Professional Documents
Culture Documents
Ian Yeats
Paula Giliker
Mary Luckham
LLB 2660001
BSc Accounting with Law / Law with Accounting 2770201
BSc Management with Law / Law with Management 2770201
2005
This subject guide was prepared for the University of London External System by:
u Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen
Mary College, University of London.
u Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law
Tutor, St Hildas College, Oxford.
u Mary Luckham, LLB, Assistant Director, University of London External Laws
Programme
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Law of Tort page i
Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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 . . . . . . . . . . . . . . . . . . . . . . . . 9
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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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 . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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 . . . . . . . . . . . . . . . . . . . . . . . . . 53
5.3 Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
5.4 The liability of inspectors and other regulators . . . . . . . . . . . . . . . . 58
5.5 Rescuers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6 Negligence: particular relationships . . . . . . . . . . . . . . . . . . 67
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
6.1 Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6.2 Liability of manufacturers . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
6.3 Liability of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
page ii University of London External System
7 Breach of statutory duty. . . . . . . . . . . . . . . . . . . . . . . . . 81
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
7.1 Tort and illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
7.2 Breach of statutory duty. . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
7.3 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
8 Particular statutory regimes: strict liability . . . . . . . . . . . . . . . 91
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
8.1 Product liability: Consumer Protection Act 1987. . . . . . . . . . . . . . . . 93
8.2 Liability for animals: Animals Act 1971. . . . . . . . . . . . . . . . . . . . . 98
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
9 Intentional injuries to the person . . . . . . . . . . . . . . . . . . . . 105
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
9.1 Trespass and case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
9.2 Trespass to the person. . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
9.3 False imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
9.4 Intentionally causing nervous shock. . . . . . . . . . . . . . . . . . . . . 113
9.5 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
10 Interference with economic interests . . . . . . . . . . . . . . . . . . 121
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
10.1 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
10.2 The economic torts: general considerations . . . . . . . . . . . . . . . . . 124
10.3 The economic torts: fundamentals . . . . . . . . . . . . . . . . . . . . . 125
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
11 The law of nuisance and the rule in Rylands v Fletcher . . . . . . . . . . 133
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
11.1 The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . . . 135
11.2 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
11.3 The rule in Rylands v Fletcher. . . . . . . . . . . . . . . . . . . . . . . . . 143
11.4 Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
11.5 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . . . 146
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
12 Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
12.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
12.2 What does the claimant have to prove? . . . . . . . . . . . . . . . . . . . 155
12.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
12.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Reflect and review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
Law of Tort page iii
13 Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
13.1 Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
13.2 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
13.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
Feedback to activites . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
page iv University of London External System
Contents
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
1 Introduction
page 2 University of London External System
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 pp.117; Winfield and Jolowicz
pp.4450.
Objectives of this subject guide
By the end of this subject guide, you should be able to:
u describe the relationship between tort and certain other branches of law
u explain the relationship between different torts and the bases of liability in each
tort
u identify the principal policy difficulties with the contemporary law of tort
u identify and describe the sources of law relevant to tort.
On the impossibility of a
definition of tort see Murphy
(2003) p.3: Winfield and
Jolowicz (2002) p.4; on the
aims or functions of tort see
Winfield and Jolowicz (2002)
pp.117; Markesinis and Deakin
(2003) pp.17 and 3741.
Law of Tort 1 Introduction page 3
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:
u what interests are being protected
u 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.
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
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).
c. 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:
u It was reasonably foreseeable that a person in the claimants position would be
injured.
u There was sufficient proximity between the parties.
u 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 678-680. Notice that the decision of the Court of Appeal in
that case was overruled by the House of Lords. For details, see Chapter 5.
Four tests:
The neighbour principle
A revised test (Lord
Wilberforce)
The current test: foresight,
proximity and fairness
An alternative test:
assumption of responsibility
BC = Borough Council,
an administrative division,
particularly in London.
page 18 University of London External System
These three tests are very similar. In particular, notice that:
u They are very general. It is possible to understand what they mean in practice only
after studying a number of illustrative cases.
u 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.
u 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.
d. 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:
u Is there a duty at the abstract level (the notional duty or duty in law): e.g. does a
motorist owe a duty of care to other road users? Or do barristers owe a duty of care
to their clients?
u Is the particular claimant within the scope of the duty of care (duty in fact or the
problem of the unforeseeable claimant): e.g. 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 page 19
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
X (Third party)
D (Defendant)
C (Claimant)
Proposed
action
Examples of this problem would include the following:
a. Should a school (or
a parent) owe a duty
of care to passing
motorists to see that a
child does not run out
of the school and cause
an accident?
b. Should a host at a party
owe a duty of care to
prevent a guest driving
home drunk and
injuring a pedestrian?
c. Should a car owner
owe a duty of care to
keep it locked up to
prevent a thief stealing
it and knocking down a
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:
u What is the relationship between X and D? Does D have some responsibility over X?
u 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; Attorney-
General 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
page 20 University of London External System
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 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 J. S. 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:
u where the child is healthy and is being raised in a loving family (McFarlane)
u where the child is disabled (Parkinson)
u 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.
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.
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
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
page 28 University of London External System
Notes
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
4 Negligence: causation and remoteness of damage
page 30 University of London External System
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:
u state and explain the basic rule defining the causal link between the breach of
duty and the damage
u identify the causal link that has to be established in hypothetical situations
u identify circumstances in which the basic rule produces unacceptable results
and may have to be modified
u explain the policy considerations underlying those modifications
u explain the concept of remoteness of damage in general and identify the basic
rules of remoteness in the tort of negligence
u identify the policy reasons for choosing that rule of remoteness
u explain the concept of new and intervening cause and relate it (a) to the actions
of third parties and (b) to actions by the claimant subsequent to the negligence
of the defendant.
Essential reading
Markesinis and Deakin, pp.185214
Murphy, pp.264280
Winfield and Jolowicz, pp.209247
Lunney and Oliphant, pp.188252.
Law of Tort 4 Negligence: causation and remoteness of damage page 31
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:
page 32 University of London External System
i. There may be doubt about what the natural course of events would have been if
the defendant had behaved properly.
u 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.
u 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.
u 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.
u 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.
u 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 page 33
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% chance that he would have
recovered if treated properly, but a 75% chance that he would not. He and the Court of
Appeal awarded him 25% 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 1 in 4 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
economic rather than physical damage. That may explain the difference. Another
page 34 University of London External System
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 page 35
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.
(See diagram below.)
1
40,000
1st event 2nd event
2
15,000
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.
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.
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
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 inspectors and other regulators. . . . . . . . . . . . . . .58
5.5 Rescuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .64
5 Negligence: special problems
page 46 University of London External System
Introduction
Until the middle of the twentieth 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:
u explain what is meant by pure economic loss
u explain the reasons why the courts have been hesitant about allowing recovery
of compensation for such loss
u explain the circumstances in which a duty may arise in making statements
u identify the circumstances in which claims for economic loss may or may not
succeed
u explain and discuss the uncertainties that exist in this area of law and the scope
for reform
u explain why there are problems with allowing recovery for psychiatric damage
u distinguish between primary and secondary victims
u identify circumstances in which damages for psychiatric injury may be
recoverable
u explain uncertainties in this area of law and consider possible reforms
u distinguish between acts and omissions
u explain the circumstances in which people may have positive duties to take
action to protect others or to prevent injuries to others
u 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
u 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
u describe the reasons for doubt about the appropriate scope of liability of bodies
exercising regulatory, supervisory and similar powers
u explain the impact of the European Convention on Human Rights (ECHR) on the
liability of such bodies
u describe the scope of the duty of care owed to rescuers.
Essential reading
Markesinis and Deakin, pp.95165
Murphy, pp.182193, 203230
Winfield and Jolowicz, pp.134190
Lunney and Oliphant, pp.300501.
Law of Tort 5 Negligence: special problems page 47
5.1 Liability for pure economic loss and for negligent mis-statements
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:
u 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.
u 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:
u where there is no physical injury to any person or to any property
u where there is physical injury to a person other than the claimant or to the property
of some person other than the claimant.
page 48 University of London External System
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:
u Economic interests are intrinsically less worthy of protection than physical
interests.
u 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?)
u A general rule against recovery of economic loss is clear and easy to apply.
u 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.
u 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.
u Allowing economic loss to be recovered in tort muddles the boundary between
contract and tort
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
. 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.
Refer to the general
discussion in 13.2.2 and again
remember that despite its
title the UCTA restricts the
ability to exclude liability by
non-contractual notices as
well as by contract.
Law of Tort 6 Negligence: particular relationships page 73
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:
u Ratcliffe v McConnell [1999] 1 WLR 670
u Donoghue v Folkestone Properties Ltd [2002] EWCA Civ 231: [2003] 2 WLR 1138
u Tomlinson v Congleton Borough Council [2003] UKHL 47: [2004] I 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:
u 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?
u There is an extensive analysis of the requirements in ss.1(1), 1(3) and 1(4) of the 1984
Act.
u 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),
page 74 University of London External System
Reminder of learning outcomes
By this stage you should be able to:
u explain which entrants into private premises are lawful visitors and which are not
u define who is to be treated as an occupier of premises
u describe and explain the nature of the duty owed by an occupier to lawful visitors
u explain the defences available to an occupier of premises
u explain the circumstances in which and the extent to which an occupier can
exclude his liability to lawful visitors
u 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
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
Law of Tort 6 Negligence: particular relationships page 75
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
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6.1 Liability of occupiers
6.2 Liability of manufacturers
6.3 Liability of employers
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .82
7.1 Tort and illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . .83
7.2 Breach of statutory duty . . . . . . . . . . . . . . . . . . . . . . . . . .84
7.3 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . .86
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . .89
7 Breach of statutory duty
page 82 University of London External System
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
u explain the different ways in which liability may arise out of the failure to
perform
duties imposed by regulatory statutes
u identify the characteristics of the tort of breach of statutory duty
u explain the tests that have been deployed to determine when a statute is held
to give rise to civil liability
u outline what has to be established by a claimant alleging a breach of a statutory
duty that does give rise to civil liability
u explain the bases on which liability may arise where a public authority has
infringed rights under the European Convention on Human Rights
u 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
Markesinis and Deakin. pp.358374
Murphy, pp.417432
Winfield and Jolowicz, pp.264280
Lunney and Oliphant, pp.561583.
Law of Tort 7 Breach of statutory duty page 83
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:
u 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.
u 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.
u 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:
u 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).
u 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).
u 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:
u 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 page 85
u 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.
u 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.
u 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.
u 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.
u One case that does allow a private right of action is Kirvek v Attorney Gen. 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:
u 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.
u The claimant must belong to the class of persons whom the statute was intended
to protect (Hartley v Mayo & Co [1954] 1 QB 383).
u 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
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
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7.1 Tort and illegality
7.2 Breach of statutory duty
7.3 The Human Rights Act 1998
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Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .92
8.1 Product liability: Consumer Protection Act 1987 . . . . . . . . . . . . . .93
8.2 Liability for animals: Animals Act 1971 . . . . . . . . . . . . . . . . . . .98
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
8 Particular statutory regimes: strict liability
page 92 University of London External System
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:
u explain the reasons behind the Consumer Protection Act 1987
u identify the key provisions of the Act and be able to explain:
u the meaning of producer and who will be liable under the Act
u when a product is defective
u what defences exist
u what remedies exist
u explain the reasons for the enactment of the Animals Act 1971
u describe the scope of liability under the Act
u evaluate the purposes of strict liability and consider whether any other areas of
the law should be replaced by rules of strict liability.
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:
u explain the reasons for the enactment of the Animals Act 1971
u describe the scope of liability under the Act
u evaluate the purposes of strict liability and consider whether any other areas of
the law should be replaced by rules of strict liability.
Equine: relating to horses;
canine: relating to dogs;
asinine: relating to asses or
donkeys.
Law of Tort 8 Particular statutory regimes: strict liability page 101
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:
u Who is responsible for the problem with the pumping machine?
u On what basis can Jake sue? Will he recover for his injuries and property damage?
u Can the council sue for damage to the pumping machine?
u 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
frightened by an unknown cause were considered to be within s.2(2)(b). See also the
Law of Tort 8 Particular statutory regimes: strict liability page 103
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
revise first
Need to
study again
I can explain the reasons behind the Consumer
Protection Act 1987.
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
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
9.1 Trespass and case . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
9.2 Trespass to the person . . . . . . . . . . . . . . . . . . . . . . . . . . 108
9.3 False imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
9.4 Intentionally causing nervous shock . . . . . . . . . . . . . . . . . . . 113
9.5 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
9 Intentional injuries to the person
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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:
u Distinguish between trespass to the person and harm caused by negligence
u Define the elements of assault, battery, false imprisonment and the rule in
Wilkinson v Downton
u Explain how liability is established in respect of these torts
u Be aware of the circumstances in which consent may be a defence to trespass to
the person
u Identify other defences to trespass to the person, in particular, the defence of
self-defence.
Essential reading
Winfield & Jolowicz, Chapter 4, pp.68100.
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9
Intentional injuries to the person page 107
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
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Intentional injuries to the person page 109
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 Santna 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 page 111
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 (above) illustrates that the restraint must be total, although if there is an
escape-route, it will still be false imprisonment if the escape-route is not a reasonable
one. Thus, in Sayers v Harlow Urban District Council (above) 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 (above). 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 (above).
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.
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?
Law of Tort
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Intentional injuries to the person page 113
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:
u Define the elements of assault, battery, false imprisonment and the rule in
Wilkinson v Downton
u Explain how liability is established in respect of these torts.
page 114 University of London External System
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] below.
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 page 115
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 (above).
page 116 University of London External System
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 five-
year-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.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
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9.1 Trespass and case
9.2 Trespass to the person
9.3 False imprisonment
9.4 Intentionally causing nervous shock
9.5 Defences
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
10.1 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
10.2 The economic torts: general considerations . . . . . . . . . . . . . . . 124
10.3 The economic torts: fundamentals. . . . . . . . . . . . . . . . . . . . 125
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
10 Interference with economic interests
page 122 University of London External System
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:
u identify the nature of the rights protected by the economic torts
u explain in respect of each tort what makes the conduct illegal
u describe the meaning of intention and motive in the context of these torts
u distinguish between pure purpose and unlawful means conspiracy
u 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
u identify the kinds of threat which amount to the tort of intimidation.
Essential reading
Markesinis and Deakin, pp.506531 (ignoring 527530)
Murphy, pp.115123, 143161
Winfield and Jolowicz, pp.625661.
Law of Tort 10 Interference with economic interests page 123
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:
u 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 ChD 459.
u 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).
u 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?
If you ticked need to revise first, which sections of the chapter are you going to
revise?
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10.1 Deceit
10.2 The economic torts: general considerations
10.3 The economic torts: fundamentals
page 132 University of London External System
Notes
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
11.1 The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . 135
11.2 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
11.3 The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . . 143
11.4 Public nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
11.5 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . . 146
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
11 The law of nuisance and the rule in Rylands v
Fletcher
page 134 University of London External System
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:
u explain the difference between various forms of nuisance and when each form
is applicable
u 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:
u who can sue
u when a court is likely to find liability
u what defences exist
u what remedies exist
u outline the basic rules of the tort of public nuisance
u identify the potential for change in the law of tort following the implementation
of the Human Rights Act 1998.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher page 135
11.1 The different forms of nuisance
Essential reading
Winfield & Jolowicz, Chapter 14: Nuisance pp.503505.
There are three main types of nuisance which should be distinguished:
u private nuisance
u public nuisance
u 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
page 136 University of London External System
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.
11.2 Private nuisance
Essential reading
Winfield & Jolowicz, Chapter 14: Nuisance pp.50839.
Three types of private nuisance can arise in practice:
u physical injury to land (for example, by flooding or noxious fumes)
u substantial interference with the enjoyment of the land (for example smells, dust
and noise)
u 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
Protean = varied.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher page 137
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).
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
If you ticked need to revise first, which sections of the chapter are you going to
revise?
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11.1 The different forms of nuisance
11.2 Private nuisance
11.3 The rule in Rylands v Fletcher
11.4 Public nuisance
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152
12.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
12.2 What does the claimant have to prove? . . . . . . . . . . . . . . . . . 155
12.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159
12.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
12 Defamation
page 152 University of London External System
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 his or her
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 associated readings you should be able to:
u Explain the nature and purpose of the tort of defamation
u Identify the general principles and distinguish between libel and slander
u Apply the rules relating to liability and, in particular, be able to identify:
u when a statement will be judged defamatory
u when a statement refers to a claimant
u when a statement has been published
u what defences exist
u what remedies exist.
u Discuss the impact of the Human Rights Act 1998 on the law of defamation.
Law of Tort 12 Defamation page 153
12.1 General principles
Essential reading
Winfield & Jolowicz, Chapter 12: Defamation and related matters, pp.404410.
12.1.1 Libel and slander
Defamation is a tort which protects the claimant against attacks to his or her
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, due to its temporary nature, is considered to be less serious. Whereas the
courts will presume that harm occurs as a result of libel it is actionable per se the
claimant must prove that the slander resulted in special damage; for example, as a
result of the slander, his or her business lost money. Equally the loss must not be too
remote: Lynch v Knight (1861) 9 HLC 577. Libel, unlike slander, 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 synchronized 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 section 4(1), Theatres Act 1968 and
section 166, Broadcasting Act 1990.
A second complication is that although, as a general rule, special damage must be
proved for slander, there are four forms of slander which are actionable per se. You
must learn these. 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:
u imputation of a criminal offence punishable by imprisonment
u imputation of a contagious disease, for example, leprosy or plague
u imputation of unchastity or adultery by a female (s.1, Slander of Women Act 1891)
u imputation of unfitness or incompetence (s.2, Defamation Act 1952).
The last 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.
.
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: section 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.
12.3.4 Innocent dissemination
This defence is found in section 1, Defamation Act 1996. It is now a defence to show
that:
u the defendant is not the author, editor or commercial publisher of the statement
u the defendant took reasonable care in relation to the publication
u the defendant did not know, or had no reason to believe, that what he or she 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, sections 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.
If you ticked need to revise first, which sections of the chapter are you going to
revise?
Must
revise
Revision
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12.1 General principles
12.2 What does the claimant have to prove?
12.3 Defences
12.4 Remedies
Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
13.1 Vicarious liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
13.2 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
13.3 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
13 Miscellaneous
page 170 University of London External System
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:
u distinguish between primary and vicarious liability
u suggest reasons why the law should hold employers liable for certain torts
committed by their employees
u distinguish between an employer and an independent contractor
u identify when an employee is acting in the course of employment
u explain the provisions of the Law Reform (Contributory) Negligence Act 1945
u describe what is meant by contributory negligence
u explain the basis on which the courts reduce damages as the result of
contributory negligence
u explain the role of consent as a defence to an action in negligence or breach of a
tort of strict liability
u describe when a defendant is able to exclude tortious liability
u explain when a defendant may escape liability by showing that the claimant had
consented to run the physical risk of injury
u 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
u explain the purposes of damages in tort for personal injuries and the general
principles according to which they are assessed
u explain the nature of structured settlements and their advantages and
disadvantages
u explain the effect on compensation for personal injuries if the victim dies.
Law of Tort 13 Miscellaneous page 171
13.1 Vicarious liability
Essential reading
Markesinis and Deakin, pp.571603
Murphy, pp.503524
Winfield and Jolowicz, pp.701734
Lunney and Oliphant, pp.757796.
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:
u 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).
page 172 University of London External System
u 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.
13.1.2 Establishing vicarious liability
To succeed in a claim based on vicariously liability, the claimant has to establish that:
u the alleged tortfeasor was an employee
u the employee committed a tort
u 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 page 173
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.
.
Reminder of learning outcomes
By the end of this section, you should be able to:
u distinguish between primary and vicarious liability
u suggest reasons why the law should hold employers liable for certain torts
committed by their employees
u distinguish between an employer and an independent contractor
u identify when an employee is acting in the course of employment.
Activity 13.1
a. B works as a van-driver delivering goods for C Ltd. He owns the lorry and licences
it; he wears C Ltds overalls and there is a removable sign on the van bearing C
Ltds name; he has no fixed working hours and can deliver the goods when he
wishes within a given period. He carelessly knocks down and injures A while
delivering goods. Is C Ltd vicariously liable?
b. D is a van driver employed by E Ltd. While on his rounds, he stops to collect his
own television from a repair shop. He parks his van carelessly and it moves off,
injuring F. Is E Ltd vicariously liable?
13.2 Defences
Essential reading
Markesinis and Deakin, pp.740771
Murphy, pp.281302
Winfield and Jolowicz, pp.247262, 845867.
Lunney and Oliphant, pp.253299.
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
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?
b. A request to outline the way in which damages will be assessed for the benefit of
individual claimants in problem questions.