Module Handbook Tort LLB
Module Handbook Tort LLB
Tort
LAW2105
LAW3205
Module Leader
Dr Mariette Jones
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
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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.
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.
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
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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.
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%
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
Recommended
Statutes:
• Rose, Blackstone's Statutes on Contract, Tort & Restitution, (Oxford University Press).
Students consistently find revision guides such as the following useful for exams:
• E. Finch and S. Fafinski, Law Express: Tort Law (Revision Guide) (Pearson)
Other:
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:
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.
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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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.
Feedback type & date Electronic feedback once all campuses have finished the test. Real time feedback at any time during Tutors’ office hours.
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
(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
(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.
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
Feedback type & date Feedback will be on a date specified in June or July, after the University results have been published.
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
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
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.
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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The following table details the support you will be receiving for this assessment and the feedback opportunities you will have.
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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.
• 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)
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:
Reading:
Textbook Elliott & Quinn ch. 1
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.
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).
• 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.)
• 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.
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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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.
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.
Social security and personal insurance can also play a part in supporting accident victims.
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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.
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Learning objectives:
On completion of this topic you will be able to
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.
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
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.
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…’
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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.
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.
“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.’
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.
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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
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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:
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:
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 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:
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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
Journal article P. Atiyah, ‘Res Ipsa Loquitur in England and Australia’, (1972) 35
MLR 337
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’.
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may be negligent despite it being common practice, see: Herald of Free Enterprise,
The Independent, 18/12/1987.
• 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.
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.
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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
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 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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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.)
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.
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.
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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Learning objectives:
On completion of this topic you will be able to:
Reading:
Textbook Elliott & Quinn ch 3
Journal articles P. Davies, ‘The illegality defence: turning back the clock?’ (2010)
4 Conv 282
Defences
The following defences can be used against a claim for negligence:
Two situations can be distinguished in which the volenti defence can be used:
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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.
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.
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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.
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Learning objectives:
On completion of this topic you will be able to:
Reading:
Textbook Elliott & Quinn chapters 7, 17 and 18
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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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)).
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.)
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:
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?)
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.
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.
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.
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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.)
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.
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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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.
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Learning Objectives:
On completion of this topic you will be able to:
Reading:
Textbook Elliott & Quinn ch 16
Journal articles P. Cane, ‘Mens rea in tort law’ (2000) OJLS 533
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:
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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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).
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.
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:
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
Parental authority
Self-defence
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).
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 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 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.
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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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
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.
• 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)..
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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.
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:
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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.
There is also the defence of jus tertii, (right of a third person) see S 8 of the Torts
(Interference with Goods) Act 1977:
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:
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Learning objectives:
On completion of this topic you will be able to:
Reading:
Textbook Elliott & Quinn ch 13
Cases Barr and others v Biffa Waste Services Ltd [2012] EWCA Civ 312
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
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:
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.
• 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.
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.’
• 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.
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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• 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).
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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Learning Objectives:
On completion of this topic you will be able to:
Reading:
Textbook Elliott & Quinn ch 14
• 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:
‘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.’
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‘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.
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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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.
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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Learning objectives:
On completion of this topic you will be able to:
Reading:
Textbook Elliott & Quinn ch. 9
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.
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‘...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: 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.
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a manufacturer once the situation speaks for itself. (See also: Carroll and Others v
Fearon and Others [1998] PIQR P416.
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
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:
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 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)).
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.
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.’
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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
Journal articles M. Jones, ‘The Occupiers’ Liability Act 1984’ (1984) 47 MLR 713
• 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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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.
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.
• 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.
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.
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.
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:
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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 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.
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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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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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
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:
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.
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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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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Note that the statement must be taken in context: Norman v Future Publishing [1999] EMLR
325.
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.
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”.
Lachaux v AOL (UK) Ltd, Independent Print Ltd & Evening Standard Ltd [2017] EWCA Civ
1334
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’.
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.
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.
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.
• 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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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
Journal articles J. Agate, ‘The Defamation Act 2013 - key changes for online.’
(2013) Computer and Telecommunications Law Review, 19(6),
170-171
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.
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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.
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:
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.
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.’
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:
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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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.
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:
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.
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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:
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:
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:
There are two potential remedies for breach of confidence/misuse of public information actions:
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• injunctions;
• damages.
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.
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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 ("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.
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.
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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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.
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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:
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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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.
Reading
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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:
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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.
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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Reading:
Journal articles P. Limb & J. Cox., ‘Section 69 of the Enterprise and Regulatory
Reform Act 2013 - plus ca change?’ (2013) JPIL 1
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.
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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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.
• 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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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.
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
(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)
(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).
• 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.
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.
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
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:
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
2. The main remedies in a tort case are damages or injunctions. Explain both of these
remedies in detail and finally, contrast them.
a. Strict liability
b. Fault liability
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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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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.
Compare and contrast the three main defences to the tort of Negligence. Refer to case law
to illustrate your answer.
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Question 1:
Question 2:
Question 3:
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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?
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.
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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.
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.
“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.
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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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.
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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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.
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?
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.
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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Critically discuss the following statement: ‘The English law of torts does not provide any
way for a citizen to protect their right to privacy.’
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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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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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?
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?
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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
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
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
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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
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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