Faculty of Business and Law

Department of Law and Social Sciences

Tort
LAW2105
LAW3205

Module Leader
Dr Mariette Jones

Autumn Term 2023/2024

24 Weeks
Document Version 1
 LAW OF TORT LAW 2105

Online location of handbook

This handbook can also be accessed via My Learning.

Other formats available

This handbook is available in a large print format. If you would like a large print copy or have
other requirements for the handbook, please contact the Disability Support Service
([email protected], +44 (0)20 8411 4945).

Disclaimer

The material in this handbook is as accurate as possible at the date of production. You will be
notified of any minor changes promptly. If there are any major changes to the module you
will be consulted prior to the changes being confirmed. Please check the version number on
the front page of this handbook to ensure that you are using the most accurate information.

Other documents

Your module handbook should be read and used alongside your programme handbook and
the information available to all students on My Learning, including the Academic Regulations.
Your programme handbook can be found on the My Learning programme page for your
course.

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Table of Contents

PART A: GENERAL INFORMATION ............................................................................................. 6

Welcome .................................................................................................................................... 6
Message from the module leader .......................................................................................... 6
How to use this handbook ..................................................................................................... 6
The module teaching team ........................................................................................................ 7
Communication with the teaching team ................................................................................... 7
Module overview ....................................................................................................................... 8
Learning resources ..................................................................................................................... 9
Expectations of studying this module ...................................................................................... 10
Attendance policy................................................................................................................. 10
Lateness policy ..................................................................................................................... 10
Mobile phones...................................................................................................................... 11
Professional behaviour......................................................................................................... 11
Academic misconduct .......................................................................................................... 11
Extenuating circumstances: ................................................................................................. 11
Assessment .............................................................................................................................. 12
Formative assessment:......................................................................................................... 12
Summative assessment: ....................................................................................................... 12
Assessment 1: Multiple Choice Test ............................................................................... 14
Assessment 2: Coursework ............................................................................................. 16
Feedback on your assignments ............................................................................................ 20
How is your assignment mark agreed? ................................................................................ 20
LEARNING PLANNER / SCHEDULE ............................................................................................ 21
PART B: LECTURES .................................................................................................................... 22
Lecture 1: Introduction to tort ............................................................................................. 22
Lecture 2: Introduction to the tort of Negligence ................................................................ 29
Lecture 3: Negligence: Duty of Care (continued) ................................................................. 35
Lecture 4: Negligence: Breach of the duty of care............................................................... 40
WEEK 6 – READING WEEK ................................................................................................ 43
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Lecture 5: Negligence: causation ......................................................................................... 44

Lecture 6: Negligence: Defences .......................................................................................... 50
Lecture 7: Personal Liability and Vicarious Liability ............................................................. 54
Lecture 8: Trespass to the person ........................................................................................ 63
Lecture 9: Trespass to land and goods ................................................................................. 70
Lecture 10: Nuisance .......................................................................................................... 75
Lecture 11: The rule in Rylands v Fletcher ........................................................................... 82
Lecture 12: Common law product liability ........................................................................... 86
Lecture 13: Statutory Product liability ................................................................................. 89
Lecture 14: Occupiers’ liability ............................................................................................. 92
Lecture 15: Defamation...................................................................................................... 100
Lecture 16: Defamation: Defences and remedies.............................................................. 110
Lecture 17: Misuse of Private Information ....................................................................... 117
Lecture 18: Miscellaneous torts: the economic torts ........................................................ 123
Lecture 19: Miscellaneous torts: Breach of statutory duty.............................................. 127
Lecture 20: Defences and remedies ................................................................................... 130
PART C: SEMINARS ................................................................................................................. 137
Seminar 1: Introduction to tort .......................................................................................... 137
Seminar 2: Negligence Intro ............................................................................................... 138
Seminar 3 Duty of Care ..................................................................................................... 139
Seminar 4: Negligence: Breach of Duty of Care ................................................................ 139
Seminar 5: Causation......................................................................................................... 139
Seminar 6: Defences to Negligence .................................................................................. 139
Seminar 7: Case analysis ................................................................................................... 140
Seminar 8: Personal and Vicarious liability ........................................................................ 141
Seminar 9: Trespass to the person ..................................................................................... 141
Seminar 10: Trespass to land and goods............................................................................ 141
Seminar 11: Nuisance ........................................................................................................ 142
Seminar 12: Rylands v Fletcher ......................................................................................... 142
Seminar 13: Product liability – the common law .............................................................. 142
Seminar 14: Product liability – The Consumer Protection Act .......................................... 143
Seminar 15: Occupier’s Liability ........................................................................................ 143
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Seminar 16: Defamation.................................................................................................... 144

Seminar 17: Defamation (continued) ................................................................................ 144
Seminar 18 Miscellaneous torts: Privacy .......................................................................... 145
Seminar 19: Miscellaneous torts ........................................................................................ 145
Seminar 20: Breach of statutory duty ................................................................................ 145
Revision exercises............................................................................................................... 145
Introduction to tort ........................................................................................................ 145
Vicarious liability and Employers’ liability ..................................................................... 146
Introduction to the tort of negligence ........................................................................... 146
Negligence: Breach of Duty of Care ............................................................................... 146
Negligence: Causation.................................................................................................... 147
Trespass ......................................................................................................................... 147
Nuisance ......................................................................................................................... 147
Rylands v Fletcher .......................................................................................................... 148
Product liability .............................................................................................................. 148
Occupier’s Liability ......................................................................................................... 149
Defamation .................................................................................................................... 149
Liability for animals ........................................................................................................ 149
Economic torts ............................................................................................................... 150
Breach of statutory duty ................................................................................................ 150
APPENDIX: Rules of Referencing for Law Students......................................................... 151
Books ........................................................................................................................... 153
Journal Articles ......................................................................................................... 154

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PART A: GENERAL INFORMATION

Welcome
Message from the module leader
Dear Student

A warm welcome to Year 2 of your LLB studies and to my tort law class. My name is
Mariette Jones and I am based in Hendon, room WG12. My office hours will be posted on
the Tort Unihub site by the start of teaching and may change for term 2. All students, from
all campuses, are very welcome to contact me at any time at [email protected]

Tort is one of the most fascinating areas of the English law, and we hope you will enjoy
exploring the various torts with us during the course of the year.

How to use this handbook

This handbook should be seen as a guide for your study of the law of tort. As such it is NOT
to be seen as a replacement for a proper textbook on the law and should NOT be used as a
reference in academic essays. We will look at what constitutes ‘proper’ sources for
academic essays in one of your workshops, and why some sources are better than others,
and why some sources should not be listed at all.

The first part of the handbook gives you some general information about the course, such as
lecture times, rules about assessments, deadlines, prescribed material, and a schedule for
the year.

The second and most substantive part of the handbook contains some basic explanation of
the law and is divided into units which cover the topics that we will study this year. You will
see that each topic relates to a specific tort. Each unit will cover one or more lectures and
seminars. You will see that every weekly seminar contains questions about the work
covered in the preceding week’s lecture. (This also explains why there is no seminar in week
1). Workshops only occur every second week, and for this course we have our workshops
in odd numbered weeks in the first term. That means, in weeks 1, 3, 5, 7 and so on. In
Term 2 this moves to even weeks, so keep an eye on your online timetable. The content of
lectures and seminars are all set out in this handbook, so that you can prepare properly.
However, for workshops you will note that there is nothing set out in the handbook – this is
to allow for flexibility in the workshops. Keep an eye on Unihub for workshop preparation
and feedback.

For each unit you will see in the handbook a lecture with a brief discussion of the work and
reference to case law. At the start of each unit, you will find indicated reading, which you
are expected to do before the lecture. You need to do the reading before the lecture,

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otherwise you will get lost in the lecture as we have to cover a lot of work in relatively little
time. In general, your preparatory reading for each lecture and seminar will consist of a
chapter out of your prescribed textbook, one or more key cases and a journal article or two.
It is of vital importance that you read the cases and the journal articles (and not just the
handbook and the textbook chapter), as the former will give you a clear idea of what a
good, substantive academic piece of legal writing looks like. This in turn is what we expect
from you when you do your coursework – so the more cases and journal articles you read,
the better.

The last part of the handbook contains material to help you prepare for your assessments.
Here you will find the rules of referencing for law students. This is a summary of OSCOLA, or
the “Oxford Standard Citation of Legal Authority”, which is the referencing system you have
to use for law essays at Middlesex University. Your essay HAS to be referenced in this
format. Finally, here you will find some revision questions to test your knowledge.

Mariette Jones, module leader

The module teaching team

Please see below details of the teaching team for this module.

Module leader: Dr. Mariette Jones

Room number: WG12
Email: [email protected]
Office hours: Thursdays from 13h00 to 15h00
Mauritius Module Coordinator: Mr Neel R Purmah
Room number:
Email: [email protected]

Communication with the teaching team

The module team will communicate with you mainly via email and through the Tort Unihub
site in MyLearning. It is vital that you check your University email regularly and log onto the
UniHub site at least once a week.

It is not necessary to book an appointment to see the tutor during the above office hours;
you just need to drop in. In the first instance problems should be dealt with by talking to
your lecturer after the lecture.

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Please be reminded that any overall module and course feedback can also be given to the
student voice leader for your programme which will be included in programme feedback
sessions.

Module overview
Aims
This module aims to provide a general knowledge and understanding of tort law and lay a sound
foundation upon which to develop knowledge, skills and competencies needed for the Vocational
Stage of legal education and training, and subsequent careers in legal practice or higher qualifications
in law. The study of case law will develop skills in extracting and communicating the meaning of
written reports. Students will be challenged to achieve a higher level of understanding and application
of the law in practice and attention will be given to the ethical issues that can arise.

Learning outcomes
Knowledge
On completion of this module the successful student will be able to:
1. Demonstrate detailed, wide-ranging knowledge of the main principles of the law of torts including
the main areas of tortious liability;
2. Use a range of sources including applicable case and statute law to solve problems and issues
raised in tort;
3. Analyse in depth a wide range of legal concepts, values, principles and rules of the law of torts
and to explain the relationship between them in a number of particular areas.

Skills
This module will call for the successful student to:
4. Use a range of sources including electronic and printed sources in order to extract the relevant
law and literature, using referencing tools appropriately;
5. Use a range of sophisticated techniques to solve problems and be able to relate knowledge of
rules of law to factual situations in order to reach reasoned conclusions;
6. demonstrate numeracy sufficient to calculate damages upon a contributory negligence finding by
the court, in terms of the Law Reform (Contributory Negligence) Act 1945.

Syllabus
General principles of tortious liability:
• Distinction between tort and other areas of law
• Strict and fault liability
• Employers' personal and vicarious liability
• Negligence
• Trespass to the person, to land and to goods
• Public and private nuisance
• Defamation

An in-depth study of the liability in negligence and other torts including:

• Liability for negligence
• Liability of occupiers
• Liability for defective products
• Liability for psychiatric injury

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• Liability for trespass

• Liability for economic loss
• Liability for misstatements
• Liability for defamatory statements
• Liability for nuisance

Learning, Teaching and Assessment Strategies

You will also be expected to undertake private study, research, and library work. The weekly one-and-
a-half hour lecture will be used to provide you with the framework of the module. You will be directed
to further study and research and presented with the challenge of resolving questions posed but
unanswered during lectures through seminar discussions.

In seminars (1 hour every week) you will be expected to present (either individually or in groups)
outcomes of personal study, including library, computer and textbook research. Seminars will also be
used to develop your ability to resolve legal problems and present their analysis in written form. Oral
presentation of leading cases will be done to develop your communication skills.

Hourly group workshops will take place fortnightly, which are aimed at reinforcing skill development of
research and referencing, and employability skills. These also allow for guest speakers and the
provision of input by the LET, where appropriate.

Assessment Scheme
You have two formative assessment opportunities. In the first term this takes the form of a mock
multiple-choice test taken in Week 9. In the second term you have the opportunity to submit a mock
coursework in Week 18. In both instances the same learning outcomes are addressed as for the
summative assessments, and full feedback is provided to you.

The summative assessment will comprise two parts:

Part 1 comprises an in-class multiple choice test comprising 12 questions to be taken within 45
minutes in week 11 which will account for 25% of the total mark. This will address learning outcomes
1, 2, 5 and 6. For the July resit assessment period only, there will be an opportunity for students to do
a coursework question with a word limit of 1,200 words instead of the multiple-choice test.

Part 2 consists of a coursework assessment to be submitted by the University deadline in April. This
coursework accounts for 75% of the total mark. It will consist of an essay and/or case studies of up to
3,700 words in length. This will address learning outcomes 1, 2, 3, 4, 5, and 6.

Assessment Weighting
Coursework: 75%

Multiple choice test: 25%

Learning resources
You will find weekly prescribed reading in your reading list on Moodle in MyUnihub. Take
note that whereas journal articles and book chapters will be there for you to download, you
will have to find prescribed cases via the databases such as Westlaw. In brief, for this
module you will need the module handbook prepared by the University as well as the
following:

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Textbook:

Required

• Elliott and Quinn, Tort Law (Pearson)

Recommended

• Bermingham and Brennan, Tort Law Directions, (Oxford University Press )

• Cooke, Law of Tort (Pearson)

• Horsey and Rackley, Tort Law (Oxford University Press)

Statutes:

You may wish to purchase a recent edition of:

• Rose, Blackstone's Statutes on Contract, Tort & Restitution, (Oxford University Press).

For exam revision:

Students consistently find revision guides such as the following useful for exams:

• E. Finch and S. Fafinski, Law Express: Tort Law (Revision Guide) (Pearson)

• N. Geach, Law Express Question and Answer: Tort Law (Pearson)

Other:

• Learning resources like Westlaw and LexisNexis.

• UK Government and other relevant web sites.

Expectations of studying this module

Attendance policy
You are expected to attend both lectures and seminars/workshops and attendance is
monitored in all sessions including the workshop.

Lateness policy
We understand that sometimes being late is unavoidable. For that reason, if you are late
you may be admitted to the session provided you do so in a quiet manner so as not to
disturb the session or other students. Having said that, time management is crucial to
lawyers, and is a courtesy and sign of respect to the session leader and other attendees. For
this reason the following will apply: If you are more than half an hour late for lectures or
workshops you will not be allowed into the session. For seminars, this is reduced to 15
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minutes – should you arrive at seminars more than 15 minutes late you will not be marked
as being present.

Mobile phones
All mobile phones must be switched to silent whilst in class sessions unless directed by your
tutor to do otherwise. Calls and texts cannot be made or received whilst in class unless
agreed with the tutor prior to the session starting. Mobile phones cause disruption to both
students and teachers. If you are observed using your mobile phone you can be asked to
leave the session. Sessions may not be recorded unless the session tutor has given permission
and the recording is for a valid purpose such as to accommodate a learning disability.

Professional behaviour
The programme of study you are undertaking is underpinned by developing professional
behaviour and attitude. You are expected to behave in a professional, supportive manner to
your peers and teachers. You must come to sessions prepared and ready to contribute where
appropriate. Please remember that your University ID should be carried with you always and
you must be able to identify yourself if asked to do so. Please conduct your email
communication with fellow students, tutors and all relevant staff in a formal and courteous
manner.

Academic misconduct
Students who attempt to gain unfair advantage over others through academic misconduct
(contravening examination room rules, plagiarism, collusion, etc.) will be penalised by
sanctions, according to the severity of the offence, which can include exclusion from the
University. Links to the relevant University regulations and additional support resources can
be found here:

Section F: Infringement of Assessment Regulations/Academic Misconduct:

http://www.mdx.ac.uk/__data/assets/pdf_file/0027/424179/Section-F.pdf
Referencing & Plagiarism: Suspected of plagiarism?:
http://libguides.mdx.ac.uk/c.php?g=322119&p=2155601
Referencing and avoiding plagiarism:
http://unihub.mdx.ac.uk/your-study/learning-enhancement-team/online-resources/referencing-and-
avoiding-plagiarism
The MDXSU Advice Service offers free and independent support face-to-face in making an appeal,
complaint or responding to any allegations of academic or non-academic misconduct.
https://www.mdxsu.com/advice

Extenuating circumstances:
There may be difficult circumstances in your life that affect your ability to meet an
assessment deadline or affect your performance in an assessment. These are known as
extenuating circumstances or ‘ECs’. Extenuating circumstances are exceptional, seriously
adverse and outside of your control. Please see link for further information and guidelines:

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https://unihub.mdx.ac.uk/your-study/assessment-and-
regulations/extenuating-circumstances

Assessment
Formative assessment:
Formative assessment is completed during your year of study and provides the opportunity
to evaluate your progress with your learning. Classroom assessment is one of the most
common formative assessment techniques although other activities and tasks may be used.
Formative assessments help show you and us that you are learning and understanding the
material covered in this course and allow us to monitor your progress towards achieving the
learning outcomes for the module. Although formative assessments do not directly
contribute to the overall module mark they do provide an important opportunity to receive
feedback on your learning.

In Tort, you will have the opportunity to sit a mock multiple choice test two weeks prior to
your summative multiple choice test. This will help to familiarise you with the software and
the kind of questions you can expect.

Your second formative assessment is designed to provide you with feedback to help you with
your final summative assessment, the end of year coursework. In Week 20 you are able to
submit an outline draft of your proposed coursework answer. This document may be no more
than 1000 words long and can comprise only the following: Your introduction, an outline of
how you plan to structure your essay (this can be paragraph headings or a bullet point list),
key cases or statutes you will include, your concluding paragraph and a bibliography. We will
give you online feedback in enough time for you to use the feedback for your final, summative
submission.

Formative assessment Deadline

Mock multiple-choice test Week 9, during the workshop – 20
November 2023
Coursework outline and bibliography Week 20 – 26 February 2024

Summative assessment:
Summative assessment is used to check the level of learning at the end of the course. It is
summative because it is based on accumulated learning during the course. The point is to
ensure that you have met the learning outcomes for the course and are at the appropriate
level. It is the summative assessment that determines the grade that you are awarded for the
module.

There are 2 assessment components in this module a coursework and a multiple-choice test.
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The table below specifies the associated deadlines:

Summative Weighting Deadline Feedback

assessment
Multiple-choice test 25% 04/12/2023 06/12/2023
Coursework 75% 15/04/2024 by 4pm London June 2024
time

In order to pass this module, you need to pass over-all with a minimum grade of 40%. It is
possible to fail one assessment (e.g. the multiple-choice test) but on the strength of your mark
for the other assessment to pass the module overall.

Before you submit your work for final grading, please ensure that you have accurately
referenced the work. It is your responsibility to check the spelling and grammar. If you have
submitted a formative or draft assessment, you will receive feedback but no grade. The
comments should inform you about how well you have done or tell you about the areas for
improvement. All assignments should be submitted online via Turnitin unless otherwise
specified in assessment briefs.

We now look at each component of assessment for this module in detail. Each of the following
tables provides an overview of the requirements for each component. The support provided
for each component along with the feedback arrangements, is also detailed below.

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Assessment 1: Multiple Choice Test
The following table provides an overview of the assessment requirements.

Assessment 1 Multiple Choice Test

Module code LAW2105

Module title Tort

Submission date, time 04 December 2023

Feedback type & date Electronic feedback once all campuses have finished the test. Real time feedback at any time during Tutors’ office hours.

Word count N/A.

Assignment type Multiple choice test.

Assignment structure, An in-class multiple choice test comprising 12 questions to be taken within 45 minutes in week 11 which will account
format and details for 25% of the total mark.

Assessed learning The following learning outcomes will be assessed in the test:
outcome (s) Knowledge

On successful completion of this assessment, the student will be able to:

(1) Demonstrate detailed, wide-ranging knowledge of and ability to apply the main principles of the law of torts including
the main areas of tortious liability, to complex situations;

(2) Use a range of sources including applicable case and statute law to solve complex problems and to critically analyse
issues raised in tort;
 LAW OF TORT LAW 2105

Skills

On successful completion of this assessment, the student will be able to:

(5) Use a range of techniques to solve problems and be able to relate knowledge of rules of law to factual situations to
reach reasoned conclusions;

(6) Apply numeracy skills advanced enough to calculate damages upon a contributory negligence finding by the court, in
terms of the Law Reform (Contributory Negligence) Act 1945.

Assessment weighting % 25%.

Key reading and learning The prescribed textbook and syllabus covered up to the end of week 10.
resources

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Assessment 2: Coursework
The following table provides an overview of the assessment requirements.

Assessment Coursework
Module code LAW2105

Module title Tort

Submission date, time 15 April 2024 by 4pm London time

Feedback type & date Feedback will be on a date specified in June or July, after the University results have been published.

Word count 3,700 words maximum

Assignment type Coursework

Assignment structure, The coursework should be typed on white, A4 paper, in 12 point font. A bibliography should be included at the end of the
format and details coursework. Cases must be cited correctly, but the full citation may be contained in footnotes. Please note that work which is
not properly referenced will not achieve a good grade.

Word count must be recorded and failure to do so, or incorrectly stating the word count, will result in 2% being deducted
from your final mark for the coursework. Your bibliography and footnotes do not count towards the word count, PROVIDED
they are used for referencing/citation purposes only. Any explanatory text in footnotes will not be read or assessed.

You must fully attribute any judicial quotations or passages taken from articles or textbooks. Failure to do so may result in
your work being referred to Academic Registry for Plagiarism. Coursework must be referenced using the Oxford Standard
Citation of Legal Authority (OSCOLA). A fact sheet called ‘Rules for Referencing for Law Students’ setting out how to do this is
available on Unihub in the ‘Learning Materials’ folder. Please note: If you do not reference your coursework properly, you
cannot gain a grade 1 or 2.1. If in doubt, consult your tutor..

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Assessed learning The following learning outcomes will be assessed in the coursework:
outcome (s) Knowledge

On completion of this coursework the successful student will be able to:

2. Use a range of sources including applicable case and statute law to solve problems and issues raised in tort;

3. Analyse in depth a wide range of legal concepts, values, principles and rules of the law of torts and to explain the relationship
between them in a number of particular areas.

Skills

This assessment will call for the successful student to:

4. Use a range of sources including electronic and printed sources in order to extract the relevant law and literature, using
referencing tools appropriately;

5. Use a range of sophisticated techniques to solve problems and be able to relate knowledge of rules of law to factual
situations in order to reach reasoned conclusions;

6. demonstrate numeracy sufficient to calculate damages upon a contributory negligence finding by the court, in terms of the
Law Reform (Contributory Negligence) Act 1945.

Assessment weighting % 75%.

Key reading and learning A good law essay will refer to (and list in its footnotes and its bibliography), the sources of the law relied on, consisting of the
resources relevant case and/or statute law; articles from academic law journals on the relevant subject; chapters from monographs or
textbooks on tort. Avoid citing and using online material such as Wikipedia, LAWTeacher etc. Also do NOT use your handbook
as a source. These are NOT authoritative sources and WILL cause marks to be deducted from your work.

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Marking Rubric for coursework

Assessment marking criteria rubric (coursework)
0-39% (Fail) 40-49% (3rd) 50-59% (Low 2nd) 60-69% (Up. 2nd) 70-100% (First)
Legal Knowledge Irrelevant or incorrect learning; Legal knowledge is adequate; Legal knowledge is general and Legal knowledge up to date but Legal knowledge is
Legal knowledge displayed through fundamental knowledge of some basic relatively up to date; not broad/deep: mostly comprehensive, broad and
correctly identified, used and misunderstandings; and/or ideas& facts displayed; an understanding & coverage of relevant knowledge with very deep: Understanding &
discussed case and statute law. (30% more than half of the work acceptable number of many relevant legal aspects of few irrelevancies; under- coverage of all aspects of the
of overall mark) contains discussion of elements of the topic is the topic but little relation / standing & coverage of number topic; drawing on aspects of
irrelevant legal issues. (0-11) understood; may contain a integration between them, of aspects of the topic but not relevant legal knowledge as
number of irrelevant aspects there may be a small number going further than obvious well as outside the topic in
. (12-14) of irrelevant aspects covered relation or integration of the question, no irrelevancies
(15-17) aspects; (18-20) (21-30)
Legal reasoning Student has not been able to Some valid reasoning, many Mostly valid reasoning with Mostly valid reasoning, all Impeccable, solid logical legal
Application of the law to the construct evidence of arguments not supported; some mistakes, most arguments supported; reasoning with excellent
problem. Support for reasoning and meaningful reasoning: May student can identify and arguments supported; evidence of application of support for all arguments;
logical analysis. range from wholly invalid describe the main concept declarative understanding: i.e. theory to problems; ability to use the theory
(30% of overall mark) reasoning and/or no legal (12-14) is able to discuss content recognition of good or poor correctly to construct
content to some valid meaningfully & with a applications of principle. understanding, to reflect on
reasoning but no support. reasonable amount of content, (18-20) practice and come to
(0-11) but do not transfer/apply it correct/valid conclusions
easily (15-17) (21-30)
Structure, style and Ranges from missing the point, The work meets one/more Mostly logical flow of Well structured and coherent, Showing relation & integration
total lack of understanding , parts of the task, but misses argument; several/many student shows selectivity and of the aspects into coherent
presentation
tautological, or mostly other important attributes, elements of the topic judgement; but conclusion whole with logical flow of
incoherent. (0-3) little evidence of moving from understood but are not drawn and/or introduction could be argument and a valid
This relates to the flow of argument
specific to general/vice versa, into a coherent whole, eg improved (6) conclusion; high level of
and overall impression
sparse understanding. May be contains a weak conclusion abstract thinking; original
(10% of overall mark)
incoherent at times. (4) and/or weak connection ideas; shows metacognitive
between arguments (5) understanding (7-10)
English language Exceedingly poor to poor Adequate but with many Adequate with a few mistakes High degree of literacy Highly literate, fluent and
Grammar, spelling, punctuation, etc. (0-3) mistakes (4) (5) (6) accurate (7-10)
(10% of overall mark)
Referencing None to very poor Some references but often OSCOLA used but with many OSCOLA used fairly accurately OSCOLA used impeccably
Correct and apt use of OSCOLA (0-3) incomplete (4) errors (5) (6) (7-10)
(10% of overall mark)
Sources No/very few relevant, up to Mostly internet or low value Mostly relevant sources used; Range of valid, relevant, up to Thoughtful use of wide range
Standard of sources consulted, date sources, / non-recognised sources used but not as valuable as would date legal sources used of valid, relevant, up to date
discussed and applied sources (eg Wikipedia) be expected at this level legal sources, including journal
(10% of overall mark) (0-3) (4) (5) (6) articles (7-10)

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The following table details the support you will be receiving for this assessment and the feedback opportunities you will have.

Support and draft feedback sessions for coursework

Coursework briefing
Assessment briefing for the coursework will take place in workshops 2, 3, and 4. It is crucial that you attend and prepare for these workshops
Draft feedback opportunities
Apart from the formative submission opportunity (see above) no feedback will be given on drafts of the content. However, feedback is possible
on your formative submission, which is word limited and can comprise your introduction, conclusion, a brief outline of how you plain to
structure your essay, the key cases you will include, and your suggested bibliography. and on your outline of how you plan to structure the
essay. Feedback on the formative submission will therefore be of use to you for your summative submission.
Additional support
Remember that you are entitled to ask for help by the LET with language and structuring.
GAAs may be asked to help with citations and structure only. They are NOT allowed to comment on the content of your work.

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Feedback on your assignments
You will be provided with feedback on all coursework that is helpful and informative,
consistent with aiding the learning and development process. The nature of the feedback
shall be determined at programme level but may take a variety of forms including: written
comments; individual and group tutorial feedback; peer feedback; or other forms of
effective and efficient feedback.

Feedback will normally be provided within 15 WORKING DAYS of the published coursework
component submission date as stated in the programme handbook.

How is your assignment mark agreed?

The following diagram provides an overview of the marking process for your module
assessment. Details of the programme external examiner can be found in the programme
handbook.

• You submit your assignment

1

• The first marker grades the work and provides feedback; this could be completed
2 anonymously depending on the assessment type.

• A moderator or second marker reviews a sample of the work to quality assure the
grades and feedback, to ensure they are accurate. A final mark for the work is
3 agreed between the first marker and the moderator or second marker.
• A sample of work is sent to the External Examiner to check that the grading and
feedback is at the right level and in line with external subject benchmarks (this
4 applies to levels 5 & 6 only)

• Your final grades are submitted to the subject assessment board.

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LEARNING PLANNER / SCHEDULE

Week Lecture Seminar Workshop

1 1. Introduction None 1
2 2. Negligence introduction 1 -
3 3. Negligence – duty of care 2 2
4 4. Negligence – breach of duty 3 -
5 5. Negligence – causation 4 3
6 Reading week – no lecture, workshop or seminar
7 6. Negligence – defences & remedies 5 4
8 7. Personal & Vicarious liability 6 -
9 8. Trespass to the person 7 Mock MCT
10 9. Trespass to land and goods 8 -
11 10. Nuisance 9 Multiple CT
12 Revision of term 1 10 -
Christmas Holiday
13 11. Rylands v Fletcher 11 -
14 12. Product liability (common law) 12 5
15 13 Product liability (statutory) 13 -
16 14. Occupiers’ liability 14 6
17 15. Defamation 15 -
18 Reading week – no lecture, workshop or seminar
19 16 Defamation defences 16 -
20 17 Miscellaneous torts: Privacy 17 7
Formative assessment 26 February
21 18 Miscellaneous torts (continued) 18 -
22 19. Breach of statutory duty 19 8
23 20. Defences & remedies 20 -
24 Revision of term 2 and feedback on formative assessment across all sessions
Assessment Period April/May
Tort coursework due 15 April

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PART B: LECTURES
Lecture 1: Introduction to tort

Learning objectives:
On completion of this unit you will be able to:

• Describe the function, purpose, and boundaries of the law of tort.

• Distinguish between tort and other branches of law.
• Answer elementary problems in tort.
• Communicate answers to relevant essay and problem questions.

Reading:
Textbook Elliott & Quinn ch. 1

Cases Bradford Corporation v Pickles [1895] AC 587

Cork v Kirby MacLean Ltd [1952] 2 All ER 402

Donoghue v Stevenson [1932] AC 562

Journal articles J Murphy, ‘Rights, Reductionism and Tort Law’ (2008) 28 OJLS
393

The word ‘tort’ is derived from the Latin word ‘tortum’, meaning ‘twisted’ or ‘wrong’.

Some examples of torts are: negligence, trespass, nuisance, harassment and defamation
(libel and slander). There are thus many different torts and this makes it difficult to give a
single definition of ‘tort’. But we can distinguish some general principles of tortious liability
which might help to explain what the meaning of tort is. One of the purposes of this lecture
is to identify the broad framework within which persons may be liable for their conduct (i.e.
acts or omissions) in the law of tort. To fulfil this task you will need to explore various
principles which are important in determining liability.

Principles of liability in tort

The aims of the law of tort are compensation and deterrence.

The interests protected by tort are: personal security; property; reputation and economic
interests. However there are possibly situations where damage has been suffered but no
remedy is available: i.e. damnum sine injuria: see Bradford Corp v Pickles [1895] AC 587.
There are other situations where a remedy may be available although no damage has been
suffered: i.e. injuria sine damno. Torts where the claimant does not have to show that the
defendant caused any damages are said to be: actionable per se.

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The burden of proof: to win a case a claimant has to provide the court with evidence that
s/he has suffered a legal wrong in a situation for which the defendant must, in law, accept
responsibility. It is not enough that the claimant convinces the court as to what happened;
the evidence must show that the defendant’s conduct (or that of a person for whom the
defendant was responsible) was unlawful.

The claimant will have to prove the factual situation AND that the defendant or someone for
whom the defendant was responsible, caused this situation. In some cases, the claimant will
also have to show that the defendant behaved in an unlawful way. In some cases, when the
claimant has made out ‘a prima facie’ case the defendant may escape liability by raising a
defence.

Exactly what the claimant has to prove, and exactly what defences are available to the
defendant will vary between torts. Factors to consider include: what conduct constitutes
the tort; whether the claimant must prove fault; and whether the claimant must prove
damage.

Many torts contain an element of fault and thus require the claimant to show that the
defendant is at fault. However, some torts bear ‘strict liability’ and then there is no
requirement to show that there is any fault by the defendant. Fault may take the form of
malice, intention or negligence. Malice usually refers to an improper motive, see: Hollywood
Silver Fox Farm Ltd v Emmett [1936] 2 KB 468 and Bradford Corp v Pickles [1895] AC 587.
Distinguish negligent conduct as a fault element in any tort from negligent conduct in the
context of the tort of negligence.

Some torts require the defendant to have intended to perform the action (do the act) which
amounts to the tort, although this does not necessarily include the intention to cause harm.
Note the important distinction between intention to act and intention to harm. Normally it
is only the conduct that must be intentional. In some torts defendants may be liable if they
intend to act even though they do not intend to harm. Indeed the tort may be committed
even though the defendant intended to bestow a benefit on the claimant. For example if I
kiss you, without your having invited me to do so, I do intend to touch you, but I may not
intend to harm you - in fact I may intend to demonstrate my affection for you (Intention to
act, but not necessarily any intention to harm). In torts of strict liability, of which battery is
an example, there may be tortious liability even if no harm is intended (see F v West Berks
Health Authority [1989] 1 All ER 545).

Some torts require proof of damage, but some are actionable per se: this means that there
is no need to prove any damage.

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Multiple tortfeasors: where two or more tortfeasors – the tortfeasor is the defendant in a
tort claim - have caused loss to the claimant the tortfeasors may be:

• Joint tortfeasors: those against each of whom the same facts would support a cause
of action, e.g. an employer and an employee for whose tort the employer may be
vicariously liable.
• Concurrent tortfeasors: those whose separate acts coincide to produce the same
damage: e.g. Drinkwater v Kimber [1952] 1 All ER 701, where two motorists
contributed to a crash in which the claimant, a passenger in one of the cars, was
injured. Both a joint tortfeasor and a concurrent tortfeasor is liable for the whole
loss though he/she may seek a contribution from the co-tortfeasors under the Civil
Liability (Contribution) Act 1978, s. 1(1).
• Several tortfeasors: those who act independently of each other to cause different
items of damage to the same claimant: e.g. where the first defendant knocks down
the claimant in a motor accident, and a surgeon, the second defendant, amputates
the wrong leg. Since no single several tortfeasor can be made liable for the
claimant’s whole loss the court apportions liability according to respective blame
unless this is impossible, in which case liability is equal. (See Barker v Corus (UK) plc,
Murray v British Shipbuilders (Hydrodynamics) Ltd and Ors. Patterson v Smiths Dock
Ltd and Another [2006] UKHL 20).

The usual remedy in tort actions is damages. We can distinguish:

• Special damages: these can be precisely assessed, e.g. damage to property or loss of
earnings.
• General damages: these are not capable of being precisely quantified, e.g. damages
for pain and suffering, loss of amenity, loss of future earnings. These damages are
called unliquidated, which means that the judge decides how much they are going to
be. (See the Damages Act 1996, S 1-3.)

General damages can take the following forms:

• Nominal damages - if no loss is suffered e.g. where tort is actionable per se, for
example: Constantine v Imperial Hotels LTD [1994] KB 693.
• Contemptuous damages - action should not have been brought, e.g. Grobbelaar v
News Group Newspapers LTD [2002] 1 WLR 3024.
• Aggravated damages –awarded where the defendant's conduct causes hurt feelings
e.g. AB v South West Water Services [1993] 1ALL ER 609.
• Exemplary or Punitive Damages - exceptionally awarded to punish the defendant.
See: Rookes v Barnard [1964] AC 1129; Cassell & Co Ltd v Broome [1972] AC 1027;
Watkins v Secretary of State for the Home Department [2006] 2 AC 395; A v B Hospitals
NHS Trust [2006] EWHC 1178 (Admin)

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On the measure of damages see: Brown v Ministry of Defence [2006] EWCA Civ 546; McIntyre
v Harland & Wolff Plc [2007] 2 All ER 24.

The normal remedy in tort is a claim for damages, but injunctions are sometimes granted
ordering the defendant to stop the wrongful conduct. Injunctions are sometimes (very
rarely) granted in defamation and they are most commonly granted in nuisance (See
Cambridge Water Company v Eastern Counties Leather plc [1994] 2 AC 264 - this suggests
that in nuisance an injunction may be granted even though damages are not available).

Injunctions are sometimes (again, rarely) granted to prevent a new course of conduct taking
place: i.e. before the defendant has acted.

Note injunctions can be:

• Prohibitory: preventing the defendant from continuing a course of conduct.

• Mandatory: requiring the defendant to do something: this is normally rectify the
situation.
• Interlocutory: before trial.
• Perpetual: granted at the end of trial.
• Quia timet: to prevent threatened action.

Limitation periods:
The claimant’s right to sue may be extinguished by the expiry of the limitation period (or by
satisfaction; judgment or release or exclusion of liability under the Unfair Contract Terms
Act 1977 or the Consumer Rights Act 2015).

Note that the Law Reform (Miscellaneous Provisions) Act 1934 provides that tort actions,
with the exception of defamation, survive the death of either party. This means that an
injured party who has a viable cause of action against someone who then dies, can sue his
estate. And, if a cause of action is in existence at the time someone dies, his estate can
continue that action for damages that happened before his death. Causing the death of
another may also give rise to an action by the deceased’s dependants under the Fatal
Accidents Act 1976 if the dependant can prove that the deceased would have had an action
in tort if he/she had survived. Dependants who may sue are spouses (including common-
law spouses), parents or other ascendants, children or other descendants, former spouses,
adoptive parents and children, stepchildren and illegitimate children. The Fatal Accidents
Act 1976 also establishes a claim by a surviving spouse or parent of a deceased minor for the
bereavement suffered. See also the Administration of Justice Act 1982; Barnett v Cohen
[1921] 2 KB 461; Malyon v Plummer [1964] 1 QB 330.

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Relationship between tort and other areas of law

Tort and crime

• Actions are heard in different courts.
• Aims are different: tortious liability is primarily to compensate: criminal law is
concerned with the punishment of wrongdoers. English tort law rarely awards
damages in excess of the claimant's loss even if the defendant's behaviour has been
especially reprehensible (but see the few examples of exemplary damages above).

Tort and contract

• Tortious obligations arise by law: contractual obligations stem from agreement.
• Difference in remedies: tort rarely compensates for loss of expectation.
• The limitation periods may be different in length. Time begins to run: in contract
from the date agreed for performance of contract, in tort it normally runs from when
damage occurs, i.e. when the tort is committed.

But note: Generally by S.11 (1), Limitation Act 1980 a claimant must start an action for
personal injury within 3 years (note exception for trespass below) and within 6 years for
other actions (in tort and contract). Note that if a claim includes damages for personal
injuries as well as damages for other loss, then the limitation period of three years applies
as well. In personal injury cases, the court has power to postpone the running of time where
the claimant was ignorant that he/she had a claim.

Thus in tort, time does not run:

• where the claimant is under a disability;

• where the claimant did not know of either (i) the personal injury or (ii) the right to
sue: see Forbes v Wandsworth Health Authority [1997] QB 402 (CA). In Horton v
Sadler [2006] 1 AC 207 the House of Lords confirmed that a court has a wide
discretion to disapply the statutory limitation period in a personal injury action, but
note that this power cannot be used where injury was caused intentionally (i.e.
trespass to person: see Stubbings v Webb [1993] AC 498).
Also note the effect of the Latent Damage Act 1986 where damage to property is
latent i.e. not immediately apparent. Pirelli General Cable Works Ltd v Oscar Faber &
Partners [1983] 2 AC 1 illustrated the problem with latent damage. The Latent
Damages Act now provides that the limitation period is either six years from the
accrual of the cause of action or three years from the date that the claimant had a
right to bring an action and had knowledge:

a) of the material facts about the damage (and a reasonable person would have
started proceedings);
b) that the damage was attributable to the alleged negligence;
c) of the identity of the defendant or any other relevant person;
d) of additional facts supporting an action against the defendant.

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The claimant is allowed to rely on the three-year period if that expires later than the six-year
period. There is a cut-off point (long stop) of 15 years from the date of the relevant act or
omission and there are provisions for extending the period where claimant is under a
disability or in cases of fraud etc.

Tort and land law

Tort is rarely concerned with rights to the title of land, but many torts depend on the legal
status of the parties in relation to the occupation of land affected or from which the
problem emanates. For example, to be able to claim in nuisance you have to prove that you
have a legal interest in the land affected – an owner or tenant will be able to sue in nuisance
but not a lodger. So here land law is important.

Tort and insurance

If victims have a choice as to whom to sue, they will often choose wealthy defendants, e.g.
corporations or they choose to sue people the law requires to have insurance e.g. drivers
and employers. Insurance does play a large role in tort law, especially in personal injury
claims. Concerns about the proliferation of whiplash/minor injury claims and its effect on
raising insurance premiums in general have led the government to attempt to reform the
personal injury industry. These reforms were introduced in the Civil Liability Bill,
announced 20 March 2018. See https://www.gov.uk/government/news/justice-secretary-
unveils-new-bill-to-cut-car-insurance-premiums

Social security and personal insurance can also play a part in supporting accident victims.

Tort and Human Rights

The Human Rights Act 1998 incorporated the European Convention for the Protection of
Human Rights and Fundamental Freedoms (ECHR) into national law. This Act enables
individuals to challenge the legitimacy of acts or omissions by the state/public bodies and/or
the failures of the law to protect those fundamental rights protected by the Convention.
These can now be challenged in the national courts, rather than litigants having to go the
European Court of Human Rights (ECrtHR) in Strasbourg to pursue their case. The Act can
indirectly be of benefit in a dispute between individuals, because a court is itself a public
body and must therefore ensure compatibility with the Convention. According to Turner and
Hodge, (Unlocking Torts, 3rd ed., 2010, Hodder Education, p 14), this involves:

• Exercising judicial discretion in a way which gives effect to such rights.

• Interpreting legislation in accordance with the Convention.
• Developing the common law so that it is compatible with Convention rights.
• Creating a remedy in private disputes where it is necessary in order to protect an
individual’s right.

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In any action before a court or tribunal, the court or tribunal must take account of the
relevant articles of the ECHR and the Convention and any relevant case law of the ECrtHR.

The Human Rights Act 1998 poses a problem for English tort law because the jurisprudence
of the ECHR is different from English law. The ECHR gives a right and the state is then
allowed to derogate from this right in certain circumstances for particular purposes. The
state has a ‘margin of appreciation’ in this, but any derogation must be proportionate and
necessary for the protection of the stated aims. The court will balance the violation of the
right with the harm caused by upholding it. The case law of the ECrtHR is thus based on
rights, while English tort law is based on the commission of a wrong.

The Human Rights Act 1998 will have some impact on the development of tort law and it
has broadened the circumstances in which claimants are entitled to sue in the tort of
negligence and some other torts, as we shall see later in this course.

This is just a short overview of the impact of the Human Rights Act 1998. Further discussion
will take place when we discuss the individual torts in more detail.

Tort and Equity (including breach of trust)

Actions for the protection of equitable interests are normally brought in the Chancery
Division. E.g. breach of trust, company law, mortgages. Remember to distinguish protection
of equitable interests from the granting of equitable remedies: common law remedies are
given as of right. Equitable remedies are granted only if it is, in the view of the court, fair to
grant them, taking into account the nature of the wrong and whether damages are a
sufficient remedy.

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Lecture 2: Introduction to the tort of Negligence

Learning objectives:
On completion of this topic you will be able to

• trace the origins of liability for negligent conduct

• understand how Donoghue v Stevenson created a tort of negligence
• identify the landmarks in the development of the tort from its origins in 1932 up to
Home Office v Dorset Yacht Co. in 1970
• explain the development of the duty issue from 1980 to the present time, noting
both the statutory and judicial contributions
• demonstrate a firm foundation for the study of more recent case law
• demonstrate your skill in using law reports

Reading:
Textbook Elliott & Quinn ch 2
Cases Home Office v Dorset Yacht Co. [1970] AC 1004
Caparo Industries PLC v Dickman [1990] 1 All ER 568
Journal articles Robert Heuston, ‘Donoghue v Stevenson in Retrospect’ (1957) 20
M.L.R 1-24

Negligence in tort has several meanings. It can refer to the tort of negligence in the strict
sense, but it is also used to refer to careless behaviour or negligent conduct as defined in
Blyth v Birmingham Waterworks Co (1865) 11 Exch. 781, which established the ‘reasonable
man’ test: liability arises out of negligent conduct and the standard is that of the ‘reasonable
man’. Courts will apply the test of what a ‘reasonable man’ would have done in the
defendant’s position. Where a defendant falls short of this expected standard, he/she could
be liable for damages.

Definition

For now, negligence can be defined as negligently or carelessly causing damage or injury to
someone, who may in turn hold the perpetrator liable for such injury or damage.

The tort of negligence is nowadays the most frequently used of all torts and it is thus the
most important tort in modern law. Negligence protects against three types of harm:
personal injury, damage to property and (some) economic loss. Negligence is concerned
with compensating people who have suffered damage as a result of the carelessness of
other people. But the law does not provide a remedy for everyone who suffers in this way.
This is where the doctrine of the duty of care plays a role. A person will only be liable to
another for negligence if he/she has a duty of care towards the other and he/she has
breached that duty and caused damage to the other.

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Traditionally, for most torts, proof of an intentional and direct interference with the
claimant or his property was required. But careless acts seemed to cause more loss or injury
than intentional acts, so claimants could sometimes make out a case for liability for careless
deeds that caused foreseeable loss or injury, but there was no general duty of care. The case
of Donoghue v Stevenson [1932] AC 562 established a test for determining whether a duty
of care existed in each specific case and whether negligence has actually occurred. In this
case, negligence was accepted as a separate tort in its own right.

Lord Atkin said in the Donoghue case:

In English law there must be some general conception of relations giving rise to a duty of care. The
liability for negligence … is no doubt based upon a general public sentiment of moral wrong-doing
for which the offender must pay. But acts or omissions which any moral code would censure cannot
in a practical world be treated so as to give a right to every person injured by them to demand relief.
In this way, rules of law arise which limit the range of complainants and the extent of their remedy.
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour… .
You must take reasonable care to avoid acts or omissions which you can reasonably foresee would
be likely to injure your neighbour. Who then, in law, is my neighbour? The answer seems to be
persons who are so closely and directly affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to the acts and omissions which
are called in question.

The development of negligence after Donoghue v Stevenson can be set within the
framework set out by Lord Wright’s statement in Lochgelly Iron and Coal Co v Mullen [1934]
AC 1 at p. 25:

In strict legal analysis, negligence means more than heedless or careless conduct, whether in
omission or commission. Negligence properly connotes the complex concept of duty, breach and
damage thereby suffered by the person to whom the duty is owed.

Elements of negligence
Therefore, it must be shown

• That the defendant owes the claimant a duty of care;

• That the defendant has acted in breach of that duty; and
• That the claimant has suffered damage as a result of that breach (causation in fact);
and that this damage was not too remote a consequence of the defendant’s breach
(causation in law).
These are the three elements of the tort of negligence and it is up to the claimant to prove
each of these. These three can sometimes merge into one another.

The Donoghue case also established the ‘neighbour principle’ – neighbours are those people
who are so closely affected by our deeds that we should take care to avoid harming them.

Note that this is a controversial area of law, particularly in relation to accident

compensation and medical negligence cases. Reformers argue that the current method of
having to prove that the defendant was at fault is a lengthy and costly process that only
hinders the claimant’s chances of redress and overburdens the courts.
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The Donoghue case established a duty of care for manufacturers. Following this case, the
duty of care was extended, case-by-case, to a number of different relationships. Note, for
example, the statement of Lord Reid in Home Office v Dorset Yacht Co. [1970] AC 1004:

‘Donoghue v Stevenson may be regarded as a milestone, and the well-known passage in Lord
Atkin’s speech should I think be regarded as a statement of principle. It is not to be treated as if it
were a statutory definition. It will require qualification in new circumstances. But I think that the
time has come when we can and should say that it ought to apply unless there is some justification
or valid explanation for its exclusion. For example causing economic loss is a different matter…’

Established duty of care situations

For cases which expanded the duty see:

• Wilsons & Clyde Coal Co v English [1938] AC 57 (employers).

• Grant v Australian Knitting Mills [1936] AC 85 (shopkeepers).
• Haseldine v Daw [1941] 2 KB 343 (maintenance engineers).
• Holmes v Mather (1875) LR 10 Exch 261 (users of the highway).
• Glasgow Corp v Muir [1943] AC 448 (occupiers).
• Bourhill v Young [1943] AC 92 (nervous shock).
• Chandler v Cape Plc [2012] EWCA Civ 525 (Parent company to those affected by
actions of its subsidiary)
In a number of cases, Parliament provided statutory solutions. See for the latter, for
example:

• Defective Premises Act 1972 (on the duties of builder/vendor/landlord).

• Congenital Disabilities (Civil Liability) Act 1976 (on duty to unborn children).
• Human Fertilisation and Embryology Act 1990 (added a new S.1A to the Congenital
Disabilities (Civil Liability) Act 1976 to cover deformity due to mismanagement of the
sperm and ovum).
• Occupiers Liability Act 1957 (Occupiers’ duty to lawful visitors).
• Occupiers Liability Act 1984 (Occupiers’ duty to trespassers).
• The Latent Damage Act 1986.
• Animals Act 1971 (duty on keeper of animals).
• Unfair Contract Terms Act 1977.
• Consumer Protection Act 1987.
• Defamation Act 1996.
• Consumer Rights Act 2015.

Development of the duty of care: Caparo Industries v Dickman

In Anns v Merton London Borough Council [1978] AC 728, Lord Wilberforce formulated a
new two-part test to determine whether the defendant owed a duty of care to the claimant
(building on What Lord Reid had said in Home Office v Dorset Yacht Co. [1970] AC 1004
above):

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‘Through the trilogy of cases in this House, Donoghue v Stevenson, Hedley Byrne & Co Ltd v Heller
& Partners Ltd. and Home Office v Dorset Yacht Co Ltd, the position has now been reached that in
order to establish that a duty of care arises in a particular situation, it is not necessary to bring the
facts of that situation within those of previous situations in which a duty of care has been held to
exist. Rather the question has to be approached in two stages. First one has to ask whether, as
between the alleged wrongdoer and the person who has suffered damage there is a sufficient
relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty
of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider
whether there are any considerations, which ought to negate, or to reduce or limit the scope of the
duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.’

So under this new test, it should be established, firstly, that there is a sufficient relationship
of proximity or neighbourhood between the parties for damage to be a foreseeable
possibility of any careless act or omission in which case a prima facie duty of care arose. If
this was established, then the court only had to decide whether there were any policy
considerations that might either limit the scope of the duty or remove it altogether. This
was a change from the approach based on the test in Donoghue. Under the Donoghue test,
where a factual situation could not be linked to precedent, a duty of care would only be held
to arise if there were policy reasons for doing so. Under the Anns test, a prima facie duty of
care would be held to arise where the defendant could reasonably be expected to foresee a
risk of harm to the claimant, unless policy considerations dictated that no duty should exist.

However, this two-part test gave rise to problems as it leaves much discretion to judges to
determine whether a duty should exist in a given situation. The test was criticised in a
number of cases, see, for example: Governors of the Peabody Donation Fund v Sir Lindsay
Parkinson & Co Ltd [1985] AC 210; Leigh and Sillavan Ltd v Aliakmon Shipping Co Ltd (The
Aliakmon) [1986 1 AC 785; Curran v Northern Ireland Co-ownership Housing Association Ltd
[1987] AC 718; McLoughlin v O’Brian [1983] 1 AC 410; and, Yuen Kun Yeu v Attorney General
of Hong Kong [1987] 2 All ER 705.

The Caparo test for existence of a duty of care

In Caparo Industries PLC v Dickman [1990] 1 All ER 568 the court went back to a three-stage
test for imposing liability. Three questions will need to be asked by the courts:

1. Was the damage reasonably foreseeable? See: Topp v London Country Bus (South
West) Ltd [1993] 1 WLR 976 and Margereson v JW Roberts Ltd [1996] PIQR P358.
2. Was there a relationship of proximity between defendant and claimant? So there
must be a sufficient relationship of proximity between the parties for the duty to be
imposed. Proximity was part of both the neighbour principle in the Donoghue case
and the two-part test in the Anns case and is still a major factor in determining if
there is a duty of care. Questions of policy appear to influence the question whether
or not the required degree of proximity exists in a given situation. See: Hill v Chief
Constable of West Yorkshire [1988] 2 All ER 238. Recently the Court of Appeal held
in Everett v Comojo (UK) Ltd (t/a Metropolitan) [2011] EWCA Civ 13 that a nightclub
had a relationship of proximity with its patrons and could be held liable for injuries
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suffered by them while on its premises (this case overlaps with Occupiers’ Liability
which we look at in Unit 12 below)
3. Is it fair, just and reasonable in all the circumstances to impose a duty of care? Marc
Rich & Co A.G. v Bishop Rock Marine Company (The Nicholas Heron) [1994] 1 WLR
1071; D. Pride and Partners v Institute for Animal Health and Others [2009] EWHC
296. This condition appears to add little to the requirement of proximity, especially
because policy is also considered under the proximity test. This condition seems to
indicate that there must be a limit to liability and that no duty will be imposed unless
it is just in all the circumstances. For an example where the court held that it was not
just and reasonable to award compensation, see: McFarlane v Tayside Health Board
[1999] 4 All ER 961.

This three-stage test was endorsed in Murphy v Brentwood District Council [1990] 2 All ER
908, which declared Anns to be wrongly decided. So the Caparo test is now the test which
needs to be used to establish whether a duty of care exists. This means that there is thus no
general all-embracing duty of care and the existence of the duty depends on the individual
circumstances of each case. The claimant has to establish that a duty was owed to him/her.
It will be clear that all three conditions of the Caparo test overlap and are inter-related and
thus the test is not always applied by the courts in a clearly distinguishable three-step
process.

Robinson case, qualifying Caparo

In Robinson v Chief Constable of West Yorkshire Police (2018) the Supreme Court stated that
it is incorrect to apply the three stage test for a duty of care from the House of Lords’
decision in Caparo (“foreseeability, proximity and just, fair and reasonable”), to all
negligence cases. Lord Reed, who gave the majority decision, explained [21]:

“The proposition that there is a Caparo test which applies to all claims in the modern law of
negligence, and that in consequence the court will only impose a duty of care where it considers
it fair, just and reasonable to do so on the particular facts, is mistaken. As Lord Toulson pointed
out in his landmark judgment in Michael v Chief Constable of South Wales Police ……., that
understanding of the case mistakes the whole point of Caparo, which was to repudiate the idea
that there is a single test which can be applied in all cases in order to determine whether a duty
of care exists, and instead to adopt an approach based, in the manner characteristic of the
common law, on precedent, and on the development of the law incrementally and by analogy
with established authorities.”

However this does not mean that the Caparo test is entirely done away with. The Court did
not overrule Caparo, it sought to clarify and explain it. It is only the notion that it applies to
all negligence cases that is dispelled. Lord Reed went on to state that it is only in novel
cases, where established principles do not provide an answer, that the courts need to
exercise judgment that involves consideration of what is “fair, just and reasonable” [par 27].

It must be noted that policy has always played a major role in determining liability for
negligence. In Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310 (at 410), Lord
Oliver said:
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‘…no doubt ‘policy’, if that is the right word, or perhaps more properly, the impracticability or
unreasonableness of entertaining claims to the ultimate limits of the consequences of human activity,
necessarily plays a part in the court’s perception of what is sufficiently proximate … in the end, it
has to be accepted that the concept of proximity is an artificial one which depends more upon the
court’s perception of what is the reasonable area for the imposition of liability than upon any logical
process of analogical deduction.’

On policy arguments, including the ‘floodgate’ argument – if a duty is recognised there

would be an immediate massive increase in litigation – used by the courts see your
textbooks.

The current approach in a given scenario is thus: since the formulation of the
category approach in Caparo, the court will apply relevant precedent (or statute) to
determine the existence of a duty of care in a given situation. Following Robinson : if a
precise precedent isn’t available, but an analogous one is, the analogous precedent will be
applied. (For example, if the case concerns a nurse and a patient, and the only precedent
concerned a doctor and a patient, the analogy would normally suffice to use the latter as a
precedent.) In a novel or new situation not covered by (either direct or analogous)
authority, the court will apply a three-stage test: foreseeability of damage, proximity, and
whether it is fair, just, and reasonable to impose a duty of care on the defendant (Caparo
test). For example: the CA applied the Caparo test in Kent v Griffiths [2001] QB 36.

Another example is James-Bowen v Commissioner of Police of the Metropolis [2018]

UKSC 40. This case examined, in the light of the Robinson treatment of Caparo, whether a
duty of trust and confidence could be implied into contracts of employment, and that an
employer owed its employees a duty of care to conduct litigation in a manner which
protected them from economic or reputational harm. The Supreme Court held that it would
go beyond established precedent to infer such a duty, and therefore policy considerations
should be taken into account. Considering the coherence of the resulting state of the law
the court declined to recognise such a duty of care. (paras 28-33).

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Lecture 3: Negligence: Duty of Care (continued)

Learning objectives:
On completion of this topic you will be able to:

• place the work in this lecture in the context of the foundation laid in the previous
lecture.
• explain when liability for omission occurs.
• Explain the rules regarding psychiatric injury.
• Know when liability for economic loss can arise.

Reading:
Textbook Elliott & Quinn ch 2
Cases Alcock v Chief Constable of South Yorkshire Police [1991] 3 W.L.R.
1057
X v Bedfordshire County Council [1995] 3 W.L.R. 152;[1995] 2
A.C. 633
Z v UK [2001] FLR 193
Journal articles C Witting, ‘Duty of Care – An Analytical Approach’ (2005) 25 OJLS
417
Statute European Convention on Human Rights, articles 6 and 13
/convention

Liability for omissions

Donoghue v Stevenson refers to both acts and omissions, but English law has been reluctant
to impose liability for a failure to act. It can be said that there is no general liability for a
failure to act. There is no duty to positively help others. And if there is no duty there is no
liability (Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710). However, there can be
liability where there is a positive duty to act. This will arise only in specific circumstances,
where:

1. There is a contractual duty to act (Stansbie v Troman [1948] 2 KB 48).

2. There is a relationship of control between the defendant and a third party
(Camarthenshire County Council v Lewis [1955] AC 549; Home Office v Dorset Yacht
Co. Ltd [1970] AC 1004).
3. The defendant creates or permits a source of danger to be created, which is
interfered with by third parties (Haynes v Harwood [1935] 1 KB 146).
4. The defendant fails to remove a source of danger of which he is aware (Goldman v
Hargrave [1967] 1 AC 645).
Finally, on liability for omissions, see also (below) the position re. public bodies including
the police.

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Liability for acts of third parties

The question here is: when will A be liable to B for the negligent act of C. A’s liability will
normally concern his omission to exercise control over C. So this is the situation under point
2 above under liability for omissions. See on this the following cases:

• Home Office v Dorset Yacht Co. Ltd [1970] AC 1004

• Topp v London Country Buses (South West) Ltd [1993] 3 All ER 448

Public bodies
The question here is whether a public authority carrying out public powers/duties owes a
duty of care at common law to an individual. See the following cases:

• Home Office v Dorset Yacht Co. Ltd [1970] AC 1004.

• Anns v Merton London Borough Council [1978] AC 728.
• Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238; but see Swinney v Chief
Constable of Northumbria [1996] 3 WLR 968 and Osman v UK [1999] 1 FLR 193, in
which the ECrtHR says that Hill is too sweeping.
• Murphy v Brentwood District Council [1990] 2 All ER 908.
• X v Bedfordshire County Council [1995] 3 W.L.R. 152;[1995] 2 A.C. 633.
• Kent v Griffiths [2001] QB 36.
• Brooks v Commissioner of Metropolis [2005] 2 All ER 489.
• Robinson v Chief Constable of West Yorkshire Police [2018]
• Sarjantson v Humberside Police [2013]
• Smith & others v Ministry of Defence [2013]

In particular, pay attention to what the Supreme Court had to say on duty of care in Michael
v Chief Constable of South Wales Police [2015] UKSC 2 and in Robinson v Chief Constable of
West Yorkshire [2018] UKSC4; [2018] 2 W.L.R. 595. In the latter case the Supreme Court
held that there was no general rule that the police were not under any duty of care when
discharging their functions of preventing and investigating crime; they generally owed a
duty of care in accordance with the ordinary principles of the law of negligence unless
statute or the common law provided otherwise. Applying those principles, the Court held
that the police might be under a duty of care to protect an individual from a danger of injury
which they themselves had created, but, in the absence of circumstances such as an
assumption of responsibility, they were not normally under a such duty where they had not
created the danger of injury, including injury caused by the acts of third parties (paras 68,
70, 82, 95, 97). (Own emphasis).

Note that the Robinson case does not make the police liable for omissions (such as failing to
investigate a crime).

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But see the influence of the Human Rights Act 1998 here: Van Colle v Chief Constable of the
Hertfordshire Police [2006] EWHC 360; [2007] 3 All ER 122 (CA); [2008] All ER (D) 408 (HL);
and, Smith v Chief Constable of Sussex Police [2008] All ER (D) 408 (HL).

Rescue cases

The so-called rescue cases are related to the above. See for example:

• Cutler v United Dairies [1933] 2 KB 297.

• Haynes v Harwood [1935] 1 KB 146 (above).
• Alcock v Chief Constable of South Yorkshire Police [1991] 4 All ER 907 (below).
• White v Chief Constable of South Yorkshire [1999] 1 All ER 1 (below).

Liability for psychiatric injury and economic loss

Originally, tort law was based upon losses in the form of physical injury or property damage.
Psychological injury and economic loss went largely uncompensated, unless it did occur as a
consequence of physical injury or property damage. But the twentieth century saw a
significant development of duties of care in these areas.

Psychiatric injury
To claim compensation for psychiatric injury (sometimes called nervous shock) the
following must be established:

1. The claimant must have an actual recognised psychiatric condition capable of resulting
in the shock of the incident and recognised as having long term effects. Mere grief,
distress or anger is not enough (Vernon v Bosley No.1 [1997] 1 All ER 577).
2. The claimant was physically injured or in danger of physical injury. If this is the case,
then the claimant is a primary victim and can claim under the normal rules of
negligence: (Page v Smith [1996] 1 AC 155; White v Chief Constable of South Yorkshire
[1999] 1 All ER 1).
3. If the claimant was not physically injured or in physical danger, he/she can still claim as a
secondary victim if he/she can prove the following three elements: (These are the so-
called Alcock criteria for claims for psychiatric injury established in the case of Alcock v
Chief Constable of South Yorkshire Police [1991] 4 All ER 907, and are relevant when we
are considering possible psychiatric injury of a SECONDARY victim)
a) A sufficiently close tie of love and affection with the accident/suspected accident
victim; and
b) Proximity to the accident or the immediate aftermath, which was sufficiently close in
time and space, and
c) He/she was suffering nervous shock through what was seen or heard of the accident
or its immediate aftermath.
See also: McLoughlin v O’Brian [1982] 2 All ER 298.

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Note 1: If a claimant as a primary victim might have suffered personal injury for which
defendant would have been liable, there are no special restrictions on liability for psychiatric
injury caused by shock (Page).

Note 2: Since White rescuers are not in a special position.

Note 3: the courts have extended liability in cases involving occupational stress. For
example, employers are duty bound to take reasonable steps to safeguard the health of
employees against psychiatric damage: see on this for example the case of Walker v
Northumberland County Council [1995] 1 All ER 737.

Note 4: see also the Law Commission’s Report of 1998: Liability for psychiatric illness and
draft Negligence (Psychiatric Illness) Bill proposals (Law Com. No 249) and Taylor v A Novo
(UK) Ltd [2013]

Economic loss

Financial compensation is the main remedy sought in legal claims for negligence. Make sure
you understand the difference between ‘economic loss’ and ‘pure economic loss’ because
the former can be claimed in tort while the latter can not!

What is ‘pure’ economic loss? The courts have always been reluctant to allow liability for
pure economic loss – financial damage which does not directly result from personal injury or
damage to property - as this was primarily seen as falling under contract law. Policy reasons
played a role as well. The Spartan Steel v Martin & Co Contractors Ltd [1973] 1 QB 27 case
illustrates the difference between the types of loss and should be studied in detail

For a while, it appeared to be possible to recover for pure economic loss caused by
negligent acts (Anns v Merton London Borough Council [1978] AC 728 and Junior Books v
Veitchi Co Ltd [1983] 1 AC 520). This expansion of liability was much criticized and then Anns
was overruled by Murphy v Brentwood District Council [1990] 2 All ER 908. Therefore, there
is now no liability for pure economic loss arising from negligent acts and it is not recoverable
in negligence.

There is an exception to this for negligent misstatements, based on Hedley Byrne & Co v
Heller& Partners [1964] AC 465. The House of Lords laid down a number of requirements
which claimants would have to satisfy in order to establish a duty of care for negligent
misstatements. There must be:

1. A special relationship between the parties (Chaudry v Prabhaker [1988] 3 All ER 718).
2. A voluntary assumption of responsibility by the party giving the advice (Henderson v
Merrett Syndicates Ltd [1994] 3 All ER 506).
3. Reliance on that advice by the party receiving it, and

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4. It must be reasonable for the party to have relied on that advice (Smith v Eric S Bush
[1990] 2 WLR 790).

In Playboy Club London Ltd v Banca Nazionale del Lavoro SpA [2018] UKSC 43 the Supreme
Court had the opportunity to examine the recovery of pure economic loss by revisiting the
Hedley-Byrne principles on negligent misstatement. (It also firmly applied the Caparo test
as regards duty of care.) It held that where a bank negligently supplied to an agent a
favourable credit reference in respect of a customer who subsequently defaulted, the bank
was not liable to the agent's undisclosed principal. It was fallacious to argue that the
relationship between the bank and the undisclosed principal was sufficiently proximate to
give rise to a duty of care because it was "equivalent to contract". Hedley-Byrne v Heller
applied, Caparo applied (see paras 7-10).

Note: When studying this area you should consider the following questions:

• Is claimant's reliance known to defendant?

• Has defendant assumed responsibility?
• Has the claimant suffered detriment?
• Is there a conflict between contractual and tortious responsibilities of defendant?
• Are these cases concerned with actions or statements?
• Does it make a difference if statement causes personal injury/damage to property
rather than economic loss?
• Does it make a difference if defendant is a business enterprise?
For a recent case on economic loss, see Cramaso LLP (Appellant) v Ogilvie-Grant, Earl of
Seafield and others (Respondents) (Scotland) [2014]

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Lecture 4: Negligence: Breach of the duty of care

Learning objectives:
On completion of this topic you will be able to:

• place the work in this lecture in the context of the foundation laid in the previous
lecture.
• Understand what a breach of duty is.
• Understand the means of measuring the standard of care.
• Have an insight in the way in which judges determine whether a defendant has fallen
below the standard of care.
• Look at factual situations and analyse whether a breach of the duty of care has
occurred.
• explain the case law in relation to the professional standard of care.
• Present a reasoned argument with particular reference to essay writing.

Reading:
Textbook Elliott & Quinn chapters 2, 6

Cases Blyth v Proprietors of the Birmingham Waterworks (1856) 11

Exch 781 and with it, McFarlane v Tayside Health Board [1999] 3
WLR 1301

Bolam v Friern Hospital Management Committee [1957] 1 WLR

582

Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

Montgomery v Lanarkshire NHS Board [2015] UKSC 11

Journal article P. Atiyah, ‘Res Ipsa Loquitur in England and Australia’, (1972) 35
MLR 337

Legislation Social Action, Responsibility and Heroism (SARAH) Act 2015,

Section 3

Once the claimant has proven that the defendant owed him/her a duty of care, the next
step to establish whether there is liability in negligence is to establish whether this duty has
been breached. Again the burden of proving this is on the claimant.

Standard of care
As we have seen, liability for negligence occurs when the defendant has a duty of care to
the claimant, has breached that duty and this breach is the cause of the claimant’s damage.
Establishing a breach of duty involves showing that the defendant’s conduct has fallen
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below the appropriate standard of care. What this standard is, is decided on a case-by-case
basis. The standard of care required is the standard which would have been adopted by the
‘reasonable person’ (in older cases called the ‘reasonable man’) who finds him/herself in the
same circumstances as the defendant. It is thus an objective test. The standard of the
reasonable man was first established in Blyth v Proprietors of the Birmingham Waterworks
(1856) 11 Exch 781. According to Lord Alderson:

‘Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate human affairs, would do, or doing something which
a prudent and reasonable man would not do.’

This statement has to be put in a modern context and it has to be taken into account that
defendants are nowadays likely to be corporations, without a human body but well
informed in the area of business/commercial activity in which they are engaged for the
purpose of making a profit. See McFarlane v Tayside Health Board [1999] 3 WLR 1301 for a
modern take on how we view the ‘reasonable man’.

Determining the standard of care

Factors that should be taken into account when determining the standard of care are:

• The foreseeability of harm: the reasonable person cannot be expected to take

precautions against risks that are not foreseeable: Roe v Minister of Health [1954] 2
QB 66; Glasgow Corporation v Muir [1943] AC 448.
• The magnitude of risk: where one person owes a duty to another, he/she must guard
against the risk of causing harm. The court will consider the likelihood that harm will
occur: See: Bolton v Stone [1951] AC 850 HL.
• The social utility of the activity: the defendant will not be held liable in negligence if
there is a justification for taking the risk in question. For example, where the
defendant acts to avoid a possibly worse event: Watt v Hertfordshire County Council
[1954] 1 WLR 835.
• The practicability of taking precautions: the reasonable person has to do what is
reasonable to avoid risks of harm and there is no obligation to go to extraordinary
lengths to do so, especially where the risk is small: Latimer v AEC Ltd [1953] AC 643;
Paris v Stepney Borough Council [1951] AC 367; Bolton v Stone [1951] AC 850 HL;
[2006] All ER (D) 79.
• Common practice: failure to conform to a common practice of taking safety
precautions can be evidence of negligence because it shows that the defendant has
not done what others in the community regarded as reasonable. However, it cannot
be regarded as conclusive evidence, because the claimant will still have to prove that
the failure was the cause of his/her loss. See: Brown v Rolls Royce Ltd [1960] 1 WLR
210. On the other hand, where a defendant can show that he/she has complied with
common practice as regards safety precautions, this can provide good evidence that
he/she was not negligent, although it is not conclusive because a particular conduct

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may be negligent despite it being common practice, see: Herald of Free Enterprise,
The Independent, 18/12/1987.

Special standards of care

The courts have often considered whether the standard of care is different according to the
type of person who owes the duty. Special rules apply to the following types of defendant:

• Children: the standard of care owed by a child is that which can be expected of a
reasonable child of the defendant’s own age: Mullin v Richards [1998] 1 All ER 920.
• Disabled persons: standard is that of the reasonable person suffering from the same
illness or disability.
• Motorists: in general, the same standard of care is expected of all motorists,
regardless of their age or experience, and this includes learner drivers: Nettleship v
Weston [1971] 2 QB 691.
• People engaged in sports owe the normal duty of reasonable care to both other
competitors (Condon v Basi [1985] 2 All ER 453) and spectators (Wooldridge v
Sumner [1963] 2 QB 43.
• People lacking specialist skills: the standard of care that is expected of a person
carrying out work that requires a specialist skill is that of a person reasonably
competent in the exercise of that skill:.
• People using equipment are taken to know how to use the equipment properly,
unless it is very specialist equipment requiring specialist skills.

Professional standard of care: Medical negligence cases

What is the standard of care expected of people who present themselves as having
specialist skills by having a particular trade or profession, like doctors? The test for the
standard of care expected of professionals is the so-called ‘Bolam test’, as laid down in the
case of Bolam v Friern Hospital Management Committee [1957] 1 WLR 582: the standard of
care expected of professionals is not that of the reasonable lay person, but that of a
reasonable person having the same skills as the defendant has. So a professional is
compared with his/her natural peer group: a surgeon should act as a reasonable surgeon
would, a lawyer as a reasonable lawyer and so on.

What the Bolam case also established was that a professional defendant will not be held
liable if his/her conduct accorded with one view of responsible common practice, even
though some other members of his/her profession hold another opinion. So, the standard
expected of professionals is that of a competent body of professional opinion, not of
professional opinion generally. So it could be a practice that is only accepted by a minority
of professionals.

In areas such as medicine and technology, the state of knowledge about a particular subject
may change rapidly, so that procedures and techniques which are approved as safe and
effective might very quickly become outdated, and even be discovered to be dangerous. The
case of Roe v Minister of Health [1954] 2 QB 66 established that, where this happens, a

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defendant is entitled to be judged according to the standards that were accepted at the
time when they acted. This is called the ‘state of the art’ argument which a defendant can
use as a defence to a claim. A recent case illustrates the principle: In Meiklejohn v St
George's Healthcare NHS Trust [2014] EWCA Civ 120, a claim for damages for medical
negligence had correctly failed where both diagnosis and treatment had been determined
appropriately by a consultant acting on the medical knowledge available at the time.

The Bolam test has caused controversy and was subject of much criticism, but the House of
Lords has approved the test in relation to various aspects of medical treatment. However,
the test appears to have been modified somewhat by the House of Lords in the case of
Bolitho v City and Hackney Health Authority [1997] 4 All ER 771. The claimant in this case
was able to produce an expert witness who said that the boy in question should have been
intubated, while the doctor in this case was able to produce an expert witness to say that
intubation would not have been the correct treatment. In this situation, the Bolam principle
had always been taken as suggesting that the doctor was therefore not negligent – other
medical opinion might disagree with what she did, but she could produce evidence that it
was a practice accepted by a responsible body of medical opinion. However, Lord Browne-
Wilkinson, with whom the other Law Lords agreed, thought differently. While agreeing that
the Bolam test was still the correct one to apply, he said that the court was not obliged to
hold that a doctor was not liable for negligence simply because some medical experts had
testified that the doctor’s action were in line with accepted practice. The court had to satisfy
itself that the medical expert’s opinion was reasonable, in that they had weighed up the
risks and benefits, and had a logical basis for their conclusion. He then went on to water
down this statement by suggesting that in most cases the fact that medical experts held a
particular view would in itself demonstrate its reasonableness, and that it would only be in
very rare cases that a court would reject such a view as unreasonable.

There are thus some signs that the Bolam test is no longer applied quite as strictly as before
and that the Bolitho case is being used to hold medical opinion to a proper standard of
reasonableness. For a recent case on breach and on the standard of care in clinical
negligence, see Montgomery v Lanarkshire NHS Board [2015] UKSC 11.

Also think about the impact of the Compensation Act 2006, read with (especially section 3
of) the Social Action, Responsibility and Heroism (SARAH) Act 2015.

WEEK 6 – READING WEEK

Remember that week 6 is reading week – there will be no lecture, seminar or workshop
for Tort. Take this time to revise what you have already covered, get your summaries up
to date and work on your assessments preparation.

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Lecture 5: Negligence: causation

Learning objectives:
On completion of this topic you will be able to:

• explain the criteria by which damage is recoverable in the tort of negligence with
particular reference to causation.
• explain the difference between causation in fact and causation in law.
• understand the means of establishing causation in fact and what test is used for
this.
• understand the means of establishing causation in law and the problem of
remoteness of damage.

Reading:
Textbook Elliott & Quinn ch 3

Cases Cork v Kirby MacLean Ltd [1952] 2 All ER 402

Sienkewicz v Greif (UK) Ltd [2011] UKSC 10

Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The

Wagon Mound (No 1) [1961] AC 388

Journal articles L. Hoffmann, ‘Causation’ (2005) 121 LQR 592

Act Compensation Act 2006

Introduction
A claimant suing someone for negligence must, as we have seen, prove, on the balance of
probabilities, that a duty of care exists; that the defendant acted in breach of this duty of
care; and that the breach caused the claimant to suffer damage as a result. The last part will
be the subject of this lecture: causation. The claimant has to prove that there is a direct link
between the act/omission of the defendant and the damage suffered.

Please note that causation is not only applicable to negligence but it is also appropriate in
other torts. Even if the claimant does not need to prove fault (the strict liability torts),
he/she must still show a direct link between the defendant’s acts or omissions and the
damage suffered.

Causation will be measured in two ways:

• Causation in fact or the ‘but for’ test: that the defendant’s negligent act or
omission did in fact cause the claimant’s damage. This test is the starting point
for determining causation. Question here is whether what the defendant did (or

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omitted to do) was the factual cause of the claimant’s loss or whether it was
caused by something else.
• Causation in law/remoteness of damage: that the damage is still sufficiently
approximate in law to hold the defendant liable to compensate the victim.
Question here is whether, in certain cases, although the loss suffered by the
claimant is the factual result of the defendant’s actions, the law should
nevertheless say that the defendant is not liable because the loss is too ‘remote’:
question is whether the damage is too unusual or too far removed a
consequence of the act or omission of the defendant.

Causation in fact
The ‘but for’ test: to establish causation in fact the test is to ask whether the claimant would
not have suffered the damage but for the defendant’s negligent act or omission. See Lord
Denning in the case of Cork v Kirby MacLean Ltd [1952] 2 All ER 402:

‘…if the damage would not have happened but for a particular fault, then that fault is the
cause of the damage, if it would have happened just the same, fault or no fault, the fault is not
the cause of the damage.’

Another example of the ‘but for’ test is Barnet v Kensington & Chelsea Hospital
Management Committee [1969] 1 QB 428

Problems with the ‘but for’ test occur where the claimant’s damage is the result of more
than one cause. In such cases it is difficult to identify the precise cause of the damage and
the case law is often quite inconsistent when trying to deal with this. The situation can be
summarised as follows:

• Multiple causes can arise generally in one of two ways: the causes can be
concurrent (where they happen at the same or almost the same time) or
consecutive (where one happens after the other).
• Multiple causes may lead to difficulties to prove causation. The courts will not
impose liability where the cause is uncertain, for example where the cause could
be any one or more of a number of causes: Wilsher v Essex Health Authority
[1986] 3 All ER 801 (CA), [1988] 1 All ER 871 (HL).
• Courts appear to be very reluctant to find liability if the claimant has suffered a
‘loss of chance’ and have rejected this in medical negligence cases: Hotson v East
Berkshire Health Authority [1987] 1 All ER 210 and Gregg v Scott [2005] 2 WLR
268.
• Courts may decide a multiple causes case by asking whether the negligence of
the defendant has ‘materially increased the risk’ of damage. If it has, the
defendant should be held liable for damages: McGhee v National Coal Board
[1973] 3 All ER 1008; Bolitho v City and Hackney Health Authority [1997] 4 All ER
771; Bailey v Ministry of Defence [2008] EWCA Civ 883.
• Where there are multiple consecutive causes the liability remains generally with
the first defendant unless the later cause increased the damage. The ‘but for’

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test will be applied to the original defendant: Performance Cars v Abraham

[1962] 1 QB 33; but see Baker v Willoughby [1970] AC 467; and Jobling v
Associated Dairies [1982] AC 794. For recent cases see Gray v Thames Trains
[2009] UKHL 33.
• Courts are generally careful not to under-compensate or over-compensate the
claimant.
• Where a number of defendants all contribute to the risk of harm no distinction
should be drawn between creating a material risk of causing the harm and
materially increasing the risk of harm in determining liability. Fairchild v
Glenhaven Funeral Services and Others and other cases [2003] 1 AC 32 HL (This
case concerned mesothelioma, a form of cancer caused by exposure to
asbestos). However, see also: Barker v Corus UK Ltd [2006] 2 AC 572 (reversed by
the Compensation Act 2006). See on asbestos also: the Supreme Court decision
in Sienkiewicz v Greif (UK) Ltd [2011] 2 A.C. 229.
• Considerations of justice and fairness and policy considerations do play a role in
the courts’ decisions: Fairchild v Glenhaven Funeral Services and Others and
other cases [2003] 1 AC 32 HL; Barker v Corus UK Ltd [2006] AC 572.

An interesting recent case illustrating how causation is handled by the courts is Siddiqui v
University of Oxford [2018] EWHC 184 (QB), where the claimant sued the defendant
university for breach of duty in its teaching, alleging that such breach caused him to obtain a
lower classification degree than anticipated, which in turn caused his failure to obtain
admission to top US law schools and to pursue a successful legal career. This case illustrates
how the various elements of negligence are weighed by the court. Whilst there was a duty
of care towards the student, the court held that there was no breach of duty of care, as
there was no indication that the teaching was below standard. Generally speaking,
underachievement by an individual was not of itself evidence of negligent teaching (see
paras 69-76, paras 87-90 of judgment). Given that there was no breach, causation did not
have to be addressed but the court did look at the difficulties to prove causation in this case,
and also at the possibility of psychiatric injury being caused. There was also no evidence
that his failure to obtain a place at top US law schools arose from the quality of his degree
(more likely from his failure in the admission tests.)

Asbestos/Mesothelioma cases – special regime?

We looked at Fairchild v Glenhaven Funeral Services and Others and other cases [2003] 1 AC
32 HL above under multiple possible defendants. But this case is somewhat special as it
concerned mesothelioma, a form of cancer caused by exposure to asbestos. It ruled that in
these circumstances, given the scientific impossibility (at the time but also today) of
determining precisely when and by which asbestos fibre/s the cancer was caused, ALL of the
employers are to be held liable jointly and severally. (Make sure you understand what this
term means!). However, shortly afterward Barker v Corus UK Ltd [2006] 2 AC 572 held that
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blame should be apportioned (proportional liability). There was an outcry as this meant in
reality, that several asbestos cancer claimants were left with no compensation, and so
Barker was reversed by the Compensation Act 2006. (See on asbestos also: Brett v
University of Reading [2007] EWCA Civ 88; Pinder v Cape Plc [2006] EWHC 3630 (QB) ) The
Supreme Court decision in Sienkiewicz v Greif (UK) Ltd [2011] 2 A.C. 229 clarifies, explains
and applies Fairchild.

Recently, the courts expanded the above in Bussey v 00654701 Ltd (formerly Anglia
Heating Ltd) [2018] EWCA Civ 243; and re. agency workers, Heynike (executor of the Estate
of David Hill, deceased) v 00222648 Limited (formerly Birlec Limited), Ministry of Defence,
Special Metals Wiggin Limited [2018] EWHC 303 (QB).

See also the Mesothelioma Act 2014, which established the Diffuse Mesothelioma Payment
Scheme, which allows parties who contracted the disease after 25 July 2012, but who have
no one to sue to claim from a compensation fund paid for by levies from the insurance
industry.

Novus Actus interveniens

The chain of causation can be broken by an intervening act: a novus actus interveniens and
this is therefore an effective defence for the defendant against a claim for negligence. If the
Court accepts the intervening act as the true cause of the claimant’s damage, then the
defendant is not held liable, even if he/she has been negligent. If the court does not accept
the intervening act as the true cause of the damage, than the chain is unbroken and the
defendant is held liable, see: Kirkham v Chief Constable of Greater Manchester [1990] 3 All
ER 882. So an intervening act can make a negligent defendant not liable for damages he/she
has caused or for damages caused by the second event. But there will be no break in the
chain of causation where the intervening event is reasonable and foreseeable. The question
is thus whether the intervening act has broken the chain of causation. Pearson Education
Ltd v The Charter Partnership Ltd [2007] EWCA Civ 130.

There are three categories of intervening acts:

1. An intervening act of the claimant: The plea is then that the claimant him/herself is
responsible for his/her own damage. This is similar to what is called ‘contributory
negligence’. The test applied by the courts in these cases is whether the claimant
was acting reasonably in the circumstances. Compare: McKew v Holland & Hannen &
Cubbits (Scotland) Ltd [1969] 3 All ER 1621 with Wieland v Cyril Lord Carpets Ltd
[1969] 3 All ER 1006. Note that the claimant may be contributorily negligent where
his/her conduct did not break the chain of causation. See Razumas v Ministry of
Justice 2018 para. 202 (claimant’s deliberate failure to seek medical attention during
the periods in which he was not a prisoner amounted to an intervening cause.)
2. An intervening act of nature: the defendant might not be held liable if he/she can
show that the act of nature is unforeseeable and independent of his/her own
negligence: Carslogie Steamship Co v Royal Norwegian Government [1952] AC 292.

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3. An intervening act of a third party: The defendant must show that the act of the
third party also caused the claimant damage and that the act was of such magnitude
that it did in fact break the chain of causation: Knightley v Johns [1982] 1 All ER 851;
Ward v Cannock Chase District Council [1986] 3 All ER 537; Lamb v Camden Borough
Council [1981] QB 625; Smith v Littlewoods [1987] AC 241; and, Rouse v Squires
[1973 QB 889.

Causation in law – remoteness of damage

This is the second element of proof in negligence. If there is causation in fact and according
to the ‘but for’ test the defendant has caused the damage by a breach of duty, damages
might still be denied to the claimant if the damages suffered are too remote a consequence
of the defendants breach. The test is a question of law rather than fact and, here again,
policy considerations play a part in the court’s considerations.

Until 1961, the test of remoteness used by the courts was whether the damage was a direct
consequence of the breach of duty. This was regardless of how foreseeable this loss was: Re
Polemis and Furness, Withy & Co [1921] 3 KB 560. The test was changed in Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound (No 1) [1961] AC 388:
the defendant will only be liable if the damage was a reasonably foreseeable consequence
of the breach of duty. Note that this case disapproved the Re Polemis test, however, it
remains good law in cases of intentional torts, e.g. trespass to the person.

In order for liability to exist, what needs to be reasonably foreseeable for the purpose of this
test is a broad, general type of damage. But:

• the actual type of damage need not have been foreseen: Bradford v Robinson
Rentals [1967]1 All ER 267.
• the precise consequences of the negligent act or omission need not have been
foreseen: Jolley v Sutton London BC [2000] 3 All ER 409;.
• the full extent of the damage need not have been foreseen: Vacwell Engineering
Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88.
Make sure that you understand how the so-called ‘thin skull’ rule or ‘egg-shell skull’ rule
applies. The rule states that if damage is caused in a foreseeable way the defendant is liable
for the full extent of the damage even if this is exceptional e.g. the claimant is suffering from
cardiac failure or the property damaged is very valuable. This means that the defendant will
have to take the claimant how he/she finds him/her and that he/she will be liable for the
full extent of the injuries suffered by the claimant: Paris v Stepney Borough Council [1951]
AC 367. The thin skull rule can also apply where the harm is psychiatric damage: Walker v
Northumberland CC [1995] 1 All ER 737; or where the expected damage is physical injury but
the claimant suffers shock instead and has a particular sensitivity. It can also apply to
economic weakness.

On the egg-shell skull rule see also: Smith v Leech Brain & Co Ltd [1962] 2 QB 405 and
Robinson v Post Office [1974] 2 All ER 737.

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On whether the claimant taking his/her own life breaks the chain of causation see: Reeves v
Metropolitan Police Commissioner [2000] 1 AC 360.

Proving negligence
The burden of proof in negligence case rests with the claimant. He/she has to prove all three
elements of negligence: that the defendant had a duty of care towards the claimant, that
the defendant has breached this duty, and that this breach caused the claimant damage
which was caused by the breach and which was a reasonably foreseeable consequence of
the breach by the defendant. This can be quite difficult, especially in medical negligence
cases. In some rare circumstances special rules will help in discharging the burden of proof.
For example, under S 11 of the Civil Evidence Act 1968, a defendant’s criminal conviction is
evidence in a subsequent civil case based on the same facts.

Another way is the doctrine of res ipsa loquitur. This means literally ‘the thing speaks for
itself’. Where this rule applies, the court will draw an inference that the defendant has been
negligent without requiring the claimant to bring evidence about the precise way in which
the negligence occurred. Of course, the defendant can bring evidence that he/she was not
negligent. The case of Scott v London and St Katherine’s Dock Co (1865) 3 H & C 596 is a
good example of the use of this doctrine and it also determined clearly in which
circumstances the doctrine of res ipsa loquitur can be used:

1. At all material times the cause of the accident must have been in the control of the
defendant. If the defendant was not in control of the situation, he/she cannot be held to
have caused the damage and thus cannot be held liable
2. The incident must be of a type that could only have been caused by negligence, in other
words, that could only happen if no proper care was taken. The Scott case above is a
good example of this.
3. The cause of the incident is not known and there is no other obvious explanation for the
incident.

The courts generally seem to take a broader view of remoteness in personal injury cases
than they do with property damage, although this is not always the case. Broadly speaking,
if the claimant can establish that personal injury was reasonably foreseeable as a real risk,
the damage will be held not to be too remote. The courts will also use policy reasons in
determining whether an outcome is reasonably foreseeable.

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Lecture 6: Negligence: Defences

Learning objectives:
On completion of this topic you will be able to:

• identify the defences against a claim of negligence;

• suggest possible remedies for a successful claim of negligence;
• show improvement in your problem solving and opinion writing skills.

Reading:
Textbook Elliott & Quinn ch 3

Cases Stermer v Lawson [1977] 5 W.W.R. 628

Contrast Morris v Murray [1991] 2 Q.B. 6 to Dann v Hamilton

[1939] 1 KB 509

Froom v Butcher [1976] QB 286

Houngan v Allen [2014] UKSC 47

Journal articles P. Davies, ‘The illegality defence: turning back the clock?’ (2010)
4 Conv 282

A. J. E Jaffey, ‘Volenti Non Fit Injuria’, (1985) 44 CLJ 87

M. Porter, ‘Blame the Victim’ (2009) 159 NLJ 337

Defences
The following defences can be used against a claim for negligence:

• Volenti non fit injuria

• Contributory negligence
• Illegality

Consent (Volenti non fit injuria)

This defence means that the claimant has voluntarily accepted the risk of harm. This is a
complete defence, which means that if it is successful it defeats the claim completely and no
damages can be recovered.

Two situations can be distinguished in which the volenti defence can be used:

• Intentional infliction of harm, which is negatived by the consent of the claimant.

Signing a medical consent form before an operation is an example.

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• A negligent infliction of harm, where the claimant voluntarily accepts the risk of
injury.

It must be noted that the volenti defence can only play a role once it has been shown that
the defendant committed a tort. If the defendant has not committed a tort, volenti is not an
issue: Wooldridge v Sumner [1963] 2 QB 43.

For a successful claim of volenti the defendant will have to show:

1. That the claimant knew of the precise risk involved. The test here is subjective: it is
not what the claimant ought to have known, but what he/she actually knew. If the
claimant was not aware of the risk, the defence will fail. See: Stermer v Lawson
(1977) 79 DLR (3d) 366.
2. Exercise of free choice by the claimant. See: Smith v Baker [1891] AC 325. For the
situation between employer and employee, see: ICI v Shatwell [1965] AC 656.
3. A voluntary acceptance of the risk. The Smith v Baker and the ICI v Shatwell cases are
good examples.
These three elements are all interrelated and overlap.

In case of sporting events, the rule is that ‘the participants may be held to have accepted
the risks which are inherent in that sport … but this does not eliminate all duty of care of the
one participant to the other’: Rootes v Shelton [1968] ALR 33; Collett v Smith & Another
[2008] EWHC 1962. The same rule applies to spectators.

The defence of volenti will operate where the parties have reached an express agreement
that the claimant will voluntarily assume the risk of harm and this agreement is made before
the negligent act. This is subject to any statutory restrictions placed on the parties’ freedom
to agree. The Unfair Contract Terms Act 1977 or the Consumer Rights Act 2015 could, for
example, be applicable. The courts are, however, much more reluctant to imply an
agreement that the claimant will accept the risk of injury than to imply an agreement that
he/she will accept the risk of property damage. This reluctance in relation to injury can be
seen in cases where the claimant has accepted a lift with the defendant who is incapable of
driving. In these cases, the claimant can be said to be aware of the risk but not that he
he/she has agreed to the act of negligence causing the injury: Dann v Hamilton [1939] 1 KB
509 and Nettleship v Weston [1971] 2 QB 691. In these cases the courts will not accept a
defence of volenti but a defence of contributory negligence might well succeed.

Contributory negligence
This defence will apply where the damage suffered by the claimant was caused partly by
his/her own fault and partly by the fault of the defendant. For this defence to be successful
the defendant must prove that the claimant failed to take reasonable care for his/her own
safety and that this failure was the cause of his/her own damage. The defence of
contributory negligence may be used to reduce the damages by the extent to which the

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claimant was responsible for his/her own loss or injury. See also the Law Reform
(Contributory Negligence) Act 1945 and Lecture 19 in this Handbook.

The defendant must show that the claimant has been negligent as well and is, therefore,
partly to blame. This means that he/she has to show that the behaviour of the claimant
meant that harm was reasonably foreseeable. Therefore, for a successful claim the
defendant must prove two things:

1. Fault on the part of the claimant (that he failed to take reasonable care for his/her
own safety).
2. The negligence by the claimant (a failure to take reasonable care) was a cause of the
damage. The ‘but for’ test applies here.
In apportioning damages the courts consider the extent to which the claimant’s negligence
and the defendant’s negligence caused the damage to the claimant and will also determine
where the blame lies. The test for blameworthiness is measured against the standard of the
reasonable man. See Pitt v Hunt [1991] 1 QB 24.

A claimant may be contributorily negligent in failing to take steps to avoid the consequences
of the defendant’s negligence, e.g. not wearing a seat belt: Froom v Butcher [1975] 3 All ER
520 (damages reduced by 20%); but see: Gawler v Raettig [2007] EWHC 373.

The following case illustrates how the court apportions damages where there is
contributory negligence: Wheeler v Chief Constable of Gloucestershire [2013] EWCA Civ
1791. The court of appeal held that the judge at first instance had been entitled to
apportion blame at 50:50 in a negligence claim following a road traffic accident where one
party had failed to stop or keep a proper look out and the other had been driving 25mph
faster than the speed limit. For an interesting (if tragic) example of apportionment of
damages in contributory negligence, perhaps McHugh v Okai-Koi [2017] EWHC 1346 (QB)

For a case where foreseeability, remoteness, a possible break in the chain of causation,
volenti and contributory negligence were all at issue see: Corr v IBC Vehicles Ltd [2008] 1 AC
884.

Illegality (ex turpi causa non oritur actio)

Loosely translated, this defence says that ‘from a bad cause, no action can arise’, or that no
court action can be sustained on the basis of an illegal action. Therefore, if the defendant
can prove that the claimant’s damage was caused during the commission of something
illegal, this could serve as a defence against a claim of negligence.

An example of a successful defence of illegality to a claim in negligence can be found in Gray

v Thames Trains Ltd [2009] 1 AC 1339. See also Singularis Holdings Ltd (In Official
Liquidation) v Daiwa Capital Markets Europe Ltd [2018] EWCA Civ 84 and Blake v Croasdale
[2017] EWHC 1336 (QB).

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This is an equitable defence, which means that even if the defendant has proven the
defence in all possible ways, it is still up to the court whether or not it will allow the defence
(unlike with common law defences, where the court has no choice but to grant the defence
if it is proved.) For a recent High Court case on this defence see Beaumont v Ferrer [2014]
EWHC 2398.

Also read Delaney v Pickett [2011] EWCA Civ 1532 to see what the Court of Appeal had to
say about a claim in negligence where the claimant was injured in a motor vehicle accident,
but caught with a large amount of cannabis in his jacket.

Another interesting case in this topic is Joyce v O'Brien [2013] EWCA Civ 546. Do you agree
with the Court’s decision?

Also see Jetivia SA v Bilta (UK) Ltd [2015] UKSC 23 and Hounga v Allen [2014] UKSC 47.

We look at the defence of illegality in more detail in lecture 19 below.

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Lecture 7: Personal Liability and Vicarious Liability

Learning objectives:
On completion of this topic you will be able to:

• Explain employer’s personal liability and distinguish it from vicarious liability.

• Describe the relationships which give rise to vicarious liability, identify the
different tests used to establish them, and analyse the case law on the meaning
of ‘course of employment’.
• Answer elementary problems in tort.

Reading:
Textbook Elliott & Quinn chapters 7, 17 and 18

Cases Wilsons and Clyde Coal Company v English [1938] AC 57

Lister v Hesley Hall Ltd [2002] 2 All ER 769

Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25

Journal articles C. Pawlowska, C. ‘Vicarious liability is now more about value

judgment than law’ (2012) 156 S.J. 11, 12-13

Employers’ (Operational) Liability v Employers’ Vicarious Liability

Before we start on the various nominate torts, we will look at a principle that you will
encounter throughout the law of tort, namely that of vicarious liability. This is also
sometimes called secondary liability. We look at this concept at the start as you always
have to remember that, in addition to holding the person who committed the tort (the
tortfeasor) personally or primarily liable, in certain circumstances somebody else can also be
held liable on a secondary or vicarious basis. In this lecture we look at how this happens.
We also look at the employment relationship, because this is a very good example of
instances when you get both primary and secondary (vicarious) liability.

Note that:
• If A commits a tort, s/he is personally liable.
• If A employs B to commit a tort, or is taken to authorise B to commit a tort, A is
personally liable.
• If A employs B and B commits a tort in the course of his/her employment, A can be
vicariously liable (see below for conditions), while B is personally liable.

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Employers’ personal / primary / operational liability

An employer can thus be personally or vicariously liable in tort. Vicarious liability is a means
of imposing liability for a tort onto a party other than the party causing the tort. It is
important to distinguish clearly between vicarious (secondary) and personal (primary)
liability. Vicarious liability arises if the tortfeasor is an employee or an agent or a partner of
the defendant.

Personal liability relates to the employer’s liability for the management of his/her
organisation including the safety of the employees. The principle of employer’s vicarious
liability applies whether or not the claimant is an employee: see e.g. Carmarthenshire
County Council v Lewis [1955] AC 549; Cassidy v Ministry of Health [1951] 1 All ER 574.
However courts especially developed employers’ personal liability to employees in the
twentieth century to avoid the doctrine of common employment, which prevented an
employee from claiming against his/her employer in respect of a fellow employee’s
negligence (Hutchinson v York, Newcastle and Berwick Railway Company (1850) 5 Ex 343
provides an example of how the doctrine of common employment worked.) It was also
difficult for an injured employee to establish liability where the employer had exercised
reasonable care in delegating the duty to another employee, and worthless to sue a fellow
worker. Thus the employer was made personally responsible at law to take care for the
safety of employees.

Personal liability thus relates to the employer's responsibility for the management of its
organisation including the safety of its employees. Recently the Court of Appeal held that a
parent company also has a duty of care towards the employees (or those affected by the
actions) of its subsidiaries: Chandler v Cape Plc [2012] EWCA Civ 525. Re. agency workers
see Heynike v 00222648 Ltd (formerly Birlec Ltd) [2018] EWHC 303 (QBD) (aka Re Hill
(Deceased)).

Non delegable duty

The duty is ‘non-delegable’ i.e. ‘a failure to perform such a duty is the employer's personal
negligence ...whether he performs or can perform it himself, or whether he does not perform
it or cannot perform it save by servants or agents…’ per Lord Wright in Wilsons and Clyde
Coal Co v English [1938] AC 57– where the owners were held liable even though they had
delegated the safety of the pit to a qualified manager. In McDermid v Nash Dredging And
Reclamation Co Ltd [1987] AC 906, Lord Brandon emphasised that the employer’s duty is
personal or non-delegable, in that if it is not performed, it is no defence for the employer to
show that he delegated its performance to another person, whether his servant or not his
servant, the employer remains liable for non-performance of the duty. More recently in
Woodland v Swimming Teachers Association also known as: Woodland v Essex CC [2013]
UKSC 66 the Supreme Court set out the criteria which would give rise to the existence of a
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non-delegable duty of care; in the instant case, the local education authority had owed a
non-delegable duty of care to ensure that reasonable care was taken to secure the safety of
a pupil who was attending a swimming lesson conducted through an independent
contractor. (See also our discussion of local authorities’ and other public bodies’ liability
and the difficulties the courts face with holding them liable in negligence, under Unit 4
below.)

Four parts of the duty, from Wilsons v Clyde Coal

Lord Wright, in Wilsons and Clyde Coal Co v English [1938] AC 57 held that the duty of the
employer was to take care in the provision of:

1. Competent staff as work colleagues (see Hudson v Ridge Manufacturing Co [1957] 2 QB

348). This includes the selection of competent employees and giving those employees
proper instructions and supervision.
2. Adequate plant and equipment. This includes not only provision of the necessary
equipment, but also inspection, maintenance and proper safety protection: (see Davie v
New Merton Board Mills Ltd [1959] 2 WLR 331 and Employer’s Liability (Defective
Equipment) Act 1969). The effect of Davie was reversed by S.1 (1) of the Employers’
Liability (Defective Equipment) Act 1969, which enables an employee to sue his/her
employer if injured by equipment that is defective as a result of the manufacturer's
negligence. Equipment is defined by this Act as including any plant and machinery,
vehicle, aircraft and clothing. In Coltman v Bibby Tankers Ltd [1988] AC 276, a ship was
held to fall under ‘plant and equipment’ under the Act. See also the Provision and Use of
Work Equipment Regulations 1992 which impose strict criminal and civil liability and
requires employers, in addition to other protective measures, to train employees in the
safe use of equipment.
3. A proper system of work and effective supervision. In Speed v Thomas Swift & Co Ltd
[1943] KB 557, Lord Green described ‘system’ as including ‘... the physical lay-out of the
job, the setting of the stage, so to speak, the sequence in which the work is to be carried
out, the provision in proper cases of warnings and notices, and the issue of special
instructions.’ Trade practices, i.e. the general practice of a particular trade will be
relevant, but not conclusive in deciding whether or not the duty has been breached: see
General Cleaning Contractors Ltd v Christmas [1953] AC 180. This case also shows that
the duties of employers and occupiers can overlap. A similar decision was reached in
King v Smith [1995] ICR 339.
4. a safe place of work (see Baker v Quantum Clothing Group Ltd [2011] UKSC 17.
Latimer v AEC Ltd [1953] AC 643 and Wilson v Tyneside Window Cleaning Co [1958] 2 QB
110)

The common law duty of care of an employer for the safety of his employee is not a strict
liability, fault has to be proved and even foreseeable damage sometimes does not give rise
to liability when an employer has done all that is reasonably required in the circumstances,

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see Latimer v AEC [1953] AC 643: See also: Daniels v Commissioner of Police of the Metropolis
[2006] EWHC 1622. See also Johnson v Warburtons Ltd [2014] EWCA Civ 258: A company
was not liable for the injuries sustained by an employee when he slipped down some steps
as he was leaving the cargo area of a lorry. Despite the fact that there was no purpose-built
handrail attached to the steps, there had been no need for the company to carry out a risk
assessment or to provide training to its employees on how to use the steps because the
need to take care was obvious.

Most of the cases turn on issues of physical danger, but in Walker v Northumberland County
Council [1995] 1All ER 737 an area social services officer successfully claimed damages for
psychiatric injury caused by the stress of his workload. Compare this case with White v Chief
Constable of South Yorkshire [1999] 1 All ER 1. Because of the increase in litigation involving
cases of stress at work since the decision in Walker, the Court of Appeal set out guidelines
to determine the nature of the duty imposed on employers in cases of excessive stress in
the workplace in Hatton v Sutherland [2002] 2 All ER 1.

All four duties of an employer to its employees overlap and a claim against an employer will
often contain elements of more than one duty. On top of this, employers have a general
common law duty to protect the health – both physical and psychiatric (see Walker above) -
and safety of the worker. And, employers also have statutory duties, for example under the
Health and Safety at Work Act 1974. The duties above might also overlap with these
statutory duties. (See lecture 16 below, where we look at breach of statutory duty – you
need to understand how this works as it forms an integral part of potential personal injury
claims by workers against their employers. Also note that up to recently there was a
presumption of actionability for breach of health and safety regulations. That is now
reversed because of a 2013 amendment to s.47(2) of the Health and Safety at Work etc. Act
1974. What do you think will be the implication for employers and employees?)

Employers’ vicarious Liability

The case of Priestley v Fowler (1837) 3 M & W 1, introduced the doctrine of common
employment. According to this one employee could not sue his employer for a tort
committed against him/her by another employee. This rule caused hardship to employees
(as illustrated in Hutchinson v York, Newcastle and Berwick Railway Company (1850) 5 Ex
343) until abolished by the Law Reform (Personal Injuries) Act 1948. Today an employer can
be vicariously liable whether the victim is a fellow employee of the wrongdoer or a member
of the public.

Vicarious liability is the liability that employer A incurs for the tort committed by
employee B against C (whether fellow employee or third party), even though A has not
expressly instructed B to do the wrongful act. In situations of vicarious liability, C can sue
B and/or A (i.e. liability is joint). In the context of the employment relationship, vicarious

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liability is liability of an employer (master) for the wrongdoings of the employee (servant)
committed in the course of employment.

Vicarious liability can be imposed on an "innocent" employer, so no fault on the part of the
employer is required, but in some cases there is an element of fault on the part of the
employer as well as the employee. In these latter cases, personal liability and vicarious
liability are often difficult to distinguish. Very occasionally a court will apportion blame
between the worker and the employer, but normally only if the "worker" is a professional
person, e.g. a doctor. Thus, in Cassidy v Ministry of Health [1951] 1 All ER 574, Lord Denning
took the view that it did not really matter whether the hospital staff were employees or not.
The hospital was under a personal duty to treat patients correctly and so would have been
liable for failing to do so in any event. See also Majrowski v Guy’s and St Thomas’s NHS Trust
[2006] UKHL 34.

There are three conditions for vicarious liability of an employer:

1. The worker must have the status of employee, and

2. the employee must have committed a tort (this can be any type of tort). The most
common tort giving rise to vicarious liability is negligence (e.g. as in Rose v Plenty
[1976] 1 WLR 141) but it could be trespass to goods (Morris v C W Martin & Sons Ltd
[1966] 1 QB 716) or trespass to person (Poland v John Parr & Sons [1927] 1 KB 236);
and
3. the employee was acting in the course of employment.

Status of employee:
Since, as a general rule, employers are not liable for torts committed by their independent
contractors it is critical to determine the legal definition of an employee. Under the old
control test where the employer could only control what was to be done, and not how it was
to be done, the person doing the work would not be viewed as an employee but as an
independent contractor: see Honeywill & Stein v Larkin [1934] 1 KB 191 and for a more
recent example, Hawley v Luminar Leisure Ltd [2006] EWCA Civ 18. The control test does
not work well for people who, on a common sense analysis, would be seen as employees but
who had a high degree of control over how they did their work, e.g. brain surgeons. The
development of the ‘integration’ test, which took into account the extent to which the worker
was integrated into the business in assessing whether or not he/she was an employee is also of
limited use because, for example, it does not fully take control into account: see Stevenson
Jordan & Harrison v Macdonald & Evans [1952] 1 TLR 101.
After reviewing the case law, MacKenna J suggested, in the case of Ready-Mixed Concrete
(South East) Ltd v Minister of Pensions and National Insurance [1965] 2 QB 497, the
economic reality (or multiple) test which takes into account all the key relevant factors,
including control and integration. He explained that the tests to be applied in a given
situation to determine an employee status are:
• The servant agrees that, in consideration of a wage or other remuneration, he
will provide his own work and skill in the performance of some service for his
master.

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• S/he agrees, expressly or impliedly, that in the performance of that service he will
be subject to the other’s control in a sufficient degree to make that other master.
• The other provisions of the contract are consistent with it being a contract of
service.

Vicarious liability in ‘relationships akin to employment’

Similar principles of vicarious liability apply in other relationships e.g. principal and agent
(See Ormrod v Crossville Motor Services Ltd [1953] 1 WLR 1120. A recent development is
that English law has now recognised that there are relationships ‘akin’ to employment
where it would be fair and just to impose vicarious liability: See in this regard cases arising
from scandals involving priests abusing boys they taught, such as Various Claimants v the
Catholic Child Welfare Society [2012] UKSC 56 and JGE (or E) v English Province of our Lady
of Charity [2012] EWCA Civ 938.

See also the recent decision in Various Claimants v Barclays Bank Plc [2017] EWHC 1929
(QB). In this case 126 claims for damages were lodged against the bank arising from alleged
sexual assault. The claimants were job applicants and existing employees of the bank. As
part of the bank's application process they were required to attend a medical assessment
with a doctor nominated by the bank. The assessments took place between 1967 and 1984
at a consulting room in the doctor's home. The claimants alleged that he sexually assaulted
them by inappropriate breast, vagina or anal examinations. The doctor later died. A 2013
police investigation into the cases of 48 victims found sufficient evidence to prosecute, had
the doctor been alive. The court was required to determine whether the bank was
vicariously liable for assaults committed by the doctor. The bank asserted that the doctor
was not an employee but an independent contractor, and it was therefore not vicariously
liable. It also argued that his examinations were not part of the bank's business and he was
not integrated into the bank.

The court found in favour of the claimants, by applying the test of looking at the reality of
the relationship between the person causing the harm and the organisation for which they
worked, in particular the control mechanism and purpose of the organisation. This case is
currently subject to appeal.

It is important to note that assessing whether someone is an employee or not is still an art
form rather than an exact science. It involves applying the above factors and seeing how
they balance out. Of course, in some problem scenarios you may not have all the relevant
information to come down one way or another in which case you can say as much and
suggest what the evidence that does exist, points toward.

Course of employment:
The “Salmond test”: Sir John Salmond, Torts (1st edn, 1907), at 83, devised the following
test to determine whether a tort was committed within the course and scope of
employment: “It is deemed to be so done if it is either (a) a wrongful act authorised by the
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master, or (b) a wrongful and unauthorised mode of doing some act authorised by the
master.” Leg (a) is uncontroversial, but (b) gives rise to some problems. The precise
meaning of this element can thus only be understood by reference to case law. In
particular, a broader and context-specific test was enunciated by the House of Lords in Lister
v Hesley Hall Ltd [2001] 2 All ER 769 for determining whether an employee committed an
act in the course of employment so as to make the employer vicariously liable for an
employee’s wrongful conduct. The main thrust of the Lister test is to ask the question
whether the employee’s tort was so closely connected with his employment that it would
be fair and just to hold the employer vicariously liable. See also: Gravil v Carroll [2008] All ER
234.

Compare this, for example, with the earlier, more restrictive approach in Rose v Plenty
[1976] 1 WLR 141, e.g. an activity would be in the course of employment if it was authorised
by the master, but was done wrongfully and in an unauthorised manner for the benefit of
the employer’s business. Lister seems to provide a flexible approach to resolving problems
in a variety of vicarious liability situations.

Note the following points about an employee embarking on a ‘frolic of their

own’:
• Negligent conduct cases concerned with express prohibition as in Rose v Plenty or
Century Insurance v Northern Ireland Regional Transport Board [1942] AC 509, where
driver of a petrol lorry lit a cigarette and negligently threw away a lighted match whilst
delivering petrol, causing an explosion and fire. Viscount Simon LC held that even though
the act of smoking was not part of the performance of the job, it was an incidental
activity whilst serving his master under a contract to deliver petrol and therefore it was
within the course of employment.
• A minor deviation from doing one's job might still be in the course of employment e.g. a
driver taking a minor detour from his normal route to eat lunch at home. However, if it
is not minor it will be treated as ‘a frolic of the employee’s own’ (these words are from
Joel v Morrison (1834) 6 C & P 501) and therefore outside the scope of employment
(Harvey v RG O’Dell [1958] 2 QB 78. Contrast this with Hilton v Thomas Burton (Rhodes)
Ltd [1961] 1 WLR 705 See also Joel v Morrison (1834) 6 C & P 501; Storey v Ashton (1869)
LR 4 QB 476 and Smith v Stages [1989] 2 WLR 529.
• Vicarious liability can also arise for intentional torts or wrongdoings e.g. trespass to the
person as in Lister v Hesley Hall, above.
In Warren v Henleys [1948] 2 All ER 935, the employer was not vicariously liable when an
irate petrol-pump attendant out of personal vengeance punched a motorist who was
apparently trying to avoid payment. However the reasoning in Lister (i.e. the ‘close
connection test) was applied in Mattis v Pollock [2003] 1 WLR 2158 where a ‘bouncer’
stabbed the claimant outside the defendant’s club – contrast this with the old case of
Poland v Parr [1927] 1 KB 236. Criminal or fraudulent conduct can also fall under
vicarious liability as in Morris v C W Martin & Sons Ltd [1966] 1 QB 716. The ‘close
connection’ test has also been applied in vicarious liability decisions outside of the clear-
cut employer/employee situation. For example, in a series of cases dealing with a very

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topical issue, sexual abuse by clergy, the close connection test indicated liability - see E v
English Province of Our Lady of Charity and another [2013] 2 W.L.R. 958 and Various
Claimants v Institute of the Brothers of the Christian Schools [2012] 3 W.L.R. 1319.
• In Weddall v Barchester Healthcare Ltd [2012] EWCA Civ 25 you will find a very good
explanation by the Court of Appeal of when an employee will be seen as engaging in a
‘frolic of his own’ (and the employer NOT held liable) versus when he/she will be seen as
being busy in the course and scope of his/her employment (in which case the employer
CAN be held liable.)

Lending or hiring an employee:

When an employer lends (or hires) her/his employee to another employer a question may
arise concerning whose employee the employee is. Is s/he the employee of the employer
s/he is working for at the time or is s/he the employee of the original employer who hired
her/him out to another? It is a question of evidence base on the facts of a given situation.
The leading authority is Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd
[1947] AC 1, where the House of Lords laid down the principles to determine which
employer is liable. See also Thompson v T Lohan (Plant Hire) Ltd [1987] 1 W.L.R. 649.
However in Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2005] EWCA Civ
1151 the CA held it was possible for both employers to be vicariously liable where both
were entitled to exercise control. See also: Biffa Waste Services LTD v Maschinenfabrik Ernst
Hese GMBH [2008] EWCA Civ 1257.

In Various Claimants v the Catholic Child Welfare Society [2012] UKSC 56 which established
that vicarious liability will be shared where the employee in question is so much part of the
work, business or organisation of both employers that it is just to make both employer
answer for his tort.

Breach of statutory duty imposed on employee

Is an employer vicariously liable for an employee’s breach of statutory duty imposed on
him/her personally? In Majrowski v Guy’s and St Thomas NHS Trust [2006] 4 All ER 395, the
Court of Appeal held the employer could be liable for the employee’s breach in the course
of employment of the statutory duty imposed on the employee. This had never previously
been clarified. This was applied in Green v DB Group Service (UK) Ltd [2006] EWHC 1898.

Vicarious liability for workers other than employees only in exceptional, ultra
hazardous situations
As an exception to the general rule, in ultra-hazardous situations the employer may be
strictly liable for damage caused by another than an employee, for example, an
independent contractor. See Honeywill & Stein v Larkin above.

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Does the employer have any recourse against the employee?

Take note that liability is joint, meaning that the claimant can join both the employee as well
as the employer as tortfeasors in one action (i.e. can sue them both). Also note that being
held liable for what an employee has done does not mean that the employer is without
recourse – see the case of Lister v Romford Ice & Cold Storage Co [1957] AC 555 – there is an
employer’s indemnity which permits employers to recover their outlay from the employee.

For two recent cases on vicarious liability, see Mohammud v WM Morrison Supermarkets plc
[2016] AC 677 and Cox v Ministry of Justice [2016] UKSC 10. Pay particular attention to
what the Supreme Court had to say about when a relationship can give rise to vicarious
liability in Cox.

Vicarious liability is strict liability

Finally, you should understand that vicarious liability boils down to strict liability, because
the defendant is held liable not for his/her own fault, but for that of another. That this is
the case was confirmed again by the Supreme Court in Armes v Nottinghamshire CC [2017]
UKSC 60: Despite the he local authority not having been negligent in the selection or
supervision of foster parents who subsequently abused the appellant, they were held
vicariously liable for the abuse. See paras. 52-64 (which also clearly show policy
considerations such as most foster parents not having the means to compensate victims of
abuse). Also see Lord Hughes’ dissenting judgement on the vicarious liability issue, paras.
76-90.

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Lecture 8: Trespass to the person

Learning Objectives:
On completion of this topic you will be able to:

• define trespass and distinguish it from negligence.

• explain the current law of trespass to the person, and its relationship with
privacy and harassment.
• identify and apply the defences to trespass to person.

Reading:
Textbook Elliott & Quinn ch 16

Cases Letang v Cooper [1965] 1 QB 232

Wilson v Pringle [1986] 2 All ER 440

Wilkinson v Downton [1897] 2 QB 57

Rhodes v OPO [2015] UKSC 32

Journal articles P. Cane, ‘Mens rea in tort law’ (2000) OJLS 533

M. Lunney, ‘Practical joking and its penalty: Wilkinson v

Downton in context’ (2002) 10 Tort Law Review 168

Origins and Character of Trespass

Trespass takes three forms: trespass to the person, to land and to goods. These forms of
trespass protect claimants against threatened or actual interference with their bodies, their
land and their property. All three have the same basic characteristics:

• Trespass must be committed intentionally or deliberately. But note that the

defendant’s act must have been intentional, but this only relates to the action, it is
not necessary that the defendant intends the consequences of his/her actions. In
trespass cases the claimant has to prove that the defendant intended to act,
although he/she does not have to prove that the defendant intended to commit a
trespass. The defendant will be liable for all the consequences of his/her actions,
whether or not they are foreseeable.
• Trespass must cause direct and immediate harm.
• BUT note that Trespass is actionable per se, so there is no need to prove damage.

Personal injury cases (including nervous shock) can nowadays be based on the tort of
trespass to the person or negligence. So in personal injury cases the claimant must prove
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either the defendant’s intention (trespass) or negligence. To distinguish trespass and

negligence, consider: Fowler v Lanning [1959] 1 QB 426, Letang v Cooper [1965] 1 QB 232
and Stubbings v Webb [1992] AC 498.

Note: there can be a relationship between trespass and invasion of privacy and harassment:
see Kaye v Robertson [1991] FSR 62; Wainwright v Home Office [2003] 4 All ER 969 and the
impact of human rights law – e.g. Articles 5, 6, 8 and 10 of the European Convention and
HRA 1998 (see your textbooks. We will come back to this later on in this course).

Trespass to the person

Trespass to the person protects against direct and intentional harm to personal dignity and
bodily integrity and has three components: assault, battery or false imprisonment. These
components may occur together or separately, but each of itself gives a cause for action.

Assault
Cooke, p 425, writes: ‘an assault is an act which causes another person to apprehend the
infliction of immediate unlawful force on his person.’ In the case of assault the defendant
does not make contact with the body of the claimant, but his words and/or actions cause
the claimant to fear immediate contact. If there is contact, then there would be battery.

For the question whether words by themselves can amount to assault, see: R v Meade and
Belt (1823) 1 Lew CC 184; R v Costanza [1997] Crim LR 576 (threats made by a stalker) and R
v Ireland [1997] 4 All ER 225 (silent telephone calls, sometimes with heavy breathing). But
see also: Turberville v Savage (1669) 1 Mod Rep 3.

The victim must have a reasonable expectation of immediate physical violence. The test for
this is objective: the claimant has to show that it was reasonable for him/her to expect that
violence was about to happen. It must also be, or appear to be, possible for the defendant
to carry out the threat, see: Thomas v National Union of Mineworkers [1985] 2 All ER 1;
Mbasogo v Logo Ltd (No 1) [2006] EWCA Civ 1370. Where a defendant tried to hit someone
but was prevented from doing so by a third party, the tort of assault was held to be
committed: Stephens v Myers (1830) 4 C&P 349.

Battery
According to Cooke, p 423, ‘a battery is the direct and intentional application of force to
another person without that person’s consent.’ So this is the actual infliction of unlawful
force on another person. There are three elements:

1. force,
2. direct application
3. intent.
For cases see: Gibbons v Pepper [1695] 1 Ld Raym 38: Scott v Shepherd [1773] 2 WM BI 892;
Pursell v Horn [1838] 8 A&E 602; and, Innes v Wylie [1844] 1 Car & Kir 257.

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The tort of battery applies to every form of bodily contact. If applied literally, it would cover
all forms of perfectly ordinary, everyday contact. But the problem for the courts is where to
draw the line between actionable batteries and those social contacts which are part of
ordinary life. Lord Holt said that ‘the least touching of another in anger is a battery’ (Cole v
Turner (1704) 6 Mod Rep 149). In Collins v Wilcock [1984] 3 All ER 374, Lord Goff explained
that there is a general exception for ‘all physical contact which is generally acceptable in the
ordinary conduct of daily life’. However, the Court of Appeal in Wilson v Pringle [1986] 2 All
ER 440 seemed to hold, on the basis of Cole v Turner, that battery must be committed with
‘hostile intent’.

But is this decision helpful? What does hostility mean? One of the areas where this test was
thought to be of use was in medical cases, where a doctor has to touch a person in an
emergency and cannot always wait for consent to be given. A court, following Wilson v
Pringle, would say that there is no battery because there is no hostility on the part of the
doctor. The hostility requirement appears to have been rejected for medical cases by the
House of Lords in F v West Berkshire Health Authority [1989] 2 All ER 545. This was
confirmed in Wainright v Home Office [2003] 4 All ER 969. In order to avoid an action for
battery, a doctor must show either that consent was given for the touching, or that touching
was necessary in the best interests of the patient (see later). Note that medical treatment to
which a claimant consents does not become battery merely because consent was not
“informed”: see Sidaway v Bethlem Royal Hospital [1985] AC 871.

Defences to assault and battery

Lawful authority

A person who commits an act that could amount to assault and/or battery will not be liable
for this if he/she has lawful authority for the action. Such statutory authority is given to two
groups:

• Police officers: Collins v Wilcock [1984] 3 All ER 374.

• Health Professionals treating people with mental illness. (S 63 of the Mental Health
Act 1983).

Consent

A claimant who consents to the actions of the defendant has no cause for action. Such
consent can be express or implied. For implied consent see: Simms v Leigh Rugby Football
Club [1969] 2 All ER 923. On sports injuries and consent, see what was said under the volenti
non fit injuria defence under negligence and the cases mentioned there.

Any consent given will be limited to the act for which the permission is given. Any consent
given must be real and not induced by fraud, misrepresentation or duress. The victim must
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understand what it is he/she is consenting to and must give his/her consent freely. In
medical cases, a person with capacity has an absolute right to give or withhold consent to
treatment: see Re T (Adult: Refusal of Treatment) [1992] 4 All ER 649. Capacity will be
assumed unless shown otherwise. Where a person lacks capacity to make their own
decision, treatment will be lawful if it is in that person’s best interests.

Necessity

This allows the defendant to intervene to prevent greater harm to the public, a third party,
the defendant or the claimant. The courts will only allow this defence if the defendant has
acted reasonably in all the circumstances. The defence could be used in medical cases to
justify treatment of someone who lacks capacity, e.g. emergency treatment of an
unconscious accident victim. In F v West Berkshire Health Authority [1989] 2 All ER 545 the
court held that doctors may intervene in the best interest of the patient where

• it is necessary to act in circumstances where it is not practicable to communicate

with the defendant; and,
• the action taken is such as a reasonable person would in all the circumstances take,
acting in the best interests of the person.

Parental authority

Parents are allowed to exercise reasonable restraint or chastisement on their children,

without being guilty of trespass to the person. The child must understand the purpose of
the punishment, which must be reasonable and proportionate to the wrong committed.

Self-defence

Anyone is entitled to use reasonable force in self-defence or to protect others or to prevent

a crime or tort being committed. However, the force used must be both necessary and
proportionate to the danger. This will be a question of fact, see: Lane v Holloway [1967] 3
All ER 129.

Assault and battery are both torts that require intentional action. Therefore it would seem
that contributory negligence should not be an allowable defence. This was confirmed by
the Court of Appeal in Pritchard v Co-operative Group Ltd [2011] EWCA Civ 329 the claimant
successfully sued her employer for assault and battery following an attack by her manager
in which she was injured. The court had to consider whether the defence of contributory
negligence could be raised, as there was evidence that the claimant had provoked her
manager. The court held that there is no defence of contributory negligence to an
intentional tort such as assault and battery, neither in terms of the common law, nor in
terms of the Law Reform (Contributory Negligence) Act 1945

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False imprisonment
This tort is concerned with a person’s freedom of movement. It amounts to an unlawful
constraint on a person’s freedom of movement from a particular place. The restraint must
be total: Bird v Jones (1845) 7 QB 742.

The claimant does not have to be aware that he/she has been falsely imprisoned. False
imprisonment is a strict liability tort so fault does not have to be proven. The defendant
must have intended to impede the claimant’s freedom of movement, but he/she does not
have to have intended to commit the tort of false imprisonment.

Recent cases include: Walker v The Commissioner of the Police of the Metropolis [2014]; Ali
v Heart of England NHS Foundation Trust [2018] EWHC 591 (Ch).

Defences to false imprisonment

Lawful authority, consent, necessity and self-defence are all defences that can be used
against false imprisonment as well. A lawful arrest made in accordance with statute cannot
amount to false imprisonment, whether made by a police officer or by a private person,
although a police officer has stronger protection than a private person,. see on the police
practice called ‘kettling’: R (Moos and McClure) v Commissioner of Police of the Metropolis
[2011] EWHC 957.

Another defence is that the defendant has imposed a reasonable condition for release, but
the claimant has refused to comply with this. Detention for medical purposes can also be a
defence, but only if the provisions of the Mental Health Act 1983 for the lawful detention of
persons suffering from mental disorder are strictly followed.

The rule in Wilkinson v Downton / ‘the tort of making distressing

statements’
This tort has been described as simply ‘the tort of making distressing statements’ (per Lord
Neuberger in Rhodes v OPO [2015] UKSC 32 at par 101), or as ‘wilful infringement of the
right to personal safety’ (per Lady Hale and Lord Toulson at par 73.)

The three forms of trespass to the person deal with intentional acts which directly harm the
claimant, which are actionable without proof of harm (actionable per se). And, as we have
seen in earlier lectures, negligence deals with direct harm which is unintentionally caused.
But neither of these torts covers the situation where indirect harm is caused intentionally.
This gap is covered by the rule in Wilkinson v Downton [1897] 2 QB 57 and by the Protection
from Harassment Act 1997.

In Wilkinson, Wright J held (at 58–59) that the cause of action arises where a defendant has
“wilfully done an act calculated to cause physical 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… there being no justification alleged for the act. This wilful injury is in law malicious,

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although no malicious purpose to cause the harm which was caused nor any motive of spite
is imputed to the defendant.”

From the Wilkinson and subsequent cases (Janvier v Sweeney [1919] 2 KB 316 and Wong v
Parkside NHS Trust and Another [2001] EWCA Civ 1721) the condition for a tort where a
person who acts intentionally with the result that injury is indirectly caused are that it must
be proved that:

• the defendant intended to infringe the claimant’s ‘right to personal safety’

(Wilkinson) or his/her ‘interest in his freedom from harm’ (Wong), and
• actual injury, physical or psychiatric, occurred as a result. So harm needs to be
proven and this tort is not actionable per se.

The above has been confirmed by the House of Lords in: Wainwright v Home Office [2004]
AC 406, where it was decided that no liability exists for distress which falls short of a
recognised psychiatric injury; in this case, the question whether the rule in Wilkinson
(intentional wrongdoing) could apply to claimants who had been strip-searched in breach of
Prison Service rules, whilst visiting a relative in prison, and the test to be applied were
considered. It was held that there must be extreme and outrageous conduct intentionally or
recklessly causing bodily harm or psychiatric injury, and not merely emotional distress. See
also C v D [2006] EWHC 166 (QB), where Field J stated that there were three states of mind
that could indicate intent of the defendant and thus lead to liability: first, where the
defendant’ s acts were calculated to cause psychiatric harm, and done with the knowledge
that such harm was the likely result; second, where psychiatric injury was so likely to result
from the defendant’s acts that they could not reasonably claim that they did not mean to
cause the harm; and, third, where the defendant was reckless as to whether psychiatric
harm was caused by their acts. The case concerned a claim for psychiatric injury, but the
same reasoning can be used concerning physical harm.

Rhodes v OPO [2015] UKSC 32

In this case the Supreme Court gave us a very good explanation of the tort in Wilkinson v
Downton, and mentioned that it could also be referred to as the tort of wilful infringement
of the right to personal safety. O v A also summarises the three elements of the tort: a
conduct element, a mental element and a consequence element:

(1) The conduct element requires words or conduct directed towards the
claimant for which there is no justification or reasonable excuse, and the
burden of proof is on the claimant (par 74).
(2) The mental element requires an intention to cause at least severe mental or
emotional distress, and
(3) the consequence element requires physical harm or recognised psychiatric
illness. (par 88)

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Therefore, under the Wilkinson v Downton rule, a claim can be made for indirectly inflicted
physical or recognized psychiatric injury. This tort is not much used anymore, since the tort
of negligence now covers claims for psychiatric injury. O v A came before the courts under
Wilkinson as the defendant’s actions were not unintentional, and could therefore not
constitute negligence.

Harassment
Finally you just need to be aware of the tort of harassment. We will look at this tort again
when we look at privacy protection towards the end of the course, as harassment could be
seen as invading someone’s privacy.

The Protection from Harassment Act 1997 provides a remedy for persons who have suffered
harassment. No actual physical or psychiatric harm or distress need to have resulted from
the harassment, alarm or distress is sufficient. The defendant’s intention is irrelevant. The
Act makes harassment a criminal offence but also provides the victim with a civil remedy.

Note that this tort refers to a course of conduct. This could include the threat of multiple
publication: see LJY v Persons Unknown [2017] EWHC 3230 (QB).

For a recent case see Hayes (FC) v Willoughby [2013] UKSC 17.

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Lecture 9: Trespass to land and goods

Learning Objectives:
On completion of this topic you will be able to:

• define trespass to land and explain the relevance of key elements such as
possession, directness and trespass ab initio.
• identify and explain defences and remedies to trespass to land.
• explain and apply the current law of trespass to land.
• be aware there are special rules relating to interference with goods.
• deal with the essay questions set for the seminar.

Reading:
Textbook Elliott & Quinn ch. 15

Cases Conway v George Wimpey & Co Ltd [1951] 2 K.B. 266

Bocardo SA v Star Energy UK Onshore Ltd and another [2010]

UKSC 35

Enfield LBC v Outdoor Plus Ltd [2012] EWCA Civ 608

Statute Torts (Interference with Goods) Act 1977 c.32: Sections 1; 8; 10 -

14

Journal articles M. Walsh, ‘Practitioner page: squatting and commercial

leasehold property’, (2013) 17(1) L. & T. Review 28

Trespass to land
It could be said that the rationale of trespass to land is to protect against direct and
unjustifiable interference with a person’s possession of land. Note that the tort is
committed against possession and not ownership of land, and neither does it cover mere de
facto use. See: Portland Management Ltd v Harte [1977] QB 306 and J.A. Pye (Oxford) Ltd
and Another v Graham and Another [2002] 1 AC 419. Note that the owner may not be
entitled to possession and if he/she enters on land this will then be trespass e.g. a landlord
entering property let to a tenant. So the person in possession of the land has the right to
sue.

In common with all other forms of trespass, trespass to land must be direct and intentional
and is actionable per se. The invasion of the claimant’s possession must be direct and
intentional. As we saw under trespass to the person, the intention relates to the
voluntariness of the defendant’s act not his intention to trespass. As long as your act is
intentional, you are a trespasser, whether you know you are trespassing or not. See: Basely

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v Clarkson (1681) 3 Levu 37; Conway v George Wimpey & Co [1951] 2 KB 266. Letang v
Cooper [1965] 1 QB 232 suggest that trespass to land cannot be committed negligently.
Contrast this with League against Cruel Sports v Scott [1986] QB 240, which suggests it can.
However, Giliker and Beckwith (2008, 373-374) write: ‘it is submitted that a consistent
approach should be adopted to trespass, which should be confined to intentional voluntary
acts. It is contrary to the general development of the law for a tort actionable per se to be
committed negligently.’ Note that the act must be voluntary: Smith v Stone (1674) Sty 65.

Land includes the surface and any buildings erected on it, airspace above it and subsoil
below it. Airspace extends only to the height necessary for ordinary use and enjoyment of
land: Bernstein (Lord) v Skyviews and General Ltd [1977] 2 All ER 902. For commercial
airlines see now the Civil Aviation Act 1982. For the surface below see: Boccardo SA v Star
Energy Onshore UK (also known as Star Energy UK Onshore Ltd v Bocardo SA or Star Energy
Weald Basin Ltd v Bocardo SA) [2010] UKSC 35.

Interference with possession of land can take place in a number of ways:

• by wrongful entry onto land: Entick v Carrington (1765) 2 Wils. KB 275; Also see the
‘Occupy London’ case City of London Corpn v Samede and others [2012] EWCA Civ
160.
• by remaining onto land after the right of entry has ceased or after having been asked
to leave. In the latter case, a reasonable time must be allowed for leaving. See:
Robson v Hallett [1967] 2 All ER 407.
• by, after being given permission to enter onto land for a certain purpose, going
beyond that purpose; or,
• by placing objects on land; Eaton Mansions (Westminster) Ltd v Stinger Compania de
Inversion SA [2011] EWCA Civ 607; or touching against land.

Trespass ab initio: where a defendant has a legal right to enter land and then acts outside
the authority granted he/she becomes a trespasser ab initio. This means that he/she is
considered to be trespassing from the moment of entry: Six Carpenters’ Case (1610) 8 Co
Rep 146a. Later cases have not always been consistent, but the modern application of the
doctrine can still be useful in the area of the protection of one’s person, goods and land
against abuse of official power. But see: Elias v Passmore [1934] 2 KB 164; Chic Fashions
(West Wales) Ltd v Jones [1968] 2 QB 299 (both below)..

Defences against trespass to land

• Consent or licence: consent can be express or implied. Hurst v Picture Theatres Ltd
[1915] 1 KB 1.
• Lawful authority: see for example, the Criminal Justice and Public Order Act 1994,
SS.61 and 68; Criminal Law Act 1977, SS 6-10 (as amended by the 1994 Act, SS 72
and 73) and the Police and Criminal Evidence Act 1984, SS 15-19. Note that abuse of
such legal authority will make the act a trespass ab initio. However, this only applies

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to positive acts of abuse and does not apply to omissions. It also does not seem to
apply to cases of partial abuse: Elias v Passmore [1934] 2 KB 164 and Chic Fashions
(West Wales) Ltd v Jones [1968] 2 QB 299.
• Necessity: this covers action taken in an emergency to deal with a genuinely
perceived danger. See: Rigby v Chief Constable of Northamptonshire [1985] 2 All ER
985. The courts are reluctant to extent this defence too far: London Borough Council
of Southwark v Williams [1971] 2 All ER 175.

Remedies to trespass to land

• Damages: awarded for physical damage to land or for sums lost because of being out
of possession (mesne profits). See Enfield LBC v Outdoor Plus Ltd [2012] EWCA Civ
608.
• Injunctions: to stop the trespass being continued or being repeated.
• Re-entry: a person who is entitled to possession can enter or re-enter the premises.
The Criminal Law Act 1977 makes it a crime to use or threaten violence for the
purpose of securing entry to land occupied by another, except for the displaced
resident. Peaceable re-entry is lawful and reasonable force may be used to evict a
trespasser: Hemmings v Stoke Poges Golf Club [1920] 1 KB 720. But now see the
Criminal Law Act 1977.
• Action for recovery of land or ‘ejectment’: this is an action to recover possession of
land. The action can be brought against a person without a better legal title. But the
claimant needs to be aware of the Protection from Eviction Act 1977 and the
Protection from Harassment Act 1997.
• Distress damage feasant: where a chattel is unlawfully on the claimant’s land and
has caused actual damage, the claimant may retain the chattel until the damage has
been paid for. For example, a football kicked through a window can be retained until
the window is paid for. A modern application of this doctrine can be found in Arthur
v Anker [1996] 2 WLR 602 in relation to wheel clamping of vehicles. The Court of
Appeal held that distress damage feasant could only be invoked in a case such as this
if the unauthorised vehicles were causing damage.

Trespass to goods
This form of trespass deals with the intentional and direct interference with the possession
of goods. As in trespass to land, it is possession rather than ownership that is protected. In
common with all other forms of trespass, trespass to goods must be direct and intentional
and is actionable per se. So:

• It must be intentional: Fouldes v Willoughby (1841) 8 M & W 540.

• It must be a direct and immediate act e.g. touching or removing: Wilson v Lombank Ltd
[1963] 1 WLR 1294 or destroying goods or scratching: Fouldes v Willoughby (1841) 8 M &
W 540.
• Possession is important, not ownership: Wilson v Lombank Ltd [1963] 1 WLR 1294; Note:
finders v occupiers: Parker v British Airways Board [1982] QB 1004
• It must be wrongful: unjustifiable interference without lawful excuse.
• It is actionable per se: so mistake is no defence: Wilson v Lombank Ltd [1963] 1 WLR 1294.

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Conversion is another form of trespass to goods and can be defined as wilfully dealing with
another’s property in a way which amounts to a denial of his right over it, or an assertion of
a right inconsistent with his right, by wrongfully taking, detaining or disposing of it.

The common law relating to interference with goods was too technical and complex
because of a number of different forms of tortious liability overlapping with one another.
The Torts (Interference with Goods) Act 1977 partly resolved the common law problems, by
changing the rules relating to procedures and remedies, but not the substantive law.
Winfield has observed that the decided cases remain important to understanding this tort,
because in spite of the Act attempting to simplify the law by abolishing one head of liability
(detinue), it is not a code governing interference with goods.

Defences to trespass to goods and conversion

The defences are similar to those mentioned for other torts of trespass: consent, necessity
and lawful authority. As to necessity, if the trespass in question was necessary for the
preservation and protection of the goods and reasonable steps were taken to do this, the
defendant has a good defence. However, in Kirk v Gregory (1876) 1 Ex D 55, this defence
failed because, although the defendant had acted in good faith, it was not proved that the
interference was reasonably necessary. As to lawful authority, note the powers of the police
to search for and seize property without liability: see SS. 8-22 of the Police and Criminal
Evidence Act 1984.

There is also the defence of jus tertii, (right of a third person) see S 8 of the Torts
(Interference with Goods) Act 1977:

‘The defendant in an action for wrongful interference shall be entitled to show, in

accordance with rules of the court, that a third party has a better right than the plaintiff in
respect of all or any part of the interest claimed by the plaintiff, or in right of which he
sues’.

In this way a defendant can protect him/herself against double liability by identifying who
had the interest protected by the tort at the relevant time.

Remedies
The following remedies are available for trespass to goods and conversion:

• Retaking of the goods.

• Damages for the value of the goods and any consequential loss which is not too
remote. Where the defendant is still in possession of the goods, delivery of the
goods with additional damages is also possible (S 3 of the Torts (Interference with
Goods) Act 1977).

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The Torts (Interference with Goods) Act 1977

‘Wrongful interference' with goods means: (i) conversion, (ii) trespass, and (iii) negligence resulting
in damage to goods, (iv) any other tort causing damage to goods except detinue (S 1). ‘Goods’
includes all personal chattels except things in action and money (S 14). Contributory negligence is
no defence to proceedings based on intentional trespass to goods (S 11). And, S.12 allows sale of
unclaimed goods by bailee, subject to deduction of any sum payable in respect of the goods from
the proceeds of sale. The court may authorise sale subject to terms and conditions specified in the
order: S.13.

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Lecture 10: Nuisance

Learning objectives:
On completion of this topic you will be able to:

• Explain what the tort of nuisance is concerned with.

• Understand the elements of private nuisance.
• Identify who can sue and who can be sued for private nuisance.
• explain and apply the principal defences and remedies relating to actions in private
nuisance.
• Understand the elements of public nuisance.
• explain and apply the principal defences and remedies relating to actions in public
nuisance.
• Explain the differences between private and public nuisance.
• Apply your knowledge to the seminar question.

Reading:
Textbook Elliott & Quinn ch 13

Cases Barr and others v Biffa Waste Services Ltd [2012] EWCA Civ 312

Halsey v Esso Petroleum Co. Ltd. [1961] 1 W.L.R. 683

Hunter v Canary Wharf Ltd [1997] 2 All ER 426

Lawrence v Fen Tigers Ltd; Lawrence v Coventry (t/a RDC

Promotions) [2014] UKSC 13,[2014] A.C. 822)

Journal articles M. Lee and A.J. Waite, ‘What is Private Nuisance?’ (2003) LQR
298

Introduction
The main concern of the courts in actions for nuisance is to protect the claimant’s rights in
land. Nuisance is about an unreasonable indirect interference with a person’s use and
enjoyment of land. It is important to note that, in contrast to negligence, nuisance is
concerned with the harm caused and the interests invaded, rather than the defendant’s
conduct. The interest interfered with must be one that is recognised in law. Nuisance is thus
concerned with all aspects of the use of land. Nuisance may take three forms: private
nuisance, public nuisance and statutory nuisance.

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Private Nuisance

Private nuisance is an unlawful interference with a person’s use or enjoyment of land, or

some right over it, or in connection with it, by activities carried out by another person on
his/her land. In most cases the two areas of land are likely to be close together. Note that
nuisance is not concerned with an interference with a right in land which is dealt with in
land law.

Nuisance is essentially a balancing act for the courts between the competing interests of
neighbours to make lawful use of their own land. The courts need to balance the
defendant’s right to use his/her land as he/she wishes and the claimant’s right to enjoy
his/her land without interference. Only unreasonable interference can amount to private
nuisance. We will come back to this later.

Claimant

Who can sue in nuisance? Only a claimant who has an interest in land or who has exclusive
possession of the land can sue for private nuisance, see: Malone v Laskey [1907] 2 KB 141.
This rule came under attack and in Khorasandjian v Bush [1993] 3 WLR 476, the Court of
Appeal held that the daughter of the owner of a house could also claim. The Court of Appeal
in Hunter and Others v Canary Wharf Ltd and Hunter and Others v London Docklands
Corporation [1996] 1 All ER 482 adopted the same approach, but this was overruled by the
House of Lords (Hunter v Canary Wharf Ltd [1997] 2 All ER 426). So the rule is still that only a
claimant who has an interest in land can claim. This does leave people who do not have
exclusive possession – for example a lodger - without a remedy, unless the Protection from
Harassment Act 1997 is applicable.

However, in this area the Human Rights Act 1998 might make itself felt as Article 8 ECHR
guarantees a right to respect for private and family life, home and correspondence. In
McKenna v British Aluminium [2002] Env LR 30 over 30 claimants sued in nuisance over the
noise and fumes that were emitted by the defendant’s factory. Some of the claimants were
children who had no legal interest in land and the defendants sought to get their claim
struck out on the basis of Hunter. However, the court refused the striking out application on
the grounds that there was a ‘real possibility’ that a court hearing the case might decide
that the Hunter rule was in conflict with Article 8 ECHR.

Defendant

The person who causes the nuisance is usually the person who can be sued. It appears that
the defendant does not have to have an interest in the land on which the activity takes
place, see: Esso Petroleum Co Ltd v Southport Corporation [1956] AC 218. Although the
situation is not very clear. See on this: Hussain v Lancaster City Council [2000] QB 1, which

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suggests that the action complained of does need to involve a use of the defendant’s land.
Lippiatt v South v South Gloustershire CC [2000] QB 51 was decided differently, but the court
left open the question whether the defendant needs an interest in lad.

If the defendant is the occupier or the landlord, they will have an interest in the land.

Occupier

The occupier of the premises from which nuisance emanates will generally be liable for that
nuisance. This is subject to qualification where the nuisance is caused by:

• Independent contractors: e.g. building works to a neighbouring house: Bower v

Peate (1876) 1 QBD 321. The occupier is only liable for activities that carry ‘special
danger’ to others, see: Matania v National Provincial Bank [1936] 2 All ER 633.
• Trespassers: an occupier is liable for nuisance caused by trespassers if he/she has
adopted it for its own use or where he/she has continued the nuisance: Sedleigh-
Denfield v O’Callagan (Trustees for St. Joseph’s Society for Foreign Missions) [1940]
AC 880.
• An act of nature: An occupier is liable for nuisance caused by an act of nature, where
the occupier is or should be aware of the presence of the nuisance on their premises
and has failed to take reasonable steps to abate the nuisance: Goldman v Hargrave
[1967] 1 AC 645 and Leakey v The National Trust [1980] QB 485. The standard of
reasonableness is a subjective one – so it is not the standard of the reasonable
person as in negligence - and the duty is limited by the occupier’s ability (physical
and financial) to abate the nuisance and by its foreseeable extent: Holbeck Hall Hotel
Ltd v Scarborough Borough Council [2000] 2 All ER 705.

Landlord

A landlord who has leased premises is not liable for nuisances arising from them when the
occupier takes control of the land. However, where the landlord grants the lease for the
purpose which constitutes the nuisance there will be liability. In other words, the landlord
can be liable for a nuisance create by his/her tenant where he authorises the activity which
creates the nuisance and the nuisance is the inevitable result of the permitted activity, see:
Tetley and others v Chitty and others [1986] 1 All ER 663.

Essential elements of private nuisance

Three elements need to be proved for private nuisance:

• Unlawful use of land: Unlawful use in this case is use which is unreasonable. The
basic question to ask is whether the defendant’s act is foreseeably likely to cause the
nuisance. If this is the case, the defendant will be liable. The essence of nuisance is
the balancing of interests: “a useful test is what is reasonable according to the
ordinary usage of mankind living in a particular society” (per Lord Wright in Sedleigh

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Denfield v O’Callaghan [1940] AC 880). The courts will take the following matters
into account:
o The nature of the locality (Sturges v Bridgman (1879) 11 ChD 852);
o the duration and frequency of the defendant’s conduct (De Keyser’s Royal
Hotel Ltd v Spicer Bros Ltd (1914) 30 TLR 257; Spicer v Smee [1946] 1All ER
480); Barr v Biffa Waste Services Limited [2012] EWCA Civ 312.
o the utility of the defendant’s conduct;
o malice on the part of the defendant (Christie v Davey [1893] 1 Ch 316;
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468);
o abnormal sensitivity of the claimant (Robinson v Kilvert (1889) ChD 88;
Hunter v Canary Wharf Ltd [1997] 2 All ER 426; Network Rail Infrastructure v
Morris [2004] EWCA Civ 172.
• The unlawful use causes indirect interference: The interference must be indirect
and nuisance is thus not concerned with direct interference.
• The interference with the use and enjoyment of land must cause damage and the
claimant must prove that he/she suffered damage. The rules of causation as
discussed under negligence apply here as well. Private nuisance covers both damage
to property (St Helens Smelting Co v Tipping (1865) 11 HL Cas 642; L.E Jones
(Insurance Brokers) Ltd v Portsmouth City Council [2002] 1 WLR 427; and loss of
amenity; but the claimant must not be unduly sensitive (Robinson v Kilvert (1889)
ChD 88; Hunter v Canary Wharf Ltd [1997] 2 All ER 426).

Defences
The following defences against nuisance are accepted:

• Prescription: in actions for private nuisance it will be a defence to show that the
nuisance has been actionable for a period of 20 years and the claimant was aware
that it affected his/her interests during the relevant period: Sturges v Bridgman
(1879) 11 ChD 852.
• Statutory authority: where a statute orders something to be done, there will be no
liability in nuisance for doing this and for any inevitable consequences. An inevitable
consequence is one which can not be avoided by the use of due skill and care. It is
for the organisation carrying out the activity to prove that it is within the scope of
the statute and that all reasonable care has been taken to minimise the problems:
Allen v Gulf Oil Refining Ltd [1980] QB 156.
• Act of God: Nicholls v Marsland (1876) 2 Ex D 1.
• Planning consent: Following the Supreme Court’s decision in Coventry (t/a RDC
Promotions) v Lawrence; also known as Lawrence v Fen Tigers Ltd; Lawrence v
Coventry (t/a RDC Promotions) [2014] UKSC 13,[2014] A.C. 822) it is now clear that the
grant of planning permission will simply be one of the factors taken into account by
the court but will not of itself afford a defence in nuisance. This significantly waters
down the (apparent) previous position that where planning permission was given for
a development that would inevitably mean a change in nature of the locality, the
changed nature of the locality could be a defence against a claim in nuisance,
provided that the operation was undertaken with reasonable care.
There are also three matters that are commonly thought of as defences but which are not in
fact effective, in other words, which are not a defence:
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• Coming to the nuisance: the defendant cannot argue that the claimant was aware of
the nuisance when they moved into the area. The fact that the activity continued for
some time without anyone complaining about it is not a defence: Bliss v Hall (1838) 4
Bing NC 183 and Miller v Jackson [1977] QB 966; Watson v Corft Promo-Sport [2009]
EWCA Civ 15. The latter case shows that, although not a defence, it might be
relevant to the remedy granted to the claimant.
• Social utility: the courts will not accept as defence that the nuisance caused by the
defendant has a benefit to the general community or the public at large: Adams v
Ursell [1913] 1 Ch 269 and Bellew v Cement Co [1948] LR P. 61. Again, although not a
defence, social utility might be taken into account in considering the remedy.
• Acts of many people: it is no defence that the defendant was simply one of many
people causing the nuisance in question. This is so even if his/her actions in isolation
would not amount to a nuisance: Thorpe v Brumfitt (1873) LR 8 Ch App 650.

Remedies
• Injunction: this is the primary remedy where a nuisance is continuing or likely to
recur: Swaine v Great Northern Railway (1864) 4 De GJ & S 211. There has recently
been a tendency to tailor injunctions to try to give a fair balance between competing
interests. See for example: Kennaway v Thompson [1980] 3 WLR 361. See also:
Regan v Paul Properties DPF No 1 Ltd [2006] 3 WLR 1131; Watson and Others v Croft
Promo-Sport Ltd [2009} 3 All ER 249 and Ineos Upstream Ltd v Persons Unknown
[2017] EWHC 2945 (Ch).
• Damages: these can be recovered for any loss which has occurred to the value of the
land and for any physical consequences of the nuisance or business loss, but it does
not appear to be available for personal injury. The remoteness of damage test in
nuisance is the same as that in negligence. See on damages: Tamares (Vincent
Square) Ltd v Fairpoint Properties (Vincent Square) Ltd [2007] EWCA Civ 1309 and
again, Coventry (t/a RDC Promotions) v Lawrence; also known as Lawrence v Fen
Tigers Ltd; Lawrence v Coventry (t/a RDC Promotions) [2014] UKSC 13,[2014] A.C. 822.
• Abatement (a form of self-help): this remedy has a major drawback: exercising the
right to abate the nuisance is unlikely to improve the relationship between
neighbours.

Nuisance and the Human Rights Act 1998

Facts giving rise to a claim in private nuisance may also engage Article 8 of the ECHR, but its
exercise of course must be weighed up against competing rights such as community
interests. General social and economic policy considerations will be considered in context.
See Connors v United Kingdom (66746/01) (2005) 40 E.H.R.R. 9. See also Akerman v
Richmond upon Thames LBC [2017] EWHC 84 (Admin).

So you have to note the impact of the Human Rights Act 1998 and the Protection from
Harassment Act 1997 on the issues of privacy and harassment, see: Khorasandjian v Bush
[1993] 3 WLR 476, Hunter v Canary Wharf Ltd [1997] 2 All ER 426; McKenna v British
Aluminium [2002] Env LR 30; Marcic v Thames Water Utilities Ltd [2004] 1 All ER 135;

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Dobson v Thames Water Utilities Ltd (Water Services Regulation Authority (Ofwat)
intervening) [2008] 2 All ER 362.

Public nuisance
In Attorney-General (on the relation of Glamorgan County Council and Pontardawe Rural
District Council) v PYA Quarries Ltd [1957] 2 QB 169, Lord Justice Romer gave the following
definition:

‘Any nuisance is “public” which materially affects the reasonable comfort and convenience
of life of a class of Her Majesty’s 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.’

A number of points can be made about public nuisance:

• It is not necessary to show that every member of the class has been affected, but the
nuisance must be shown to injure a representative cross-section of the class.
• Public nuisance is a crime as well as a tort and it can lead to prosecution and
punishment (see R. v Cleator (Michael) [2016] EWCA Crim 1361).
• An action for public nuisance is brought by the Attorney General on behalf of all
those affected. This civil action is known as a ‘relator action’. The PYA Quarries case
is an example of a relator action.
• Local Authorities may apply on behalf of the local community (Local Government Act
1972, S 222).
• Damages cannot be awarded to an individual for injuries caused by public nuisance
unless that individual proves that he/she has suffered special damage in excess of
the general damage suffered by the public at large, see: Benjamin v Storr (1874) LR 9
CP 400. Tate and Lyle Industries Ltd v Greater London Council [1983] 2 AC 509.

Elements of public nuisance

Class of people: How many people need to be affected before an action can be brought?
This is to be determined on a case-by-case basis. The nuisance must be shown to injure a
representative cross-section of the class.

Special damage: For a claim of public nuisance to succeed, an individual must prove that
he/she suffered damage which is ‘particular, direct and substantial’ beyond that suffered by
others affected: Benjamin v Storr (1874) LR 9 CP 400; Castle v St Augustine Links (1922) 32
TLR 615. Where an individual has suffered such additional injury, the action may be brought
by the Attorney General or by the individual but if there is no special damage, an individual
will have no action.

On damages for personal injury see: Corby group Litigation Claimants v Corby County
Council [2008] EWCA Civ 463.

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It must be noted that:

• for public nuisance, there is no requirement that the claimant has an interest in land,
nor need the defendant be sued as the owner/occupier of the land: Tate and Lyle
Industries Ltd v Greater London Council [1983] 2 AC 509. The offence can, for
example, be committed on the highway: Dymond v Pearce [1972] 1 QB 497.
• particular sets of facts can give rise to claims in both public and private nuisance:
Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683. See also: Colourquest v Total
Downstream UK plc [2009] EWHC 540 (This case concerned the Buncefield Oil Depot
disaster and is also on a claim under Rylands v Fletcher.)
• Many public nuisances occur as a result of abuse of the right of passage over a
highway. See also the Highways Act 1980 and Trevett v Lee [1955] 1 All ER 406.
• Where premises are next to the highway and damage is caused by something falling
onto the highway, the landowner may be liable for public nuisance, if he/she knew
or ought to have known of the danger or has failed to maintain/repair his premises
(Tarry v Ashton (1876) QBD 314; Noble v Harrison [1926] 2 KB 332 and Wringe v
Cohen [1940] 1 KB 229; Salsbury v Woodland [1970] 1 QB 324).

Defences and remedies

The defence of statutory authority, discussed in relation to private nuisance, is also
applicable for public nuisance, and is the most important defence here. This is where a
statute entitles a person or body to do something which would normally be considered a
tort, and in that case the person committing the act cannot be sued. The remedies available
for public nuisance are an injunction prohibiting the conduct complained of and damages,
but only if the claimant can show that he/she has suffered special damages. The other
defences against private nuisance can also be applied to public nuisance.

Statutory nuisance
A statutory nuisance is the name given to offences created under various statutes
concerning public health and environmental issues. For example: the Clean Air Act 1956, the
Control of Pollution Act 1974 and the Environmental Protection Act 1990. The local
authority has a duty to investigate complaints from local inhabitants in respect of statutory
nuisance and can issue orders to stop the harmful activity. A statutory nuisance might also
amount to a private nuisance. Where this is the case, the claimant has the choice of a
simple, cheap and effective course of action available by virtue of the powers vested in the
local authority.

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Lecture 11: The rule in Rylands v Fletcher

Learning Objectives:
On completion of this topic you will be able to:

• Understand what statutory nuisance is.

• Identify and explain the elements of the tort of Rylands v Fletcher.
• Understand the developments in recent years in this area.
• Describe the similarities and differences between trespass to land, private nuisance,
public nuisance and Rylands v Fletcher.
• Distinguish the remedies available.
• Answer complex problem questions set in the seminar and apply the techniques
learned there to similar questions.

Reading:
Textbook Elliott & Quinn ch 14

Cases Rylands v Fletcher (1868) LR 3 HL 330

Cambridge Water v Eastern Counties Leather Plc [1994] 2 WLR

53

Transco Plc v Stockport Metropolitan Borough Council [2003]

UKHL 61

Journal articles J. Murphy, ‘The Merits of Rylands v Fletcher’(2004) 24 OJLS 643

A number of torts give protection to landowners/occupiers:

• trespass to land protects them from infringement of their boundaries, but depends
on a direct and intentional interference;
• negligence gives them a right of action where damage is caused as a result of a
careless act, but this will fail where it can be shown that the defendant did all that
was reasonable to minimise the risk of damage;
• nuisance gives an action where land is interfered with indirectly, but usually only if
the activity is continuing over a period of time.
But what about occupiers whose land is damaged by a non-negligent and isolated escape
from his/her neighbour’s land? The case of Rylands v Fletcher (1868) LR 3 HL 330 fills this
gap by providing a cause of action.

The definition of this cause of action can be found in the judgment of Mr. Justice Blackburn,
modified by Lord Cairns in the House of Lords:

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‘A person who for his own purpose brings onto his land 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 … answerable for all the damage which is the natural
consequence of its escape. The use of the land must amount to a non-natural use.’

Note the House of Lords restatement and modern application of the rule in Transco Plc v
Stockport Metropolitan Borough Council [2003] UKHL 61.

Elements
There are four elements to the tort of Rylands v Fletcher:

1. Bringing onto land and keeping there

2. Something likely to do mischief when it escapes
3. The thing must escape
4. Non-natural use

(1) Bringing onto land and keeping there:

this means that anything which is naturally there, cannot give rise to an action: Giles v
Walker (1890) 24 QBD 656; Pontardawe RDC v Moore-Gwyn [1929] 1 CH 656. The thing
must be brought onto land, although this does not have to be done by an owner or
occupier.

(2) Something likely to do mischief when it escapes:

the thing need not be dangerous in itself, but it must be likely to cause damage should an
escape happen and be categorised as dangerous for this reason. What is dangerous is
decided in each particular case on the facts. In more recent cases, the courts have added
the requirement of foreseeability of damage as a prerequisite of liability under the Rylands v
Fletcher rule: Cambridge Water v Eastern Counties Leather Plc [1994] 2 WLR 53. In Transco
Plc v Stockport Metropolitan Borough Council [2003] UKHL 61, Lord Bingham remarked that

‘Ido not think the mischief or danger test should be at all easily satisfied. It must
be shown that the defendant has done something which he recognised, or judged
by the standards appropriate at the relevant place and time, he ought reasonably
to have recognised, as giving rise to an exceptionally high risk of danger or
mischief if there should be an escape, however unlikely an escape may have been
thought to be.’

(3) The thing must escape:

Proof of an actual escape is vital for the claim. The thing must move from the land
controlled by the defendant to the land controlled by the claimant: Read v J Lyons & Co Ltd
[1947] AC 156. Also note that it is the thing itself that must escape, not something else:
Stannard (t/a Wyvern Tyres) v Gore [2012] EWCA Civ 1248.

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(4) Non-natural use:

Lord Moulton in Rickhards v Lothian [1913] AC 280 defined non-natural use:

‘It is not every use to which land is put that brings into play that principle (Rylands v Fletcher). It
must be some special use bringing with it increased danger to others and must not merely be the
ordinary use of the land or such a use as is proper for the general benefit of the community.’

Natural use has essentially been interpreted as ‘ordinary use’. The meaning of ‘non-natural
use’ must now be seen in the light of Lord Goff’s comments in the Cambridge Water v
Eastern Counties Leather Plc [1994] 2 WLR 53 case and the House of Lords ruling in the case
of Transco Plc v Stockport Metropolitan Borough Council [2003] UKHL 61. In the latter, the
requirements of non-natural use and dangerousness were seen as interlinked and were to
be tested by ordinary contemporary standards (See the quote above). Therefore, there has
to be an exceptionally high risk of danger and the activity must be highly unusual or special,
something quite out of the ordinary in that place and at that time, to impose liability. See
also: LMS International Ltd v Styrene Packaging &Insulation Ltd [2005] EWHC 2065.

Parties to the action

Claimant: as the Rylands v Fletcher rule has its roots in nuisance, it seems likely that Hunter
v Canary Wharf Ltd [1997] 2 All ER 426, discussed under private nuisance, applies and thus a
person can only claim if he/she has a proprietary interest in the land. As for the defendant,
an owner or occupier of land, including whoever stores or collects the dangerous substance
in question, can be sued. Note that claimant and defendant do not have to be neighbours.

Defences
• Statutory authority: see: Charing Cross Electricity Co v Hydraulic Power Co [1914] 3
KB 772 and Green v Chelsea Waterworks Co (1894) 70 LT 547.
• Consent (express or implied) or volenti non fit injuria: a person who consents to the
accumulation cannot later complain when the thing escapes and then damages the
land: Peters v Prince of Wales Theatre [1943] 1 KB 73.
• Act of a stranger: a defendant will not be liable for the consequences of an escape
which has been caused by the act of a person over whom the defendant has no
control. The act of the third party must be unforeseeable. If the defendant should
have foreseen the intervention, the defence will not be established: Box v Jubb
(1879) 4 Ex D 76.
• Act of God: this is an unforeseeable natural phenomenon. The defendant will not be
liable where the escape is due solely to natural causes, in circumstances where no
human foresight or prudence could reasonably recognise the possibility of such an
occurrence and provide against it: Nicholls v Marsland (1876) 2 Ex D 1.
• Default or contributory negligence of the claimant: a person who causes the
damage cannot complain nor can the defendant be liable in such circumstances.

Remedies
• Injunction: please note that damages may be awarded in lieu of injunction: Miller v
Jackson [1977] QB 966.

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• Abatement is a form of self-help where the claimant intervenes. Apart from

emergency situations, he/she should give notice if entry is necessary to avoid liability
for trespass to land.
• Damages: a claim for property damage or economic loss may be recovered but not
for personal injury: Read v J Lyons & Co Ltd [1947] AC 156; see also Lord Hoffmann in
the Hunter v Canary Wharf Ltd [1997] 2 All ER 426) case.

For a case where negligence, private nuisance, public nuisance and Rylands v Fletcher were
all considered see the following case concerning the Buncefield Oil Depot explosion: Colour
Quest Ltd and Others v Total Downstream UK Plc and Others [2009] EWHC 540.

Liability for escape of fire

Most modern cases are dealt with under S.86, Fires Prevention (Metropolis) Act 1774, which
applies everywhere. This section provides that there should be no liability for a fire that
begins on premises accidentally, unless the occupier has been negligent in allowing the fire
to spread. The claimant must prove that the fire was caused other than by accident. Liability
does arise where negligence, wilfulness (trespass) or nuisance is proved: Filliter v Phippard
(1847) 11 QB 347; see also Johnson v BJW Property Developments Ltd [2002] 3 All ER 574.

In Musgrove v Pandelis [1919] 2 KB 43, the defendant’s employee failed to turn off the
petrol tap causing a fire, which had started accidentally in the carburettor of the claimant’s
car, to spread. The defendant was held not liable for the original accidental fire, but the
spreading of it. Contrast this with Goldman v Hargrave [1967] 1 AC 645.

In Sturge v Hackett [1962] 3 All ER 166, the defendant lit a paraffin rag and

applied it, as a deterrent, to a sparrow’s nest outside the window of his flat. He was liable,
as occupier, for the resultant fire.

Thus liability for allowing fire to spread may lie in negligence, nuisance, or Rylands v
Fletcher. Three conditions must be satisfied in cases of fire under Rylands v Fletcher:

• the defendant must have brought on to his land things likely to ignite (and kept them
there in such conditions that if they did ignite the fire would be likely to spread to the
claimant’s land).
• The thing must constitute non-natural use.
• which did ignite and spread to the claimant’s property: per MacKenna J in Mason v Levy
Autoparts [1967] 2 QB 530.

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Lecture 12: Common law product liability

Learning objectives:
On completion of this topic you will be able to:

• Explain what is meant by product liability.

• Describe the development of liability for defective products at common law under
the narrow ratio of Donoghue v Stevenson.
• Explain when a person may be liable for faulty products at common law.

Reading:
Textbook Elliott & Quinn ch. 9

Cases Revise Donoghue v Stevenson and concentrate on the narrow

ratio.

Grant v Australian Knitting Mills Ltd [1936] AC 85

Haseldine v Daw [1941] 2 KB 343

Journal articles C. Newdick, ‘The future of negligence in product liability’ (1987)

L.Q.R., 103, 288-310

There are a number of remedies available for the users of defective products, both from
statutory provisions in contract and tort and from the common law of contract and tort. In
this lecture we examine common law liability, and next week we will look at the statutory
regime.

Liability in contract and consumer law

Consumers were first protected by the Sale of Goods Act 1893. Now protection is found in
the Consumer Rights Act 2015 and in the Sale of Goods Act 1979 as amended by the Sale
and Supply of Goods Act 1994 in respect of Traders acting in the course of a business.
Where there is liability under this Act, it is strict liability so far as the seller of the product is
concerned. The buyer is entitled to be repaid the purchase price and to be compensated for
further damage. However, there is one fundamental flaw: only a party to the contract can
generally sue for breach of that contract. So the person receiving a defective product as a
gift, for example, cannot claim under the Sale of Goods Act 1979 or the Consumer Rights Act
2015. This is the doctrine of privity of contract. This doctrine also means that only the
person (or company) that actually sold the product can be sued. The Contracts (Rights of
Third Parties) Act 1999 provides that a third party can have rights under the contract,
provided that certain conditions are fulfilled. This might provide a remedy for third parties
who did not buy the product in some cases, but is not likely to be applicable in many cases.

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Liability in negligence (common law)

So what can a person who is injured by a defective product and who is not the buyer of that
product do? He/she might be able to sue for negligence. Donoghue v Stevenson [1932] AC
562 did not only establish the neighbour test (see before) but it also established the
principle that a manufacturer owes a duty of care to the consumer (This is called the
‘narrow rule’ or ‘narrow ratio’ established by the Donoghue case, while the neighbour test is
called the ‘wide rule’). As Lord Atkin stated:

‘...a manufacturer of products, which he sells in such a form as to show that he intends them to
reach the ultimate consumer in the form in which they left him with no reasonable possibility of
intermediate examination, and with the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an injury to the consumer’s life or property,
owes a duty to the consumer to take that reasonable care’.

Thus the Donoghue v Stevenson case was actually concerned with the question whether a
manufacturer was under a legal duty to the ultimate purchaser or consumer who had
suffered damage as a result of a defective product (in this case, the decomposed remains of
a snail in an opaque bottle of ginger beer). Nowadays a wider view of the ratio of Donoghue
v Stevenson has been adopted: the neighbour principle in Lord Atkin’s famous speech.
Consequently product liability at common law has merged into the general law of
negligence.

This duty includes the ultimate consumer where the products reach him/her in much the
same form as they left the factory. Anyone injured or suffering loss caused by a defective
product can bring an action for negligence: the buyer; those who have received the product
as a gift; those using a product belonging to someone else; or, someone injured by a
product while not actually using it themselves. See, for example,

Stennett v Hancock [1939] 2 All ER 578, where a bystander was hit by a lorry wheel flying off
a passing lorry; and Brown v Cotterill (1934) 51 TLR 21 in which a tombstone fell on a child
who was lawfully in a graveyard.

The principle in Donoghue v Stevenson has been extended in the case law to include not
only manufactures, but also fitters (Malfroot v Noxal (1935) 51 TLR 551); erectors (Brown v
Cotterill (1934) 51 TLR 21); assemblers (Howard v Furness, Ltd [1936] 55 Ll. L. Rep. 121,
where a boiler valve was wrongly assembled as it was fitted upside down); a water board
supplying unwholesome water (Read v Croydon Corporation [1938] 4 All ER 631); repairers
(Haseldine v Daw [1941] 2 KB 343); second hand dealers: (Andrews v Hopkinson [1957] 1 QB
229).

What is a product? This includes every article, such as underwear, gas, food and drink, hair-
dye (Watson v Buckley, Osborne, Garret & Co [1940] 1 All ER 174), towing-hitches (Lambert v
Lewis [1982] AC 225 and lifts (Haseldine v Daw [1941] 2 KB 343). The only exceptions seem

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to be houses and articles therein, but product liability will normally apply to things attached
to buildings, or the raw materials to be used in constructing buildings.

Note: ‘with no reasonable possibility of intermediate examination’ (see quote above):

In Haseldine v Daw [1941] 2 KB 343 Lord Goddard referred to a reasonable probability

rather than a reasonable possibility of intermediate examination, and the courts now work
on the basis of probability (see below).

Note: The defendant’s liability may be excluded, for example, where the claimant has:

• full appreciation of the danger: see Farr v Butters Bros [1932] 2 KB 606; Taylor v
Rover Co Ltd [1966] 2 ALL ER 181; Rimmer v Liverpool City Council [1984] 2 WLR 426.
• misused the product or uses it in an unforeseeable way or for an unforeseeable
purpose. This may mean that the product simply cannot be regarded as faulty.
• adequate warning of any risk of harm in the circumstances: Kubach v Hollands [1937]
3 All ER 907.
To sum up, it now appears that anyone involved in the supply chain of a defective product
can potentially be sued in negligence, including sellers. The problem with relying on
negligence is that the consumer will need to prove fault, he/she needs to prove a breach of
a duty of care. A person will not be liable if he/she has taken all reasonable steps to avoid
injuring someone else. Sometimes the courts have been able to draw an inference of fault
from the facts: see Grant v Australian Knitting Mills Ltd [1936] AC 85.

For negligence the claimant will also have to prove causation.

On causation note the following:

• If there is any probability of intermediate examination and a possibility that some

intervening event has caused the product to be faulty, it will be difficult for the
defendant to show that the damage was caused by the manufacturer's negligence.
See Evans v Triplex Glass Co [1938] 1 All ER 283.
• The duty to exercise reasonable care extends to packaging, preparation, or putting
up of the product, and labelling and any necessary instructions, etc. (Kubach v
Hollands [1937] 3 All ER 907.
• Injury to the consumer’s life or property, person, including consequential financial
loss falls within the normal causation rules, but pure economic loss, such as the cost
of repair of the product itself is not recoverable.
• The test for remoteness of damage is, of course, reasonable foreseeability: Vacwell
Engineering Ltd v BDH Chemicals Ltd [1971] 1 QB 111.
• The legal burden of proof is on the claimant. See: Evans v Triplex Glass Co [1938] 1
All ER 283.
• The defendant may find himself in a res ipsa loquitur situation and thus having to
discharge an evidential burden. The defendant is liable only for failing to take
reasonable care, not to ensure that the goods are perfect. Grant v Australian Knitting
Mills Ltd [1936] AC 85 illustrates the heavy evidential burden that may be placed on

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a manufacturer once the situation speaks for itself. (See also: Carroll and Others v
Fearon and Others [1998] PIQR P416.

Lecture 13: Statutory Product liability

Learning objectives:
On completion of this topic you will be able to:

• Describe the influence of European Union law in the development of strict liability
for defective products under English law.
• Explain the rules governing liability for defective products under the Consumer
Protection Act 1987 and the main difficulties relating to interpretation of its scope.

Reading:
Textbook Elliott & Quinn ch. 9

Cases A v National Blood Authority [2001] EWHC 446 (QB)

Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ 348

O'Byrne v Aventis Pasteur SA [2010] 1 W.L.R. 1375

Journal articles M. Mildred, ‘Pitfalls in product liability’ (2007) JPIL 141

Statutory liability – the Consumer Protection Act 1987

The protection against dangerous products given by the tort of negligence was not of very
much practical use. In the 1970s, a number of babies were born with severe defects caused
by a drug called Thalidomide, which was taken by their mothers during early pregnancy for
morning sickness. The parents had to fight for a number of years to prove that the drug had
caused the damage and receive compensation. This and other concerns prompted the EU to
take action to protect consumers injured by defective products and to make it easier for
them to claim compensation. In 1976 the EEC draft directive on product liability advocated
strict liability for damage caused by defective products, but member countries of the EEC
were unable to reach agreement regarding the precise terms of a final directive. The
European Directive on Liability for Defective Products 1985 (85/374/EEC) was passed after
the Member States resolved their differences. This in turn led to the adoption of the
Consumer Protection Act 1987 into English law.

Part I of the British Act, which came into effect on 1 March 1988, provides that anyone
supplying defective products within the EU, even if they are imported from outside, is
strictly liable if the defect causes injury to person or property.

You should note that the Act does not preclude any other liability arising in contract or tort
generally. It imposes strict liability by creating a statutory tort, which is in effect a
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supplement to the fault-based liability at common law. But note that the claimant still has to
establish that:

• The defendant is to be held liable.

• There is a defect in the product.
• Damage.
• Causal link between the defect and damage.

Product

The Act determines that there shall be liability ‘where any damage is caused wholly or partly
by a defect in a product’ (S 2(1)). So anyone who suffers personal injury or damage caused
by a defective product can sue. S 1(2) defines what types of products are covered. S 2(2)
states who is liable: the producer of the product, the ‘own-brander’ and the importer of
goods originating from outside the EU. You should also note: s.1 (3)’... a person who
supplies any product in which products are comprised, whether by virtue of being
component parts or raw materials or otherwise, shall not be treated by reason only of his
supply of that product as supplying any of the products so comprised.’ However, a defective
component will render the final product defective – thus both the main producer and the
producer of the component part will face the possibility of liability.

Who to sue?

A person who merely supplies the goods is usually not liable under the Act. However,
according to S 2(3) claimants can ask the supplier of the goods to identify the producer or
their own supplier within a certain time. If he/she fails to do so within a reasonable time,
he/she will be liable as if he/she was the producer. So whoever breaks the chain, can be
held liable. See also in this regard the important decision in O'Byrne v Aventis Pasteur
SA[2010] 1 W.L.R. 1375.

What can be claimed?

What damage is covered? S 5(1) states that damage means death or personal injury or any
loss of or damage to any property. However, S 5(3) and (4) give restrictions to the liability
for damage to property. There is no liability for loss or damage to the product itself or to any
product of which the defective product forms part (S 5(2)), and the Act does not cover
damage to commercial interests. The damage must be valued above £275 (S 5(4)).

Product must be defective.

The Act only covers defects which are dangerous and not those which merely make the
product perform less well or become less valuable. A product is defective ‘if the safety of

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the product is not such as persons generally are entitled to expect’ (S 3). So ‘defect’ is
related to safety not quality. S 3(2) states that, in deciding whether a product is defective,
the courts should take account of all the circumstances including those mentioned in S 3(2).
See Richardson v LRC Products [2000] Lloyd’s Rep Med 280; A v National Blood Authority
[2001] EWHC 446 (QB); Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ 348; Pollard v
Tesco Stores Ltd [2006] All ER (D) 186; Ide v ATB Sales Ltd [2007] EWHC 1667; Baker v KTM
Sportmotorcycle UK Ltd [2017] EWCA Civ 378.

Who can claim?

The Act imposes liability to a ‘consumer’ and this is anyone who suffers damage as a result
of the defect(s) in question, so the claimant need not be a user of the product in question.

Note that liability cannot be excluded under the Unfair Contract Terms Act 1977 or the
Consumer Rights Act 2015 by virtue of S.7 of the Consumer Protection Act. (Do not confuse
the Consumer RIGHTS Act with the Consumer PROTECTION Act!) Producers who have
business liability cannot exclude liability for death or personal injury caused by their
negligence (s.2). But this Act does not create liability: a defendant will only be liable if
he/she is negligent. Also note that sometimes a notice may prevent liability arising because
it gives sufficient warning of the risk. E.g. ‘The contents of this bottle are poisonous. Do not
drink them.’

Defences under the Consumer Protection Act 1987

• Compliance with legal requirements: S 4(1)(a).
• Product not supplied: S 4(1)(b).
• Goods not supplied in the course of business: S 4 (1)(c)
• Defects arising after the date of supply: S 4(1)(d): Piper v JRI (Manufacturing) Ltd
[2006] EWCA Civ 1344.
• ‘State of the art’ defence: S 4(1)(e) determines that it is a defence to show ‘that the
state of scientific and technological 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’. This mirrors the ‘state of the art’ defence which is available
for professionals against allegations of negligence. See: A v National Blood Authority
[2001] EWHC 446 (QB) and Abouzaid v Mothercare (UK) Ltd [2000] EWCA Civ 348.
• Contributory negligence.
• Limitation of actions: action must be taken within three years from the date of the
damage or from the date on which it could reasonably have been discovered. In the
case of latent damage, there is a long stop of 10 years after the product was put into
circulation.
Remember that the Consumer Protection Act 1987 does not preclude liability arising in tort
or contract as well.

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Lecture 14: Occupiers’ liability

Learning objectives:
On completion of this topic you will be able to:

• Explain the scope of the 1957 Occupiers’ Liability Act and its relationship with
common law negligence.
• Understand the definitions of occupier and premises.
• Explain the liability that arises out of the 1957 Act.
• Understand the limitations of the 1957 Act.
• Explain the scope of the 1984 Occupiers’ Liability Act and its relationship with
common law negligence and the 1957 Act.
• Describe the different types of visitors towards whom occupiers owe a duty and
under which Act each type falls.
• Understand the different duties under the two Acts.
• Explain the liability for defective premises under the Defective Premises Act
1972.
• Apply the Acts to different case scenarios.

Reading:
Textbook Elliott & Quinn ch. 8

Cases Wheat v E Lacon & Co Ltd [1966] AC 552

Tomlinson v Congleton Borough Council [2003] 3 WLR 70

Journal articles M. Jones, ‘The Occupiers’ Liability Act 1984’ (1984) 47 MLR 713

Origins and characteristics of the tort

An occupier of premises may be liable in tort to a claimant who suffers personal injury or
property damage whilst on those premises. This is clearly different from nuisance, where
the damage is caused by the defendant’s use of his land and the claimant suffers damage
outside the occupier’s land on his/her own land.

Occupiers’ liability is governed by two Acts:

• The Occupiers’ Liability Act (1957) (OLA 1957) which is concerned with the duty
of care owed to all lawful visitors.
• The Occupiers’ Liability Act (1984) (OLA 1984) which is concerned with the duty
owed to people other than lawful visitors. Usually these others will be
trespassers.
Occupiers’ liability has developed out of negligence and, as a result, many of the principles
are the same or similar to basic negligence principles and definitions, where not provided by
the acts, will be found in the common law. Note that Occupiers’ liability arises from loss or

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injury caused by the state of the premises or things done or omitted to be done to them (S
1(1)). Is it the physical state of the premises, their condition (e.g. substances etc present
there) or activities carried out that creates liability? See Roles v Nathan [1963] 1 WLR 1117,
which appears to suggest that the presence of carbon monoxide gas in a building may be an
occupiers’ liability situation.

But in Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052, the Court of Appeal
held that the claimant’s contact with asbestos dust at work was a result of an activity carried
out on the premises rather than their static state. The OLA 1957 was thus not applicable and
the claimants had to prove a duty of care under normal negligence rules. In Tomlinson v
Congleton BC [2003] 3 WLR 705, the claimant got injured while swimming in a boating lake.
There were clear notices up prohibiting swimming because it was dangerous. It was
common for people to swim in the lake. The House of Lords held that the Council was not
liable. They took account of the fact that the danger was not due to the ’state of the
premises, or things done or omitted to be done on them’. Therefore, it appears to be that
the OLA 1957 and OLA 1984 only cover loss arising from the state of the premises and not
from the activities carried out on the premises. Loss or damage arising from such activities
or other causes than the state of the premises should be claimed under negligence (Siddorn
v Patel [2007] EWHC 1248 (QB)). See also: Poppleton v Trustees of Portsmouth Youth
Activities Committee [2008] EWCA Civ 646.

Definition of Occupier
Both Acts identify occupiers of premises as potential defendants, but neither gives a
definition of ‘occupier’. The test for determining who is an occupier can be found in the
common law. The courts appear to have taken a broad approach, holding that a person will
be an occupier if he/she has a sufficient degree of control over the state of the premises.
See: Wheat v E Lacon & Co Ltd [1966] AC 552. From this case it is clear that there can be
more than one occupier of premises. See also Bailey v Armes [1999] EGCS 21.

Definition of premises
The Acts do not give a clear definition of premises, although S 1(3)(a) refers to a person
having occupation or control of any … fixed or moveable structure, including any vessel,
vehicle or aircraft…. Common law again applies and apart from the obvious, such as homes,
buildings and the land itself, premises have been held to include: ships in dry dock (London
Graving Dock v Horton [1951] AC 737); vehicles (Hartwell v Grayson [1947] KB 901); aircraft
(Fosbroke-Hobbes v Airwork Ltd [1937] 1 All ER 108); lifts (Hazeldine v Daw [1941] 2 KB 343);
a tunnelling machine (Bunker v Charles Brand & Son Ltd [1969] 2 QB 480) and even a ladder
(Wheeler v Copas [1981] 3 All ER 405).

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Liability under the OLA 1957

Potential claimants
Under the OLA 1957, all occupiers have a common duty of care (S 2(1) OLA 1957) to all
lawful visitors, which include:

• Invitees: those people who have the permission of the owner, e.g. friends.
• Licensees: those people whose entry is in the material interest of the occupier,
e.g. customers. A licence can be expressly given or can be implied: Lowery v
Walker [1911] AC 10.
The OLA 1957 does not cover trespassers or those using a private right of way. Both
categories have a more limited protection under the OLA 1984. People using a public right
of way are not protected by either Act.

The common duty of care under the OLA 1957

Sections 2(1) and 2(2) set out the duty of care and the nature of this duty:

S 2(1): An occupier of premises owes the same duty, the 'common duty of care', to all his
visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty
to any visitor or visitors by agreement or otherwise.

S 2(2): The common duty of care is a duty to take such care as in all the circumstances of the
case is reasonable to see that the visitor will be reasonably safe in using the premises for the
purposes for which he is invited or permitted by the occupier to be there.

From this the following three points are clear:

• The standard of care is the same as applied in negligence cases, namely the
standard of the ‘reasonable person’. So the occupier is under a duty to guard
against foreseeable risks, not unexpected risks.
• The duty only applies so long as the visitor is carrying out activities authorised
within the terms of the visit.
• The duty is to keep the visitor safe, and not necessarily to maintain safe
premises. The visitor must be made safe in the parts of the premises he/she has
lawful access to. This could be done by giving a sufficient warning of the
existence of the danger. See also: Atkins v Butlins Skyline Ltd [2006] 1 CL 510.
• There is no duty to protect people against obvious risks. People should accept
responsibility for the risks they choose to run: Evans v Kosmar Villa Holidays Plc
[2008] 1 All ER 530.

Occupiers’ liability for particular classes of visitors

Liability for children

According to S 2(3)(a) of the OLA 1957, ‘an occupier must be prepared for children to be less
careful than adults’. This means that the premises must be reasonably safe for a child of
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that age. Therefore, the standard of care towards children is measured subjectively:
Glasgow Corporation v Taylor [1922] 1 AC 44. However, there is no liability if the damage
suffered was not foreseeable: Jolley v London Borough of Sutton [2000] 3 All ER 409 HL. In
Keown v Coventry Healthcare [2006] EWCA Civ 39 CA, it was held that there was no liability
when an 11 year old fell while climbing on a fire escape, because the child knew the risk. In
relation to very young children the courts take the view that an occupier is entitled to
assume that the behaviour of very young children will be supervised by a responsible adult:
Phipps v Rochester Corporation [1955] 1 QB 450. See also: Baldachino v West Withering
Council [2008] EWHC 3386 (QB) and Bourne Leisure v Marsden [2009] EWCA Civ 671.

Liability to professional visitors

S 2(3)(b) OLA 1957 determines that ‘an occupier may expect that a person, in the exercise
of his calling, will appreciate and guard against any special risks ordinarily incident to it, so
far as the occupier leaves him free to do so’. An occupier may thus expect that a skilled
visitor, employed to undertake work on the premises, will take appropriate precautions
against risks ordinarily associated with his/her work: Roles v Nathan [1963] 1 WLR 1117;
General Cleaning Contractors v Christmas [1953] AC 180; King v Smith [1995] ICR 339. Note
that this only covers risks associated with the job the professional is engaged to do: Salmon
v Seafarers Restaurants Ltd [1983] 1 WLR 1264. See also: Ogwo v Taylor [1988] AC 431.

Liability for the negligence of independent contractors

For injury to independent contractors the same rules apply as for professional visitors. Here
we look at the liability of the occupier for loss or injury suffered by his/her visitors when the
cause of the damage is the negligence of an independent contractor hired by the occupier.
Generally, the occupier will not be held liable for such loss or injury. Normally the
independent contractor will be insured. According to S 2(4)(b) OLA 1957, the occupier will
not be held liable when their independent contractor’s activities fall below the common
duty of care, if the following three conditions, all linked together, are met:

• It must be reasonable for the occupier to have entrusted the work to an

independent contractor. For a good example: Haseldine v Daw & Son Ltd [1941] 2
KB 343.
• The contractor hired must be competent to carry out the task. Ferguson v Welsh
[1987] 3 All ER 777. For the influence of the absence of insurance, compare:
Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575 and Naylor (t/a
Mainstream) v Payling [2004] EWCA Civ 560. See also: Gwillam v West
Hertfordshire NHS Trust [2002] 3 WLR 1425.
• If possible, the contractor must inspect the work: Woodward v The Mayor of
Hastings [1945] KB 174. See also: Gray v Fire Alarm Fabrication Services Ltd
[2006] EWCA Civ 1596.

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Note that the contractor will often also be liable to the claimant, either by being regarded as
an occupier, or under the general principles of negligence.

Exclusion of liability
S 2(1) of the OLA 1957 leaves the occupier free to extend, restrict, modify or exclude his
duty to any visitors by agreement or otherwise. This can be done through:

• Warnings: a warning in itself will not absolve the occupier from liability unless in
all the circumstances the warning was enough to enable the visitor to be
reasonably safe (S 2(4)). Compare: Rae v Mars (UK) Ltd [1990] 3 EG 80 with
Staples v West Dorset DC [1995] 93 LGR 536. See also Bunker v Charles Brand &
Son Ltd [1969] 2 QB 480; Intruder Detection & Surveillance v Fulton [2008] EWCA
Civ 1009.
• Exclusion clauses: liability can be excluded by agreement: Ashdown v Samuel
Williams & Sons Ltd [1957] 1 QB 409. There are a number of restrictions that
apply to exclusion clauses:
o They appear to be unavailable for persons who enter under a legal right.
o They will not apply to strangers because they will not have had a chance in
advance to agree to the exclusion. But such visitors can take advantage of
any additional protections identified in the contract (S 3 OLA 1957).
o They will most likely fail against children, who may be unable to read and
may not understand their full implications.
o They are not allowed in relation to liability for death or personal injury
caused by the occupier (under S 2(1) of the Unfair Contract Terms Act 1977
or under Section 65 of the Consumer Rights Act 2015).
o It could be argued that, since the OLA 1984 imposes a minimum standard of
care on the occupier for trespassers, exclusion clauses cannot go below this
minimum standard of care, otherwise trespassers would be better protected
than lawful visitors. It is not clear whether this argument would be accepted
by the courts.

Defences
The defences of contributory negligence and volenti non fit injuria or consent are both
available. See Geary v JD Wetherspoon Plc [2011] EWHC 1506 (QB). According to S 2(5), the
occupier has no liability to a visitor in respect of risks willingly accepted by the visitor.
Requirements for this are:

• The visitor must have fully understood the risk: Simms v Leigh RFC [1969] 2 All ER
923.
• The visitor must not only have known the risk, but he/she must also have
accepted it and the knowledge of the risk must have been sufficient to make
him/her safe: White v Blackmore [1972] 2 QB 651. See also Geary v J D
Wetherspoon plc [2011] EWHC 1506 (QB) and Tomlinson v Congleton Borough
Council [2004] 1 AC 46.

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• The defence is not available if the claimant had no choice but to enter the
premises, because in that case he/she cannot be said to have accepted the risk:
Burnet v British Waterways Board [1973] 2 All ER 631.
Please note that express warnings that the claimant enters at his/her own risk may well be
caught by the Unfair Contract Terms Act 1977.

The OLA 1984: Liability to trespassers and non-visitors

When does the OLA 1984 apply? According to S 1(1), an occupier has a duty of care in
respect of other people than visitors for ‘injury on the premises by reason of any danger due
to the state of the premises or the things done or omitted to be done to them’. From this it
is clear, that the OLA 1984 provides compensation for injuries only and not for damages to
property.

According to S 1(3), an occupier will only owe a duty if:

1. he is aware of the danger or has reasonable grounds to believe that it exists;

2. he knows or has reasonable grounds to believe that the other is in the vicinity of the
danger concerned or that he may come into the vicinity of the danger (in either case,
whether the other has lawful authority for being in that vicinity or not); and
3. the risk is one against which, in all the circumstances of the case, he may reasonably
be expected to offer the other some protection.

The tests under 1 and 2 are subjective, but the test under 3 is objective: it is based on what
a reasonable occupier should do. S 1(4) determines that ‘the duty is to take such care as is
reasonable in all the circumstances of the case to see that he does not suffer injury on the
premises by reason of the danger concerned’. The standard of care is thus an objective
standard based on negligence. It is a question of fact in each case, but the courts are likely
to take into account: the nature of the premises; the degree of danger; the practicality of
taking precautions; and the age of the trespasser. See for example: Tomlinson v Congleton
Borough Council [2003] 3 WLR 705. The courts must take into account all the circumstances
at the time the injury occurred: Donoghue v Folkestone Properties [2003] EWCA Civ 231.
There is no liability if the occupier had no reason to suspect the presence of a trespasser:
Higgs v Foster [2004] EWCA Civ 843. Neither is there liability if the occupier was unaware of
the danger or had no reason to suspect the danger: Rhind v Astbury Water Park [2004]
EWCA Civ 756.

Exclusion of liability
In relation to warnings, see S 1(5) OLA 1984: the duty of the occupier can be discharged by
‘taking such steps as are reasonable in all the circumstances of the case to give warning of
the danger concerned or to discourage persons from incurring the risk’. A simple warning
may be sufficient for adults: Westwood v The Post Office [1973] 1 QB 591. In case of
children, this might not be the case. The reference to exclusion clauses made in the OLA
1957 is absent from the OLA 1984. The reason given for this is that the OLA 1984 creates a
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minimum standard of care and no occupier should be allowed to go below this. This is
sometimes called the ‘duty of common humanity’, see: British Railway Board v Herrington
[1972] AC 877. But this duty does not cover situations where the claimant fully appreciated
and accepted the risk involved, see: Titchener v British Railway Board [1983] 3 All ER 770.

Defences
The defence of volenti is possible if the trespasser is fully aware of the risk (see S 1(6) OLA
1984). The defence of contributory negligence has also been accepted in relation to the OLA
1984.

Liability for defective premises

Two other categories of people other than the occupier of land can be held responsible for
damage that is caused by the defective state of premises under the Defective Premises Act
1972: landlords and builders.

Landlords

Sometimes landlords retain control of part of the premises and then they can be liable as
occupier under the OLA 1957 and the OLA 1984. But if the landlord no longer has control
over the premises, he/she might still be liable under the Defective Premises Act 1972 or
under some, often inconsistent, common law. S 4 of the Act determines that:

• Where premises are let under a tenancy which puts on the landlord an obligation
to the tenant for the maintenance or repair of the premises, the landlord owes to
all persons who might reasonably be expected to be affected by defects in the
state of the premises a duty to take such care as is reasonable in all the
circumstances to see that they are reasonably safe from personal injury or from
damage to their property caused by a relevant defect.
• The said duty is owed if the landlord knows (whether as the result of being
notified by the tenant or otherwise) or if he ought in all the circumstances to
have known of the relevant defect.
• In this section “relevant defect” means a defect in the state of the premises
existing at or after the material time and arising from, or continuing because of,
an act or omission by the landlord which constitutes or would if he had had
notice of the defect, have constituted a failure by him to carry out his obligation
to the tenant for the maintenance or repair of the premises.
The Act does not allow restrictions or exclusions.

Builders

The expression ‘builder’ includes all people involved in the construction or sale of a building,
e.g. developers, builders, subcontractors, architects, surveyors, civil engineers and local
authorities. S 1(1) of the Defective premises Act 1972 imposes on builders – in this wide
sense – a three-part duty:
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• that the work will be done in a work-like manner;

• that proper materials will be used;
• that the house will be fit for human habitation.
The duty is owed to the person to whose order the building is provided and to every person
who acquires an interest in the dwelling. Liability is strict in the sense that fault does not
have to be proved against the builder. The duty cannot be excluded.

The Defective Premises Act has a number of limitations:

• It only applies in respect of dwellings and not in respect of commercial or

industrial properties.
• The limitation period is only six years from the date on which the dwelling was
completed. But defects often do not become apparent until years later.
• It excludes approved schemes such as the NHBC (National House Building
Council) Schemes. See S 2 of the Act.
• The definition of pure economic loss is uncertain – and it is possible that the Act
goes no further than the common law.

Nevertheless, claims by trespassers are more common under the Defective Premises Act
1972 than under the OLA 1984, since under the former the duty of care (s.4) is owed to
visitors of every kind. Nor can it be restricted or excluded (s.6(3)). S.4 of this Act states that
a landlord has a statutory duty of care in respect of any defect arising in the leased premises
where either a duty to repair, or merely a right to enter and inspect, exists under the lease.
Furthermore, no actual knowledge on the part of the landlord is required and thus the duty
is very difficult to displace.

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Lecture 15: Defamation

Learning Objectives:
On completion of this topic you will be able to:

• Define defamation and know the difference between libel and slander.
• Understand the essential elements required in proving a claim of defamation.
• Explain the difference in approach in an action for defamation compared to an
action based on the right to privacy.
• Understand the position of the protection of privacy in English law.
• Summarise the ways in which the Defamation Act 2013 changes the common law on
defamation.

Reading:
Textbook Elliott & Quinn ch. 11

Cases Jameel v Dow Jones & Co Inc [2005] 2 W.L.R. 1614

Reynolds v Times Newspapers Ltd [1999] 4 All ER 609

Journal articles A. Mullis & A. Scott, ‘Tilting at Windmills: the Defamation Act
2013’ (2014) 77(1) MLR 87–109

Farrer, ‘A quick guide to the Defamation Act 2013’, 2014 Ent. L.R.
55

Introduction
Defamation is different in character from the other torts discussed so far in that it does not
protect the safety, integrity or the right to self-determination of the claimant. Instead, it
protects the reputation of the claimant. It doesn’t protect a person who is abused in private
(who might have an action based on harassment or assault). Instead, the tort of defamation
protects an individual from unjustified criticism, which makes society think less of the
claimant. So the tort aims to protect the reputation of a person, not his/her injured feelings.

The law on defamation has recently been subjected to severe criticism; to such an extent
that Parliament had to act by reforming the law through enactment of the Defamation Act
2013 (in this chapter, ‘the Act’) in April 2013. The 2013 Act came fully into force on 1
January 2014.

Defamation raises a problem in relation to Article 10 of the ECHR, which contains the right
to freedom of expression. This Article is now incorporated through the Human Rights Act
1998 (HRA 1998). The purpose of the law of defamation is thus to balance competing
protected interests e.g. reputation/privacy and freedom of speech: see Reynolds v Times

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Newspapers Ltd [1999] 4 All ER 609; Art.10, ECHR and S 12 HRA 1998. See also: Tolstoy
Miloslavsky v United Kingdom [1995] 20 EHHR 442. This then raises the difficult question
what constitutes or what should constitute a matter of public interest, as the right to free
speech includes a right to criticise and this is particularly important in relation to politicians
and officials who occupy positions of power. The tort of defamation is a rapidly evolving tort
in the present time and has recently been the subject of extensive legislative reform
through the Defamation Act 2013, and it can be asked whether the tort will be able to
protect a person’s privacy or is developing into a tort specifically protecting privacy. This will
be discussed later in this lecture.

Types of defamation
There are two types of defamation:

• Libel covers statements made in some permanent form, e.g. printed or written
words, film, pictures, statues, effigies etc. The Defamation Act 1952 determines that
broadcasts and television performances could amount to libel. A waxwork was held
to be libel in Monson v Tussauds Ltd (1894) 1 QB 671.
• Slander: this applies to defamation made in transitory form, such as words or
gestures.

Libel is seen as a more permanent type of defamation, which can be seen in the fact that it
is actionable per se, so damages can be recovered without evidence that any actual loss has
occurred – except in the case of businesses, who now have to prove actual or likely financial
loss before they can claim in defamation. In the case of slander, damage must be shown.
Proof is required of some disadvantage or loss which is capable of being measured in
financial terms. The damage must not be too remote: i.e. the loss must be such as might
fairly and reasonably have been anticipated and feared to result on the facts of the case:
Lynch v Knight (1861) 9 HLC 597.

In the following very specific circumstances, slander is also actionable per se:

• Imputation of a crime: where the imputation is that the claimant has committed a
criminal offence punishable with imprisonment on the first conviction. An allegation
that an individual is suspected of a criminal offence is not sufficient.
• Imputation of incompetence: where the words impute unfitness, dishonesty or
incompetence on the part of the claimant in relation to any office, profession,
calling, trade or business. According to S 2 of the Defamation Act 1952 this includes
all words likely to disparage the claimant’s official, professional or business
reputation.

For these two instances and for libel, all the claimant has to prove therefore is that there
was a defamatory statement impugning her reputation. But does he/she also have to
prove that his/her reputation was in fact damaged? Section 1 of the Defamation Act 2013
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states that a statement is not defamatory unless it causes (or is likely to cause) serious harm
to the reputation of the claimant. However, the question as to what constitutes serious
harm is left open and will be open to interpretation by the courts.

The 2013 Act adds another exception to the general rule that libel is actionable per se:
Section 1(2) states that in the case of ‘bodies that trade for profit,’ serious harm to its
reputation is not “serious harm” unless it has caused or is likely to cause the body serious
financial loss.

Elements of defamation
Defamation is committed by publishing a statement which lowers the reputation of the
person referred to. The claimant will have to prove four things:

1. that the statement complained of was defamatory;

2. that the statement refers to the claimant;
3. that the statement has been published and
4. that it caused or is likely to cause serious harm to the claimant’s reputation. (This is
a new requirement added by the Defamation Act 2013.)

We have already seen that most instances of defamation (except for corporate claimants
and for slander) are actionable per se. In addition, defamation is also a tort of strict liability.
This means that the claimant does not have to prove fault (negligence, intention or malice)
on the part of the defendant. This in turn means that a person can be held liable in
defamation even if he/she is ‘innocent’ in the sense of not having made the statement
carelessly, with malice, or with the intention to defame.

(1) The statement must be defamatory

In Berkoff v Burchill [1996] 4 All ER 1008 (CA), Neill L.J recognised that since the term could
not be defined in a completely satisfactory manner, one must consider the effect of any
relevant definition and the alleged defamatory words in the context of the particular
surrounding circumstances in which they appear.

The Faulks Committee Report (Report of the Committee on Defamation CMND 5909, 1975),
at para. 65, defines defamation as:

‘…the publication to a third party of matter which in all the circumstances would be likely to
affect a person adversely in the estimation of reasonable people generally’.

Compare the above definition with that of Parmiter v Coupland (1840) 6 M&W 105 –
‘exposing a person to hatred, contempt, or ridicule’ and Youssoupoff v Metro-Goldwyn
Mayer Pictures (1934) 50 TLR 581: ’if it tends to make the plaintiff be shunned and avoided’;
see also: Byrne v Dean [1937] 1 KB 818, and Sim v Stretch (1936) 52 TLR 669. Winfield seems
to have incorporated elements of the latter two in his definition:
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‘Defamation is the publication of a statement which reflects on a person’s reputation and

tends to lower him in the estimation of right-thinking members of society generally or tends
to make them shun or avoid him.’

From all this it will be clear that defamation is about the impression the statement is likely
to make on those reading, seeing or hearing it, not how it makes the person referred to feel.

On defamatory meaning see Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529;
[2018] 4 W.L.R. 13; [2018] 1 Cr. App. R. 15; [2018] E.M.L.R. 5.

Innuendo
An innuendo consists of an implied attack on a person’s reputation. This is where a
statement does not directly criticise the claimant, but it does so by implication. See, for
example: Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331; Tolley v Fry & Sons Ltd
[1931] All ER Rep 131 and Norman v Future publishing [1999] EMLR 325. These cases show
that the general test is: would the reasonable person view the statement as defamatory on
the particular facts of the case? The courts will look at the statement in context, and not at
an isolated sentence or paragraph. See: Charleston and Another v News Group Newspapers
Ltd [1995] 2 WLR 450.

There are two types of innuendo: true (or legal) and false (or popular). A true innuendo is
one where the attack is truly hidden in the absence of special facts and circumstances,
which the claimant must show are known by some of the people to whom the statement is
published. The court will have to be informed what special meanings are alleged and what
facts support this meaning. A false innuendo is one which a reasonable person guided by
general knowledge would infer from the natural and ordinary meaning of the words. The
court does not have to be informed of any specific facts to draw the inference. See for a
true innuendo: Tolley v. J. S. Fry and Sons, Limited [1931] A.C. 333; Cassidy v Daily Mirror
Newspapers Ltd [1929] 2 KB 331. See for a false innuendo: Lewis v Daily Telegraph [1964] AC
234.

Presumption of harm
Under the common law, harm to reputation in itself is seen as defensible. There was a
presumption that if it is proven that a statement is defamatory, the claimant’s reputation is
automatically harmed. No account was taken to degrees of harm (i.e. how much harm was
done to the reputation.) So even if there was very little harm to a person’s reputation, as
long as the statement was defamatory the presumption of harm operated and he/she could
still claim in defamation. This was challenged as being contrary to freedom of expression –
see for example Jameel v Dow Jones & Co Inc [2005] 2 W.L.R. 1614.

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However, Section 1(1) of the Defamation Act 2013 now states: “A statement is not
defamatory unless its publication has caused or is likely to cause serious harm to the
reputation of the claimant”. Remember that ‘harm’ in this sense does not necessarily mean
monetary loss, except in the case of corporations: Section 1(2) goes on to say: “…harm to
the reputation of a body that trades for profit is not “serious harm” unless it has caused or is
likely to cause serious financial loss”. Read the so-called ‘McLibel case’ which was the
longest civil case in English history, and about which much has been written: McDonalds
Corp. v Steel [1995] 3 ALL ER 615 and Steel and Morris v UK [2005] 18 BHRC 545. The
‘inequality of arms’ evidenced by this litigation contributed to the reform of defamation law
by the 2013 Act, and specifically the abolition of the presumption of harm and the inclusion
of s 1(2) in the Act.

However, the Court of Appeal reversed this decision, instead finding that the common law
presumption of damage in fact survived the enactment of section 1(1). 1 The Court found
that section 1(1) had merely raised the threshold from one of ‘substantiality’ to one of
‘seriousness’, with the latter conveying something ‘rather more weighty’ than the former.

But the Supreme Court disagreed with the Appeal Court’s interpretation of section 1 of the
Defamation Act 2013.2 Lord Sumption gave a brief overview of the history preceding and
culminating in the Defamation Act 2013 and set out the Court’s ruling on how section 1
should be interpreted and applied in defamation cases. The Supreme Court unanimously
held if ‘serious harm’ within the meaning of section 1(1) can be demonstrated only by
reference to the inherent tendency of the words themselves, then no change in the law
would have been achieved – and the Defamation Act 2013 is clear that it intended in section
1 to make a significant amendment to the common law. This means that not only is the
threshold of seriousness raised, but proof is also now required, on the facts, that the impact
of the words was to harm the claimant’s reputation. The focus therefore is not only on the
meaning of the words but on their actual or likely impact. Further proof of this is the fact
that section 1(2) requires an actual impact assessment – and the two sections need to be
read together. The reference to ‘has caused’ in section 1(1) relates to the consequences of
publication and thus points to harm which has actually occurred/’historic harm’. The term
‘likely to cause’ in turn points to possible future harm. The Supreme Court held that both
may be established as a fact. Regarding the facts of the case, the Court held that factors
such as the scale of publications (including print runs and estimated readership) and the
gravity of the statements themselves (according to the meaning attributed to them) must
be taken into account.

1Lachaux v Independent Print Ltd, Lachaux v AOL (UK) Ltd [2017] EWCA Civ 1334, [2018] Q.B. 594.
2Lachaux v Independent Print Ltd and another [2019] UKSC 27.
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(2) The statement must refer to the claimant

This means that the claimant has to prove that the ordinary, reasonable listener or reader,
including those who know the claimant, would take the statement as referring to him/her. If
people who know the claimant would assume that the statement refers to him/her, the
requirement is fulfilled. It then does not matter whether the public at large might not make
the same assumption: E Hulton & Co v Jones [1910] AC 20; Newstead v London Express
[1939] 4 All ER 319. It does not matter whether the defendant did or did not intend to
defame the claimant, what matters is whether a reasonable person understands the words
complained of as referring to the claimant. These words do not have to include the
claimant’s name, as words, phrases or facts which others connect to the claimant and which
they see as an allegation about the claimant will be sufficient for a claim: Morgan v Odhams
Press Ltd [1971] 1 WLR 1239.

Note that the statement must be taken in context: Norman v Future Publishing [1999] EMLR
325.

(3) The statement must be published

Publication can be defined for this purpose as the communication of the material to
someone other than the person allegedly defamed or other than the defendant’s spouse.
The defendant will not be held liable if publication was not reasonably foreseeable:
compare Huth v Huth [1915] 3 KB 32 with Theaker v Richardson [1962] 1 All ER 229. Once
defamatory material has been put into circulation by the original writer there can be liability
for repeated publications by others – like publishers, booksellers and libraries - unless the
repetition is unauthorised and/or is not a natural and probable consequence which can
reasonably be foreseen: Slipper v BBC [1991] 1 All ER 165; McManus and others v Beckham
[2002] 4 All ER 497.

Internet publication

In Bunt v Tilley [2006] 3 All ER 336 the claimant alleged internet service providers (ISPs)
should be liable for defamatory statements published on their websites. The defendant ISP
successfully argued that the claims against them should be struck out because they were
not, at common law, the publishers. ISPs are regarded as mere conduit intermediaries who
carry particular internet communications from one computer to another. The law regards
ISPs in the same way as postal services – like a postman they facilitate communication by
delivering statements, but they do not create the statement and almost never know what
the content is of what they are delivering. It is however possible for them to be held liable if
they are informed about defamatory content on their sites and do nothing about that.
However, if they notify the publisher and the latter takes off the defamatory content, they
will not be held liable. See Tamiz v Google Inc [2013] EWCA Civ 68.

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In Stocker v Stocker [2018] EWCA Civ 170 the Court of Appeal confirmed that comments
that are posted on a person’s Facebook wall and as such being instantly accessible to that
person’s Facebook friends, are published directly to every third party who reads them. The
poster of the comments is directly responsible for their defamatory content.

(4) Serious harm to the reputation of the claimant

Defamation was (and continues to be, at least as far as non-corporate claimants are
concerned) actionable per se, which means that the claimant does not have to prove actual
damage. It used to be enough merely to show that there was a defamatory statement – the
law then presumed harm to the claimant’s reputation. See Jameel v Dow Jones & Co Inc
[2005] 2 W.L.R. 1614 for a discussion of the presumption of harm and its place in modern
libel law. The 2013 Act seemingly does away with the presumption of harm.

Section 1(1) states: “A statement is not defamatory unless its publication has caused or is
likely to cause serious harm to the reputation of the claimant”. Remember that ‘harm’ in
this sense does not necessarily mean monetary loss, except in the case of corporate
claimants: Section 1(2) states: “…harm to the reputation of a body that trades for profit is
not “serious harm” unless it has caused or is likely to cause serious financial loss”.

In this regard, see the following cases:

Cooke v MGN Ltd [2014] EWHC 2831;

Lachaux v AOL (UK) Ltd, Independent Print Ltd & Evening Standard Ltd [2017] EWCA Civ
1334

Who can sue?

The action for defamation does not survive the death of either party, so only living persons
can sue or be sued for defamation.

Companies and their members/officers may sue (subject to the ‘serious harm’ requirements
in section 1 of the 2013 Act): see Aspro Travel Ltd v Owners Abroad Group plc [1995] 4 All ER
728 (CA) – an unqualified statement that a family company was “going bust” allowed
directors to sue. See also the so-called Mclibel case (referred to above), in which McDonalds
brought a claim against two environmental campaigners for allegedly defamatory
statements about the company. (McDonalds Corp. v Steel [1995] 3 ALL ER 615. (Note that
this case ended up at the European Court of Human Rights in Strasbourg, see: Steel and
Morris v UK [2005] 18 BHRC 545.))

Can a group sue for defamation? In Knuppfer v London Express Newspaper Ltd [1944] AC
116, it was held that:

‘it is an essential element of the cause of action for defamation that the words complained of
should be published "of the plaintiff." Where he is not named the test of this is whether the

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words would reasonably lead people acquainted with him to the conclusion that he was the
person referred to. The question whether they did so in fact does not arise if they cannot in
law be regarded as capable of referring to him. If a defamatory statement made of a class or
group can reasonably be understood to refer to every member of it, each one has a cause of
action’.

Who cannot sue?

Corporations that have not suffered serious harm to their reputation evidenced in the form
of actual or likely financial loss cannot sue (ss1(1) and (2) of the 2013 Act). Trade unions do
not have a corporate reputation and cannot sue in defamation. For policy reasons,
government bodies cannot sue, neither can political parties: it would be against the public
interest in free debate to allow democratically elected bodies to sue for libel, see:
Derbyshire County Council v Times Newspapers [1992] QB 770 (government bodies) and
Goldsmith v Bhoyrul [1998] QB 459 (political parties). However, these cases might only have
limited effect, because individual members of such bodies can still sue for libel against them
personally.

Trade unions are seen as not having a corporate reputation and cannot sue in defamation:
see: S 10, Trade Union and Labour Relations Act 1992 and Electrical, Electronic,
Telecommunication & Plumbing Union v The Times Newspapers Ltd [1980] 1 All ER 1097.

Note that legal aid is not available in defamation cases: see Joyce v Sengupta [1993] 1 WLR
337, but see Steel and Morris v UK [2005] 18 BHRC 545. As a consequence of this decision by
the Strasbourg court, legal aid is now only available to the defendant in a libel action
brought by a multi-national.

Who can be sued?

The net of defamation is very wide, and there may be several possible defendants and
several possible actions. The originator of the statement is liable for his/her own
publication. What if other people then repeat the defamatory statement?

Repeat publication: multiple v single publication rule

The common law position used to be that each publication of defamatory material gave rise
to a separate cause of action – the so-called ‘multiple publication rule’. Each repetition was
therefore seen as a fresh defamation and actionable in its own right. That also meant that
the limitation period (which is only a year in defamation actions, and therefore very
important) was calculated from various times depending on when the original and the
repetitions occurred. Therefore, given various repetitions, an originally prescribed
defamation action may revive as a new prescription period started afresh after each
repetition. There were common law defences to this, but they were not satisfactory.
Section 8 of the 2013 Act now changes the law to reflect the ‘single publication rule’ which
is intended to prevent a claim being brought in respect of a publication of the same

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material by the same publisher following the expiry of a one year limitation period that
runs from the date of first publication.. The prescription period for defamation actions will
in future be calculated from the date of publication of the original defamatory statement.
Subsequent repetitions falling outside of the prescription period will not be defamatory
provided that they are not ‘materially different’ from the manner of the first publication.
Take note that this means that repeat publication by persons other than the original
publisher are not protected by the single publication rule. Also, the original publisher is also
not protected by the single publication rule if the matter is published in a different
format/materially different form than the original.

In Brown v Bower and another [2017] EWHC 2637 (QB); [2017] 4 W.L.R. 197 the common
law repetition rule was considered in the light of the 2013 Act. The court held that the
application of the repetition rule required that a person reporting that someone had made
an accusation against another take responsibility for its further dissemination which, in
context, meant, liability for republication of the allegation. Furthermore, the rule did not
mean that the court was bound to find that the defamatory meaning which attached to the
repetition was, in all cases, the same level as the original allegation. So even where the
repetition was ‘less defamatory’ than the original statement, the rule meant a rejection of
the premise that a statement was less defamatory or not defamatory simply because it was
a report of what someone else had said. The meaning to be attached to the repetition of
the allegation still had to be judged using the established rules of interpreting allegedly
defamatory words.

Privacy protection
Remember that the tort of defamation protects reputation, but it does not protect privacy
or confidentiality. Defamation provides no remedy for people who face publication of a true
fact that they would rather keep private. If the defendant can prove that something is true,
however intrusive or embarrassing, he/she cannot be successfully sued for defamation. See
on this also: Sir David Calcutt Committee Report on Privacy and Related Matters (Cm 1102,
1990). See by contrast lecture 17 where we look at the tort of misuse of private
information.

Right to freedom of expression

Article 10 of the European Convention on Human Rights contains the right to freedom of
expression. This Article is now incorporated through the Human Rights Act 1998, S 12.
Freedom of expression includes the right to criticise, to debate, and to air opinions which
may not be to everyone’s liking.

On the other hand, defamation protects a person’s right to her reputation. It is not
surprising that these competing protected interests e.g. reputation/privacy and freedom of
speech often conflict. One of the main areas of concern leading to the reform of
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defamation law through the 2013 Act was the fear that these competing interests were not
fairly balanced, and that freedom of expression was being stifled.

Special place of defamation in tort law

Defamation is different from most other torts for several reasons:

• Short prescription period – for defamation actions the prescription period is only a
year (rather than the more usual 3 years for tort actions) – see S 4A of the Limitation
Act 1980;
• Expensive to sue and defend – defamation claims are expensive to pursue and to
defend, and there is no legal aid available to either party. It is argued that the costs
involved in defending a defamation claim has a ‘chilling effect’ on free speech which
in turn has dire consequences for scientific or academic discourse, consumer
awareness, legitimate criticism etc. Put another way, people are silenced because
they are scared of having to defend themselves without adequate funds.
• Trial by jury and high awards– defamation is the only civil action in which trial may
take place by jury, and it often happened that juries awarded successful claimants
with what can only be described as extravagant amounts of compensation. For an
example, see Tolstoy Miloslavsky v United Kingdom [1996] EMLR 152 in which it was
held that an award of £1.5 million made by a jury against the defendant was an
infringement of Article 10 of the European Convention on Human Rights. Section. 11
of the 2013 Act now directs that defamation trials are to be conducted without a jury
unless the court orders otherwise. In addition, even if there is a trial by jury, the
maximum award is now set at £200,000. See in this regard the decision by the High
Court in Yeo v Times Newspapers Ltd [2015] EWHC 2132.
• Libel tourism or ‘forum shopping’ – due to the fact that defamation is actionable per
se in England and Wales, it was argued that many people brought their cases here as
they had a higher chance of success – see for example Bin Mahfouz v Ehrenfeld
[2005] EWHC 1156 and Jameel v Wall Street Journal Europe SPRL (No.3 )[2006] UKHL
44. Criticism of libel tourism led to the inclusion of s. 9 of the 2013 Act, which states
that if the defendant is NOT domiciled in the UK or EU, the court would not normally
be able to adjudicate a defamation action, unless (in subsection 2): “…the court is
satisfied that, of all the places in which the statement complained of had been
published, England and Wales is clearly the most appropriate place in which to bring
an action in respect of the statement”. See Subotic v Knezevic [2013] EWHC 3011
(QB) (QBD) and Karpov v Browder [2013] EWHC 3071 (QB); [2014] E.M.L.R. 8 (QBD).
• Light burden of proof for claimant – it is a principle of the common law that ‘he who
avers has to prove’. Yet in defamation the burden is shifted to a great extent onto
the defendant – review the ‘presumption of harm’ discussion above, as well as the
fact that defamation remains largely actionable per se.

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Lecture 16: Defamation: Defences and remedies

Learning Objectives:
On completion of this topic you will be able to:

• Define and explain the various defences available to an action for defamation.
• Understand the remedies available.
• Explain how and to what extent the Defamation Act 2013 changes the common law
defences to and remedies for defamation

Reading:
Textbook Elliott & Quinn ch 11

Cases Joseph v Spiller [2010] UKSC 53

Reynolds v Times Newspapers Ltd [1999] 4 All ER 609

Journal articles J. Agate, ‘The Defamation Act 2013 - key changes for online.’
(2013) Computer and Telecommunications Law Review, 19(6),
170-171

Statutes Defamation Act 1996;

Defamation Act 2013 Sections 2, 3, 4, 5, 6, 7,

Defences
The Defamation Act 2013 retains and expands most of the common law defences to
defamation. The importance of these defences is reflected in the fact that they make up the
bulk of the 2013 Act. We will therefore refer to a defence by its new name in terms of the
Act, and point out what its common law predecessor was called, and how they differ.

Truth (formerly ‘Justification’)

A publication that is true cannot amount to defamation. It is for the defendant to prove that
the statement is true. It is not necessary to prove that every single detail of the statement is
true, so long as the statement, taken as a whole, is accurate: Alexander v North Eastern
Railway Co (1865) 6 B&S 340. If most of what is stated can be proved to be true, than this
will amount to justification, even if some parts cannot be proved. Section 2 of the 2013 Act
provides that it is a defence for the defendant to show that the imputation conveyed by the
statement complained of is substantially true. This means that as long as the substance of
the statement is true, the defence will not fail if some part of the statement is untrue. If the
imputation consists of two or more statements, of which some are true and some untrue,

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the Act directs the court in s. 2(3) to allow the defence the untrue imputations do not
seriously harm the claimant’s reputation.

The defendant might successfully claim ‘justification’ (now ‘truth’) if the statement makes it
clear that the defamatory imputation is, in fact, false. In other words, if the untruthfulness
of the statement is clearly stated, see: Charleston and Another v News Group Newspapers
Ltd [1995] 2 WLR 450. Note also: S 13 Civil Evidence Act 1968 and the Rehabilitation of
Offenders Act 1974. See Dhir v Saddler [2017] EWHC 3155 (QB); [2018] 4 W.L.R. 1; Times,
January 2, 2018 for an interesting case where the defence of truth failed, and relying on it
with no evidence led to an award of aggravating damages.

Honest opinion (Formerly Honest comment (Fair comment))

S.3 of the Act replaces the common law defence of ‘fair comment’ (or ‘honest comment’ as
it was known since a direction from the House of Lords in Joseph v Spiller [2010] UKSC 53).
In essence it allows a defence that the statement was a piece of criticism based upon true
facts. S. 3 differs from the common law in that it does not require the opinion to be on a
matter of public interest.

This defence relates mostly to editorial comments, etc. It must be an opinion, and not a
statement of fact, and must indicate in either general or specific terms, what the basis for
the opinion is. Further, it must be an opinion that is capable of being held by an honest
person.

Under the common law this defence was defeated if the claimant could show that the
defendant was acting with malice – s. 3(5) instead states that the defence is defeated if it
can be shown that the defendant did not actually hold the opinion.

Privilege
The defence of privilege protects the makers of certain defamatory statements because the
law considers that in the circumstances covered by this defence, free expression is more
important than protection of reputation. In other words, these are occasions where it is
important that people are allowed to say what they think without fear of legal action. In
some instances the protection is absolute, and in others qualified by certain conditions
(such as that the maker of the statement should actually hold the opinion she utters). Both
absolute and qualified privilege was mostly codified in the Defamation Act 1996, which is
still in operation. The Defamation Act 2013 extends the protection given by the 1996 Act in
s. 7.

Absolute privilege

This defence protects the makers of certain defamatory statements because the law
considers that in the circumstances covered by this defence free expression is more
important than protection of reputation. The law, therefore, gives some statements
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absolute privilege, which means that it is impossible to sue the person who makes that
statement. Absolute privilege covers the following statements:

• Any statement made in Parliament or in any Parliamentary report. (Bill of Rights

1688 and Parliamentary Papers Act 1840). See: Church of Scientology of California v
Johnson-Smith [1972] 1 QB 522; Hamilton v Al Fayed [2002] (HL) QB 1175; Curistan v
Times Newspapers Ltd [2008] EWCA Civ 432.
• Statements made in the course of proceedings before any court or tribunal whether
by the judge, counsel, witnesses or the parties. See: Minter v Priest [1930] AC 558;
Taylor v Serious Fraud Office [1999] 2 AC 177. On witnesses: Buckley v Dalziel [2007]
1 WLR 2933. Includes blogs reporting on court cases - Alsaifi v Amunwa [2017] EWHC
1443 (QB); [2017] 4 W.L.R. 172
• Fair and accurate media reports of public judicial proceedings (S 14 Defamation Act
1996).
• Communications between officers of the state. Ministers and Secretaries of State are
officers of the state, but it is not clear how far absolute privilege extends to any
ranks below that. The rule does not give blanket immunity for all communications
between civil servants. It seems that the rule is restricted to those few cases where it
is essential that there should be total freedom of communication. See: Chatterton v
Secretary of State for India [1895] 2 QB 189; Merricks v Nott-Bower [1965] 1 QB 57.
• Statements made by officials or other servants of the EU in the exercise of their
functions.
• Any statement made by one spouse to another.

Qualified privilege

This is a more limited form of privilege but it has the same effect as absolute privilege: it
means that the statement cannot be used in a court of law.

Qualified privilege at common law

At common law, the traditional statement of when qualified privilege will apply comes from
Lord Atkinson in Adam v Ward [1917] AC 309:

‘A privileged occasion is … an occasion where the person who makes the communication has
an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and
the person to whom it is so made has a corresponding interest or duty to receive it. This
reciprocity is essential.’

For an example, see: Watts v Longsdon [1930] 1 KB 130.

It is for the court to decide whether an interest/duty exists. The court will take account of all
relevant circumstances, and, in particular, whether there was a relationship of
confidentiality between the speaker and the recipient; and, whether the information given
was in response to a request or voluntarily. See: Bryanston Finance Co v de Vries [1975] QB
703 and Kearns v General Council of the Bar [2003] 1 WLR 1357.
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The question was raised whether there should be a generic category for media reports
covering political information and debate in: Reynolds v Times Newspapers Ltd [1999] 4 All
ER 609. This case established what is now called the Reynolds defence. The House of Lords
emphasised the importance of freedom of expression and acknowledged the importance of
the role played by the media to inform the public at large of political matters so they could
make informed choices about, for example, whom to vote for. But they also pointed out
that it was in the public interest for individuals such as politicians to be able to defend their
reputation against false allegations because, to make such informed choices, voters needed
to know who was good as well as who was bad.

In the Reynolds case, the Law Lords therefore developed a new form of qualified privilege
defence for responsible journalism which seeks to protect information published fairly and
responsibly in the public interest. The Lords listed ten factors which should be taken into
account when deciding whether the defence would succeed:

1. the seriousness of the allegation

2. the nature of the information and whether it is of public concern
3. the source of the information
4. the steps taken to verify the information
5. the status of the information
6. the urgency of the matter
7. whether the claimant was asked to comment on the story
8. whether the article contained at least the gist of the claimant’s side of the story
9. the tone of the article
10. the circumstances of the publication including the timing

The Law Lords also stressed that the list is not exhaustive and that other factors might be
taken into account. In Loutchansky v Times Newspaper Ltd (No.2) [2002] QB 580, the Court
of Appeal stressed that the Reynolds test was one of responsible journalism. See also:
Galloway v Telegraph Group Ltd [2006] EWCA Civ 17 and Jameel and Others v Wall Street
Journal [2006] 4 All ER 1279, where the defence was used and further explained by the
House of Lords. In Seaga v Harper [2008] 1 All ER 965, the Privy Council stated that the
Reynolds privilege defence is now available to non-media defendants. The Reynolds defence
failed in Charman v Orion Publishing Group Ltd [2008] 1 All ER 750, but succeeded in Roberts
v Gable [2008] QB 502. See also Flood v Times Newspapers Ltd [2012] UKSC 11.

We return to look at what happened to the ‘Reynolds defence’ in terms of the 2013 Act
below.

The defence of qualified privilege may also apply where a person who has a lawful interest
to protect makes the communication to another person who has a corresponding interest or
duty to protect. The interest may be personal to either party or common to both.

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A good example of qualified privilege would be when an employment reference is given.

However, keep in mind that qualified privilege is subject to one important restriction: it
does not cover statements made with malice or with a bad motive, or if the person making
it did not honestly believe it was true, or both.

Section 6 of the 2013 Act expressly provides privilege to statements published in peer
reviewed scientific or academic journals.

S15 of the Defamation Act 1996 (now extended by s. 7 of the 2013 Act), provides that
certain types of statements are subject to qualified privilege. These include fair and accurate
reports of ‘proceedings in public’, which include, amongst others, proceedings of
legislatures, courts, public inquiries, international organisations or conferences, publicly
listed companies etc. An important caveat (precondition) to s. 15 is that the matter
reported must be of public interest – which brings us to the next defence.

Publication on matter of public interest (based on the common law ‘Reynolds

defence’)
Section 4 of the 2013 Act is clearly based on, but abolishes the Reynolds defence. This
section simply states that it is a defence to show that the statement was on a matter of
public interest and that the defendant reasonably believed that publishing the statement
was in the public interest. Further, subsection 2 states that when a court has to decide
whether the statement was in the public interest, it ‘…must have regard to all the
circumstances of the case’. It remains to be seen how the courts will interpret this section
when it comes into operation – most probably they will continue to use the factors listed in
Reynolds.

Author, editor or publisher (s 10) and Operators of websites (s 5) (used to be

‘Innocent publication’ under common law)
This used to be known in the common law as ‘innocent publication’ and aims to protect
those who do not have any editorial control over the material they handle. The defence
extends to those who provide access to information on the internet where the information
is provided by a person over whom the service provider has no control.

Section 5 of the Defamation Act 2013 now deals with actions that are brought in defamation
against operators of websites in respect of a statement posted on the website. In such an
instance the operator can raise as a defence that it was not the operator who posted the
statement. If the real author cannot be identified (and therefore sued) by the claimant,
however, the claimant will be entitled to complain to the operator and if the operator does
not respond to the complaint, it may be sued in defamation. The law around internet
defamation is complex and evolving and this is reflected in the fact that detailed regulations
were enacted to flesh out section 5. See in this regard the Defamation (Operators of

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Websites) Regulations 2013/3028. Section 10 deals with more ‘traditional’ publishers but
provide basically the same as it relates to defendants who do not exercise editorial control.

Consent
A person who consents to publication cannot later complain that it is defamatory: Cookson v
Harewood [1932] 2 KB 487.

Offer of amends
This is not strictly a defence, but it can have a similar effect. It is based on S 2 of the
Defamation Act 1996 and it provides a way for claimants to get an apology and
compensation at an early stage, so avoiding the costs of a trial. The defendant is required to
make a written offer to publish a sufficient apology or a suitable correction in a way which is
reasonable and practical and pay damages. The claimant decides whether to accept the
offer or not. If he/she accepts, the parties settle between themselves, although the court
can decide the appropriate compensation or the nature of the apology if the parties cannot
agree. Acceptance means that the action for defamation against that particular publication
ends. If the claimant does not accept the offer, it can then be pleaded as a defence provided
that it can be proved that, at the time the statement was made, the defendant knew or had
reason to believe that the statement referred to the claimant or was likely to be understood
as doing so and that it was false and derogatory. The offer can also be used in mitigation of
damages, whether or not it has been relied on as a defence. The defendant must make the
offer before putting forward any other defence and it cannot be made later. See also S 4 of
the Defamation Act 1996 and Milne v Express Newspapers [2003] 1 WLR 927.

Once an offer is accepted by the claimant, it cannot be withdrawn by the defendant: Warren
v Random House [2009] 2 WLR 314.

Malice

The defence of qualified privilege cannot apply where a statement is made with malice.
(This also used to be the case for the common law defence of ‘fair comment/honest
comment’ but has not been retained by the Defamation Act 2013 for the commensurate
defence of honest opinion.) To establish malice in relation to a defence of qualified
privilege, the claimant must prove that the defendant took advantage of the nature of the
material to make statements which were not believed to be true or to vent spite or ill-will
on the claimant or for some other improper motive. So the burden of proving malice rests
on the claimant. When a defendant is motivated by ill-will, but nevertheless honestly
believes that the statement is true, there is no malice: Horrocks v Lowe [1975] AC 135.

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Remedies

Injunction
The claimant may seek an injunction in two circumstances:

• In rare cases to prevent publication of the defamatory statement. There will be no

restraint of publication unless the claimant can prove a very strong case. See: S 12
Human Rights Act 1998 and CC v AB [2006] EWHC 3083.
• To prevent the statement from being repeated.

Damages
These can be given to compensate for the claimant’s loss, but exemplary damages, to
punish the publisher of the statement, may also be made: Cassell v Broome [1972] AC 1027.

There was historically a right to jury trial in the High Court: see the Supreme Court Act
1981, S 69 and Safeway Stores plc v Tate [2001] 4 All ER 193. If the case is heard by a judge
and jury, the judge decides, as a matter of law, whether the words are capable of being
defamatory (Capital & Counties Bank Ltd v Henty & Sons [1882] LR Appeal Cases 741). The
jury will then decide whether, as a matter of fact, the words are defamatory. The jury will
also decide on the amount of damages subject to the restraints below.

Because in a number of cases juries awarded what appeared to be excessively high

damages, especially in comparison with damages awarded for personal injury claims, the
Court and Legal Services Act 1990 established the power for the Court of Appeal to review
the level of damages awarded by the jury and to substitute its own assessment of an
appropriate figure. This has led to some spectacular reductions, see: John v Mirror Group
Newspapers [1996] 2 All ER 35; Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB
670; Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024. The Court of Appeal
does not always disagree with the jury’s assessment though: Kiam II v MGN Ltd [2002]
EWCA Civ 43. Remember though that the 2013 Act in s. 11 restricts jury trials, so we may
expect judicial restraint in awarding damages. In any event, there is now a ceiling on
general damages of £200,000 and there is also a procedure under section 8(3) of the
Defamation Act 1996 for summary disposal of claims – if the summary procedure is
followed, the cap is at £10,000. See Yeo v Times Newspapers Ltd [2015] EWHC 2132 in this
regard.

Publication of summary of court judgment

Section 12 of the 2013 Act provides that the court could order the defendant to publish a
summary of the judgement. This of course is a useful tool where the parties cannot agree
on the wording of an appropriate apology to be published.

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Lecture 17: Misuse of Private Information

Learning Objectives:
On completion of this topic you will be able to:

• Explain and how the tort misuse of private information developed out of the tort of
breach of confidence;
• Discuss how privacy is protected by means of the tort of misuse of private
information and how the tort is committed;
• Apply the tort and its remedies to a set of facts.

Reading:

Textbook Elliott & Quinn ch. 12

Cases Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

Vidal-Hall v Google Inc [2014] EWHC 13 (QB)

Journal articles Wragg, Paul ‘The duty to hack, steal and betray confidences?
Press freedom and the “Paradise Papers” affair’ Communications
Law 2018, 23(3), 109 - 112

The following synopsis is taken from Elliott & Quinn, ch. 12:
There is no specific tort of privacy in English law, but the law of confidentiality has developed to
protect privacy.

The traditional tort of breach of confidence protects against the disclosure of confidential
information. It applies where:

• the information is private;

• the defendant is under an obligation of confidence;

• the defendant makes unauthorised use of the information.

Outside these rules, there was traditionally no specific protection for personal privacy. Since 2001,
the courts have developed the law of confidentiality, creating a new type of claim, sometimes
called ‘misuse of private information’. It uses a two-stage test:

• Did the claimant have a reasonable expectation of privacy?

• Is that right more important than another’s right to freedom of expression?

There is a reasonable expectation of privacy where information was obviously private or

disclosure would give substantial offence to someone in the claimant’s position.

There are two potential remedies for breach of confidence/misuse of public information actions:

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• injunctions;

• damages.

From Breach of Confidence to Misuse of Private Information

Although no specific privacy tort exists in England and Wales, you should remember that the
right to privacy is protected in another area of law namely human rights, where its
protection has developed significantly since the Human Rights Act (HRA) 1998. However,
some protection of privacy interests is nevertheless also possible in tort law, through
existing torts and statutory mechanisms. For instance, privacy is protected to some extent
through the torts of trespass (to person and land), private nuisance, malicious falsehood,
the Protection from Harassment Act 1997, and defamation. If you also consider regulations
such as contained in the Data Protection Act 1998, the General Data Protection Regulation
(GDPR) and miscellaneous property and equity rights, then as a whole privacy is indeed
strongly protected.

So, all in all it might be said a ‘tort of invasion of privacy’ exists ‘in all but name’.

Even so, the fact remains that there has been a long-standing reluctance on the part of both
Parliament and the judiciary to create a specific tort of invasion of privacy. This reluctance
can be explained by the difficulty in defining (or unwillingness to define) what the right to
protect one’s privacy actually includes. The notion of privacy is not the same for all people.
It has variously been described as ‘the right to be let alone’, to be free from an ‘unwanted
gaze’ or ‘unauthorised interference with a person’s seclusion of himself’ or to have
unfettered control of information about or images of oneself.

In recent years, however, the courts have nevertheless developed the (equitable) principle
of breach of confidence to such an extent that we have witnessed a distinct tort protecting
privacy emerging. The tort is now called the tort of misuse of private information (as
confirmed in Google Inc v Vidal-Hall and others [2015] EWCA Civ 311) and you will often see
it referred to by the abbreviation MOPI.

Breach of confidence – the forerunner to misuse of private information

Breach of confidence stemmed from equity and is designed to protect ‘secrets’ or

confidential information. There is a three-staged test for claims of breach of confidence
which derive from the case of Coco v AN Clark (Engineers) Ltd [1968] F.S.R. 415:

a. Does the information have the necessary quality of confidence?

b. Was the information imparted in circumstances importing an obligation of
confidence?
c. Has there been an unauthorised use of the information?

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The action was primarily used to protect commercial secrets. Conventionally, a pre-existing
relationship was required to bring about the duty. (Eg. Doctor-patient, attorney-client, etc.)
So, there would only be limited application in the context of personal secrets, for example in
a marital relationship or between a party and someone taken into their confidence.
However, in Attorney General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, a case
relating to the publication of the controversial Spycatcher book, Lord Goff declared that a
duty of confidentiality exists when: confidential information comes to the knowledge of a
person … in circumstances where he has notice or is held to have agreed that the
information is confidential with the effect that it would be just in all the circumstances that
he should be precluded from disclosing the information to others. (at 281)

A duty will arise if a party gains information and knows (or ought to know) that they would
be expected to keep it confidential, however it was obtained. The far broader implications
for the protection of privacy are clearly illustrated by Venables v News Group Newspapers
[2001] 2 WLR 1038: an injunction was imposed against the whole world to prevent
disclosure of information that might reveal the identity or whereabouts of the killers (who
had themselves been children at the time of the murder) of toddler Jamie Bulger. The
justification for this was that another right was at issue—the right to life of the claimant—
who might suffer at the hands of members of the public if his identity was revealed (at
1069).

The defence to a breach of confidence claim is to show that disclosure of the information,
though confidential in nature, is justified in the public interest. That is, the public interest in
disclosure must be weighed against the interest of the claimant in maintaining
confidentiality. In Douglas, Zeta-Jones and Northern & Shell plc v Hello! Ltd [2005] 4 All ER
128 breach of confidence essentially became a privacy action in all but name.

Douglas opened the door for other privacy claims, most involving high-profile claimants.

At this stage:

Remember that Breach of Confidence is an equitable cause of action, rather than a tort.

But a tort did develop: What might be deemed a major turning point for the law on privacy,
occurred when supermodel Naomi Campbell tried to suppress publication of details of her
rehabilitation from drugs. This case (Campbell v Mirror Group Newspapers Ltd [2004] UKHL
22) is regarded as giving birth to the modern tort of misuse of private information.

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Misuse of private information

Misuse of private information ("MOPI") is a tort that concerns the unauthorised and
unjustified disclosure of private information. Claims for MOPI may arise against the media,
for instance where a newspaper wishes to run a story exposing an individual, where private
information has been published online (or where a threat is made) or simply where
information is passed from one person to another. These are common examples, but the
tort's scope is far-reaching.

To determine liability for MOPI, the court performs a two-stage test.

First, the court will consider whether the information in question is something over which
the claimant has a "reasonable expectation of privacy". If the answer to this question is
"no" then the claim will fail at the first hurdle. If the answer is "yes", then: Second, the court
will perform a "balancing exercise" giving consideration to all of the relevant circumstances.
This will pit the claimant's right to respect for privacy against the defendant's right to
freedom of expression.

1. Reasonable expectation of privacy

To determine whether a claimant has a reasonable expectation of privacy the court will
consider what "…a reasonable person of ordinary sensibilities would feel if [he/she] was
placed in the same position as the claimants" (Campbell). Examples include detailed
information relating to an individual's relationships, health, sex life/sexual preferences,
personal correspondence, financial information and intimate/personal photographs. There
is less likely to be a reasonable expectation of privacy where the information is trivial or
the claimant has consented to its use in some form.

A defendant can seek to argue that the claimant has no reasonable expectation of privacy if
the information is already in the public domain, but this is not an absolute defence. The
court will consider the degree of further encroachment and the nature of the information.
See for instance Contostavlos v Mendahum [2012] EWHC 850 (QB).

2. Balancing test

If it is established that a claimant has a reasonable expectation of privacy, the court then
has to consider whether it is necessary and proportionate to limit the claimant's privacy
rights in favour of competing interests, specifically freedom of expression. The court will
consider a variety of issues, such as the claimant’s attitude to their own privacy, whether
consent was given, the reasons for publication, the nature of the information, whether the
matter concerns a public figure such as a politician who should expect deeper scrutiny than
‘ordinary’ people, etc.

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Of particular importance is whether publication would be in the public interest. However,

the courts have held that just because the public is interested in something, does not mean
that it is in the public interest: The Court of Appeal in K v News Group Newspapers Ltd
[2011] EWCA Civ 439 held that the defendant was unlikely to establish that there was any
legitimate public interest in the fact that the celebrity claimant had had an affair or in the
publication of its salacious details.

Defences

The main defence would be the public interest defence. However, take note that the
defences for defamation do not automatically apply to privacy cases! In particular, note
that it is not a defence to a MOPI claim to argue that the information disclosed is true (e.g. a
newspaper publishing a story concerning an actor having an affair cannot simply justify it by
proving that it is true). Conversely, it is not a defence to argue that the information is false.
Information that is private, but false (e.g. publications about sexual relationships that never
took place) is termed "false privacy" and the claimant is afforded the same protection
because the misuse of such information still constitutes an intrusion into his/her private life.

Remedies

The main remedy is an injunction, although damages could also be sought. Note regarding
injunctions, the ‘Spycatcher principle’: Interim privacy injunctions are subject to this
principle (Attorney General v Times Newspapers Ltd [1992] 1 A.C. 191): not only a defendant
is prohibited from disclosing information, but also anyone who has been given notice of the
injunction (this is to hold the status quo and to prevent the purpose of the proceedings
being frustrated before the trial). Traditionally it was believed that the Spycatcher principle
did not apply to final injunctions, although this has been the subject of some debate. In OPQ
v BJM [2011] EWHC 1059 (QB), following the lapse of an interim injunction, Eady J granted a
contra mundum order (an injunction against the whole world) preventing the dissemination
by third parties of the confidential and private information which had been the subject of
the claim.

Regarding damages: The purpose of damages in privacy proceedings is to compensate the

claimant for damage, injury to their feelings and distress arising from the misuse of their
private information. In Hannon v News Group Newspapers Ltd [2014] EWHC 1580 (Ch),
Mann J said that he could see no reason in principle why damage to reputation could not be
recovered in the context of a privacy claim. However, practitioners should tread carefully.
The appropriate cause of action for reputational damage will normally be defamation or
malicious falsehood.

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Other ways to protect privacy

Data Protection law

The UK implemented its obligations under the EU’s General Data Protection Regulation
(GDPR) by enacting the Data Protection Act 2018. In short, the Data Protection Act does the
following:

• Implements GDPR standards across all general data processing.

• Provides clarity on the definitions used in the GDPR in the UK context.
• Ensures that sensitive health, social care and education data can continue to be
processed while making sure that confidentiality in health and safeguarding
situations is maintained.
• Provides appropriate restrictions to rights to access and delete data to allow certain
processing currently undertaken to continue where there is a strong public policy
justification, including for national security purposes.
• Sets the age from which parental consent is not needed to process data online at age
13, supported by a new age-appropriate design code enforced by the Information
Commissioner.

An Information Commissioner is appointed to regulate and enforce data protection laws.

The Information Commission can levy fines on data controllers and processors of up to
£17m for the most serious data breaches.

Protection from Harassment Act 1997

A breach (or threatened breach) of privacy which is part of a series of two or more acts, may
form part of a course of conduct which amounts to harassment if the defendant knows, or
ought to know, the conduct amounts to harassment. Harassment is prohibited under s.1 of
the Protection from Harassment Act 1997. Harassment is both a statutory tort (s.3) for
which a claimant can seek damages and/or an injunction and a criminal offence (s.2).

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Lecture 18: Miscellaneous torts: the economic torts

In the final two lectures, we examine a number of torts not yet discussed. We do not look at
them in the same detail as the other tort we studied this year, because they do not appear
in court as often. This overview therefore does not go into too many details of each subject
and you are referred to further reading on the reading list for individual study on each
subject.

Learning Objectives for lectures 18 - 19

On completion of this topic you will be able to:

• Understand how harassment is addressed in tort

• Understand the bases for liability for animals under statute and common law
• Explain the defences against claims for damage caused by animals.
• Explain the character of economic torts
• Understand and be able to apply the essential elements of deceit, malicious
falsehood and passing off.
• Describe the general character of breaches of statutory duties.
• Understand when statutory duties give rise to liability in tort.
• Identify the main area in which breach of statutory duties plays a role.
• Understand the main defences against breach of statutory duty.

Reading

Cases Cruddas v Calvert [2013] EWCA Civ 748

Draper v Hodder [1972] 2 QB 556

Erven Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731

Welsh v Stokes [2007] EWCA Civ 796

Woolley v Ultimate Products Ltd [2012] EWCA Civ 1038

Journal articles A. Amirthalingam, ‘Animal Liability – Equine, Canine and Asinine’,

(2003) 119 LQR 565.

S. Deakin and J. Randall, ‘Rethinking the economic torts’ (2009)

72(4) M.L.R. 519

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Liability for animals

Liability for damages caused by animals is imposed by statute (the Animals Act 1971) or by
common law on the owner or the person in control of the animal at the time when the
damage occurred.

Statutory liability
The Animals Act 1971 distinguishes between dangerous and non-dangerous animals. The
basic principle is that a person, who keeps a dangerous animal, as defined by S 6(2), has
strict liability for any damage this animal may cause. A person who keeps a domesticated
animal which is usually regarded as harmless, will only be liable if the animal has given cause
to fear that it has unusual characteristics which make it potentially dangerous. Liability is
imposed on the keeper of the animal (See S 6(3)). The question whether an animal is a
dangerous species is a question of law, not a question of fact. Liability for a dangerous
animal is independent of fault (so it is strict liability) and it is independent of knowledge of
the animal’s dangerous characteristics: Mirvahedy (FC) v Henley and Another [2003] UKHL
16.

Under S 2(2) of the Act the keeper of an animal which does not belong to a dangerous
species is liable if:

• the damage is of a kind which the animal, unless restrained, was likely to cause or
which, if caused by the animal, was likely to be severe; and,
• the likelihood of the damage or of it being severe was due to characteristics of the
animal which are not normally found in animals of the same species or are not
normally so found except at particular times or in particular circumstances; and
• those characteristics were known to that keeper or were at any time known to a
person who at that time had charge of the animal.
All three conditions must be fulfilled. However, they are not very clear and have given rise
to a number of cases. See also: Clark v Bowlt [2006] EWCA Civ 978; Welsh v Stokes [2007]
EWCA Civ 796; McKenny v Foster (t/a Foster Partnership) [2008] EWCA Civ 173 and Turnbull
v Warrener [2012] EWCA Civ 412.

The Act sets out a number of defences a keeper can use against claims for damage caused
by dangerous or non-dangerous animals:

• Fault of claimant (S 5(1));

• Voluntary assumption of risk (S 5(2));
• Liability to trespassers: a person is not liable if a trespasser is injured by an animal
which is not being kept for the purpose of protection of persons or property, or, if it
is kept for the purpose of protection, where it was not unreasonable to do so (S
5(3)(a)(b)). Note that the Guard Dogs Act 1975 now imposes stringent conditions for
the use of guard dogs. See: Cummings v Granger [1977] QB 397.

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The Animals Act 1971 also covers liability for livestock (defined in S 11) for damaging
someone’s land or property onto which the animals have strayed (S 4). S 8 imposes a
general duty to prevent livestock from straying onto the highway, with some areas
excepted. The keeper of a dog which causes damage to livestock is liable for that damage
under S 3, while S 9 provides that a person who kills or injures a dog in these circumstances
is not liable for that damage provided certain conditions are satisfied.

Liability at common law

Liability for animals at common law can fall under the following torts: negligence: Draper v
Hodder [1972] 2 QB 556; nuisance: Leeman v Montague [1936] 2 All ER 1677; trespass to
land; trespass to the person; or, trespass to goods.

Economic torts
These torts are concerned with interference with a person’s economic interests or
livelihood.

Deceit
The tort of deceit is committed when the defendant makes a false statement to the
claimant, knowing it to be false, or reckless as to its truth, with the intention that the
claimant acts on it, the claimant does act and suffers damage as a result. The significance of
this tort is that a successful claimant is able to recover not just for financial loss but also for
physical loss or injury. The requirements are:

• that the defendant makes a false statement to the claimant or a class of people
including the claimant: With v O’Flannagan [1936] Ch 575.
• that the defendant knows that the statement is false or is reckless in making it.
Ludsin Overseas Ltd v Eco3 Capital Ltd [2013] EWCA Civ 413. To be reckless means to
be indifferent whether the statement is true or not: Derry v Peek (1889) 14 App Cas
337.
• that the defendant intends that the claimant will rely for his conduct on the false
statement. It is insufficient merely that is it foreseeable that the claimant might act
on the statement. The claimant must show that he/she did in fact act on the
statement and suffered detriment as a result. The statement does not need to be
the only reason the claimant acted, as long as it is one of the reasons. Langridge v
Levy (1837) 2 M&W 337.
• that the claimant does indeed suffer damage as a result of having relied on the
statement. All losses that can be seen as a direct consequence of the deceit can be
recovered, including economic loss, personal injury, property damage or distress and
inconvenience. Smith New Court Securities Ltd v Scrimgeour Vickers Ltd [1996] 4 All
ER 769.

Malicious falsehood
This is sometimes referred to as injurious falsehood. It is a general class of torts covering
loss of reputation through false statements. See: Kaye v Robertson [1991] FSR 62; Joyce v

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Sengupta [1993] 1 WLR 337 and Cruddas v Calvert [2013] EWCA Civ 748. These torts have
the following elements:

• The defendant must have made a false statement about the claimant. De Beers
Abrasive Products Ltd v International General Electric Co of New York [1975] 1 WLR
972.
• The statement must have been calculated to cause damage to the claimant. This
means that the damage was foreseeable.
• The statement must have been made to a third party.
• The statement must have been made maliciously. The claimant has the burden of
proof on this. Malice does not necessarily involve dishonesty on the part of the
defendant, but it does involve the absence of just cause or belief in the statement.
• The statement must have caused damage to the claimant. This can be pecuniary loss
as well as damage to property. The test of remoteness of damage is based on
reasonable foreseeability.

Passing off
This tort has much in common with deceit and malicious falsehood. The defendant commits
the tort by passing off his/her goods as those of the claimant and thus profiting from the
claimant’s goodwill or commercial reputation. It is the claimant’s financial interest in his/her
property which is protected by the tort. In Erven Warnink BV v J Townend & Sons (Hull) Ltd
[1979] AC 731, the House of Lords produced the following five elements that need to be
present to establish the tort of passing off:

• A basic misrepresentation.
• Made by a trader in the course of pursuing his/her trade. Trade has been given a
wide interpretation.
• Directed towards prospective customers or ultimate consumers of his/her goods or
services.
• That was calculated to, or would foreseeably damage the business or goodwill of
another trader.
• Which caused actual damage to the business or goodwill of the claimant or would
probably do so. Therefore, the claimant does not need to show actual damage, it is
sufficient that damage is the probable result of the passing off.

See also: Cadbury-Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1981] 1 WLR 193 and Woolley
v Ultimate Products Ltd [2012] EWCA Civ 1038.

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Lecture 19: Miscellaneous torts: Breach of statutory duty

Reading:

Textbook Elliott & Quinn ch. 10

Cases Rux v Slough Metals Ltd [1974] 1 All ER 262

Lonhro Ltd v Shell Petroleum Company (No 2) [1982] AC 173

McDonald (Deceased) v National Grid Electricity Transmission plc

[2014] UKSC 53

Journal articles P. Limb & J. Cox., ‘Section 69 of the Enterprise and Regulatory
Reform Act 2013 - plus ca change?’ (2013) JPIL 1

Statute Enterprise and Regulatory Reform Act 2013 s 69 – read the

Pepper v Hart note in the preamble to the Act, explaining why
and in which way this section amends the Health and Safety etc.
at Work Act 1974, s47.

Where a statute imposes a duty on a person, breach of that duty may give rise to an action
leading to criminal sanctions but also to an action for damages by a person injured as a
result. This is known as the tort of breach of statutory duty. It is common to plead a breach
of statutory duty with negligence in the alternative in the same claim. For the difference
between an action for statutory duty and for negligence see Bux v Slough Metals Ltd [1974]
1 All ER 262. The action has played a role in industrial safety cases, but appears to be less
successful in other fields of law.

Proving liability: Elements of breach of statutory duty

The claimant in an action for breach of statutory duty needs to show that:

1. The statute creates civil liability or, in other words, confers an action for damages. The
test of whether a statute gives rise to civil liability was established in Lonhro Ltd v Shell
Petroleum Company (No 2) [1982] AC 173. Lord Diplock stated that you have to start
with the presumption that where an Act creates an obligation, and enforces the
performance in a specific manner, then it is not enforceable in another manner. There
are two exceptions to this general principle:
a) Where an obligation or prohibition is imposed under the Act to benefit a particular
class of individuals: Cutler v Wansworth Stadium [1949] AC 398; R v Deputy Governor
of Parkhurst Prison ex p Hague [1992] 1 AC 58.
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b) Where the provisions of the Act creates a public right but the claimant suffered
particular, direct and substantial damage different from that which was common to
the rest of the public.
The courts determine Parliament’s intent by reference to various factors:

a) The more precise the wording of the statute, the more likely it is that the breach of
the duty will give rise to a civil action for damages.
b) If the Act imposes a duty but there is a failure to mention a specific penalty then it is
likely to give rise to a civil action.
c) Some groups commonly benefit from statutory duties and so in certain instances
there are well-established principles of civil liability.
A civil action is also more likely where the duty concerns the welfare of an identifiable
group. But, there must be a direct link between the group and the purpose of the
statute and the purpose must be for the benefit of that class. A civil action will not be
possible in any case where the court feels that the duty is intended to be enforced by
other means.

2. There is a duty of care owed to the claimant. The claimant has to show that the statute
intended that a duty should be owed to him/her as an individual or as a member of a
specific class of individual. So it is necessary to show that Parliament intended to create
private law rights before an action is possible. Gorris v Scott (1874) 9 LR Exch 125. Baker
v Quantum Clothing [2011] UKSC 17.
3. There is a duty of care imposed on the defendant. The statute must impose civil liability
on the defendant otherwise there is no course of action. This must be established by
reference to the direct wording of the statute.
4. The defendant has breached the duty by falling below the standard identified in the
statute. There is no single standard of care in case of breaches of statutory duties. The
court must assess the exact standard by construing the statute itself. John Summers and
Sons Ltd v Frost [1955] AC 740; Robb v Salamis Ltd [2007] 2 All ER 97.
5. The breach of the duty is the cause of the damage suffered by the claimant. There must
thus be a direct causal link between the defendant’s breach of statutory duty and the
damage suffered by the claimant. Causation is measured in similar ways to common law
negligence and the ‘but for’ test is significant in establishing a causal link. McWilliams v
Sir William Arrol & Co Ltd [1962] 1 WLR 295.
6. The damage is of the type contemplated in the statute. This is similar to the test of
remoteness of damage in normal negligence actions.

Recently, the Enterprise and Regulatory Reform Act 2013 in section 69 enacts that there will
be no civil right of action for breach of a duty imposed by certain health and safety
legislation (such as the Health and Safety at Work, etc. Act), other than where such a right is
specifically provided for. This section only came into effect in April 2013 but given its
content will probably have a significant impact on what is written and decided about breach
of statutory duty because in effect, it reverses the presumption of actionability for breach of
health and safety regulations. This means that it will be much more difficult for employees

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who are injured at work to succeed in personal injury claims against their employers (revise
Unit 2 above, where we looked at employers’ liability.)

Note that these cases must be distinguished from cases in which the allegation is that a
government body has been negligent in the use of a statutory power (e.g. The Dorset Yacht
Case: Home Office v Dorset Yacht Co Ltd [1970] 2 All ER 294).

Defences
There are two defences: volenti non fit injuria and contributory negligence. Neither will be
very easily be accepted by the courts, because statutes are often designed to protect
workmen from their own carelessness. However keep in mind the provisions of the recently
enacted Enterprise and Regulatory Reform Act 2013.

Although most statutory regimes impose strict liability, for most of them contributory
negligence is also accepted as a defence – but how does that square with this defence being
a relative attribution of fault? In Blackmore v Department for Communities and Local
Government [2017] EWCA Civ 1136; [2018] Q.B. 471; [2018] 2 W.L.R. 139; [2018] P.I.Q.R. P1;
Times, September 22, 201 on the Apportionment of liability the Court of Appeal held that
the trial judge was correct to reject the department's submission that apportionment on
grounds of contributory negligence should be in the proportions by which exposure to
asbestos and smoking increased the risk of contracting lung cancer. In carrying out the s.1
apportionment exercise, he gave appropriate weight to all of the competing considerations
and underlying policies. Had his approach been limited to an assessment of relative
contributions to causation, it would necessarily have failed to differentiate between the
blameworthiness of the department in exposing employees to asbestos and that of the
deceased in smoking. Such an approach would have been wrong in principle. There was a
particular policy underlying Parliament's strict prohibition of the exposure of workers to
asbestos and other harmful substances which needed to be reflected in the apportionment
of responsibility. The judge was right to give very considerable weight to the
blameworthiness of the department in exposing the deceased to asbestos in breach of a
strict statutory duty in circumstances where the dangers of asbestos were well known. By
comparison, a lesser degree of blame attached to the deceased's conduct in continuing to
smoke after the dangers of smoking to health became known (paras 37-40)

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Lecture 20: Defences and remedies

Learning Objectives:
On completion of this topic you will be able to:

• Explain the general defences which can be used against most torts.
• Understand the circumstances in which these defences apply.
• Understand which remedies are available in a tort action and how they are awarded.
• Understand the significance of limitation periods.
• Distinguish the different limitation periods for different torts.

Reading:
Textbook Elliott & Quinn ch. 19

Defences
Under this heading we will discuss the defences which are available to most torts. Many of
these defences have been mentioned or discussed in earlier lectures, so much of what we
look at here will be revision.

(1) Consent/Voluntary assumption of risk (volenti non fit injuria)

A person who consents to damage or injury or to the risk that these may occur cannot later
complain and make the defendant liable for what has happened. Consent can be express or
implied. To decide whether the claimant has given his/her consent it must be shown that
he/she was aware of the risk and accepted it freely: Smith v Baker [1891] AC 325. This is a
total defence, which means that if successful, the defendant will not be liable. It must be
noted that the volenti defence can only play a role once it has been shown that the
defendant committed a tort: Wooldridge v Sumner [1963] 2 QB 43.

There are a number of special areas in relation to this defence:

• where an employee claims against an employer: Smith v Baker [1891] AC 325; Bunker v
Brand [1969] All ER 59; But see ICI v Shatwell [1965] AC 656; and Stapley v Gypsum
Mines [1953] AC 663;
• where the claimant is a passenger in a car with a drunk driver: Dann v Hamilton [1939] 1
KB 509: but see: Pitts v Hunt [1991] 3 All ER 44 (illegality);
• where the claimant takes part or is a spectator in a sporting event: Simms v Leigh Rugby
Football Club [1969] 2 All ER 923; Condon v Basi [1985]2 All ER 453;
• in medical cases (see under trespass to the person);
• where the Unfair Contract Terms Act 1977 is applicable. Article 1(3) of this Act limits the
availability of the defence where there is business liability (not therefore where the
defendant is a charity: White v Blackmore [1972] 2 QB 651). See also Section 65(2) of
the Consumer Rights Act 2015.

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(2) Contributory negligence

Since 1945, this is only a partial defence, in that, if it is successful, the damages awarded will
be adjusted. Before that time it was a complete defence. The principle can be found in the
Law Reform (Contributory Negligence) Act 1945, S 1(1) and is not limited to claims for
negligence, but can be used in relation to most torts. It is a means for the courts to
apportion blame between the claimant and the defendant. In deciding the extent of the
claimant’s responsibility, the court will compare the claimant’s behaviour with the way in
which a reasonable person having regard to their own well-being would behave. Again, the
issue of contributory negligence does not arise unless the claimant has established that the
defendant is liable: Qualcast v Haynes [1959] A.C. 743. Note that, according to S 4 of the
Law Reform (Contributory Negligence) Act 1945, fault ‘means negligence, breach of
statutory duty or other act or omission which gives rise to liability in tort or would, apart
from this Act, give rise to the defence of contributory negligence’.

A claimant may be contributorily negligent in failing to take steps to avoid the consequences
of the defendant’s negligence, e.g. not wearing a seat belt: Froom v Butcher [1975] 3 All ER
520 (damages reduced by 20%); but see: Gawler v Raettig [2007] EWHC 373. See also
Stanton v Collinson [2010] EWCA Civ 81. On failure to wear cycle helmet: Smith (a person
under a disability proceeding by his wife and litigation friend Smith) v Finch [2009] EWHC All
ER (D) 158.

Note that in cases of passengers in drunken driving cases, a volenti defence will not succeed,
but a defence of contributory negligence can succeed: see cases above and Owens v
Brimmell [1977] 3 All ER 765. Note also that children are less likely to be held contributory
negligent: Gough v Thorne [1966] 1 WLR 1387.

Note that contributory negligence cannot be used as a defence against a claim for deceit or
fraudulent misrepresentation: Standard Chartered Bank v Pakistan National Shipping (Nos 2
and 4) [2002] 3 WLR 1547.

See also the recent case of Jackson v Murray [2015] UKSC 5 and summarize what the
Supreme Court had to say on the approach to apportionment of damages.

(3) Illegality (ex turpi causa non oritur actio)

This means that ‘an action cannot be founded on a base cause’. This is an equitable defence
which may be used against a claimant whose claim arises from their own criminal actions:
Ashton v Turner [1981] QB 137. Because it is an equitable defence it means the court always
has a discretion whether or not to allow it (unlike with common law defences where the
court has no discretion.) The courts have therefore decided on a case-by-case basis whether
the person who suffers a tort while engaged in illegal or unlawful activity can bring a
successful claim. There is no general rule that such a person cannot bring a successful
action. Even a crime does not always disallow an action: Revill v Newbery [1996] 1 All ER
291. See also: Pitts v Hunt [1991] 1 QB 24 and the interesting recent Court of Appeal
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decision in Delaney v Pickett [2011] EWCA Civ 1532. For a case where the defence of
illegality DID succeed, see the appeal court decision in Joyce v O'Brien [2013] EWCA Civ 546.
(You will remember that this case was one in which our guest speaker, Joanna Bailey, acted
for the claimant).

In Hewison v Meridian Shipping [2002] EWCA Civ 1821, the claimant could not claim
damages for loss of earnings due to his inability to continue working at sea because his
illegal deception in failing to disclose his epileptic condition to his employers was significant
to his claim for loss of earnings, being an element of his claim for damages for injury he
suffered in an accident whilst working as a crane-operator on a ship. See also: Gray v
Thames Trains Ltd [2009] UKHL 33, Moore Stephens v Stone & Rolls [2009] UKHL 39, and for
more recent cases, Joyce v O’Brien [2013] EWCA Civ 546

[2014] 1 W.L.R. 70 and Beaumont v Ferrer [2014] EWHC 2398.

(4) Inevitable accident

This defence is available where the defendant can show that despite exercising all
reasonable care and taking all reasonable precautions, the accident could not have been
avoided. In negligence cases, this will be discussed in relation to the breach of duty. This
defence is rarely used.

(5) Act of God

This defence is only available to private nuisance and the tort of Rylands v Fletcher and has
been discussed there.

(6) Necessity
This may justify what would otherwise amount to a tort, but the defendant’s action must be
for the purpose of protecting the public, a third party or himself from what is perceived to
be a greater danger. This can extend to the protection of property. This defence is especially
useful for trespass to the person and trespass to land. Generally, the defendant must act
reasonably in all the circumstances. The perception of immediate and imminent danger
must be reasonable, it does not matter that the danger in fact never materialises: (Cope v
Sharp (no 2) [1912] 1 KB 496)

(7) Statutory authority

This was discussed in relation to nuisance, Rylands v Fletcher and breach of statutory duty.

(8) Self-help
This generally takes one of three forms: self-defence (discussed in relation to trespass to the
person); ejectment (discussed in relation to trespass to land); and, abatement (discussed in
relation to nuisance). Remember that only reasonable force may be used.

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Remedies

(1) Damages
Damages can be awarded to compensate the claimant for the loss he/she suffered, which
may include future financial loss, like in personal injury cases. In other cases, where a tort is
actionable per se and thus no damage needs to be proved, the damages are awarded as
compensation for the violation of the claimant’s legal interest in relation to bodily integrity,
goods, land or reputation.

Types of damages
Damages are either general or special damages, as we saw in our very first lecture. General
damages are damages which are not capable of being precisely quantified (e.g. for pain or
suffering), while special damages are damages which can be precisely quantified (e.g. loss of
wages).

General damages can take the following forms:

• contemptuous damages
• nominal damages
• aggravated damages: these damages should not be awarded in negligence cases:
Kralj v McGrath [1986] 1 All ER 54
• exemplary damages.

Damages for personal injury

The award of damages for personal injury – which covers physical or psychiatric harm,
disease and illness - is divided into three parts: pre-trial pecuniary loss; loss of future
earnings; and, non-pecuniary loss. Pecuniary damages can be calculated in financial terms,
such as loss of earnings and medical and other expenses, while non-pecuniary damages
cover less easily calculable damages, such as loss of physical amenity, pain, shock and
suffering.

The pecuniary damages include pre-trial expenses: all expenses actually and reasonably
incurred as a result of the accident up to the date of the trial. This includes loss of earnings
or profit which would have been earned up to the date of the judgment. Where a relative or
other person provides the necessary care rather than a person employed for that purpose,
the carer has no claim, but the costs of such services can be recovered by the claimant:
Donnelly v Joyce [1974] QB 454.

Loss of future earnings are calculated in two stages: first there is an assessment of net
annual loss, which is the difference between income before the accident and afterwards.
This sum is then multiplied by the number of years such loss is likely to continue. For more
information on the calculation of this, including deductions made, see Cooke p 568-571.

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On loss of future earnings see: Gary Smith v Ben Collett [2009] EWCA Civ 583.

Non-pecuniary loss: awards for pain and suffering and loss of amenity are very difficult to
assess. Loss of amenity refers to the changes in life-style which the claimant will suffer as
the result of the injury. Damages for pain and suffering depend on the claimant’s awareness
of pain and his/her capacity for suffering, while damages for loss of amenity are awarded for
the fact of deprivation, a substantial loss, whether the claimant is aware of it or not. So an
unconscious claimant may claim for loss of amenity but not for pain and suffering: Lim Poh
Choo v Camden and Islington Area Health Authority [1980] AC 174. The court in this case
also held that awards should be comparable. The later has led to the creation of a ‘tariff’ list
of the amounts appropriate to different categories of claim involving loss of amenity (the so-
called Ogden Tables).

The calculation of compensation is thus fraught with difficulties, because the parties and the
courts have to rely on assessment of what the future holds. In some cases this can be
particularly difficult, because later deterioration may occur. The standard method of paying
damages as a single lump sum would cause problems in certain cases. To deal with this
there are three alternatives methods of payment, each aiming to deal with a different
problem: interim awards, periodical payments and provisional damages. For more
information on this see your textbook. See also: Thompstone v Tameside and Glossop Acute
Services NHS Trust [2008] 2 All ER 553.

Damages for damage to property, land or buildings

The basic rule is that the claimant must be restored to the position prior to the damage to,
or destruction of, the property.

General principles

• The claimant should only be compensated for actual loss.

• The claimant has the duty to mitigate his/her loss by taking such steps as is
reasonable for him/her to take.

Death

When a claimant dies as a result of a tort, the claim he/she would have had against the
tortfeasors passes to his/her estate, meaning that it becomes part of what is inherited as a
result of the death. Whoever inherits the estate can recover the losses that the claimant
would have claimed for the period between the injury and the death. The Fatal Accidents
Act 1976 establishes two further claims: a claim by the dependants of the deceased for
financial losses and a claim by a surviving spouse or parent of a deceased minor for the
bereavement suffered.

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the cause of action accrued. In most cases this will be the date on which the event
happened.

But what happens in the case of latent damage? The Latent Damage Act 1986 added the
following new provisions to the limitation Act 1980. S 14A(4)(b) determines that a new
period is available of three years from the date on which the claimant knew or reasonably
could have known about the defect and that it was due to the defendant’s negligence. S 14B
provides that there is a ‘long stop’ of 15 years running from the date of the last act of
negligence which could be the basis of the claim. The Latent Damage Act 1986 also provides
that the right of action vests in a successor in title to the property. The limitation period is
still calculated from the date on which the original owner would have been able to claim.

Personal injuries

The Limitation Act 1980 provides that the limitation periods run for the period of three
years from the date of the injury or, where this is not immediately apparent, for a period of
three years from the date on which the claimant has knowledge of the injury. By S 14(1), a
claimant has the necessary knowledge if:

• The claimant is aware that the injury is significant, and

• The injury is due in whole or in part to the defendant’s negligence, nuisance or
breach of duty, and
• The claimant knows the identity of the defendant, and
• If the alleged wrongdoer was someone other than the defendant, the claimant
knows the identity of that person and the additional facts support bringing an action
against the defendant.
Note: The court has the power to extend the limitation periods in cases of personal injury or
death where it is equitable to do so: S 33 of the Limitation Act 1980: see: Horton v Sadler
[2007] 1 AC 307.

See on this: McCoubrey v Ministry of Defence [2007] EWCA Civ 17; A v Hoare [2008] 2 WLR
311; Nugent Care Society [2009] EWCA Civ 827 and MOD v AB and others [2012] UKSC 9 (on
the meaning of ‘knowledge’).

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PART C: SEMINARS
Seminar 1: Introduction to tort

Seminar question

1. Briefly explain what the purpose is of liability in tort (hint: is it to prevent or to

punish?)

2. The main remedies in a tort case are damages or injunctions. Explain both of these
remedies in detail and finally, contrast them.

3. Explain the following concepts and give examples where appropriate:

a. Strict liability

b. Fault liability

c. Actionable per se.

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Seminar 2: Negligence Intro

Pierre and Veronica both work for a television station. Pierre is in charge of lighting on set
and Veronica is a presenter of a chat show. The TV company, YTV, only recently hired
Pierre. They did so because their previous lighting operator, a qualified electrician,
complained too much about what he called ‘stupid cost cutting’ impacting on his job: he
finally resigned, stating that YTV will one day ‘go up in flames’. Pierre is not qualified as an
electrician and previously worked as a fashion designer. Nevertheless, even though by law
the job needs to be done by a qualified electrician, YTV employs Pierre and his employment
contract with YTV states that he is in charge of overseeing the electrical work on set.

For the show’s Christmas special, a special set was built. On the day of the live broadcast,
incorrectly wired lighting short circuited and caused an explosion. The set, which was
constructed mostly of plywood and paper, went up in flames. Most of the audience got
badly injured. Veronica was the worst injured of all as she was seated right next to the
explosion. She lost a limb and sustained first degree burns all over her body. Because the
show was broadcast live on television, millions of people saw the explosion and its
aftermath. The next day newspaper headlines read: ‘Horror on telly’, ‘Halloween strikes at
Christmas’ and ‘Fire on set’.

Based on the above set of facts, answer the following questions. READ THROUGH ALL OF
THE QUESTIONS BEFORE answering, so as to avoid repeating yourself. Guide the length of
your answers by the marks given, i.e. one sentence / concept / case per mark. In all
instances refer to applicable case law.

1.1 Veronica would like to institute a claim for her personal injuries. You advise her that
her claim is based on negligence. Explain to her what is meant by ‘negligence’ as a tort.
Also explain to her what she will need to prove in court in order to succeed with her
claim. (i.e. briefly explain the elements of tort to her). (10 marks)
1.2 Which classic case is considered to have marked the ‘birth’ of the modern tort of
negligence? Name and briefly describe the case, explaining how it led to the modern
tort of negligence. (5 marks)
1.3 Would Veronica be able to sue YTV vicariously? Name and apply each element she will
have to prove. (7 marks)
1.4 Would Veronica be able to hold YTV personally liable (operational liability)? Name and
apply each element she will have to prove. (6 marks)
1.5 Through a brief discussion of case law, explain THREE ‘established duty of care
situations’ in the law of negligence. (That is, explain three sets of circumstances where
there is already a precedent stating that in these circumstances, there is an accepted
duty of care.) (12 marks)
Total: 40 marks

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Seminar 3 Duty of Care

Critically discuss the so-called ‘floodgates’ argument in judicial decision-making. In your
discussion, express an opinion on whether this and other policy considerations should play a
role in determining liability.

Seminar 4: Negligence: Breach of Duty of Care

1. During a school football match, the ball is kicked high over the goal and lands in the
road. There it causes Neil to crash his car against a tree. Explain whether there is
liability in this case and if so, who is liable.
2. Critically discuss the decision in Nettleship v Weston [1971] 2 QB 691. Come to a
reasoned conclusion on the fairness of the legal principle set by this case.
3. Arthur fails to have his car serviced. His brakes fail on the way to work one day and
he runs into Linda’s car. The accident happened in the middle of a busy street at rush
hour and causes a number of people, including Oscar, to be late for work and lose
wages, while Carol was late for a meeting and lost an important business contract.
Can Linda, Oscar and Carol claim for negligence against Arthur?

Seminar 5: Causation
1. For what rule of liability is the Polemis case authority? Is this approach still used at
all? What is the more modern authority for the criterion of liability?
2. By means of case law, explain the operation of the doctrine of res ipsa loquitur in
negligence.
3. Are cases concerning asbestos decided differently from other Negligence claims?
Structure your answer using the following cases and statute: Fairchild v Glenhaven
Funeral Services Ltd [2003] 3 WLR 89 (HL) and Barker v Corus UK Ltd [2006] AC 572,
as well as section 3 of the Compensation Act 2006.

Seminar 6: Defences to Negligence

Compare and contrast the three main defences to the tort of Negligence. Refer to case law
to illustrate your answer.

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Seminar 7: Case analysis

Group presentations on the following:

Question 1:

Explain the following cases, and their relationships to one another:

• Donoghue v Stevenson [1932] AC 562.

• Anns v Merton London Borough Council [1978] AC 728
• Caparo Industries PLC v Dickman [1990] 1 All ER 568
• Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238
• McFarlane v Tayside Health Board [1999] 4 All ER 961.
• Robinson v Chief Constable of West Yorkshire [2018] UKSC4

Question 2:

Explain the following cases, and their relationships to one another:

• Smith v Littlewoods Organisation Ltd [1987] 1 All ER 710.

• Haynes v Harwood [1935] 1 KB 146.
• Stansbie v Troman [1948] 2 KB 48.
• Goldman v Hargrave [1967] 1 AC 645.
• Home Office v Dorset Yacht Co. Ltd [1970] AC 1004.
• Topp v London Country Buses (South West) Ltd [1993] 3 All ER 448.

Question 3:

Explain the following cases, and their relationships to one another:

• McLoughlin v O’Brian [1982] 2 All ER 298.

• Dulieu v White & Sons [1901] 2 KB 669.
• Alcock v Chief Constable of South Yorkshire [1999] 1 All ER 1.
• Vernon v Bosley No.1 [1997] 1 All ER 577.
• Bourhill v Young [1943] AC 92.
• Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792.

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Seminar 8: Personal and Vicarious liability

By reference to cases write an outline answer to the following question:

Eric works for Fizz & Co, as a driver, delivering soft drinks to customers. Fizz & Co have
expressly forbidden their drivers to allow anyone to ride in the delivery vans. Despite this,
Eric often allows Fred, aged 14, to ride with him and assist on the delivery round. Fred rides
in the back of the van to help with loading and unloading. For the last week, Fizz & Co have
hired out a van and Eric's services to Pop & Co. On the first day, Pop & Co. reminded Eric
that he should not carry passengers in the van. Eric disregarded this and continued to allow
Fred to ride with him. Whilst delivering Pop & Co.'s goods, the van was involved in a collision
with a car due to negligence on Eric's part. Fred, who was riding in the back of the van at the
time, was badly injured when the drink crates fell on him. Eric got out of the van and spoke
to the driver of the car, George. George accused Eric of causing the accident by driving too
fast, whereupon Eric lost his temper and struck him, giving him a black eye.

a. Advise Fred and George whether they can sue Fizz & Co and/or Pop & Co on
the basis of vicarious liability.
b. Were either Fizz & Co or Pop & Co personally liable for the injury caused by
Eric to Fred?

Seminar 9: Trespass to the person

Albert, a ticket holder, goes to a football match. When he is at the entrance gate he is asked
to show his ticket and accidentally displays a bus pass. An attendant at the ground takes
hold of him and physically throws him across the pavement. Albert is protesting wildly and
gives the attendant a black eye - he also steps on the toes of a bystander. Police arrest a
group of people who are merely trying to dodge Albert and the attendant.

Advise all the parties involved as to their rights and liabilities in tort. For the purpose of this
seminar, focus on trespass to the person, but try to also at least identify other possible torts
that may arise out of the set of facts.

Seminar 10: Trespass to land and goods

You volunteer at Middlesex University’s Legal Advice Centre (LAC). A first year art student,
Shenaz, asks you for advice. She’d been using a short-cut across a neighbour’s back garden
on her way to work. She describes the garden as ‘unkempt’ and also explains to you that
using the short-cut saves her half an hour’s walk. However, the neighbour, a Mr Meldrew,
apparently shouts at her whenever he sees her on his property. A few days ago Mr
Meldrew told Shenaz that he will ‘prosecute’ her the next time he sees her on his property.

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Shenaz thinks this is unfair as she does not damage his property by walking over it. Explain
the tort of Trespass to land to Shenaz. In your explanation include possible remedies and
possible defences. Also explain to Shenaz whether it matters that she did not damage Mr
Meldrew’s property.

Seminar 11: Nuisance

Cheryl owns her own house and runs her own business from there. The neighbours’
unemployed 20 year old son and his rock band regularly use their garage for rehearsals.
They have also decided to convert the garage to a recording studio and have commenced
building operations. During the day, the noise of the building work disturbs Cheryl, whose
office overlooks the neighbour’s garden. The noise of the band, who rehearses until the
early hours of the day, often keeps Cheryl up until dawn. Other people in the
neighbourhood have also complained about the noise from the construction and from the
band.

Cheryl rents her spare room out to Ashley. Ashley works shifts and often sleeps during the
early hours of the morning and during the day. The noise of the band and the building work
disturb Ashley’s sleep.

Discuss the liability for nuisance arising in this situation.

Seminar 12: Rylands v Fletcher

“It has often been said, and continues to be said, that the rule in Rylands v Fletcher is but a
sub-species of private nuisance. This claim represents the consumption of the former by the
latter: but the claim rests on the flimsiest of foundations.” Murphy, The Law of Nuisance
(Oxford 2006)

Discuss the validity of this statement and come to a conclusion whether or not the tort in
Rylands should continue to exist separate from private nuisance.

Seminar 13: Product liability – the common law

1. Read (and summarize if you have not already done so) the decision in Donoghue v
Stevenson [1932] AC 562 again. Why is this decision important under product liability?

2. Write down and explain the ‘narrow ratio’ given by Lord Atkin in Donoghue.

3. From Donoghue onward, what will a person who wants to claim for a defective
product have to prove in order to succeed with her claim? (use the common law
principles only)

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Seminar 14: Product liability – The Consumer Protection Act

Chris owns a small farm in Kent, on which he grows apples to manufacture into his own
brand of cider. Some of the cider he sells directly from the farm, but most are sold to local
retailers. Anna buys some of the cider from Harry’s shop in July. Later in the year Harry
goes bankrupt and closes his shop.

The bottles of cider all carry a warning that it has a high alcohol content and that excessive
consumption should be avoided. Chris also knows that he has used an additive in the
production process that may cause hallucinations when consumed by susceptible persons.

Anna serves the cider that she’d bought to her family at Christmas. Her daughter Sarah
drinks a small glass but soon begins to hallucinate and believes that she can fly. While the
family is still at the dinner table she gets up and jumps off the balcony of the family’s high
rise apartment in the city, falling to her death.

Later that night, after coming home from the hospital, and due to the shock of her
daughter’s death Anna drinks three bottles of the cider to try and dull her pain. Anna is
then taken very ill and rushed to hospital, where she is treated but told that she has now
suffered irreparable liver damage. It transpires that her illness is due partly to a chemical
reaction between the content of the cider and the spices she’d used to cook the food the
family had eaten that night, and partly due to the excessive quantity she’d drunk. The
hospital only knew about the possible chemical reaction by chance, as the possibility of such
a reaction had just been discovered by a medical student working at the hospital and who
was planning to publish his findings in a medical journal.

Advise Anna about her possible claim/s in tort.

Seminar 15: Occupier’s Liability

1. Can there be more than one occupier with shared liability? Discuss the key cases that
address this question.

2. Discuss the three conditions that must be met for an occupier to be liable for loss or injury
suffered by his/her visitors when the cause of the damage is the negligence of an
independent contractor hired by the occupier.
3. In the light of the evidence, critically assess the following statement. Support your
arguments with decided cases.

“The combined effect of the Occupiers' Liability Acts of 1957 and 1984 is to
provide an appropriate scope for liability of an occupier to visitors and non-
visitors.”

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Seminar 16: Defamation

1. Outline, by reference to decided cases and recent statutory reform, the elements that a
claimant must prove to establish a prima facie case of defamation.

2. Explain the relevance of malice to liability in defamation.

3. Defamation is (i) a tort of strict liability and (ii) generally actionable per se. What does this
mean? Does the 2013 Act change any of this?

Seminar 17: Defamation (continued)

Slouch, a law student at Oxbridge University, frequently writes articles for the college paper
that is read avidly by staff and students. One night in the college bar he overheard two first
year sociology students, Loud and Listen, discussing their part-time sociology lecturer who
was drinking in the bar.

Loud said that she thought it was disgusting that so many of their sociology tutors turned up
drunk to class. Then she told Listen that her best friend, Swot, was having an affair with her
personal tutor and suggested that he had shown Swot a copy of the forthcoming
examination paper.

Slouch wrote an article, reporting that all sociology tutors were drunk in class that several
were having affairs with students and that examination papers had been divulged between
the bed sheets. The story was run alongside a picture of the Head of the Department of
Sociology, Professor Strauss.

Advise the following:

1. The lecturers in the department of sociology as a group

2. Sociology lecturer, Emily Durkheim, who does not drink alcohol at all, and campaigns
for the prohibition of the drinking of alcohol on university, premises

3. Swot's personal tutor, Dr Thesis, who has not had an affair with Swot and has not
shown her the examination paper

4. Professor Strauss, who has been known to take an occasional alcoholic beverage in
the local public house at lunchtime.

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Seminar 18 Miscellaneous torts: Privacy

Critically discuss the following statement: ‘The English law of torts does not provide any
way for a citizen to protect their right to privacy.’

Seminar 19: Miscellaneous torts

Section 2(2) of the Animals Act 1971 has been criticised widely. Read this section and then
write a case note on Mirvahedy v Henley [2003] UKHL. Prepare a 10 minute presentation on
the case, stating:

• The facts of the case;

• The legal question to the court;
• The court’s findings and reasoning;
• Whether or not the issues with s2(2) of the Animals Act has now been resolved.

Seminar 20: Breach of statutory duty

1. Why do you think it is common to plead a breach of statutory duty with negligence
in the alternative in the same claim?
2. What was the House of Lords’ decision re. breach of statutory duty in X v
Bedfordshire County Council [1995] 3 W.L.R. 152;[1995] 2 A.C. 633?
3. Why did the claimant not succeed in an action for breach of statutory duty in Gorris v
Scott (1874) 9 LR Exch 125?
4. Explain the effect and scope of s 69 of the Enterprise and Regulatory Reform Act
2013.

Revision exercises
Use these questions to revise your knowledge of tort.

Introduction to tort
1. Can you think of any tortious remedies other than damages?
2. To what extent, if at all, does tortious liability
a. punish a wrongdoer
b. prevent people from causing injury to others?
3. Consider the proposition: Insurance ensures that the victim is compensated, but it
does not deter people from committing torts.
4. I walk on the grass in front of your house: I incorrectly believe the grass to be part of
the public highway but it is your garden. If my belief were not relevant to whether I
have on these facts committed a tort, would that be a tort of strict liability? If I were
strictly liable on these facts would it necessarily follow that I would be liable even if I
had caused no damage to the grass?
5. What is strict liability and fault liability?
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Vicarious liability and Employers’ liability

1. Explain the special content given to the employer's duty of care.
2. Why was Walker v Northumberland County Council [1995] 1 All ER 737 an important
case?
3. What tests have the courts developed for identifying whether a worker has the
status of employee? Which of the cases contains the "multiple factors test"?
4. Explain the distinction between personal liability and vicarious liability.
5. What are the main justifications for employers’ vicarious liability?
6. Can an employee be acting in the course of employment when disobeying orders?
What case especially deals with this matter?

Introduction to the tort of negligence

1. Development since the Anns case:
a. Which case(s) produced an alternative to the Anns test?
b. In which case was it said that on its facts Anns was no longer good law?
c. What did Lord Steyn say (in Marc Rich) was the proper test?
2. Congenital Disabilities (Civil Liability) Act 1976:
a. What must the claimant prove to win a case based on this statute?
b. Why do you think there have been few successful cases decided under this
Act?
c. May a child ever sue its mother relying on this Act?
d. Amy was born blind her mother having suffered German measles while
pregnant with Amy: if Amy sues the hospital, where her mother attended the
ante natal clinic, will she be likely to succeed (assuming that it was not the
hospital’s fault that her mother contracted the disease) (There is a relevant
decided case).

Negligence: Breach of Duty of Care

1. In what cases has the defendant been liable for omitting to act?
2. Page v Smith [1996] 3 All ER 736, was concerned with liability to a “primary victim”
what does that mean?
3. Give a summary of the rules of liability for nervous shock as set out in Alcock v Chief
Constable of South Yorkshire Police [1991] 4 All ER 907.
4. Rescue cases:
a) Why was the claimant not a rescuer in Cutler v United Dairies [1933] 2 KB 297.
b) What have the claimants in Haynes v Harwood [1935] 1 KB 47 and White v Chief
Constable of South Yorkshire [1999] 1 All ER 1) got in common? How do they
differ?
c) Several things were remarkable about the Chadwick v British Railway Board
[1967] 1WLR 912 case. Can you name them?
5. What is pure economic loss? Which of the following does it represent: loss of
income/salary; loss of profit due to depreciation of goods/property; loss of ability to
manufacture; loss due to latent defect; penalty due to late completion of contract?
6. Which cases tell you about professional negligence? What is the standard of care by
which professional conduct is judged?
7. What does the ‘thin skull’ or ‘egg-shell skull’ rule mean?
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8. What is the standard of care which can be expected of children?

Negligence: Causation
1. In which cases was the relevance of a second accident and illness important to the
liability of the defendant who caused the original injury?
2. To what extent does liability depend on the foreseeability of (a) the kind of damage
suffered; (b) the exact sequence of events leading up to the accident?
3. Compare: McKew v Holland & Hannen & Cubbits (Scotland) Ltd [1969] 3 All ER 1621
with Wieland v Cyril Lord Carpets Ltd [1969] 3 All ER 1006. Why was the decision
different in these two cases?

Trespass
1. Does a claimant have to know at the time that his/her freedom of movement has
been restricted in order to succeed subsequently in an action for false
imprisonment?
2. In what circumstances may the defendant escape liability by proving the claimant
consented to the battery? (You should look especially at the medical cases). What
does F v West Berkshire Health Authority [1989] 2 All ER 545 contribute to the
common law rules about intention in the tort of battery?
3. Is there an action for trespass if Gerry throws a brick at James? Is this different if
Gerry throws a brick on the pavement and later James falls over it?
4. If X intends to hit Y but instead hits Z, does Z have an action for battery against X?
5. Doctor A treats B, a patient with a mental disorder, for an in-growing toenail. Does A
need B’s consent?
6. Lucy is in a field. She cannot get out because Paul, who has a shotgun, threatens to
shoot her if she tries to do so. Is this a trespass?
7. A car was sent to the garage for repair. Lee removed the car from the garage,
believing the car was his. Is he liable?

8. What must the claimant establish in order to succeed in a claim for false imprisonment?
Support your answer by reference to decided cases.

9. Agnes is admitted into hospital suffering from severe internal bleeding. The doctor
decides that she needs immediate surgery. As he explains this to Agnes she faints
from loss of blood. She is rushed to the operating theatre and her life is saved. When
she recovers Agnes threatens to sue the hospital because she belongs to a religious
group that forbids its members to have surgery.
Advise the parties as to their rights and liabilities in the tort of trespass.

Nuisance
1. What is nuisance concerned with?
2. Under what circumstances are occupiers liable for private nuisance?
3. What needs to be proved for a successful claim for private nuisance?
4. What does unlawful use mean and which test is used for this?
5. What is abatement and why is it not often a successful remedy?
6. What role can malice play in relation to private nuisance?
7. What are prescription and coming to the nuisance? What is the practical difference
between these two for a defendant?
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8. What is the difference between private and public nuisance?

9. When can an individual obtain damages for public nuisance?
10. Which torts give protection to landowners/occupiers?
11. What is the significance of the tort of public nuisance in relation to offences
committed on the highway?
12. Can you give an example of a case where both private and public nuisances were
present?

Rylands v Fletcher
Consider and discuss the following propositions:

1. The tort of Rylands v Fletcher would have never been developed if the tort of
negligence had been developed in the 1860s.

2. The Cambridgeshire Water Co case increased rather than diminished the scope of
Rylands v Fletcher.

3. The question of “natural” or “non natural” user of land rarely determines liability
under this tort.

4. Nuisance and Rylands v Fletcher have become indistinguishable now that foresight has
become a criterion of liability for both.

5. “Act of stranger” is a good defence to liability in Rylands v Fletcher but not in nuisance.

Product liability
1. Martha bakes cakes for the local Church party. Unfortunately the cakes are
contaminated and cause food poisoning. Discuss the tortious issues arising from this.
Would you answer vary if the cakes were not given away free but Martha was selling
them?
2. When Jenny is driving her car with her friend John in the passenger seat. Suddenly a
tyre bursts, and they are both injured. Identify the possible causes of this happening,
and discuss the possible liabilities.
3. Anisah bought a can of coffee from Busydaisy Supermarket. The label on the packet
said, "Finest coffee specially packed for Busydaisy". When she opened the packet,
Anisah found that the tin contained sawdust. Advise Anisah whether she has any
remedies in tort.
4. Helen bought a bottle of perfume for her friend Jill. The shopkeeper demonstrated
to Helen the unique way to open the bottle safely. Helen sent the perfume to Jill
without passing on the shopkeeper's instructions. When she opened the bottle it
exploded and Jill was injured. Advise Jill as to whether she can successfully sue for
damages to compensate her for her injury.
5. Why should claimants suing for defective goods prefer to base their claim on the
1987 Act rather than on Donoghue v Stevenson?
6. If poison is put into a “child proof” bottle would the Act impose any liability if a child
being carried round a store in a supermarket trolley took a bottle from a shelf and
drank some of its contents?

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7. Would your answer be any different if the bottle bore a notice: ‘Poison: not to be
drunk: no liability can be accepted for the consequences of drinking this liquid.’?
8. On what criterion are products deemed to be defective? Must they be absolutely
free from defect for the defendant to avoid liability?
9. if a prima facie case of liability has been made out what defences has the defendant
under the 1987 Act?
10. Why should one (which one?) of the statutory defences be considered to be
especially useful to the pharmaceutical industry?
11. If the defendant succeeds with this (or any other of the defences) under the
Consumer Protection Act 1987 does it mean the defendant cannot be liable in tort?
12. Would the thalidomide cases have been decided differently had the babies involved
been born defective in 1990?

Occupier’s Liability
1. Are the Occupiers’ Liability Acts concerned solely with liability for the state of the
premises or do they cover liability for activities on the premises?
2. Is the occupier’s duty under the Act the same as his/her duty at common law?
3. For what sort of damages can occupiers be held liable under the OLA 1957 and the
OLA 1984?
4. Is the occupier liable for injuries caused by activities of trespassers or other persons
visiting the premises?
5. If a landowner puts up a notice: “Do not enter this field: the bull is dangerous” would
he be liable to a child who entered the field and was gored by the bull?

Defamation

1. List the defences to liability for defamation with a brief explanation of each.

2. Which cases give guidance as to the circumstances in which exemplary damages will be
awarded?

3. Distinguish (with reference to decided cases) “false” and “true” innuendo.

4. Is it defamatory to make a statement (which would normally be defamatory if made about

a third party) to one spouse about the other?

Liability for animals

1 Who would be liable if a dog owned by 14 year old Tracy does damage to a
neighbour’s garden.
2 Which of the following are dangerous animals:
a. Elephant
b. Horse
c. Camel
d. Pit bull terrier
e. fox
3 Paul takes some sheep to market. While Paul leads three of the sheep to the market
place, one escapes and runs into Delia’s flower shop. There the sheep knocks over
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the flower arrangements Delia has made for a wedding, breaking the bowls they are
in and eating some of the flowers. Is there liability under the Animals Act 1971?
Would it be different if the damage were caused by a llama?

Economic torts
1 What is the difference between deceit and passing off?
2 Why do you think that the statement must be made to a third party for a claim of
malicious falsehood to succeed?
3 What is the significance of the economic torts in the modern world?

Breach of statutory duty

1. What does a claimant need to show in an action for breach of statutory duty?
2. What is the difference between breach of statutory duty and negligence?
3. What did McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295 establish?
4. Why is it incorrect to call liability for breach of statutory duty ‘statutory negligence’?

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APPENDIX: Rules of Referencing for Law Students

The Middlesex University Law Department requires you to use OSCOLA for referencing
your coursework. This is a short guide to Citation and Referencing for Law based on The
Oxford Standard Citation of Legal Authorities (OSCOLA)

http://www.law.ox.ac.uk/publications/oscola.php

This leaflet is based on the abridged version of the OSCOLA RULES PRODUCED by the
University of Wolverhampton, School of Law http://www2.wlv.ac.uk/lib/law/Oxford09.pdf

General Rules on Legal Referencing

 Good referencing is crucial in any legal work. It is important for you to reference your
work and to reference it properly, using the correct citations (quotations) and
conventions. You are required to cite (quote) the bibliographical references of all the
cases, legislation, books, articles, etc. to which you have referred in your work.
 Referencing your work will show the marker/examiner that you have read widely
around the subject and that your reading has informed and supported your work. Failure
to reference your work properly will mean that your work lacks credibility and this will
result in a lower mark and possibly even a fail grade. It may also result in an accusation
of academic conduct involving plagiarism or collusion.
 There are several guides/styles for legal referencing, but most of the Law Schools and
Department in the UK have adopted the Oxford Standard Citation of Legal Authorities
(OSCOLA) as the preferred referencing system for law. We recommend that all
students undertaking legal studies at Middles University use the OSCOLA style of
referencing in their coursework.
 This is intended as a quick guide to Oxford referencing, based on OSCOLA, with
examples of how to reference the most commonly used law document formats. It is
produced by the Oxford Law Faculty and the full documentation is available from their
website http://denning.law.ox.ac.uk/published/oscola.shtml In addition, there is a
very useful tutorial on how to use OSCOLA at this address:
https://ilrb.cf.ac.uk/citingreferences/oscola/tutorial/
 One of the fundamental rules is that you should cite references in two places:
o In the text of your work, using footnotes (and not brackets or endnotes)
o In a list at the end of your work (a bibliography)

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PRIMARY SOURCES

U.K. Statutes (Acts of Parliament)

A statute is cited by its short title (found in a section near the end of the statute) followed by
its date, with no punctuation before the date and omitting ‘The’ at the start.
Example: Human Rights Act 1998, c.42
You should refer to a statute by name and date in the text of your work and create a footnote.

EU Legislation
Cite EC/EU legislation (Regulations, Directives and Decisions) and other instruments
(Recommendations, Opinions, etc) by providing the legislation type, number and title, then
publication details from the Official Journal (OJ) of the European Communities:
Example: Council Directive (EC) 2001/29 on the harmonisation of certain aspects of
copyright and related rights in the information society [2001] OJ L167/10

International Treaties
If parties can accede to the treaty (which will be the case for most multilateral treaties), cite
the full date upon which the treaty was opened for signature. Otherwise, cite the date that it
was signed or adopted. If available, then give the date it entered into force.
Examples:
 International Covenant on Civil and Political Rights (adopted 16 December 1966,
entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force
22 April 1954) 189 UNTS 137 (Refugee Convention) art 33

UN Documents
When citing documents from the major bodies of the United Nations, include the unique
document reference numbers that identify both the body from which the document issues and
the nature of the document. Generally speaking, cite UN documents in the following order:
author, ‘title’, date, document number.
 UNGA Res 2621 (1970) GAOR 25th Session Supp 16, 10
 UNSC Res 1373 (28 September 2001) UN Doc S/RES/1373
 UNCHR ‘Report of the Special Rapporteur on Torture’ (1986) UN Doc
E/CN.4/1986/15
 UNCHR ‘Comment on Egypt’s Second Periodic Report on Implementation of the
ICCPR’ (9 December 1993) UN Doc CCPR/C/79/Add.23

Case Law (U.K.)

You will need to refer to cases and cite them correctly as follows:
 The names of the parties in italics, but not the ‘v’ for versus.
 Date of the case in brackets (see below).
 Volume number of Law Report (if applicable).
 Name or abbreviation of Law Report.
 Page number of the case.
 Abbreviation of the court where the case was decided.

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 The page/paragraph number(s) of the passage you are referring to (often called the
‘pinpoint’) if applicable. Cite the first page of the article, comma, then the page
where information is to be found.
Examples: R v Moloney [1985] 1 All ER 1025 (HL), 1026, 1028 or R (Roberts) v Parole
Board [2004] EWCA Civ 1031, [2005] QB 410
When referring to a case in the text of your work, use footnotes

European Community Cases

The abbreviation 'European Court' or ECJ is used for references to the Court of Justice of the
European Communities. Use ECR (European Court Reports) references as the most
authoritative report. If not available, use a report in one of the UK domestic report series such
as the Industrial Relations Law Reports (IRLR) and Industrial Cases Reports (ICR). If none
of these is available use a CMLR (Common Market Law Report) reference. The case number
precedes the case name and citation.
Example: Case C-12/81, Garland v British Rail Engineering Limited [1982] ECR 359
Decisions of the European Court which have not yet been reported should be cited as follows:
Case C-145/84 Cochet, judgment of 7 March 1985

European Court of Human Rights Cases

ECHR decisions are cited referring to the European Human Rights Reports.
Example: Young, James and Webster v UK (1982) 4 EHRR 38

International Court of Justice

International Court of Justice decisions are compiled in the series Reports of Judgments,
Advisory Opinions and Orders. Contentious cases and advisory opinions are also available on
the ICJ web site at http://www.icj-cij.org/icjwww/idecisions.htm. Cite the ICJ Report if
available; otherwise cite to the website. Give dates of access for website reports. Cite case
names as they appear in the ICJ Reports.
 Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4
 Legal Consequences of the Construction of a Wall (Advisory Opinion) 2004
<http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm> accessed 21 July
2005 [139]–[142]
For more specific jurisdictions such as WTO, ILO, international criminal tribunals, see:
http://www.law.ox.ac.uk/published/oscola/oscola_2006.pdf

SECONDARY SOURCES

Books
When referencing a book, you must include the following details:
 Author (surname and at least one initial, but not full names).
 Title (in italics and capitalise the first letter of the first word and all significant words
following – not the/and/at/to/in, and so on).
 Edition should be included where the book is in its second edition or beyond.
 Series title (where applicable).
 Publisher.
 Place of publication
 Date of publication.
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In short: Author, Title in Italics (series title, edition publisher, place date) page
The last five points above should all be placed in brackets when referencing. Add a page
number as necessary.
Examples:
 Single author: M P Thompson, Modern Land Law (3rd edn OUP, Oxford 2006) 45
 Multiple authors: If there is more than one author insert ‘and’ before the last author’s
name. If there are more than three authors, note the first author only, followed by ‘and
others’.
o Example: J Black and others, A Practical Approach to Family Law (8th edn
OUP, Oxford 2007)
 Chapter from an Edited Book: A book may be a collection of chapters written by
different authors and edited by one or more authors. To identify any particular chapter
within an edited book, you must use the word ‘in’ and put the title of the chapter in
single inverted commas.
o Example: P Stone, ‘Discrimination in Child Maintenance’ in J Dine and B Watt
(eds), Discrimination Law: Concepts, Limits and Justifications (Longman,
London 1996)

Journal Articles
When referencing a journal article, you must include the following details, where available:
 Author, followed by a comma.
 ‘Article title’ (in single inverted commas but NOT in italics).
 Date.
 Volume number.
 Abbreviation for journal title.
 Page numbers of article.
Example: Andrew Ashworth, ‘Social Control and “Anti-Social Behaviour”: the
Subversion of Human Rights’ (2004) 120 LQR 263, 276

Newspaper Articles
Cite newspaper articles in the order: author, ‘title’ newspaper (city of publication, country of
publication (if not obvious) full date) page. If the article is sourced from the web and there is
no page available, provide the website address and date of access. Examples:
 I Hawkey, ‘Italy takes a dive’ Sunday Times (London 14 May 2006) Sport 13
 E Hobsbawm, ‘The Dangers of Exporting Democracy’ Guardian (London 22 January
2005) <http://www.guardian.co.uk/usa/story/ 0,12271,1396157,00.html> accessed 10
May 2005

Electronic material
In general, follow the rules for citing books and journals. When using electronic material,
make sure that it is from a reliable source. Generally be careful with the quality of electronic
sources: as a rule Wikipedia is not a proper source for legal referencing. If you wish to
cite material found on an electronic resource, for example from a database such as Westlaw,
you do not need to state that the material was found online if it is also available in
printed form.
To cite information from a website, such as a government department, charity or professional
organisation as follows: author (or use two joined em-dashes if author is not identified), title
(in single inverted commas , type of document (if relevant, such as report or paper), date of
issue (if available), web address (URL) and date of access

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Examples:
 Shami Chakrabarti, ‘The End of Innocence’ (Lecture at the Centre for Public Law in
Cambridge 2004) <http://www.liberty-human-rights.org.uk/resources/articles>
accessed 20 February 2005
 Günter Verheugen, ‘Future of EU Shipbuilding’ (Speech at New Year’s Reception of
the Committee of EU-Shipbuilders’ Associations, Speech 05/65 Europa website 2005)
<http://europa.eu.int> accessed 15 April 2005

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