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Law of tort

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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Mary Luckham, LLB, Assistant Director, University of London Undergraduate Laws


Programme.

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.

University of London International Programmes


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Published by: University of London
University of London 2005
Reprinted with minor updates 2014
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Law of Tort

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Contents
1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1

Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . . . . 3

1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.3

Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4

How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . . . 6

1.5

The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

2 Negligence: basic principles . . . . . . . . . . . . . . . . . . . . . . .

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1

Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.2

Organisation of the chapters . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.3

Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

3 Negligence: duty of care and breach of duty . . . . . . . . . . . . . . . 15


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1 Duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3.2

Functions of the duty concept . . . . . . . . . . . . . . . . . . . . . . . . 18

3.3

Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

4 Negligence: causation and remoteness of damage . . . . . . . . . . . 29


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

31

4.2 Causation: special problems: multiple causes . . . . . . . . . . . . . . . . 34


4.3

Remoteness: the basic rule . . . . . . . . . . . . . . . . . . . . . . . . . . 38

4.4

Qualifications of the basic test . . . . . . . . . . . . . . . . . . . . . . . . 39

4.5

New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . . .

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

40

5 Negligence: special problems . . . . . . . . . . . . . . . . . . . . . . 45


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.1

Liability for pure economic loss and for negligent mis-statements . . . . . . 47

5.2

Liability for psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . .

5.3

Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

5.4

The liability of public authorities . . . . . . . . . . . . . . . . . . . . . . . 58

53

5.5 Rescuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

6 Negligence: particular relationships . . . . . . . . . . . . . . . . . . . 69


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.1

Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

6.2 Liability of manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . 76


6.3 Liability of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . .

76

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

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7 Breach of statutory duty . . . . . . . . . . . . . . . . . . . . . . . . . 83


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
7.1

Tort and illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

7.2

Breach of statutory duty . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

7.3

The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . .

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

89

8 Particular statutory regimes: strict liability . . . . . . . . . . . . . . . 93


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.1

Product liability: Consumer Protection Act 1987 . . . . . . . . . . . . . . . 95

8.2

Liability for animals: Animals Act 1971 . . . . . . . . . . . . . . . . . . . 100

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

9 Intentional injuries to the person . . . . . . . . . . . . . . . . . . . 107


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
9.1

Trespass and case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

9.2

Trespass to the person . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

9.3

False imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . .

113

9.4 Intentionally causing nervous shock . . . . . . . . . . . . . . . . . . . . 115


9.5 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

10 Interference with economic interests . . . . . . . . . . . . . . . . . 123


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
10.1 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

125

10.2 The economic torts: general considerations . . . . . . . . . . . . . . . . 126


10.3 The economic torts: fundamentals . . . . . . . . . . . . . . . . . . . . . 127

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133

11 The law of nuisance and the rule in Rylands v Fletcher . . . . . . . . . 135


Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
11.1 The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . . . 137
11.2 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
11.3 The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . . . 145
11.4 Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
11.5 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . . . 148

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152

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

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

Law of Tort

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13 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
13.1 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
13.2 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
13.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189

Feedback to activities . . . . . . . . . . . . . . . . . . . . . . . . . 191


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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Notes

University of London International Programmes

1 Introduction

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1

Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . .

1.2 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1.3

Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1.4

How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . 6

1.5

The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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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identify and describe the sources of law relevant to tort.

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.

Law of Tort 1 Introduction

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1.1 Definition, aims and functions of tort


1.1.1 Structure of tort
There is no single principle of tort law but a series of different torts with different
origins and purposes. They protect a number of different interests against different
kinds of interference (usually by compensation for the consequences that is,
damages; but sometimes by an order to stop that is, an injunction).
In studying each tort (and even each element in each tort) you should ask yourself:
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what interests are being protected

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and against what sorts of interference (see below).

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.

What interests are protected by the law of tort?


The law of tort protects to different degrees and in different ways the physical integrity
of the person, property interests, reputation and economic interests. There are
arguments about how far it should protect other interests, such as a persons right to
privacy. In many torts material damage has to be caused before there can be an action.
In others there is no need for material damage to the claimant, but one of the claimants
rights has been interfered with. It is for instance an actionable tort deliberately to touch
another person (subject to many defences) even though no damage is caused (see
Chapter 9) and to defame someone in writing even though no damage is caused (see
Chapter 12). In such cases the tort is said to be actionable per se (i.e. in itself).
What kind of conduct by the defendant accompanied by what kind of mental state is
tortious if it produces an invasion of a relevant interest? Liability may be:
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strict (e.g. consumer protection legislation): liability does not depend on proof of
fault on the defendants part

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based on negligence by defendant

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based on intentional conduct by defendant

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based on the ultimate motive or purpose of the defendant (rare in English law).

Relations between tort and other forms of liability


Some tortious conduct is at the same time illegal in some other sense (e.g. criminal):
a person who deliberately strikes someone else commits both a tort and a crime. But
tort and other forms of illegality do not wholly coincide. Some action is tortious but is
not criminal or illegal in any sense other than being tortious: conversely some conduct
is illegal (e.g. criminal or unlawful in a public law sense) but is not tortious even if it
causes loss or damage (this point is developed more fully in Chapter 7).
The relationship between tort and breach of contract is also of interest. The distinction
between the two has usually been explained in this way. Tort involves the breach of an
obligation imposed by the general law (if I knock you down by carelessly driving my
car, I am liable to compensate you because the law imposes a duty to drive carefully
and not because I have promised you that I will do so). Breach of contract involves
the breach of an obligation voluntarily undertaken by the person in breach (if I fail to
deliver the car that you have bought from me, I am liable to compensate you because
I have failed to carry out my promise). This distinction is however not watertight.
In particular in recent decades a whole area of tort law has developed based on a
voluntary assumption of responsibility (see liability for mis-statements in Chapter 5)
and this has blurred the traditional distinction between tort and contract.

Note: tortious is
pronounced torshus.

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1.1.2 Policy questions


You should consider as you study this subject a number of policy questions related to
the purposes to be served by the law of tort. Examples are:
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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.

Impact of European Community law


The impact has been slight on the law of tort. The Consumer Protection Act 1987 gives
effect to a Community directive and there is potential for development in employers
liability and environmental protection. The tort of breach of statutory duty (Chapter 7)
might be developed to provide remedies for certain infringements of community law.

Impact of the Human Rights Act


The Human Rights Act 1998 gave effect in domestic law to the European Convention on
Human Rights (ECHR) with effect from October 2000. It is now a much more pervasive
source of the law of tort than is Community law. You will be familiar with the general
principles of the ECHR from your study of the British Constitution. You will find references
to the ECHR at various points in this guide. It is convenient to set out now some relevant

Law of Tort 1 Introduction


general principles: in some respects the ECHR has introduced new ways of thinking into
the domestic law.
a. Section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to
act in a way which is incompatible with a Convention right. This section therefore
has its greatest impact where the defendant to a tort action is a public authority
such as a local council.
b. The courts are however themselves public authorities: they therefore have to take
account of the ECHR in developing the law even in tort actions between private
citizens or private bodies such as companies to ensure that the United Kingdom
is not in breach of the ECHR. This is perhaps most obvious in relation to the tort of
defamation (Chapter 12) and Art 10 ECHR (freedom of expression).
c. The ECHR is based on a series of Convention rights of a general kind that have to
be respected. This is an unfamiliar kind of classification in English law. In order to
provide compensation for an interference with Convention rights the courts may
do one of the following:
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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.

uu

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.

1.3 Recommended reading


There are several textbooks of different lengths on the law of tort. It is suggested that
you use at least one of these:

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:

Matthews, M., J. Morgan, C. OCinneide, B. Hepple and D. Howarth Hepple and


Matthews tort: cases and materials. (Oxford: Oxford University Press, 2008) sixth
edition [ISBN 9780199203840].

Weir, T. A Casebook on tort. (London: Sweet & Maxwell, 2004) 10th edition
[ISBN9780421878808].

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Shorter and/or more introductory books include:

Giliker, P. and S. Beckwith Tort. (London: Sweet & Maxwell, 2011) fourth edition
[ISBN 9780414046085].

Mullis, A. and K. Oliphant Torts. (Basingstoke: Palgrave Macmillan, 2011) fourth


edition [ISBN 9780230576759].

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:

Cane, P. Atiyahs accidents, compensation and the law. (Cambridge University


Press, 2013) eighth edition [ISBN 9781107636323].

although it is not suitable as a textbook.


It would be sensible to buy one of the standard textbooks referred to and, especially
if you do not have access to a library, one of the casebooks. Many cases are decided
each year on this subject: you will find helpful notes on recent cases in the leading
academic journals such as:

the Modern Law Review (MLR)

the Law Quarterly Review (LQR)

the Cambridge Law Journal (CLJ).

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.

1.4 How to use this subject guide


This subject guide is not a textbook or even an introduction to the subject. It is
intended to direct you through the subject and to give an indication of how to tackle
each topic. It would be sensible to read through each chapter of this guide to identify
the main topics with which it deals and any particular problems or policy issues and
then to read the relevant sections in the textbooks. More detailed guidance is given
in the chapters of this subject guide where the law is in a state of development than
in those where the law is fairly well settled. You should be able to identify from this
reading the most important cases in more detail (see also under Sources, section 1.2).
The cases in this guide are not necessarily listed in order of importance: there are of
course many more relevant cases than are referred to here.
The introductory chapters of the books (and this chapter of the guide) deal with a
number of issues. It is not wise to try to learn these at once. These should be read
quickly now so as to get an idea of what the subject is about: some questions can be
identified (see Policy questions, section 1.1.2) which should be kept in mind as the
substance of the subject is studied. The introductory chapters should be considered
more carefully when the whole subject has been digested; then, some of the issues
raised will make more sense.

Law of Tort 1 Introduction

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1.5 The examination


Important: the information and advice given in the following section are based on the
examination structure used at the time this guide was written. However, the University
can alter the format, style or requirements of an examination paper without notice.
Because of this, we strongly advise you to check the instructions on the paper you
actually sit.
You are likely to be asked to answer four questions in the examination from a selection
of about eight. They are of two kinds.

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).

Example of an examination question


The role of strict liability in the law of tort should be greatly increased.
Discuss.
You can look at previous years exam questions and examiners comments on them in
the Undergraduate Laws virtual learning environment (VLE).

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.

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2 Negligence: basic principles

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.1

Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

2.2

Organisation of the chapters . . . . . . . . . . . . . . . . . . . . . . . 11

2.3

Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

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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:
uu

understand that the tort of negligence is structured on the concepts of duty of


care, breach of duty and resulting non-remote damage

uu

indicate some of the social and policy questions that have influenced the
development of the tort of negligence.

Law of Tort 2 Negligence: basic principles

2.1 Structure of the tort


Negligence of course means carelessness, but in 1934 Lord Wright said:
In strict legal analysis, negligence means more than heedless or careless conduct,
whether in omission or commission: it properly connotes the complex concept of duty,
breach and damage thereby suffered by the person to whom the duty was owing.
(Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25)

This sentence encapsulates the traditional tripartite structure of negligence as a tort. It


is not enough to show that defendant was careless: the tort involves a breach of duty
that causes damage that is not too remote. Each of the emboldened words will in due
course require detailed examination. The successful claimant in a negligence action
must establish three propositions:
a. That the defendant owed the claimant a duty of care. The claimant will in some
circumstances be the only person to whom the duty was owed (a surgeon and
patient for example): in others the claimant will be a member of a very large and
possibly ill-defined class of persons to whom the duty was owed (a car driver and
other road users).
b. That the defendant broke the duty of care. This means that the defendants
conduct fell below the standards that the law demands.
c. That as a result of the breach the claimant suffered damage of a kind that the law
deems worthy of compensation.
However these propositions are not rigidly separate. They are convenient for the
purpose of explaining the law, but they overlap to a great extent. Occasionally, but
not very often, a court will indeed explicitly organise its judgment under these three
headings. There is an example in Al-Kandari v Brown [1988] QB 665, referred to in
Chapter 4. In other cases however a judge might on the same set of facts deny liability
on the grounds that no duty was owed and another deny liability on the grounds
that, although a duty was owed, it had not been broken. An issue such as the scope of
liability for economic loss has sometimes been regarded as part of the duty question
and sometimes as part of the remoteness of damage question. You will find other
examples where a single set of facts can be analysed in different ways.

2.2 Organisation of the chapters


Negligence is now a tort of great size and complexity. Most textbooks set out the
questions of duty, breach, causation and remoteness in that order. This often means
that some of the most complex issues are dealt with at great length under the heading
of duty of care. Other textbooks are organised differently.
In the chapters that follow in this guide the material on negligence is organised in the
following way:
uu

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.

uu

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.

uu

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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2.3 Policy questions


The law of negligence has undergone enormous change and development in the
past 50 years. Mostly this has involved an expansion of liability, but quite often the
courts have retreated and cut back on the extent of liability. This in turn leads to
inconsistency and uncertainty. The reasons for this are complex, but they have in part
to do with conflicting policy objectives. The importance of understanding these policy
objectives and the way that they are contributing to the development of the law was
explained in Chapter 1.
Here are some of the most important philosophical and policy issues that you should
keep in mind and refer to as you prepare the material in the next four chapters.
uu

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.

uu

One consequence however of the emphasis on fault is uncertainty. It may


be difficult to get agreement as to whether the defendant was careless, and
entitlement to substantial compensation may depend on the strength of the
evidence before the court or (since all except a very tiny proportion of negligence
claims for personal injuries are settled by negotiation or agreement) the strength
of the bargaining positions of the parties. The ability to obtain compensation
may also depend on the financial resources available to the defendant. A high
proportion of successful claims are in areas (medical, road and industrial accidents
for example) where defendants are either rich or are insured.

uu

One purpose of the tort might be thought to be to enforce standards of good


behaviour: to deter people from being careless. In many situations the deterrent
effect is limited. Car drivers are likely to drive carefully because of a fear of death or
injury, or of prosecution resulting in fine or imprisonment. Fear of a civil action for
damages hardly figures, since the damages will come from an insurance company
(although admittedly the driver may find insurance more expensive or even
impossible in future).

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.

Law of Tort 2 Negligence: basic principles

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

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3 Negligence: duty of care and breach of duty

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
3.1

Duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

3.2

Functions of the duty concept . . . . . . . . . . . . . . . . . . . . . . 18

3.3

Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

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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:
uu

explain the concept of duty of care and its purposes

uu

identify the various tests that have been suggested for the existence of a duty of
care

uu

discuss the duty concept in the context of some particular situations, namely,
controlling others, duty of lawyers and duty to unborn children

uu

describe the standard of care required of defendants both in general and in


respect of particular skills.

Essential reading

Lunney and Oliphant, Chapter 3: Negligence Introduction, Section I


Formulation of a general duty of care, Part 1 Historical introduction, Section II
The duty of care in the modern law, and Chapter 4: Breach of Duty.

Markesinis and Deakin, Chapter 3: Establishing liability in principle: duty of


care, Section 2 Formulating the duty of care and Chapter 4: Liability for fault:
breach, Section 1 The concept of breach of duty.

Murphy, Chapter 2: Duty of care I: foundational principles, Section 1


Introduction and Section 2 The emergence of a general test and Chapter 4:
Breach of duty, Section 1 The standard of care.

Winfield and Jolowicz, Chapter 5: Negligence: Duty and Breach, Section 1 Duty
of care: general and Sections 35.

Law of Tort 3 Negligence: duty of care and breach of duty

3.1 Duty of care


The duty of care concept has at least two purposes. The first is to provide an overall
framework for the huge variety of situations in which liability may arise. For centuries
the law has recognised relationships in which one person owes a duty to another.
What was lacking was a general principle of which the various cases were illustrations.
The second purpose is one of limitation, setting the boundaries within which one
person could be liable to another for the consequences of careless behaviour.

3.1.1 Finding a general test


A number of attempts have been made to expound such a general test. We will look at
four of the most influential.
1. The neighbour principle
Donoghue v Stevenson [1932] AC 562 was important in two respects.
uu

First, by a majority, the House of Lords recognised a new relationship as giving


rise to a duty of care, that between manufacturers and the ultimate consumers
of manufactured products (in this particular case a bottle of ginger beer). This is
sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has
in practice been superseded by a new kind of liability established in the Consumer
Protection Act 1987 (see Chapter 8).

uu

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:
uu

It was reasonably foreseeable that a person in the claimants position would be


injured.

uu

There was sufficient proximity between the parties.

uu

It is fair, just and reasonable to impose liability.

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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These three tests are very similar. In particular, notice that:


uu

They are very general. It is possible to understand what they mean in practice only
after studying a number of illustrative cases.

uu

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.

uu

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.

4. An alternative test: assumption of responsibility


For some purposes, an alternative test has been developed, namely whether there had
been a voluntary assumption of responsibility by the defendant for the claimant. This
test is particularly used in cases of liability for omissions, for mis-statements and for
economic loss as discussed in Chapter 5.

3.2 Functions of the duty concept


Traditionally the duty concept has been seen as serving two separate functions:
uu

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?

uu

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.

Law of Tort 3 Negligence: duty of care and breach of duty

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3.2.1 Duty at the abstract level


Is there a duty to prevent X injuring C?
An important problem is how far the defendant owes a duty to stop or prevent
another person (X) injuring the claimant. This can be illustrated thus:
Conduct causing damage

C (Claimant)

X (Third party)

Proposed
action

D (Defendant)
Examples of this problem would include the following:
a. Should a school (or a

b. Should a host at a party

c. Should a car owner

parent) owe a duty of

owe a duty of care to

owe a duty of care to

care to passing motorists

prevent a guest driving

keep it locked up to

to see that a child does

home drunk and injuring

prevent a thief stealing

not run out of the school

a pedestrian?

it and knocking down a

and cause an accident?

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:
uu

What is the relationship between X and D? Does D have some responsibility over X?

uu

What is the relationship between C and D? Does it involve some obligation on Ds


part to protect C against harm?

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

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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?

Duty of care to unborn children


A doubt as to whether the common law recognised a duty of care to unborn children
in respect of damage done before birth was resolved by statute: the Congenital
Disabilities (Civil Liability) Act 1976. The Act originally envisaged a child being born with
disabilities as the result of damage to the mother (or sometimes the father) occurring
during pregnancy or sometimes before conception. Typical examples were physical
injuries to a pregnant woman in, say, a car crash, or the side effects of drugs. It had
to be amended in the light of advancing medical technology to deal with damage to
stored sperm or eggs: Human Fertilisation and Embryology Act 1990.
These Acts impose liability only where the damage caused the disability from which
the baby suffers when it is born. They do not allow an action where the negligence
caused the baby to be born, but did not cause the disabilities. A doctor may, for
example, negligently carry out a sterilisation procedure on either a man or a woman,
or may fail to recommend an abortion: any child born as the result of this negligence
has no claim.
These ethical reasons do not apply where the claim is by the father or mother (or
both) who have to bring up the child. For a time the courts seemed likely to allow such
claims. The ethical issues (together with a wide-ranging review of how these issues are
decided round the world) are discussed:
uu

where the child is healthy and is being raised in a loving family (McFarlane)

uu

where the child is disabled (Parkinson)

uu

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.

You should think about the


ethical reasons for the childs
inability to claim negligence
and for the reluctance in
most cases to allow the
parents to claim.

Law of Tort 3 Negligence: duty of care and breach of duty


Novel situations
Other examples of cases where the courts have had to decide in novel situations
whether they should hold that there was a duty of care are: Mulcahy v Ministry of
Defence [1996] QB 732 (liability of injuries to soldiers on active service; Vowles v Evans
[2003] EWCA Civ 318, [2003] 1 WLR 1607 (liability of rugby referee to injured player).

3.2.2 Scope of the duty of care


Even if the defendant owed a duty of care to some people, there remains the question
of whether the particular claimant was within the scope of that duty. See Bourhill v
Young [1943] AC 92; Palsgraf v Long Island Railroad Co (1928) 248 NY 339; Haley v London
Electricity Board [1965] AC 778, Urbanski v Patel (1978) 84 DLR (3rd) 650; Goodwill v British
Pregnancy Advisory Service [1996] 2 All ER 161.
In the last case (Goodwill) the points made about the woman claimants position are
still of interest, although the courts assumptions about the position of her partner
have been undermined by the cases referred to in 3.2.1.

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.

3.3 Breach of duty


The next question is whether there has been a breach of the duty of care. Has the
defendant actually been negligent?
As a practical matter, this is very important. It will often be a major issue between the
claimants advisers and the defendants advisers or insurers in attempting to reach
a settlement. If there is a trial, much time may be spent on deciding what actually
happened and whether that amounted to negligence on the defendants part. In that
end this is a question of fact. It is however a question of fact that has to be answered
within a structure of legal rules. You cannot be expected to decide in an examination
answer whether or not the defendant was in fact negligent, but you can be expected
to identify in a question the respects in which the claimant could argue that the

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defendant has been negligent and also explain how the question will be approached
within the structure of legal rules.

3.3.1 The basic rule


The basic rule is that the defendant must conform to the standard of care expected of
a reasonable person.
Negligence is the omission to do something which a reasonable man guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a reasonable and prudent man would not do. (Blythe v Birmingham
Waterworks (1856) 11 Exch 781)

Compensation Act 2006


As we noted in Chapter 2, there have been increasing concerns in recent years about
the so-called compensation culture the idea that standards of care in negligence
had been set too high and people were too ready to pursue compensation. The
government responded to these concerns with the Compensation Act 2006.
Section1 of that Act provides that the court should consider whether liability might
prevent a desirable activity from being undertaken at all, or discourage persons from
undertaking functions. It was applied in Hopps v Mott MacDonald Ltd [2009] EWHC 1881
(QB), where it was held that a finding of liability on the employer would prevent the
desirable activity of reconstructing the infrastructure of Iraq being undertaken.
In Sutton v Syston Rugby Club [2011] EWCA Civ 1182, the Court of Appeal specifically
referred to s.1 of the Act in the case of a claimant who was injured when he fell on part
of a cricket boundary marker (not easy to spot) on the rugby pitch. In finding that a
reasonable walk over of the pitch to inspect it for dangers was sufficient to discharge
the clubs duty of care, the Court noted that games of rugby are desirable activities
within the meaning of the Act.

Ordinary person in ordinary circumstances


One of the few cases in which the House of Lords has had to consider the behaviour of
an ordinary person in ordinary circumstances (not involving special skill or knowledge)
is Glasgow Corporation v Muir [1943] AC 448. Lord Macmillan highlighted two
important aspects of the test:
a. The standard of foresight of the reasonable man is, in one sense, an impersonal
test. It eliminates the personal equation and is independent of the idiosyncrasies
of the particular person whose conduct is in question.
b. It is an objective test. (For a situation in which it may be appropriate to take a more
subjective view of the defendants conduct, see 5.3.1 and the case of Goldman v
Hargrave.) The abstract reasonable person is put into the shoes of the defendant,
who is expected to have the same general knowledge and understanding of risks
(say, that icy roads are slippery or that children may get up to mischief) as the
reasonable person. The actual defendant may be stupider or more ignorant, or may
be cleverer or more knowledgeable, but is still judged by this abstract impersonal
standard.
c. It is still left to the judge to decide what, in the circumstances of the particular
case, the reasonable man would have had in contemplation. Here there is room for
diversity of view. What to one judge may seem far-fetched may seem to another
both natural and probable. The outcome is therefore to that extent unpredictable
even in the tiny minority of cases that are resolved in court.

3.3.2 Defendant with special skills or qualifications


Most of the difficult reported cases however involve defendants with special skills or
qualifications. It would be silly to ask whether a reasonable person would have driven
the car, removed the appendix or designed the building in the same way as the actual
motorist, surgeon or architect who is being sued. In such cases the defendant is to be

The Glasgow Corporation


case is a good illustration of
the point made in Chapter
2 about the artificiality in
many questions of looking
separately at the three issues
of duty, breach and damage.
In this case there was
only one simple question.
Should Mrs Alexander, the
manageress of a teashop,
have told her child customers
to stand outside while two
people carried an urn of hot
tea through the shop? The
answer depends on what
dangers a reasonable person
would have expected and
what steps (if any) such a
person would have taken to
avoid them. Lord Macmillans
words are appropriate
whether you think of this
primarily as a question
of breach of duty or as a
question of remoteness of
damage.

Law of Tort 3 Negligence: duty of care and breach of duty

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compared to a reasonable person with the relevant skill or qualification. This is not
always as easy as it might be.
uu

For one thing, there is sometimes doubt as to exactly what skill or qualifications
the defendant professes to have.

uu

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.

You should read and make


notes on:
Bolam v Friern Hospital
Management Committee [1957]
1 WLR 582
Bolitho v City and Hackney
Health Authority [1998] AC 232

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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.

3.3.3 Related issues


Children
Children may be liable in negligence and are judged by what might be expected of
a reasonable child of the defendants age, and the courts appear to be indulgent
towards high spirits and horseplay: Mullin v Richards [1998] 1 All ER 920 and Blake v
Galloway [2004] EWCA Civ 814, [2004] 3 All ER 315.

Defendant unable to perform competently


A defendant may be liable even if they were doing their incompetent best. But if their
behaviour was the result not of inexperience or incompetence, but of illness or other
external forces, then they may be found not liable. See Mansfield v Weetabix Ltd [1998]
1 WLR 1263. (But the result would have been different if the driver had known of the
medical condition.)

Eliminating harm must be proportional to the danger


A defendant is not required to eliminate all risk of harm even when it is foreseeable: to
do so might be out of all proportion to the danger. The defendant must do something
only if a reasonable person would have thought it right to do so. In deciding what
precautions have to be taken to minimise a perceived risk, the following guidelines
may be taken into account:
a. How likely was it that injury would occur?
b. How serious was the injury likely to be if it did occur?
c. How difficult and/or expensive would it be to eliminate the risk?
d. How important or urgent was the action of the defendant?
See: Bolton v Stone [1951] AC 850 (explained by Lord Reid in Wagon Mound (No 2)) [1967]
1 AC 617 at 642; Latimer v AEC [1952] 2 QB 701; Paris v Stepney BC [1951] AC 367; Watt v
Hertfordshire CC [1954] 2 All ER 368.
It is important to remember that the defendant is to be judged by how a reasonable
person with the same skill, etc. would have behaved at the same time and in the
same circumstances. The defendant must not be judged with the benefit of hindsight

Law of Tort 3 Negligence: duty of care and breach of duty


(making use of knowledge not available at the time of the alleged tort) and allowance
must be made for any special circumstances affecting the defendant (e.g. having to
act under pressure or with limited time for full consideration). For examples, see: Roe
v Minister of Health [1954] QB 66; Luxmoore May v Messenger, May- Baverstock [1990] 1 All
ER 1067; and Moy v Pettman Smith [2005] UKHL 7, [2005] 1 WLR 581.

3.3.4 Are decisions on breach questions of fact or law?


Everything in the last few paragraphs involves propositions of law which are binding
on the courts. Once these principles have been applied, however, the decision on the
particular facts of a case does not constitute a binding precedent. The fact, say, that it
was held in a particular case that an employer was negligent in failing to ensure that
an employee wore a particular kind of safety equipment does not mean that all other
employers will also be held negligent if they behave in the same way. The issue will
have to be decided in the light of the particular facts each time it occurs. See Qualcast
v Haynes [1959] AC 743.
This approach is not very helpful to potential defendants such as building contractors,
who do not want to know that they have to take reasonable care, but do want to
know exactly what instructions, equipment and so on they have to supply. So it is very
common for regulations under the authority of various Acts of Parliament to set out
detailed rules on such matters. The basis of liability for breaches of such regulations is
explained in Chapter 7.

3.3.5 Proving breach of duty


Very often the claimant may not be able to find out what happened. A parked car, for
example, may have moved off without warning down a hill. All the claimant can do is
show that such a thing does not normally happen unless there has been negligence.
The claimant can then make use of a rule of the law of evidence called res ipsa loquitur
(the facts speak for themselves). You must ask yourself:
a. when it is legitimate to use the maxim
b. what the effect of invoking it is. See Scott v London & St Katharines Dock (1865) 3 H&C
596; Henderson v Henry E Jenkins [1970] AC 282; Ng Chun Pui v Lee Chuen Tat [1988] RTR
298.
You should be warned that this doctrine applies only exceptionally. You should not
make use of it in answering questions unless there is a clear suggestion that there is no
explanation for what has happened and the only inference is that the defendant must
have been negligent.

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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there may be some risks in giving these tablets to overweight patients. C has a
heart attack. Is D liable?

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.

General examination advice


All claimants in a negligence action must establish that there has been a breach of a
duty of care. This does not mean that all examination questions require an extended
discussion of these topics. If a problem involves a driver of a car hitting someone
while proceeding at 80 mph down a one-way street in the wrong direction, then these
issues can be disposed of in two sentences. A problem question may involve only
issues discussed in this chapter, but is likely also to involve topics from other chapters.
An essay question of a general kind on the duty of care will almost certainly require
information and ideas from Chapter 5 as well as this chapter.

Law of Tort 3 Negligence: duty of care and breach of duty

page 27

Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain the concept of duty of care and its


purposes

I can identify the various tests that have been


suggested for the existence of a duty of care

I can discuss the duty concept in the context of some


particular situations, namely, controlling others,
duty of lawyers and duty to unborn children.

I can describe the standard of care required of


defendants both in general and in respect of
particular skills

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

3.1

Duty of care

3.2

Functions of the duty concept

3.3

Breach of duty

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Negligence: causation and remoteness of damage

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
4.1 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4.2

Causation: special problems: multiple causes . . . . . . . . . . . . . . . 34

4.3

Remoteness: the basic rule . . . . . . . . . . . . . . . . . . . . . . . . 38

4.4

Qualifications of the basic test . . . . . . . . . . . . . . . . . . . . . . 39

4.5

New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . . 40

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

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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

identify the causal link that has to be established in hypothetical situations

uu

identify circumstances in which the basic rule produces unacceptable results and
may have to be modified

uu

explain the policy considerations underlying those modifications

uu

explain the concept of remoteness of damage in general and identify the basic
rules of remoteness in the tort of negligence

uu

identify the policy reasons for choosing that rule of remoteness

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

Lunney and Oliphant, Chapter 5: Causation and scope of liability.

Markesinis and Deakin, Chapter 5: Liability for damage caused: causation and
remoteness.

Murphy, Chapter 5: Causation and remoteness.

Winfield and Jolowicz, Chapter 6: Negligence: causation, remoteness (scope of


liability) and contributory negligence, Sections 13.

Law of Tort 4 Negligence: causation and remoteness of damage

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.

4.1.1 The basic rule


The basic rule may be stated positively or negatively. If the damage would still have
occurred, even if the defendant had not broken the duty of care, then the breach did
not cause the damage. If the damage would not have occurred but for the defendants
breach of duty, then the breach of duty is a cause of the damage. For this reason, the
basic rule is often referred to as the but for test. Its main purpose is to exclude things
that have no bearing on the damage. It is for the claimant to show that the breach of
duty was the cause of the damage, and not for the defendant to show that the breach
of duty was not the cause of the damage.
We know in a common sense way that it is rarely possible to be absolutely certain
about such matters, and the law does not demand such certainty. It is sufficient to
show that on a balance of probabilities the breach was the cause of the damage, or
that it is more likely than not that the breach was a cause of the damage. In principle
it is an all or nothing question. If it is more probable than not that negligently
administered drugs caused the claimants deafness, then the claimant recovers in full
for the deafness. If it is not more probable than not, even if it is a possibility, then the
claimant recovers nothing.
In many cases the causation issue raises no problems at all: this is particularly true
where the defendant has been guilty of some positive wrongdoing, such as overtaking
a vehicle at a blind corner or administering the wrong dosage of a drug. Usually it is
very clear whether or not the act has caused the damage. There is likely to be more
difficulty in those cases where the defendants breach of duty consists of a failure to
do something that should have been done. Here it is necessary to speculate about
what would have happened if the defendant had not been guilty of this failure. There
are several different situations to consider:

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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.

Law of Tort 4 Negligence: causation and remoteness of damage

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

4.1.2 Damages for loss of a chance


So far it has been assumed that we know what is meant by the damage. There is
sometimes room for argument on this point. This is illustrated by Hotson v East
Berkshire Area Health Authority [1987] AC 750.
Hotson injured his hip in a fall (no tort was involved). The hospital failed correctly
to diagnose and treat his injury for some days. In due course he suffered a wasting
(necrosis) of the hip leading to permanent disability. This was caused by the original
injury, but was it caused by the negligent failure to treat him immediately? The judge
(unusually) assessed the chances. There was a 25 per cent chance that he would have
recovered if treated properly, but a 75 per cent chance that he would not. He and
the Court of Appeal awarded him 25 per cent of the damages that would have been
payable if the hospital had caused the necrosis. The House of Lords disagreed and
awarded him nothing (apart from a small sum for the pain suffered during the days of
delay).
If the damage is the necrosis, this decision is in line with the normal rule described
above, and is similar to Barnett v Kensington and Chelsea Hospital, if it was possible
to say immediately after the accident, Hotsons injuries are of such severity that he
personally has only a 1 in 4 chance of avoiding necrosis. An alternative argument is
that, at that time, Hotson was a boy with an injured hip and also with a one in four
chance of recovery. The hospital negligently destroyed his chance, and that chance
had been worth something to him. The House of Lords refused to apply that analysis
to the facts of Hotsons injury, and applied the general principle described earlier
in this chapter. The House did accept that the loss of a chance could sometimes be
recoverable in damages, but did not explain in what circumstances that would be the
case.
A majority of the House of Lords in Gregg v Scott [2005] UKHL 2, [2005] 2 WLR 268
reaffirmed that the general approach in Hotsons case should be followed and declined
to depart radically from its principles.
When then are damages for loss of a chance recoverable?
Sometimes this is allowed in breach of contract actions (Chaplin v Hicks [1911] 2 KB
786). It is also clear that, when the courts have identified an item of damage as being
caused by a tort, then the measure of damages (the amount of money awarded in
compensation) reflects the loss of future chances. For instance, if the claimant has
proved that the tort caused physical injuries leading to permanent unemployment,
then the amount of money paid in compensation will be based on the chances of
future employment, and not on proof that on a balance of probabilities he would
have had a particular career. A similar approach seems to have been taken in Spring
v Guardian Assurance plc [1995] 2 AC 996 (see details in Chapter 5), where Lord Lowry
thought that the claimant would not have to prove that the negligent reference
supplied to prospective employers caused him not to be appointed to a post, but
that he would be compensated for the loss of a chance of future employment. See
also Allied Maples v Simmons & Simmons [1995] 1 WLR 1602. In both cases the loss was

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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.

4.2 Causation: special problems: multiple causes


In a number of situations the application of the but for test would lead to outcomes
that would be absurd or arguably unjust. The courts have in some of these cases been
prepared to abandon or modify that test. There are many variations in the possible facts,
and it is important that you analyse correctly and carefully the leading cases and any
problems that you are asked to consider.

4.2.1 Two separate causes of the same damage


Suppose that David and Daniel acting independently at the same moment shoot Conrad,
who dies instantly: either shot would have been fatal. Logically each assailant could say
that he was not the cause of death, because, even if he had not been there, the other
shot would still have killed Conrad. On this reasoning neither defendant would be liable.
Such a result would be absurd. In such a case the court would hold that both David and
Daniel were liable, leaving them to contest the matter between themselves.
That situation is of course most implausible. What can and does occur is that two
successive actions may independently bring about the same damage. This is associated
with two important decisions of the House of Lords. These are often misunderstood
by students and applied where they should not be. It is therefore important first to
understand the situation in which it is appropriate to refer to them. The present problem
arises where there are two unconnected events (one or both a tort), each of which would
in the absence of the other have caused a particular item of damage. An example will
make it clearer.
Imagine a professional sporting star with a large income and valuable sponsorship deals.
Let us call him Edward. In January Edward is injured in a road accident and loses both legs.
Six months later in an entirely separate and unconnected event someone throws acid in
his face and blinds him. Three months after that, you meet him and say, Hullo, Edward.
Are you still playing football? He replies, No, I am not, because How would you finish
the sentence for him? Is it because he has no legs, or because he is blind?

Law of Tort 4 Negligence: causation and remoteness of damage

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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.

Damages are assessed once


and for all so that if they
are calculated and the case
disposed of by settlement
or by litigation before the
second event occurs, the
assessment will not be
reopened (see Chapter 13,
Section 13.3.2 Principle 4).

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4.2.2 Uncertainty of the facts


In the previous section the facts were not in doubt. The problem was a logical one.
In this and the next section the problem is one of the uncertainty of the facts. Two
or more people in breach of their duty of care cumulatively cause harmful fumes to
afflict the claimant and cause the onset of a disease, i.e. the disease is one in which, the
greater the exposure to the fumes, the worse the disease is likely to become. In such
cases the court is likely to hold both defendants liable. It is held that it is sufficient to
show that the defendants breach of duty materially contributed to the damage, and
that it is not necessary to show that the defendants fumes caused the damage.
This approach has been extended to situations where tortiously produced fumes have
combined with non-tortiously produced fumes, at least where all the fumes came
from the same source. See: Bonnington Castings Ltd v Wardlaw [1956] AC 613.
Now go back to the situation described at the start of Section 4.2.1, but vary the facts in
one respect. Only one shot hits Conrad and the other misses, but it is impossible to tell
which is which. He was therefore the victim of a tort, but it is impossible to say who
the tortfeasor was. This situation arose in the Canadian case of Cook v Lewis [1951] SCR
830, and the decision in effect was that both defendants should be liable, unless either
could show that his shot was not the fatal one. Here is another situation in which it
seems wrong to deny the claimant recovery because in effect he was the victim of two
torts and not one. After all, one defendant actually hit the claimant and the other by
firing carelessly made it impossible to identify the killer.
This is one illustration of a difficult problem, which arises where:
a. the defendant has been guilty of negligence
b. there has been damage of a kind which it is known can be caused by negligence of
that kind, and
c. there is no evidence as to whether in this case the damage was in fact caused by
the negligence.
This lack of proof may be because something else happened at the same time which
obscures the position, or because medical science has not reached the point where it
can be certain of the causation of the disease.
This has most recently been considered by the House of Lords in Fairchild v Glenhaven
Funeral Services Ltd [2002] UKHL 22. You must study this case carefully and identify the
facts. The reasoning can then be tested against some important earlier cases that are
discussed in the speeches.
This case illustrates a problem that has for long caused difficulty. The House surveys
the way it has been dealt with in a large number of countries round the world, and also
reviews it historically as far back as the classical Roman jurists of the second century
AD. Nevertheless the House emphasises that it is deciding what should happen only
on the precise facts of this case, and is not laying down universal rules. It is therefore
vital to be clear about the crucial facts, and then to think about how many of these are
present in other cases, and also to consider how the absence of one of these factors
or the presence of others might lead to a different outcome. The crucial factors are
conveniently listed by Lord Bingham of Cornhill see the reference given in Chapter
3 section 3.1. There are five speeches all reaching the same result. Lord Huttons
reasoning was however rather different from that of the other judges. The other
speeches, though differing in detail, are very similar in approach.
The House heard appeals arising out of three separate cases, all with identical facts.
The claimants all suffered from a form of cancer undoubtedly caused by asbestos
dust. The dust does not operate cumulatively as described in 4.2.2. The process by
which the asbestos caused the cancer was not entirely understood, but it might be
that one fibre or group of fibres triggered the cancer, perhaps some years later: if so,
once the triggering had occurred, exposure to other fibres would not make matters
any worse, and stopping the exposure to asbestos would not make matters any better.
The claimants had all worked for more than one employer over many years. All the

Law of Tort 4 Negligence: causation and remoteness of damage


employers had in breach of their duty exposed the claimants to asbestos fibres. It was
impossible to form any view about whose fibres had triggered the cancer. The Court
of Appeal held that none of the employers was liable because the claimants could not
prove against any of them that their fibres had caused the cancer: the House of Lords
held that they were all liable, so long as the evidence remained inconclusive.
You will also have to consider two other decisions of the House of Lords analysed in
Fairchild. These are McGhee v National Coal Board [1972] 3 All ER 1008 and Wilsher v Essex
Area Health Authority [1988] 1 AC 1074.
The Court of Appeal decision in Wilsher has already been explained (see Chapter 3). The
health authority had failed to detect that the catheter had been wrongly inserted and
therefore the premature baby received too much oxygen. That was held to be negligent.
The health authority did not ask the House of Lords to reverse that decision. It did
however concentrate on the problem of causation. Excess oxygen can cause blindness
in premature infants. It is however only one of several causes. Had it been the cause
in the case of Wilsher? The House of Lords held that this had not been established on
the balance of probabilities, and that the case had to be retried in order that the court
applying the proper balance of probabilities test could decide the matter.
In Sienkiewicz v Grief (UK) Ltd [2011] 2 AC 229 a mesothelioma victim had been exposed
to asbestos dust in the factory where she worked for 18 years. Although there was
only one employer, the deceased had also been exposed to asbestos dust in the
environment of the town where she lived. The trial judge said that since there was
another potential cause which did not arise from the tort of the employer, the
claimant should have to prove causation on the normal balance of probabilities test,
and he found that she had failed to discharge this test. Even though it could not be
said that the employers breach of duty had materially increased the risk of injury, the
Court of Appeal allowed the appeal, saying that in mesothelioma cases a claimant
could establish causation by showing that the workplace exposure to asbestos had
materially increased the risk of the employee developing the disease.

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.

Reminder of learning outcomes


By this stage 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

identify the causal link that has to be established in hypothetical situations

uu

identify circumstances in which the basic rule produces unacceptable results and
may have to be modified

uu

explain the policy considerations underlying those modifications.

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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4.3 Remoteness: the basic rule


Even if the tort caused the damage, that is not the end of the story. A breach of duty
may considerably change the course of subsequent events, but the defendant will
not be liable for everything that can be traced back to the original wrongdoing. The
remoteness issue limits the extent of the defendants liability. This too can be illustrated
by our ordinary use of language.
Claudia travels to work in London: the only convenient way is by train from her local
station. One day she finds that a train has been derailed outside the station and
blocked the line. She therefore has to return home. During the morning an intruder
breaks in and shoots her in the leg. It would be natural for her to say, I was absent
from work yesterday because my train was derailed. But it would not be natural for
her to say, I was shot in the leg yesterday because my train was derailed. Yet it is true
that, if there had been no derailment, she would not have been at home and would
not have been shot. There is however a feeling that the link between the shooting and
the derailment is not close enough. In legal language, the shooting is too remote a
consequence of the derailment.
Like causation, the remoteness issue is relevant to all torts in which proof of damage
is essential, or in which the claimant is seeking compensation for specific losses. The
test of what consequences are too remote, however, is not formulated in the same
way in all torts. In every tort involving damage, you will have to learn what the test of
remoteness of damage is. Later in this chapter we will consider the way in which the
test is formulated in the tort of negligence.
The main purpose of the rules of causation is to exclude those things that are not the
cause of the damage. If the same damage would have been suffered even if there had
been no breach of a duty of care, then the claimant loses. But the opposite is not true.
Even if the damage would not have been suffered without the breach of duty (i.e. the
breach of duty is a cause of the damage), it does not follow that the defendant is liable.
The breach of duty may initiate a whole chain of further events but some of these will
be treated as too remote from the original negligence for it to be appropriate to hold
the defendant answerable for those distant outcomes.
At one time the test of remoteness of damage in the tort of negligence was said to be
whether the damage was the direct consequence of the breach of duty. If it was merely
indirect, particularly if there was something which broke the chain of causation, then
the defendant was not liable. This test was particularly associated with the decision of
the Court of Appeal in Re Polemis [1921] 3 KB 560.

The acceptable test: foreseeable consequences


Since 1964 the accepted test has been that the defendant is liable for damage only if it
was the foreseeable consequence of the breach of duty. The Privy Council so decided in
The Wagon Mound (No 1) [1961] 1 AC 388.
Furnace oil had been negligently spilled from a ship in Sydney Harbour. The oil had
been carried to nearby docks where welding operations were in progress. A piece of
cotton waste caught fire, the temperature was raised sufficiently to ignite the oil and
the resulting fire destroyed the docks and ships moored there. The New South Wales
courts, applying the English rule of the time, held that (on the evidence presented) the
great fire was not foreseeable, but that it was the direct consequence of the spillage
and therefore the defendants were liable. The Privy Council disagreed. The defendants
should be liable only for what could reasonably have been foreseen. The Privy Council
gave two reasons. A test of foreseeability was (a) simpler and (b) more just, because it
was unfair to hold a careless defendant liable for more than could have been foreseen
when and if he thought about the consequences before committing the act of
negligence. It is hoped that the law will thereby be simplified and that, in some cases
at least, palpable injustice will be avoided (per Viscount Simonds).

Law of Tort 4 Negligence: causation and remoteness of damage

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.

4.4 Qualifications of the basic test


Viscount Simonds certainly thought that the substitution of the new test would
not affect the outcome of many cases. Foresight is not a term that can be applied
mechanically. The way it is used can be understood only by examining a selection
of cases in which it has been considered. A very narrow test would mean that the
defendant would be liable only if the very thing which happened was what would be
expected and therefore foreseen: a very wide interpretation would suggest that the
defendant would be liable for everything that you could imagine happening unless
it was utterly far-fetched. The approach in the cases decided since 1961 falls between
these two extremes, but is probably closer to the latter. The following are reasons why
the effect has not been great:
a. How much is foreseeable?
The significance of the new test was considered by the House of Lords in Hughes v Lord
Advocate [1963] AC 837.
More recently the House has again considered the problem and analysed both the
Wagon Mound (No 1) and Hughes v Lord Advocate in Jolley v Sutton London Borough Council
[2000] 1 WLR 1082. This is in fact a case based on the Occupiers Liability Acts (see
Chapter 6), but the common law principles were discussed and applied.
These cases show that it is not necessary to foresee precisely what happened. In
particular it is not necessary to foresee either (i) the severity of the damage or (ii) the
precise manner in which it occurred. It is sufficient if the injury is of the type that could
be foreseen, even it came about in an unexpected way or was much more severe than
expected.
This can be illustrated by the facts of Jolley. The defendant council had in breach of
duty failed after several months to remove a derelict cabin cruiser that had been
abandoned on its land. The issue was whether the council could foresee only that
small children would be injured by clambering over it, or whether (as actually
happened) teenaged children would be injured by jacking it up and working
underneath it in order to make it seaworthy. This is in the end a matter of judgment
the Court of Appeal unanimously held that the accident was not foreseeable, the
House of Lords unanimously held that it was.
The following case also illustrates the difficulty in drawing the line: Doughty v Turner Metal
Manufacturing Company [1964] 1 QB.
b. The egg-shell skull cases
Before 1961 the courts had recognised what was called the egg-shell skull cases, and,
after some hesitation it has been held that the principle of these cases had survived the
introduction of the new rule for remoteness.
This looks like the issue discussed in Section 3.2.1 and the case of Haley v London Electricity
Board) but must be sharply distinguished from it. This is a common source of confusion
for students. In the Haley kind of case the defendants had behaved in a way that
presented no danger to most people: only a person with a particular susceptibility would
have been in any real danger of injury at all. Our present rule may be expressed this way:
uu

where (i) the defendant is in breach of duty to the claimant

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]).

4.5 New and intervening cause


4.5.1 General
A particular problem of remoteness arises in the following circumstances:

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

Law of Tort 4 Negligence: causation and remoteness of damage

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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.

4.5.2 Intervening criminal conduct


The following cases are relevant: Lamb v Camden London Borough Council [1981] QB 625;
Perl v Camden London Borough Council [1984] QB 342; Smith v Littlewoods Ltd [1987] AC
241.
In all these cases the claim failed. The Littlewoods case is particularly instructive: note
that there are two leading speeches, those of Lord Mackay of Clashfern and Lord Goff of
Chieveley, but they followed different lines of reasoning. Lord Goffs will be considered
under the heading of liability for omissions (Section 5.3). Lord Mackays reasoning
relates more closely to the issues discussed in this chapter.
Sometimes intervening criminal conduct, even though surprising, is not too remote
if it is closely related to the risk posed by the defendants conduct: Al-Kandari v Brown
[1988] QB 665.

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.

4.5.3 Intervening negligent conduct


There could be many situations in which the subsequent carelessness of some third
party has caused new injuries. One example is Knightley v Johns [1982] 1 WLR 399.
The most likely situation relates to medical treatment administered to the victim.
Cindy is injured by the negligence of Daphne. She is taken to hospital and as the result
of her treatment her injuries are worse than they were otherwise expected to be.
Daphne has brought about the need for hospital care. Does that mean that she has to
be answerable in law for the further medical complications or is she entitled to assume
that Cindy will receive proper care and pass on responsibility to the hospital for the
aggravation of the injuries? The law is not entirely separated, but the following would
seem to be relevant distinctions.
a. The hospital is not negligent, or, as in Robinson v Post Office (see 4.4) the hospitals
negligence fails the but for test (see 4.1). In that case Daphne is likely to be liable
for all the subsequent injuries.

Note: This is a striking


example of a case in which
the Court of Appeal went
through each of the elements
of the negligence action (i.e.
duty, breach and remoteness)
one after the other.

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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.

4.5.4 Intervening conduct by the claimant


So far it has been assumed that the new and intervening acts were perpetrated by
a third party: sometimes, however, subsequent conduct by the claimant is in issue.
Where the defendant is being asked to take responsibility for the claimants own
failures, there are several conceptual mechanisms to be considered.
i. Did the defendant owe a duty to protect the claimant against the claimants own
stupidity? See the discussion in Section 3.2.
ii. Did the claimants own conduct break the chain of causation? It is certainly likely
that, where the defendant had a duty to protect the claimant against an identified
risk (e.g. that the claimant would commit suicide), then the risk, if it materialises,
cannot be a new and intervening cause. (See the Reeves case below.)
iii. Are any of the defences of voluntary assumption of risk, contributory negligence or
illegality available so as to defeat the claim or reduce the damages available?
Examples of where the claimants subsequent actions are careless are McKew v Holland
& Hannen & Cubitts [1969] 3 All ER 162; Wieland v Cyril Lord Carpets [1969] 3 All ER 1006.
In Spencer v Wincanton Holdings Ltd [2010] PIQR P8 the employer admitted liability
for the first accident but sought to rely on McKew, arguing there was no liability to
pay damages for the second accident because it had been caused by the employees
unreasonable conduct in attempting to fill his car with petrol without wearing his
prosthesis or using his sticks. In dismissing the employers appeal against liability,
the Court of Appeal held there was no novus actus interveniens that broke the chain
of causation. The employees contributory conduct towards the second accident
had been below the standard of unreasonableness required to break the chain
of causation: contributory negligence was available to deal with the sharing of
responsibility.
Examples of where the claimants subsequent actions are deliberate are Kirkham v
Chief Constable of Greater Manchester Police [1990] 2 QB 283 and Reeves v Commissioner of
Police for the Metropolis [2000] 1 AC 360.

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?

Reminder of learning outcomes


By this stage you should be able to:
uu

explain the concept of remoteness of damage in general and identify the basic
rules of remoteness in the tort of negligence

uu

identify the policy reasons for choosing that rule of remoteness.

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.

Law of Tort 4 Negligence: causation and remoteness of damage

Sample examination question


In 2004 Theo was aged 19, an apprentice plumber and a talented rugby player. He
hoped to sign a contract as a professional player and eventually to play for England.
However he had back problems and so was referred to Ursula, a neurosurgeon.
She told him that it would be impossible for him to take part in professional
rugby without soon sustaining serious injury and no club would sign him on as a
professional. If he were to give up rugby she advised him that he would be able
to lead a normal life without back trouble for many years. There was, however,
a new surgical procedure that offered a very good prospect of strengthening his
back sufficiently to enable him to play rugby. Ursula knew that recent research
had suggested that the new procedure carried a small risk of damaging the spine.
Ursula was critical of this research and did not tell Theo about it. Theo decided to
have the surgery. Although the operation was carefully performed, he suffered
serious damage to his spine. He was then unable to work as a plumber and suffered
considerable pain.
In January 2005 Theos mother collapsed just outside her front door on a very cold
night. As there was no help available, Theo lifted his mother inside. He experienced
terrible back pains and is now permanently disabled.
Advise Theo as to any tort claim against Ursula on each of the following alternative
assumptions:
a. he would probably have suffered no injury as the result of lifting his mother but
for the earlier operation
b. he would probably have suffered the same injury as the result of lifting his
mother even if he had not had the earlier operation.

Advice on answering the question


This question raises issues on Chapters 3 and 4. There is also a minor point that the
hospital or health authority will be vicariously liable see Chapter 13 but no problem
arises on that and it can be stated in a sentence.
a. Ursula owes a duty to Theo. This is a classic duty situation and no extended
discussion is required.
b. Is Ursula in breach? More discussion required, especially on Chester v Afshar.
You must carefully explain what Ursula has done and why. She didnt withhold
the information from Theo because there was only a small risk, but because she
thought the research suggesting that there was a small risk was flawed. Is that a
breach of duty?
c. The main issues are causation:
i.

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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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can state and explain the basic rule defining the


causal link between the breach of duty and the
damage

I can identify the causal link that has to be


established in hypothetical situations

I can identify circumstances in which the basic rule


produces unacceptable results and may have to be
modified.

I can explain the policy considerations underlying


those modifications

I can explain the concept of remoteness of damage


in general and identify the basic rules of remoteness
in the tort of negligence

I can identify the policy reasons for choosing that


rule of remoteness

I can 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

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

4.1 Causation

4.2

Causation: special problems: multiple causes

4.3

Remoteness: the basic rule

4.4

Qualifications of the basic test

5 Negligence: special problems

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.1

Liability for pure economic loss and for negligent mis-statements . . . . 47

5.2

Liability for psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . 53

5.3

Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . 55

5.4

The liability of public authorities . . . . . . . . . . . . . . . . . . . . . 58

5.5 Rescuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

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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

explain what is meant by pure economic loss

uu

explain the reasons why the courts have been hesitant about allowing recovery
of compensation for such loss

uu

explain the circumstances in which a duty may arise in making statements

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

distinguish between primary and secondary victims

uu

identify circumstances in which damages for psychiatric injury may be


recoverable

uu

explain uncertainties in this area of law and consider possible reforms

uu

distinguish between acts and omissions

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

describe the scope of the duty of care owed to rescuers.

Essential reading

Lunney and Oliphant, Chapters 710.

Markesinis and Deakin, Chapter 3: Establishing liability in principle: duty of care,


Sections 35.

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.

Law of Tort 5 Negligence: special 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.

5.1.1 The starting point


The starting point for the discussion of both these topics is Hedley Byrne & Co v
Heller & Partners Ltd [1964] AC 465. The claimants through their bankers asked the
defendants for advice about the creditworthiness of one of the latters customers.
The defendants gave a reasonably favourable reply, and the claimants extended credit
to the customers and suffered losses in consequence. The House of Lords held that
in principle the defendants owed a duty of care to the claimants and would have
been liable to them for the resulting losses if they had not given the advice without
responsibility on our part. For the moment you can ignore the point about without
responsibility (this is discussed at 5.1.4(d)) and consider the issues of principle. The
case profoundly changed the law in two respects:
a. the defendants were held to owe a duty to take care in the advice or information
that they gave
b. that duty extended to purely economic losses.
A claimant who suffers loss by relying on inaccurate statements could and can bring
a claim in the tort of deceit (see Chapter 10), but in 1889 the House of Lords had held
that to establish liability in that tort the claimant had to prove that the defendants
either knew that what they were saying was false or were reckless as to whether what
they were saying was true or false.
It was assumed until 1964 that the result of Derry v Peek (1889) LR 14 App Cas 337 was
that there could be no liability where the defendant had not lied or been reckless, but
had merely spoken carelessly. The Hedley Byrne case put an end to that view.

5.1.2 The meaning of pure economic loss


It is vital to understand what is meant by pure economic loss (the words financial or
pecuniary are also used). It is to be distinguished from consequential economic loss.
Consequential economic loss is recoverable and arises in these cases:
uu

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.

Pure economic loss by contrast arises:


uu

where there is no physical injury to any person or to any 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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5.1.3 The recovery of pure economic loss: policy considerations


The general common law rule was that a defendant was not liable for purely economic
loss. The principle is illustrated by Simpson & Co v Thomson (1877) LR 3 App Cas 279 and
Candler v Crane, Christmas [1951] 2KB 164.
The dissenting judgment of Denning LJ in the latter case was approved by the House
of Lords in the Hedley Byrne case. Since 1964 the rules as to the recovery of economic
loss have been somewhat relaxed. This does not however mean that all foreseeable
economic loss is recoverable. The law still takes a restrictive view, as is explained in
5.1.4 and following sections. It is helpful first to consider the policy reasons that restrict
the right of recovery for economic loss. Many of these are developed and applied in
the cases that follow. Among the many policy arguments are these:
uu

Economic interests are intrinsically less worthy of protection than physical


interests.

uu

If economic loss generally is recoverable, the burden on particular defendants


will be unbearably high. (Imagine that the defendant carelessly pollutes a holiday
beach. Holidaymakers stay away. All the business interests in the town suffer losses.
Is the defendant to have to compensate them all?)

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

Allowing economic loss to be recovered in tort muddles the boundary between


contract and tort. The nature of this argument has changed because of the
enactment of the Contracts (Rights of Third Parties) Act 1999. Before then claimants
sometimes tried to frame a claim in tort because the strict rules of privity of
contract prevented them from suing in breach of contract.

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.

5.1.4 Economic loss cases (i): negligent mis-statements


The first group of cases concern liability for economic loss flowing from careless advice
or information.
a. When does the duty arise?
The House of Lords did not decide in Hedley Byrne v Heller that a person had a duty
to take care in making statements whenever damage or loss was foreseeable. It is,
however, not easy to explain in a few words what relationship (sometimes called a
special relationship) there has to be between the speaker and hearer before a duty of
care arises. This can only be understood by reading the case and the commentaries
on it in the textbooks. The following passage from Lord Morris of Borth-y-Gest gives a
flavour of it:
If, in a sphere in which a person is so placed that that others could reasonably rely on his
judgment or his skill or on his ability to make careful enquirya person takes it on himself
to give information or advice to or allows his information or advice to be passed on to
another person who, as he knows or should know, will place reliance on it, then a duty of
care will arise. ([1964] AC 465 at 503)

The speaker is therefore usually giving advice in a serious, business or professional


context. He may be in the business of giving advice or he may be especially
knowledgeable (and therefore specially to be trusted) about the subject on which he

There is an example of this


discussion in the case of
White v Jones (see 5.1.5). Lord
Goff points out that some
legal systems would allow
the claimants in that case
an action to enforce the
contract, but English law does
not, even probably after the
1999 Act.

Law of Tort 5 Negligence: special problems


speaks. It is unusual, although not impossible, for the duty to arise between friends in
a relatively social context. See Chaudhry v Prabhakar [1988] 3 All ER 718.
Liability is sometimes said to result from an assumption of responsibility on the part
of the defendant (see Lord Goff in Henderson v Merrett Syndicates below and in other
cases), but the expression has been criticised (see Lord Oliver in Caparo Industries v
Dickman, below). The expression assumption of responsibility is considered in the
textbooks and you should note the discussion.
Even where there is an employment relationship or other contractual or similar
relationship between the parties, a defendant may be found to have voluntarily
assumed responsibility to advise the claimant on specific matters: see Lennon v
Metropolitan Police Commissioner [2004] EWCA Civ 130, [2004] 2 All ER 266.
b. When is there liability?
The discussion of mis-statements tends to focus on the existence of the duty, but you
must not forget that the defendant is liable only if there is a lack of care. Much advice
on economic matters turns out to be wrong without being careless. The defendant has
the opportunity to explain the limits of his knowledge and the amount of research he
has undertaken and is to be judged according to what he promised to do.
It also has to be shown that the negligent advice or information was a cause of the
claimants loss.
c. To whom is there liability?
i. The loss may be suffered by someone other than those to whom the advice or
information was addressed. Two decisions of the House of Lords can be contrasted:
Smith v Eric S. Bush (a firm) [1990] 1 AC 831 and Caparo Industries v Dickman [1990] 2
AC 605.
These deal with important social situations. In Smith a house purchaser, who
wished to obtain mortgage finance from a bank, sued a surveyor who had been
commissioned by the lending institution to provide a report (paid for by the
purchaser) to the bank about the state of the property. The surveyor was held to
owe a duty to the purchaser and not just to the bank, even though she had been
advised about the desirability of obtaining her own survey but had not done so. In
Caparo a firm of accountants who had carried out a statutory audit of a company
were held to owe a duty to the shareholders as owners of the company but not to
the claimants who launched a take-over bid for the company on the strength of the
accounts.
You must ask yourself why different approaches were adopted in these cases.
Consider especially (i) the number of potential claimants in the two situations and
(ii) the social significance of each of the two situations.
A duty may arise in a Caparo type situation if the relationship between the claim
and the purpose for which the auditors report was prepared is close enough. See:
James McNaughton Paper Group Ltd v Hicks Anderson & Co [1991] 2 QB 113; Morgan
Crucible Co plc v Hill Samuel & Co Ltd [1991] Ch 295; Law Society v KPMG Peat Marwick.
ii. The advice may be relied on by one person but the loss suffered by someone else:
Ministry of Housing v Sharp [1970] 2 QB 223; Spring v Guardian Assurance Ltd [1995] 2
AC 296.
In the latter case the writer of a reference about a former employee seeking a job
was held to owe a duty of care to the employee and not merely to the prospective
employer who relied on it. Note that the defendant was obliged (through the
rules of the regulatory system for financial institutions) to provide a reference. In
McKie v Swindon College [2011] EWHC 469 (QB) an unsolicited email (not a reference)
containing largely erroneous and untrue statements sent by the former employer
of a lecturer led to his dismissal from a new job. Although the email was not a
reference, applying the Caparo test, the defendant was nevertheless liable for the
negligent statement.

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Liability for statements on a website was considered in Patchett v Swimming Pool
& Allied Trades Association Ltd (SPATA) [2009] EWCA Civ 717. The claimants relied on
representations on a website which they alleged were inaccurate and misleading.
The question was whether the defendant, SPATA, owed a duty of care to internet
users who relied on statements on its website. The Court of Appeal found that, on
the facts, there was no assumption of responsibility because advice on the website
made it clear that customers should obtain an information pack for further details.

d. Can liability be excluded?


In Hedley Byrne v Heller the defendants escaped liability because they gave advice
without responsibility. Is that phrase to be analysed as preventing a duty from arising
or as excluding liability for a breach of duty? This was not very important when the
case was decided, but the analysis is more important now since the passing of the
Unfair Contracts Act 1977. If the phrase is an exclusion clause, it is likely to fall under the
Act, but it may not do so if it prevents any duty from arising in the first place. (You will
have studied the 1977 Act in the course on Elements of the law of contract: despite its
title, it also applied to exclusion clauses which are not terms of a contract.)
This problem was considered in Smith v Eric S Bush (a firm) (see above). It was held in
that case that the words did amount to an exclusion clause and did not satisfy the test
of reasonable (s.11 of the 1977 Act).

5.1.5 Economic loss cases (ii): performance of a service


The Hedley Byrne case was for long thought of as being concerned with advice or
information on which the claimant relied. Later it was interpreted more widely and an
extended Hedley Byrne principle was recognised: the defendant can be liable where
there has been a voluntary assumption of responsibility by the defendant towards the
claimant either generally or for the purposes of a specific transaction. On this view
liability for negligent mis-statements is merely an example of a wider principle and
reliance is not a necessary ingredient of liability. See especially: Henderson v Merrett
Syndicates Ltd [1995] 2 AC 145.
The scope of the extended principle was explained by Lord Steyn in: Williams v Natural
Life Health Foods [1998] 1 WLR 430.
There is an important example of the principle in: White v Jones [1995] 2 AC 207 where
the assumption of responsibility by a solicitor towards his clients was extended to the
intended beneficiary of the clients will who, as the result of the failure by the solicitor
to execute the will before the clients death, was deprived of the intended legacy. The
case is striking because the claimant did not suffer a loss, but merely failed to get a
financial benefit that the deceased testator had intended her to have. The main reason
for extending the responsibility of the solicitor was that otherwise there would be no
sanction against a failure by the solicitor: the deceaseds client estate would have a
contract action against the solicitor, but the estate had suffered no loss.
For another example of the scope of an extended assumption of responsibility, see
Gorham v British Telecommunications plc [2000] 4 All ER 867.

5.1.6 Economic loss cases (iii): damage to anothers property


A decision against recovery of economic loss soon after Hedley Byrne v Heller was Weller
v Foot and Mouth Disease Research Institute [1966] 1 QB 243.
The defendants carelessly allowed the escape of a virus that causes a disease in cattle.
As a result all movement of cattle was banned. The claimants were auctioneers whose
business could not operate and whose claim for compensation was rejected. If their
claim had succeeded, a great many other businesses would also have been entitled to
compensation.
A line of cases followed in which the defendants employee damaged a power cable
or water main and so cut off the power supply to factories dependent on it. This was
considered by the Court of Appeal in Spartan Steel & Alloys Ltd v Martin [1973] QB 27.

Law of Tort 5 Negligence: special problems


The court held that in this type of case the distinction between pure and
consequential economic loss had not been affected by the Hedley Byrne case. If the
defendants carelessly cut off power to a factory by damaging the power supply (i.e.
by damaging property belonging to the power company and not to the claimant)
then it was important to see how it came about that the factory had to close for a
period. If the closure and economic loss resulted from foreseeable physical damage
to the machinery or other property of the claimant (e.g. because the factory could not
reopen until the machines had been cleaned out), then damages were recoverable for
the lost production. If the closure and economic loss resulted simply from the lack of
power, then it was pure economic loss and damages were not recoverable.
In all those cases there was a danger of indeterminate liability because a large number
of factories might be affected. The same principle was also applied in cases where
there was no such danger, because only one person could suffer economic loss: see
Candlewood Navigation v Mitsui OK Lines [1986] AC 1 and Leigh & Sillavan Ltd v Aliakmon
Shipping Corporation [1986] AC 785.
The effect may thus be as follows: a profit-earning chattel such as a ship is damaged
and out of use until repaired; if the claimant (C) owns and uses it for his own
commercial purposes, then he may claim the loss of profit; if C has hired the ship to
X, neither party may claim for the loss of profit, not C (suffered no loss) and not X (no
proprietary interest in the ship).
In England therefore it seems that relational economic loss (so-called because the
claimant suffers damage through a contractual or other relationship with the owner of
damaged goods) is not recoverable. A different view has been taken in other common
law countries. As an example, see: Canadian National Railway v Norsk Pacific Steamship
Co (1992) 91 DLR (4th) 289.

5.1.7 Economic loss cases (iv): Defective buildings and chattels


Another line of cases concerned claimants who had acquired a house or a flat that
had begun to show signs (or would show signs) of physical deterioration, so that the
claimants had to spend money putting it right or had to sell it for less than it should
have been worth. See Dutton v Bognor Regis Building Co [1972] 1 QB 373; Anns v Merton
London Borough Council [1978] AC 728; Junior Books v Veitchi [1982] AC 520 and Murphy v
Brentwood District Council [1991] 1 AC 398.
In Anns and some other cases there was held to be liability on the part of builders
who had constructed buildings inadequately, and of building inspectors employed by
local councils who had approved the construction, in respect of losses sustained by
ultimate purchasers who were not in any contractual relations with the defendants.
Anns (in so far as it concerned economic loss) and most similar cases were overruled
by the House of Lords in Murphy. The Junior Books case was not overruled, although its
correctness has been doubted by the House of Lords.
In this class of case the following now seems to be settled:
a. The loss in these cases is to be classified as economic loss, even though there has
been a physical effect on the building.
b. There is a clear distinction between property which is defective and thereby causes
damage to people or other property (damages recoverable) and property which
merely is itself defective and is therefore worth less than it should be (damages not
recoverable).
c. Exceptionally such claims may be successful. In Junior Books the defendants were
nominated as specialist sub-contractors to lay a floor in a factory being built for the
claimants. The floor was unsuitable for its purpose and had to be replaced by the
claimants. The defendants were held liable in tort (they had no contract with the
claimants) for the cost of replacement.

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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.

Reminder of learning outcomes


By this stage you should be able to:
uu

explain what is meant by pure economic loss

uu

explain the reasons why the courts have been hesitant about allowing recovery
of compensation for such loss

uu

explain the circumstances in which a duty may arise in making statements

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.

Law of Tort 5 Negligence: special problems

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5.2 Liability for psychiatric injury


Where the claimants injuries are psychiatric, and not physical, damages are recoverable
only exceptionally. It is not enough to show that psychiatric injury was reasonably
foreseeable. The first successful claim in England for damages for negligently inflicted
psychiatric injury was in 1901. Although knowledge of, and attitudes to psychiatric illness,
have changed in the twentieth century, the courts are reluctant to award damages
on the same basis as for physical injuries. There is a recent statement of the policy
objections to a general rule of recoverability by Lord Steyn in White v Chief Constable of
South Yorkshire Police [1999] 2 AC 455.

5.2.1 Control devices


The courts have developed a number of limiting devices to restrict claims for
psychiatric injury. There has been no intervention by Parliament: the Law Commission
recommended some legislative changes in 1998 (Law Comm 249), but these have not
been implemented.
The first restriction is that damages are available only for a recognised psychiatric illness
and not for grief, distress, sorrow, etc. You may however assume in answering a question
that a character in a problem who is said to have suffered psychiatric damage or illness
does in fact pass this test.
The other restrictions relate to the circumstances in which the psychiatric injury is
caused. For this purpose a distinction is drawn between primary and secondary victims
but there is an increasing number of claims (some successful) that do not fit within these
two categories as traditionally defined.

5.2.2 Primary victims


A primary victim is directly involved in the accident and is favourably treated.
It is sufficient for a primary victim to show that he was physically injured or that he was
in danger or reasonably believed himself to be in danger of physical injury, and it is not
necessary to show that psychiatric injury as such was foreseeable: Page v Smith [1996] 1 AC
155.
This has been criticised but has been reaffirmed by the House of Lords: see Simmons v
British Steel plc [2004] UKHL 20, 2004 SLT 595.
However more restrictively physical injury (or the fear of it) is a necessary as well as a
sufficient condition of liability: White v Chief Constable of South Yorkshire Police [1999] 2 AC
455.

5.2.3 Secondary victims


A secondary victim suffers psychiatric injury not through any physical impact but
through witnessing an event that causes or threatens death or serious injury to someone
else. The principles are derived from two decisions of the House of Lords: McLoughlin v
OBrian [1983] AC 410 and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310.
In the latter case a large number of people sued after an incident at a professional
football game when spectators were crushed to death after the police had allowed too
many people to crowd into the ground. Some were present at the ground, some were
watching television, some heard about it more indirectly. They were related in different
ways to those who had died.
To succeed as a secondary victim the following conditions are required:
i. The claimant must be in a close and loving relationship with the primary victim. In the
case of parents and children and spouses (and engaged couples) this is presumed,
in other cases it must be established. It is not necessarily easy to establish liability
outside the categories where love is presumed. Brothers were unable to establish the
relationship in Alcock.

This is considered further


at 5.2.4

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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.

5.2.4 Other cases


Although it was perhaps the intention of the courts that claimants could succeed only
if they met the criteria either of primary victim or of secondary victim, there are many
ways in which psychiatric injury can be caused. Some of these have come before the
courts, and some of these have succeeded.
i. Rescue cases (on rescue cases generally see 5.5)
At one time it was thought that a rescuer who suffered psychiatric injury as the result
of participating in distressing scenes could recover damages. In White v Chief Constable
of South Yorkshire Police (above) the House of Lords however held that rescuers can
succeed only if they are themselves at risk of physical injury. The claimants were
various members of the rescue services who suffered as the result of assisting victims
at the same football match as affected the victims in the Alcock case. They could
not succeed as secondary victims (because they had no ties of affection to any of
the primary victims) and did not succeed as primary victims because they were not
themselves in danger.
ii. Employees
In the White case the claimants argued that they could claim as employees, since the
negligence involved was that of the police. The House of Lords held that there were
no special principles attaching to the employment relationship, and the claimants
(despite that relationship) had to show that they were primary or secondary victims.
There is however now authority that employees may have claims against their
employers in certain circumstances where they have been exposed to work-related
stress (see Chapter 6). The relationship between such claims and psychiatric injury
claims is unclear.
iii. Participation in the event
A claimant suffers psychiatric harm through fearing (as the result of someone elses
negligence) that he has been the cause of an accident. It is possible that such a claim
should succeed though rejected on the facts in Hunter v BCC [1998] 2 All ER 97.
iv. Damage to property
There are rare cases where a claimant has succeeded in a claim for psychiatric harm
as the result of witnessing the destruction of or damage to property: see Owens v
Liverpool Corporation [1939] 1 KB 394 and Attia v British Gas [1988] QB 304.
v. Assumption of responsibility: close relationship
There remain a number of isolated cases with (as yet) no clear principles. Should
a defendant be liable for causing psychiatric injury by carelessly passing on wrong
information, or by passing on correct information in a carelessly insensitive way?
There may emerge a principle that a defendant should be liable if there is an
assumption of responsibility to protect the claimant against psychiatric injury or if

These cases have not been


referred to in recent House of
Lords decisions. There is no
recent authority.

Law of Tort 5 Negligence: special problems


there is an ongoing relationship between the parties that entails such a responsibility.
See W v Essex County Council [2001] 2 AC 592; A v Essex County Council [2003] EWCA Civ
1840, [2004] 1 WLR 1881; AB v Tameside and Glossop Health Authority [1997] 8 MedLR 91;
Leach v Chief Constable of Gloucestershire Constabulary [1999] 1 All ER 215 and McLaughlin
v Jones [2002] 2 WLR 1279.
In the W case Lord Slynn suggested that the primary and secondary victim categories
could not accommodate all cases. The House of Lords refused to strike out a claim (in
other words the claim was held to be arguable) by parents to whom a local council, in
breach of an undertaking, sent as a foster child a known sexual abuser. The child then
abused the other children in the family causing psychiatric injury to the parents. They
had some of the characteristics of secondary victims, except that they did not see
the abuse taking place. On the other hand, unlike most secondary victim cases, there
had been an ongoing relationship between the council and the parents as to their
suitability as foster parents.
See also D v East Berkshire Community NHS Trust [2005] UKHL 23, [2005] 2 WLR 993.

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?

Reminder of learning outcomes


By this stage you should be able to:
uu

explain why there are problems with allowing recovery for psychiatric damage

uu

distinguish between primary and secondary victims

uu

identify circumstances in which damages for psychiatric injury may be


recoverable

uu

explain uncertainties in this area of law and consider possible reforms.

5.3 Liability for omissions


The well-known statement of the breach of duty principle (see 3.3.1) referred to both
acts and omissions: so also did Lord Atkin in his neighbour principle in Donoghue
v Stevenson [1932] AC 562 (see 3.1.1). On the other hand there is often said to be no
liability for omissions in English law.
What do these statements mean? The former statements seem to have in mind
omissions as part of an activity. A driver of a car may be just as careless in omitting to
apply the brake as in pressing the accelerator too hard. A doctor may be careless in
omitting to test for allergies before giving an injection. At the other extreme, however,
English law, unlike many other systems, does not impose on people a general duty to
take positive action to assist people in difficulties or to avert harm, even if they are
physically well capable of doing so: an able-bodied person may stand by and watch
someone drown in shallow water. Between these two extremes, however, there is a
very wide area of uncertainty.
If there is a moral obligation to assist people in difficulty or danger, why is there no
legal obligation? This has been discussed by Lord Nicholls of Birkenhead and Lord
Hoffmann in Stovin v Wise [1996] AC 923.
Lord Hoffmann suggests that there are political, moral and economic reasons.

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5.3.1 When may English law impose liability for an omission?


i. Is the omission a part of an ongoing physical activity? A motorist who fails to turn
the steering wheel or give an appropriate signal is failing to carry out carefully the
activity of driving.
ii. Has the defendant entered into a relationship with the claimant to which the
law attaches positive duties to see that harm does not befall the claimant (e.g.
duties are owed by a parent to a child, by an occupier of premises to a visitor, by
an employer to employees in the workplace)? See generally: The Ogopogo [1971]
2 Lloyds 10 (Canadian case): the defendant had invited the claimant as a guest
on his yacht. The claimant accidentally fell overboard. The defendant was not a
mere bystander and was held to have a duty to take reasonable care to save the
claimant. Did the relationship of host and guest carry a legal obligation to assist?
Likewise a defendant may have undertaken to look after children or others unable
to help themselves.
iii. Has the defendant been thrust into a position which requires him to take some
action?
Goldman v Hargrave [1967] 1 AC 465. Defendants tree struck by lightning during a
hot Australian summer: defendant negligent in simply letting it burn out. (Notice
that in such a case the defendant may not have to show the care of a reasonable
person, but only have to do what he is capable of, given his health and resources.)
Likewise it would seem that a motorist whose car breaks down without any fault
may have to move it or take steps to warn others of the danger.
iv. Has the defendant assumed responsibility for the welfare of the claimant in some
respect? See: Henderson v Merrett Syndicates [1995] 2 AC 145 (see 5.1.5) and Phelps v
Hillingdon London Borough Council [2001] 2 AC 619.
This is not difficult to apply when the defendant has undertaken an ongoing
responsibility, in the course of which the omission occurs. It is not so clear what
the position is if the assumption of responsibility is in respect of the single instance
(compare the cases on the ambulance and other emergency services in 5.4).
v. If the defendant has assumed responsibility or otherwise a duty to assist or rescue,
that duty may extend to third parties. Remember the example of Home Office v
Dorset Yacht Co [1970] AC 1104 (3.2.1) and see also Carmarthenshire County Council v
Lewis [1955] AC 549.

5.3.2 What is the content of the duty?


Once it is decided that the defendant had a positive duty towards the claimants, that
is not the end of the matter. You must then ask what the content of that duty was:
Smith v Littlewoods Organisation Ltd [1987] AC 241 (defendant as occupiers of premises
clearly had some duty towards their neighbours, but not to prevent vandals breaking
in and starting a fire). See also Van Oppen v Bedford Charity Trustees [1989] 3 All ER 389.
The school owes some duty to pupils and parents but not generally to advise parents
about desirability of insuring pupils against accidental injury, nor had the school
assumed any such responsibility.
See also: Banque Keyser Ullman v Skandia Insurance Co [1991] 2 AC 249; Reeves v
Commissioner of Police for the Metropolis [2000] 1 AC 360; Barrett v Ministry of Defence
[1995] 1 WLR 1217; and Jebson v Ministry of Defence [2000] 1 WLR 2055.
English law has not considered the following problem. What do you think the answer
should be? Does a host at a dinner party owe a duty to his guests and/or to third
parties not to allow his guests to become drunk or to prevent them from driving home
if they are drunk?

Law of Tort 5 Negligence: special problems

5.3.3 Breach of duty and causation


The claimant will also have to show that the defendant was in breach of the duty of
care. Remember that, although people speak about a duty to rescue in a case like The
Ogopogo, what is really meant is a duty to take reasonable care to try to effect a rescue.
The breach of duty has to cause the injury or death to the claimant. It is necessary
to compare what the position of the claimant now is with what it would probably
have been if a reasonably competent rescue had been carried out. If the victim
would probably have died even if there had been a reasonably competent rescue, the
defendants incompetent efforts are not a cause of death.

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?

Reminder of learning outcomes


By this stage you should be able to:
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.

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5.4 The liability of public authorities


5.4.1 Introduction
To a large extent the law of negligence applies to public officials and public bodies
in the same way as it does to private individuals and commercial bodies. In recent
years there has been increased interest in exploring the possible liability of public
authorities in respect of their distinctive functions that are not normally carried out by
private bodies.
These are typically:
uu

The provision of benefits of various kinds to citizens.

uu

The regulation, supervision and inspection of various activities (e.g. in relation to


banking and financial regulation, food safety, education).

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.

5.4.2 What policy issues are relevant?


In applying the Caparo test to public functions, both the question of proximity and
that of fair, just and reasonable have to be considered. Among the policy arguments
that have been considered are:
uu

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.

Law of Tort 5 Negligence: special problems

5.4.3 Relevance of statutes


Many of the cases concern functions conferred by statute. A statute may impose a
duty (a council shall do something) or confer a power (a council may do something).
However most of the duties are expressed in very general terms (a duty to provide
suitable education) and so, in respect of duties and powers, the public authority has a
very wide discretion as to how to act.
There is a separate tort (i.e. distinct from negligence) called breach of statutory duty
(see Chapter 7) but this is of virtually no relevance to the liability of public authorities.
There is no tort called misuse of statutory powers.
The basic question is this: how far can a common law tort of negligence arise from or
run alongside the statutory functions (powers or duties)? The general answer is that
such a duty may (but does not necessarily) arise so long as it is not inconsistent with,
and does not cut across, the statutory regime. The detailed answer is more complex
but is becoming simpler.

5.4.4 General illustrations of the question


Here is a tentative set of illustrations of the main issues indicating where matters are
reasonably clear:
There is recent authority that a statutory function will seldom if ever bring about the
sort of proximity between citizen and public authority that would satisfy the second
limb of the Caparo test. See the views of Sedley LJ in Home Office v Mohammed [2011]
EWCA Civ 351 striking out a negligence claim by Iraqi Kurds whose applications for
indefinite leave to remain in the United Kingdom had been successful only after very
long delays because of administrative failures identified in judicial review proceedings.
Nevertheless there are situations where a duty of care can exist so that there is liability
for damage caused by the way a duty or power was carried out:
uu

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

The public authority may be treated as having assumed responsibility to a


particular individual: Barrett v Enfield London Borough Council [2001] 2 AC 550;
Swinney v Chief Constable of Northumbria Police [1997] QB 464.

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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5.4.5 The impact of the Human Rights Act 1998


The most relevant articles of the European Convention on Human Rights (ECHR) are
Articles 2 (right to life), 3 (torture and inhuman and degrading treatment) and 8
(respect for private and family life). These impose obligations on public authorities,
including at least some positive obligations. Article 3 for example, not merely prevents
public authorities from killing people but also requires the state to provide at least
some protection against being killed by others.
Many violations of Convention rights are of course clearly also torts. But where they
are not, the domestic courts can respond in two different ways:
uu

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.

5.4.6 Specific scenarios


Here are some scenarios in which these principles have been worked out:
(i) Protection of the public against crime
The House of Lords held in 1988 that in general the police owed no duty of care to
individual members of the public to identify and arrest a serial killer before he struck
again: Hill v Chief Constable of West Yorkshire [1989] AC 53.
Some years later this principle was applied in a case where the identity of the suspect
was known and the identity of the likely targets was also known: Osman v Ferguson
[1993] 4 All ER 344. The Court of Appeal held that the claim should be struck out as
disclosing no cause of action, that is, even if all the facts alleged by the claimant could
be proved to be true, the claim was bound to fail in law. The police were said rather
inaccurately to have an immunity.
An action was then brought before the European Court of Human Rights: Osman v UK
[1999] 1 FLR 193. That court held that there was no breach of Article 2 (right to life) and
laid down a rather narrow rule as to the circumstances in which a state might violate
the right to life by failing to protect the public (this has been relied on in subsequent
domestic cases):
It must be established that the authorities knew or ought to have known at the time of
a real and immediate risk to the life of an identified individual or individuals from the
criminal acts of a third party and that they failed to take measures within the scope of
their powers which, judged reasonably, might have been expected to avoid that risk.

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.

Law of Tort 5 Negligence: special problems


These principles have been considered in the following important cases involving
alleged failures to protect victims or witnesses by the police or other public
authorities. These cases involved a claim in negligence or under the ECHR or both. All
the claims failed: they contain important accounts of the policy justifications that need
to be carefully considered.
uu

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

Mitchell v Glasgow City Council [2009] UKHL 11, [2009] 1 AC 874.

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

A council may perhaps so behave as to create an assumption of responsibility


generally or to a specific individual that it will exercise its powers.

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.

5.4.7 Other elements of tort


Even if a duty of care is recognised, the claimant still has to satisfy the requirements of
breach, causation and remoteness. There are suggestions in both domestic courts and
the European Court of Human Rights that it might be difficult to prove for example that
social workers are in breach of their duties towards children because of the difficult
judgments that they have to make and the competing interests that they have to
reconcile.

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.

Law of Tort 5 Negligence: special problems

5.4.9 For consideration


Suppose that a local council has a statutory power to inspect restaurant kitchens. In
what circumstances if any might it be liable in the following situations:
uu

The council has not inspected Restaurant X for five years. A customer is poisoned
by contaminated soup.

uu

An inspector inspects a restaurant. He fails to find poison in soup. A customer is


poisoned.

uu

An inspector inspects a restaurant. He finds poison in soup and the restaurant


closes. The chef cannot find employment again. There was actually no poison in the
soup.

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?

Reminder of learning outcomes


By this stage you should be able to:
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.

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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Reminder of learning outcomes


By this stage you should be able to:
uu

describe the scope of the duty of care owed to rescuers.

Sample examination questions


Question 1 Joseph underwent spinal surgery at the Rundown Hospital. His
surgeon, Karen, was pioneering a new technique of rehabilitation under which
patients were made to undertake strenuous physical activity within a few hours
of leaving the operating theatre. She has written this up in medical journals. Some
other surgeons see merit in the approach, but most are highly critical. Joseph was
subjected to this regime. A nurse, Laura, was asked to walk Joseph up and down the
corridors and perform various exercises. After half an hour Joseph complained of
breathlessness and collapsed. After two hours in a coma, he died. His mother, Mary,
who had previously been told that he had survived the operation well, was called
back to his bedside. Because of a mix-up in the hospital, no-one was able to tell her
where Joseph had been taken. Another hour elapsed before she was directed to the
correct ward. When she got there, she was told that Joseph had died a few minutes
earlier.
Laura and Mary were both very distressed and are suffering from serious psychiatric
illness as a result of these experiences. Advise Josephs estate, Laura and Mary.
Question 2 Because of complaints about difficulty in finding competent builders,
electricians and other tradesmen in the area, Gammashire County Council started
a register of approved tradesmen accessible through the councils web site. In
the council newsletter circulated free of charge in the county, there is a section
entitled, What your council does for you. In this section the following item has
appeared regularly: No more hassle or worry about shoddy builders or dodgy
electricians. For a decent service, just enter our web site, and click on Tradewatch.
Youll find all the information you need.
In February 2005 Stella, needing an electrician, found Trevors name through the
council web site. Trevor carried out electrical work in her house. When she next
switched on an electrical appliance, there was an explosion and fire broke out. A
neighbour phoned for a fire engine, but the driver misunderstood his instructions
and went to the wrong address. The house was gutted.
Three people had complained to the council about Trevors workmanship
between November 2004 and February 2005, but, because of staff shortages, these
complaints had not been investigated and the web site had not been updated since
the beginning of 2005.
Advise Stella.

Advice on answering the questions


Question 1 The claim for Josephs estate depends on whether Karen is in breach of her
duty of care as a surgeon (see Chapter 3). Where there is a claim for psychiatric injury
you may assume here that it is a recognised psychiatric illness. Consider different ways
in which the claim can be put and what the snags are. One line is that the claimants
are secondary victims. Laura would seem to founder on the basis that she is not in a
presumed relationship of love and affection and there is no reason to show that such
love could be proved and it is perhaps not foreseeable that a nurse would be shocked
by a patient dying. Mary is in the presumed relationship but may not meet the criteria
of immediacy. If they are to claim as secondary victims, there has to be a primary
victim and so a breach of duty to Joseph would be needed. Alternatively it could be
argued that Mary is a primary victim because the hospital misdirected her when she
called to see Joseph before his death and that Laura suffered shock because she feared
that it might be her fault that Joseph died while he was being exercised.
Question 2 An obvious claim is against Trevor on an ordinary negligence basis for
carring out his work carelessly. The more interesting claims are against the public
authorities. There are policy issues about the liability of the public authority. It has
tried to help people who live in the areas by providing a list of tradesmen who can

Law of Tort 5 Negligence: special problems


carry out work. Should they be deterred from this useful service by the possibility of
liability? (NB: There is no suggestion that Trevor is or is held out as an employee of the
council and so no question of vicarious liability, as in Chapter 13, can arise.)
It appears to be voluntary, but there would be difficulties with liability even if they
were exercising statutory powers. The strongest argument against the council is
that by expressing themselves so strongly in the newsletter they will be held to have
assumed responsibility to visitors to the site. However, most cases of assumption of
responsibility envisage liability to a single person or identifiable group in respect of a
specific type of action (see Caparo) rather than to the public at large.

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain what is meant by pure economic loss

I can explain the reasons why the courts have been


hesitant about allowing recovery of compensation
for such loss

I can explain the circumstances in which a duty may


arise in making statements

I can explain and discuss the uncertainties that exist


in this area of law and the scope for reform

I can explain why there are problems with allowing


recovery for psychiatric damage

I can distinguish between primary and secondary


victims

I can identify circumstances in which damages for


psychiatric injury may be recoverable

I can explain uncertainties in this area of law and


consider possible reforms

I can distinguish between acts and omissions

I can explain the circumstances in which people may


have positive duties to take action to protect others
or to prevent injuries to others

I can 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

I can 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

I can describe the reasons for doubt about the


appropriate scope of liability of bodies exercising
regulatory, supervisory and similar powers

I can explain the impact of the European Convention


on Human Rights (ECHR) on the liability of such
bodies

I can describe the scope of the duty of care owed to


rescuers

Law of Tort 5 Negligence: special problems

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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

5.1

Liability for pure economic loss and for


negligent mis-statements

5.2

Liability for psychiatric injury

5.3

Liability for omissions

5.4

The liability of public authorities

5.5 Rescuers

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Notes

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6 Negligence: particular relationships

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
6.1

Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

6.2

Liability of manufacturers . . . . . . . . . . . . . . . . . . . . . . . . 76

6.3

Liability of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . 76

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

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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

define who is to be treated as an occupier of premises

uu

describe and explain the nature of the duty owed by an occupier to lawful
visitors

uu

explain the defences available to an occupier of premises

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

describe and explain the nature of an employers duty of care to employees

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.

Murphy, Chapter 7: Liability for defective premises and structures, Chapter


15: Product liability and Chapter 4: Breach of duty, Section 5 Breach of an
employers duty to his employees as well as Chapter 24: Vicarious liability,
Section 6 Liability in respect of employees.

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.

Law of Tort 6 Negligence: particular relationships

6.1 Liability of occupiers


6.1.1 Background
By 1957 the common law was thought to be unsatisfactory. Some of the rules appeared
rigid and complex (different duties were owed to different classes of entrants on the
land) and others were considered inappropriate. Parliament enacted the Occupiers
Liability Act 1957, which prescribed the occupiers duty to their lawful visitors. At that
time occupiers owed only a very limited duty to people who were not lawful visitors
(usually but slightly inaccurately called trespassers). A common law duty did develop
in the years following 1957, but it was in turn replaced by a statutory duty by the
Occupiers Liability Act 1984.
The following introductory points should be noted:
i. Lawful visitors are owed the duty set out in the 1957 Act; non-lawful visitors are
owed the duty set out in the 1984 Act. It is for the claimant to prove that he is a
lawful visitor and therefore entitled to the more favourable duties in the earlier
Act.
ii. Both Acts are expressed in very broad and non-technical language, which has given
rise to few problems of interpretation. There have been very few cases arising out
of the provisions of the Acts.
iii. Section 1(1) of both Acts provides that the rules in the Act have effect in place of
the rules of the common law. In other words, if the facts fall within the scope of
the Act there is no room for an alternative common law action in negligence. If
however the facts fall outside the scope of the Act, then the claimant may be able
to rely on a common law action, for example, in order to sue tradesmen working in
the premises, but not themselves occupiers. (Some instances in which the statutes
are thought not to be applicable and therefore a common law action may be
available are given in the text below.)
iv. The Acts are concerned only with liability to people physically in the premises.
The occupier may be liable to people outside the premises, on the street or in
neighbouring property, in negligence or in other torts, such as nuisance and the
rule in Rylands v Fletcher (see Chapter 11).

6.1.2 The Occupiers Liability Act 1957: scope of Act


Does the Act apply only to injuries resulting from the state of the premises or does it
also apply to injuries resulting from activities on the premises?
This is a matter of argument. The modern tendency seems to be to apply the Act only
to the former (see Ferguson v Welsh [1987] 1 WLR 1553, 1563).
In Ogwo v Taylor [1998] AC 431 the occupier, while carelessly burning off paintwork
on his roof, set fire to the house. The claimant, a fireman, was injured. The claim
was brought under the common law and the 1957 Act was not considered. On the
other hand both common law and statute were referred to on the unusual facts of
Cunningham v Reading Football Club [1992] PIQR 141, where the state of the premises
enabled other visitors to act in a way that injured spectators at a football match.

What can be occupied? (s.1(3)(a))


Most cases involve the occupation of premises, such as houses, offices, factories,
schools and so forth, but the Act also applies to any fixed or movable structure.

Who is an occupier? (s.1(2))


At common law (and under the statute) occupation is based on control and not
necessarily on any title to or property interest in the land: the question is whether the
defendant had sufficient control of the premises to be the person responsible for the
safety of visitors (Wheat v E Lacon & Co Ltd [1966] AC 552).

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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.

Who is a lawful visitor? (s.1(2))


This is a slightly trickier question. The Act has abolished the distinction between
different categories of lawful visitors (see s.2(1)). The distinction between lawful
visitors and non-lawful visitors remains and can be problematic. We can distinguish a
number of different situations:
uu

A person invited by the occupier on to the premises is a lawful visitor.

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

Miscellaneous cases can arise (see the discussion of Tomlinson v Congleton


Borough Council below).

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?

Law of Tort 6 Negligence: particular relationships

6.1.3 The nature of the duty


The duty owed by the occupier to a lawful visitor is the common duty of care defined
in s.2(2). You should study this duty carefully and notice how closely it corresponds
to the common law duty of care. It is a flexible duty depending on the circumstances
including the purposes for which the visitor is on the premises. Examples of relevant
circumstances are given in the two following sub-sections (ss.2(3) and (4), but these
are indeed only examples. Thus, although the Act mentions the special position of
children, other visitors such as the elderly or disabled (not specially mentioned in the
Act) might also raise similar problems for the occupier.
The four examples given by the Act are:
i. Children (s.2(3)(a))
An occupier should be prepared for children to be less careful than adults. They
may be more adventurous and may not understand the nature of certain risks. The
occupier does not however have to guarantee that the house will be safe, but only
has to take reasonable care. If the childs parents are present, they must share some
responsibility, and, even if they are not present, it may be relevant to the occupiers
duty that they thought it prudent to allow their child to be where he was.
See Phipps v Rochester Corporation [1995] 1 QB 450 (a pre-Act case), Simkiss v Rhondda
Borough Council (1983) 81 LGR 461 and look again at Jolley v Sutton London BC [2000] 1
WLR 1082 (see Chapter 4).
Notice that this is not a mechanical rule to be applied every time the claimant
happens to be a child. It is helpful in situations where the fact that the claimant was a
child made it more likely that there would be an injury (because the child was of small
stature or did not appreciate the risk) and the occupier should have guarded against
this in some way.
ii. Trade visitors (s.2(3)(b))
A visitor in the exercise of his calling will appreciate and guard against any special
risks ordinarily incident to it. The situation that this sub-section envisages is that an
occupier who calls in, for example, a representative of the gas supply company to
investigate a smell of gas can assume that he will know how to protect himself against
the danger. (See the discussion in Roles v Nathan [1963] 1 WLR 1117.)
This does not mean that the occupier is immune from liability: presumably the
occupier must accurately explain the nature of the problem. Further, in Ogwo v Taylor
(see above) the occupier was liable for negligently creating the danger that required
the presence of the specialist. This case was not decided under the 1957 Act, but the
principle would seem applicable thereto.
iii. Warnings (s.2(4)(a))
This sub-section has to be considered carefully. It deals with the situation where the
occupier has given the visitor a warning of some danger on the premises (Loose
carpet; Slippery floor). (See again Roles v Nathan [1963] 1 WLR 1117.) The important
thing is to understand that the occupier who gives a warning is attempting to
perform or to discharge his duty of care: he is not attempting to exclude his liability.
If something slippery has been spilt on the floor of a shop, the occupier can (a) close
the shop, (b) clean up the spillage or (c) give a warning so that the visitor can avoid
the spot or step gingerly. The question is whether the warning is enough to enable the
visitor to be reasonably safe.
iv. Independent contractors (s.2(4)(b))
This needs careful consideration as well. It deals with the situation where the occupier
has called in independent contractors, such as electricians to rewire a house or
builders to erect an extension, and the injury is due to the faulty execution of any
work of construction, maintenance or repair (words that have been given a flexible
interpretation see AMF International v Magnet Bowling [1968] 1 WLR 1028). This too is a
flexible provision. A substantial occupier, such as a university, would normally have a

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maintenance department that would be able to supervise outside contractors, but a


domestic householder would have to trust a competent electrician to do a good job.
An occupier might discharge the duty in such a situation by selecting the contractor
carefully (e.g. checking that they belong to a professional organisation and not just
giving the job to someone who called at the door or placed a small ad in the local
newspaper).
See Ferguson v Welsh (above) for a discussion of this sub-section. For an unusual case
see Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ 1041, [2003] QB
443. Compare the reasoning of the different judges in that case.

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.

Make sure that you can


clearly distinguish between a
warning of danger (which is
an attempt to fulfil the duty
of care) and an attempt to
exclude liability.

Law of Tort 6 Negligence: particular relationships

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6.1.5 Occupiers Liability Act 1984


The common law originally took a harsh view of the rights of those who were not
lawfully on the land. (These persons are usually referred to as trespassers, but the
category is wider than those who commit the tort of trespass to land: it includes those
involuntarily on the land.) For an example of the old rule, see Addie v Dumbreck [1929]
AC 358.
Various attempts were made to reform the law by judicial decisions. The most
important was the decision of the House of Lords in British Railways Board v Herrington
[1972] AC 877, which imposed on occupiers a duty to act with common humanity
towards trespassers.
This case has now been replaced by the Occupiers Liability Act 1984, but may still
be relevant in cases that fall outside the scope of the Act, e.g. where the visitor has
suffered property damage (see s.1(8) of the 1984 Act).
The 1984 Act in many ways follows the pattern of the 1957 Act, e.g. as to who is an
occupier and the kind of premises covered by the Act (s.1(2)). The nature of the duty
is however rather different. It is not the case that the occupier owes a duty to ensure
that trespassers are reasonably safe when trespassing on the premises. Instead the
structure of the duty is as follows:
i. there has to be a danger on the premises (s.1(1))
ii. a duty arises if three separate conditions are satisfied (s.1(3))
iii. the content of the duty is set out at s.1(4)).
It should also be noted that, like the 1957 Act, the occupiers duty may be discharged
by a suitable warning (s.1(5)) and that it is a defence that the visitor willingly accepted
the risk (s.1(6)).
The most important cases on the effect of the 1984 Act are:
uu

Ratcliffe v McConnell [1999] 1 WLR 670

uu

Donoghue v Folkestone Properties Ltd [2002] EWCA Civ 231; [2003] 2 WLR 1138

uu

Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46.

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?

Read the statute and make


a note of the conditions in
s.1(3) and the content of the
duty in s.1(4),

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Reminder of learning outcomes


By this stage you should be able to:
uu

explain which entrants into private premises are lawful visitors and which are
not

uu

define who is to be treated as an occupier of premises

uu

describe and explain the nature of the duty owed by an occupier to lawful
visitors

uu

explain the defences available to an occupier of premises

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.

6.2 Liability of manufacturers


The narrow rule in Donoghue v Stevenson [1932] AC 562 (see Chapter 3) recognised that
manufacturers owed a duty of care to the ultimate consumers of the manufactured
products. Over the years this duty was extended and refined and took on in practice
some of the characteristics of strict liability (for definition see Chapter 1). Parliament
has now imposed such a strict liability on manufacturers under the Consumer
Protection Act 1987 (see Chapter 8). Although this Act does not expressly have effect in
place of the rules of the common law (in the way that the Occupiers Liability Acts do),
in practice it affords more satisfactory remedies, and the narrow rule in Donoghue v
Stevenson needs no longer be studied in detail.

6.3 Liability of employers


6.3.1 The background
An employee injured at work has three possible actions against the employer.
i. An action in negligence for breach of the employers duty of care. This is the
concern of the present chapter.
ii. An action for breach of statutory duties imposed by Parliament on the employer.
The principles of the tort of breach of statutory duty are explained in Chapter 7:
the content of the various regulations prescribing safety equipment, clothing,
procedures and so forth fall outside the syllabus and are part of a specialist course
in employment law.
iii. The employer may also be vicariously liable for the torts committed by another
employee. The principles of and the justifications for vicarious liability are
explained in Chapter 13. For the present it is enough to note that an employer
(even if not personally at fault) is in law answerable for the torts committed by
employees in the course of their employment.
The inter-relation between these actions is of some interest. Before 1948 an action
based on vicarious liability was not available because of the doctrine of common
employment. If A, an employee of X Ltd, tortiously injured B, another employee of X
Ltd, and also injured C, not an employee of X Ltd, then X Ltd would be liable to C, but
not to B, because A and B were in the common employment of X Ltd. This doctrine
provided protection for the employer against possibly expensive tort claims. To offset

Law of Tort 6 Negligence: particular relationships

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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.

6.3.2 The nature of the common law action


It is now necessary to explain the way in which the employers common law duty of
care to employees differs from the duty of care that you have studied so far. It is said to
be non-delegable. This is most clearly explained by Lord Hailsham of St Marylebone in
McDermid v Nash Dredging [1987] AC 906 as follows:
This special sense does not involve the proposition that the duty cannot be delegated in
the sense that it is incapable of being the subject of delegation, but only that the employer
cannot escape liability if the duty has been delegated and then not properly performed.

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.

You may find it useful


to draw a diagram of the
relationships in this situation.

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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

describe and explain the nature of an employers duty of care to employees

uu

describe and explain the extent of the employers liability for defective
equipment used in the course of employment.

Sample examination questions


Question 1 In answering this question, you will have to revise material in Chapter 5.
Helga has been in England for the past year living as an au pair with the Smith family
and caring for their three-year-old son Jake. A few months ago she was waiting to
collect Jake at the gate of his nursery school. Ian, an employee of the local council,
the Playboy District Council, was cleaning out the drains in the street nearby.
He was using a pumping machine manufactured by Pumpfast plc and recently
purchased by the council. Suddenly the head of the pumping machine blew off and
flew through the air towards Jake. Helga saw the incident and screamed. Ian had
not seen it but heard Helgas screams. The detached part of the machine narrowly
missed Jake, who was uninjured. Helga and Ian have both been diagnosed as
suffering from a severe psychiatric injury. It has been established that Ian had set

Law of Tort 6 Negligence: particular relationships


up and operated the pumping machine in accordance with the manufacturers
instructions.
Advise Ian.
Question 2 Luke is the owner of the Methuselah Arms Hotel. The hotel is very
popular with elderly holidaymakers and is advertised as especially suitable for
them. Mr and Mrs Jackson booked in for a holiday. The receptionist told them that
there was a programme of redecoration under way in the hotel. The Jacksons are
both in their late eighties. Mr Jackson is in good health, but Mrs Jackson suffers
from the early stages of Alzheimers disease. After lunch one day Mrs Jackson
decided that she would stay in her room for a rest. Mr Jackson left her and went
to the residents lounge. Mrs Jackson woke up and could not remember where
she was. She left her room, walked along a corridor and through a door marked:
Private. Staff Only. Residents not admitted. She opened a door to a room that was
being redecorated. She fell over the rolled-up carpet, broke her leg and smashed
her valuable watch. Two maids found her, and one of them, Nina, ran down to the
lounge. Mr Jackson was asleep in a chair. Nina shook his shoulder and told him
that his wife appeared to be unconscious after a bad fall. Mr Jackson jumped up
suddenly out of his chair. As a result he turned dizzy and fell down, cutting his face
very badly.
Advise the Jacksons.
Question 3 Penny is a student at the Gradgrind University College. The College
holds a dance and party. All the publicity for the party states that it is open only
to staff and students and that they should have their College identity cards with
them. Penny goes to the party and takes her 12-year-old brother, Frank, with her.
Frank is very tall for his age and is not challenged by the College porters when he
arrives. Marks joinery firm has been carrying out minor repair work at the College,
and there are several prominent notices displayed, stating: Caution. Repair work in
progress. During the evening Frank goes to the lavatory. The bulb has been missing
from the light outside the lavatory for several days. Frank runs out of the lavatory
and along the corridor. He trips in the semi-darkness and lands on a chisel that has
been left leaning against a wall by one of Marks employees. Franks hand is severely
injured and his mobile phone is smashed.
Advise Frank.

Advice on answering the questions


Question 1 How could Ians claim for psychiatric injury be framed? He surely cannot
succeed as a secondary victim because he has no tie of love and affection to the
primary victim (Jake). He cannot be an orthodox primary victim because he was not
in danger nor did he reasonably think he was in danger because he knew nothing
until he heard Helga scream. The only argument is that he might be a special kind of
primary victim (see 5.2.4): if so, you have to establish that either the manufacturer
or his employer is liable. For the liability of the manufacturer, see Chapter 8: for the
liability of the employer, consider the Employers Liability (Defective Equipment) Act
1969.
NB: Helgas claim does not depend on material in this chapter, since she is not
an employee. She can however argue that she is a secondary victim (Jake being
the primary victim) if she can prove that her year with the family have given her a
sufficiently loving and affectionate relationship with Jake, or that she is a primary
victim if she feared herself to be in physical danger from the flying object. The basis
of her claim under such damage would be the Consumer Protection Act 1987 (see
Chapter 8): the facts seem to rule out any negligence by Ian in the operation of the
machine.
Question 2 Consider the two claimants separately. Mrs J was injured by state of
premises and so the Occupiers Liability Acts should be considered, but her case can
be argued in different ways (compare the problem of analysis in Tomlinson). She was
originally a lawful visitor. Can you argue breach of common duty of care to her, since
the hotel knew she was elderly and frail and encouraged such visitors? Was there a

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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.

Law of Tort 6 Negligence: particular relationships

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain which entrants into private premises


are lawful visitors and which are not

I can define who is to be treated as an occupier of


premises

I can describe and explain the nature of the duty


owed by an occupier to lawful visitors.

I can explain the defences available to an occupier of


premises

I can explain the circumstances in which and the


extent to which an occupier can exclude his liability
to lawful visitors

I can describe and explain the nature and extent of


the occupiers duty to trespassers

I can describe and explain the nature of an


employers duty of care to employees

I can describe and explain the extent of the


employers liability for defective equipment used in
the course of employment.

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

6.1

Liability of occupiers

6.2

Liability of manufacturers

6.3

Liability of employers

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7 Breach of statutory duty

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
7.1

Tort and illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

7.2

Breach of statutory duty . . . . . . . . . . . . . . . . . . . . . . . . . 86

7.3

The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . 89

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92

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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

identify the characteristics of the tort of breach of statutory duty

uu

explain the tests that have been deployed to determine when a statute is held to
give rise to civil liability

uu

outline what has to be established by a claimant alleging a breach of a statutory


duty that does give rise to civil liability

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.

Markesinis and Deakin, Chapter 7: Breach of statutory duty.

Murphy, Chapter 19: Breach of statutory duty.

Winfield and Jolowicz, Chapter 7: Breach of statutory duty and misfeasance in


a public office, Section 1 Breach of statutory duty: existence of liability and
Section 2 Elements of tort.

Law of Tort 7 Breach of statutory duty

7.1 Tort and illegality


7.1.1 Background
You might think that there would be a general rule that, if you do something illegal
and thereby injure another person, you would be liable for the damage done. There
is, however, no such rule in English law. A good example is the decision of the Court of
Appeal in Chapman v Honig [1963] 2 QB 502.
The defendant landlord gave notice to the tenant to quit. This was lawful within the
terms of the lease, but amounted to a contempt of court because it was done to punish
the tenant for evidence he had given against the landlord in legal proceedings. The
court held that, although the landlord could be punished for his conduct, there was no
civil liability to the tenant.
There is therefore no principle of civil liability for criminal conduct even when damage
is foreseeable and even when damage is intended as a consequence of the criminal
conduct. It follows that there is no reason of principle why breach of a statute should
necessarily give rise to civil liability.

7.1.2 Possible approaches where a statute is involved


When Parliament passes a statute requiring or forbidding certain conduct, it can deal
with the question of possible civil liability in a number of ways:
i. it can expressly say that there will be civil liability
ii. it can provide its own machinery for civil liability separate from an action in tort
(this is common in relation to anti-discrimination legislation)
iii. it can expressly say that there will be no civil liability
iv. it can say nothing at all.
We are not concerned with the first three of these options. If the fourth option is taken
(as is very common) the courts have to decide what to do, because they are left with
what Lord Denning called a guesswork puzzle. If they think there should be some civil
liability, they can adopt one of the following techniques:
uu

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.

7.2 Breach of statutory duty


7.2.1 When does civil liability arise?
There is much uncertainty about when the courts will decide that a breach of
a statutory duty gives rise to civil liability. A number of general tests have been
suggested from time to time, but these are fairly inconclusive and sometimes
contradictory. Probably the most useful general guidance is this: it seems to be the
modern tendency to decide that no civil action should be available. Some examples
are given in the next section.
There is however one important exception. Since the end of the nineteenth century
the courts have invariably allowed an action in respect of statutes imposing safety
standards in factories and other workplaces (Groves v Lord Wimborne [1898] QB 402).
You will remember (Section 6.3.1) that the doctrine of common employment severely
restricted the right of employees to secure compensation for industrial injuries.
One of the ways in which the courts got round this was by allowing a direct action
against the employer for breach of any statutory regulations. (These regulations are
very numerous. They are being replaced by new regulations that are being adopted
throughout the European Union. The details of these regulations are not part of the
syllabus for this course.)
Of the many tests that are said to offer guidance, three are particularly useful:
uu

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.

It should be noted that, although it is usual to talk of statutory duties, in most


cases the duty is not set out in the statute itself but in delegated legislation (i.e. in
regulations made under the authority of the statute).

7.2.2 Civil liability: examples from case law


Here are some examples drawn from recent case law. In all but the last case listed, the
courts have refused to recognise civil liability:
uu

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.)

Law of Tort 7 Breach of statutory duty


uu

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

ORourke v Camden London Borough Council [1998] AC 188: this is a particularly


interesting example. The House of Lords, overruling earlier authorities, held that a
breach of the statutory duty on a local council to provide housing for homeless
people did not give rise to civil liability. The principal reason was that the main
purpose of the legislation was to promote the public interest in not having
homeless people on the streets rather than to protect the homeless as a class of
people. This is very sweeping and could apply to almost any such statutory
provisions. For example, any legislation designed to prevent personal injuries could
be described as having the public purpose of reducing the costs to the Health
Service.

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.

7.2.3 The scope of the action


One it has been decided that a civil action is available, then it has to be established
that the claim is within the scope of the action. The important elements to be noted
are these:
uu

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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These cases illustrate the


reasons for denying a private
law action. Remember that
it is more important to
understand the reasoning in
these cases so that they can
be applied in other contexts
than to know about the
particular statutory duties
involved.

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keep the contents of the machine in, so that a worker injured by an object flying
out of the machine has no claim (Close v Steel Company of Wales Ltd [1962] AC 367).

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.

Reminder of learning outcomes


By this stage 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

identify the characteristics of the tort of breach of statutory duty

uu

explain the tests that have been deployed to determine when a statute is held to
give rise to civil liability

uu

outline what has to be established by a claimant alleging a breach of a statutory


duty that does give rise to civil liability.

Law of Tort 7 Breach of statutory duty

7.3 The Human Rights Act 1998


The Human Rights Act 1998 incorporated the European Convention on Human
Rights (ECHR) into domestic law. References to the impact of the ECHR on the law of
tort appear in various sections in this subject guide. It is necessary to examine the
structure of the Act more closely.
Section 6 makes it unlawful for a public authority to act in a way which is
incompatible with a Convention right. That raises a question as to the remedies
for those whose rights have been infringed. Section 7 enables a person to bring
proceedings against the (public] authority under this Act in the appropriate court or
tribunal. Section 8 envisages that damages may be awarded, but provide (s.8(3)) that
no award of damages is to be made unlessthe court is satisfied that the award is
necessary to afford just satisfaction to the person in whose favour it is made.
Where claims for damages are to be awarded where a Convention right has been
infringed, these awards may be fitted into the structure of the law of tort in the
following ways:
a. A breach of a Convention right may fit into an established tort. For example, if a
public authority such as the police were to torture a citizen contrary to Article 3 of
the Convention, a claim would lie without reference to the Convention in the tort
of battery (see Chapter 9).
b. An existing tort may, if necessary, be adapted to accommodate the requirements
of the Convention. See Chapter 11 on nuisance and Chapter 12 on defamation and
refer again to the discussion of the liability of public authorities in Chapter 5.
c. The courts may award damages for a breach of the Convention. This has analogies
with the tort of breach of statutory duty. However, there is an important difference:
Whereas damages are recoverable as of right in the case of damage caused by
a tort, the same is not true in the case of a claim brought under the 1998 Act for
breach of the convention (Lord Woolf CJ in Anufrijeva v Southwark London Borough
Council [2004] EWCA Civ 1406 at [50], [2004] 1 All ER 833).
The approach to the award of damages under the Act was considered by the Law
Commission: Law Comm No 266 (2000).
Claims under heading (c) are likely to arise where there has been some administrative
failure depriving a claim of welfare benefits, alleged to be a breach of Article 3
(inhuman and degrading treatment) and/or Article 8 (private and family life).
In R (Bernard) v Enfield London Borough Council [2002] EWHC 2282 (Admin), [2003] HRLR
4, Sullivan J awarded damages where the council had denied welfare benefits over
a substantial period to a seriously disabled woman leaving her in squalid conditions
without access to a lavatory.
The question was first reviewed by the Court of Appeal in three separate cases of
alleged maladministration (in all of which the claimants were unsuccessful) reported
as Anufrijeva v Southwark London Borough Council [2004] EWCA Civ 1406 at [50], [2004] 1
All ER 833. In studying this case and in applying it to other circumstances, you have to
consider:
i. when the maladministration amounts to an infringement of a Convention right
ii. when such an infringement merits an award of damages
iii. how damages should be assessed (both common law damages and awards by
various ombudsmen were suggested as parallels).

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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.

Reminder of learning outcomes


By this stage you should be able to:
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.

Sample examination questions


Question 1 The courts tend to treat welfare legislation as being passed for the
benefit of society in general and not for the benefit of individuals. Therefore they
deny an action in tort for breach of the duties imposed by the statute. This is an
inadequate response by the courts: they must look at the question again.
Discuss.
Question 2 Fire regulations applicable to Lexs factory provide that it is the duty of
the employer to ensure that all passages are free from obstructions at all times.
John, a delivery driver, working for Karry Ltd, delivered a large crate to Lexs factory.
He had left his lorry in the street outside the factory in a bay marked No waiting,
loading or unloading. In order to get back quickly to his lorry, he left the crate in
the passage outside the supplies office, thinking that Lexs staff would be bound to
find it there. Martha, one of the staff, had been delayed getting to work and rushed
into the factory. She fell over the crate and broke her leg. When John returned to his
lorry, he found that Nick, a motorcyclist, had collided with his parked lorry, broken
both arms and wrecked his motorcycle.
Advise Martha and Nick.

Advice on answering the questions


Question 1 In answering an essay-type question you must read the question carefully
and ensure that your answer engages with the points made. You are free to agree or
disagree with the proposition, or of course to say that you are undecided and can see
both sides. What is important is that you explain why you take the view you do and
support your view with cogent reasons and, where appropriate, examples from cases
or from commentators. A possible approach to this question would be to refer to Lord
Hoffmann in ORourke and say whether you are attracted or not to his reasoning. You
might conclude that the tort of breach of statutory duty should be abolished or that an
approach such as that developing under the Human Rights Act 1998 should be adopted.
Question 2 Take Martha first. Can she sue for breach of the regulations? First, are they
intended by Parliament to give rise to civil liability (see the general discussion above)?
If they are aimed at safety of employees, see above. If there is an action for breach,

Law of Tort 7 Breach of statutory duty


they seem to apply an approach of strict liability, i.e. it is enough that the passage is
obstructed (but is the package an obstruction?), and it is nothing to the point that
Lex itself and its employees were not to blame for the obstruction. However, what is
the purpose of the regulations? Since they are fire regulations it may be that they are
intended to ensure either that fire does not spread or that employees can escape.
Marthas injury is quite different. (Compare Gorris v Scott.) If this claim fails, there might
be a possible negligence action against John and, if John is in course of employment,
against Karry (see Chapter 13). Then take Nick. As a general rule, traffic regulations
such as speed limits, parking regulations do not give rise to civil liability. Even if they
do, it is doubtful if the purpose of the regulations is to prevent crashes. Nick must try
negligence or public nuisance. Again, is Karry liable vicariously (see Chapter 13)?

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain the different ways in which liability may


arise out of the failure to perform duties imposed by
regulatory statutes

I can identify the characteristics of the tort of breach


of statutory duty

I can explain the tests that have been deployed to


determine when a statute is held to give rise to civil
liability.

I can outline what has to be established by a


claimant alleging a breach of a statutory duty that
does give rise to civil liability.

I can explain the bases on which liability may arise


where a public authority has infringed rights under
the European Convention on Human Rights.

I can identify the circumstances in which the courts


are likely to award damages for such infringements
and the ways in which damages may be assessed..

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

7.1

Tort and illegality

7.2

Breach of statutory duty

7.3

The Human Rights Act 1998

Particular statutory regimes: strict liability

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
8.1

Product liability: Consumer Protection Act 1987 . . . . . . . . . . . . . 95

8.2

Liability for animals: Animals Act 1971 . . . . . . . . . . . . . . . . .

100

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . .

106

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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

explain the reasons behind the Consumer Protection Act 1987

uu

identify the key provisions of the Act and be able to explain:


uu

the meaning of producer and who will be liable under the Act

uu

when a product is defective

uu

what defences exist

uu

what remedies exist

uu

explain the reasons for the enactment of the Animals Act 1971

uu

describe the scope of liability under the Act

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.

The Consumer Protection


Act 1987 and the Animals Act
1971 can both involve the
concept of strict liability:
liability where the question of
fault does not arise.

Law of Tort 8 Particular statutory regimes: strict liability

8.1 Product liability: Consumer Protection Act 1987


8.1.1 The background to the Consumer Protection Act 1987
Prior to the Act, a person injured by a defective product would have to bring an action
in negligence and establish that the defendant owed him or her a duty of care, which
had been breached and caused loss which was not too remote. The classic case is that
of Donoghue v Stevenson [1932] AC 562: the famous snail in the ginger beer bottle. See
also Grant v Australian Knitting Mills Ltd [1936] AC 85 (underpants containing an excess
of sulphite chemicals) and Mason v Williams & Williams Ltd [1955] 1 WLR 549 (chisel too
hard for its purpose).

Particular problems relating to defective products


Causation has always been a problem. In Donoghue v Stevenson itself, the court
emphasised that the manufacturer would only be liable if the court was satisfied that
the defect was not due to the fault of another party in the supply chain. A reasonable
possibility of intermediate examination or interference will lead the court to reject the
claim: see Evans v Triplex Safety Glass Co Ltd [1936] 1 All ER 283 and Andrews v Hopkinson
[1957] 1 QB 229. Further, a seller could, subject to the Unfair Contract Terms Act 1977,
force a buyer to take responsibility for the safety of the product by marking the
product as seen and with all its faults: Hurley v Dyke [1979] RTR 265 HL.
A significant area of concern was, however, design defects. These are difficult to detect,
but have potentially very serious consequences as they will affect every product: see
the Thalidomide litigation. In the 1970s, calls began to appear for stricter liability for
manufacturers of defective products. Growing pressure for reform, combined with EC
initiatives to harmonise the rules on defective products in member states, resulted
in a change in the law. EC Directive 85/374 of 25 July 1985 required member states to
bring into force, within three years, changes in their national laws to comply with the
Directive. The aim was to achieve a fair apportionment of the risks inherent in modern
technological production.
The United Kingdom, on 1 March 1988, brought into force Part 1 of the Consumer
Protection Act 1987.

Continued utility of Donoghue v Stevenson negligence


It is important to recognise that, despite the statutory regime, the common law of
negligence may still be of assistance. The duty at common law extends beyond the
producer/consumer relationship to include repairers, fitters, erectors, assemblers and
even distributors.

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.

Reminder of learning outcomes


By this stage, you should be able to:
uu

explain the reasons behind the Consumer Protection Act 1987.

8.1.2 The Consumer Protection Act 1987


The basic structure of the Act is that the victim (that is, anyone who suffers injury or
damage caused by the product) should be able to sue the producer of the product,
provided that he or she can prove that the product was defective. It then falls to the
producer to raise any defences listed under section 4, although there are also some
explicit limits on recovery. Products are defined broadly. They include any goods,
electricity, coal, gas, and even agricultural products following Directive 1999/34/EC: ss.1
and 45(1).

Useful further reading

Howells, G. and Mildred, M. Infected blood: defect and discoverability. A first


exposition of the EC Product Liability Directive (2002) 65 MLR 95106.

Consumer Protection Act 1987: liability for defective products (2002) 10 Med L
Rev 8288.

Hodges, C. Compensating patients (2001) 117 LQR 628632.

Newdick, C. The development risk defence of the Consumer Protection Act 1987
(1988) 47 CLJ 45547.

8.1.3 Who is liable?


Reference should be made here to section 1(2) and section 2. Under the Act, the
following are potentially liable:
uu

manufacturers or producers (ss.1(2) and 2(2)(a))

uu

own-branders (s.2(2)(b))

uu

parties importing goods into the European Community (s.2(2)(c)).

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.

Law of Tort 8 Particular statutory regimes: strict liability

Self-assessment questions
1. Who can be sued under the Act?
2. When will a supplier be liable?

Reminder of learning outcomes


By this stage, you should be able to:
uu

explain the meaning of the term producer and who will be liable under the Act.

8.1.4 When is a product defective?


The defendant is liable for damage caused wholly or in part by a defect in a product.
Section 3(1) defines a defect as existing when the safety of the product is not such as
persons generally are entitled to expect. Section 3(2) instructs the court to take into
account all the circumstances of the case, including:
a. the manner in which, and purposes for which, the product has been marketed,
its get-up, the use of any mark in relation to the product and any instructions for,
or warnings with respect to, doing or refraining from doing anything with or in
relation to the product
b. what might reasonably be expected to be done with or in relation to the product
c. the time when the product was supplied by its producer to another.
The leading case is A v National Blood Authority [2001] 3 All ER 289. This was a class
action brought by over 100 claimants who had been infected with the virus hepatitis
C through blood transfusions which had used blood or blood products obtained
from infected donors. Although the National Blood Authority had known of the risk
of infection from at least the 1970s, it was, at that time, impossible to detect. It was
argued that persons generally could not expect 100 per cent clean blood in view of
such undetectable risks. Burton J rejected this view. The Act imposed strict liability and
it was irrelevant that the National Blood Authority had taken all reasonable steps to
detect such risks. Patients, having a blood transfusion, were entitled to expect that the
blood would be safe and, if it was not, it was defective.

The standard/non-standard distinction


Burton J in A explained that non-standard products (or rogue products) would
more easily be shown to be defective. They were not produced in the way that the
defendant intended, which immediately suggested some flaw. In contrast, standard
products that is, products which complied with the manufacturers intention
would be more difficult to prove to be defective. The court would look at all the
factors listed in sections 3(1) and (2) to ascertain whether they were in fact defective.
The court found that the blood infected with hepatitis C was a non-standard product
it differed from the standard product of uninfected blood. See also the Court of Appeal
in Abouzaid v Mothercare (UK) Ltd, The Times, 20 February 2001 (child injured by a buckle
on the elastic fastenings on back of pushchair).

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

identify when a court is likely to find a product to be defective.

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

the defect is due to compliance with a requirement imposed by law

uu

the defendant did not at any time supply the product

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.

Development risk under s.4(1)(e)


The interpretation of section 4(1)(e) has proved troublesome. Professor Jane Stapleton,
in her 1994 book Product Liability, suggested (at pp. 236237) that the Directive rarely
imposes more than a negligence regime on manufacturers and that the defence

For more on contributory


negligence see Chapter 13.

Law of Tort 8 Particular statutory regimes: strict liability


... seems to shield a defendant in situations in which the risks of a product are well
known at the relevant time. Such doubts led to a reference to the European Court
of Justice challenging the United Kingdoms implementation of the Product Liability
Directive: European Commission v United Kingdom [1997] All ER (EC) 481. The European
Court of Justice rejected this claim. It found no clear indication that section 4(1)(e) was
inconsistent with a proper interpretation of the Directive. It should be interpreted
as setting an objective standard by which producers were deemed to possess the
scientific and technical knowledge accessible at the time the product was put in
circulation. This would include the most advanced level of knowledge in the relevant
field.
This was applied by Burton J in the leading case of A v National Blood Authority [2001]
3 All ER 289. Here, the application seems quite harsh. The National Blood Authority,
as previously stated, knew of the risk of infection by hepatitis C, but was unable to
detect this virus until September 1991. Nevertheless, the court held that the defence
would not apply when the defendant knew of the risk of infection. From that point, the
defendant supplied the blood at its own risk. See also Abouzaid v Mothercare (UK) Ltd
The Times, February 2001.

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

identify the relevant defences and when they apply.

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

property damage which does not exceed 275.

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.

Reminder of learning outcomes


By this stage, you should be able to:
uu

Identify what remedies exist under the 1987 Act.

8.2 Liability for animals: Animals Act 1971


Essential reading

Winfield & Jolowicz, Chapter 16: Animals.

Murphy, Chapter 18: Animals.

Nowadays a high proportion of deaths and injuries is caused by industrial and


transport accidents, and relatively few by animals. In the early development of the
common law injuries by animals were more significant, and a series of special torts
was developed. These special heads of liability were put in statutory form by the
Animals Act 1971 but the broad principles were retained.
A defendant may be liable in any tort (particularly nuisance or negligence) as the
result of the behaviour of animals. Owners of animals have a duty of care and may be
liable in negligence even if they would not be liable under the Animals Act 1971 (see
Draper v Hodder [1972] 2 QB 556). One exception to this was an immunity for allowing
animals to escape on to the highway and do damage there (see Searle v Wallbank
[1947] AC 341), but this was abolished by s.8 of the Animals Act 1971.

8.2.1 Liability for dangerous animals


The Animals Act 1971 imposes, in certain circumstances, strict liability on keepers of
animals. A keeper is defined in section 6(3) as the owner of the animal, someone
who has it in his possession, or the head of a household where a minor under 16 owns
or possesses the animal (see also s.6(4)). It is no longer necessary to prove that the
keeper was at fault.
The Act draws a basic distinction between animals of a dangerous species and animals
of a non-dangerous species. More will be expected of those who choose to keep
dangerous animals.

Law of Tort 8 Particular statutory regimes: strict liability

8.2.2 Dangerous animals


Dangerous animals are defined in section 6(2) of the Act.
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.
This will therefore include animals such as tigers, elephants and lions. As noted in
the leading case of Mirvahedy v Henley [2003] 2 AC 491, cases will generally arise in the
context of escapes from circuses or zoos. Section 2(1) provides that the keeper of the
dangerous animal will be strictly liable for any damage caused by such an animal,
subject to the defences outlined below.

8.2.3 Non-dangerous animals


This is dealt with in section 2(2). Here, we are looking at situations where, for example,
cats and dogs, etc., get out of control. Section 2(2) sets three conditions for liability
which must all be satisfied:
a. 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
b. 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
c. 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 sixteen.
Here (a) and (b) set an objective test; (c) will depend on the keepers actual
knowledge. The damage must be foreseeable, and must be caused by characteristics
of the animal which are abnormal in the species or abnormal in view of the animals
usual behaviour.
It is (b) which has caused difficulties in interpretation. It draws a distinction between
permanent characteristics as where the animal is far more vicious than the rest of the
species and temporary characteristics as where the animal is not normally vicious
except at particular times and in particular circumstances. The House of Lords in the
leading case of Mirvahedy v Henley [2003] 2 AC 491, by a slim majority (3:2), was willing
to accept that perfectly ordinary reactions to events would fit within the category of
temporary characteristics. On that basis, horses escaping from a field when panicked
by an unknown event satisfied section 2(2)(b), even though such conduct could not
be described as abnormal. Similarly, a guard dog attacking an intruder (Cummings v
Granger [1977] QB 397) and a bull mastiff defending his territory (Curtis v Betts [1990]
1 WLR 469) were considered to be examples of animals reacting in a manner not
normally so found except at particular times or in particular circumstances.

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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(a) that the animal was not kept there for the protection of persons or property; or (b) (if
the animal was kept there for the protection of persons or property) that keeping it there
for that purpose was not unreasonable.

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.

8.2.5 Other provisions


Section 3 deals with liability for injuries committed by dogs to livestock. Where a dog
causes damage by killing or injuring livestock, any person who is a keeper of the dog
is liable for the damage, except as otherwise provided by this Act see, in particular,
section 5(4) (livestock straying on to the keepers land). See also section 9 (killing or
injuring dogs worrying livestock).
Section 4 deals with liability for damage caused by straying livestock. See also sections
5(5), 5(6), 7 and 8.
These provisions rarely, if ever, appear in examination questions.

Useful further reading

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

explain the reasons for the enactment of the Animals Act 1971

uu

describe the scope of liability under the Act

uu

evaluate the purposes of strict liability and consider whether any other areas of
the law should be replaced by rules of strict liability.

Law of Tort 8 Particular statutory regimes: 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.

Sample examination question


This is a typical question and will give you some idea of the issues which arise in
practice.
Ian, an employee of the local council, the Playboy District Council, was cleaning
out the drains in the street. He was using a pumping machine manufactured by
Pumpfast plc and recently purchased by the council. Suddenly the head of the
pumping machine blew off and flew through the air towards Jake, who was walking
his dog (Kruncher) nearby. Jake was seriously injured, and his new designer clothes
were ruined. The pumping machine was also destroyed. Jake dropped the lead and
Kruncher went wild with fright. He severely bit Michael, who was trying to calm him
down.
Advise Jake, the Playboy District Council and Michael as to any remedies they may
have in tort.

Advice on answering the question


It is important to identify the areas of law covered and the issues which may arise.
There are four main questions to be addressed:
uu

Who is responsible for the problem with the pumping machine?

uu

On what basis can Jake sue? Will he recover for his injuries and property damage?

uu

Can the council sue for damage to the pumping machine?

uu

Who and on what basis can Michael sue for the injury caused by Kruncher?

We will look at each question in turn.

Who is responsible for the problem with the pumping machine?


The main candidates are the council, Ian or the manufacturer, Pumpfast plc. Reading
the problem, there is no evidence that Ian was operating the machine negligently.
This cannot be presumed. The fault therefore seems to be latent in the machine. The
council supplied the machine and Pumpfast manufactured it. Manufacturers do have
liability for faulty machines (or products) under the Consumer Protection Act 1987. The
council, under that Act, will be liable as a supplier only if it fails within a reasonable
period of time to identify who supplied the product to it: s.2(3). Here, there is no
problem in identifying Pumpfast. The council will obviously owe a duty of care to its
employees under employers liability (Wilsons & Clyde Coal Co v English [1938] AC 57) and
liability under the Employers Liability (Defective Equipment) Act 1969 (see Chapter 6),
but Ian appears to be uninjured. It would be more difficult to show that the council
owed a duty of care to Jake. Proximity would be difficult to establish: see Caparo v
Dickman [1990] 2 AC 605.

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On what basis can Jake sue?


Jakes best claim would be against Pumpfast plc under the Consumer Protection Act
1987.
Pumpfast is a producer it is the manufacturer of the product: s.1(2). It will therefore
be liable for any damage caused wholly or partly by a defect in the product: s.2(1). It
must be shown, however, that the product is defective. Section 3 asks whether the
safety of the product is not such as persons generally are entitled to expect. Reference
should be made to all the circumstances of the case, including the way in which the
product has been marketed, any markings or warnings or instructions, what might
reasonably be expected to be done with the product, and the time at which the
product was supplied: s.3(2).
Looking at the facts of the question, there seems no excuse for the head of the
pumping machine blowing off. We are not informed of any instructions or warnings
which might serve to alert the user to this problem. The product would therefore
seem to be non-standard and defective: A v National Blood Authority [2001] 3 All ER
289. It is difficult to see any of the section 4 defences as applicable here. It could be
argued that this had never occurred before and so 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: s4(1)(e) (the
development risk defence). However, the court in A, European Commission v United
Kingdom [1997] All ER (EC) 481 and Abouzaid v Mothercare (UK) Ltd [2000] All ER (D) 2436;
The Times, 20 February 2001 adopted a strict test that the producer should possess all
accessible knowledge concerning the product. A court would be unlikely to accept
that Pumpfast could not have tested the head of the pumping machine prior to supply.
Jake would be able to recover for personal injury: s.5(1). Property damage, however,
would be limited to property whose value exceeds 275 (perhaps possible with
designer clothing?) and is for private use.

Can the council sue for damage to the pumping machine?


There is no reason why the council cannot also sue Pumpfast for its losses under
the Consumer Protection Act 1987. However, under section 5(2), the producer is not
liable for any losses to the product itself. This would exclude the councils claim. The
council would be left to pursue a remedy in contract against the person from whom it
purchased the pumping machine.

Who can Michael sue for his injuries?


Michael has a number of possible claims. He can sue Jake as the person who is the
keeper of Kruncher, or he may try to sue the cause of the accident, which, in our
analysis, is Pumpfast plc. This latter claim seems unlikely to succeed because the loss
will be considered too remote a consequence of the accident.
The claim against Jake will arise under the Animals Act 1971. Jake is the keeper as he
owns the animal or has it in his possession: section 6(3)(a). Kruncher is a dog and so a
non-dangerous species. Jakes liability will therefore arise under section 2(2) of the Act.
Here, liability will only arise under the following circumstances:
a. 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; here, Michael is bitten,
which would seem to satisfy (a).
b. 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.
This provision is less clear and therefore more difficult to satisfy. Kruncher is unnerved
by the accident and reacts, as any dog would, by biting Michael when he tries to
intervene. Are these abnormal characteristics? The cases seem to take a rather
lenient view of this. In Mirvahedy v Henley [2003] 2 WLR 882, horses bolting while

Law of Tort 8 Particular statutory regimes: strict liability


frightened by an unknown cause were considered to be within s.2(2)(b). See also the
Court of Appeal decisions in Cummings v Granger [1977] QB 397 and Curtis v Betts [1990]
1 WLR 469. It is likely therefore that Michael can satisfy this section.
c. Those characteristics were known to that keeper.
We must assume that Jake was aware how Kruncher might react when alarmed.
On this basis, Jake will be liable unless he can establish any defences in section 5. First,
he may wish to claim that Michaels injuries were wholly due to his fault (s.5(1)) or at
least that he is contributorily negligent (s.10). See Cummings v Granger [1977] QB 397.
Intervening with a severely distressed animal is likely to lead to injury. Further, it could
be argued that the risk of injury is so obvious that Michael would be found to have
voluntarily accepted the risk thereof: s.5(2). However, it could be argued that Michael
was trying to intervene to assist and therefore should be treated as a rescuer to whom
the courts prefer not to apply the volenti test. There is a strong risk therefore that the
court will decide that Michael has only himself to blame for his injuries.

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain the reasons behind the Consumer


Protection Act 1987.

I can identify the key provisions of the Act and be


able to explain:

the meaning of producer and who will be liable


under the Act

when a product is defective

what defences exist

what remedies exist

I can explain the reasons for the enactment of the


Animals Act 1971.

I can describe the scope of liability under the Act.

I can evaluate the purposes of strict liability and


consider whether any other areas of the law should
be replaced by rules of strict liability.

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

8.1

Product liability: Consumer Protection Act 1987

8.2

Liability for animals: Animals Act 1971

9 Intentional injuries to the person

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

108

9.1

Trespass and case . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

9.2

Trespass to the person . . . . . . . . . . . . . . . . . . . . . . . . .

9.3

False imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . 113

9.4

Intentionally causing nervous shock . . . . . . . . . . . . . . . . . .

110

115

9.5 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116


Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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:
uu

Distinguish between trespass to the person and harm caused by negligence

uu

Define the elements of assault, battery, false imprisonment and the rule in
Wilkinson v Downton

uu

Explain how liability is established in respect of these torts

uu

Be aware of the circumstances in which consent may be a defence to trespass to


the person

uu

Identify other defences to trespass to the person, in particular, the defence of


self-defence.

Essential reading

Lunney and Oliphant, Chapter 2: Intentional interference with the person.

Winfield & Jolowicz, Chapter 4: Trespass to the person and related matters.

Law of Tort 9 Intentional injuries to the person

9.1 Trespass and case


Trespass is one of the oldest torts in this jurisdiction. The action in trespass derives from
the ancient writ of trespass, one of the requirements of which was that the defendants
act had to be direct (i.e. direct interference with the person or property of the claimant
(plaintiff)). Nevertheless, the term direct has, at times, been interpreted broadly by
the courts.
For example, in the case of Scott v Shepherd (1773) 2 W Bl 892 the court was prepared to
extend the definition of direct injury to give Scott a remedy. The defendant had thrown
a lighted squib (a firework) into a market place. It first landed on As stall. B in order to
prevent damage picked it up and threw it, and it landed on Cs stall. C, again to prevent
damage, picked it up and threw it where it struck Scott in the face and went off putting
out one of his eyes. In DPP v K [1990] 1 WLR 1067 a boy had poured some concentrated
sulphuric acid into a hand-dryer, intending to remove it later on. Before he did so
the dryer was used by another boy who was injured by the acid. Here the force was
considered sufficiently immediate and direct. This case has since been overruled on
another point but it remains good law in respect of directness.
The traditional illustration of the distinction between direct and indirect harm is that
given by Fortescue J in Reynolds v Clarke [1725] 1 Stra 634 at 636:
If a man throws a log into the highway and in that act it hits me, I may maintain trespass
because it is an immediate wrong; but if, as it lies there, I tumble over it and receive an
injury, I must bring an action upon the case because it is only prejudicial in consequence.

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.

9.2 Trespass to the person


9.2.1 Assault
A person commits an assault if he intentionally causes another reasonably to
apprehend the application of immediate unlawful force on his person. Letang v Cooper
(above); Collins v Wilcock [1984] 3 All ER 374.
Note that it is apprehension which is required and not fear. The claimant does not
have to be afraid: it is enough that he reasonably apprehended the contact.
It follows that it is irrelevant that the claimant is courageous and is not frightened by
the threat or that he could easily defeat the defendants attack.
However, where the claimant has no reasonable belief that the defendant has the
present ability to effect his purpose, there will be no assault. For example, in Thomas
v NUM (South Wales Area) [1986] Ch 20 trade union pickets who made violent threats
and gestures were held back by a police cordon and those who wanted to work
went through the gates inside buses. It was held that words and gestures, however
threatening, would not be an assault if they could not be put into immediate effect
as a central feature of assault was that the threat apprehended must be of immediate
force.
Of course, this will depend upon the facts of each case and in Smith v Chief
Superintendent of Woking Police Station [1983] 76 Crim App Rep 234 it was assault to
stand outside the plaintiff (claimants) window and stare in, while she was dressed in
nothing but a pink nightie, with intent to frighten her and causing her to apprehend
contact. See also R v Ireland and Burstow [1998] AC 147 (below). In Stephens v Myers
(1830) 4 C & P 349 it was held that if a defendant attempted to land a blow on the
claimant which was intercepted by a third party this could still amount to an assault.
Here, the defendant, whose ejection from a parish meeting had been moved
and received, advanced to unseat the claimant (who was the chairman) but was
intercepted by the churchwarden. The defendant was found to have committed an
assault. Lord Tindal CJ said:
though he was not near enough at the time to have struck him, yet if he was advancing
with the intent, I think it amounts to an assault in law.

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.

Law of Tort 9 Intentional injuries to the person


The claimant must apprehend actual contact and nothing less. Taking a photograph of
a person, for example, is not an assault. Murray v Ministry of Defence [1985] 12 NIJB 12.
Pointing a loaded gun at a person would amount to an assault and the law is probably
the same if the gun is unloaded unless the person at whom the gun is pointed knows it
is unloaded. There is dictum which indicates that this would not be an assault Blake v
Barnard (1840) 9 C & P 626 but in a criminal case of the same year (R v St. George (1840) 9
C & P 483) it was stated that it would be an assault. This is generally felt to be the correct
view.
It is important to bear in mind that the claimants state of mind is relevant to whether an
assault has been committed so to point a (loaded or unloaded) gun at someone when they
are asleep or to shake your fist at them from behind their back will not amount to assault
no matter what your intention.

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.

Law of Tort 9 Intentional injuries to the person


b. While getting on a crowded train John jabbed his umbrella in Freds leg. He saw
a vacant seat and noticed that Roger was about to sit down. He pushed Roger
out of the way. Roger dropped the baby he was carrying.
c. The train pulled up too quickly and caused Fred to stand on someones foot.
When he saw that it was John he refused to remove it.

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.

9.3 False imprisonment


False imprisonment is the intentional deprivation of the claimants freedom of
movement from a particular place for any time, however short unless expressly or
impliedly authorised by the law.
The claimant must prove that he or she was intentionally denied freedom of
movement but where a defendant claims that the restraint was lawful the burden is
on the defendant to justify this.
Like the other forms of trespass to the person it is actionable per se. In Murray v
Ministry of Defence [1988] 1 WLR 692 Lord Griffiths commented (obiter) that:
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.

False imprisonment must involve complete restriction on the claimants freedom of


movement. In Bird v Jones (1845) 7 QB 742 the defendants had partially fenced off a
public footway on Hammersmith Bridge in London. Bird climbed over the fence to use
the footway but was prevented from using it and told to climb back over the fence and
cross the bridge outside the fence. It was held that this was not false imprisonment.
The defendant had not imposed a complete restriction on Birds freedom of
movement.
Note that imprisonment may be anywhere from which the claimant does not have a
reasonable means of escape, such as a room in a house, a coalmine (Herd v Weardale
Coal Co [1915] 3 KB 771), a bridge (Bird v Jones) and, possibly, even a public lavatory
(Sayers v Harlow Urban District Council [1958] 1 WLR 623).
Every restraint of the liberty of a free man is an imprisonment, although he be not within
the walls of any common prison (Blackstone: Commentaries III, 127).

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.

Claimants awareness of imprisonment


The importance the law attaches to the liberty of the individual is illustrated by the
fact that where the claimant is too ill to move, an action in false imprisonment will still
lie: Grainger v Hill (1838) 4 Bing NC 212.
Further, it would seem that it is unnecessary that the claimant was aware of the false
imprisonment. In Meering v Grahame-White Aviation (1919) 122 LT 44 Atkin LJ said:
It appears to me that a person could be imprisoned without his knowing it. I think a
person can be imprisoned while he is asleep, while he is in a state of drunkenness, while
he is unconscious, and while he is a lunaticOf course the damages might be diminished
and would be affected by the question whether he was conscious of it or not.

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.

Law of Tort 9 Intentional injuries to the person

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?

9.4 Intentionally causing nervous shock


This is known as the rule in Wilkinson v Downton [1867] 2 QB 57 and is a distinct tort in
its own right.
Although it is an intentional tort it is not, unlike trespass to the person, actionable per
se. Actual damage must be proved to have been caused by the commission of the tort.
In this case, the defendant told the plaintiff (claimant) that her husband was lying in a
pub with both legs broken. He was, in fact, uninjured. Mrs Wilkinson suffered nervous
shock and was ill for some weeks. According to Wright J the defendant had:
wilfully done an act calculated to cause harm to the claimant that is to infringe
her legal right to personal safety, and in fact thereby caused physical harm to her. That
proposition without more appears to me to state a good cause of action...

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?

Reminder of learning outcomes


By this stage you should be able to:
uu

Define the elements of assault, battery, false imprisonment and the rule in
Wilkinson v Downton

uu

Explain how liability is established in respect of these torts.

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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

Law of Tort 9 Intentional injuries to the person


to a battery (or worse) upon that patient. The doctors motive is irrelevant. Good
intentions do not make lawful that which is, by definition, unlawful.
As Lord Steyn pointed out in Chester v Afshar [2004] UKHL 41:
The starting point is that every individual of adult years and sound mind has a right to
decide what may or may not be done with his or her body. Individuals have a right to make
important medical decisions affecting their lives for themselves: they have the right to
make decisions which doctors regard as ill advised. (para 14)

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.

9.5.3 Public policy


So far as the criminal law is concerned, consent may be vitiated on public policy
grounds where bodily harm was likely or intended. See R v Brown [1994] and it was not
in the public interest that such conduct should be condoned. That this is likely to be
the position in tort is illustrated by the case of Lane v Holloway [1968] which, although
primarily a case on self-defence (see below), the view of the court was that the savage
blow inflicted by the defendant on a drunken old man was such that consent could
not apply.
So far as lawful sports are concerned, consent will operate to prevent a battery
provided such contacts as occur are those which can reasonably be expected in the
game. Where incidents occur outside the rules due to the carelessness of the players,
an action in negligence may lie. See Condon v Basi [1985] The same would seem to
apply to horseplay; see Blake v Galloway [2004].

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].

Sample examination question


Asbo, aged 12, was bored. His mother had insisted that he go out to play for at least
two hours as he was irritating her.
He had not been able to find anyone to play with and was wandering along the
street eating an apple, which did not taste very nice. He thought it would be fun to
throw it at a distant lamp post. Unfortunately, his aim was not very good and the
apple missed the lamp post and hit Mr Brown instead. Mr Brown was very angry. He
shook his fist at Asbo and shouted: If I did not have to take Jumble to school and
was not late for work I would give you a hard slap. Jumble was the Browns fiveyear-old daughter. Asbo was frightened and ran away.
He decided to catch a bus into town. He managed to squeeze onto the bus which
was very crowded. Somebody trod on his foot, which made him very cross until he
saw that it was his friend Ginger. Ginger was pleased to see Asbo and slapped him
on the back in greeting. Asbo, feeling decidedly bruised, got off the bus at the next
stop.
He spotted a public telephone box and decided to play a trick on his sister, Ethel.
He telephoned her and when she answered he breathed heavily a couple of times
and then said in a voice which he thought he had disguised: Im coming to get you.
Ethel sighed and replied: Go away Asbo.
Asbo decided to go home. As he passed the Browns house, Mrs Brown came rushing
out, grabbed hold of him and said: I saw you hit my husband with the apple this
morning. Come in here and wait while I telephone your mother to tell her what you
did. She dragged the protesting Asbo into her house, pushed him into the kitchen
and told him to stay there so he sat down on a chair. Mrs Brown then locked the
kitchen door, whereupon Asbo became nervous. He called to be let out. When Mrs
Brown told him she would not do so he shouted: I was coming to see you to tell you
that Jumble has been run over and squashed by a steam roller and the police are
coming to arrest you because they think that you let her out on her own and now
shes dead! (Jumble was, at that moment, happily playing at school.) Mrs Brown
shrieked and fainted.
Asbo then spotted an open window so he climbed out into the garden and went
home.
Mrs Brown suffered a nervous breakdown and spent a month in a psychiatric
hospital.
Discuss the possible liabilities of the parties.

Law of Tort 9 Intentional injuries to the person

Advice on answering the question


This question requires you to analyse the torts of assault, battery, false imprisonment
and the rule in Wilkinson v Downton. It is a problem question the facts of which
potentially give rise to a number of actions by the various parties. You must deal with
each possible action separately otherwise there is a risk that your answer will become
very confused.
As it is a problem question, the depth of analysis of the issues will not be that which
would be expected if you were writing an essay on a particular topic. It is important
to note, however, that it is not sufficient merely to list the relevant rules; rather you
should analyse the rules by reference to the facts of the question. Similarly a shopping
list of cases is not acceptable.
You are not necessarily expected to arrive at a definite conclusion on liability in
relation to all of the issues in a problem question. This is because there may not be
sufficient facts to enable you to do so. Of course, where the facts are clear, then you
can and should do so.
For example, when Asbo decides to play a trick on Ethel and telephones her, it is clear
from the facts that there was no assault so you could say so. But, and this is important,
you would not merely say so, neither would you begin your answer to that part of
the question by stating that Asbo would not be guilty of assault. You would apply the
relevant law to the facts and conclude by explaining why Asbo is unlikely to be guilty
of assault.
Where the facts are not clear then consider the alternatives. For example, Ginger
slapped Asbo on the back in greeting. It is not entirely clear whether Gingers
behaviour transcended the bounds of lawfulness. You should explain why and then
you could conclude by using if/then, i.e. If the court decided that Gingers slap did
transcend the bounds of lawfulness [you will have explained in your answer why it
might have done so] then he would be guilty of the tort of battery. If, however, the
court decided it did not [you will have explained in your answer why it might not have
done so] then Ginger would not be guilty of battery.
What follows below is not a full answer to the problem but rather points to notes
to help you to formulate your own answer. It is for you to find the definitions of the
relevant torts. I have set out each possible claim under the heading X v Y. It is not
necessary for you to do this but note that you must always make it absolutely clear to
the examiner which claimant, which defendant and which action you are discussing.
Remember: Who is suing whom for what? What needs to be proved? Might the facts
indicate a defence? Where does the burden of proof lie? In civil actions the standard of
proof is on balance of probabilities.
Where there is an overlap within one question (there are a number of potential
batteries, for example, in this question) you do not need to repeat yourself. You can
refer above.
Note that although Asbo is 12 years old and therefore a child he can sue and be sued in
his own right.

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 Ginger (Ginger treading on Asbos foot)


Battery
See above. Was the conduct voluntary?

Asbo v Ginger (Ginger slapping Asbos back)


Battery
See above. Does Gingers behaviour transcend the bounds of lawfulness or was it
ordinary touching in the course of daily life? Wilson v Pringle; Re F.
If Gingers behaviour could not be considered to be ordinary touching in the course
of daily life, it may be that it was a common form of greeting between them to which
they each tacitly consented. If that is the case, then the slap on the back is unlikely
to amount to battery, provided it was more or less in accordance with any tacit
understanding between them (Blake v Galloway) and bodily harm was neither likely
nor intended (R v Brown).

Ethel v Asbo (telephone call)


Assault
See above. Words alone and in some circumstances silence may amount to an
assault; Ireland and Burstow.
Note than one of the ingredients of the tort of assault is that the victim apprehends
the application of immediate unlawful force. Although it seems that Asbo intended (if
only as a joke) that Ethel apprehend force (Im coming to get you) Ethel knew it was
Asbo and was merely exasperated. Asbo would not be guilty of assault.

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.

Law of Tort 9 Intentional injuries to the person


c. False imprisonment (She dragged him into the house and locked him in the
kitchen)
When Mrs Brown dragged Asbo into the house and locked him in the kitchen it is
possible that she committed the tort of false imprisonment. This tort is actionable per se.
Keeping hold of his arm and then locking him in the kitchen restricted his freedom of
movement. The restraint was complete (Bird v Jones) at least while she was holding his
arm. There was, however, an escape route from the kitchen the open window which
he subsequently spotted.
If he had been falsely imprisoned, it would not matter if Asbo did not know. Meering v
Grahame-White Aviation Co. Ltd.
It makes no difference that it was only for a short time.
Mrs Brown would appear to have no defence to any tort for which she may be liable.

Mrs Brown v Asbo


The rule in Wilkinson v Downton
Mrs Brown suffered a nervous breakdown following Asbos untruth about her child.
Although the harm she suffered was indirect she might be able to sustain an action
under this rule.
She must prove that Asbo wilfully undertook an act calculated to cause her physical
harm. This includes psychiatric illness. Janvier v Sweeney but not mere distress;
Wainwright and another v Home Office.
If she suffered psychiatric harm and not mere distress then in order to succeed in
her action, she must prove, according to the House of Lords in Wainwright, that Asbo
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.
If she is able to establish this, then she must also prove a causal link between Asbos
conduct and the harm she suffered.

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can distinguish between trespass to the person and


harm caused by negligence.

I can define the elements of assault, battery, false


imprisonment and the rule in Wilkinson v Downton.

I can explain how liability is established in respect of


these torts.

I can be aware of the circumstances in which


consent may be a defence to trespass to the person.

I can identify other defences to trespass to the


person, in particular, the defence of self-defence.

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

9.1

Trespass and case

9.2

Trespass to the person

9.3

False imprisonment

9.4

Intentionally causing nervous shock

9.5

Defences

10 Interference with economic interests

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
10.1 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
10.2

The economic torts: general considerations . . . . . . . . . . . . . . . 126

10.3

The economic torts: fundamentals . . . . . . . . . . . . . . . . . . . 127

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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:
uu

identify the nature of the rights protected by the economic torts

uu

explain in respect of each tort what makes the conduct illegal

uu

describe the meaning of intention and motive in the context of these torts

uu

distinguish between pure purpose and unlawful means conspiracy

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

identify the kinds of threat which amount to the tort of intimidation.

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).

Murphy, Chapter 12: Background to the protection of economic and intellectual


property interests, Section I General economic interests and Chapter 14: The
general economic torts.

Winfield and Jolowicz, Chapter 18: Interference with contract or business.

Law of Tort 10 Interference with economic interests

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.

10.1.1 Elements of deceit


We can identify three factors that constitute the elements of deceit:
uu

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.

uu

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).

uu

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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10.2 The economic torts: general considerations


The next group of torts (conspiracy, inducing breach of contract and intimidation)
are related and principally regulate aspects of economic life. There are some general
matters which you should address yourself to first.

A typical scenario: intention


C runs the only restaurant in a village. Dlawfully (i.e. with planning permission and so
forth) sets up another restaurant. Since people eat only one meal of an evening, if Ds
restaurant prospers, then Cs will suffer. It is therefore not merely foreseeable that C
will sustain a loss, but it is Ds intention that this should happen. There is also a public
interest in D succeeding in that the competition may improve quality and lower prices.

The same scenario: motive


Suppose that Ds aim was not to run a successful restaurant in competition with C
but to put C out of business and that, in order to achieve this, D cuts prices in the
restaurant so low that he cannot make a profit. You may think that, while it is fair
enough that C should have to put up with legitimate competition, he should not have
to put up with this sort of behaviour. Furthermore, if D, having put C out of business,
then shuts shop himself, the village, instead of having healthy competition, ends up
without a restaurant at all.

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.

Nature of the action


Some cases have come before the courts as a matter of urgency, and the issue has
been whether the defendants should be temporarily restrained from some action (e.g.
in the course of an industrial dispute) and an injunction has been granted without full
consideration of all the relevant principles. There is a good example in Torquay Hotel
Ltd v Cousins [1969] 2 Ch 106 (see below).

Clearly D can do various


things in order to attract
custom, but equally clearly he
cannot set fire to Cs premises
or poison the food that C is
going to serve or block the
access to Cs premises so
that prospective customers
cannot reach the restaurant.
All these activities are illegal
and carried out with the
intention of damaging C. But
in a competitive society mere
intention to affect someones
business adversely cannot in
itself be wrong. This chapter
is therefore about the limits
of the action that D can take
to advance his economic
interests. Many legal systems
would think that D should be
liable in these circumstances,
but to impose liability on
D however falls foul of the
English principle that motive
is generally irrelevant (see
Chapter 1).

Law of Tort 10 Interference with economic interests

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10.3 The economic torts: fundamentals


The starting point is the decision in Allen v Flood [1898] AC 1 (an extremely lengthy
case that certainly is not to be read in detail). The gist of the case can be explained as
follows.
(Flood et al.)

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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10.3.1 Inducing breach of contract


The essence of this tort is that the defendant interferes with a genuine right (not a mere
liberty) which the claimant has, typically the performance by X of a contract which X has
with the claimant, but it may include interference with other genuine rights. The tort was
recognised in Lumley v Gye (1853) E&B 216 and confirmed by Allen v Flood [1898] AC
.

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.

Law of Tort 10 Interference with economic interests

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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

Illegal action or threat of


illegal action
Aim to damage
Cs business

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,

Law of Tort 10 Interference with economic interests


however, a difference from the three-party situation. In the three-party situation C
has no remedy other than the action in intimidation if X yields to the threats and
damages C. In the two-party situation C has the choice of resisting the threats and
seeing what happens. Suppose that the threat is that D will commit a breach of
contract: D can refuse to comply with the demands and, if D carries out the threats,
sue for contractual remedies.

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.

Pure purpose conspiracy


In these cases two or more people conspire with the ultimate motive or purpose of
damaging the claimant. What they conspire to do is not necessarily actionable if it is
done by one person only. The illegality therefore lies in the fact of conspiracy, which
turns lawful into unlawful behaviour. There is therefore a considerable question as to
why the tort should exist at all. Think again of the example of the village restaurants
given in the section introducing this chapter. C has a village restaurant. D drives C out
of business (and that is his aim and intention) by charging so little that he makes a
loss. That is not actionable because no independent illegality is involved. Why should
it be actionable if two people (D1 and D2) combine to establish restaurants to drive C
out of business? Many doubts have been expressed both about the rule that C should
have no action if D acts alone and the rule that D can have an action if D1 and D2 act in
concert. See e.g. Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173.
Nevertheless the tort of pure purpose conspiracy was established in Quinn v Leathem
[1901] AC1. Its scope was however limited in Sorrell v Smith [1925] AC 700 and in Crofter
Hand Woven Harris Tweed v Veitch [1942] AC 435. These cases emphasise that the
defendants motives have to be more or less disinterestedly hostile to the claimant.
If the defendants are acting to promote the legitimate interests of themselves as
commercial rivals or as employees and use no unlawful means, then they commit no
tort. The defendants were also not liable where they acted to damage the commercial
interests of a claimant who operated a discriminatory colour bar (Scala Ballrooms v
Ratcliffe [1958] 1 WLR 1129).

Unlawful means conspiracy


The conspirators may be liable if they (or perhaps at least one of them) commits
an independently unlawful act: in this case there is no need to show that the
predominant purpose is to injure the claimant.

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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Reminder of learning outcomes


By this stage, you should be able to:
uu

identify the nature of the rights protected by the economic torts

uu

explain in respect of each tort what makes the conduct illegal

uu

describe the meaning of intention and motive in the context of these torts

uu

distinguish between pure purpose and unlawful means conspiracy

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

identify the kinds of threat which amount to the tort of intimidation.

Sample examination question


a. What can amount to unlawful means for the purposes of torts involving
intentional infliction of economic loss? In what circumstances do unlawful
means have to be established?
b. The League for Decency usually arranges to hire the hall of Barsetshire Technical
College for its meetings and social functions. Mrs Proudy, the secretary of the
League, heard recently that the College is to allow a pop group (the Hirams)
to give a concert at the hall at which some of the musicians will appear in the
nude. She telephoned the College and said, I am aghast. Unless you cancel these
arrangements, I cannot believe that my members will ever again want to use the
College for its functions.
Advise the Hirams.

Advice on answering the question


Part (a) has been referred to in the text. A distinction can be drawn between direct
inducement of breach of contract and pure purpose conspiracy on the one hand and
indirect inducement of breach and intimidation on the other.
Part (b) raises various possibilities:
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)?

Law of Tort 10 Interference with economic interests

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can identify the nature of the rights protected by


the economic torts.

I can explain in respect of each tort what makes the


conduct illegal.

I can describe the meaning of intention and


motive in the context of these torts.

I can distinguish between pure purpose and


unlawful means conspiracy.

I can 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.

I can identify the kinds of threat which amount to


the tort of intimidation.

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

The economic torts: general considerations

10.3

The economic torts: fundamentals

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Notes

University of London International Programmes

11 The law of nuisance and the rule in Rylands v


Fletcher

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

136

11.1

The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . 137

11.2

Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138

11.3

The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . . 145

11.4

Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

11.5

The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . 148

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . .

152

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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:
uu

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

who can sue

uu

when a court is likely to find liability

uu

what defences exist

uu

what remedies exist

outline the basic rules of the tort of public nuisance


identify the potential for change in the law of tort following the implementation
of the Human Rights Act 1998.

Essential reading

Lunney and Oliphant, Chapter 12: Nuisance and the rule in Rylands v Fletcher.

Winfield & Jolowicz, Chapter 14: Nuisance.

Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher

11.1 The different forms of nuisance


There are three main types of nuisance which should be distinguished:
uu

private nuisance

uu

public nuisance

uu

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.

11.1.1 Basic definitions


Winfield and Jolowicz define private nuisance as an unlawful interference with a
persons use or enjoyment of land, or some right over, or in connection with it.
Public nuisance, in contrast, is both a crime and a tort. It is defined by Romer LJ in
Attorney-General v P.Y.A. Quarries Ltd [1957] 2 QB 169 at p.184:
any nuisance is public which materially affects the reasonable comfort and convenience
of life of a class of Her Majestys subjects. The sphere of the nuisance may be described
generally as the neighbourhood; but the question whether the local community within
that sphere comprises a sufficient number of persons to constitute a class of the public is
a question of fact in every case.

Statutory nuisances are simply nuisances which operate by virtue of particular


statutes. The best example perhaps is that of Part III of the Environmental Protection
Act 1990, which is primarily concerned with matters of public health.
The rule in Rylands v Fletcher, in contrast, is a specific rule named after a case in which
Blackburn J in the Court of Exchequer Chamber stated:
We think that the true rule of law is that the person who for his own purposes brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape.

It is thus a rule of liability imposed on a person due to an escape of a non-natural


substance from the defendants land. The House of Lords in Cambridge Water Co v
Eastern Counties Leather plc (1994) and Transco plc v Stockport MBC (2003) determined
that it will only apply where the loss suffered is reasonably foreseeable and that it is, in
reality, an extension of the tort of private nuisance to isolated escapes from land.

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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11.2 Private nuisance


Three types of private nuisance can arise in practice:
uu

physical injury to land (for example, by flooding or noxious fumes)

uu

substantial interference with the enjoyment of the land (for example smells, dust
and noise)

uu

encroachment on a neighbours land, for example, by spreading roots or


overhanging branches, which is of minor significance.

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.

11.2.1 Who can sue?


This is fundamental both in understanding the operation of the tort of private
nuisance and in ascertaining who has a cause of action in any given case. As we know
already, the tort of private nuisance protects claimants against interference with the
use or enjoyment of their land. In other words, it protects their rights in their land. It is
hardly surprising, therefore, that only those with rights in the land, namely an interest
in land or exclusive possession, will be able to sue: see Malone v Laskey (1907) and the
House of Lords in Hunter v Canary Wharf Ltd (1997). This will include landowners and
tenants, but exclude licensees, e.g. lodgers. This can lead to arbitrary distinctions. For
example, Mr and Mrs Bloggs live in a house which is affected by ongoing noise from a
neighbour. If the house is owned or rented by Mr and Mrs Bloggs, they both can sue in
private nuisance. If the house is only owned or rented by Mr Bloggs, Mrs Bloggs cannot
complain in private nuisance (see Malone v Laskey). It has been questioned whether
the exclusion of family members living in the home is consistent with Article 8 of the
European Convention on Human Rights (see 11.5.1).

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?

11.2.2 What amounts to a private nuisance?


There is no better definition that that of Lord Wright in Sedleigh-Denfield v OCallaghan
[1940] AC 880 at p.903:
A balance has to be maintained between the right of the occupier to do what he likes
with his own, and the right of his neighbour not to be interfered with. It is impossible to
give any precise or universal formula, but it may broadly be said that a useful test is
perhaps what is reasonable according to the ordinary usages of mankind living in society,
or more correctly in a particular society. The forms which nuisance may take are protean.
Certain classifications are possible, but many reported cases are no more than illustrations
of particular matters of fact which have been held to be nuisances.

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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Factors determining reasonable use


Damage to property or personal discomfort
The courts are more willing to find a nuisance where physical damage to property has
been caused, and tend to ignore factors such as the nature of the locality (discussed
below). Personal discomfort will normally have to be substantial to merit a response:
see Walter v Selfe (1851) and St Helens Smelting Co v Tipping (1865).
The nature of the locality
Thesiger LJ stated classically in Sturges v Bridgman (1879): What would be a nuisance in
Belgrave Square would not necessarily be so in Bermondsey. This means that the
nuisance will be judged according to the area in which it occurs. For example,
emission of smoke from a factory will not be considered a nuisance in an industrial
estate, but would be likely to be found to be a nuisance in a largely residential area.
Planning permission is not enough by itself to change the nature of the locality,
although this may occur as a matter of fact due to investment in the area: see
Gillingham Borough Council v Medway (Chatham) Dock Co. Ltd. (1993) and Wheeler v JJ
Saunders Ltd (1996). A good example is the transformation of the London docklands
from an industrial area to a now exclusive residential development.
In Coventry (t/a RDC Promotions) v Lawrence [2014] UKSC 13, a case concerning noise
nuisance arising from a motorsports stadium, the Supreme Court reviewed the law
of nuisance and considered the relationship between planning control and the tort
of nuisance, the right by prescription to commit a nuisance, the argument that the
claimant came to the nuisance, the relevance of a grant of planning permission and
the approach to be adopted by a court when deciding whether to grant an injunction
to restrain a nuisance or whether to award damages instead.
Duration and frequency
This is a matter of common sense. The longer and more frequent the interference, the
more likely it will be found to be a nuisance: see De Keysers Royal Hotel Ltd v Spicer Bros
Ltd (1914) and Crown River Cruises Ltd v Kimbolton Fireworks Ltd (1996). This does not
necessarily exclude an isolated escape of sufficient gravity see S.C.M. (United Kingdom)
Ltd v W.J. Whittal & Son Ltd (1970) but in such cases the claimant is more likely to sue
under the rule in Rylands v Fletcher.
Utility of the defendants conduct
This is not an important consideration. Private nuisance is concerned with the results
of the defendants conduct on the claimant and not on the community as a whole. It
may, however, influence the court in exercising its equitable jurisdiction whether to
grant an injunction (see Miller v Jackson (1977)).
Abnormal sensitivity
If the complaint is based on the abnormal sensitivity of the claimant, the court will not
interfere. This would offer the claimant far too much protection at the defendants
expense. For example, the claimant may not be able to withstand any noise while
working. It would clearly be unjust for the law to allow the claimant to stop the
defendant making any noise during this period.
The leading case is Robinson v Kilvert (1889) 41 Ch D 88 (see also Heath v Mayor of
Brighton (1908)). Here, the complaint related to hot air which affected brown paper
stored in the plaintiffs part of the building and which had come from the lower part of
the building in which the defendant operated a business. The court refused the claim.
The heat was not so high that it would affect ordinary paper or even the plaintiffs
workforce. The damage was due to the exceptionally delicate nature of the plaintiffs
trade. This would not amount to a nuisance. If, however, the interference would have
affected ordinary paper, the plaintiff would have been able to claim the full extent
of his losses: see McKinnon Industries Ltd v Walker (1951) (recovery for harm to orchids
when fumes would have damaged any flowers grown).

Belgrave Square: an upper


class residential area in
Central London.

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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?

11.2.3 Who can be sued?


In any action in nuisance, it is important to identify potential defendants. The most
obvious is the person creating the nuisance (the creator). However, part of the skill
of a lawyer is in identifying other potential defendants: for example, the creators
landlord or employer. Equally, should you be unable to identify the creator for
example if it was caused by a trespasser who has since disappeared it is important to
be able to bring
actions against other parties, such as the local council, who may be able to intervene
to assist you.
Employers
Where the occupier of the land exercises control over employees who cause a
nuisance in the course of employment, he or she will be liable. This will extend to
liability for independent contractors where the employer owes a non-delegable duty
to the claimant: see Matania v National Provincial Bank (1936) and Bower v Peate (1876).
An occupier who has adopted or continued a nuisance
This is established in the leading case of Sedleigh-Denfield v OCallaghan (1940), which
consolidated pre-existing law and applies to both private and public nuisances. Here,
a local authority, without the defendants permission (and therefore as a trespasser),
had placed a drainage pipe in a ditch on the defendants land with a grating designed
to keep out leaves. The grating had not been fixed in the correct position, with the
result that, during a heavy rainstorm, the pipe became choked with leaves and water
overflowed onto the plaintiffs land. The House of Lords held the defendant liable. He
had adopted the nuisance by using the drain for his own purposes to drain water from
his land. He had also continued the nuisance because his manager should have realised
the risk of flooding created by the obstruction and taken reasonable steps to abate it.
Liability thus arises in two ways, which are both fault-based:

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.

It is essentially a rule of good sense and convenience. Where, as in Sedleigh-Denfield,


the occupier of the land is best placed to deal with the nuisance, he or she will be
liable if they are found to be at fault. It has been applied to the activities of trespassers
on the occupiers land (Page Motors Ltd v Epsom and Ewell BC (1982)) and acts of nature
(Goldman v Hargrave (1967) failure to extinguish with adequate care a tree which
had been struck by lightning and had caught fire and Leakey v National Trust (1980)
failure to protect neighbouring villagers from the effect of subsidence to its land).
Being fault-based, unlike the usual test for private nuisance, the courts apply a very
distinctive test for liability. In finding liability in Goldman, Lord Wilberforce added
that the defendants conduct should be judged in the light of his or her resources
and ability to act in the circumstances. In his Lordships view, it would be unjust to
demand a standard of conduct of which the defendant was not capable, or to require
an excessive expenditure of money. If, therefore, the defendant is poor, and abatement
will require vast expense, the defendant will not be considered negligent. Equally, less
will be expected of the infirm than of the able-bodied. See also Holbeck Hall Hotel Ltd v
Scarborough BC (No 2) (2000).

Useful further reading

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

where the landlord has expressly or impliedly authorised the nuisance

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.

It must be questioned whether this distinction is a convincing one. It is far from


established that a private nuisance must emanate from use of land. It will in most
cases, but is this the same as a rule? See Thompson-Schwab v Costaki (1956).

Useful further reading

OSullivan, J. Nuisance, local authorities and neighbours from hell (2000) 59 CLJ 11.

Davey, M. Neighbours in law [2001] Conv 31.

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

twenty years prescription

uu

the act of a stranger.

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

nuisance due to many.

Coming to the nuisance


It is a well-established rule that the claimant may sue even though the nuisance was,
to his or her knowledge, in existence before he or she arrived at the premises. See Bliss
v Hall (1838) and Miller v Jackson (1977).
Utility
This is not a defence, although it may encourage the court to be more flexible in
deciding a remedy: see Adams v Ursell (1913) and Miller v Jackson (1977).
Due to many
It is no excuse that the defendant was simply one of many causing the nuisance
in question: see Lambton v Mellish (1894) where Chitty J held that if the acts of two
persons, each being aware of what the other is doing, amount in the aggregate to what
is an actionable wrong, each is amenable to the remedy against the aggregate cause of
complaint.

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?

Useful further reading

Newark, F. H. The boundaries of nuisance (1949) 65 LQR 480.

OSullivan, J. Nuisance in the House of Lords normal service resumed (1997) 56


CLJ 483.

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

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.

11.3 The rule in Rylands v Fletcher


11.3.1 The rule
This deals with damage caused by isolated escapes from your neighbours land. The
best example is that of the case itself. Here a mill owner had employed independent
contractors to build a reservoir on his land to provide water for his mill. During the
course of building, the independent contractors discovered some old shafts and
passages of an abandoned coalmine on the defendants land, which appeared to be
blocked. When the reservoir was filled, the water burst through the old shafts, which
were subsequently found to connect with the plaintiffs mine. As a result, the plaintiffs
mine was flooded and he sought compensation.
The case was finally resolved at House of Lords level, but the classic statement of
principle was given by Blackburn J in the Court of Exchequer Chamber:
We think that the true rule of law is that the person who for his own purposes brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape.

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

which escapes (see Read v J. Lyons & Co Ltd (1947))

uu

due to a non-natural use

uu

which causes foreseeable harm.

All four must be proved to establish liability.


In practice, it has been the last two criteria which have caused difficulties. In the
important House of Lords case of Cambridge Water Co. v Eastern Counties Leather plc
(1994), Lord Goff established that only foreseeable harm would be recoverable. His
Lordship also questioned whether the rule should continue to be seen as analytically
distinct from nuisance: it would . . . lead to a more coherent body of common law
principles if the rule were to be regarded as essentially an extension of the law of
nuisance to isolated escapes from land. The recent House of Lords case of Transco plc v
Stockport MBC (2003) confirmed that the rule was in fact a subset of private nuisance.
This case is particularly important because the House of Lords took the opportunity to
review the modern scope and application of the rule in Rylands v Fletcher. In favouring
a restrictive approach, the rule will in future be confined to exceptional circumstances
where the occupier has brought some dangerous thing onto his land which poses an
exceptionally high risk to neighbouring property should it escape, and which amounts
to an extraordinary and unusual use of land.

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11.3.2 Who can sue?


Before Transco, it was unclear whether the claimant would need a right in land to sue.
Although there were decisions permitting non-occupiers of land to sue for damages
(see Shiffman v Order of the Hospital of St John of Jerusalem (1936) and Perry v Kendricks
Transport Ltd (1956)), they were inconsistent with the position in private nuisance, set
out in Hunter v Canary Wharf. Transco confirmed that the claimant must have some
right in the land to sue.

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).

11.3.4 Damages for personal injury?


Although damages have been awarded for personal injury in the past (see Hale v
Jennings (1938); Shiffman v Order of the Hospital of St John of Jerusalem (1936); and Perry v
Kendricks Transport Ltd (1956)), Lord Bingham in Transco affirmed that the claim cannot
include a claim for death or personal injury, since such a claim does not relate to any
right in or enjoyment of land. The same rule therefore applies for all forms of private
nuisance.

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.

Reminder of learning outcomes


By this stage, you should be able to:
uu

apply the rule in Rylands v Fletcher

uu

identify who can sue, when a court is likely to find liability, what defences exist
and what remedies exist.

11.4 Public nuisance


Public nuisance arises when:
uu

the interference does not affect the claimants land

uu

but the public as a whole and the claimant has suffered special damage.

Reference should be made to the classic definition:


any nuisance is public which materially affects the reasonable comfort and
convenience of life of a class of Her Majestys subjects. The sphere of the nuisance may
be described generally as the neighbourhood; but the question whether the local
community within that sphere comprises a sufficient number of persons to constitute a
class of the public is a question of fact in every case. (Romer LJ in Attorney-General v P.Y.A.
Quarries Ltd [1957] 2 QB 169 at p.184.)

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).

Useful further reading

Spencer, J. R. Public nuisance a critical examination (1989) 48 CLJ 55.

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.

Reminder of learning outcomes


By this stage, you should be able to:
uu

explain the difference between various forms of nuisance and when each form is
applicable.

11.5 The relevance of the Human Rights Act 1998


This is a fairly new area of law which is not covered in any depth in Winfield & Jolowicz.
Students are therefore advised to read the articles mentioned below or J Wright, Tort
Law and Human Rights (Hart, 2001), Chapter 8.
There are two main areas where the Act may have some impact on the tort of private
nuisance and the rule in Rylands v Fletcher:
uu

Who can sue?

uu

Increasing the landlords liability for the actions of tenants.

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.

11.5.1 Who can sue?


It has been suggested that limiting who can sue to those with rights to land is contrary
to Article 8 of the European Convention on Human Rights: see McKenna v British
Aluminium Ltd [2002] Env LR 30. Here, Neuberger J refused to strike out a claim for
private nuisance and under the rule in Rylands v Fletcher which was brought by over
30 children from various households. They did not have rights to land. Nevertheless,
Neuberger J found that there is obviously a powerful case for saying that effect has not
been properly given to Article 8.1 if a person with no interest in the home, but who has
lived in the house for some time and had his enjoyment of the home interfered with,
is at the mercy of the person who owns the home, as the only person who can bring
proceedings. It is, however, weak authority a striking-out decision from Birmingham
District Registry and it remains to be seen whether the courts will follow it. Note also
the restrictive approach taken by the House of Lords in Marcic v Thames Water Utilities
Ltd (2003).

11.5.2 Landlords liability for his or her tenants


Deborah Rook in her article examines whether claimants in cases such as Hussain
and Mowan should be able to invoke Article 8 of the European Convention on Human

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.

Reminder of learning outcomes


By this stage, you should be able to:
uu

identify the potential for change in the law of tort following the implementation
of the Human Rights Act 1998.

Useful further reading

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.

Bright, S. and Bakalis, C. Anti-social behaviour: local authority responsibility and


the voice of the victim (2003) 62 CLJ 305.

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?

Sample examination question


This is a typical question and will give you some idea of the issues which arise in
practice.
Arabella owns a large house in its own grounds at the edge of a village. Next to her
house is a farm owned by Ben. All of Bens animals had to be slaughtered during an
outbreak of foot and mouth disease, and, in order to earn some income, Ben leased
part of his land, including the field next to Arabellas house, to Charles to organise
car boot sales at the weekend. These become very popular and large numbers of
cars arrive, frequently causing traffic jams in the village. The village church had been
damaged by fire earlier in the year and Sunday morning services are held in Arabellas
house: the noise from the car boot sale disturbs the worshippers. Some of the visitors

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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.

Advice on answering the question


We will examine the issues in turn:
a. Which forms of nuisance are applicable?
Arabella owns land and there is interference with its use and enjoyment. This would
suggest a potential claim in private nuisance.
There are traffic jams in the village: a possible public nuisance?
Soot and debris escape from Charles rented field into Arabellas land. This suggests a
claim under the rule in Rylands v Fletcher.
b. Right to sue?
Arabella owns a house and thus seems to have an interest in land satisfactory for private
nuisance and the rule in Rylands v Fletcher. The Sunday morning worshippers, however,
do not. It must be queried whether Arabella has suffered special damage for public
nuisance.
c. Will a court find liability?
It is at this stage that we must divide up the potential heads of liability and identify the
particular defendants. There are three potential heads of liability and three potential
defendants: Ben (as landlord), Charles (as tenant) and the visitors to the sale.
i. Private nuisance
The complaint relates to noise and damage to land by third parties the visitors. It is
unlikely that any claim may be made against them they are not identified in any event.
Any claim must therefore be brought against Ben or Charles. First, did Ben as the landlord
authorise this nuisance? If we look at the purpose of the lease, he knew that it would be
used for car boot sales which would bring a number of people to the area with ensuing
noise and disruption (see Tetley v Chitty (1986)). Would it of necessity lead to property
damage on neighbouring land? Only if this could be established would Ben be liable to
Arabella for the actions of Charles and his visitors.
Charles may incur liability as tenant and occupier of the land. The question here is
whether he should be responsible for the actions of his visitors. Under Sedleigh-Denfield,
where the occupier adopts or continues the nuisance of others, he will be liable. Has
Charles taken reasonable steps to abate the nuisance?
A more fundamental question also arises: do the noise and property damage amount
to a nuisance at all? The noise disturbs the worshippers (who have no rights to sue), but
are they extra-sensitive (see Heath v Mayor of Brighton (1908))? Damage to property will,
however, normally be regarded as a nuisance: see St Helens Smelting Co v Tipping (1865).
ii. Public nuisance
This will be based on the traffic jams in the village. It must be questioned, however,
whether Arabella herself can show special damage.
iii. The rule in Rylands v Fletcher
The exploding barbecue would appear to fit under this head. The four requirements
set out in Cambridge Water would appear to be satisfied, assuming that the damage is
reasonably foreseeable. There is no personal injury to worry us here.

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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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain the difference between various forms of


nuisance and when each form is applicable

I can 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

who can sue

uu

when a court is likely to find liability

uu

what defences exist

uu

what remedies exist

I can outline the basic rules of the tort of public


nuisance

I can identify the potential for change in the law of


tort following the implementation of the Human
Rights Act 1998.

If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise

Revision
done

11.1

The different forms of nuisance

11.2

Private nuisance

11.3

The rule in Rylands v Fletcher

11.4

Public nuisance

12 Defamation

Contents
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

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . .

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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:
uu

explain the nature and purpose of the tort of defamation

uu

identify the general principles and distinguish between libel and slander

uu

apply the rules relating to liability and, in particular, be able to identify


uu

when a statement will be judged defamatory

uu

when a statement refers to a claimant

uu

when a statement has been published

uu

what defences exist

uu

what remedies exist

uu

explain the procedural and substantive changes to the law of defamation


introduced by the Defamation Act 2013

uu

discuss the impact of the Human Rights Act 1998 on the law of defamation.

Essential reading

Lunney and Oliphant, Chapter 13: Defamation.

Winfield & Jolowicz, Chapter 12: Defamation and related matters.

Law of Tort 12 Defamation

12.1 General principles


12.1.1 Libel and slander
Defamation is a tort which protects the claimant against attacks to their reputation.
This may occur in a number of ways. The attacks may be spoken, written, indicated
by gestures or conduct or even expressed in sign language or in code. The law divides
these modes of communication into libel and slander. Libel generally takes permanent
form, while slander is temporary. This is a relatively crude distinction, but remains part
of English law. On this basis, text or a photograph in a newspaper will amount to libel.
Shouting insults in the classroom will be deemed to be slander.
Slander is considered to be less serious because of its temporary nature. Until recently,
the courts presumed that harm occurred as a result of libel it was actionable
perse. However, the previous law was criticised as being costly and unfair, resulting
in a chilling effect on freedom of expression and the stifling of legitimate debate.
The Defamation Act 2013 seeks to achieve a better balance between protection of
reputation and free speech by restricting claims to those of real substance and arising
primarily in England and Wales. A serious harm threshold for defamation claims is
now required. Section 1(1) of the Act 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.
In slander, the claimant must prove that the slander resulted in special damage; for
example, their business lost money as a result of the slander. Equally the loss must
not be too remote: Lynch v Knight (1861) 9 HLC 577. Unlike slander, libel is also a crime,
although few prosecutions are made.
Difficulties have arisen on two grounds. First, the distinction between libel and slander
is sometimes unclear. For example, in Youssoupoff v MGM Pictures Ltd (1934) 50 TLR
581, a Russian Princess had complained about words used in the film soundtrack to
Rasputin, the mad monk, which she claimed had falsely suggested that she had been
raped by Rasputin. The court took the view that speech, which was synchronised with
the film, took a permanent form and should be treated as libel. Logically, however, if
the film broke down but the words continued it would be slander. Yet, this ignores the
fact that although the words are merely heard, they are permanently recorded which,
it is submitted, suggests that they should be considered libel. We can also contrast
this with legislation which indicates that performances of a play and broadcasts on
television and radio are to be treated as libel: see s.4(1) Theatres Act 1968 and s.166
Broadcasting Act 1990.
A second complication is that although, as a general rule, special damage must be
proved for slander, there are two forms of slander which are actionable per se. There
is no obvious criterion to distinguish these cases except that the damage must be
considered so obvious that it need not be proved.
They are as follows:
uu

imputation of a criminal offence punishable by imprisonment

uu

imputation of unfitness or incompetence (s.2 Defamation Act 1952).

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.

12.1.2 Judge and jury


Until recently, defamation was one of the few remaining torts where the case was
usually heard by a judge and jury. The role of the judge was to deal with questions of
law, for example, were the words used capable of being found to be defamatory? Could
the conduct of the defendant be viewed as malicious? The role of the jury was to deal
with matters of fact, for example, were the words used in fact defamatory? What level
of damages should be awarded? Was the defendant in fact malicious?
This is no longer the case, as one of the key provisions in the Defamation Act 2013 is
removal of the presumption in favour of trial by jury; s.11 provides that trials for both
libel and slander are now to be without a jury unless the court orders otherwise.

12.1.3 Who can sue?


The tort protects an individuals reputation. Logically, therefore, any human being can
sue, but the claim does not survive death (s.1(1) Law Reform (Miscellaneous Provisions)
Act 1934). More controversially, it extends to companies, which are deemed to possess
a business reputation. However, the scope for companies to sue for reputational
damage is significantly limited by the Defamation Act 2013. We have seen above that in
the case of individuals, s.1(1) of the Act 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. In the case of corporate claimants, s.1(2) provides that harm to the
reputation of a body that trades for profit is not serious harm unless it has caused or
is likely to cause that body serious financial loss. The need to show serious financial
loss will restrict companies from using the threat of defamation proceedings to silence
critics who wish to speak out.
Protection does not extend to governmental bodies (Derbyshire CC v Times Newspapers
Ltd [1993] AC 534) or political parties (Goldsmith v Boyruh [1998] QB 459). It is considered
to be contrary to freedom of expression in a parliamentary democracy to allow such
bodies to bring actions which might discourage criticism of their actions. This does not
prevent individual councillors or Members of Parliament from suing. A BBC headline
of February 2005 that The Conservative party sues Times newspaper was therefore
incorrect; it was a particular Conservative party worker who was threatening to sue the
Times.

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,

Law of Tort 12 Defamation


except in two situations. The distinction between libel and slander is far from clear.
Academics have questioned whether writing in chalk on walls and sky-writing by
aeroplanes should be classified as libel or slander, although the conventional wisdom
suggests libel. Such confusion will remain as long as English law continues to rely on
this distinction.

Reminder of learning outcomes


By this stage, you should be able to:
uu

identify the general principles of libel and slander and distinguish between
them.

12.2 What does the claimant have to prove?


The defendant must prove three things: that the statement is defamatory, refers to
the claimant and has been published to a third party. The statement is presumed to be
false unless proven otherwise. These three questions will be examined below.

12.2.1 The statement must be defamatory


The term defamatory has been defined in a number of cases which identify
defamatory statements as those which 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). Sim v Stretch was authority for the existence of a threshold of seriousness about
what is defamatory. That threshold has been raised by s.1(1) Defamation Act 2013,
which provides that only cases involving serious harm to the claimants reputation can
be brought in defamation.
It is no excuse that the words were not intended to be defamatory, although this may
help support a defence of unintentional defamation. The courts will ignore mere
abuse (see Berkoff v Burchill [1996] 4 All ER 1008).

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.

Considering the statement in context


The courts will not allow claimants to point to a particular sentence in isolation, but
will examine the statement in its whole context. This is shown in the House of Lords
decision in Charleston v News Group Newspapers Ltd [1995] 2 AC 65. Here, The News of
the World had run a story about a computer game, which featured near-naked bodies
of models in pornographic poses, on which the heads of two characters from the
Australian soap Neighbours (Madge and Harold Bishop) had been superimposed. The
headline read Strewth! Whats Harold up to with our Madge? and was accompanied
by photographs of the characters as depicted in the game. The actors complained
that the photographs suggested that they had participated in some way in the
making of the game. Although the accompanying article made it clear that the
actors had not participated in any way, it was argued that a significant proportion of
readers skimming through the newspaper would only read the headlines and look
at the photographs, and would come to the wrong conclusions. The court refused to
approach the case in this way. Defamatory was judged by the standard of the ordinary
reasonable person, who would have taken the trouble to discover what the article was
about. It was therefore irrelevant that the News of the World may have some readers
who only read the headlines.

Activity 12.2
Barbara has argued with her friend, Charles. He has now put up posters around the
town which make the following statements:
uu

Barbara has plenty of friends, especially men.

uu

Barbara has spent some time in the police station, helping the police with their
inquiries.

uu

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!

Are these statements defamatory of Barbara?

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

Identify when a statement will be considered defamatory.

Law of Tort 12 Defamation

12.2.2 Does the statement refer to the claimant?


A claimant will only be able to bring an action for defamation if they can show that
the words in the statement referred to them. Otherwise, the claimant would not
have standing to sue. This is not a problem where the claimant is named, for example,
David cannot be trusted. It is more difficult when the defendant makes general
statements politicians cannot be trusted or does not name the claimant expressly
the man with blue eyes cannot be trusted. The claimant will have to prove that an
ordinary reasonable person, with knowledge of all the circumstances, would recognise
that the person referred to is the claimant. This is not always easy to achieve.
In the leading case of Morgan v Odhams Press Ltd [1971] 1 WLR 1239, the majority of
the House of Lords found that it was not necessary to find a specific pointer in the
article, or a peg on which to hang such a reference. It was enough that the ordinary
reasonable person would, on the facts, have drawn the inference that the article
referred to Morgan.
It is irrelevant, however, that the defendant did not intend to defame the claimant. In
the classic example of Hulton & Co v Jones [1910] AC 20, the newspaper had published a
humorous article describing the activities of a fictional churchwarden from Peckham
called Artemus Jones. The claimant, Thomas Artemus Jones, was not a churchwarden
and did not live in Peckham, but was a barrister practising on the North Wales Circuit.
The House of Lords nevertheless held that there was evidence upon which the jury
could conclude that reasonable people would believe Mr Jones was referred to and it
was irrelevant that the defendants had no intention to defame him. (See also Newstead
v London Express Newspaper Ltd [1940] 1 KB 377.) The onus is thus on the newspaper to
identify clearly who they wish to discuss the real Mr Jones or a fictional character.

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

identify whether a statement refers to the claimant.

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.

Publication on the internet


Liability of internet service providers (ISPs), websites and search engines is now governed
by s.5 Defamation Act 2013. A person defamed on the internet may seek to have the
defamatory statement removed from the public domain as quickly as possible and
immediately approach those responsible for providing the conduit for publication
and dissemination, such as the ISP. An ISP is not considered to be the publisher of the
defamatory statement in these circumstances but is treated as a secondary publisher
(distributor) and may be able to rely on the defence of innocent dissemination under
s.1(b) Defamation Act 1996.
In Godfrey v Demon Internet [2001] QB 201, although the defendants successfully showed
that they were not the author, editor, or publisher of the defamatory statement within the

Law of Tort 12 Defamation


meaning of the Defamation Act 1996, they could not show that they had taken reasonable
care in relation to its publication. They had been informed of the libel on the internet and
had failed to remove it, and the s.1(b) defence was defeated.
Search-engine liability was considered in Metropolitan International Schools Ltd v
Designtechnica Corporation [2011] 1 WLR 1743, where the question was whether Google
should be regarded as a publisher of the words complained of (be it before or after
Google had been notified of their defamatory comments) or whether it was a mere
facilitator. Eady J found that Google was not liable for publication of the statements
because it had no control over the search terms entered by users of the search engine
or of the material which is placed on the web by its users. He pointed out that a search
engine is different from a website host; merely pressing a button will not ensure that the
offending words will never reappear on a Google search snippet and there is no control
over the search terms typed in by future users.
Determining the publisher of defamatory material posted by anonymous authors is
increasingly important because claims in defamation are now being taken against website
operators and other intermediaries in respect of defamatory statements posted by third
parties. Evolving liability in this area has given rise to concerns about the chilling effect on
freedom of speech in respect of internet publication. Defamatory comments posted on
a London Muslim blog operated by Google Inc formed the basis of the claim in Tamiz v
Google Inc [2013] EWCA Civ 68, where the Court of Appeal made it clear that, once notified,
an internet platform provider can be a publisher of a defamatory statement posted by
a third party, and if it does not act promptly in response to notification to remove the
material, may not have a defence under s.1 Defamation Act 1996.

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

identify when a statement has been published.

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.

12.3.1 Truth (replaces the common law defence of justification)


Defamatory statements are presumed to be untrue, unless the defendant proves
otherwise. Truth (or justification) is thus seen as a defence. It is irrelevant that the
defendants intention was malicious (contrast fair comment and qualified privilege).
The only exception to this may be found in s.8(5) of the Rehabilitation of Offenders Act
1974.
The defendant must show that the defamatory statements are substantially true:
Alexander v North Eastern Railway Co (1865) 6 B&S 340 and s.5 Defamation Act 1952.
Partial truth is not a defence. The defendant must justify every innuendo and not
simply the main allegation: see Wakley v Cooke (1849) 4 Exch 511. The burden is
therefore on the defendant to justify the substantial truth or sting of the allegations.
Section 1(1) of the 2013 Act confirms this approach: if the defendant can establish the
essential or substantial truth of the sting of the libel there is no need to prove that
every word of the statement was true.
To achieve this, the defendant may also wish to raise matters with a common sting in
support of their claim of justification: see Williams v Reason [1988] 1 WLR 96 and Cruise v
Express Newspapers plc [1999] QB 931.

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?

12.3.2 Honest opinion (replaces the common law defence of fair


comment)
A new defence of honest opinion which replaces the common law defence of fair
comment has been introduced by the Defamation Act 2013, s.3. Like the defence of
truth, honest opinion is a complete defence to an action in defamation. However,
unlike the defence of truth, the defendant is not required to show the truth of the
statement. A purely factual statement is either true or false, but the same cannot be
said for expressions of opinion. The statutory defence of honest opinion is largely a
restatement of the current law, and the cases below interpreting what amounts to a
statement of fact and what is a statement of opinion continue to be relevant.
Honest opinion protects opinions honestly held, however obstinate, prejudiced or
exaggerated, if the statement complained of:
uu

was a statement of opinion

uu

indicated, whether in general or specific terms, the basis of the opinion

uu

could have been held by an honest person on the basis of any fact which existed at
the time the statement was published.

The statement must be recognisable as comment (as distinct from an imputation


of fact) and the assessment is made on the basis of how the ordinary person would

Law of Tort 12 Defamation


understand it. This reflects the test approved by the Supreme Court in Spiller v Joseph
[2010] UKSC 53 that the comment must explicitly or implicitly indicate, at least in
general terms, the facts on which it is based.
The statement must be a comment on a true set of facts. This can be inferred, for
example, from a headline as in Kemsley v Foot [1952] AC 345, although the House of
Lords seemed to adopt a stricter line in the more recent case of Telnikoff v Matusevitch
[1992] 2 AC 343. Here, a letter was written in response to a previously published article
in the Daily Telegraph. In deciding whether the allegation of racism was a statement
of fact or comment, the court examined the letter without reference to the article it
criticised. Their Lordships reasoned that many readers of the letter would not have
read the article or have limited recollection of its contents. It should therefore be
judged in isolation. See also s.6 of the Defamation Act 1952.
The comment must also be fair and honest. The courts use an objective test: was the
opinion, however exaggerated, obstinate or prejudiced, honestly held by the person
expressing it? See Lord Nicholls in Reynolds v Times Newspapers [2001] 2 AC 127 and
Albert Cheng v Tse Wai Chun [2001] EMLR 31, and Eady J in Branson v Bower (No 2) [2002]
QB 737.
Honest opinion is unlike the defence of qualified privilege (discussed below) because
honest opinion is not limited to those who have a duty to publish the information;
any person is entitled to comment on a matter of public interest. The requirement for
the opinion to be on a matter of public interest is not contained in the 2013 Act, which
gives protection to all opinion. Prior to the Act, honest comment failed if the claimant
could show malice on the part of the defendant. However, all the defendant now
needs to show is an honest belief in the truth of the opinion.

12.3.3 Publication on a matter of public interest


Section 4 of the Defamation Act creates a new defence for publication on a matter of
public interest. This new defence is intended to reflect the principles established in
Reynolds v Times Newspapers (discussed below under qualified privilege at common
law) and in subsequent case law. The defence provided by s.4 may be relied on
irrespective of whether the statement complained of is one of fact or opinion. The
Act does not say that the defence is defeated by malice, but since it is based on
reasonable belief that publication was in the public interest, the presence of malice
should be a relevant factor in determining the defendants belief when they published
the statement.
The Section 4 defence will apply where the defendant can show:
uu

the statement complained of was, or formed part of, a statement on a matter of


public interest; and

uu

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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3. Why is honest opinion important in terms of freedom of expression?


4. How easy is it to distinguish between a statement of fact and a comment on a
true sets of facts?

Reminder of learning outcomes


By this stage, you should be able to:
uu

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:
uu

That X had a duty or interest in communicating the information to Y. This may be


legal, moral or social.

uu

Y has a corresponding interest in receiving the information in question.

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:
uu

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

uu

the nature of the information is it a matter of public concern?

uu

its source

uu

what steps had been taken to verify the information

uu

the status of the information, that is, how reliable is the report?

uu

the urgency of the matter

uu

whether comment is sought from the claimant

uu

the tone of the article

uu

whether the gist of the claimants side of the story has been told

uu

the general circumstances and timing of the publication.

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.

Useful further reading

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.

12.3.5 Innocent dissemination


This defence is found in s.1, Defamation Act 1996. It is now a defence to show that:
uu

the defendant is not the author, editor or commercial publisher of the statement

uu

the defendant took reasonable care in relation to the publication

You should look up this


Act to discover what these
sections mean.

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the defendant did not know, or had no reason to believe, that what they did caused
or contributed to the publication of a defamatory statement.

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.

12.3.6 Unintentional defamation


Sections 24 of the Defamation Act 1996 establish a procedure whereby a person who
inadvertently defames another can publish an apology and correction and pay an
agreed sum of compensation to the claimant. This is not, therefore, in strict terms a
defence indeed to be effective the defendant must not serve a defence (s.2(5)) but a
form of settlement avoiding the potentially huge costs of defamation litigation.
Under s.2, the defendant must be prepared:
uu

to admit that they were wrong (or partly wrong)

uu

to offer in writing to make a suitable correction and apology

uu

to publish the correction and apology in a manner that is reasonable and practicable
in the circumstances

uu

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).

12.3.7 Protection for website operators


Section 5 of the Defamation Act 2013 provides a new defence aimed at protecting forums
and blog sites who print, distribute and host user-generated content from libel claims
arising from defamatory user comments. Section 5 does not replace the existing law;
it is a new defence which is defeated where the operator acted with malice in posting
the statement. However, the defence is not defeated just because the website operator
moderates statements posted by others.
The Act specifies that a complainant is required to send a notice of complaint to the
website operator which contains the following information:
uu

where the material is located (usually the URL)

uu

why it is claimed to be defamatory

uu

what defamatory meaning the complainant ascribes to the material

uu

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.

Law of Tort 12 Defamation

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?

Reminder of learning outcomes


By this stage, you should be able to:
uu

explain when the defendant can successfully rely on the defences of absolute
and qualified privilege

uu

explain when the other defences of innocent dissemination, unintentional


defamation and consent may be relevant

uu

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.

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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.

Reminder of learning outcomes


By this stage, you should be able to:
uu

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.

Sample examination question


This is a typical question and will give you some idea of the issues which arise in
practice.
A parliamentary by-election is taking place soon in the constituency of Barsetshire
North. The Barsetshire Chronicle carried the following item on its front page about
the candidates.

Law of Tort 12 Defamation


What a motley crew are on offer for the good voters of Barsetshire North!
First theres Maisie Mazda. Like all politicians, she likes to pass herself off as
something she is not. She may look the glamorous granny, but we know its
not nature but the surgeons knife which gave her the face and figure she
always seems so anxious to flaunt. 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. And if you dont like them, 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.
Maisie Mazda had once had cosmetic surgery to remove a small mole from her
cheek. The coverage on page 7 of the newspaper 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.
Advise as to any possible claims in defamation.

Advice on answering the question


It is important to isolate the statements which we think may give rise to an action in
defamation and then ask four questions:
uu

Is the statement defamatory?

uu

Does it refer to the claimant?

uu

Has it been published?

uu

Any there any defences?

We will look at each statement in turn.


a. What a motley crew are on offer for the good voters of Barsetshire North!
The word motley is clearly not flattering, but seems to be used in jest. It would be
difficult to allege that this realistically tended to lower the plaintiff in the estimation of
right-thinking members of society generally (Sim v Stretch [1936] 2 All ER 1237). Usually,
it will, in any event, be difficult for a member of a group to show that the statement
directly points to them: see Knuppfer v London Express Newspaper Ltd [1944] AC 116, and
she may also have difficulty in showing that the statement caused serious harm to her
reputation. Here, one presumes that the crew consists of Maisie, Tom and Horace. This
being a small group, group defamation would not be an obstacle. However, they would
be unlikely to succeed in showing that the statement is defamatory.
b. First theres Maisie Mazda. Like all politicians, she likes to pass herself off as
something she is not. She may look the glamorous granny, but we know its not
nature but the surgeons knife which gave her the face and figure she always seems
so anxious to flaunt.
Here, Maisie will have to show that this statement is defamatory, namely that it tends
to lower the plaintiff in the estimation of right-thinking members of society generally.
The allegation is that she has had cosmetic surgery. Is such a statement enough to
make right-thinking members of society think less of her? In our society, more and
more people are having cosmetic surgery. It is no longer unusual and indeed common
amongst public figures. However, we do note that people often deny having cosmetic
surgery, preferring others to believe that their good looks are natural. Is this allegation
therefore enough to lower her reputation? It seems doubtful.
However, there is a further allegation that Maisie likes to pass herself off as something
she is not. The innuendo is that in having cosmetic surgery, she is showing that she is
dishonest and seeks to mislead. This would seem to harm Maisies reputation.
Having shown that the statement is defamatory, the statement clearly refers to Maisie
(she is named) and has been published (it is on the front page of a newspaper). We
now need to look at defences.
We are told that Maisie Mazda had once had cosmetic surgery to remove a small mole
from her cheek. On this basis, the Barsetshire Chronicle is likely to try and prove truth.

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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.

Law of Tort 12 Defamation


In view of the Chronicles conduct, it is difficult to see any defence. The innuendo is
not true and the newspaper has not behaved responsibly and cannot therefore resort
to the defence of publication on a matter of public interest. It is therefore likely to be
liable to Horace, who will seek a high award of damages.
One must also consider the position of Jackie. The statement also involves her
reputation. It is equally defamatory to accuse a young woman of a relationship with
an older and married man. Society is likely to think less of her for being part of such
a relationship: see Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581. However, she is
not named except on page 7. Can she therefore prove that the statement refers to
her? Morgan v Odhams Press Ltd [1971] 1 WLR 1239 asks whether an ordinary reasonable
person would, on the facts, have drawn the inference that the article referred to Jackie.
In view of her photograph on the left of the article, the answer must be yes. The rest of
her claim would follow the same pattern as that of Horace.

Conclusion
In summary, Maisie, Horace and Jackie would appear to have good claims in
defamation. The claim of Tom seems more problematic.

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can explain the nature and purpose of the tort of


defamation

I can identify the general principles and distinguish


between libel and slander

I can apply the rules relating to liability and, in


particular, be able to identify:

uu

when a statement refers to a claimant

uu

when a statement has been published

uu

what defences exist

uu

what remedies exist

Discuss the impact of the Human Rights Act 1998 on


the law of defamation.

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

What does the claimant have to prove?

12.3

Defences

12.4

Remedies

13 Miscellaneous

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13.1

174

Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

13.2 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179


13.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183

Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . .

189

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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:
uu

distinguish between primary and vicarious liability

uu

suggest reasons why the law should hold employers liable for certain torts
committed by their employees

uu

distinguish between an employer and an independent contractor

uu

identify when an employee is acting in the course of employment

uu

explain the provisions of the Law Reform (Contributory) Negligence Act 1945

uu

describe what is meant by contributory negligence

uu

explain the basis on which the courts reduce damages as the result of
contributory negligence

uu

explain the role of consent as a defence to an action in negligence or breach of a


tort of strict liability

uu

describe when a defendant is able to exclude tortious liability

uu

explain when a defendant may escape liability by showing that the claimant had
consented to run the physical risk of injury

uu

explain in what circumstances a defendant may escape liability by showing that


the claimant had been acting illegally or morally reprehensibly at the time of the
injury

uu

explain the purposes of damages in tort for personal injuries and the general
principles according to which they are assessed

uu

explain the nature of structured settlements and their advantages and


disadvantages

uu

explain the effect on compensation for personal injuries if the victim dies.

Essential reading

Lunney and Oliphant, Chapter 15: Vicarious liability.

Markesinis and Deakin, Chapter 19: Vicarious liability.

Murphy, Chapter 24: Vicarious liability.

Winfield & Jolowicz, Chapter 20: Vicarious liability.

Law of Tort 13 Miscellaneous

13.1 Vicarious liability


13.1.1 Introducing vicarious liability
Vicarious liability means that one person (even though otherwise not a tortfeasor) is
liable for a tort committed by someone else. It is therefore an extreme form of strict
liability. The only clear example in English law is the liability of employers for the torts
committed by their employees in the course of employment.
It is important first to be clear about the distinction between primary liability and
vicarious liability. Consider three examples.
A. Home Office v Dorset Yacht Co [1970] AC 1004. You should remember the facts of this
case from Chapter 3. The Home Office was vicariously liable for the torts of the borstal
officers. But neither the Home Office nor the borstal officers were vicariously liable for
the torts of the boys. The officers were primarily liable (i.e. they themselves were the
tortfeasors) for failing to control the boys and enabling them to escape and damage a
yacht.
B. Attorney-General of the British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR
1273. In this case the claimant argued that the police authorities were liable for the
wrongdoing of the policeman on two bases. First, he argued that the authorities were
primarily liable for their own negligence in allowing the policeman to remove the guns
from the police station and use them for his own purposes and, secondly, he argued
that the authorities were vicariously liable for the policemans torts. He succeeded on
the first (see Section 3.2.1) and failed on the second (see below). It may therefore be
necessary on many sets of facts to consider the possibility both of vicarious liability
and primary liability.
C. There is a further example in McDermid v Nash Dredging & Reclamation Co Ltd [1987]
AC 906. Here the claimant was himself an employee and both vicarious liability and
the employers non-delegable duty of care (a form of primary liability) were possible
routes to success for the claimant (see Section 6.3.2).

Justifications for the doctrine


There are at least two practical advantages from the claimants point of view: (i) an
employer is much more likely to have the assets to pay damages and to be insured
against liability than an individual employee: (ii) it may sometimes be unclear which
of a number of employees has actually committed the tort, but the employer will be
vicariously liable for all of them.
However, the mere fact that the claimant is as a practical matter likely to obtain
compensation by suing the employer is not in itself a reason for the doctrine.
Many different theories have been advanced to justify the doctrine of vicarious
liability. These are set out in the textbooks. The most plausible justifications are
probably these:
uu

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).

uu

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.

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13.1.2 Establishing vicarious liability


To succeed in a claim based on vicariously liability, the claimant has to establish that:
uu

the alleged tortfeasor was an employee

uu

the employee committed a tort

uu

the employee committed the tort in the course of employment.

i. Establishing the employee relationship


It has proved difficult to identify a test that will distinguish an employee (for whom
there is vicarious liability) from an independent contractor (for whom generally there
is not). The issues are surprisingly complicated and the answer may depend on the
precise contractual relationship. It is possible here only to identify the broad issues
that arise.
a. A traditional example of the distinction is that a chauffeur is an employee and
a taxi driver is an independent contractor. If your chauffeur carelessly knocks a
pedestrian down, you are vicariously liable. If your taxi driver does it, you are not.
This is not simply because the taxi driver is usually engaged only for a single trip. A
contract of employment may be of short duration. A taxi company may be engaged
on a long-term basis to provide a car and driver to take someone to and from work
every day, but this is unlikely to make the driver an employee of the passenger or of
the passengers employer.
b. There are many other contexts in which the same question has to be answered.
There are different tax and national insurance implications for employees, and
an employee has greater employment rights and protection. A number of cases
cited in this section are not about liability in tort at all. It is generally assumed
that the same tests are applied whatever the context in which the question
arises, but there are arguments against this assumption. This is particularly true
where the employer and employee have entered into complicated contractual
arrangements for tax or national insurance purposes. See for example Ready Mixed
Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497.
c. There is nowadays a great variety of patterns of employment. It is not yet clear
what arrangements of primary or vicarious liability can best deal with these. Here
are some examples. The provision of agency staff is common in many industries,
notably in clerical and hospital work. Bodies such as insurance companies or utility
companies enter into contracts with customers under which they agree to supply,
e.g. plumbers to deal with emergencies. In what circumstances might the agency
or the insurance company be primarily or vicariously liable for the acts of the
employees supplied?
d. No single test has proved satisfactory as a distinction between employees
and independent contractors. Courts have referred to the extent to which the
employer can control how the individual does the job. They have considered how
far the individual can be said to be integrated into the business. They have adopted
an impressionistic approach and have added up the features of the relationship,
identifying those features that were more like a contract of service (i.e. of
employment) and those that were more like a contract for services and considered
where the balance lay. Among many illustrative cases are: Cassidy v Minister of
Health [1951] 2 KB 343; Stevenson Jordan & Harrison v Macdonald & Evans [1952] 1 TLR
101, per Denning LJ; Market Investigations Ltd v Minister of Social Security [1969] 2 QB
173, per Cooke J; Hall (Inspector of Taxes) v Lorimer [1994] 1 All ER 250.

Law of Tort 13 Miscellaneous

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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.

ii. The employee must commit a tort


The employer is liable vicariously only if the employee has committed a tort. That
means that the employer can take advantage of any substantive defence available to
the employee (such as contributory negligence or volenti non fit iniuria). See ICI Ltd v
Shatwell [1965] AC 656.
If, however, the employee has committed a tort, but cannot be sued because of
some procedural bar, the employer cannot take advantage of such a defence: Broom
v Morgan [1953] 1 QB 497. The claimant and tortfeasor were husband and wife. At
that time spouses could not sue each other (but see now the Law Reform (Husband
and Wife) Act 1962), but that did not prevent the husband suing the wifes employer
vicariously.

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.

But dont forget that


employers may still be liable
primarily for any negligence
of their own (e.g. in training
or supervising the employee).

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d. There is a further complication where the employee is doing something


specifically forbidden by the employer. The outcome is then said to depend on
whether the prohibition limited the sphere of employment (in which case the
employee is not in the course of employment) or to limit the manner in which the
employee carried out duties (in which case the employee is still in the course of
employment). See Plumb v Cobden Flour Mills Co Ltd [1914] AC 62, per Lord Dunedin;
Limpus v London General Omnibus Co (1862) 1 H & C 526; Rose v Plenty [1976] 1 WLR 141.
e. In the cases considered so far the employee had committed the tort of negligence.
It is, however, more difficult to apply vicarious liability where the employee has
deliberately caused the damage to the claimant and/or the employee is guilty
of a crime. How can such activities be in the course of employment? Using the
orthodox test, the courts did impose vicarious liability where the employee was
acting for the benefit of the employer (e.g. by assaulting a suspected thief) or stole
property that he was employed to clean. See: Poland v Parr & Sons [1927] 1 KB 236;
Warren v Henlys Ltd [1948] 2 All ER 935; Lloyd v Grace, Smith & Co [1912] AC 716; Morris v
CW Martin & Sons Ltd [1965] 2 All ER 725; Heasmans v Clarity Cleaning Co Ltd [1987] IRLR
286.
The limits of this approach were reached in a case where a deputy headmaster
sexually abused a pupil during a school trip to Spain: Trotman v North Yorkshire CC
[1999] LGR 584. It is difficult to describe such conduct as an unauthorised mode of
carrying out the deputy headmasters duty. The Court of Appeal therefore held that his
employer was not vicariously liable. This case has now been overruled by the House of
Lords.
b. The Lister test
The House of Lords decided that the warden of a residential school for children, who
had some years after the events been convicted of sexual assaults on pupils in his care,
was acting in the course of employment so as to make his employers vicariously liable:
Lister v Hesley Hall Ltd [2001] UKHL 22: [2002] 1 AC 215.
This case, and the views expressed by various judges, are very important and must be
considered carefully.
uu

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.

uu

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:

uu

uu

Mattis v Pollock [2003] EWCA Civ 887: [2003] 1 WLR 2158 (vicarious liability
imposed)

uu

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.

Law of Tort 13 Miscellaneous

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The employees position


Even though the employer is vicariously liable, the employee also remains liable.
Examination candidates very often seem to think that vicarious liability is some kind of
defence that enables the wrongdoing employee to transfer liability to the employer.
This is not so. Indeed the employer is entitled to recover from the employee the
amount of any damages paid to the claimant: Lister v Romford Ice & Cold Storage Co Ltd
[1957] AC 555.
The employer is however insured and the effect of the rule therefore is that an
insurance company is able to recover the amounts it has paid under the insurance
policy. The insurance companies have entered into an informal agreement not to
exercise the rights recognised in the Romford Ice case.

Reminder of learning outcomes


By the end of this section, you should be able to:
uu

distinguish between primary and vicarious liability

uu

suggest reasons why the law should hold employers liable for certain torts
committed by their employees

uu

distinguish between an employer and an independent contractor

uu

identify when an employee is acting in the course of employment.

Activity 13.1

There was a gentlemans


agreement after the outcry
about the Romford case
(in which it was really the
employers insurers and not
the employers who pursued
the employee) under which
liability insurers agreed not
to exercise their rights except
in certain circumstances.
This appears to have been
observed.

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

Lunney and Oliphant, Chapter 6: Defences to negligence.

Markesinis and Deakin, Chapter 23: Defences, Sections 15.

Murphy, Chapter 6: Defences to negligence.

Winfield and Jolowicz, Chapter 6: Negligence: causation, remoteness (scope of


liability) and contributory negligence, Section 4 Contributory negligence and
Chapter 25: Defences, Section 1 Consent. Non volenti non fit injura and Section
2 Public policy. Illegality.

Specialised defences (e.g. to a defamation or nuisance action) have been considered


under the appropriate tort. Some reference has already been made at various points
to the defences listed below: contributory negligence, consent and illegality.

13.2.1 Contributory negligence


The defendant may plead that the claimants own negligence contributed to the
injury. This is referred to as contributory negligence. Until 1945 a successful plea of
contributory negligence was a complete defence. The Law Reform (Contributory
Negligence ) Act 1945 now provides for an apportionment of liability between the
claimant and the defendant.
The important issues that arise in relation to this defence are as follows:

Note: The term contributory


negligence should be
used only to describe
the negligence of the
claimant. For instance two
motorists, X and Y, through
the carelessness of both of
them injure a motor cyclist,
C, who was not wearing a
crash helmet. C sues X. It is
appropriate to describe Cs
failure to wear a helmet as
contributory negligence, but
it is confusing to describe Ys
carelessness as contributory
negligence.

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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.)

Law of Tort 13 Miscellaneous


This right to exclude liability is strictly controlled and has been further constrained by
statute.
First you will remember what you learned about exclusion clauses in studying the law
of contract. So a notice will be effective only if (i) the claimant knew of its terms in
advance, (ii) its terms clearly cover the situation that has occurred, (iii) the claimant
was free to choose whether to encounter the risk or not: Burnett v British Waterways
[1973] 2 All ER 631.
The main statutory intervention has been the Unfair Contract Terms Act 1977, in
particular sections 2 and 11 (remember that this does not just apply to exclusions
clauses operating in contract). This Act is restricted to the exclusion of liability arising
in the course of a business or on premises occupied for the purpose of a business, but
is otherwise of general application.
The Road Traffic Act 1988 section 149(3) (re-enacting legislation from 1971) prevents
car drivers excluding liability to passengers by an antecedent agreement or
understanding.
There is also legislation restricting the rights of employers in some circumstances to
exclude their duties to employees, but the details are outside the scope of this course,
and are of specialist concern to employment lawyers.

Agreements to face physical risks


The principles in this area have mainly been worked out in a number of recurrent
social contexts:
a. Employer and employee
The scope of the defence in relations between employer and employee is limited
by the insistence of the courts since the end of the nineteenth century that the
employee must not merely know of the danger but freely consent to run that risk
(Smith v Baker [1891] AC 325).
The defence is not entirely dead in the employment context. Consider why it was
in the next case that the employer was able to rely on the defence of consent (ICI v
Shatwell [1965] AC 656).
b. Car passenger and driver who is drunk, a learner, physically disabled, etc.
These cases can be analysed in two ways: one is to say that the passenger should
be unable to sue because of the defence of consent; another is to say that the
defendant owed only the standard of care to be expected of a drunk, a learner, etc.,
and only if the standard of driving has fallen below that level is there a tort at all.
English courts have tended to analyse it in the former way and Australian courts
in the latter. See Dann v Hamilton [1939] 1 KB 509; Insurance Commissioners v Joyce
(1948) 77 CLR 39; Nettleship v Weston [1971] 2 QB 691; Cook v Cook (1986) 61 ALJR 25.
English courts also seem to have taken the view that s.149(3) of the Road Traffic Act
1988 prevents the defence applying to cases of road accidents, although it may
apply in other kinds of traffic accidents to which the 1988 Act does not apply. See
Pitts v Hunt [1991] 1 QB 24 (road accident); Morris v Murray [1991] 2 QB 6 (aircraft
accident).
c. Action by spectator/competitor in sporting event against organisers/competitor
Here English courts have reasoned that there was no breach of duty because the
defendant owed a lesser duty appropriate to someone striving to succeed in a
competitive activity. See Wooldridge v Sumner [1963] 2 QB 43; White v Blackmore
[1972] 3 All ER 581.
d. It is unlikely that the defence will ever apply where the very thing that the
defendant was under a duty to do was to protect the claimant against his own
voluntary actions, e.g. because the claimant was a known suicide risk (Reeves v
Commissioner of Police for the Metropolis [2000] 1 AC 360).

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You should take care in applying the defence in negligence actions in particular.
The courts are reluctant to apply it.

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:
uu

It is shocking to the conscience that the claimant should be allowed compensation


in such circumstances.

uu

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).

Reminder of learning outcomes


By this stage, you should be able to:
uu

explain the provisions of the Law Reform (Contributory) Negligence Act 1945

uu

describe what is meant by contributory negligence

uu

explain the basis on which the courts reduce damages as the result of
contributory negligence

uu

explain the role of consent as a defence to an action in negligence or breach of a


tort of strict liability

uu

describe when a defendant is able to exclude tortious liability

uu

explain when a defendant may escape liability by showing that the claimant had
consented to run the physical risk of injury

Law of Tort 13 Miscellaneous


uu

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explain in what circumstances a defendant may escape liability by showing that


the claimant had been acting illegally or morally reprehensibly at the time of the
injury.

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.

Markesinis and Deakin, Chapter 24: Damages.

Murphy, Chapter 26: Remedies: basic principles.

Winfield and Jolowicz, Chapter 22: Remedies.

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.

Given the objectives of the present system, does it achieve them?

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?

In torts such as nuisance,


interferences with economic
interests and defamation
the claimant may seek an
injunction to restrain the
defendant from behaving in
a particular way in the future.
Some reference to that
remedy has been made in the
appropriate chapters, but a
detailed study of injunctions
is not further considered in
this course.

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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.

13.3.3 The heads of damages


Damages are calculated under various headings and then added together, taking care
that the same sum is not counted in twice.
A distinction is drawn between pecuniary and non-pecuniary damage. The former is
damage losses that are expressed or measured in money, such as loss of income if the
claimant is unable to work; the latter is damage that is not so expressed.

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

Law of Tort 13 Miscellaneous


court therefore has to decide what the claimants prospects are what they would have
been if the tort had not occurred.
Here are the principal issues that you will have to think about and explore.
i. How do you calculate the loss?
The method used is the multiplier method. The multiplicand is the claimants net (i.e.
after deduction of tax, etc.) annual income. The multiplier is not the number of years for
which there will be no income. That would give too much. Imagine a man of 35 earning
30,000 per year and expected to do so for 30 years. To give him 30 x 30,000 would
give too much since he is getting it all now rather than waiting to get some each month.
There is much uncertainty about choosing the right multiplier and multiplicand, and
the job is more difficult the younger the claimant is. If the claimant is a child, there is no
reliable way of deciding what the job prospects would otherwise have been.
ii. What assumptions do you make about what the claimants will do with the
money?
They can keep it in boxes under the bed or make a fortune (or lose it all) gambling. But
what are they assumed to do? Both the courts and Parliament have recently decided to
change the assumptions and envisage the typical claimant as using the money to make
low-risk investments with a lower rate of interest. This has had the effect of increasing
the multiplier and therefore the amount of damages awarded. See Wells v Wells [1999] 1
AC 345 and Damages Act 1996 s.1; Damages (Personal Injury) Order 2001 (SI 2001 No 2301)
and Cooke v United Bristol Healthcare NHS Trust: [2003] EWCA Civ 1370: [2004] 1 WLR 251:
[2004] 1 All ER 797.
iii. What assumptions should be made about the future value of money, interest
rates and so forth?
See: Mallett v McMonagle [1970] AC 166.
iv. What should you do if the tort has also reduced the claimants expectation of
life?
This situation is often misunderstood. If at the time of the tort the claimant was aged
30 but had independently of the tort a terminal illness and was likely to die in five years
time, then the defendant has to compensate only for the five years loss of income. But
what if the claimant was aged 30 and had a normal expectation of life but the tort, as well
as making him unable to work, has also reduced his life expectancy to five years. Should
there be compensation for the lost earning during the lost years? (NB: We are not talking
about compensating the loss of life itself, but about compensating for lost earnings
during that period.)
The House of Lords overturned the previous law and provided that such lost earnings
should be compensated, but that sums that the claimant would have spent on himself
should be deducted. See Pickett v British Rail Engineering [1980] AC 136.
v. What should be done if the claimant receives money from other sources as a
result of the tort?
The typical cases are proceeds of an insurance policy, social security payments, pension
provision, voluntary payments by employers or charitable gifts. There are in theory three
possible solutions:
uu

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)

uu

the claimant keeps these other benefits and gets damages in full (snag: the claimant
is overcompensated)

uu

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

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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:
uu

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.

uu

Sometimes nursing and support care is provided by a spouse, parent or other


relative, who may give up work and look after the injured person for nothing. It is
now settled that the claimant is entitled to compensation for the cost of such care
(which may be far less than the income that the carer would have enjoyed) and
holds the sums on trust for the carer (Donnelly v Joyce [1974] QB 454).

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.

13.3.4 An alternative approach: structured settlements


The approach to damages just described involves the calculation of a lump sum
(sometimes very large), which is then handed over to the claimant. It is possible for the
parties themselves to negotiate an agreement by which periodic payments are paid to
the victim. They were given a boost when the Inland Revenue agreed that payments
made to the claimant under such an agreement (called a structured settlement)
would not be taxed as income. (Under the conventional method described in this
chapter the actual damages are not taxed but the victim pays tax on any income
earned from the invested damages.) Structured settlements are sanctioned by statute
in the Damages Act 1996 and in some cases (where the victim is a child) have to be
approved by the court, but the court cannot impose a structured settlement against
the wishes of the parties.
The damages are calculated in the usual way and the defendants insurers use the
sums to purchase an annuity from a firm of insurers specialising in such work. The
structure can be made flexible, but once in place cannot be adjusted. There are a
number of advantages and disadvantages in such arrangements: from the claimants
point of view the main advantage is security of knowing what payments will be made
in future, but at the price of losing the right to control the way the money is used.

Law of Tort 13 Miscellaneous

13.3.5 Effect of death on damages


The common law had two problems:
uu

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.

uu

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).

The dependants right of actions under the Fatal Accidents Act


You should identify the following issues in the application of the Act:
uu

What categories of persons are able to bring an action as dependants?

uu

What is a dependant?

uu

How are a dependants damages assessed?

Learning outcomes
By the end of this chapter, you should be able to:
uu

explain the purposes of damages in tort for personal injuries and the general
principles according to which they are assessed

uu

explain the nature of structured settlements and their advantages and


disadvantages

uu

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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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?

Sample examination question


Alphashire Cricket Club was very concerned about the lack of interest in cricket
among young people in the county. It therefore entered an agreement with
local schools under which players from the club spent one afternoon each week
coaching pupils. Under this arrangement Jamie spent an afternoon at the Alpha
Beacon School. One day he saw a number of pupils, including Kieran, drawing faces
in the dirt on his (Jamies) car and became very annoyed about it. During a match
that Jamie was umpiring that afternoon, Kieran dropped an easy catch. Jamie
picked up the ball and slung it straight at Kierans head. Kieran was unable to get
out of the way, and the ball struck him in the head. Unexpectedly the blow caused
very severe brain injuries. He now has the mental capacity of a four-year-old and
will never be able to find employment. He had been hoping to go into the Royal Air
Force and had passed the first stage of the interview process.
Advise Kieran (i) as to any action in tort and (ii) as to how the damages will be
assessed.

Advice on answering the question


First Jamie seems to have committed battery (Chapter 9); throwing the ball is not part
of an umpires job. Has he committed it in the course of employment and who is his
employer? As a professional cricketer he would have a contract with the club and
he was sent to the school to promote the clubs interests of stimulating interest in
cricket. Lister v Hesley Hall might not be much help because you cannot say that Jamie
was carrying out any part of the clubs (or indeed the schools) pastoral responsibility
towards pupils, but that case might be extended. Older cases would suggest (see
Poland v Parr and Warren v Henlys) that if the battery was to protect the employers
interests it might be in the course of employment, but here it seems to result from
personal annoyance at the damage to Jamies car. It is then necessary to explain the
principles on which damages will be assessed for pecuniary and non-pecuniary losses,
including problems where the claimant is quite young and the job prospects relatively
uncertain.

Law of Tort 13 Miscellaneous

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Reflect and review


Look through the points listed below. Are you ready to move on to the next chapter?
Ready to move on = I am satisfied that I have sufficient understanding of the principles
outlined in this chapter to enable me to go on to the next chapter.
Need to revise first = There are one or two areas I am unsure about and need to revise
before I go on to the next chapter.
Need to study again = I found many or all of the principles outlined in this chapter very
difficult and need to go over them again before I move on.
Tick a box for each topic.
Ready to
move on

Need to
Need to
revise first study again

I can distinguish between primary and vicarious


liability.

I can suggest reasons why the law should hold


employers liable for certain torts committed by their
employees.

I can distinguish between an employer and an


independent contractor.

I can identify when an employee is acting in the


course of employment.

I can explain the provisions of the Law Reform


(Contributory) Negligence Act 1945.

I can describe what is meant by contributory


negligence.

I can explain the basis on which the courts reduce


damages as the result of contributory negligence.

I can explain the role of consent as a defence to


an action in negligence or breach of a tort of strict
liability.

I can describe when a defendant is able to exclude


tortious liability.

I can explain when a defendant may escape liability


by showing that the claimant had consented to run
the physical risk of injury.

I can explain in what circumstances a defendant may


escape liability by showing that the claimant had
been acting illegally or morally reprehensibly at the
time of the injury.

I can explain the purposes of damages in tort


for personal injuries and the general principles
according to which they are assessed.

I can explain the nature of structured settlements


and their advantages and disadvantages

I can explain the effect on compensation for


personal injuries if the victim dies.

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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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Law of Tort Feedback to activities

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?

Law of Tort Feedback to activities

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.

Law of Tort Feedback to activities

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).

Law of Tort Feedback to activities

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.

Peacocks are not commonly domesticated, but dogs are.


The claim involving Florence will therefore proceed under section 2(1). This provides
that the keeper of the dangerous animal here, Alexander will be strictly liable for
any damage caused by such an animal. We can assume that Florences escape caused
the accident: see Mirvahedy v Henley [2003] 2 AC 491 (horses escaping from a field on to
a dual carriageway). Defences do, however, exist. Barry has been at least contributorily
negligent. It may even be found on more detailed investigation that the accident was
his fault entirely: section 5(1). Barry could try an alternative claim against Alexander
for negligence how did the peacock escape? but the defences would be equally
applicable against such a claim.
Jupiter is a pet dog and therefore any liability would arise under section 2(2). Barry would
have to satisfy the three tests:
uu

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

was actionable per se

uu

required an act directed at the plaintiff (claimant) whereas case was satisfied
by an act or an omission

uu

required a direct injury whereas an indirect injury would satisfy the


requirements for case.

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.

Law of Tort Feedback to activities


c. There would be no battery when the train pulling up caused Fred to stand on
Johns foot. However, when he refused to remove it he would be guilty of battery.
You would not need to consider the issue of liability for omissions here. See Fagan.
This would be treated as a continuous act and therefore, provided Fred formed the
intent to use force at any time during the course of conduct, he would be guilty of
battery.

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.

Law of Tort Feedback to activities

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

due to a non-natural use, and

uu

which causes foreseeable harm

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.

Law of Tort Feedback to activities

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?

Law of Tort Feedback to activities

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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