D changes his mind and
swims back to the shore. C drowns. Is D liable?
explain the circumstances in which people may have positive duties to take
action to protect others or to prevent injuries to others
uu
explain the extent of liability if a person does take action to protect others or to
prevent injury to others when not under a duty to do so.
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uu
uu
The protection of the public against harm (e.g. the functions of the police and fire
service).
The question that has concerned the courts is whether the concept of duty of care
(Caparo style or assumption of responsibility) could be utilised so that the functions
of the state are to be regarded as carried out not just for the public as a whole, but as
entailing a duty of care to individual citizens. Could victims of crime sue the police for
failing to protect them, or could an abused child sue the local council whose social
services department failed to provide appropriate care?
This is still a developing topic and there is not yet agreement on the scope of liability.
However the law is simpler than it was 10 years ago. This is partly for the following
reason. The way that public authorities function is also a matter of public (particularly
administrative) law. The relationship between possible public law illegality and
possible tort liability has been a cause of great difficulty. Recently the courts have
tended to consider first whether the relationship between the parties ought to
give rise to a duty of care and then consider whether the application of public law
principles would make this inappropriate. The law has thereby become simpler.
Will any damages payable come out of public funds? Is this the best use of public
funds?
uu
Many cases raise issues that are problematic even when only private parties are
involved: omissions, liability for acts of third parties, economic loss.
uu
The public authority often has a difficult job in balancing conflicting interests.
For example, a body has the job of licensing drugs. It has some indication that a
drug may have harmful side effects. If it acts too slowly in banning it, new patients
may have it prescribed and suffer ill effects. If it acts too slowly on what turn
out to be inaccurate indications, it will harm the profits of the drug company
and disadvantage patients who would benefit from receiving the drug. Similar
arguments apply to social workers who have to decide whether a child is suffering
abuse and should be taken into care: the interests of the child and those of the
parents have to be reconciled.
uu
Imposing a duty of care may lead to an over-defensive attitude on the part of the
public body.
uu
There may be other remedies available: an action for judicial review, a claim under
the Human Rights Act 1998, a complaint to an ombudsman, and these may provide
justice without recourse to a tort claim.
There may be, between the public authority and the claimant, a pre-existing duty
of care so that either the improper exercise of a power or a failure to properly
exercise a power may be a breach of that duty (e.g. the duty of an employer to
protect an employee from stress): Connor v Surrey County Council [2010] EWCA
Civ 286; [2010] 3 WLR 1302. The common law duty and the statutory power were
consistent with each other.
uu
The public authority may carry out its duty or exercise its powers to set up some
permanent organisation which then owes a duty of care to those who use it. See
the examples of the ambulance service and the educational psychologists below.
uu
uu
In carrying out its functions, the authority may be liable for a breach of an
incidental duty of care (see fictitious example of the environmental health officer
in Home Office v Mohammed).
Where the statutory function is intended to benefit one group of people, there is
great reluctance to accept a duty of care to other groups who may be affected by an
erroneous decision: e.g. the parents wrongly suspected of abuse (D v East Berkshire
Community NHS Trust [2005] UKHL 23, [2005] 2 AC 373) or the owners of a residential
home wrongly suspected of mistreating residents (Jain v Trent Strategic Health
Authority [2009] UKHL 4, [2009] 1 AC 853).
There are particular problems in imposing liability where the authority is alleged to
have caused damage by failing to use its powers (as opposed to misusing them). See
below.
There is uncertainty as to whether there can be liability in tort where the allegedly
careless action was clearly the lawful exercise of discretion from the public law point of
view (see the concluding comments of Sedley LJ in Connors case).
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They can develop or expand the common law of tort to provide a remedy for the
violation of the Convention right.
uu
They can leave the common law unchanged and let the victim seek a direct action
for breach of the Convention right under ss.7 and 8 of the Human Rights Act 1998.
Such an action differs from the common law action in three ways: (a) they must be
brought within one year (although this may be extended (s.7(5)); (b) damages are
discretionary (s.8(3)); (c) the measure of damages is likely to be lower than under
the common law rules.
At first the court was willing to create a duty of care to avoid a conflict with the
requirements of the ECHR (see the early social work cases below). More recently they
have refused to do so and left the claimant to pursue a remedy under the 1998 Act. For
instance see Jain v Trent Strategic Health Authority (above) where the House of Lords
declined to recognise as common law duty on the part of the health authority because
it might have a distorting effect on the nature of the duty of care even where public
authorities were not involved, and in Home Office v Mohammed (above), although the
common law claim was struck out, a claim for violation of ECHR rights was left to go to
trial.
The court also held, relying on the reference to police immunity, that there was
a violation of Article 6 (right to a fair trial). This had for a time some influence on
subsequent domestic cases, but it is now accepted that this was a misunderstanding
and need not be further considered.
Brooks v Commissioner of Police of the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495
uu
Van Colle v Chief Constable of Hertfordshire Police and Smith v Chief Constable of the
Sussex Police [2008] UKHL 50, [2009] 1 AC 874
uu
However, such claims may potentially succeed if there is a particularly close connection
between the claimant and defendant or between the third party and the defendant (see
Home Office v Dorset Yacht Co (3.2.1)).
(ii) Education and social work
The House of Lords decided a large number of cases involving social workers and the
education services. They are all reported together as X v Bedfordshire County Council
[1995] 2 AC 633.
Some of the cases involved failures by educational psychologists employed by the
council to correctly diagnose learning difficulties such as dyslexia. The House held that
these claims should not be struck out.
Two of the cases involved social services. In one (the Bedfordshire case) social workers
failed to take children into care although they had many reports from teachers,
neighbours and so forth that they were being abused. In the other (the Newham
case) social workers took a child away from her mother into care because, through
confusion about two men with the same name, they thought she was being abused by
her mothers boyfriend. The House held that there could be no duty of care in either
case. Both cases were then taken to the European Court of Human Rights.
In the Bedfordshire case that court ruled that there was a breach by the United Kingdom
of Article 3 ECHR in that the authorities had failed to save the children from inhuman
treatment: Z v UK [2001] 2 FLR 612.
In the Newham case the European Court held that there was a breach of Article 8 in
that the mother had not had access to documents which would have revealed the
confusion: TP and KM v UK [2001] 2 FLR 549.
Subsequently the House of Lords has held that a council was vicariously liable for the
failure of its employed educational psychologist: Phelps v Hillingdon London Borough
Council [2001] 2 AC 619. The employee, though exercising a statutory function, was
providing a service like any other salaried professional.
There have been a number of other social work cases.
In one case the Court of Appeal held that, in order to comply with the rulings of the
European Court of Human Rights, it was necessary to follow Z v UK rather than X v
Bedfordshire and to hold that a duty was owed to the child but was not owed to the
parents suspected of abuse whose interests might conflict with those of their children.
There was an appeal to the House of Lords only by the parents: the House agreed that
there was no duty (D v East Berkshire Community Health NHS Trust [2005] UKHL 23, [2005]
2 AC 373).
The European Court of Human Rights has subsequently held that in some case there
were violations of the parents convention rights: MAK and RK v UK (2010) 51 EHRR 14; AD
and OD v UK (2010) 51 EHRR 8. The domestic courts could respond by further extending
the scope of the duty or by allowing a direct action for breach of a Convention right
under the Human Rights Act.
Another comparable case is Rowley v Secretary of State for Work and Pensions [2007]
EWCA Civ 598, [2007] 1 WLR 2861 where there is a discussion of the scope of the duty
of care and the conclusion that the Child Support Agency did not owe a duty of care
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to claimants in the assessment of support due from an absent father. Other remedies,
including appeals and the possibility of judicial review, were available and it would not
be compatible with the statutory scheme to permit a common law negligence action.
(iii) Failure to exercise a power
The general principle is that a mere failure to exercise a power at all is a simple
omission and does not give rise to liability. The problem was fully considered in Stovin
v Wise [1996] AC 923 where a majority held that a councils failure to exercise its powers
to remove an obstruction from private land which interfered with a motorists view at
a dangerous junction could not give rise to liability. This was further considered and
qualified in Gorringe v Calderdale MBC [2004] UKHL 15; [2004] 2 All ER 326.
There are however some qualifications to this.
uu
A council may bring itself under an obligation to use its powers to deal with a
danger on the highway where its own actions have brought about the danger: Kane
v New Forest District Council [2001] 3 All ER 914; Yetkin v Mahmood [2010] EWCA Civ;
[2011] 2 WLR 1073.
uu
There is a puzzle as to the extent of liability if the body does decide to exercise its
powers. The body could be treated as having assumed responsibility and therefore be
liable for a failure to take care to use its power properly, but there are also situations
where the duty has been held only not to make matters worse than they would have
been if they had done nothing (see 5.3.4)
Contrast Capital and Counties plc v Hampshire County Council [1997] QB 1004 (fire
service) and Kent v Griffiths [2000] 2 All ER 474 (ambulance service).
(iv) Compatibility with statutory law
A remaining problem is whether it is ever possible to recognise a duty of care that
would be inconsistent with the statutory system. In Connor (see 5.4.4) Sedley LJ said (at
[124]):
The need for the authority to act decisively much sooner than it did arose equally from its
public law and its private law duties. Although it is the latter that give rise to this claim, it
is because the former offered no obstacle that the deputy judge was entitled to find in the
claimants favour. What might have been the proper outcome had the two things pulled in
opposite directions is a question for another day and another claim.
5.4.8 Reform
The Law Commission Consultation Paper No 187 (2008) sought views on a proposal
for a comprehensive review of the liability of public authorities including a new
tort imposing liability where there was really serious fault. The Law Commission
abandoned its views after consultation Report 322 (May 2010). Sedley LJ had some
harsh things to say about this in Home Office v Mohammed [2011] EWCA Civ 351.
The council has not inspected Restaurant X for five years. A customer is poisoned
by contaminated soup.
uu
uu
uu
An inspector inspects a restaurant. He knocks over the soup tureen. The chef is
scalded and unable to work again.
Activity 5.5
a. The Food Standards Agency learns of research that suggests that very large
quantities of meat have been contaminated with a cancer-causing substance.
They order the destruction of all stocks of this meat in supermarkets and
butchers shops. It then turns out that only a small proportion of meat was
affected. Are they liable for the loss to shops?
b. The Royal Air Force mountain rescue team are alerted to the fact that a group
of climbers have gone missing in fog. The controller of the rescue service
misunderstood where the climbers were and they died before they were found.
Are the rescue service liable for the deaths?
describe the reasons for doubt about the appropriate scope of liability of bodies
exercising regulatory, supervisory and similar powers
uu
explain the impact of the European Convention on Human Rights (ECHR) on the
liability of such bodies.
5.5 Rescuers
Although there is no general duty to attempt a rescue, rescuers may have a claim for
damages if injured in the rescue attempt. The courts are very ready to assume that it
is foreseeable that, if someone is injured or endangered, others will go their rescue.
The principles are not difficult to understand: Haynes v Harwood [1935] 1 KB 146; Cutler
v United Dairies [1933] 3 KB 297; Baker v T. E. Hopkins [1959] 1 WLR 966 and Videan v B.T.C.
[1963] 2 QB 650.
There are special difficulties where the rescuer suffers psychiatric damage (see 5.2.4).
There may be a claim where the defendant invites rescue by putting himself (and not
other people) in danger: Harrison v British Railways Board [1981] 3 All ER 679.
The rescuer must be injured by the rescue attempt itself: Crossley v Rawlinson [1981] 3 All
ER 674.
Activity 5.6
The RAF mountain rescue service are called out to rescue climbers stranded on a
mountain in bad weather. The climbers had gone out with inadequate clothing and
climbing equipment. Callum, one of the rescuers, is seriously injured by a fall during
the rescue. Has he a claim against the mountaineers?
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Need to
Need to
revise first study again
page 67
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
5.1
5.2
5.3
5.4
5.5 Rescuers
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.1
Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
6.2
Liability of manufacturers . . . . . . . . . . . . . . . . . . . . . . . . 76
6.3
Liability of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
page 70
Introduction
This chapter deals with three relationships in which the common law has long
recognised a duty of care. The relationships are all of great practical importance, and
the common law duty has been affected in different ways by statutory intervention.
These relationships are:
i. the duty owed by occupiers of premises to persons in or on the premises: here the
common law duty has been replaced by negligence-type statutory duties in the
Occupiers Liability Acts 1957 and 1984
ii. the duty owed by manufacturers (and others involved in the production) of
products to the consumers of the products: here the common law duty has not
been replaced but has in practice been supplanted for most purposes by strict
liability imposed by statute in the Consumer Protection Act 1987 (see Chapter 8)
iii. the duty owed by employers to employees: here the common law duty of care
(which has a distinctive character) has not been replaced or supplanted but exists
alongside a range of statutory duties, both general and specific.
In all these cases the relevant principles, cases and statutes are fairly straightforward
and easy to understand.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
uu
explain which entrants into private premises are lawful visitors and which are
not
uu
uu
describe and explain the nature of the duty owed by an occupier to lawful
visitors
uu
uu
explain the circumstances in which and the extent to which an occupier can
exclude his liability to lawful visitors
uu
describe and explain the nature and extent of the occupiers duty to trespassers
uu
uu
describe and explain the extent of the employers liability for defective
equipment used in the course of employment.
Essential reading
Lunney and Oliphant, Chapter 11: Special liability regimes, Section I Employers
liability and Section II Occupiers liability.
Markesinis and Deakin, Chapter 6: Liability for occupiers and builders, Section 1
Introductory remarks and Section 2 The Occupiers Liability Acts 1957 and 1984
and Chapter 18: Employers liability.
Winfield and Jolowicz, Chapter 9: Liability for land and structures, Sections 13,
Chapter 10: Liability for defective products, Section 1 Liability at common law
and Chapter 8: Employers liability, Section 3 Common law.
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It follows that there can be more than occupier at the same time. For example, the
owner of premises and building contractors carrying out extensive works may both be
occupiers in respect of aspects of the safety of premises.
uu
A person may have an implied permission to be on the land. Normally people may
be entitled to walk up the front path to ring the door bell and make enquiries of
the occupier. However before 1984 the courts were very willing to use fictional
devices in order to treat claimants (especially children) as lawful visitors so that
they would have some statutory protection. Thus, if there were alluring things on
the land for children to play on, the courts might treat these as in a sense inviting
the children on to the land. Again, if an occupier knew that people were in the
habit of walking across his land, perhaps as a short cut, and did nothing effective
to deter them, he might be treated as having given them a licence to use the land.
Since 1984 trespassers have had enhanced rights under the Occupiers Liability Act
1984, and the courts may therefore be much less willing to use such fictions.
uu
An invitation to enter the premises may be issued by someone other than the
occupier, such as the son or daughter or an employee of the occupier. There is
no problem if they have the occupiers permission to issue the invitation, but
what if the occupier has forbidden them to do so? A sensible solution would
be to ask whether the visitor would expect the person issuing the invitation
normally to have authority to do so (see Ferguson v Welsh [1987] 1 WLR 1553).
See also Stone v Taffe [1974] 1 WLR 1575.
uu
A person who has a common law or statutory right of entry is a lawful visitor
(e.g. the police executing warrants of arrest or search). But a person who
is exercising a public or private right of way is not a visitor to the occupier
(McGeown v Northern Ireland Housing Executive [1995] 1 AC 233).
uu
A visitor may have permission to enter only until a certain time or only to enter certain
parts of the premises, but the occupier must make clear the limits of the permission.
Permission may normally be revoked (except in the third situation above), but the
visitor must be given a reasonable time to leave.
Activity 6.1
a. Martha has been invited to dinner by Lord Nasty. As she drives up the avenue to
his home, she is struck by an arrow carelessly fired by Lord Nasty, which misses
the target. Has she a claim under the 1957 Act?
b. Norma is visiting Lord Nastys stately home on a day it was open to the public.
Part of the floor of the library had been taken up so that Slapdash Builders could
carry out structural work. Norma did not notice and fell. Who was the occupier?
c. Olive calls uninvited on Lord Nasty seeking a donation for the local church
restoration fund. She is injured when part of the railing on the entrance stairway
gives way. Was she a lawful visitor at the time?
d. Helga is an au pair working for the Brown family. She is not allowed to have
visitors. One afternoon, when the Browns are out, she asks another au pair,
Luisa, to watch television in her bedroom. When Luisa is leaving, she is injured
when part of the stair gives way. Was she a lawful visitor at the time?
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6.1.4 Defences
i. Contributory negligence on the part of the visitor (see Chapter 13).
ii. Volenti non fit iniuria. This is expressly referred to in s.2(5): for general principles of
this defence, see Chapter 13.
iii. Exclusion of liability. At common law (Ashdown v Samuel Williams [1957] 1 QB 409)
and by s.2(1) of the 1957 Act the occupier was allowed to exclude his liability by
contract or by notice in so far as he is free to do so. The occupier may therefore
display a notice, saying Enter at your own risk. It is very important to distinguish
the intention of such a notice from a notice warning of a danger (s.2(4)(a))
discussed above, and it is a very common error to confuse the two. A warning
notice is an attempt to perform the duty: an exclusion clause is designed to protect
the occupier against claims for breach of the duty.
The occupier is however restricted in his ability to exclude his liability in a number of
ways:
uu
On ordinary principles the notice must be clear (both in the sense of legibility and
in the sense of its intended scope) and reasonably drawn to the visitors attention
before entry. See also White v Blackmore (1972) 2 QB 561.
uu
The notice cannot exclude liability to those required and permitted by law to
enter and who are therefore not free to stay off the occupiers land; they would be
obliged to run the risk of injury for which there will be no compensation.
uu
It has been suggested, though never decided, that the occupiers duty cannot be
reduced below the level of the duty owed to a trespasser. It would be surprising
if the occupier could owe a higher duty to a person who had been forbidden to
enter the property than to a person who had permission subject to an exclusion of
liability clause.
uu
The main limitation on the right to exclude liability is now the Unfair Contract
Terms Act 1977. This Act expressly applies to liability under the 1957 Act, but only
applies to business premises. (Notice that this means that the premises are
occupied for the purposes of a business rather than that a particular visitor is there
for business purposes.)
Activity 6.2
a. Joe sees an advertisement in his local paper, saying All electrical work
undertaken. Cheap rates. For details ring Kev on mobile no 097xxxxxx. Joe
engages Kev to rewire his flat. Six weeks later Leo, a visitor, is electrocuted.
Advise his widow.
b. Compare the effect of the following notices at the entrance to Marks land:
i. Persons entering these premises do so at their own risk
ii. Private: no admittance to unauthorised personnel
iii. Dangerous footbridge.
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uu
Donoghue v Folkestone Properties Ltd [2002] EWCA Civ 231; [2003] 2 WLR 1138
uu
The general principles are best examined through the last of these cases, which also
makes reference to its predecessors. Among the issues that should be considered in
studying that case are these:
uu
Tomlinson had originally entered the premises (a park) lawfully, but had then
thrown himself forward into a pool where swimming was forbidden. He was
treated as a trespasser, but some of the judges were uneasy about this. Why?
uu
There is an extensive analysis of the requirements in ss.1(1), 1(3) and 1(4) of the 1984
Act.
uu
There was an extensive discussion of the policy arguments that led the House
of Lords to reject Tomlinsons claim, including the likely social consequences of
imposing a duty on a local council. You should compare this case with others
that have also raised the question of how far the law should impose on others
(particularly public bodies) an obligation to protect people against their own folly.
Activity 6.3
a. What does a claimant have to prove in order to succeed in a claim under the
1984 Act? Which of these did Tomlinson not succeed in establishing?
b. Compare the cases of Jolley v Sutton London Borough Council and Tomlinson v
Congleton Borough Council. In both cases the claimants suffered similar injuries
doing something silly in a public park. How many differences between the two
cases can you identify that might have led to different results?
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explain which entrants into private premises are lawful visitors and which are
not
uu
uu
describe and explain the nature of the duty owed by an occupier to lawful
visitors
uu
uu
explain the circumstances in which and the extent to which an occupier can
exclude his liability to lawful visitors
uu
describe and explain the nature and extent of the occupiers duty to trespassers.
Summary
Those in control of premises (occupiers) owe a common duty of care under Occupiers
Liability Act 1957 to lawful visitors. This is a flexible duty varying according to the
circumstances, some of which are given in the statute as examples. Occupiers owe a
different and less stringent duty to non-lawful visitors under the Occupiers Liability
Act 1984.
page 77
this however the courts (a) modified the common law negligence action in a way that
favoured the employee and (b) permitted civil actions for damages to be brought for
breaches of safety regulations. The doctrine of common employment was abolished
by statute in 1948 (Law Reform (Personal Injuries) Act 1948 s.1). So employees now have
a vicarious liability claim and also the benefits of the modified common law action and
actions for breach of statutory duty.
This notion is well illustrated by the facts of the case. M was employed as a deckhand
by the defendants, but was sent by them to work on a ship operated by a different
company (in fact the parent company of the defendants). He was seriously injured
when the captain of the ship (not an employee of the defendants) carelessly operated
the safety systems. The defendants were liable because their duty had been delegated
to the employees of the parent company and not properly performed.
The employers duty to take reasonable care for the safety of the employees is
sometimes set out under separate headings. In Wilsons and Clyde Coal Co Ltd v English
(1938) AC 57, it was said to comprise the provision of a competent staff of men,
adequate material, and a proper system and effective supervision: the provision of a
safe place of work has sometimes been added to the list. These headings do not have
to be scrupulously distinguished and applied: they are convenient subdivisions of a
general principle of a non-delegable duty of care.
In Woodland v Essex CC [2014] AC 537 the Supreme Court reviewed the law on what
have been called non-delegable duties of care where a local authority was found to
owe a non-delegable duty of care towards a child who suffered serious injuries in a
swimming lesson, even though the swimming teacher and lifeguard were employed
by another party. Their Lordships noted that the boundaries of vicarious liability have
been expanded by recent decisions of the courts to embrace tortfeasors who are not
employees of the defendant, but stand in a relationship which is sufficiently analogous
to employment: Various Claimants v Catholic Child Welfare Society [2013] 2 AC 1. But it
has never extended to the negligence of those who are truly independent contractors.
Lord Sumption acknowledged an additional burden on providers of public services
who choose to outsource certain functions, but added that a non-delegable duty
would be imposed only where it is fair, just and reasonable to do so.
Work-related stress cases
Most cases of employers liability have involved physical injuries. Recently there has
been public concern about work-related stress and this has been reflected in litigation.
Think back to the discussion of psychiatric injury in Chapter 5: the House of Lords in
White v Chief Constable of South Yorkshire [1999] 2 AC 455 suggested that employees
were in no special position with regard to that type of injury. The White case clearly
concerned the impact of an isolated gruesome event: the courts have been more
sympathetic to claims involving the effects of stress over a substantial period of time.
The first claims involved vulnerable groups: junior hospital doctors working very
long hours; social workers with unmanageable case loads. Some jobs involve special
pressures: some people cope with them better than others. The Court of Appeal tried
to set out some general principles in a series of cases reported as Hatton v Sutherland
[2002] EWCA Civ 76: [2002] 2 All ER 1. One of those cases was taken to the House of Lords
in Barber v Somerset County Council [2004] UKHL 13: [2004] 1 WLR 1089, but this case is
merely an application of the principles to the facts and the principles are still to be
found in the Court of Appeals judgment.
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Only the central elements of the employers duty are likely to have this non-delegable
character. It would be most unlikely to apply if, for example, a driver from another
company delivering supplies to a factory were negligently to injure some workers
at the factory. The employers/factory owners would be liable only for their own
negligence. A borderline example would be where equipment purchased for use in
the factory turns out to be defective. In Davie v New Merton Board Mills Ltd [1959] AC 604
the House of Lords held that the defendant employers had discharged their duty by
purchasing tools from a reputable supplier: the employee could sue the manufacturer
of the tool. This was reversed by the Employers Liability (Defective Equipment) Act
1969. You should note particularly the nature of the employers liability (s.1) and the
definition of fault (s.2). The latter is not confined to negligence, but includes any act
or omission which gives rise to liability in tort. This would seem to mean that the
employer would be liable if the manufacturer were in breach of the strict liability
imposed by the Consumer Protection Act 1987 (see Chapter 7). The courts have given
the word equipment a wide interpretation favourable to injured employees (see
Knowles v Liverpool City Council [1993] 4 All ER 321).
Finally you must remember that the employers duties described in this section are
owed only to their employees and not to others such as contractors working on the
premises or visitors to the premises. Their claims must be based on the principles of
common law negligence or on the Occupiers Liability Acts.
Activity 6.4
a. What is meant by saying that the employers duty of care is non-delegable?
b. A, an employee of X Ltd, likes to play practical jokes on work colleagues. He
balanced a pail of water above a door and invited B, another worker, to walk
through the door. B had a weak heart and became seriously ill as a result of
being drenched. Advise B.
c. E worked as a district nurse from 1993 to 2004 with the W Health Authority. Her
workload increased and, after suffering a nervous breakdown, she took early
retirement. E asks you for advice. What questions would you ask her about her
employment history before giving advice?
Summary
Employers owe a duty of care to their employees, but this is different in nature from
the normal duty of care, being described as non-delegable. Courts are now developing
principles under which employees can also recover for the effects of work related
stress.
Learning outcomes
By this stage, you should be able to:
uu
uu
describe and explain the extent of the employers liability for defective
equipment used in the course of employment.
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breach of duty to her that enabled her to wander into danger? Could the hotel argue
that Mr J should not have left her on her own (cf. Phipps in relation to children)?
Alternatively Mrs J is a trespasser when she goes through the door: apply the 1984 Act.
Either way can the hotel excuse themselves by saying it was the fault of the contractors
(if not hotel employees)? Separate claim against the decorators (if they are not hotel
employees) either under Acts if they have sufficient control of the premises to be
occupiers or at common law. Claim for broken watch possible under 1957 Act, but
problems with property damage if she is trespasser. Mr Js claim is unlikely to be under
Acts as it is not concerned with state of premises. Was the maid negligent in passing on
the bad news about his wife in the way she did foreseeable that he would try to jump
up suddenly? This is NOT however a question of psychiatric injury. Is there a possible
battery claim against the maid, but implied consent or some other defence?
Question 3 Franks status is first problem. Lawful visitor or trespasser? Publicity had
made it clear that only students allowed, but door staff let him in. However, even if
trespasser, the occupiers through their staff clearly knew that he was in the building
and exactly the same could have happened if he had been a student, so there might
be a breach of the 1984 Act as they knew (?) about the light bulb. Can college escape
liability by pointing to Mark as contractor? Could there be a separate claim against
Mark. Was there possible contributory negligence by Frank running in darkness? Note
the problem of property damage.
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6.1
Liability of occupiers
6.2
Liability of manufacturers
6.3
Liability of employers
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
7.1
7.2
7.3
page 84
Introduction
Parliament has passed an Act that makes it compulsory to do something (e.g. for a
building employer to provide safety helmets for employees) or makes it illegal to do
something (e.g. to smoke while handling combustible material). The Act may impose a
criminal sanction such as a fine on those who break the rule. Should an injured person
have a civil law claim for damages? In other words, should the breach of the duty
imposed by the statute be a tort as well as a crime?
This is a long-standing question. A similar question can be raised in relation to
the Human Rights Act 1998. Should a person suffering a violation of the European
Convention on Human Rights have a claim for damages?
Learning outcomes
By the end of this chapter you should be able to
uu
explain the different ways in which liability may arise out of the failure to
perform duties imposed by regulatory statutes
uu
uu
explain the tests that have been deployed to determine when a statute is held to
give rise to civil liability
uu
uu
explain the bases on which liability may arise where a public authority has
infringed rights under the European Convention on Human Rights
uu
identify the circumstances in which the courts are likely to award damages for
such infringements and the ways in which damages may be assessed.
Essential reading
Lunney and Oliphant, Chapter 11: Special liability regimes, Section IV Breach of
statutory duty.
They can decide that there should be civil liability for the breach. This is the tort of
breach of statutory duty described in this chapter at 7.2.1. Suppose that Parliament
has provided that employers in certain industries must ensure that their employees
wear safety helmets. If the courts decide that there should be civil liability (see 7.2.1)
and if the conditions described in 7.2.3 are satisfied, then the claimant, an injured
employee, has an entitlement to damages, subject to any available defences.
uu
They can decide that the claim should be framed in negligence and the breach of
the statutory requirement can be regarded as evidence of negligence. Take the
safety helmet example again. The claimant would sue for a breach of the employers
non-delegable duty of care (see Chapter 6) and argue that the failure to comply
with the statute was a breach of that duty: the claimant would be likely to win but
not bound to do so. This is the route that has been taken in some other common
law jurisdictions and some commentators think that it should be followed in
England. If it did, then the separate tort of breach of statutory duty would disappear.
This has not happened as a general rule, but there are certainly examples of it. In
Froom v Butcher [1976] 2 QB 286 (see Chapter 13) the fact that Parliament has made
the wearing of seat belts mandatory makes it easier to hold that a person who fails
to do so is not taking reasonable care for his safety and is therefore contributorily
negligent (i.e. the statutory duty helps to set the standard of reasonableness).
uu
A third possibility is to say that the claimant does not automatically have a claim for
injuries resulting from a breach of the statutory duty, but may do so, depending, for
example, on the seriousness of the breach and the state of mind of the defendant
at the time of the breach. It is likely that this approach will be adopted in respect of
some breaches of the European Convention on Human Rights (see 7.3).
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Summary
The fact that conduct is illegal in the sense of being criminal does not necessarily make
it tortious as well, even if someone is injured as a result. Where a statute prohibits
certain conduct and does not say whether or not there is to be civil liability for
resulting damage the courts have to decide as a matter of policy whether there should
be such civil liability.
The courts will not allow a civil action unless the statute is for the protection of a
particular class. If the purpose of the statute is to protect the general public or to
achieve some administrative objective, then there will be no civil action. This test
is quite clear, but can be difficult to apply in practice (see in particular the ORourke
case in the next section).
uu
There may be civil liability where the statutory duty is quite precise (e.g. to provide
safety helmets of particular specifications) but not where it is very general and
open-ended (e.g. to provide an education suitable for the needs of children).
uu
A private right of action for damages will not be appropriate where a public
law action (e.g. to force a public authority to carry out its duty) would be more
effective.
Lonrho Ltd v Shell Petroleum Co [1982] AC 173: the claimants sought compensation
for damage to their business by the defendants, who had allegedly broken the oil
embargo imposed on the regime in Southern Rhodesia that had illegally declared
independence. It was held that the purpose of the embargo was to bring down
the regime and not to protect the interests of individual companies. (The actual
facts were more complicated, but this gives the gist of the point at issue for our
purposes.)
Hague v Deputy Governor of Parkhurst Prison [1992] 1 AC 58: the claimants had been
wrongly segregated from other prisoners contrary to the requirements of the
Prison Rules. It was held that these rules were concerned with securing proper
prison administration and did not create individual rights. Some judges thought
obiter that there might be liability for breaches of those parts of the rules that set
safety standards in prison workshops.
uu
X v Bedfordshire County Council [1995] 2 AC 633: this case has already been
considered in Chapter 5 . There you were invited to consider the claims based
on the negligent way in which the statutory functions had been carried out. In
addition the House of Lords rejected the argument that the breaches of the various
welfare and education statutory provisions could be the basis of an action in
breach of statutory duty.
uu
uu
Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39: [2003] 1 WLR
1763: breach of the statutory duty to give reasons for authorising the delay of an
accused persons access to a solicitor did not give that person a private right of
action.
uu
One case that does allow a private right of action is Kirvek v AG of Trinidad and
Tobago [2002] UKPC 43, [2002] 1 WLR 2792. The claimants had been involved in a
civil law claim: they had been required as a condition of continuing the action to
pay a very large sum of money into court as a kind of security. The authorities did
not deposit the payment in an interest-bearing account, but deposited it with the
Treasury in a way that did not attract interest. The claimants were entitled to a civil
action for damages representing the lost interest. It is unusual to allow an action
for breach of statutory duty where the loss is economic, but it is difficult to see
what other remedy would have dealt in a satisfactory way with the injustice to the
claimants.
The statute must have been broken. This is of course very obvious, but it is easy
to overlook (see Chipchase v British Titan Products Co Ltd [1956] 1 QB 545). It is
particularly important to notice that different statutes may require different
mental states. Some statutes may impose strict liability, others may require
something to be done so far as practicable and others may impose a duty to take
care. Some statutes may impose duties only on employees or only on employers or
on both.
uu
The claimant must belong to the class of persons whom the statute was intended
to protect (Hartley v Mayo & Co [1954] 1 QB 383).
uu
The damage must be of a kind that the statute was intended to prevent. This is akin
to the concept of remoteness of damage in negligence and is illustrated by Gorris
v Scott (1874) LR Exch 125. This notion is sensible enough, but can be quite difficult
to apply. For instance, it has been held that the purpose of regulations requiring
machinery to be fenced is to keep the workman out of the machine and not to
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uu
The damage must have been caused by the breach of duty. This concept has been
explained in Section 4.1 and indeed some of the cases used to illustrate the notion
of causation were claims for breach of statutory duty. See McWilliams v Sir William
Arroll & Co Ltd [1962] 1 WLR 295.
uu
The Enterprise and Regulatory Reform Act 2013, s.69 (Civil liability for breach
of health and safety duties) amends the law so that in future breach of a duty
under s.15 of the Health and Safety at Work Act 1974 shall not be actionable unless
negligence or fault on the part of the employer can be proved.
Activity 7.1
a. What reasons did Lord Hoffmann give in ORourke v Camden London Borough
Council [1998] AC 188 for saying that no civil action lay for breach of the statutory
duty on the local council to provide accommodation for homeless people?
b. Regulations require workers in a particular factory to wear a helmet if they are
working at a height above 3 metres. Ivan falls from a platform 2.9 metres off the
ground. He is not wearing a helmet and fractures his skull when he falls. Has he
claim for breach of the regulations?
c. Regulations require sheep on board a ship to be kept in separate small pens on
the deck. Hughs sheep and those of other owners are transported by ship. There
are no pens on the deck. During heavy seas the sheep all slither to one side of
the deck, the ship capsizes and Hughs sheep are drowned. Has he a claim for
breach of statutory duty?
d. Statutory regulations require certain machinery to be fenced. John is working
at an unfenced machine. Slivers of metal are extruded from the machine, coil
themselves round Johns hand and pull it into the machine, injuring him. Has he
a claim for breach of statutory duty?
Feedback: see end of guide.
Summary
If the courts decide that a statute (or regulations made under it) give rise to civil
liability and that there has been a breach, then the claimant is entitled to damages
for any consequential injuries provided that he was a member of the protected class,
that the damage was caused by the breach and that the damage was of a kind that the
statute was intended to prevent.
explain the different ways in which liability may arise out of the failure to
perform duties imposed by regulatory statutes
uu
uu
explain the tests that have been deployed to determine when a statute is held to
give rise to civil liability
uu
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The House of Lords has had an opportunity to consider this problem in R (on the
application of Greenfield) v Secretary of State for the Home Department [2005] UKHL
14, [2005] 1 WLR 673 and suggested that the observations of Lord Woolf in Anufrijeva
should be reconsidered. They were not keen on analogies with tort statutes and
held that the approach of the European Court of Human Rights should be followed.
No damages were awarded in that case for the violation of a prisoners rights: just
satisfaction was attained by a concession by the Secretary of State that he had not had
a trial before an independent tribunal as required by the Convention.
Clearly the approach to be followed in cases of breach of Convention rights is still
developing.
Summary
The Human Rights Act 1998 envisages (s.8) that an award of damages may sometimes
be necessary to achieve just satisfaction where a public authority has infringed
someones rights under the European Convention on Human Rights. An award of
damages does not necessarily follow from such a breach. The courts are still working
out the principles under which such damages should be awarded.
explain the bases on which liability may arise where a public authority has
infringed rights under the European Convention on Human Rights
uu
identify the circumstances in which the courts are likely to award damages for
such infringements and the ways in which damages may be assessed.
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7.1
7.2
7.3
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.1
8.2
100
106
page 94
Introduction
In this chapter, we look at particular statutory regimes where the desire to
compensate victims has encouraged the legislator to impose strict liability. Here,
fault need not be proved. It is important to remember, however, that claimants must
still prove that the defendants actions caused their loss, that the loss is recoverable
and that there are no defences which obstruct their claim or limit their damages.
Under both statutes, contributory negligence is a defence to any claim.
The 1987 and 1971 Acts deal with specific compensatory issues. In a consumer age,
defective products can cause severe injury to the public, but it is often difficult to
prove negligence. If your new coffee table arrives with scratches on the surface, were
these caused by the manufacturer, the retailer or the delivery firm? If you take drug
X and suffer serious headaches, is this due to drug X or due to natural causes? Even
if you are able to identify drug X as the cause, is it defective or just an acceptable
side-effect of a valuable drug? Most medications we take have side-effects, but we do
not think of them as defective. In establishing a strict liability regime, the European
Commission sought to harmonise the law relating to defective products across
Europe, by requiring, in its Directive, a common level of consumer protection across
each Member State.
The Animals Act 1971 has a very different history. It modified existing common law
provisions, which distinguished between ferae naturae (animals wild by nature) and
mansuetae naturae (tame animals). The Act imposes strict liability on the keepers of
animals which are dangerous, or not dangerous but known to be likely to cause harm
or injury to another. The keepers of such animals will find themselves liable for injuries
caused regardless of the fact that they were not at fault.
Learning outcomes
By the end of this chapter and the associated readings, you should be able to:
uu
uu
the meaning of producer and who will be liable under the Act
uu
uu
uu
uu
explain the reasons for the enactment of the Animals Act 1971
uu
uu
evaluate the purposes of strict liability and consider whether any other areas of
the law should be replaced by rules of strict liability.
Essential reading
Lunney and Oliphant, Chapter 11: Special liability regimes, Section III Product
liability.
Winfield & Jolowicz, Chapter 10: Liability for defective products, Section 2
Liability under the Consumer Protection Act 1987 and Section 3 Conclusion.
Self-assessment questions
1. What do we mean by strict liability?
2. What do we mean by a defective product?
3. When can I recover at common law for damage caused by a defective product?
4. Why did the European Community decide to impose strict liability for defective
products?
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Summary
At common law, liability for defective products depended on proof of negligence: see
Donoghue v Stevenson [1932] AC 562. This was often difficult to prove in practice. The
costs and risks of litigation left many consumers without an effective remedy. The
Consumer Protection Act 1987 was introduced to comply with EC Directive 85/374 on
liability for defective products and introduced a strict liability regime. Producers, in
future, could be liable without proof of fault. However, the Act did not replace the
common law. It supplemented it. If the Act is not applicable, the common law may still
be worth consulting to see if it will support a claim.
Consumer Protection Act 1987: liability for defective products (2002) 10 Med L
Rev 8288.
Newdick, C. The development risk defence of the Consumer Protection Act 1987
(1988) 47 CLJ 45547.
uu
own-branders (s.2(2)(b))
uu
Suppliers are not generally liable, except under the special provisions of section 2(3).
There can be more than one producer, for example, the manufacturer of a component
part and the manufacturer of the whole product. They will be jointly liable: section 2(5).
Activity 8.1
Can the following parties be sued under the Consumer Protection Act 1987?
a. Digdeep plc, which provides coal to the public.
b. Eric sells widgets to the public. He bought them from Fred, who did not tell him
where they came from. There is no manufacturing mark on the widgets.
c. George lives in Brussels. He bought a Wahoo jeep from Japan. He now wishes to
sell it to Harriet, who lives in London.
d. Indigo plc sell jeans marked Indigos. They are manufactured for them by Jackie.
Self-assessment questions
1. Who can be sued under the Act?
2. When will a supplier be liable?
explain the meaning of the term producer and who will be liable under the Act.
Warnings
In A, Burton J specifically mentioned that warnings could render even non-standard
products safe, provided that the warnings were clear and widely known (see also s.3(2)
(a)). See also Worsley v Tambrands Ltd [2000] PIQR P95.
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Activity 8.2
Ambrose Industries manufactures Relaxeze pills for people suffering from
headaches. On the box, it states in bold type: Be warned. There is a very small risk
that these pills may cause epileptic fits in some people. Anyone at risk of epilepsy
should consult their doctor before use. This is also stated in the instructions
accompanying the pills, which the user is instructed to keep.
Beryl buys the pills and throws away the box with the instructions inside. She takes
one pill and then has an epileptic fit. Would a court find Relaxeze to be defective
under section 3?
Self-assessment questions
1. What is the basic test for a defective product?
2. What other factors do the courts examine?
3. Will it usually be easy to explain why a non-standard product is defective?
4. Why is blood infected by hepatitis C a defective product?
8.1.5 Defences
The Act provides the defendant with a number of defences listed in sections 4, 6(4)
and 6(5). Although section 4(1)(e) the development risk defence has caused the
most controversy, it is important not to forget the other defences which will protect
the defendant from liability. It should also be noted that strict liability does not mean
automatic liability, but simply that the claimant does not have to prove that the
defendant has been at fault. Sections 6(4) and (5) even provide for a defence of
contributory negligence where the damage is caused partly by a defect in the product
and partly by the fault of the victim.
A defence will exist where:
uu
uu
uu
the only supply of the product to another by the defendant was not in the course
of business, and s.2(2) does not apply to the defendant or applies to him due to
things not done with a view to profit
uu
the defect did not exist in the product at the time supplied
uu
the state of scientific and technical knowledge at the relevant time was not such
that a producer of products of the same description as the product in question
might be expected to have discovered the defect if it had existed in his products
while they were under his control
uu
the defect was in a product in which the product in question was a component,
and was wholly due to the design in the subsequent product or due to compliance
by the producer of the product with instructions given by the producer of the
subsequent product.
The more complicated defences are ss.4(1)(c) and (e). The first excludes defendants
who are not supplying goods in the course of their business and who are either
suppliers (not within s.2(2)) or not acting with a view to profit.
Activity 8.3
Do defences exist in the following situations?
a. Griselda makes a fruit tart for a school cake sale. By mistake, she uses poisonous
berries instead of blackberries. Griseldas cake is bought at the sale by Henrietta.
b. Isobel produces Cureotis, a revolutionary new drug which is capable of
providing a cure for some forms of cancer. It is a very difficult drug to produce
and there is no way of preventing a tiny proportion of the drug being
contaminated with the X virus. The X virus is undetectable. James uses Cureotis
successfully and his cancer is now in remission. Unfortunately, he has recently
contracted the X virus.
Self-assessment questions
1. What defences are there under the Act?
2. How easy will it be to establish the development risk defence after A v National
Blood Authority?
8.1.6 Remedies
Section 5 describes the kind of damage covered by the Act. It covers death or personal
injury or any loss of or damage to property, including land: section 5(1). However,
it does not extend to pure economic loss: section 5(2). Equally, property damage is
restricted by sections 5(3) and (4). It will not include:
uu
property not ordinarily intended for private use, occupation or consumption and
not intended to be used for private use, occupation or consumption
uu
Liability cannot, however, be limited or excluded by any contract term, by any notice
or by any other provision: section 7.
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Activity 8.4
Outline the remedies available in the following problem.
Griselda sets up her own cake stall outside her house. She sells a fruit tart
containing the poisonous berries to Ivor. He gives a piece to his son, Kevin. Kevin
takes a bite, but decides that he doesnt like the taste and gives the rest to his pet
cat, Jumper. Kevin becomes ill and Jumper dies. Jumper was a show cat, whose
value has been estimated at 300.
Self-assessment questions
1. Can I recover damages for all injuries I have suffered?
2. When can I recover property damage?
3. Can the defendant exclude liability under the Act?
Summary
The Act, as interpreted in A v National Blood Authority, imposes strict liability on
producers of defective products. This extends to own-branders and importers into the
EC. As such, it marks a significant step in the European Commissions harmonisation
programme which seeks to establish similar levels of consumer protection across the
European member states. Liability for defective products should therefore be treated
as a distinct area of tort law, in which a good working knowledge of the 1987 Act will be
vital for examination success.
8.2.4 Defences
As we saw in relation to the Consumer Protection Act 1987, strict liability does not
prevent defences arising. These are listed primarily in section 5 of the Act.
Section 5(1) provides that a person will not be liable under sections 24 for any damage
which is wholly due to the fault of the person suffering it. Section 10 further provides
for a defence of contributory negligence.
Section 5(2) establishes a defence of voluntary acceptance of risk for section 2 only.
Section 5(3) is equally confined to section 2 and provides that a person will not be
liable to a trespasser on the land, if it is proved:
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This protects landowners with guard-dogs and keepers generally. See Cummings v
Granger [1977] QB 397. Contributory negligence (see Chapter 13) is also a defence.
Howarth, D. The House of Lords and the Animals Act: closing the stable door
(2003) 62 CLJ 548551.
Amirthalingam, K. Animal liability equine, canine and asinine (2003) 119 LQR
563567.
Activity 8.5
Alexander is a keen animal-lover. He lives in a big house in the country and keeps six
pet dogs. He also keeps a number of peacocks. He dotes on the animals and feeds
them every day.
One day, he decides to take his pet dogs to visit his sister, Agatha. He piles the dogs
into the back of his van, and says goodbye to the peacocks. One of the peacocks,
Florence, follows the car out of the drive and wanders into the main road. Barry,
who is driving too fast, drives into Florence and suffers severe injuries. Alexander,
who is driving very slowly, sees the crash in his rear-view mirror and stops. He
backs up the van in an attempt to help. Barry staggers out of the car and towards
Alexanders van. He opens the back of the van in an attempt to obtain assistance,
but is attacked by Jupiter, one of Alexanders pet dogs. Jupiter is normally very mild,
but is very protective of the van in which the dogs always travel on visits to Agatha.
Advise Barry on his claim for personal injuries suffered due to the crash and the
attack by Jupiter.
Feedback: see end of guide.
Self-assessment questions
1. What is the aim of the Animals Act 1971?
2. Will the owner of an animal always be liable for injury caused by the animal?
explain the reasons for the enactment of the Animals Act 1971
uu
uu
evaluate the purposes of strict liability and consider whether any other areas of
the law should be replaced by rules of strict liability.
Examination advice
The topic of strict liability statutes rarely appears in its own right. This topic
generally arises as part of a problem question, although the examiner may choose
to set an essay question on either strict liability statutes generally or (less likely
in recent years) developments in the law of defective products or animals. The
Consumer Protection Act 1987 and the Animals Act 1971 are both complicated
statutes. It is important to have a good understanding of their key sections
(highlighted in this chapter) and a keen awareness how they work in practice. It is
also not enough to cite the relevant sections. Students will be expected to refer to
cases and use them by analogy to the problem set. Ultimately the student will face
a number of practical questions if answering a problem question: is the product
defective? Is the animal dangerous? Can the claimant satisfy the very tricky test in
s.2(2)(b)? and so on. The student must be prepared to give the best answer they can
to such questions.
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On what basis can Jake sue? Will he recover for his injuries and property damage?
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Who and on what basis can Michael sue for the injury caused by Kruncher?
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8.1
8.2
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
108
9.1
9.2
9.3
9.4
110
115
122
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Introduction
This chapter deals with trespass to the person. which has three forms: assault, battery
and false imprisonment. Each of these is an individual tort in its own right requiring
proof of a direct and deliberate act on the part of the defendant. These torts are
actionable per se. That is, the claimant does not need to have suffered any loss or
damage as a result of the tort. A person is entitled to autonomy and bodily integrity
and it is this right which is protected. As Lord Porter, referring to false imprisonment,
said in the case of John Lewis & Co v Tims [1952] 1 All ER 1203
[when] the liberty of the subject is at stake questions as to the damage sustained
become of little importance.
The elements of the torts of assault and battery are very similar to those which make
up the crimes of assault and battery. In fact, civil actions in respect of these torts
are not numerous; they are frequently dealt with by the criminal courts. Note the
difference in the standard of proof. That required in a civil action for trespass to the
person is that the claimant must prove his or her case on balance of probabilities
whereas in a criminal prosecution the standard of proof is beyond reasonable doubt.
Where a defendant has deliberately but indirectly caused physical harm to a person,
although this is not a trespass to the person it may be actionable if they have wilfully
done an act calculated to cause harm to the plaintiff that is to say, to infringe her
legal right to personal safety and has in fact thereby caused physical harm to her
(Wright J in Wilkinson v Downton [1897] 2 QB 57 at pp.5859). This tort, known as the rule
in Wilkinson v Downton, will also be considered in this chapter.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
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Define the elements of assault, battery, false imprisonment and the rule in
Wilkinson v Downton
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Essential reading
Winfield & Jolowicz, Chapter 4: Trespass to the person and related matters.
Under the old forms of action a claimant had to choose between suing in trespass
(direct) or in case (indirect) and little attention was paid to whether the tort was
based on fault or on strict liability. In practice trespass is now regarded as requiring an
intentional interference (although possibly only if direct).
In Letang v Cooper [1964] 2 All ER 929 Lord Diplock was of the view that an action for
direct, negligent interference could be brought either in trespass or in negligence.
Whatever label was attached to it, the cause of action was identical D negligently and
directly injured me. He did however agree with Lords Denning and Danckwerts that,
where the action was for intentional, direct interference it was actionable per se. When
the interference was direct and unintentional then, if it were an action in negligence,
it required proof of damage but, equally, even if it were called trespass it would still
require proof of negligence and damage.
Lord Denning pointed out in Letang v Cooper:
Nowadays, if a man carelessly throws a piece of wood from a house into a roadway, then
whether it hits the plaintiff or he tumbles over it the next moment, the action would not
be trespass or case but simply negligence.
In Stubbings v Webb [1993] 1 All ER 322 the House of Lords held that where section 11 of
the Limitation Act 1980 referred to negligence, nuisance or breach of duty this did not
include trespass to the person, reinforcing the importance of a distinction between
trespass and negligence.
Therefore the man who throws the log and deliberately hits the claimant is guilty of
trespass whether the claimant suffers injury or not; whereas the man who carelessly
throws it without intending to hit the claimant but in circumstances where it is
reasonably foreseeable that it would do so, and it does, would be guilty of negligence
but only where the claimant suffers injury.
Negligence is not actionable per se.
One of the reasons for there being fewer civil proceedings than criminal is that in many
instances of assault and/or battery where it might be worthwhile taking action against
a defendant, the police are called to the scene and criminal proceedings instituted. In
addition, many people who commit trespasses to the person are people of straw, that
is they do not have sufficient means to make them worth suing. It follows, therefore
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that there are more criminal than civil cases. Bear in mind here, that although criminal
decisions are often referred to in tort (and vice versa) they are only guidance and not
binding until incorporated into the civil law by a civil court.
Activity 9.1
a. Name three distinguishing features of an action in trespass and in case.
b. What does actionable per se mean?
c. In the case of Letang v Cooper did the plaintiff (claimant) bring her action in
trespass or negligence?
Summary
On balance it would appear to be the case that any action taken for intentional and
direct interference with a person would lie in trespass whereas an action for indirect
interference with the person would lie in negligence. Note that so far as trespass is
concerned, the fault requirement relates to the act and not the consequences. A
defendant will be liable for any direct consequence of his act.
Where a claimant knows that any threat will not be carried out there can be no assault
as there will have been no reasonable apprehension of contact. Tubervell v Savage
(1669) 1 Mod Rep 3.
Omissions
It has long been said that something more than a mere omission is required for an assault
and it was stated in Innes v Wylie (1844) 1 C & K 257 that it would not be an assault where
the defendant does no more than stand passively preventing the claimant from entering a
room.
However note the recent criminal case of Santana Bermudez [2003] (discussed below).
Words
Words may negative what otherwise might be an assault. In Turberville v Savage (1669)
1 Mod Rep 3 the plaintiff (claimant) and the defendant were having an argument. The
defendant placed his hand upon his sword and said: If it were not assize time I would not
take such language from you. It was held that the words negatived what would otherwise
have been an assault.
For a long time, however, it was unclear as to whether words alone could amount to an
assault. In the case of R v Meade (1823) 1 Lew CC 184 it was said that no words or singing
could be equivalent to an assault. In R v Wilson [1955] 1 WLR 493 it was considered that the
words get out the knives could amount to an assault.
It would now seem from the decision of the House of Lords in R v Ireland and Burstow [1998]
AC 147 that words alone (and in some circumstances silence) can constitute an assault
where the victim apprehends the possibility of imminent force. Lord Steyn rejected the
proposition that an assault could never be committed by words alone and said that silence
might also constitute an assault, but whether it did so or not was a question of fact.
The proposition that a gesture may amount to an assault, but that words can never suffice,
is unrealistic and indefensible. A thing said is also a thing done. There is no reason why
something said should be incapable of causing apprehension of immediate personal
violenceTake now the case of the silent caller. He intends by his silence to cause fear and he
is so understoodAs a matter of law the caller may be guilty of an assault: whether he is or not
will depend on the circumstances and, in particular, on the impact of the callers potentially
menacingon the victim. (at p.162)
Activity 9.2
a. Would it be an assault to point a loaded gun at X if X did not know it was loaded?
b. Has an assault been committed in the following situations?
i. Jane crept up behind Bill intending to hit him.
ii. Bill telephoned Jane and just breathed heavily down the phone without
saying anything.
iii. Jane was very angry with Bill and threatened to hit him. Bill, who was much
taller and bigger than Jane, was not frightened by this.
iv. Jane was driving her car on the motorway and overtook Bill. This made Bill angry
so he drove alongside Janes car and made threatening gestures.
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9.2.2 Battery
According to Winfield, battery (which can take place without an assault) is the
intentional and direct application of force [personal contact is unnecessary] to another
person (without lawful justification).
Force
Even if the force used is trivial, the least touching of a person in anger is a battery.
See Cole v Turner [1704] 6 Mod Rep 149. In Callis v Gunn [1964] 1 QB 495 it was held
that wrongly taking a persons fingerprints could be a battery. Throwing water at the
claimant although not at clothes she is wearing is a battery. See Pursell v Horn [1838] 7
LJ QB 228.
Striking A and causing injury to B can amount to a battery to B as in Haystead v Chief
Constable of Derbyshire [2000] 3 All ER 890 where the defendant punched A who was
holding a child in her arms. The child fell hitting its head on the floor. The defendant was
guilty of a battery in respect of the child.
Act
As with assault, it has long been said that for there to be a battery there must be a
voluntary action by the defendant. Battery (like assault) could not be committed by
omission. In Fagan v MPC [1969] 1 QB 439 the defendant accidentally drove his car on
to a policemans foot but, despite repeated requests, refused to remove it. It was held
that there was an assault but not merely by omission. The defendants conduct, from
accidentally driving on to the policemans foot to refusing to move, was a continuing
act. He was still acting at the time he formed the necessary intention for battery, i.e.
when he refused to remove the car.
This it could be argued suggests a straining of the word act. In the more recent case of
DPP v Santana Bermudez [2003] All ER (D) (Nov) where a drug addict about to be searched
by a policewoman falsely told her that there were no syringes in his pocket, the
Divisional Court of the Queens Bench held that, the policewoman having been pricked
by one of the syringes, the defendant was guilty of battery. This is, however, a criminal
case and must for the law of tort at least for the moment be treated as guidance only.
In order to be guilty of battery, the defendants conduct must be voluntary and it must
be proved on balance of probabilities that the defendant intended to bring about
contact. It is thought that intention in this context includes subjective recklessness,
that is, the defendant was aware of a risk of contact.
Ordinary touching in the course of daily life is not battery. In Wilson v Pringle [1986] 2 All
ER 440 it was suggested that touching must be hostile to amount to a battery. However,
Lord Goff in Re F [1990] 2 AC 1 doubted whether the term hostile connoted anything
more than contact beyond that which is ordinarily acceptable in everyday life, saying:
A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a
surgeon who mistakenly thinks that the patient has consented to it, all these things may
transcend the bounds of lawfulness, without being characterised as hostile.
If the contact is intentional and direct, a mistaken belief that it is lawful is irrelevant.
In Poland v John Parr and Sons [1927] 1 KB 236 where an employee thought he saw a boy
stealing sugar from his employers cart and attacked the boy, there was a battery.
Note that there can be a battery without there having been an assault and similarly,
there can be assault without battery.
Activity 9.3
Has the tort of battery been committed in any of the following situations?
a. Sunita was at a crowded party and was enjoying herself tremendously. While
dancing she trod on Kumars toe, hit Susan hard on the back and knocked James
over.
Summary
Before moving on ensure that you have understood the elements of the torts of
assault and battery (i.e. what a claimant will need to prove in order to succeed in an
action). Note that there needs to be no contact between the parties for an action
in assault to lie; it is sufficient that the claimant apprehends contact and that the
defendant intended the claimant to so apprehend. Battery does, of course, require the
intentional application of unlawful force but, here, note that the force does not need
to be substantial.
Bird v Jones illustrates that the restraint must be total, although if there is an escaperoute, it will still be false imprisonment if the escape-route is not a reasonable one.
Thus, in Sayers v Harlow Urban District Council where the plaintiff (claimant) was locked
in a lavatory the court felt that a potentially dangerous climb over the door, or through
a window, was not a reasonably safe escape-route. There was no false imprisonment in
this case for other reasons (see below).
Where a person has imposed conditions on the means of egress from premises to
which the other has agreed it may not amount to false imprisonment when such
egress is refused. For example, when a person has boarded a train which has left the
station, it would not be false imprisonment to ensure that the passenger remains on
board until the train has stopped at the next station.
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In Robinson v Balmain Ferry Co Ltd [1910] AC 295 the claimant paid one penny to enter
a wharf in order to catch a ferry but then realised that there was a 20-minute wait for
the next ferry. There was a charge of one penny for leaving the wharf stipulated on a
notice above the turnstile and the defendants refused to let him leave until he had
paid the charge. The Privy Council held that there was no false imprisonment.
Five years later, in Herd v Weardale Steel, Coal and Coke Co Ltd [1915] AC 67 the claimant, a
miner, demanded (in breach of his contract of employment) to be taken to the surface
before the end of the normal shift. His employers (the defendant) refused. The House
of Lords held: the defendant was not liable, partly because he (the claimant) had
impliedly consented to remain until the shift ended.
The restraint must be actual rather than potential; see R v Bournewood Community and
Mental Health NHS Trust ex parte L [1998] 3 ALL ER 289 HL.
Direct
The restraint must be direct. This was why the action in false imprisonment failed
in Sayers. Here the defendant had not directly locked the plaintiff (claimant) in
the lavatory. Therefore, the proper cause of action was negligence and not false
imprisonment.
Note that false imprisonment (like all other forms of trespass to the person) must be
by way of an act and not an omission to release the claimant, but see again Santana
Bermudez.
More recently, in the case of Murray v Ministry of Defence [1988] 1 WLR 692 HL Lord
Griffiths expressed agreement with Lord Atkins view commenting that: [I]t is not
difficult to envisage cases in which harm may result from unlawful imprisonment
even though the victim is unaware of it. And later he said: The law attaches supreme
importance to the liberty of the individual and if he suffers a wrongful interference
with that liberty it should remain actionable even without proof of special damage.
In R v Governor of Brockhill Prison ex parte Evans (No 2) [2000] 3 WLR 843 the House
of Lords held that a where a prisoner was detained for extra days because the term
of imprisonment was wrongly calculated she was entitled to damages for false
imprisonment even though the error in calculation was due to a judicial decision
which changed the basis of the calculation and the governor of the prison was not at
fault.
However, this case was distinguished in Quinland v Governor of Swaleside Prison [2003]
1 All ER 1173 where the governors had not made any arithmetical or other errors. The
warrant specified the incorrect, longer sentence and they were, therefore, not at
liberty to release the claimant any earlier.
On the basis of the specific facts in Austin v Metropolitan Police Commissioner [2009]
1AC 564 the restraint did not amount to imprisonment at common law. However, the
House of Lords went on to point out that had it not remained necessary for the police
to impose and maintain the cordon in order to prevent serious injury or damage, the
coercive and restrictive nature of the restraint might have been sufficient to bring it
within Article 5(1) of the European Convention on Human Rights.
Activity 9.4
a. Why was there no false imprisonment in the case of Bird v Jones?
b. Is it possible to falsely imprison a person where that person is not aware of it?
c. Why is false imprisonment actionable per se?
d. Why was there no false imprisonment in Sayers v Harlow Urban District Council?
Feedback: see end of guide
Summary
How would you summarise the law relating to the tort of false imprisonment? Can you
define this tort? Is it an intentional tort? Is it direct? Is it relevant that the claimant was
imprisoned for only a short time or that s/he was unaware of the imprisonment? What
other factors might be relevant?
Note that this case was decided before there was any general recognition in law for
recovery where a claimant suffered nervous shock.
Wilkinson was confirmed by the Court of Appeal in the later case of Janvier v Sweeney
[1919] 2 KB 316. Here, the defendant who was a private detective falsely claimed to be
a police officer and told the plaintiff (claimant) that unless she provided them with
letters belonging to her employer they would inform the police that her fianc (who
was German) was a traitor. She suffered psychiatric injury as a result and recovered
damages under the rule in Wilkinson v Downton.
Despite attempts to extend Wilkinson notably in the cases of Khorasandjian v Bush
[1993] QB 727 and Wainwright v Home Office [2003] UKHL, it is a tort which is little
relied upon. In Wainwright where a mother and son were strip-searched in breach of
prison rules the House of Lords ruled that the infliction of humiliation and distress by
conduct calculated to humiliate and distress was not, in itself, tortious at common
law. Therefore, the claimants alternative case based upon an extension of the rule
in Wilkinson v Downton had not been established. In order to establish this tort, the
House ruled, it would need to be proved that the defendant had actually acted in a
way which he knew to be unjustifiable and intended to cause harm or at least acted
without caring whether he caused harm or not.
Activity 9.5
Does the rule in Wilkinson v Downton apply to the situation where a claimant has
suffered deliberate humiliation at the hands of the defendant?
Define the elements of assault, battery, false imprisonment and the rule in
Wilkinson v Downton
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9.5 Defences
9.5.1 Consent
Where a person consents to what would otherwise be a trespass to the person, then
no such tort will be committed. Its equivalent in negligence actions is the defence
of voluntary assumption of risk volenti no fit iniuria (no injury is done to one who
consents).
Care must be taken with consent as limits have been placed on the extent to which
consent will negative the tort of trespass to the person (see below).
Implied consent
Although consent must be specific in that the claimant must consent to the
interference in question, it does not need to be expressly stated. When you hold
your arm out so that the nurse or doctor can give you an injection you are impliedly
consenting to that injection (although not to any other procedure as consent to one
medical procedure does not, in itself, justify another).
It is said that people impliedly consent to ordinary social contact, for example being
jostled in a crowd see Wilson v Pringle and Re F (above).
Consent, however, must be real and any consent given will be vitiated where it has
been obtained by fraud or duress. So in R v Williams [1923] 1 KB 340 the defendant was
guilty of rape (and, therefore, battery) as he obtained the claimants consent to sexual
intercourse by falsely representing to her that it would improve her singing voice as it
was a breathing exercise.
In Appleton v Garrett [1996] PIQR PI a dentist was found guilty of battery where he
carried out extensive and unnecessary dental treatment in bad faith and for profit and
was aware that the claimants would not have consented to the treatment had they
known the truth.
It seems that the fraud must go to the very nature of the act and there is some authority
that a fraud as to the effect and consequences of the act is not enough to vitiate
consent. See Hegarty v Shine (1878) 14 Cox CC 124 and R v Clarence (1888) 22 QBD 23.
However, in R v Tabassum [2000] a criminal case the defendant was found guilty of
indecent assault where he had examined the breasts of women who had consented
because they believed that it was for medical purposes. Therefore, the court held that
although there was, in essence, consent to the nature of the act there was no consent
in relation to its quality. See also R v Dica [2004].
9.5.2 Capacity
Consent will not be vitiated by the claimants age provided the claimant understands
the nature of the act. See Gillick v West Norfolk Health Authority [1986] AC 112. Here
the House of Lords ruled that a person under 16 could consent to such advice and
treatment without the need for any parental consent provided the child had the
ability to appreciate the situation. In doubtful cases, or where there is parental
disagreement, the child should be made a ward of court, which can then be
approached for its permission.
Note that there are situations where legislation has provided that a childs apparent
consent will never be valid for the purposes of the criminal law, for example the Sexual
Offences Act 2003 and the Tatooing of Minors Act 1969.
A person of full age may lack the capacity to consent. In T v T [1988] the parent of
a 19-year-old woman was granted a declaration in relation to the termination of a
pregnancy. See also Re F [1989].
Where a person does have the capacity to consent but does not give such consent,
an action in battery will lie. This also applies to medical treatment. Medical treatment
carried out without a patients consent will, with very few exceptions, amount
However, an action in the tort of battery is not available where a patient has consented
in broad terms to a procedure but complains that her consent was based upon an
inadequate disclosure of a risk or risks associated with that procedure. Chatterson v
Gerson [1981] QB 432. Here an action will lie in negligence.
9.5.4 Self-defence
Self-defence is a complete defence provided the force used by the defendant was both
necessary and reasonable in the circumstances.
Necessary
It must be necessary to use force for this defence to lie. Where a defendant mistakenly
believes defensive force to be necessary he will still have the defence provided the
mistaken belief was reasonable under the circumstances. See Bici [2003]. (This is
different to the criminal law where the honesty of the defendants belief is sufficient; it
does not have to be reasonable.)
A defendant can pre-empt an attack where he honestly and reasonably believes it is
necessary to do so to ward off an attack: he does not have to wait to be attacked.
Reasonable force
The force must be reasonable; it must be proportionate to the harm threatened. In
Lane v Holloway [1968] the claimant, an old, drunk man, called the defendants wife a
monkey-faced tart. The defendant, who was much younger than the claimant, went
out into the street. The claimant hit him ineffectually. The defendant then struck the
claimant with such savagery that the blow required 19 stitches. The court held that
this was not proportionate force.
Although the defensive force must be proportionate, the defendant will not be
expected in the heat of the moment to weigh to a nicety the exact measure of
defensive force to use. See Cross v Kirby, The Times 5 April 2000.
The force used must not be retaliatory. See Lane v Holloway.
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Necessity
Necessity is a very limited defence and is usually expressed as a choice between the
lesser of two evils.
Historically, courts have been very reluctant to allow this defence to succeed. See
Southwark London Borough Council v Williams [1971] and Monsanto v Tilly [1999] although
it was accepted as a limited defence by Lord Goff in Re F and Brooke LJ in A (Children)
[2001]. See also Leigh v Gladstone (1909) where it was accepted as a defence to the
battery (by way of force-feeding) a suffragette on hunger strike.
Provocation
In Lane v Holloway (above) it was stated that provocation was no defence to trespass.
See also Barnes v Nayer, The Times 19 December 1986 and contrast Murphy v Culhane
[1977].
Mr Brown v Asbo
a. Assault
Define assault
Consider each of the elements of assault by reference to the facts of the question.
Remember an action in assault only lies where the claimant actually apprehended
the application of force. Letang v Cooper; Collins v Wilcock. (Note: it is not fear but
apprehension which is required.)
If Mr Brown saw the apple coming towards him then he may have apprehended the
force the facts of the question are silent here. If he was not aware that it was going to
hit him then there could be no assault.
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If Mr Brown did apprehend the force he would need to prove that Asbo intended him
to apprehend the application of force or, it seems, was reckless in the sense that he
was aware of a risk that he would so apprehend the force; Venna [1976]. On the facts of
the question, this is unlikely.
b. Battery
Define battery
Was there an intentional and direct application of force?
Does it matter that there was no personal contact?
Does it matter that Mr Brown appears not to have been injured?
Was Asbos conduct voluntary? Did he have the requisite intention?
Asbo v Mr Brown
Assault
See above Do these facts indicate that there was an assault?
Can words negative an assault? Tubervell v Savage
Despite the words, might there have been a reasonable apprehension of contact?
Asbo v Mrs Brown (She grabbed his arm and dragged him into her house)
a. Assault
See above. If Asbo apprehended the application of immediate unlawful force before
Mrs Brown grabbed him and she intended him to do so then she is guilty of assault.
b. Battery
See above. Mrs Browns conduct was voluntary and she applied direct force to Asbo.
On the facts she is clearly guilty of battery from the moment she grabbed Asbo up to
the time that she locked him in the shed. It does not matter that he was not hurt as
this tort is actionable per se.
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Need to
Need to
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If you ticked need to revise first, which sections of the chapter are you going to
revise?
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done
9.1
9.2
9.3
False imprisonment
9.4
9.5
Defences
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
10.1 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
10.2
10.3
133
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Introduction
You should refer back to economic loss in Chapter 5 (Section 5.1) and the difficulties
of allowing recovery for negligently inflicted economic loss. The torts referred to in
this chapter deal with economic loss that is intentionally inflicted or in some cases
inflicted for an improper purpose.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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describe the meaning of intention and motive in the context of these torts
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explain the extent to which there has to be a contract and has to be a breach in
the tort of inducing breach of contract
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Essential reading
This topic is not included in Lunney and Oliphant. Please refer instead to:
Markesinis and Deakin, Chapter 15: The Economic Torts (ignoring Section 5 The
Trade Dispute Immunity).
10.1 Deceit
Deceit is concerned with losses resulting from deliberate falsehoods. In many cases
the falsehoods result in the deceived person entering into a disadvantageous contract.
You will therefore have encountered some of the relevant principles and cases when
dealing with fraudulent misrepresentation in your study of the law of contract. You
will also remember from Chapter 5 of this guide that in Derry v Peek (1889) LR 14 App
Cas 337 the House of Lords gave a narrow meaning to the tort of deceit. As a result of
that narrow view and the development of liability for negligent mis-statements, the
tort of deceit has been of limited importance.
There must be a false statement of fact. The defendant must actually have said
something (or positively conveyed meaning in some other way): people are
generally allowed to keep silent, but may have to correct what has already been
said if it becomes false or if they discover that it was false. The statement must be
one of fact and not a promise of future action, although there may sometimes be
deceit if the defendant gives a false statement of his own present intentions. See
Edgington v Fitzmaurice (1885) 29 Ch D 459.
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The defendant must either know that the statement is false or be reckless in the
sense of being indifferent as to whether it is true or false (Derry v Peek). The important
point is that honest carelessness does not give rise to liability in deceit, although it
may now do so under the principle established in Hedley Byrne (Chapter 5).
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The defendant must have intended that the claimant should act on the statement
and the claimant must actually have done so, in the sense that the false statement
was at least one of the factors that induced him to behave as he did (i.e. the false
statement must have been a cause of the claimants loss).
Now that the law allows recovery of damages for negligent misrepresentation,
many claimants may rely on that tort rather than starting on the hazardous course
of trying to establish that the defendant was dishonest. If, however, the claimant
can establish dishonesty, there is an advantage in that the damages may be greater
than in a negligence claim since the claimant can recover not merely foreseeable
losses, but all losses arising directly from the mis-statement. See Smith New Court
Securities Ltd v Scrimgeour Vickers (Asset Managament) Ltd [1997] AC 254. You will recall
that the measure of damages in fraud and under the Misrepresentation Act 1967 was
considered in your course in the law of contract.
Self-assessment questions
In cases of deceit:
1. What must the defendant intend?
2. Does the defendant have to know that the statement is false?
3. Must the claimant act upon the representation?
4. How are damages assessed? Is the assessment of damages more favourable to
the claimant than in a negligence action?
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Meaning of rights
In the last two paragraphs one could easily talk of C and D as having a right to run
a restaurant, but it is necessary to consider carefully what is meant by such a right.
Ask yourself the meaning of the two following statements: 1. I have a right to wear a
hat. 2. I have a right to be paid for the hat which I sold to a customer yesterday. The
first statement merely means that I am free to do it and not that anyone else has a
corresponding duty.
The right to engage in trade or business is usually a right of this kind (i.e. you are
free to do it but no one else has to help you): the right is, however, protected against
certain kinds of interference.
Subject matter
Many of the principles of these torts have been worked out in cases (a) involving
competition between rival businesses or (b) involving disputes between employers
and employees or their trade unions. The common law has only a subordinate role to
play.
The former (business competition) is regulated by competition law affecting
monopolies both under domestic English law and the laws of the European
Community; neither of these forms part of the syllabus for this subject.
The latter (employment disputes) have been much affected by trade union legislation
giving some protection to things done in furtherance of a trade dispute. The content
of this legislation has been changed many times over recent decades. You will not be
expected to demonstrate any knowledge of this legislation.
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No illegality
(Employers)
No illegality
Intention to injure
(Allen)
D
Diagram 1 The decision in Allen v Flood
Allen (D) was an official of the Boilermakers Trade Union. He told the boilermakers
employer (X) that they would go on strike unless X dismissed certain shipwrights
including Flood (C). Ds actions were aimed at C, but there was no illegality on either
the line between C and X or on the line between X and D. All the contracts were
terminable at very short notice. So the dismissal of the shipwrights (C) was not a
breach of their contracts of employment, and, if the boilermakers had walked out,
they would not have broken their contracts with X. The House of Lords held that no
torts had been committed. The defendants were promoting their interests.
This is consistent with an earlier decision in Mogul Steamship Co Ltd v McGregor, Gow
& Co [1892] AC 25, giving similar protection to the actions of the defendants who had
succeeded in driving the claimants out of the tea trade with China.
In Quinn v Leathem [1901] AC 495 the House of Lords held however that, if but only
if the defendants acted in combination with others, they could be liable in certain
circumstances for driving an employer out of business if he took on non-union labour.
The upshot of these famous cases and others is that at common law the defendant is
liable only if (i) the conduct interferes with a pre-existing legal right (i.e. the second
kind of right mentioned above, such as the right to be paid for a hat supplied) or
(ii) the defendant has interfered with the claimants business by unlawful means or
(iii) there is a conspiracy aimed at the defendant. We will now consider these three
categories in more detail.
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C
C
Interference with
Cs existing rights
Aim to damage
Cs rights
Persuasion (not
independently
illegal)
D
Diagram 2 The decision in Lumley v Gye
i. The first line to concentrate on is that between C and X. The defendant must have
interfered with the pre-existing legal rights that C has against X. Typically this will be
a contract, e.g. for the provision of services or the supply of goods. Normally C will
have an action against X for breach of contract, but he has in addition a right of action
in tort against D for bringing about the breach. By contrast it is not a tort for D to
persuade X not to enter into a contract with C, even if it can be shown that X would
almost certainly have entered into the contract if it had not been for Ds behaviour. C
did not have any existing rights but merely the hope that rights would arise when the
contract was made. In Lumley v Gye Gye persuaded a singer (X) to break the exclusive
contract for her services that she had with Lumley, but it would not be a tort for Gye
to persuade X not to enter into such a contract in the first place.
Between these two extremes there are several intermediate possibilities, and it
is not essential that as a result of Ds conduct C should have an action in breach of
contract against X. There is an example in Torquay Hotel Ltd v Cousins [1969] 2 Ch 106.
The contract between C (the hotel company) and X (suppliers of fuel oil) contained
a clause providing that X would not be liable if their failure to deliver was caused
by industrial action. Nevertheless it was held that, even though X could not be sued
for breach of contract D, could still be liable in tort for bringing the situation about.
Even though they had not caused an actionable breach of the contract, they had
prevented the performance of Xs obligations under the contract. The House of Lords
upheld this approach in Merkur Island Shipping Corp v Laughton [1983] 2 AC 570. See
also OBG Ltd v Allan [2005] EWCA Civ 106 [2005] 2 WLR 1174.
ii. The second line to consider is that connecting D to C. What state of mind does D
have to have? It is not sufficient for D to foresee the breach of Xs contract with C. D
must know that there is a contract and intend to breach it. D need not know all the
details. D may know that there must be a contract between C and X (e.g. a contract
of employment under which C will have to give some period of notice if he wants to
leave) and at least be reckless as to the consequences. See Emerald Construction Co v
Lowthian [1966] 1 WLR 691.
page 129
iii. The third line is that connecting D to X. D acts on C through X and in many cases the
pressure is applied directly by persuasion. Persuasion seems to be used in a very
relaxed sense: it may be sufficient simply for D to tell X facts, knowing that X will be
so angry that he breaks the contract with C.
Where D directly approaches X the means used are not in themselves unlawful.
The illegality lies in the consequence of the broken contract. D may however be
liable even for getting at X indirectly but in that case it is clear that the means
of getting at X must in themselves be unlawful. See JT Stratford & Son Ltd v Lindley
[1965] AC 269. Typically the illegality consists of a separate inducement of breach of
contract by a fourth party Y. (See Diagram 3 below.)
Interference with Cs
existing rights
Aim to affect
Xs behaviour
Aim to damage
Cs rights
D
Diagram 3 The illegality in JT Stratford & Son Ltd v Lindley
In that case D persuades Y to break a contract with X so that X in turn breaks the
contract with C. But the X, Y, D triangle itself must involve illegality. In Middlebrook
Mushrooms v TGWU [1969] ICR 612 the defendants tried to persuade shoppers (Y)
entering a supermarket (X) not to buy the claimants mushrooms: it seems that, even
if the supermarket had cancelled existing contracts with the claimants, there would
have been no action against the defendants.
iv. The final question is whether Ds conduct can ever be justified. Can there be some
objective that entitles a person to bring about a breach of contract? See Brimelow
v Casson [1924] 1 Ch 302 and Edwin Hill & Partners v First National Finance Corporation
[1989] 1 WLR 225.
Activity 10.1
Consider the relationship between the claimant and X: is it a tort:
a. to prevent Xs contract being performed even if X is not personally in breach?
b. to prevent performance of a void contract?
c. to induce X not to enter into a contract with the claimant?
d. to prevent X renewing or extending an existing contract?
Activity 10.2
Consider the relation between the defendant and X:
a. what is meant by inducement?
b. what is the difference between direct inducement and indirect inducement
of breach of contract?
c. If the inducement is merely indirect, what consequences follow?
d. what counts as unlawful means for the purposes of indirect inducement?
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Activity 10.3
Consider the relationship between the claimant and the defendant:
a. how much does the defendant have to know about the claimants contract
or other rights?
b. does the claimant have to intend to bring about interference?
c. In what circumstances might a defendant be justified in inducing a breach of
contract by X?
10.3.2 Intimidation
In this tort there is no interference with genuine pre-existing rights of the claimant: the
claimant is affected in his economic interests by some illegal action or threat, usually
directed at or through a third party.
No illegality
D
Diagram 4 Illegality
i. In this tort there is no illegality involved in the relationship between C and X. X acts
lawfully in relation to C, e.g. by dismissing C from employment in conformity with
the employment contract or by refusing to enter into a contract with C.
ii. I n this tort D must aim at C, that is it must be Ds intention to damage the trade,
business or economic interests of C.
iii. The illegality arises on the line between X and D. D must either act unlawfully
towards X or threaten to do so. The most important illustrations are threats of
violence against X as in Tarleton v McGawley (1793) Peake NP 270 or threats of
breach of contract by D or others as in Rookes v Barnard [1964] AC 1129. What
counts as illegality for these purposes is discussed in the textbooks (e.g. Markesinis
and Deakin, Chapter 15: The Economic Torts, Section 3 Interference with the
claimants trade or business by unlawful means). This suggests that the tort of
intimidation, a term which implies physical threats, should be perceived more
broadly as interference with business by unlawful means. This tort might include
inducing breach of contract by indirect interference. It may include fraud or
misrepresentations by D (see Lonro plc v Fayed [1992] 1 AC 448) or perhaps criminal
activity not involving violence (discussed in Lonrho Ltd v Shell Petroleum Co Ltd [1982]
AC 173).
iv. I t is unclear whether there are any circumstances in which a defendant can have a
defence of justification.
Most cases of intimidation involve three parties as just described. It seems to
be possible to have two-party intimidation, i.e. D directly intimidates C. There is,
Activity 10.4
a. What was the illegality threatened in Rookes?
b. What illegality or threat of illegality is sufficient for the purposes of this tort?
c. Can intimidation ever be justified?
d. What policy reasons are there for allowing or refusing an action in intimidation
if D threatens C (a) with violence or (b) with breach of contract unless C gives D
his (Cs) car?
10.3.3 Conspiracy
Conspiracy falls into two categories: pure purpose conspiracy and unlawful means
conspiracy.
Activity 10.5
a. Why should something be actionable in tort if done by a combination (Quinn)
which is not tortious if done by one person (Allen v Flood)?
b. What is meant by motive or purpose in the tort of conspiracy?
c. In what circumstances can a conspiracy be justified?
d. If two or more people combine to do something which is illegal but not tortious
if done by one person, in what circumstances is that actionable as a tort?
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uu
uu
describe the meaning of intention and motive in the context of these torts
uu
uu
explain the extent to which there has to be a contract and has to be a breach in
the tort of inducing breach of contract
uu
An action for breach of contract (but did the Hirams already have a contract with
the College and was it Mrs Ps aim to break that contract if there was one or merely
persuade the College not to enter into a hiring contract?)
uu
An action in intimidation (but is the League threatening any breach of any contract
of its own with the College?)
uu
Is there any justification (i.e. can the League argue that its desire to promote
decency justifies it in its course of action if it is otherwise a tort)?
page 133
Need to
Need to
revise first study again
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
10.1
Deceit
10.2
10.3
page 134
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
136
11.1
11.2
11.3
11.4
11.5
152
page 136
Introduction
The law of nuisance and the rule in Rylands v Fletcher are specific torts which deal
with problems arising either from disturbances which affect your enjoyment of your
land, or simply disturb you as a member of the public. While private nuisance and the
associated rule in Rylands v Fletcher are confined to interference with your rights in
land, public nuisance has a wider application. It is limited, however, to claimants who
have experienced special damage above and beyond that suffered by the rest of the
public.
As a student, it is important to ascertain exactly when these torts will arise and how
a court might be expected to deal with them. This will involve considerations of
liability (should the court intervene?) and remedies (if so, how?). In particular, as
torts protecting rights to land, private nuisance and the rule in Rylands v Fletcher raise
fundamental questions concerning to how we, as a society, live together. To what
extent should householders have the freedom to do what they want in their own
property? How far should their liberty be restrained by their neighbours? In seeking
to balance the interests of all parties, the courts must make difficult decisions which
directly affect the quality of peoples lives.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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explain the difference between various forms of nuisance and when each form is
applicable
uu
apply the rule relating to the tort of private nuisance and the related tort of the
rule in Rylands v Fletcher and, in particular, be able to identify:
uu
uu
uu
uu
uu
uu
Essential reading
Lunney and Oliphant, Chapter 12: Nuisance and the rule in Rylands v Fletcher.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
private nuisance
uu
public nuisance
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statutory nuisances.
Statutory nuisances are beyond the scope of this course, but it is important that the
student obtains a clear understanding of private nuisance, and, to a lesser extent, the
basic principles of public nuisance.
Activity 11.1
Classify the following nuisances:
a. My neighbour plays the trumpet at all hours and, as a result, I cannot sleep.
b. My neighbour has parked his car across the road outside my house. As a result, I
cannot drive to work.
c. My neighbours barbecue exploded and my garden is now covered with pieces
of broken metal.
Summary
Although the courts frequently draw comparisons between private and public
nuisance, they are in reality very different torts, which seek to protect different
interests and have little in common apart from their name. Private nuisance will be
relevant where the claimant suffers interference with use of his or her land. Public
nuisance has a different concern. This is usually a disturbance which affects the public
in general and the claimant in particular. It is important to ascertain (a) what kind of
nuisance is applicable; (b) whether liability arises; and (c) if not, whether there are any
other relevant torts, for example negligence.
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uu
substantial interference with the enjoyment of the land (for example smells, dust
and noise)
uu
All three forms seek to protect the claimants use and enjoyment of land from an
activity or state of affairs for which the defendant is responsible.
Activity 11.2
Helen lives in her parents house and has suffered due to persistent telephone calls
from a former admirer. Can she sue in private nuisance to get him to stop?
The test is one of reasonable user, balancing the interest of defendants to use their
land as is legally permitted against the conflicting interest of claimants to have quiet
enjoyment of their land. It is not a test of reasonable care. It is no defence to prove
that the defendant had taken all reasonable care to prevent the nuisance occurring:
Rapier v London Tramways Co (1893). The court will look at the result of the defendants
conduct. Such a balancing exercise places a considerable amount of discretion on the
judge. It is impossible to establish a legal rule as to what is a reasonable use of ones
land. As Lord Wright suggests, the most that can be done is to use common sense
and obtain guidance from the many reported cases in this field. It should be noted,
however, that the ordinary use of your home will not amount to a nuisance, even if it
discomforts your neighbour due to poor soundproofing or insulation: Southwark LBC v
Mills; Baxter v Camden LBC (2001).
Protean = varied.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
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Malice
The state of mind of the defendant would also seem to be relevant in assessing
whether the defendants use of his or her land is reasonable. For example, in Christie
v Davey (1893) the plaintiff succeeded in obtaining an injunction when her neighbour,
frustrated by the noise of music lessons in her home, expressed his annoyance by
knocking on the party wall, beating trays, whistling and shrieking. In the words of
North J at 327: what was done by the defendant was done only for the purpose of
annoyance and in my opinion, it was not a legitimate use of the defendants house.
See also Hollywood Silver Fox Farm Ltd v Emmett (1936). The earlier House of Lords case
of Bradford Corpn v Pickles (1895), which questioned the relevance of malice, is no
longer followed.
Activity 11.3
In the following scenario identify factors which would influence a court in deciding
whether an action for private nuisance would succeed:
My neighbour is building an extension to his home for which he has planning
permission. Last weekend it was very sunny and I decided to sunbathe in my
garden. Unfortunately, my neighbour was drilling all weekend and it was
unbearable. I complained and was told that it would not last for long and that I
would have to put up with it. To express my annoyance, I have been playing my
music very loud late at night.
Self-assessment questions
1. Will loud music always amount to a nuisance?
2. How does malice differ from the other five factors described above? How
important do you think it should be?
3. How easy do you think it is to predict the question of liability in private
nuisance?
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
uu
adopting a nuisance, that is, using the state of affairs your own purposes; or
uu
continuing a nuisance, that is, with actual or presumed knowledge of the state of
affairs, failing to take reasonably prompt and efficient steps to abate it.
Thompson, M.P. Coastal erosion and collapsing hotels [2001] Conv 177.
The landlord
There are three situations where the claimant may sue the landlord in addition to any
claim against the tenant:
uu
uu
where the landlord knew or ought to have known of the nuisance before letting
(see Brew Bros Ltd v Snax (Ross) Ltd (1970))
uu
where the landlord covenanted to repair or has a right to enter to repair (see Mint v
Good (1951); sections 11 and 12 of the Landlord and Tenant Act 1985; and section 4 of
the Defective Premises Act 1972).
Most controversy relates to the first category of claims, which raises difficult questions
in practice. The basic rule is that the court will examine the purpose for which the
premises are let and consider whether the nuisance was a necessary consequence
of the letting. If so, the landlord will be liable for authorising the nuisance: Tetley v
Chitty (1986). In practice, complications arise. For example, in Smith v Scott (1973), a
local authority was not found to have authorised the nuisance caused by a family they
housed even when they were known to be a problem family. It could not be said that
the council had authorised the Scotts to commit a nuisance when it had inserted in
their tenancy agreement a clause expressly prohibiting the commission of such acts.
This would seem unduly favourable to the landlord. See also Mowan v Wandsworth LBC
(2001).
Such potential difficulties are manifest in two Court of Appeal decisions of 2000 which
are difficult to reconcile: Hussain v Lancaster CC and Lippiatt v South Gloucestershire CC.
They appear to reach different conclusions, and students should take particular note
of the way in which the Court of Appeal in Lippiatt seeks to circumvent the earlier
decision in Hussain. The question in both cases was whether the local authority would
be liable for the actions of their tenants (in Hussain) or their licensees (in Lippiatt).
Hussain concerned a campaign of racial harassment against a shopkeeper on the
defendants housing estate. It was alleged that the council, as landlords, should have
intervened to prevent their tenants from harassing the Hussains. The Court of Appeal
rejected this claim. The councils standard form tenancy agreement had included a
clause instructing the tenant not to discriminate against or harass any residents or
visitors. In the circumstances, the council could not be said to have authorised these
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acts. Secondly, the tenants actions did not involve a use of their land, which would be
required to render the nuisance actionable.
The Court of Appeal in Lippiatt took a different view. Here, travellers had been allowed
to stay on council land and had caused havoc by trespassing, dumping rubbish and
other acts of vandalism on neighbouring land. In finding the council liable, Hussain was
distinguished on two grounds:
uu
The travellers had used the land to commit the nuisance, here, by using it as a
launching pad to commit acts of nuisance on neighbouring properties.
uu
The council was more likely to be liable for the acts of trespassers and licensees
than tenants (as in Hussain). While tenants have statutory protection, it is easier to
evict trespassers and licensees from land. By failing to do so within a reasonable
period of time, the council found itself liable.
OSullivan, J. Nuisance, local authorities and neighbours from hell (2000) 59 CLJ 11.
Activity 11.4
Hopeful District Council has decided to use a local church hall as a drop-in centre
for drug addicts. It is very successful and attracts a number of people each day.
Unfortunately, local householders have complained that after visiting the drop-in
centre, saying that the addicts have been throwing needles in their gardens and
the burglary rate has increased. Would the Council be liable for the actions of the
addicts in nuisance?
Self-assessment questions
1. Who can be sued apart from the person creating the nuisance? On what basis?
2. What standard of care may be expected from a person who adopts or continues
a nuisance?
11.2.4 Defences?
In advising a potential claimant, it is important to identify potential defences. Only
when these are assessed can the student advise whether a claimant is likely to succeed.
There are a number of defences specific to nuisance in addition to the ordinary
defences of voluntary assumption of risk and contributory negligence. These are:
uu
statutory authority
uu
uu
Statutory authority
If the nuisance is caused by the activities of a local authority (or any other body acting
under statutory powers), it may be a defence that it is acting within the scope of its
authority and therefore authorised by Parliament to act in this way. It is a question
of interpretation of the relevant Act. In the absence of an express provision, the
courts will interpret the Act to ascertain whether authorisation is implied: see Allen
v Gulf Oil Refining Ltd (1981). Where the nuisance is the inevitable consequence of
the performance of the authorised operations, a defence will lie. It is not inevitable,
however, if caused by the negligence of the defendant. Equally, the statute may
contain a nuisance clause providing that nothing in the Act shall exonerate the
undertaker from liability for the nuisance: Department of Transport v N.W. Water
Authority (1983).
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
Twenty years prescription
This provides a defence where the nuisance has interfered with the claimants interest
in land for more than 20 years. Two points should be noted: it does not apply to public
nuisance, and time will only start from the moment the claimant is aware of the
nuisance. See Sturges v Bridgman (1879).
The act of a stranger
See Sedleigh-Denfield v OCallaghan (1940).
Ineffective defences
It is as important for the student to recognise defences which do not work as to
identify those which will oppose the claimants action. The following are defences
which have been rejected by the courts:
uu
coming to a nuisance
uu
social utility
uu
Activity 11.5
Fred owns the local cricket club, which he established five years ago after receiving
planning permission from the local council. It provides entertainment for the
local community and draws in big crowds in the summer. Recently, Mrs Groan has
moved next to the cricket ground and is complaining about the noise. She wants an
injunction to close the club down. She is terrified that she will be hit by a cricket ball,
although no-one has so far been hit by a ball. Fred believes there is only one chance
in a million that this could happen.
Advise Fred.
11.2.5 Remedies
There are three main remedies that the student should consider: an injunction;
abatement; damages. It is important to consider which remedy would best suit the
claimants needs. Does he or she want to stop the nuisance? If so, he or she should
seek an injunction. Where the nuisance is no longer continuing, he or she would
no doubt be seeking damages. In most cases, the claimant is likely to be seeking an
injunction.
Injunctions
The main thing to note here is that the claimant has no right to an injunction; it is a
discretionary remedy. The court may decide to give damages in lieu of an injunction:
s.50 Supreme Court Act 1981 and Shelfer v City of London Electric Lighting Co (1895).
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Thecourt will seek to achieve an equitable result, but note also that in Coventry (t/a
RDC Promotions) v Lawrence [2014] UKSC 13 Lord Sumption said:
In my view, the decision in Shelferis out of date, and it is unfortunate that it has been
followed so recently and so slavishly. It was devised for a time in which England was much
less crowded, when comparatively few people owned property, when conservation was
only beginning to be a public issue, and when there was no general system of statutory
development control.
Abatement
This is a self-help remedy and thus to be exercised with caution. The most obvious
example is where your neighbours branches grow over your fence and you cut them
back. The House of Lords examined this remedy recently in Delaware Mansions Ltd v
Westminster City Council (2002), but it is a remedy of limited utility and realistically
only worth considering in relation to minor problems such as encroaching roots and
branches.
Damages
The most important question in relation to damages is the extent to which the
claimant may obtain compensation from his or her losses. Private nuisance, as a tort
to land, is considered to protect proprietary interests. The rule therefore, as suggested
by the leading case of Hunter v Canary Wharf (1997), would seem to be that the
householder may obtain damages for interference with his or her interest in land, be
it physical or non-physical, but not for personal injury. Damages will be awarded for
the diminution in the value of the land or lesser enjoyment of the use of land or its
fixtures: see Hunter v Canary Wharf, notably Lord Hoffmanns judgment. This contrasts
with public nuisance where the claimant has long been accepted to obtain damages
for personal injury in addition to damage to property, loss of custom, and perhaps
even particular inconvenience caused to the individual. Consequential economic loss
is recoverable: Andreae v Selfridge & Company Ltd (1938). Equally, damage to personal
property would appear to be recoverable: see Halsey v Esso Petroleum Co Ltd (1961)
damage to laundry hanging in the garden. It should of course always be considered
whether the claim satisfies the rules of remoteness, which is the same test as used in
negligence: are damages of a type which can be reasonably foreseen?
Self-assessment questions
1. What remedies exist for private nuisance?
2. Which will generally be the most useful?
3. What limits do the courts impose on damages for private nuisance?
Summary
Private nuisance is a tort to land and protects the claimants use and enjoyment of
land. This involves a balancing exercise between the rights of the claimant and other
householders. The defendant will only be liable if his or her conduct amounts to an
unreasonable use of his or her land. The balancing exercise will be undertaken by
judge who will take note of number of factors which are listed in 11.2.2. The leading
case of Hunter v Canary Wharf has determined that only those with a right to land can
sue. Potential defendants include the creator of the nuisance and, to a lesser extent,
his or her employer, landlord or simply the occupier of the land who has adopted or
continued the nuisance. There are a number of defences which must be considered
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
(and those which must be rejected). It is important to consider carefully what
remedies are available. Will the court grant an injunction? To what extent will a court
award compensation for the claimants losses?
explain the difference between various forms of nuisance and when each form is
applicable
uu
apply the rules relating to private nuisance and, in particular, identify: who can
sue, when a court is likely to find liability, what defences exist and what remedies
exist.
This formula has inevitably been refined by time and now can be reduced to four
points:
uu
the defendant brings on his lands for his own purposes something likely to do
mischief
uu
uu
uu
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11.3.3 Defences
Liability will be reduced or eliminated if the escape is due partly or wholly to the
claimants fault: see Ponting v Noakes (1894) and the Law Reform (Contributory
Negligence) Act 1945, section 1.
Unforeseeable act of stranger
This is a well-established defence. The act must be due to the actions of a third party
over whom the defendant has no control: see Box v Jubb (1879), Rickards v Lothian
(1913) and Ribee v Norrie (2001). The third partys actions must be unforeseeable:
Northwestern Utilities Ltd v London Guarantee Co (1936).
Act of God
Due to the advances in modern technology and science, this defence is largely
defunct. The defendant will not be liable where the escape is due solely to natural
causes in circumstances where no human foresight or prudence could reasonably
recognise the possibility of such an occurrence and provide against it: compare Nichols
v Marsland (1876) and Greenock Corp v Caledonian Rly (1917).
Statutory authority
This operates in a similar manner to that of private nuisance (see 11.2.4). See, generally,
Green v Chelsea Waterworks Co (1894); Charing Cross Electricity Supply Co v Hydraulic
Power Co (1914); and Dunne v North Western Gas Board (1964).
Consent
This may be express or implied and arises generally in the context of escapes from
something maintained for the common benefit, for example, the water tank for a
block of flats. In such circumstances, the tenant is assumed to forgo any rights against
the landlord due to the benefit he or she gains, provided the escape occurs without
negligence: Kiddle v City Business Properties Ltd (1942).
Activity 11.6
Janice plans to build a shed in her back garden and has bought wood and
corrugated iron for this purpose which she leaves in her back garden. One night,
there is a severe storm. Ken, her neighbour, is awoken by the storm and rushes out
into his garden where he is hit by a large piece of corrugated iron which has blown
over from Janices garden. He is now seriously ill. Due to the extraordinary winds,
pieces of wood and iron blow into Kens garden ruining his prize flowers.
Self-assessment questions
1. A bomb explodes in a factory. Does this amount to an escape?
2. Must the escape be foreseeable?
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
3. Does the rule in Rylands v Fletcher amount to a special rule for ultra-hazardous
activities?
Summary
The rule in Rylands v Fletcher consists of four requirements:
i. the defendant brings on his lands for his own purposes something likely to do
mischief if it escapes
ii. which escapes
iii. due to a non-natural use, and
iv. causes foreseeable harm.
Guidance should be sought from the leading cases of Cambridge Water and Transco.
Only those with a right to land may sue and there are a number of defences which are
similar to those seen in private nuisance. The remedy will usually be that of damages,
but it will be confined to proprietary losses and exclude claims for personal injury.
uu
identify who can sue, when a court is likely to find liability, what defences exist
and what remedies exist.
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but the public as a whole and the claimant has suffered special damage.
For the claimant, there are two main concerns: Has the nuisance affected a class?
Can I show special damage? Special damage consists of damage in excess of that
suffered by the public at large. It must be direct and substantial and covers personal
injury, property damage, loss of custom or business and, it is claimed, delay and
inconvenience. If the individual cannot prove special damage, the only other basis
on which an action may be brought in tort is in the name of the Attorney-General by
means of a relator action (for example, see P.Y.A. Quarries above) or by a local authority
under section 222 of the Local Government Act 1972: see, for example, Stoke-on-Trent
City Council v B & Q (Retail) Ltd (1984).
Kodilinye, G. Public nuisance and particular damage in the modern law (1986) 6
LS 182.
Activity 11.7
Catherine works in a city law firm in central London, but commutes from Balham in
South London every day. To reach the station, she must pass under a railway bridge.
Unfortunately due to pigeons roosting in the bridge, her suit has been ruined
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by pigeon droppings. She has complained to the railway company who own the
bridge, but they refuse to do anything about the pigeons and told her to walk faster
under the bridge. She has spoken to other commuters who have suffered the same
problem.
Advise Catherine. (Consider Wandsworth LBC v Railtrack plc [2002] QB 756.)
Self-assessment questions
1. What is meant by special damage?
2. May a claimant without special damage sue in public nuisance?
Summary
Claims relating to public nuisance are usually straightforward. Provided the student
recognises the possibility of a claim distinct to private nuisance and the two criteria
mentioned above are satisfied, few difficulties arise.
explain the difference between various forms of nuisance and when each form is
applicable.
uu
The question here is of compatibility with Article 8 (right to a private and family life)
and Article 1 of Protocol 1 (right to peaceful enjoyment of ones possessions).
It should be noted in consulting any texts on tort that the decision of the European
Court of Human Rights in Hatton v United Kingdom [2002] 1 FCR 732 which favoured
intervention under Article 8 has since been overturned: (2003) 37 EHRR 28.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
Rights against local authorities to force them to stop their tenants creating a nuisance.
She concedes, however, that provided the local authority adopts a decision-making
process which satisfies proportionality and does not impose a disproportionate
burden on the persons concerned, it may escape liability. Hussain is, however, on
appeal to the European Court of Human Rights.
Activity 11.8
a. To what extent are the rights protected by European Convention of Human
Rights applicable to claims for nuisance?
b. What is the potential impact of McKenna?
No feedback provided.
Summary
The potential of the Human Rights Act 1998 to alter the rules of tort law remains to be
seen. Challenges have already commenced. This is a developing area of law, but it is
important to be able to indicate, when necessary, possible areas of change.
identify the potential for change in the law of tort following the implementation
of the Human Rights Act 1998.
Rook, D. Property law and the Human Rights Act 1998: A review of the first year
[2002] Conv 316.
Morgan, J. Nuisance, property and human rights (2002) 118 LQR 27.
Examination advice
The topics of nuisance and the rule in Rylands v Fletcher usually arise in the
same question and have therefore been dealt with together in this chapter. It is
important to identify and distinguish between the different types of nuisance and
recognise just when the rule in Rylands v Fletcher applies. Common errors include
failing to appreciate a potential claim in public nuisance and applying the rule in
Rylands v Fletcher indiscriminately. In relation to private nuisance, it is important
to check that the interference is with an interest in land, the claimant has such
an interest and remember that it may restrict the damages for which he or she is
claiming. If the claimant does not have an interest in land, it will also exclude a
claim under Rylands v Fletcher, but it still may be worth considering an alternative
claim in public nuisance (or even negligence). As always, the student should read
the question carefully and ascertain exactly what he or she is being asked to do: Is
there a cause of action? On what basis? Do you think a court would find liability?
Are there any defences? What remedies are available?
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to the sale have been taking a short cut across Arabellas garden, picking flowers and
digging up plants.
Charles opened a barbecue at the entrance to the field selling hamburgers and hot
dogs. One morning, the barbecue exploded and soot and debris landed in Arabellas
garden.
Advise Arabella.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
d. Defences
There does not seem to be any potential defences to discuss.
e. Remedies
Arabella really would like an injunction to stop the property damage and damages for
the barbecue explosion. She would not obtain any damages for personal injury under
private nuisance or the rule in Rylands v Fletcher. It seems unlikely that social utility
would prevent the court from awarding an injunction (contrast Miller v Jackson (1977)).
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Need to
Need to
revise first study again
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If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
11.1
11.2
Private nuisance
11.3
11.4
Public nuisance
12 Defamation
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
154
12.1
General principles . . . . . . . . . . . . . . . . . . . . . . . . . . .
155
12.2
157
12.3
Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
12.4
Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
172
page 154
Introduction
Defamation is a tort which protects the claimants reputation. As such, it does not
directly protect claimants from intrusion into their private life, but against wrongful
attacks to their reputation. This has a number of consequences. First, although abuse
in private may be hurtful, defamation will only occur when a third party knows of
the allegations that is, when the claim has been published. Further, it is irrelevant
that the defendant did not intend to harm the claimant this will not prevent the
claimants reputation being harmed, although it may, as we shall see, provide the
defendant with a defence.
We must also now look at defamation in the light of the Human Rights Act 1998 and, in
particular, Article 10 which deals with freedom of expression. Paragraph 2 of Article 10
expressly states that the exercise of freedom of expression must be weighed against
the need to protect the reputation or rights of others. The law of defamation must
therefore strike a balance between protecting claimants against untrue statements
which attack their reputation and the freedom of the defendant to express their views.
This becomes particularly significant in relation to the press. Students must therefore
be aware of the human rights issues arising from this particular tort.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
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identify the general principles and distinguish between libel and slander
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discuss the impact of the Human Rights Act 1998 on the law of defamation.
Essential reading
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The second category arises most frequently in practice and should therefore be
particularly noted. It extends to all words likely to disparage the claimants official,
professional or business reputation, whether or not the words relate to the claimants
office, profession, calling, trade or business. Prior to the Defamation Act 2013, words
imputing a contagious or infectious disease likely to prevent people from associating
with the claimant were actionable without proof of damage. However, s.14(2) of that
Act provides that imputation of a contagious or infectious disease does not give
rise to a cause of action for slander unless special damage is shown. Also, under the
common law, either a man or a woman taking an action in slander for the imputation
of unchastity was required to prove damage. The enactment of the Slander of Women
Act 1891 provided that words imputing unchastity or adultery in any woman or girl
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(but not in a man) were actionable per se. This potentially discriminatory provision was
also addressed by the 2013 Act, s.14(1) of which repeals the Slander of Women Act 1891.
Activity 12.1
Identify whether the following statements involve libel or slander.
a. I put on a play in London in which one of the lead characters insults my
neighbour, Albert.
b. I produce a model of Albert in my front garden which I dress as a burglar.
c. I write in chalk on the pavement in front of Alberts house: Albert is a thief!
Self-assessment questions
1. What is the difference between libel and slander?
2. What change has s.1(1) of the Defamation Act 2013 made to trials for
defamation?
3. Can a dead person sue for libel?
4. What are the two forms of slander that are actionable per se?
Summary
The courts distinguish libel from slander, regarding libel as more significant. Libel
is thus a crime and actionable per se. Slander will require proof of special damage,
identify the general principles of libel and slander and distinguish between
them.
Innuendo
Defamation is not confined to direct attacks on the claimants reputation. To protect
the claimants reputation, defamation must also include implied or veiled attacks,
which are generally known as innuendo. There are two types of innuendo: true (or
legal) and false (or popular).
A true innuendo is a statement where the attack is truly hidden in the absence of
special facts and circumstances, which the claimant must show are known by some
of the people to whom the statement is published. Tolley v JS Fry & Sons Ltd [1931] AC
333 is an example of this. Here, a famous amateur golfer alleged that a caricature of
him had appeared without his knowledge or consent in an advertisement for Frys
Chocolate. This, in itself, was not defamatory. However, Tolley claimed that for people
who knew of his amateur status it would imply that, contrary to acceptable amateur
conduct, he had accepted money. The House of Lords held the advertisement to be
capable of bearing the meaning alleged. People knowing of Tolleys amateur status
might think less of him and therefore his reputation would be diminished. Equally, in
Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 there was nothing defamatory in
publishing a photograph depicting Cassidy and a young woman announcing that they
were engaged. However the fact that Mr Cassidy was still married led the majority of
the Court of Appeal to recognise that the words were defamatory of the existing Mrs
Cassidy, on the basis that a reasonable person knowing of their relationship might
assume that she had cohabited with Cassidy outside marriage. This, in 1928, would be
regarded in a negative light. It was no excuse that the newspaper did not know that
Cassidy was already married, and had in fact been told by Cassidy that he was engaged
to the woman with whom he had been photographed.
A false innuendo is one which a reasonable person guided by general knowledge
would infer from the natural and ordinary meaning of the words: Lewis v Daily
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Telegraph Ltd [1964] AC 234. The court does not have to be informed of any specific
facts to draw this inference. For example, in Lewis itself, a paragraph in a newspaper
had stated that the Fraud Squad were investigating the affairs of a company and
its chairman, Mr Lewis. This was in fact true, but it was claimed that the paragraph
contained an innuendo: that the company was being operated in a fraudulent and
dishonest way. The majority of the House of Lords rejected this interpretation. A
reasonable person might infer from the paragraph that the company and Lewis
were suspected of fraud, but would not assume that Lewis and the company were
guilty of such conduct. The general test is therefore: would the reasonable person
view the statement as defamatory on the particular facts of the case? In Chase v
News Group Newspapers Ltd (CA, 2002) Brooke LJ, drawing on Lord Devlins speech in
Lewis, identified three possible defamatory meanings that might be derived from a
publication alleging police investigations into the conduct of a claimant. The Chase
level one meaning is that the claimant was guilty. The Chase level two meaning is that
there were reasonable grounds to suspect that the claimant was guilty. The Chase level
three meaning is that there were grounds for investigating whether the claimant was
guilty. It is important to identify which level the words used can and do mean, as this is
the meaning which must be shown to be true.
Activity 12.2
Barbara has argued with her friend, Charles. He has now put up posters around the
town which make the following statements:
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Barbara has spent some time in the police station, helping the police with their
inquiries.
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Barbara is a thief. But at the bottom of the poster in small letters it says, in
the local play. Do go and see it!
Self-assessment questions
1. What is the meaning of defamatory?
2. What is the distinction between a true and false innuendo?
3. Can a misleading headline always be neutralised by the text of the story?
Group defamation
Where the statement is general, the claimant will not be able to bring a claim for
defamation unless they can show that it relates to them specifically. For example, if we
use the phrase politicians cannot be trusted, there are many politicians and there is
nothing to indicate to which politician it refers. In contrast, if the statement criticises a
large company, for example, Tort Enterprises cannot be trusted, the company, which
has its own legal identity, would be able to sue.
Generally, therefore, criticism of a group of individuals will not support an action
for defamation unless the group is so small that the claimant can establish that the
statement must apply to every member of the class, or the claimant can identify some
particular reference in the statement which singles them out. Therefore in the leading
case of Knuppfer v London Express Newspaper Ltd [1944] AC 116, Knuppfer was unable to
succeed in his claim for defamation. The article in question had criticised the Young
Russian political party Mlado Russ, which had a small British branch of 24 members
of which Knuppfer was the head. He claimed that his position as head was enough to
single him out from the group. The House of Lords disagreed. There was not even a
reference to the British branch in the article, which concerned the party generally. A
reasonable person would therefore not have found Knuppfer to be singled out in the
article.
Activity 12.3
A local newspaper carries the following story:
Corruption in high places. The Tortbury church choir has been pocketing all
your collection money why do you think the vicar looks so happy? Clearly
singers cannot be trusted. You might suppose that his superior would keep a
better eye on him!
Amy (a chorister in the church choir), the vicar, Mrs Bloggs (a keen local singer),
and the vicars superior, the Bishop, all wish to know whether they can sue for
defamation.
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Self-assessment questions
1. Why must the claimant prove that the statement refers to them?
2. Is it true that as long as I refer to a fictional character I cannot be sued for
defamation?
3. Is it impossible to bring a claim for group defamation?
12.2.3 Publication
The tort of defamation seeks to protect the claimants reputation. Statements will only
harm the reputation if third parties are aware of them. Publication, that is communication
of the libel or slander to a third party, is therefore a vital component of the tort.
This is obviously satisfied by the printing of an article in a newspaper or book or shouting
a remark in front of other people, provided the words are intelligible to the third party.
Problems arise, however, when the defendant alleges that they did not intend to publish
the statement and that it was meant to be a private remark between the claimant and
defendant. Again, intention is not a defence. If it is reasonably foreseeable that the
statement might come to the knowledge of a third party, publication will exist. In Theaker
v Richardson [1962] 1 WLR 151, therefore, the defendant was liable for sending a defamatory
letter to a married woman, which had been opened by her husband. The letter, which
had been addressed to the wife, had been sealed in a brown envelope which looked like
an election circular. The court upheld the view of the jury that it was foreseeable that the
husband would open the letter. (Contrast Huth v Huth [1915] 3 KB 323.)
Before the introduction of a single publication rule under s.8 of the Defamation Act 2013,
repeating a defamatory statement was regarded as a further publication, leading to
liability. The Act abolishes the common law principle that every fresh publication gave rise
to a new cause of action. The particular difficulties in respect of liability for repetition of
defamatory statements for those operating online archives can be seen in Loutchansky v
Times Newspapers Ltd (2002) below.
The effect of s.8 will limit such claims against a single defendant to publications that are
not substantially the same as the original defamatory publication. This prevents an action
in relation to publication of the same statement by the same publisher; it does not apply
where the manner of the subsequent publication is materially different from the manner
of the first publication. Furthermore, where a defamatory statement is published, it is no
defence for the defendant to claim that they are merely repeating what they heard from
another person. Where an unauthorised repetition of defamatory material takes place
the publication will normally be treated as a novus actus interveniens, breaking the chain of
causation. However, in certain circumstances the original defamer will remain liable if the
republication is, on the facts, the natural and probable result of the original publication:
Slipper v BBC [1991] 1 QB 283. The Court of Appeal in McManus v Beckham [2002] 1 WLR 2982
doubted whether the Slipper test was fair to the defendant.
Activity 12.4
Has publication occurred in the following examples?
a. Anne sends a postcard to Boris, which states You are utterly dishonest.
b. Charles sends a letter to David marked private and confidential in which he
accuses David of adultery. The letter is opened by Davids wife.
c. Elizabeth tells Fiona that Geraldine is a thief. Fiona, a renowned gossip, tells
everyone in the village.
d. Harry, the famous footballer, walks into Ivors shop and announces your football
boots are rubbish. James, the keen reporter, writes this down and his article
appears in the local newspaper.
Self-assessment questions
1. Why must an article be published to be defamatory?
2. I leave a letter in a locked drawer in which I accuse Dominic of being a cheat. My
cleaner breaks into the drawer and reads the letter. Have I published this letter
to my cleaner?
3. Am I liable for simply repeating a defamatory statement?
12.3 Defences
There are a number of defences to defamation. They provide a broad, if complicated,
basis on which the defendant can justify publication on the basis of freedom of
expression, truth or consent. We will survey them below, but you should take
particular note of truth (12.3.1) honest opinion (12.3.2), publication on a matter of
public interest (12.3.3) and qualified privilege (12.3.4). Recent case law has been
particularly active in the field of qualified privilege, in which the courts have explored
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the impact of the Human Rights Act 1998 on the tort of defamation. We have already
seen that, under the Defamation Act 2013, claimants are now required to show that
they have suffered serious harm before suing for defamation, a single publication
rule has been introduced and the presumption in favour of a jury trial has been
removed. We will now consider the provisions in the Act relating to existing defences
to defamation and the introduction of new defences to protect operators of websites
that host user-generated content.
Activity 12.5
Keith writes an article in which he accuses Lenny, a well-known amateur athlete, of
writing a book for profit. Lenny responds by writing a letter to Keiths newspaper in
which he accuses Keith of being a libellous journalist.
In fact, Keith has experienced difficulties in proving whether Lenny was writing the
book for profit, but has discovered that he accepted money for wearing a particular
type of footwear. Keith has once been sued for libel, but the claim was settled prior
to trial. Can either of these facts serve to justify the allegations made by Keith and
Lenny?
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could have been held by an honest person on the basis of any fact which existed at
the time the statement was published.
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the defendant reasonably believed that publishing the statement was in the public
interest.
Activity 12.6
Mavis publishes the following article:
MORE EVIL THAN NORRIS: Oliver is an unrepentant racist and should be fired
from his job. Such people do not deserve to work in our society.
Norris and Oliver have stated their intention to sue Mavis for defamation. Can she
rely on the defence of honest opinion? Norris is a television presenter, who often
expresses controversial views in his television programme. Oliver had earlier
written an article in the same newspaper in which he had expressed strong views
against immigration. Last year, Oliver and Mavis had applied for the same job, which
was given to Oliver.
Self-assessment questions
1. When can a defendant rely on a defence of truth?
2. Must the defendant prove that every allegation is true?
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explain when the defendant can successfully rely on the defences of justification
and fair comment.
12.3.4 Privilege
Absolute privilege
This can be dealt with briefly. There are two types of privilege in English law: absolute
and qualified. Absolute is the stronger form of privilege and applies on occasions
where the need to protect freedom of speech is so important as to create an absolute
defence to any action for defamation, irrespective of the motives or words of the
author. Examples include statements made in Parliament by MPs (see Hamilton v Al
Fayed [2000] 2 WLR 609 and s.13 Defamation Act 1996), reports and papers ordered
to be published by either house of Parliament, judicial proceedings, fair and accurate
contemporaneous reports of UK court proceedings (s.14 Defamation Act 1996) and
communications between high officers of state (Chatterton v Secretary of State for India
[1895] 2 QB 189).
Qualified privilege
This is a weaker form of privilege. It will only apply on occasions where it is desirable
that freedom of speech should be protected, but not where the author is activated by
malice: see Horrocks v Lowe [1975] AC 135.
It is for the judge to decide whether the occasion is a privileged one, and whether a
reasonable jury could find that the authors dominant motive was malice. The jury will
decide whether any allegation of malice has been proved.
Qualified privilege exists at common law and under the Defamation Act 1996.
Qualified privilege at common law
The courts look for two requirements:
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See Adam v Ward [1917] AC 309; Toogood v Spyring (1834) 1 CM&R 181; Osborn v Boulter
[1930] 2 KB 226; Watt v Longsdon [1930] 1 KB 130; Bryanston Finance Ltd v de Vries [1975]
QB 703; and Kearns v General Council of the Bar [2002] 4 All ER 1075.
Therefore, if my old employer writes a reference for me and sends it to my new
employer, that reference will be protected by qualified privilege. My former employer
is under a social duty to provide such a reference. My new employer has a keen
interest in receiving the reference. Both requirements are thus satisfied, and my
former employer will be protected against a claim for defamation unless the reference
is written with malice: Spring v Guardian Assurance [1995] 2 AC 296.
As seen above, s.4 of the Defamation Act 2013 creates a new defence for publication on
a matter of public interest. The Act abolishes what is known as the Reynolds defence
(journalistic qualified privilege): Reynolds v Times Newspapers Ltd [2001] 2 AC 127. The
courts will now be required to apply the words used in the statute, but it does not,
for example, define what is meant by the public interest so the discussion of the
principles established in Reynolds remains relevant because current case law will
constitute a helpful (albeit not binding) guide to interpreting how the new statutory
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defence should be applied. It is expected that the courts will take the existing case law
into consideration where appropriate.
In Reynolds the House of Lords firmly rejected any general head of qualified privilege.
The court would instead look at each case individually. However, Lord Nicholls did
give some guidance. In future, courts should consider a number of factors (which are
not exhaustive) in deciding whether a duty to publish political discussion could be
established, namely:
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the seriousness of the allegation the more serious the charge, the more the
public is misinformed, and the individual harmed, if the allegation is not true
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its source
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the status of the information, that is, how reliable is the report?
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whether the gist of the claimants side of the story has been told
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The Reynolds test has been applied subsequently in a number of cases. It is clearly
not an easy test to satisfy. The test is one of responsible journalism and it is for the
newspaper, with reference to the 10 criteria listed above, to demonstrate to the
court that they deserve the defence of qualified privilege. See Loutchansky v Times
Newspapers Ltd (No 1) [2001] 4 All ER 115; Loutchansky v Times Newspapers Ltd (No 2)
[2002] QB 783; Bonnick v Morris [2003] 1 AC 300, PC; and Jameel v Wall Street Journal
Europe SPRL [2005] EWCA Civ 74, Independent, 9 February 2005, CA. In Flood v Times
Newspapers Ltd [2012] 2 AC 273 the Supreme Court provided guidance on what is
required to meet the test.
Qualified privilege under statute
This may be found under s.15 and Schedule 1 of the Defamation Act 1996. Section 15
provides that publication of any report or statement contained in Schedule 1 of the
Act is privileged unless published with malice. Schedule 1 is divided into two sections.
Part I deals with reports which are privileged without explanation or contradiction.
Part II deals with reports which are privileged subject to explanation or contradiction,
that is, that qualified privilege may be lost if it is proved that the defendant has been
requested, by the claimant, to publish in a suitable manner a reasonable letter or
statement by way of explanation or contradiction, and has refused or neglected to do
so: s.15(2). See McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277.
Trindade, F.A. Defamatory statements and political discussion (2000) 116 LQR 185.
Williams, K. Defaming politicians: the not so common law (2000) 63 MLR 748.
Loveland, I. Freedom of political expression: who needs the Human Rights Act?
[2001] PL 233.
the defendant is not the author, editor or commercial publisher of the statement
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It thus serves to protect parties involved in the distribution process, who inadvertently
become involved in the publication of defamatory material, provided that they
undertake reasonable care.
Further, ss.1(3)(a)(e) provide a non-comprehensive list of individuals who do not
qualify as authors, editors or publishers. See Godfrey v Demon Internet Ltd [1999] 4 All
ER 342.
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to publish the correction and apology in a manner that is reasonable and practicable
in the circumstances
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to pay the claimant such compensation (if any) and such costs as may be agreed or
determined to be payable.
If an offer to make amends under s.2 is made, but not accepted, it is a defence unless the
defendant knew or had reason to believe that the statement referred to the claimant and
was false and defamatory of them: see s.4, as applied in Milne v Express Newspapers (No 1)
[2004] EMLR 24, and Horrocks v Lowe [1975] AC 135. The person making the offer need not
rely on it as a defence, but if they do, s.4(4) specifies that they may not rely on any other
defence. In any event, any offer may be relied on in mitigation of damages: s.4(5).
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what specific aspects of the statement are untrue or comment based on untrue facts.
The website operator is then required to communicate the complaint to the poster of
the statement (if it has the means to do so). The poster then has a chance to respond and
provide their contact details.
12.3.8 Consent
It is a defence if the claimant has expressly or impliedly consented to the publication of
the defamatory matter: Cookson v Harewood [1932] 2 KB 478n; Chapman v Lord Ellesmere
[1932] 2 KB 431.
Activity 12.7
The Daily Scandal publishes the following story:
Ex-prime minister Tony Brown in funding scandal. Just where did those party
millions go? Yesterday, Mr Brown was not answering his telephone, despite
the continued efforts of our journalists. Oh no, Mr Brown. Just what have you
been up to??!!!
The story is later found to be untrue. It was based on allegations by Mr Browns
former Parliamentary Secretary who had been dismissed for dishonesty. She has
now withdrawn the comments and left the country. The Daily Scandal wish to rely on
qualified privilege.
Self-assessment questions
1. When can a defendant rely on absolute privilege?
2. How can a claimant undermine a defence of qualified privilege?
3. When can a newspaper rely on s.4 of the Defamation Act when printing a story
involving a political scandal?
4. When will the defence of innocent dissemination apply?
5. When can the defendant use an offer to make amends as a defence?
explain when the defendant can successfully rely on the defences of absolute
and qualified privilege
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discuss the relevance of the Human Rights Act 1998 in this context.
12.4 Remedies
There are two main remedies: damages and injunctive relief. Damages may include an
award for aggravated damages (where the defendants conduct has led to additional
mental distress) and exemplary damages (where the defendant deliberately sets out
to profit at the expense of the claimants reputation). Attention should also be drawn
to ss.12(1) and (4) of the Human Rights Act 1998 which ask the courts to have particular
regard to freedom of expression when considering whether to grant a remedy which
might affect this right.
In the past a significant issue in the law of defamation was that the level of damages
was set by the jury. Concern had been expressed that the jury, despite judicial
direction, was not the best body to assess damages. After a series of notoriously high
awards, there have been a number of reforms. First, s.8 of the Courts and Legal Services
Act 1990 has empowered the Court of Appeal to substitute its own figure of damages
for that of the jury without the need for a retrial. Secondly, the cases of Rantzen v
Mirror Group Newspapers (1986) Ltd [1994] QB 670 and John v Mirror Group Newspapers
Ltd [1997] QB 586 sought to increase judicial guidance. Most recently, the Defamation
Act 2013 has provided that future trials in defamation will take place without a jury
unless the court orders otherwise. Where a defamation trial is decided by a jury, the
jury will now be directed to seek guidance from previous Court of Appeal decisions
under s.8 of the Courts and Legal Services Act 1990, and to consider the purchasing
power of the award and whether it was proportionate to the damage suffered.
Reference may also now be made to the level of damages awarded in personal injury
cases. See also Kiam v MGN Ltd [2003] QB 281 and Grobbelaar v News Group Newspapers
Ltd, HL [2002] 1 WLR 3024. In Cairns v Modi [2013] 1 WLR 1015 the Court of Appeal held
that reference to pain and suffering in personal injury cases could be made when
considering damages in libel cases.
page 167
page 168
The courts are, however, reluctant to grant injunctions prior to trial (interlocutory
injunctions). This would amount to a restriction of freedom of speech without the
benefit of full consideration by the court. As stated in Bonnard v Perryman [1891] 2 Ch
269, the court has the jurisdiction to restrain by injunction the publication of a libel,
but the exercise of this jurisdiction is discretionary. An interlocutory injunction should
therefore not be granted except in the clearest cases, and should not be granted
when the defendant swears that they will be able to justify the libel, and the court is
not satisfied that they may not be able to do so. This was supported by the Court of
Appeal in Holley v Smyth [1998] QB 726. The courts discretion to grant interlocutory
relief would not ordinarily be exercised to restrain a libel where the defendant had
a defence or claimed justification, unless the claimant had proved that the libel was
plainly untrue.
Claims may also be dealt with summarily under ss.810, Defamation Act 1996. Where
the claimant has no realistic prospect of success and there is no reason why the claim
should be tried, the claim will be dismissed: s.8(2). Where it appears to the court that
there is no defence to the claim which has a realistic prospect of success and there
is no other reason why the claim should be tried, in contrast, the court may give
judgment and summary relief to the claimant: ss.8(3) and 9.
Self-assessment questions
1. Who assesses the level of damages?
2. What guidance may a judge give the jury?
3. Will it be easy to obtain an injunction to prevent publication of a forthcoming
story which I believe to be defamatory of me?
Summary
The remedies given by the court are obviously important. They seek to re-establish the
reputation of the claimant. Although a large damages award may express the jurys
indignation as to how the newspaper has treated the claimant, the courts have been
careful to emphasise that damages should be compensatory and any larger award
must be justified as exemplary damages.
identify which remedies exist and any potential difficulties arising from the
award of damages.
Examination advice
The topic of defamation may appear in the form of an essay or a problem question.
An essay will usually focus on the interest protected by defamation (the reputation)
and compare it with provisions which provide for freedom of expression (notably
Article 10 of the European Convention on Human Rights, now implemented in UK
law by the Human Rights Act 1998). Problem questions tend to focus on various
statements and whether they are defamatory, refer to the claimant, published, and
require the student to identify any defences which may exist. Students must also
be careful to distinguish defamation from claims for harassment, injury to privacy
rights and malicious falsehood. Harassment is now covered by the Protection from
Harassment Act 1997. Privacy is protected by breach of confidence, and malicious
falsehood deals with false statements of fact which can be shown to damage the
business interests of the claimant: Khodaparast v Shad [2000] 1 WLR 618.
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page 169
page 170
It must show that the words used were substantially true: Alexander v North Eastern
Railway Co (1865) 6 B&S 340. Even if the statement simply referred to Maisie having
cosmetic surgery, it cannot be said to be substantially true. There is a considerable
difference between surgery to her face and figure and the removal of a small mole. In
any event, the Chronicle must justify every allegation (or sting) which arises from the
statement: Cruise v Express Newspapers plc [1999] QB 931. Suggestions of dishonesty are
clearly not justified by the fact that she had minor cosmetic surgery in the past.
Other defences such as honest opinion and qualified privilege might also be
considered. An honest opinion must be based on a substantum of fact (see Kemsley
v Foot [1952] AC 345). There is one fact the surgery on the mole and politicians are
a matter of public interest, but was the opinion, however exaggerated, obstinate or
prejudiced, honestly held by the person expressing it? An honest belief in the truth of
the opinion must be shown and the presence of malice would undermine the defence.
Here, the words used go far beyond a comment on minor cosmetic surgery and
must throw doubt on this defence. In the context of the sensationalist nature of the
journalism, the new defence for publication on a matter of public interest (s.4 of the
Defamation Act) is also likely to fail.
On that basis, the statement is defamatory, refers to Maisie, has been published and
the Chronicle has no good defence to the action.
c. Then theres Tom Toyota. No orator he! His hackneyed phrases and turgid delivery
must make him a prime candidate for most boring politician of 2000.
Again, we can follow the basic structure of our answer in relation to Maisie. Does this
statement tend to lower the plaintiff in the estimation of right-thinking members
of society generally? The allegation is that he is a poor speaker and boring. Has
the statement caused serious harm to his reputation? Would we as right-thinking
members of society think less of a politician for being a poor speaker and dull? Are
there not excellent politicians who work hard for their country who are poor speakers
and rather dull? It might be questioned whether this is defamatory.
Again, the statement clearly refers to Tom (he is named) and has been published (it is
on the front page of a newspaper). We now need to look at defences.
If it is defamatory to call Tom a poor speaker (which is questionable), defences will arise
if in fact Tom is a poor speaker. The Chronicle will be able to rely on truth and honest
opinion.
d. Youre left with Horace Honda. Just what is Horace whispering into the ear of the
lovely girl who calls him daddy but isnt his daughter (see photo left). For full byelection coverage, see page 7.
This is clearly an innuendo: that Horace is having a relationship with a woman who
is much younger than him: see Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331.
However, we are later told that The coverage on page 7 explains that the girl in the
photograph is Horaces niece, Jackie, whom he and his wife brought up after her parents
were killed in an air crash when she was aged eight. With this additional information,
the statement no longer harms Horaces reputation. In other words, the coverage
on page 7 neutralises the defamatory statement. However, the explanation is not on
the front page, but on page 7. The front page did not even indicate that the story is
continued on page 7, but merely stated that full by-election coverage may be found
there. This would seem to fall within the warning in Charleston v News Group Newspapers
Ltd [1995] 2 AC 65 that if the explanation was not immediately apparent to the reader,
the courts would find the statement defamatory. Here, the court will not expect
the average reader to turn diligently to page 7 and would find the statement to be
defamatory.
Again, the statement clearly refers to Horace (he is named) and has been published.
We now need to look at defences.
Conclusion
In summary, Maisie, Horace and Jackie would appear to have good claims in
defamation. The claim of Tom seems more problematic.
page 171
page 172
Need to
Need to
revise first study again
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If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
12.1
General principles
12.2
12.3
Defences
12.4
Remedies
13 Miscellaneous
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.1
174
189
page 174
Introduction
This chapter considers three topics of general importance. The first is vicarious
liability, where an employer in the usual case is held liable for torts committed
by an employee. The second is a range of defences on the grounds of contributory
negligence, consent to the tort, and participation in an illegal action. Finally, we look
at remedies for torts: damages, the use of structured settlements, and the effect on
damages where one of the parties dies.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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suggest reasons why the law should hold employers liable for certain torts
committed by their employees
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explain the provisions of the Law Reform (Contributory) Negligence Act 1945
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explain the basis on which the courts reduce damages as the result of
contributory negligence
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explain when a defendant may escape liability by showing that the claimant had
consented to run the physical risk of injury
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explain the purposes of damages in tort for personal injuries and the general
principles according to which they are assessed
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explain the effect on compensation for personal injuries if the victim dies.
Essential reading
The employer has established a business and derives the economic benefits of
commercial success: the employer ought therefore to be liable for damage caused
by the business. The employer has created a risk and should be answerable if the
risk materialises. Similar arguments have been used to justify other examples of
strict liability, such as consumer protection and liability for animals (see Chapter 8).
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The employer is more likely to take staff training and supervision seriously. Even
though the employer has no defence based on care taken, there may be an overall
advantage.
page 175
page 176
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page 177
e. There is a particular problem with borrowed servants, where for example one
company supplies a crane and its driver to work for another company. It is plain
that the driver remains an employee, but of which company? The presumption
seems to be that the driver remains the employee of the lending company unless
this is clearly displaced on the facts: Mersey Docks & Harbour Board v Coggins and
Griffiths (Liverpool) Ltd [1947] AC 1; Bhoomidas v Port of Singapore Authority [1978] 1 All
ER 956.
The effect of the contract between the two competing employers has been considered
in Phillips Products v Hyland [1987] 1 WLR 659 and Thompson v T. Lohan (Plant Hire) Ltd
[1987] 1 WLR 649.
f. There is a special case of vicarious liability called casual delegation. It has been
applied only in the case of a motor car: the courts have held the owner liable for
the negligence of a driver who is driving with the owners permission and at least
to some extent for the owners purposes. It is illustrated by Ormrod v Crosville Motor
Services Ltd [1953] 1 WLR 1120, but an attempt by Lord Denning to create a doctrine
of the family car (under which the owner would be liable whichever member of
the family was driving negligently) was rejected by the House of Lord in Morgans v
Launchbury [1973] AC 127.
iii. The tort must have been committed in the course of employment
This proposition is rather obvious, but it has proved difficult to identify a test that will
distinguish between those torts that do occur in the course of employment and those
that do not. The modern tendency of the courts seems to be in borderline cases to
lean in favour of imposing vicarious liability if that is possible.
a. The Salmond test
The test set out by Sir John Salmond in his textbook on tort has been commonly used
by the courts:
A master is liable even for acts which he has not authorised, provided that they are so
connected with acts which he has authorised that they may be rightly regarded as modes
although improper modes of doing them.
The explanation and application of this test can be illustrated by the following cases:
a. The general approach. See: Century Insurance Co Ltd v Northern Ireland Road Traffic
Board [1942] AC 509; Beard v London General Omnibus Co [1900] 2 QB 530; General
Engineering Services Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69.
b. A number of cases have dealt with the problem where an employee has deviated
from the course of employment. Was the deviation sufficient to take the employee
out of the course of employment? See: Williams v Hemphill 1966 SLT 259; Storey v
Ashton (1869) LR 4 QB 476; Ilkiw v Samuels [1963] 1 WLR 991.
c. Generally an employee is not in the course of employment when driving to and
from the place of work, but there are exceptions depending on the nature of the
job and particular contractual arrangements: Smith v Stages [1989] 1 All ER 833.
page 178
The House emphasised the close connection between the acts of the warden and
the job he was employed to do. A number of judges noted that the warden was
the very person selected to discharge the employers own pastoral responsibilities
to the children. This sounds very like the language of a non-delegable duty of care
(see Chapter 6) rather than the traditional language of vicarious liability and hints
at some fault on the part of the employer.
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Which employees might fall within the Lister test? First, there are some dicta in
the case itself. In particular it was said that there would be no vicarious liability if
the abuse had been perpetrated by a caretaker or handyman at the school (whose
duties involve looking after the property rather than the pupils). The scope of Lister
has been considered in two cases:
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Mattis v Pollock [2003] EWCA Civ 887: [2003] 1 WLR 2158 (vicarious liability
imposed)
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Attorney-General of the British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1
WLR 1273 (vicarious liability rejected, but employer primarily liable).
The above cases should now be considered in the context of the propositions set
out in Various Claimants v Catholic Child Welfare Society [2012] 3 WLR 1319, where
Lord Phillips noted that: The law of vicarious liability is on the move. In future
the test will not simply focus on whether the employee commits a wrongful and
unauthorised mode of doing some act authorised by the employer, but will take
an evaluative approach and consider whether the criminal acts are so closely
connected with what the employee was employed to do that it would be fair and
just to hold the employer vicariously liable.
page 179
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suggest reasons why the law should hold employers liable for certain torts
committed by their employees
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Activity 13.1
a. B works as a van-driver delivering goods for C Ltd. He owns the lorry and licences
it; he wears C Ltds overalls and there is a removable sign on the van bearing C
Ltds name; he has no fixed working hours and can deliver the goods when he
wishes within a given period. He carelessly knocks down and injures A while
delivering goods. Is C Ltd vicariously liable?
b. D is a van driver employed by E Ltd. While on his rounds, he stops to collect his
own television from a repair shop. He parks his van carelessly and it moves off,
injuring F. Is E Ltd vicariously liable?
13.2 Defences
Essential reading
page 180
a. The claimant must have failed to take reasonable care for his own safety, but no
question of a pre-existing duty of care arises. The contributory negligence must
be a cause of the damage and the damage must be a reasonably foreseeable
consequence of the contributory negligence. The claimants negligence may have
contributed to the accident itself (e.g. a motor cyclist failing to keep a proper
look-out for other vehicles) or may have contributed only to the injury (e.g. a motor
cyclist failing to wear a crash helmet). See: Jones v Boyce (1816) i Stark 493; Jones v
Livox Quarries [1952] 2 QB 608; Froom v Butcher [1975] 3 All ER 520.
b. The apportionment works in this way. The judge must first determine the amount
of damages payable if the claimant had not been negligent and then deduct
a certain percentage to reflect the claimants contribution. It seems that the
percentage may reflect both the relative potency of the claimants and defendants
actions in causing the damage and the relative blameworthiness of the parties.
There is modern authority for the view that damages cannot be reduced by 100
per cent, although of course another defence may be available that achieves that
effect. See also Stapley v Gypsum Mines [1955] AC 663; Pitts v Hunt [1991] 1 QB 24;
Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360.
Notice that in the Gypsum Mines case the result might have been different if the
defendants had relied on the defence that follows in the next section.
13.2.2 Consent
At first sight it seems obvious that someone who consents to the tort should not then
turn round and sue. In practice however, it is complex and controversial. First, three
introductory discussion points:
a. The role of consent varies from tort to tort. It has already been referred to in the
torts of battery (Chapter 9) and defamation (Chapter 12). In those torts, however,
the application of the defence is quite straightforward. The patient who consents
to the incision and excision necessary to remove an appendix is agreeing to the
very thing that would otherwise be a battery. The position is very different when
the tort involved is negligence or a tort of strict liability, where it is usually referred
to as assumption of risk. Here the claimant cannot usually know in advance what is
going to happen in the way that a patient awaiting surgery does, and therefore the
application of the defence has to be carefully controlled.
b. The defence of volenti non fit iniuria cannot operate until there has been a tort.
This seems obvious, but is often overlooked in examinations. Take the position of a
claimant who works in a dangerous job say on a fishing boat in the deep oceans. If
the employers observe all safety regulations and take the reasonable care required by
the common law, then no tort has been committed. That is why the claimant cannot
sue, and not because of any consent to incur risks. The issue of consent only arises if
there has been a breach of regulations or of the common law duty, and it is argued
that the claimant knew of this breach and nevertheless agreed to face that risk.
c. Consent can operate in two quite different ways and they can be illustrated by
sections 2(1) and 2(5) of the Occupiers Liability Act 1957 (see Chapter 6). Section
2(1) envisages the occupier excluding liability by a notice saying Enter at your own
risk, so that the visitor runs the legal risk of being unable to get compensation for
any injuries sustained. Section 2(5) envisages the visitor incurring the physical risk
of injury by, e.g. crossing a defective bridge. These two strands will be considered
separately.
Exclusions of liability
Both the common law and statute recognised the right of a defendant to exclude
liability by a suitably worded notice. In addition to the Occupiers Liability Act it was at
one time common for motorists to attach notices to the dashboard of the car saying
that passengers travelled at their own risk. (The reason was that at that time drivers
were compelled to insure against liability to third parties outside the car but not
liability to passengers. That has not been the law since 1971.)
page 181
page 182
13.2.3 Illegality
What should happen if the claimant is engaged on some illegal (perhaps criminal)
activity, and this illegality is a cause of the injuries sustained? An instinctive answer
might be that no compensation should be available, but in fact illegality seldom
operates as a complete bar to liability.
Activity 13.2
Before you consider the few cases that there are, ask yourself in which, if any, of
the following examples, the claimant should be denied any compensation (in
all of them the damages might at least be reduced on the basis of contributory
negligence).
a. Carol, knowing that her car has defective brakes, is unable to avoid hitting a car
driven by Daniel that goes through red traffic lights in front of her.
b. Cedric and Damian are robbing a bank: Cedric is injured when Damian uses too
much explosive to blow open the safe door.
c. Charles, having robbed a supermarket, is injured when Della drives the getaway
car too fast.
d. Chloe and Dawn are driving from London to Manchester to rob a bank: Chloe is
injured when Dawn crashes the car a few miles outside London.
e. Colin, a passenger, exhorts Deirdre, the driver, when they are stuck in a traffic
jam to get past by driving on the wrong carriageway against oncoming traffic.
f. Cuthbert is burgling Daphnes house and is injured when Daphne fires a gun,
intending to scare him.
Feedback: These are primarily examples for you to think about whether you believe
that the injured persons should have a claim or you would be shocked if they did.
Some of the examples arise or are discussed in the cases that follow.
In cases in which the courts have denied liability on the basis of the claimants own
wrongdoing, two lines of reasoning have been followed:
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On the particular facts there is no relevant basis on which the appropriate standard
care of could be determined. See Pitts v Hunt [1991] 1 QB 24; Revill v Newberry [1997]
QB 567; Clunis v Camden and Islington Health Authority [1998] 2 WLR 902; Vellino v
Chief Constable of Greater Manchester Police [2002] 1 WLR 218; Joyce v OBrien [2013]
PIQR p18.
This whole question has been considered by the Law Commission (Law Com:
Consultation Paper No 160: The Illegality Defence in Tort).
explain the provisions of the Law Reform (Contributory) Negligence Act 1945
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explain the basis on which the courts reduce damages as the result of
contributory negligence
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explain when a defendant may escape liability by showing that the claimant had
consented to run the physical risk of injury
page 183
Activity 13.3
a. A and B are employees of X Ltd. They know that they are required to wear heavy
boots at their place of work, but they find them uncomfortable and decide not
to wear them. B spills molten liquid on As foot. Has A a claim against X Ltd?
b. C and D set off in Ds car to rob a bank. As the car approaches the bank, Ds foot
slips off the brake and the car hits a lorry. C is seriously injured. Has he a claim in
tort?
c. Look again at the cases on rescuers (Chapter 5). Can a claim by a rescuer be
defeated by a plea of contributory negligence or assumption of risk?
d. E and F have both been smoking cannabis. This makes them late for an
appointment, so they agree to travel as fast as they can on the motorway
in order to get there on time. F runs off the road and injures E. Discuss the
application of all the foregoing defences to these facts.
e. Facts as in (d), but E and F take a motorboat out on a lake. F crashes the boat into
a jetty and injures E.
13.3 Remedies
Essential reading
Lunney and Oliphant, Chapter 16: Damages for personal injury and Chapter 17:
Death and damages.
13.3.1 Introduction
Damages are the commonest remedy in tort.
In earlier chapters (e.g. Chapter 4) consideration has been given to questions of
remoteness of damage. This section is concerned with a different question. Once it is
decided that damages are recoverable for a particular loss, how is the actual sum of
money determined?
The calculation of damages in tort is a complex and detailed subject. It is important to
explain the limits of what you are expected to know.
You are likely to be asked one of the two following types of question:
a. To make a general critique of the way in which damages are assessed for personal
injuries.
This can be considered at three levels:
i.
ii. Should the system be changed so that, for example, damages will be paid in
monthly instalments depending on how the claimants circumstances are at
the time of payment?
iii. Should the system of damages for personal injuries be abolished and absorbed
within the social security system, or is it right that victims of torts should be
treated differently from those who suffer injury, illness or unemployment in
other ways?
page 184
b. A request to outline the way in which damages will be assessed for the benefit of
individual claimants in problem questions.
Here is an example of the level of detail that may be expected. There is an important
question of principle about how far tort damages should be integrated with social
security payments. It is important to know that the law now allows for the state to
recover some of what it has paid in benefits (see below) but it is not necessary to know
the details or mechanisms or any differences between different kinds of social security
payments.
13.3.2 Principles
1. The principles for the assessment of damages for personal injuries are laid down
by the common law with some statutory modifications (e.g. in the Administration
of Justice Act 1982 and the Damages Act 1996). A useful case to illustrate the heads
of liability and the policy issues at stake is Lim Poh Choo v Camden and Islington Area
Health Authority [1980] AC 174.
In this case a successful professional woman, unmarried and with no dependants,
suffered catastrophic injuries that left her intermittently conscious but with an
expectation of living for many years.
2. The object of the damages is to place the claimant in the position he or she would
have been in if the tort had not occurred.
3. Compensation is based on what the claimant has lost and not on the claimants
present needs. This troubled Lord Denning in a number of cases such as Lim Poh
Choo in that Dr Lim was awarded a very large sum of money (and nowadays it would
be a great deal larger) that she could never spend and of which a large part would
go on her eventual death under a will drawn up many years earlier or on intestacy
to people who might have taken no interest in her welfare in the meantime.
4. Damages are awarded once and for all as a lump sum and the calculation cannot be
reopened. There is a very limited power to award provisional damages (i.e. damages
calculated at the trial but only payable if certain changes in the claimants condition
occur in the future) in the Administration of Justice Act 1982 s.6 and the Damages
Act 1996 s.3. There is also the possibility of a structured settlement described
below. None of these systems provides for a review of damages if the claimants
circumstances change. So probably many claimants get too much, because
they recover their health or find well-paid work or die, and others get too little
because their condition is worse than was thought. The calculation of damages is
speculative. The court or the parties advisers have to speculate about:
a. whether the claimants condition will improve or deteriorate
b. what the claimants future would have been if the injuries had not occurred.
Pecuniary damage
Compensation is paid for money that the claimant has lost because of the tort and for
expenditure that the claimant has incurred as a result of the tort.
Losses sustained
The most obvious loss is that of income if the claimant is unable to work for some time
or at all or is forced to move to easier and less well remunerated employment. The
these sums are deducted from the damages payable by the tortfeasor (snag: the
tortfeasor gets the benefit of the victims prudence or of others generosity)
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the claimant keeps these other benefits and gets damages in full (snag: the claimant
is overcompensated)
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the tortfeasor pays back to the donors the sums received by the victim from other
sources (snag: in many cases the administrative costs would be very high).
You will see from your reading of the textbooks that all of these solutions have some
part to play. In particular some efforts are now made to see that tortfeasors pay back
page 185
page 186
some social security payments to the state, so that the costs of accidents fall more on the
defendants insurers and less on public funds. Illustrations: Social Security (Recovery of
Benefits) Act 1997; Parry v Cleaver [1970] AC 1; Smoker v London Fire & Civil Defence Authority
[1991] 2 AC 502.
Expenditure incurred
The claimant is entitled to recover the costs resulting from the tort. The typical
examples are the cost of medical treatment, future institutional care, adaptation of
home and assistance with daily routine.
You should notice two particular issues:
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Double compensation must be avoided. This is illustrated by Lim Poh Choo. The
claimant was unable to work again and was cared for in a nursing home. She was
entitled in principle for loss of earnings and cost of care. But the nursing home was
providing her with accommodation, food, etc., which she would have had to pay
for out of her income if she had not been injured. So part of the costs of the nursing
care had to be deducted to avoid her being overcompensated.
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But notice that this can work out very unfairly if the tortfeasor and the care provider
are the same person: Hunt v Severs [1994] AC 350.
Non-pecuniary damage
The claimant is also entitled to receive compensation for pain and suffering and for
loss of amenities. The sums awarded for these losses have for the most part to be
conventional, but the Court of Appeal in a series of cases reported together as Heil v
Rankin [2001] QB 272 increased the level of appropriate compensation, especially in
the more severe cases. (One of the cases so dealt with was that of Kent v Griffiths, the
substance of which was referred to in Chapter 5.)
The victim is generally entitled to obtain private medical treatment and be
compensated for it. There are now mechanisms that allow the Health Service in some
cases to recover from the tortfeasor the costs of care it has provided to the victim. See
the Road Traffic (NHS Charges) Act 1999.
A cause of action in tort lapsed if either party died. This was remedied by the Law
Reform (Miscellaneous Provisions) Act 1934, which allowed most actions to survive
and be brought by or against the estate of the deceased. (An action in defamation
is still an exception.) Where the death was independent of the tort, there is no
particular problem; but, where the tort caused the death, then there are problems
in deciding what damages are appropriate.
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The common law did not allow an action by those who were dependent on the
deceased for loss of support, because their loss was purely economic. This was
changed by Parliament in the nineteenth century. The details have been revised on
a number of occasions: the present law is in the Fatal Accidents Act 1976.
In practice substantial damages are payable under the 1976 Act rather than the 1934
Act. This can be criticised because the 1976 Act is based on a traditional view of a family
with a breadwinner on whom spouse and children are dependent and who must be
protected if the breadwinner is killed.
The survival of the deceaseds cause of action for the benefit of the estate
Where the victim survived the tort for some time, then this is the mechanism by which
damages suffered by the victim while alive are recovered, so that the estate can sue for
damages for loss of earnings, medical expenses and pain and suffering between tort
and death. Where, however, death is instantaneous, little or nothing is payable. There
is nothing for pain, suffering and loss of amenity (see Hicks v Chief Constable of South
Yorkshire Police [1992] 2 All ER 65) and there is no recovery for lost future earnings (see
Administration of Justice Act 1982 s.4).
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What is a dependant?
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Learning outcomes
By the end of this chapter, you should be able to:
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explain the purposes of damages in tort for personal injuries and the general
principles according to which they are assessed
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explain the effect on compensation for personal injuries if the victim dies.
Self-assessment questions
1. What is the aim of damages in tort for personal injuries? Are there any other
aims that the law should recognise in formulating principles for the assessment
of damages?
2. What is the distinction between pecuniary and non-pecuniary damage?
3. How are damages for lost earnings calculated?
4. What is meant by the lost years? What is their relevance to the assessment of
damages?
5. Where a victim dies as the result of a tort, on what bases are damages assessed?
Are these bases justifiable in contemporary social conditions?
6. What is a structured settlement? What are its advantages and disadvantages? In
what type of case is a structured settlement appropriate?
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page 188
7. What changes have been made by Wells v Wells and Heil v Rankin? Are these
justified?
Activity 13.4
Outline how damages will be assessed in the following cases. Are you satisfied with
the results in these cases?
a. Anne is knocked down by a careless motorist and sustains a badly broken leg.
She has it treated in a private clinic in Switzerland and then spends a month
recuperating in a nursing home in Surrey.
b. Betty, an 18-year-old A level pupil, is knocked down by a careless motorist
and suffers devastating brain injuries. Her mother Cilla (a leading silk at the
commercial law bar) gives up her practice to look after her. The congregation at
her local church has a collection that raises 3,000 for her. Would your answer
be the same if Cilla had been the careless motorist?
c. Hugh, aged 22, unmarried and with no dependants, is killed outright by a
careless motorist. What damages, if any, will be payable by the defendant?
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If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
done
13.2 Defences
13.3 Remedies
13.1
Vicarious liability
Feedback to activities
Contents
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195
Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196
Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197
Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
201
Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
202
Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
204
Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
206
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Chapter 3
Activity 3.1
All the judges refer to these reasons, although there are differences of emphasis. You
should have identified among the reasons for having the immunity: (i) the fact that
lawyers in court owe a duty to the court that may sometimes conflict with the duty to
their clients; (ii) that the prospect of being sued in negligence might adversely affect
the quality of their argument by e.g. raising every conceivable point in their clients
interests; (iii) that suing the lawyer would to some extent reopen the correctness of
the original decision. The House of Lords thought these reasons no longer applied in
2002 (although there was a disagreement about whether the immunity should remain
in criminal cases). A main reason was that the public would not understand why
lawyers had an immunity that other professions did not enjoy.
Activity 3.2
a. No feedback provided
b. You should have considered what was said in Home Office v Dorset Yacht and
other cases. Normally in such a case there would be no liability, but you consider
exceptional cases, e.g. if X was another neighbour who was known to be violent
and aggressive where it is arguable that the result might be different.
c. (i) Remember to consider that, although there is no liability to the estate of
the dead child, there may be liability to the mother and the damages would
include the suffering sustained by the loss of her baby; (ii) neither the Congenital
Disabilities Act nor the common law allows an action by the child: for the claim by
the parents see McFarlane and later cases; (iii) the Congenital Disabilities Act does
not allow a claim by the mother. Ask yourself why mothers are not generally liable
for damage to their unborn children, but are liable if they injure them by careless
driving.
d. No doubt the advisory service has a duty of care. Do you think that the reasoning in
McFarlane etc. applies also to these facts? (In McFarlane etc. the negligence caused
the pregnancy and not the failure to terminate it).
Activity 3.3
a. On learner drivers see Nettleship v Weston and on children see Blake v Galloway. You
will have to think about these cases and general principles would apply to the case
of a newly qualified solicitor.
b. When driving to hospital she still has to drive with reasonable care. In an
emergency it may be legitimate to drive in a way that is not ordinarily acceptable,
but it still has to be reasonable in the circumstances. On going to the seaside, she
is judged by the standards of an ordinary driver. She is not penalised because,
as a highly trained driver, she might have been expected to do better in the
circumstances.
c. Examine the cases on standard of care to be shown by medical practitioners. You
might note the following elements in the facts: (i) as a general practitioner, should
he know about things discussed in a specialist journal? (some help perhaps from
Shakoor v Situ, though only by analogy); (ii) should he tell the patient about the
risks? (consider Chester v Afshar and decide whether the facts are in any respects
different).
d. This might be one of the exceptional situations in which the maxim res ipsa loquitur
can be applied.
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Chapter 4
Activity 4.1
a. The driver is doing two things that are criminal (speeding and using her mobile
phone while driving). This does not necessarily mean that they are tortious (see
Chapter 1). However the courts may take the view that Parliament has set a proper
standard and failure to observe it must therefore be a breach of civil duty of care.
There is some authority (about 50 years ago) that exceeding the speed limit is not
necessarily negligent (because in the particular circumstances reasonable care
was shown), but in the present climate of opinion about speeding, this might be
difficult to apply. The main issue is that D cannot be liable unless C shows on a
balance of probabilities that D would have been able to stop if she had not been
speeding and using her phone.
b. It might be important to know whether the brandy caused the death (in which
case the important issue is whether administering brandy was a breach of duty) or
whether the brandy was irrelevant and the cause of death was a failure to call for
an ambulance in the sense that medical treatment would have saved C (in which
case the important issue is whether such failure was a breach of duty on this see
5.3).
c. See McWilliams v Sir William Arroll.
Activity 4.2
It is important to distinguish the two issues. She has to prove on a balance of
probabilities that she would not have suffered the actual damage (the head injuries) if
the lifeguard had carried out a careful rescue. But in turning this head of damage into
money it is not necessary to show that she would probably have become a solicitor.
(For more on calculation of damages for personal injuries, see Chapter 13.)
Activity 4.3
This case falls between Baker v Willoughby and Jobling v Associated Dairies. The second
event is not a natural disease and it is not a tort. You have to decide which authority
should be applied to these facts. Both views are arguable.
Activity 4.4
Feedback provided at the end of the activity.
Activity 4.5
No feedback provided.
Activity 4.6
Among the relevant differences are these: (a) In Dorset Yacht and to some extent in
Al-Kandari there was responsibility on the part of D for X. There was none in the other
cases. (b) Again in Dorset Yacht and Al-Kandari the criminal conduct was the very thing
that might have been expected and not just a foreseeable possibility.
Activity 4.7
Clearly Delias negligence satisfied the but for test of causation, but does Cecils
decision amount to a new and intervening cause? Read McKew. Would you want to
apply it to a conscientious as well as a foolhardy claimant?
Chapter 5
Activity 5.1
This is discussed in the textbooks: consider
i. the social importance of the situations
ii. the sort of people likely to be involved: house purchasers or takeover bidders
iii. the number of potential claimants if there is negligence.
Activity 5.2
a. Remember to ask who D is (e.g. a stockbroker or a friend), the social setting in
which the advice is given and to consider separately the two different economic
losses sustained.
b. Whose water main is it? Is the economic loss pure or consequential? See Spartan
Steel.
c. Consider the cases on defective property.
d. When a fault in a computer corrupts a document, is that physical damage or
economic loss? Does it matter?
e. Note that C is claiming from D in these problems. C is for example British Gas and
it has to do the repairs under the maintenance contract with the customer (C) and
cannot charge C. Can it recover from D in tort?
Activity 5.3
Distinguish between (a) where the claim would be against the mine owner and (b)
where the claim would be against the informant. As the law stands, it seems that there
is no claim in (a) and there might be in (b). Would it be sensible to impose liability on
a muddled informant who got it wrong and not on the people who caused the death?
In (c) Attia would suggest there might be liability, but would it depend on the motorist
having some relationship with C (e.g. a person caring for the dog in Cs absence)?
Activity 5.4
a. For a start see Lord Hoffmann in Stovin v Wise and the discussion of the issue in
textbooks.
b. See the discussion in The Ogopogo. Consider various possibilities. D is aged 95, has
no phone and snow is falling. C knew when he accepted the invitation that D did
not believe in conventional medicine. D thought that C was fooling around (as he
had done before) or that C was making a fuss about something trivial.
c. Is D a lifeguard, an adult looking after C (a child) or a stranger? If so there may be a
duty? If not does he assume responsibility by setting off? Or does he make matters
worse by setting off and thereby deter others on the beach from trying to help?
Activity 5.5
a. There is room for speculation here. The Agency is carrying out public duties and
has to balance the interests of consumers and suppliers. Should it be easier to
impose liability where there is damage to the economic interests of suppliers
than it is where there is damage to the health of consumers? Even if there is a duty
breach has to be proved and that is not easy. The Agency has acted on research (it
may be its own or independent) and is not liable merely because it got it wrong.
b. There are cases in the books on various rescue services, police, fire, coastguards.
Have they assumed responsibility to climbers (a) by establishing a rescue service or
(b) by agreeing to send a team to the stricken climbers in this case?
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Activity 5.6
This is not clearly settled in English law. There can be liability to rescuers where the
defendant does something foolhardy as in Harrison, but that was a foolhardy and
pointless act of stupidity in leaping on to a moving train. Would it be right to deter
people from engaging in risky pastimes such as hang gliding, parachute jumping,
potholing, etc. by making them liable to professional rescue services who have to look
for them or help them in distress.
Chapter 6
Activity 6.1
a. See the discussion of whether the 1957 Act applies to activities on the land (e.g.
Lunney and Oliphant , Chapter 11: Special liability regimes, Section II Occupiers
liability, Part 2 The 1957 Act, sub-part (b) The common duty of care).
b. See the discussion in Wheat v E. Lacon & Co Ltd [1966] AC 552.
c. It might depend on whether she was still on the stairs leading to the entrance
doorway or had walked into the entrance hall, and also on whether there was any
notice saying No charitable collectors (see 6.1.4).
d. See the discussion in and of Stone v Taffe [1974] 1 WLR 1575: if you were Luisa, would
you think you were allowed to visit Helgas bedroom at her invitation?
Activity 6.2
a. Is this a proper way for a householder to get electrical work done? OLA 1957 s.2(4)
(b).
b. Get clear in your minds what these notices are aimed to do: (i) makes clear that the
visitor may come in but will not be able to sue occupier for injuries: is it an effective
exclusion clause? (ii) is an attempt to exclude visitors, not to exclude liability. If
effective, an entrant will not be a lawful visitor. (iii) is an attempt to warn (s.2(4)(a))
and thereby fulfil the common duty of care to a visitor.
Activity 6.3
a. The main requirements are in s.1(3) of the 1984 Act. If you read the judgments in
Tomlinson you will see that not all judges reasoned in the same way about this subsection but they reached the same conclusion.
b. You have to use your imagination. The two cases to some extent reveal different
philosophies. Do you think that any of these is a relevant distinction: the age of the
claimants; the nature of the supposed danger; the knowledge the defendant had
about the danger; the status of the visitor (lawful or unlawful); any others?
Activity 6.4
a. See the accounts in the textbooks and in the Nash Dredging case.
b. The employer is unlikely to be vicariously liable (see Chapter 13) but might be
liable for failing to provide competent fellow workers (see also Hudson v Ridge
Manufacturing Co Ltd [1957] 2 QB 348).
c. See the factors listed as relevant by Hale LJ in the case of Hatton v Sutherland and
applied by the House of Lord in Barber.
Chapter 7
Activity 7.1
a. See the speech of Lord Hoffmann.
b. No, because the statute has not been broken.
c. When you have thought about this, look at Gorris v Scott (1874) LR Exch 125.
d. When you have thought about this, look at Millard v Serck Tubes [1969] 1 WLR 211.
Chapter 8
Activity 8.1
To see who can be sued under the 1987 Act, we need to look at sections 1 and 2 of the
Act.
a. Digdeep provides coal. Coal is obviously a natural element, but we are told in
section 1(2) that a producer includes someone who has won or abstracted the
product. Hence, Digdeep plc is a producer and therefore could be sued under the
Act.
b. Eric is not a producer. He has not manufactured the widgets. He merely supplies
them. Any liability under the Act will depend on s.2(3). This states that where
damage is caused wholly or partly by a defect in a product, any person who
supplied the product shall be liable if:
uu
the person who suffered the damage requests the supplier to identify one or
more of the persons to whom s.2(2) applies in relation to the product
uu
that request is made within a reasonable period after the damage occurs
and at a time when it is not reasonably practicable for the person making the
request to identify all those persons
uu
the supplier fails, within a reasonable period after receiving the request, either
to comply with the request or to identify the person who supplied the product
to him.
Eric cannot inform any victim of the manufacturers identity. He can, however,
identify Fred. Provided he informs the victim within a reasonable period of the
identity of Fred, he will not be liable.
c. George has imported a product from outside the EC into the EC. He is not the
producer. He could only be liable if he satisfies s.2(2)(c), which renders liable any
person who has imported the product into a member State from a place outside
the member States in order, in the course of any business of his, to supply it to
another. However, George does not appear to be acting in the course of business.
Thus he is not liable under the Act.
d. Jackie is obviously within the Act as a producer. However, to the purchaser, the
jeans are marked Indigos. Section 2(2)(b) provides that any person who, by
putting his name on the product or using a trade mark or other distinguishing
mark in relation to the product, has held himself out to be the producer of the
product will be liable. Both Jackie and Indigo are therefore potentially liable under
the Act.
Activity 8.2
Ambrose is a producer under the Act: s.1(2), 2(2)(a). The pills it has manufactured have
caused Beryl a serious injury, but Ambrose will only be liable under the Act if the pills
are found to be defective under s.3. It depends whether they provide the safety which
persons generally are entitled to expect. They are a standard product, that is, Ambrose
knows that each pill will contain a risk of fits. Looking at s.3 generally, we note that the
packaging contains an express warning, as do the instructions inside. Beryl, it would
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seem, reads neither the packaging nor the instructions, but they are available. Guidance
may be gained from the case of Worsley v Tambrands Ltd [2000] PIQR P95. Here, Mrs
Worsley, on purchasing tampons, had been warned of the risk of toxic shock syndrome
on the packaging of the product, and in detail on a leaflet which accompanied the
product which the purchaser was advised to read and keep. Ebsworth J held that:
The reality of this case is that the claimant had lost the relevant leaflet and, for some
inexplicable reason, misremembered its contents as to the onset of the illness. That does
not render the box or the leaflet defective, and the claim must fail. The defendant had done
what a menstruating woman was, in all the circumstances, entitled to expect: (1) they had
a clearly legible warning on the outside of the box directing the user to the leaflet; (2) the
leaflet was legible, literate, and unambiguous and contained all the material necessary to
convey both the warning signs and the action required if any of them were present; and (3)
they cannot cater for lost leaflets or for those who choose not to replace them.
In Worsley, therefore, Mrs Worsley should have been alerted due to the warning of the
initial symptoms of her illness and would have been able to go to her doctor before it
became life-threatening. Here, Ambrose would argue that it gave a clear warning which
should have alerted Beryl to the risk of an epileptic attack and, if she was at risk, she
should have consulted her doctor. Although Worsley is clearly a stronger case in that
there was a time lapse between the initial symptoms and the onset of serious illness, it
could be argued that, by analogy to Worsley, Ambrose has given a sufficient warning of
the dangers to render the product safe.
Activity 8.3
a. The cake is a product and, if poisonous, is clearly defective under section 3. Does
Griselda have a defence? Under section 4(1)(c), if she is not supplying goods in the
course of business and is simply a supplier or not acting with a view to profit, she will
have a defence. We assume that she is not a professional cook, but merely providing
the cake to contribute to school funds. She has made the cake and so is a producer
within section 2(2). She is not acting with a view to profit personally, but of course
seeking to profit the school. It is to be presumed that this will satisfy section 4(1)(c).
b. The drug, Cureotis, taken by James the product has been contaminated by the X
virus. On the analysis of A v National Blood Authority [2001] 3 All ER 289, the pure drug
would be the standard product which the consumer assumes that he will receive,
and the drug contaminated with the X virus, non-standard. In the absence of any
widely acceptable warnings, the drug taken by James will be deemed defective under
section 3.
Can Isobel rely on the section 4(1)(e) development risk defence? She must establish
that the state of state of scientific and technical knowledge at the relevant time
was not such that a producer of products of the same description as the product
in question might be expected to have discovered the defect if it had existed in his
products while they were under his control. Following A and European Commission
v United Kingdom [1997] All ER (EC) 481, regardless of the fact that Isobel is producing
a valuable drug and that it is impossible to detect the virus, the risk of the virus
is known and therefore she cannot rely on section 4(1)(e). This seems harsh and
potentially would seem to discourage the production of valuable drugs, but in A,
Burton J clearly stated that the strict liability goal of the Act would be taken very
seriously. All Isobel could possibly do would be to publicise the risk and ensure that
all consumers knew the risk they were taking in using the drug. If it were deemed
socially acceptable, then the court might find that the drug was not defective in the
first place. It will not, however, alter its approach to section 4(1)(e).
Activity 8.4
This time Griselda is acting with a view to profit, if not acting in the course of a business.
She cannot rely on section 4(1)(c). The cake is defective (section 3) and causes injury to
Kevin and damage to Kevins property, Jumper.
Section 5(1) allows for recovery for personal injury. Kevin can recover for this. The death of
Jumper amounts to property damage, which takes us to sections 5(3) and (4). His value is
greater than the limit of 275, but the court must also be satisfied that he is a pet cat and
not a commercial asset. Arguably, a show cat is a commercial asset and is not intended
for private use. However, the fact that he seems to belong to Kevin who is treating him as
a pet suggests that he is both a pet and a show animal. Certainly, if it can be shown that
Jumper is primarily a pet, there should be no problem satisfying section 5(2).
Activity 8.5
Barry will attempt to claim under the Animals Act 1971. First, he must identify whether the
animals involved will be classified as dangerous or non-dangerous. Under the definition
in section 6(2):
a dangerous species is a species (a) which is not commonly domesticated in the British
Islands; and (b) whose fully grown animals normally have such characteristics that they
are likely, unless restrained, to cause severe damage or that any damage they may cause is
likely to be severe.
the damage is of a kind which the animal, unless restrained, was likely to cause or
which, if caused by the animal, was likely to be severe; and
uu
the likelihood of the damage or of its being severe was due to characteristics of
the animal which are not normally found in animals of the same species or are not
normally so found except at particular times or in particular circumstances; and
uu
those characteristics were known to that keeper or were at any time known to a
person who at that time had charge of the animal as that keepers servant or, where
that keeper is the head of a household, were known to another keeper of the animal
who is a member of that household and under the age of 16.
It is foreseeable that a dog may cause severe injury to an individual. Jupiters reaction,
however, might be seen as the ordinary act of a dog defending his territory. However, in
Curtis v Betts [1990] 1 WLR 469, the court found the attack on a young boy by a normally
docile dog while being transferred into a Land Rover to be transported to the local park
for exercise did satisfy section 2(2)(b). The dog was very protective of areas regarded as
its territory and this could be regarded as a temporary characteristic. Equally, therefore,
we can argue that Jupiter defending the back of the van was a temporary characteristic,
capable of satisfying section 2(2)(b). Liability would then depend on whether Alexander
was aware of this fact.
If we assume that he does, do any defences arise? Again, we can argue fault or
contributory negligence, but here the court would ask whether Barry should have been
aware that there were dogs in the back of the van, bearing in mind his condition at the
time. It certainly would be difficult to claim that he voluntarily assumed that risk under
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section 5(2). As there is no evidence that he entered the back of the van, he cannot be
deemed a trespasser under section 5(3).
Barrys claim will thus depend largely on whether the court finds him to be at fault, and, if
so, to what degree.
Chapter 9
Activity 9.1
a. The three main distinctions were that trespass:
uu
uu
required an act directed at the plaintiff (claimant) whereas case was satisfied
by an act or an omission
uu
b. The claimant does not need to have suffered any loss or damage as a result of the
tort.
c. She brought her action in trespass.
Activity 9.2
a. This might not, in itself, amount to an assault as X might not reasonably apprehend
the application of unlawful personal force.
b.
i.
Provided Bill was not aware that Jane was creeping up behind him intending to
hit him there would be no assault.
ii. If Jane had apprehended the application of force and Bill had intended that she
should then he could be guilty of assault. In Ireland and Burstow the House of
Lords ruled that words and perhaps even silence could amount to an assault.
iii. There would be an assault if Bill apprehended the application of even the
slightest force. It is immaterial that he was not frightened.
iv. There must be a reasonable apprehension of force: Thomas v National Union of
Mineworkers. As to whether any apprehension was reasonable would depend
on the facts. If Jane is safe in her car then words and gestures no matter how
threatening cannot amount to assault if they cannot be put into effect.
Activity 9.3
a. Sunita was dancing at a crowded party. Although jostling in a crowd would
be considered to be one of the vicissitudes of life (Wilson v Pringle) and not an
actionable battery, whether these incidents were actionable would depend on
Sunitas state of mind. There was a direct application of unlawful personal force
to Kumar, Susan and James and if Sunita intended to inflict force in any of the
situations then an action in battery would lie.
It has been suggested that subjective recklessness might be treated as an intent for
this tort. If that is the case and Sunita was aware of a risk that her conduct might
result in a battery then her conduct might well transcend the bounds of lawfulness
although treading on Kumars toe might be considered merely a vicissitude of a
crowded party.
b. As to whether John would be guilty of battery in respect of Fred would depend
upon his state of mind. (See (a) above.) John would be guilty of battery when he
pushed Roger out of the way to get the seat and would also be guilty of battery
against the baby even though he did not actually strike the baby. See Haystead.
Activity 9.4
a. There was no false imprisonment in the case of Bird v Jones because the defendant
had not imposed a complete restriction on Birds freedom of movement.
b. It is possible to falsely imprison a person where that person is not aware of it. See
Meering and also Murray v Ministry of Defence although it is likely to have an impact
on the amount of damages awarded.
c. False imprisonment is actionable per se because the mere fact of the imprisonment
is an injury in itself in that it is a wrongful interference with a persons liberty.
d. There was no false imprisonment in Sayers because the defendant had not directly
locked her in the lavatory.
Activity 9.5
It was ruled by the House of Lords in Wainwright v Home Office that the rule in Wilkinson
v Downton will not apply to this situation. Conduct calculated to humiliate and distress
is not, without more, tortious at common law.
Chapter 10
Activity 10.1
(a), (b) and (d) fall between the two extremes of inducing a breach of an existing
contract (unlawful) and inducing someone not to enter into a contract (case (c)
lawful). Not all of them have yet been the subject of decisions, but there is speculation
about them in the books. What do you think?
Activity 10.2
a. The issue is how far merely putting facts before X and letting him decide amounts
to inducement. (b) Does D strike at X through someone else? (c) See Stratford
v Lindley. (d) See for example Markesinis and Deakin , Chapter 15: The Economic
Torts, Section 2 Wrongful interference with the claimants pre-existing right (Part
(b) Other Forms of Interference with Contract).
Activity 10.3
The answer to these is not very clear and the texts will guide you as to possible
answers. On the one hand it is not enough negligently to bring about a breach of
contract. Is it enough that D knows there must be some sort of contract between C and
X and intends to break it if he can? There are extreme examples where it is justified to
induce a breach of contract (see Brimelow v Casson): what other circumstances might
be sufficient?
Activity 10.4
a. Threat of breach of contract.
b. See the discussion above and the references.
c. Do you think that the ultimate purpose might ever be so important that it justifies
an illegal act to bring it about?
d. Might there be a public interest in preserving the peace and allowing an action in
intimidation in the first situation and not the second?
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Activity 10.5
(a) This is a philosophical question. It might be that two people combining is more
threatening than one person alone, but the one might be extremely powerful on its
own. Are there are any other ways in which the rule can be explained? Consider the
relationship between (b) and (c): given that the defendants have to aim to injure the
claimant, is there any room left for a defence of justification? (d) No feedback given.
Chapter 11
Activity 11.1
a. This is a private nuisance it interferes with my use and enjoyment of land.
b. This does not interfere with my land because the nuisance occurs outside my
property. It cannot therefore be classified as a private nuisance. It affects the public
and I have suffered special damage: this is a public nuisance.
c. Here we are dealing with an isolated escape from one garden to another. This
indicates potential liability under the rule in Rylands v Fletcher.
Activity 11.2
The facts resemble Khorasandjian v Bush (1993) where the daughter was permitted
to sue in private nuisance to obtain an injunction to stop persistent telephone calls
to her parents home where she lived. Note, however, that following Hunter v Canary
Wharf (1997), it is not enough to live with ones parents. To have a right to sue, the
claimant must possess an interest in land or exclusive possession of the land. In Hunter,
the House of Lords held that Khorasandjian v Bush had been incorrect in allowing the
daughter to sue. Their Lordships were influenced, however, by the introduction of the
Protection from Harassment Act 1997, which imposes criminal and civil liability for
harassing behaviour. Section 1 provides that (1) A person must not pursue a course
of conduct (a) which amounts to harassment of another, and (b) which he knows
or ought to know amounts to harassment of the other. Helen may therefore seek
damages and/or an injunction under s.3, but note that a course of conduct must
involve conduct on at least two occasions: s.7(3). Conduct does, however, include
speech: s.7(4).
Activity 11.3
Planning permission is not a relevant factor unless it changes the character of the area:
see Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) and Wheeler v JJ
Saunders Ltd (1996). However, the court would consider:
i. The duration and frequency of the drilling.
ii. T
he level of noise. Was is unbearable to the reasonable person or are you being
extra-sensitive? See Heath v Mayor of Brighton (1908).
iii. Malice: I have been deliberately playing loud music: see Christie v Davey (1893).
Activity 11.4
The question here is whether the Council is liable for its failure to control the activities
of others. The drug addicts do appear to be interfering with the use and enjoyment
of the local householders land. Is this, put simply, a Lippiatt or an Hussain situation?
The church hall appears to be the focal point for the addicts can it be said to be a
launching pad for their activities? If so, the relevant authority would seem to be
Lippiatt and the Council would be liable. This is supported by the fact that the addicts
are licensees and not tenants. Note, however, how thin the line seems to be between
this scenario and Hussain where the Council was not found to be liable.
Activity 11.5
Assuming that Mrs Groan has a good cause of action in private nuisance (she has an
interest in land and the noise or potential threat to property suffice), the question
arises whether Fred has any defences to her claim. Planning permission is not a
defence. Prescription cannot be established on the facts. Equally he cannot rely on the
social utility of cricket, nor the fact that Mrs Groan has come to the nuisance. He must
therefore hope that the court will exercise its discretion in his favour when deciding
what remedy to award Mrs Groan. Miller v Jackson (1977) suggests that the court may
refuse an injunction and award only damages rather than close down a club providing
a benefit to the local community. In contrast, Kennaway v Thompson (1981) prefers
to award an injunction on terms which keep the club open, but reduces the risk of a
nuisance. It remains to be seen whether an injunction could be drafted which could
protect Mrs Groan and allow cricket to continue to be played.
Activity 11.6
This is an isolated incident and concerns an escape from one piece of land to another.
This should indicate to the student the likelihood of a claim under the rule in Rylands v
Fletcher. The four Cambridge Water requirements must be satisfied:
uu
the defendant brings on his lands for his own purposes something likely to do
mischief
uu
which escapes
uu
uu
Here, there is clearly an escape, but the other requirements may be more difficult
to satisfy. Is placing building materials on your land something likely to do mischief
or, to use the terminology of Transco: has Janice brought some dangerous thing onto
her land which poses an exceptionally high risk to neighbouring property should it
escape, and which amounts to an extraordinary and unusual use of her land? Arguably
building materials can cause serious injury, but is building a shed an unusual use
of her land? Equally, it may be difficult to establish that the accident was reasonably
foreseeable as the circumstances are somewhat unusual. In any event, as seen below,
any personal injury claim is unlikely to be recoverable.
In relation to defences and remedies, it is now unlikely that a storm would be classified
as an Act of God and the other defences do not appear to apply. It is questionable,
however, whether Ken can sue for his personal injuries (see 11.3.4), but he may recover
the damage to his prize flowers (property damage) if he can show that the damage
was reasonably foreseeable.
Activity 11.7
The question here relates to a public nuisance. The problem does appear to affect
the reasonable comfort and convenience of life of a class of Her Majestys subjects,
that is, the people passing under the bridge. On the basis of Sedleigh-Denfield (which
remember applies to both public and private nuisance), if the defendant was aware
of the nuisance caused by the pigeons, had a reasonable opportunity to abate it, had
the means to abate it, but has chosen not to do so, then the defendant will be liable.
But has Catherine suffered special damage? Her, presumably expensive, suit is ruined,
but we are told that the other people passing under the bridge suffer the same fate.
In the Wandsworth case, the action was brought by the local authority under section
222(1) of the Local Government Act 1972 which enables a local authority to institute
civil legal proceedings in its own name where it considers it expedient to do so for the
promotion or protection of the interests of the inhabitants of its area. The question
of special damage was therefore not in issue. On the assumption, however, that not
every person suffers harm who walks under the bridge, Catherine may bring her claim
for damages.
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Activity 11.8
No feedback provided.
Chapter 12
Activity 12.1
a. Section 4(1) of the Theatres Act 1968 states that performances of a play (except
when given on a domestic occasion in a private dwelling) shall be treated as
publication in permanent form and therefore libel. This would be libel.
b. I am depicting Albert as a burglar and therefore alleging that he is dishonest. In
Monson v Tussauds Ltd (1894) 1 QB 671, the Court of Appeal found that a waxwork in
Madame Tussauds was sufficiently permanent to amount to libel. It depends if the
model is a permanent fixture in my garden.
c. It has been suggested that even though rain would remove the chalk from the
pavement, this would be libel: see Winfield and Jolowicz , Chapter 12: Defamation,
privacy and related matters, Section 1 Defamation: definition and elements, Part A
Libel and slander, who comment that this is arbitrary.
Activity 12.2
To be defamatory, a statement must tend to lower the plaintiff in the estimation of
right-thinking members of society generally (Sim v Stretch [1936] 2 All ER 1237) or lead
to the claimant being shunned or avoided (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR
581). Note that s.1(1) Defamation Act 2013 provides that only cases involving serious
harm to the claimants reputation can be brought in defamation.
We need to examine each statement in turn:
a. Barbara has plenty of friends, especially men.
This, at first, seems harmless. It is a good thing to have lots of friends. However, the
last two words especially men could be argued to carry a negative meaning. Having
lots of male friends may be regarded as an innuendo that she is flirtatious or even has
loose morals. However, in modern times, having lots of boyfriends would not generally
be seen as defamatory unless, of course, Barbara was a nun or married.
b. Barbara has spent some time in the police station, helping the police with their
inquiries.
Again this seems a factual statement. But does it suggest, by way of innuendo, that
Barbara is a criminal? In Lewis v Daily Telegraph Ltd [1964] AC 234, the statement that
Lewis was being investigated by the police for fraud was not found to suggest that he
was guilty of fraud. It merely suggested that he was a suspect. Here, a court is likely to
find that the only meaning would be that Barbara is a suspect in some case and not
that she is a criminal.
c. Barbara is a thief. But at the bottom of the poster in small letters it says, in the
local play. Do go and see it!
To say Barbara is a thief is defamatory. However, it can be argued that the insult is
neutralised by the explanation at the bottom of the poster explaining that she is
pretending to be a thief in a local play. In Charleston v News Group Newspapers Ltd [1995]
2 AC 65, the House of Lords held that an explanation can neutralise an insult, but only if
it is obvious to the reader. Lord Nicholls did warn newspapers, however, that they were
playing with fire, and that if the explanatory text were tucked away further down the
article or on a continuation page, the court would be likely to take a different view.
Here, the explanation is placed at the bottom of the poster in small letters. It is on the
same page, but it depends how small the lettering is and whether a passer-by looking
at the poster would read it.
Activity 12.3
This story alleges corruption, which is clearly defamatory. The parties must, however,
show that the story refers to them specifically. The church choir are named specifically,
but they are a group. In Knuppfer v London Express Newspaper Ltd [1944] AC 116, the
House of Lords was not prepared to allow an individual who was part of a large group
to bring an action in defamation. Amys claim will therefore depend on the size of the
choir. Lord Porter in Knuppfer advised that the court should examine the size of the
class, the generality of the charge and the extravagance of the accusation in reaching
the decision whether a reasonable jury could find that the article was capable of
referring to the claimant.
The vicar, in contrast, has been expressly named. He can therefore say the story refers
to him and that it contains an innuendo that he is party to the alleged corruption.
Mrs Bloggs will find it more difficult to bring a claim. She is a singer, but so are many
people. There is nothing to indicate that it refers to her specifically.
The Bishop equally is not named. He would have to show, as stated in Morgan v Odhams
Press Ltd [1971] 1 WLR 1239 that an ordinary reasonable person, with knowledge of all
the circumstances, would recognise that the person referred to is the claimant. He is
technically, we are told, the vicars superior, but we might suggest that an ordinary
reasonable person would interpret the words his superior as a reference to God
himself. If so, then the Bishop will not have a claim.
Activity 12.4
Publication requires knowledge of the defamatory words by a third party. In the first
example, Anne sends a postcard to Boris stating that he is dishonest. She does not
necessarily intend anyone else to know. However, it is a question of foresight. The
courts will presume, in the absence of evidence to the contrary, that statements on a
postcard will be read by third parties and are therefore published.
Charles, however, places the defamatory words in an envelope which is sealed and
marked private and confidential. It would not be considered foreseeable that Davids
wife would ignore this and open the letter. Consider Theaker v Richardson [1962] 1 WLR
1512.
Elizabeth has published a defamatory comment about Geraldine to Fiona. Fiona
repeats this accusation. However, it could be argued that Elizabeth knows that Fiona
is a gossip and will thus repeat the accusation. If it can be shown that she intended
repetition, she may remain liable for the damage caused by repetition: see Slipper v
BBC [1991] 1 QB and McManus v Beckham [2002] 1 WLR 2982.
Harry clearly publishes his slanderous accusation in the shop, but should he be
responsible for the damage caused when James newspaper prints the story? The
situation is very similar to that in McManus v Beckham [2002] 1 WLR 2982 where the
court applied the test that the jury should be directed that the defendant would
be liable for the damage if either (a) the defendant knew that what she said or did
was likely to be reported and that if she slandered someone that slander was likely
to be repeated in whole or in part, or (b) a reasonable person in the position of the
defendant should have appreciated that there was a significant risk that what she said
would be repeated in whole or in part in the press and that that would increase the
damage done by the slander. Here, Harry, by virtue of his fame and the fact that he is
being followed by a reporter, should have appreciated that his controversial words
would be repeated. Ivor would, however, have to prove special damage to sustain his
claim for slander against Harry.
Activity 12.5
Keiths accusation that Lenny, an amateur, has taken money amounts to an accusation
that he has acted contrary to his amateur status, and therefore is a professional. In
Williams v Reason [1988] 1 WLR 96, a Welsh amateur rugby player sued in respect of
an article which accused him of writing a book for profit, contrary to his amateur
status. The defendants claimed justification (now truth) and were permitted to allege
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in support of the article that the player had previously taken money for wearing a
particular brand of boots. The sting of the defamatory words was that Williams had
compromised his amateur status (so-called shamateurism) and the evidence of the
boots money went to justify that charge.
Lenny, however, is likely to have less success. In Wakley v Cooke (1849) 4 Exch. 511, the
court held that the term libellous journalist indicated that the claimant was in the
habit of libelling people and even proof that the claimant had lost a libel case did not
serve to justify this innuendo.
Activity 12.6
In respect of the statement concerning racism, Mavis could seek to rely on the defence
of honest opinion which, like truth, is a complete defence to an action in defamation.
Her headline More evil than Norris suggests that Norris is evil therefore it is not
a comment, but a statement of fact. However, she can argue, as in Kemsley v Foot
[1952] AC 345, that Norris, like Lord Kemsley, is a well-known figure and that she is
commenting on his well-known behaviour during his television programme. Provided
that this is her honest opinion, she will have a defence.
However, she may have more difficulty with Oliver. This looks very like a statement that
Oliver is a racist which she must justify or be found to be defamatory. She would argue,
as in Telnikoff v Matusevitch [1992] 2 AC 343, that this is a comment on his earlier article,
but there is no reference to the article in her statement. Most readers would therefore
take the statement at face value. In any event, Oliver could argue that Mavis view was
not honest, as she was motivated by malice.
Activity 12.7
The story is defamatory of Tony Brown, unless the Daily Scandal can establish the public
interest defence (s.4 of the Defamation Act). This defence is intended to reflect the
principles established in Reynolds v Times Newspapers so all the circumstances of the
case will be taken into account by the court.
Chapter 13
Activity 13.1
a. See as a parallel the Ready Mixed Concrete case, but it is a matter of impression
and not hard and fast rules. Do you think that B is really an employee? How do the
features of his relationship add up?
b. No doubt he is not in the course of employment when he is in the shop (nothing to
do with his work) but can you regard parking the van carelessly as part of his job?
A tort would have to be proved res ipsa loquitur might be relevant (see Chapter 3).
Activity 13.2
Feedback provided at the end of the activity.
Activity 13.3
a. In answering this consider the Shatwell case and ask yourselves what further
information you would need in order to give a satisfactory answer.
b. They are about to commit an illegal act, but the carelessness is not connected with
the illegal act. Do any of the policy reasons for a defence of illegality operate to
deny C damages?
c. You should be able to reach a decision after examining similar situations in
Chapter 5.
d/e Are there distinctions between the two situations? Is Es position morally different
in the two situations?
Activity 13.4
a. She is not required to use the NHS, but surely she cannot recover for any private
medical treatment? Was this reasonable expenditure here?
b. See in particular Hunt v Severs.
c. These would be minimal: no pain and suffering, no dependants (and so no Fatal
Accidents claim), no loss of earning (Administration of Justice Act reversing Pickett
where the claimant is dead). Do you think that this is appropriate?
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Notes