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LAW OF TORT - caselist


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  • 1. Tort Law Case listSeminar 1: Introduction to tort andintroduction to the tort of negligenceDonoghue v Stevenson [1932] (HL)Facts:Judgment:NotesAnns v Merton LBC [1978] (HL)Facts: The claimants were tenants of a block of flats built in accordance with the pla ns approved by thecouncil. The foundations were too shallow. The tenants sued for the cost of making the flats safe on thebasis that the council either negligently approved inadequate plans or failed to inspect the foundationsduring construction.Judgment: A DoC was owed by the council and that if their inspectors did not exercise proper care andskill then the council was liable even though the loss suffered was economic loss.Notes: two-stage approach to DoC formulated.Seminar 2: Psychiatric IllnessBourhill v Young - the event which actually happened would have caused psychiatric illness to a personof sufficient fortitude or customary phlegmMcLoughlin v O’Brian [1983] (HL)Facts: C’s husband and children were involved in a road accident. C heard about it 2 hours later. Shewent to the hospital where she learnt her younger daughter was dead and saw her husband and twoother kids severely injured, all still covered in oil and mud. She sued in nervous shock.Judgment: The nervous shock suffered was the reasonably foreseeable result of the injuries to herfamily caused by D’s negligence and she was entitled to recover damages.Notes: For somebody not directly involved in the incident to recover in nervous shock, there has to be aclose relationship between C and the accident victims/ Further, C was to be in close proximity to theaccident in time and space. (Either present or witness the immediate aftermath. Here, Lord Wilberforceseems to stress the importance of them not being cleaned up yet.)
  • 2. PRIMARY AND SECONDARY VICTIMSAlcock v Chief Constable of South Yorkshire [1992] (HL)Facts: Concerns the Hillsborough disaster in 1989 where 96 Liverpool fans died in a massive crush. Theaccident was caused by the police negligently allowing too many supporters to crowd in one part of thestadium. A large number of claims were made by those present at the scene and those who had viewedthe events on TV. Claims were also made by people with varying relationships to those crushed.Judgment: HL introduced the distinction of primary and secondary victimsPrimary victims - here it was said they are those involved either ‘mediately or immediately’ but that definition changes - Primary victims have to establish that it was reasonably foreseeable (to D) that they would suffer ‘harm’ (it is unclear whether this covers psychiatric harm)Secondary victimsEssentially, everyone not directly involved in the incident. Note that this criterion presupposes thatsomeone else has suffered physical harm as a result of D’s action and these victims have suffered somepsychiatric injury as a result of viewing the psychical harm. To sue, they need: 1. Proximity of relationship – close tie of love and affection (some assumed; burden on C otherwise) 2. Proximity in time and space to the accident 3. Perception by own senses (sight or sound typically), not TP reports 4. There has to be “shock” (per Lord Ackner “the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind)CLASS OF PRIMARY VICTIMS:White v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1Facts: In relation to the Hillsborough disaster but involves police suing their employer in negligence forthe PTSD they suffered as a result of the events. Note that the police in question were not those whowere at any risk of physical harm, nor did they suffer any. They were at the accident though.Judgment: In Alcock, rescuers were also placed in the class of primary victims. However, here the HLchanged the definition and said to be a primary victim, you need to be in the zone of foreseeabledanger. (You must establish ‘objective exposure to danger or a reasonable belief that there was anexposure to danger’)Notes: In the judgment there was clearly concern to avoid different treatment of police officers andbereaved relatives. Hence the exclusion of rescuers (though it was more of a middle ground than a totalexclusion). After white it seems that the HL had decided to create a very definite narrow category forprimary victims. But see W v Essex and Re Organ
  • 3. Unwitting instrument of another’s negligence?(There is a further category of primary victims insituations where C believes he has caused another’s death or injury. This would only succeed if C wasactually present when the death or injury occurred Hunter v British Coal [1998] 2 All ER 97 - proximityrequirement)W v Essex County Council [2001] 2 AC 592–(regarding a known child abuser being placed with fosterparents who specifically said they wouldnt accept such a child.) Ultimately, what’s relevant here is thatHL said the category of primary victims not closedRe Organ Retention Group Litigation [2005] QB 506- parents of deceased children whose organs wereretained after post-mortem examination treated as primary victims.Notes: It is clear the parents were at no time in the zone of foreseeable physical danger. 2 reasons weregiven for holding they were primary victims 1. Relationship between parent and health authority is almost analogous to that of doctor and patient (Where it is well-established that a DoC exists) 2. In this situation, there isn’t anybody who could count as a primary victim except the parents therefore, the primary victims must be the parents. (Slightly dubious as it hinges on the fact that the babies were not born as ‘human beings’)PRIMARY VICTIM NEED NOT ( ALWAYS) PROVE FORESEEABILITY OF PSYCHIATRIC INJURYPage v Smith [1996] 1 AC 155Facts: C was involved in a minor car accident and was physically unhurt in the collision, but the accidentcaused him to suffer a recurrence of ME from which he had suffered for about 20 years but was then inremission.Judgment: HL held that foreseeability of physical injury (even if none occurs) was sufficient to allow aprimary victim to recover in psychiatric injury.Grieves v FT Everard & Sons Ltd [2008] 1 AC 281 (Rothwell v Chemica & Insulating Co Ltd: Re PleuralPlaques)Facts: One of the claimants suffered a recognised psychiatric illness from the fear that he would contracta serious asbestos-related illness in the future.Judgment: HL refused to extend the principle from Page v Smith. Consider that C was working withasbestos, he seems to be in the zone of foreseeable danger. Gave 2 reasons. 1. The risk of physical harm wasn’t immediate (asbestos related diseases take years to manifest) 2. There was an intervening event between the asbestos exposure and the onset of the psychiatric illness (namely, the medical report; he only knew he’d gotten pleural plaques as a doctor had examined him and the test results indicated their presence)
  • 4. Notes: Mitchell thinks these reasons aren’t convincing and that the HL isn’t completely sold by PvS andthus are going to great lengths to distinguish it.PRIMARY VICTIM ’S LIABILITYGreatorex v Greatorex [2000] 1 WLR 1970Facts: D was seriously injured when he negligently got into an accident. C, a fire officer and D’s father,was called to the scene (in the course of his employment) and subsequently suffered PTSD as a result ofseeing his son’s injuriesJudgment: A victim of self-inflicted injuries owes no DoC to a ‘secondary victim’ who suffered apsychiatric injury from witnessing the incident or its immediate aftermath. (i.e. no liability for primaryvictim where he is the negligent defendant)EmployeesWhite v Chief Constable of the South Yorkshire Police [1999] 1 All ER 1 (as above) - no special protectionfor employees as secondary victimsEMPLOYEES (AND PRISONERS)CHECKSUMMARY - Law generally looked upon personal injury claims more favourably than psychiatric claims - Idea being that we’re expected to deal with a certain amount of distress in life - This imbalance was somewhat addressed in McLoughlin where a woman who wasn’t ‘directly involved’ as such was allowed to claim for psychiatric injury. Some requirements are imposed to keep claims down though. Namely proximity of relationship and proximity of time and space. - This is taken further in Alcock where there’s a distinction drawn, with regards to psychiatric injury suffered, between primary and secondary victims. - Primary Victims – (Per Alcock, those involved mediately or immediately and includes rescuers. Changed in White to those in the zone of foreseeable danger) - Secondary victims – claims subject to stricter conditions o Proximity of relationship (burden on C. Some relationships would have this assumed. E.g. parent-child, spouses) o Proximity of time and space (witness event or immediate aftermath – e.g. mcloughlin) o Experience the event ‘unaided’; i.e. with your own senses (not on TV or through a TP. E.g. McLoughlin she saw them before they were cleaned up. In Alcock, a claim by someone who saw the primary victim in a morgue a few hours later, cleaned up as well, failed) o “Shock” (can’t be a gradual onset)
  • 5. - Definition of primary victim refined in White. Becomes ‘zone of foreseeable danger’ (note the concern to avoid differential treatment between police and bereaved relatives. - The definition of primary victims may not be settled though o W v Essex – class of primary victims isn’t closed o Re Organ – Parents treated as primary victims  Analogy with doctor-patient relationship  The need to have some primary victim - There is a further category of primary victim. This may be described as ‘being an unwitting instrument of another’s negligence’. It applies in situations where C believes he has caused another’s death or injury. This can only succeed if C was actually present when the death or injury occurred. E.g. in Hunter, the owner of the mine was negligent in not having the minimum safety clearance distance in the mine. C a driver struck a hydrant and when he was away getting helped, someone else was killed by an explosion from the hydrant causing C to have a psychiatric injury. - Also, it seems that with regards to psychiatric injury for primary victims, only some physical harm needs to be foreseeable. (see Page v Smith) - But note how this was not followed in Grieves (RothwellI) o Risk of physical harm wasn’t immediate o Intervening event (medical report) - Also, where the primary victim is the negligent defendant, he is not liable for any psychiatric injury suffered by secondary victims (Greatorex v Greatorex)Employees?Seminar 3: Pure Economic Loss(1) The concept of pure economic loss, and the general rule againstrecovery in negligence(A) THE DISTINCTION BETWEEN PURE ECONOMIC LOSS AND CONSEQUENTIAL ECONOMIC LOSSSpartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] QB 27Facts: D’s employees were digging up a road when they negligently damaged the electrical supply cableto C’s factory, leaving the claimants without power for 14.5 hours. They scrapped a ‘melt’ in the furnace,reducing its value by £368 and they lost a profit from the sale of the metal from that melt of £400. They
  • 6. could also have completed four further melts during the power cut and their loss of profit from thosemelts was £1,767.Judgment: They could recover the damage to the melt in progress (physical damage) and the loss ofprofit from that melt (consequential economic loss). However, they could not recover for the loss ofprofit during the time the electricity was off, as it was pure economic loss and not recoverable.Notes: Broadly, we see 4 reasons against it - What people should tolerate - Worry about the size/extent of the claims and the ease of exaggeration - Sharing the burden (links to (2). It’d be very heavy for a single contractor to bear it) - There is a statutory immunity for supplies of utilities so when the disruption is caused by someone else, it doesn’t seem fair.Also, a general idea against PEL being recoverable is that in the commercial context, people often seekto inflict economic loss deliberately, let alone negligently.Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co (The Wagon Mound) (No 1) [1961] AC 388– this case is considered in more detail later in the course, in the seminar on remoteness of damage;here the important thing is to understand the principle: where a physical injury leads to consequentialeconomic loss (such as loss of earnings), that consequential loss is recoverable provided that it wasreasonably foreseeable that loss of that type would occur.(B) PURE ECONOMIC LOSS IN RELATION TO DEFECTIVE PRODUCTS (COVERED IN L&O 387-407 BUT WE WILLLECTURE YOU ON THIS MATERIAL )Donoghue v Stevenson [1932] AC 562 – In Donoghue, we see this idea emerging that tort duties may beowed to ultimate consumers of a product even though these consumers do not contract with themanufacturer.Dutton v Bognor Regis Urban District Council [1972] 1 QB 373 (361,362)Anns v Merton LBC [1978] (HL)–In Anns, the HL held that a local authority may owe a DoC in negligencein exercise of its powers of inspection under the Public Health Act 1936. Lord Wilberforce clearlythought the loss was not purely economic. As a matter of ‘classification’, he was mistaken. The damagesuffered was PEL. No separate ‘damage’ had been done to the property of the plaintiffs, other than thebuilding itself, by the defendnats’ alleged breach of duty. (We see the HL recognise this error and thusdepart from Anns in D&F)D & F Estates Ltd v. Church Commissioners for England [1989] AC 177Facts: The Church Commissioners owned a block of flats built by a firm of contractors. The plasteringwork was sub contracted. Fifteen years after the property was built it was found that the plasteringwork was defective. As there was no direct contractual relationship between the plaintiff and thedefendants an action was brought in tort.
  • 7. Judgment: The HL held that tort duties under DvS are only owed in respect of damage done by the itemthat is manufactured by the defendant. Lord Bridge attempted to reconcile this decision with Anns bymeans of the ‘complex structure theory.’Murphy v Brentwood District Council [1991] 1 AC 398Facts: A council approved plans for a concrete raft upon which properties were built. The raft movedand caused cracks in the walls of a property which was sold for £35, 000 less than it would have done ifit were not defective.Judgment: The HL overruled Anns and held that the council was not liable in the absence of physicalinjury.Notes: The ‘complex structure theory’ was technically dismissed but there were some qualifications tothis (i.e. situations where it might apply) mean the potential exists for complex arguments about theapplication of Murphy: - Lord Bridge distinguished between the foundations (an integral part of the larger structure) and a distinct item (e.g. a heating boiler) - Lord Keith argued that the components could not be treated separately if “erected and equipped by the same contractor… On the other hand where, for example, the electrical wiring had been installed by a subcontractor and due to a defect caused by lack of care a fire occurred which destroyed the building…” there might be liability in tort. - Lord Jauncey also felt that ‘integral components could only be treated as ‘separate property’ if installed by a different contractor. However, he thought these ‘integral compenets’ could be distinguished from the examples of the central heating boiler or electrical installations, which he described as ‘ancillary equipment’ and for which he thought normal principles could apply.Further, it is clear in Murphy that even in the case of defects that cause actual damage to a separatestructure or indeed to the person, there will be liability only if the damage is caused by a defect thatremains ‘latent’. Once the defect is ‘patent’ (becomes known), it ‘no longer poses a danger’.This strict distinction was doubted in Targett v Torfaen Borough Council [1992] 3 All ER 27, and it wassuggested that the availability of reasonable steps to avoid the danger should be considered as well.Defective Premises Act 1972 ss1, 2 – Provides a statutory remedy against ‘a person taking on work for orin connection with the provision of a dwelling.’ The protection extends to subsequent purchasers andcannot be excluded or limited via contract. However, it only applies to ‘dwellings’ and an action must bebrought within 6 years of completion of the work. (and local authorities are not covered by the ‘aperson’ definition)Winnipeg Condominium Corporation No 36 v Bird Construction Co [1995] 1 SCR 85Bryan v Maloney (1995) 69 ALJR 375 - It does seem that Murphy was decided more on policy reasons o Anns created a new form of liability – best left to parliament o Argument that consumer is already protected by other means. Specifically, first party insurance o There is already consumer protection by statute - And the above 2 cases illustrate how other jurisdictions have seen fit to depart from Murphy
  • 8. (2) The special principles governing duty of care(A) ASSUMPTION OF RESPONSIBILITYHedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465Facts: The appellants were advertising agents, who had placed substantial forward advertising orders fora company on terms by which they, the appellants, were personally liable for the cost of the orders.They asked their bankers to inquire into the companys financial stability and their bankers madeinquiries of the respondents, who were the companys bankers. The respondents gave favourablereferences but stipulated that these were "without responsibility." In reliance on these references theappellants placed orders which resulted in a loss of £17,000. They brought an action against therespondents for damages for negligence:-Judgment: a negligent, though honest, misrepresentation, spoken or written, may give rise to an actionfor damages for financial loss caused thereby, apart from any contract or fiduciary relationship, since thelaw will imply a duty of care when a party seeking information from a party possessed of a special skilltrusts him to exercise due care, and that party knew or ought to have known that reliance was beingplaced on his skill and judgment. However, since here there was an express disclaimer of responsibility,no such duty was, in any event, implied.Notes: This case gave rise to the Hedley Byrne test. Namely, a DoC may arise in respect of a loss where: 1. (Voluntary?) assumption of responsibility by D (where D exercises skill and judgment knowing C will rely on the statement) 2. Reasonably reliance by C(I) THE CAPARO TESTSmith v Eric S Bush (a firm) [1990] 1 AC 831Facts: Here, D gives a disclaimer with their advice which if anything was clearer than the HB disclaimer.HL said that it failed the requirements of UCTA. (1977) and HB was decided in 63. So at the time of hb HLdidn’t have to worry aboutUCTA.Judgment: even though the surveyor said he wasn’t assuming responsibility, that disclaimer wasn’treasonable inthe framework of UCTA and it was to be disregarded and what you were left with is aperson who had assumed responsibility even though he said he hadn’t. (so note the lack of requirementof a voluntariness requirement)Notes: Lord Griffiths in his judgment set out an alternative formulation by which to judge whether aduty of care should be recognised as arising in such a case (which went back to the general conceptionand essentially is the framework of the Caparo test), avoiding the terminology of ‘assumption ofresponsibility’. It should be noted that the search for a ‘voluntary assumption of responsibility’ wasintended by Lord Devlin in Hedley Byrne to be a way to judge whether proximity was present. However,the reasons Lord Griffiths ultimately give seem to fit with the old test. This was perhaps a case in whichan alternative approach to justifying the DoC was simply more appropriate. Nonetheless, Lord Griffiths’
  • 9. attempt to make the assumption of responsibility fit the facts amounted to a distortion of the conceptand has caused significant confusion.Caparo Industries Plc v Dickman [1990] 2 AC 605Facts: Caparo owned shares in a TP company. D audited the TP company and reported a high profitwhen there was actually a loss. On the basis of the report, Caparo decided to increase its investmentand launch a subsequent takeover bid. When the mistake was discovered, Caparo tried to claim againstD for the loss they incurred by paying a higher price for the new shares they purchased as a result of thenegligently produced report.Judgment: It was held that the defendant audit company did not owe a duty of care in this respect. Theyowed it to the shareholder’s at large as a body to ensure that the company was run properly. If any dutywas owed to individual shareholders, it was only in respect of losses they might make in relation to theirexisting stake in the company namely by selling undervalued shares and most certainly not to lossesresulting from the purchase of additional shares which would result from a wholly independenttransaction having no connection with the existing shareholdingNotes:Caparo sets out three criteria for the existence of a Duty of Care 1. Foreseeability 2. Proximity of relationship 3. Fair, Just, and Reasonable to impose liabilityAfter Caparo, ‘assumption of responsibility’ appeared to have been fatally weakened as a justificationfor the DoC in cases of PEL. Certainly it was clear that the duty was not to be understood as ‘voluntarilyassumed’ but note the resurgence of the term in the later cases (below).(II) THE INTER-RELATION BETWEEN THE TESTSMerrett v Babb [2001] 3 WLR 1 – The CA doubted whether ‘assumption of responsibility’ has anymeaning. Here they said the test has ‘merged with Caparo’. Indeed, in 2 other CA cases prior to this sawthem treating the ‘assumption of responsibility’ and Caparo as alternative tests, applying both arguingthey should lead to the same result.Customs and Excise Commissioners v Barclays Bank plc [2007] 1 AC 181 (disapproving the approachtaken by the CA, which is critically analysed in P Mitchell and C Mitchell (2005) 121 LQR 194)Facts: C had obtained ‘freezing orders’ and served them on D. The purpose of these orders was toprevent two companies from removing funds from their bank accounts, so that C could recoveroutstanding VAT from those accounts. D failed to take action to prevent funds from being moved out oftheir accounts. It was alleged that this failure was negligent. C could thus not recover the full sum theywere owed and sought to recover the shortfall from D on the basis that it breached a DoC owned tothem to abide by the orders.Judgment: The HL gave 5 slightly different judgments (same conclusion) Steele explains the judgment asfollows 1. The first stage in deciding a novel case of economic loss is to ask whether there is a voluntary assumption of responsibility
  • 10. 2. In an assumption of responsibility is established, this may be sufficient (in other words, there may be no need to consider policy issues) 3. At least two of the judges seem to have treated assumption of responsibility as an aspect of proximity (Lord Hoffman is particularly clear on this) o If this is correct, then ‘assumption of responsibility’ forms part of the three stage test, rather than a narrower test to be applied first. Hoffman hints that where there is an assumption of responsibility, it is the nature of the relationship which makes the duty FJR. 4. No assumption of responsibility could be established here o Even if the test of the existence of an assumption of responsibility is objective, a degree of voluntariness is essential. Here, there was an adverse relationship between the parties. 5. This was not the end of the matter, Caparo was applied. So the HL seems to recognise that Caparo is a wider test. Indeed, this helps to explain Smith v Bush as there, despite the lack of assumption of responsibility, there was proximity and foreseeability (and ‘policy’) 6. Policy issues were decisive against a duty of care 7. Lord Hoffman’s short-cut: no common law duty of care could be said to arise out of the freezing order itself (draws an analogy with omissions and Stovin v Wise)(III) EXPRESS ASSUMPTIONS OF RESPONSIBILITYIt seems that assumptions of responsibility can be deduced either from the general nature of therelationship (Henderson), or – if the general nature of the relationship is not compatible with such adeduction – it may be deduced from specific words, conduct or circumstances which (Williams) overridethe general features of the relationship.Williams v Natural Life Health Foods [1998] 1 WLR 830 - in determining whether there had in law beensuch an assumption an objective test was to be applied (in reality this doesn’t crop up often.Nonetheless, it seems clear that the assumption of responsibility no longer need be voluntary) , theprimary focus being on things done or said by the defendant or on his behalf and the question beingwhether the plaintiff could reasonably have relied and had relied on an assumption of personalresponsibility by him; and that the fact that the brochure given to the plaintiffs had held the companyout as having the expertise to provide reliable advice to prospective franchisees and had made it clearthat that expertise derived from the second defendants experience in the health food trade wasinsufficient to render the second defendant personally liable to the plaintiffsCalvert v William Hill Credit Ltd [2008] EWHC 454 (Ch) - Here, the court says that by confirming that Cwould be prevented from telephone betting in response to Cs request for self-exclusion, W hadassumed responsibility towards C as the relationship was akin to contract, save for consideration.(Nonetheless they weren’t liable as it was held that D could not have been said to have caused C’s lossesas C would have in any event ruined himself)(IV) ASSUMPTIONS OF RESPONSIBILITY IMPLIED FROM THE RELATIONSHIPThese cases also really highlight how ‘Hedley Byrne liability’ has moved beyond negligent misstatements(and indeed, beyond PEL)
  • 11. Spring v Guardian Assurance Plc [1995] 2 AC 296Facts: Concerns a negligently prepared reference (by D) resulting in C not being hired for another job.Judgment: Two of the majority interpreted Caparo in reaching their decision (Lord Woolf and another).Lord Goff however based his decision through a specific application of principles drawn from HedleyByrne. (with whom Lord Lowry agreed)Notes: Importantly, from Lord Goff’s reasoning, we see the following:There are number of factors the courts take into consideration to decide there’s been an impliedassumption of responsibility; - The nature of the relationship is absolutely key. There are certain relationships such as solicitor- client and doctor-patient that the courts regard as giving rise to the implied assumption of responsibility. - This conclusion is due to the special skills these professionals possess. - In relation to these special skills, if D holds themselves out as having some special skill which they’re going to exercise (for the benefit of C), it leads to an implicit assumption of responsibility. - It is not necessary for D to hold themselves out as merely having a special skill; it could be knowledge as well (as with knowledge of C regarding the reference)Henderson v Merrett Syndicates Ltd [1995] 2 AC 145Facts: The case arose out of losses suffered by investors (referred to as ‘Names’) suffered by the Lloydsinsurance market in London during the 1980s. This involved a situation where the claimant wanted tojoin an insurance syndicate. He’d hire an agent (either a members’ agent or a combined agent acting asa members’ agent) to generally advise him and place him on the syndicate etc...The members’ agent would be the one who contracted with the managing agent (or combined agentacting as a managing agent) who managed the syndicate. As can be seen, there are a variety of contractsin play here.Judgment: Lord Goff (giving the leading judgment) holds there could be liability in tort and emphasisedthe concept of assumption of responsibility drawn from Hedley Byrne. (He builds on his own judgment inSpring). LBW agreed the central concept was ‘assumption of responsibility’ but placed considerableemphasis on ‘fiduciary duties’ as forming the historical basis for the action in Hedley Byrne.Notes: with regards to ‘concurrent liability’ in contract and tort, he saw no issue, the practical resultbeing that a claimant could choose a remedy which appears to him to be most advantageousWhite v Jones [1995] 2 AC 207Facts: Here, a testator executed a new will after a family quarrel, disinheriting his two daughters, theplaintiffs. After reconciliation, he contacted his solicitors with instructions to draw up a new will,restoring the legacies to the plaintiffs. Little progress was made and the testator died before the newwill was completed.
  • 12. Judgment: Lord Goff acknowledged there was no trust assumption of responsibility on the part of D’stowards C’s. In his judgment, the case concerned a wrong which required a remedy and the best way ofproviding it was to hold that the assumption of responsibility which existed between D’s and thetestator extended to C’s.Notes: In terms its treatment of legal principles, White v Jones is slightly controversial. On the otherhand, the solution was intended to be confined to negligence in respect of wills. However, it has beenalso been applied in the different but analogous situation of advice in respect of pension rights, wherethe defendant advisor is aware that the client intends to make provision for his or her dependants(Gorham v British Telecommunications plc [2000] 1 WLR 2129)Williams v Natural Life Health Foods [1998] 1 WLR 830SUMMARY: - The law doesn’t like claims for PEL (Spartan Steel) o We specifically try to cause economic loss often o Idea of what we should bear o Burden sharing theory o There might be ‘unlimited liability’ - Broadly, there are 4 categories we see PEL 1. ‘relational’ economic loss (economic loss caused by damage to property of another party – e.g. Spartan Steel General rule against liability 2. Economic loss caused by acquiring a product that turns out to be defective (Murphy) Generally, there’s no liability but note the room for argument in murphy 3. Economic loss caused by reliance on negligent misstatement (Hedley Byrne) 4. ‘Extended’ Hedley Byrne Liability (Cases after hb) - With regards to category 3, we see in HB this idea of: o A voluntary assumption of responsibility (making a statement knowing it will be relied on) o Reasonable reliance on the statement - In Smith v Bush, this idea seems to be distorted and a new test is suggested to fit the facts - This essentially becomes the 3-stage Caparo test o Foreseeability (harm) o Proximity (relationship) o FJR (liability)
  • 13. - In later cases however, we see a resurgence of this ‘assumption of responsibility’ idea (see especially Lord Bridge in Spring, Henderson and White). Nonetheless, it is now clear that the assumption is not voluntary, but objective (see especially William) - There was thus a conflict then in the test for a DoC in relation to economic loss which had to be resolved. The CA wrestled with the difficulty, saying that they were alternative tests which should lead to the same result and even going so far as to say the ‘assumption of responsibility’ had merged with Caparo (Merrett) - Broadly, after Customs and Excise v Barclays, it seems you apply the ‘assumption of responsibility’ first and that may be sufficient (though there is debate over whether you are applying one test first followed by the wider one or whether the tests have indeed merged but a finding of this assumption means that it is FJR). Should that fail, you apply the wider Caparo test.So after Customs excise, in general with regards to PEL: 1. There is actually no overarching exclusionary rule for PEL but rather, two specific exclusions for categories 1 and 2. Even then, the exclusion for category 1 can seem arbitrary and while category 2 has more concrete reasons, note that they are doubted and also, the issues with Murphy 2. Outside the scope of the exclusionary rules, additional criteria will apply in addition to foreseeability. 3. If a ‘voluntary assumption of responsibility’ is present, it may suffice without separate consideration of policy issues 4. If the assumption of responsibility is not present, the three stage Caparo test may nevertheless be satisfied. But note that in such cases, policy considerations will be especially important. (per Lord Bingham in Customs Excise “the ‘fair, just, and reasonable criterion’ can be frankly and openly reassessed in terms of ‘policy’”Seminar 4: Duty of Care 3 – Omissions(1) Policy reasons for limiting liability for a failure to actStovin v Wise [1996] AC 923Facts: C was on a motorcycle and involved in an accident with D. D claimed accident was caused partlybecause her view was obstructed (local authority was a joined D). Local authority had written to theobstructors (people owning the things obstructing the view) asking if they could take the necessaryaction. They received no reply and proceeded to do nothing for a year. They were held 30% liable andappealed to the HL.
  • 14. Judgment: In general, no liability for omissions without a special duty to act. Lord Hoffman gives 3specific reasons. 1. Political reason (restriction on individual autonomy; but, doesn’t seem to weigh up competing factors) 2. Moral reason (‘why pick on me’ argument; again, individual concern overrides others. Also, sometimes there are reason to pick on someone e.g. as possessing a particular skill) 3. Economic efficiency (activities should bear their own costs; but sometimes it may require a small act to save someone’s life. Is that less efficient? This argument only seems to apply in the business context. E.g. letting a child drown won’t help him be more efficient in the future)(2) Distinction between acts and omissions
  • 15. It can be difficult to distinguish the two. A reasonable working test is to look at the process of causation.The key thing to look out for is whether the defendant’s contribution made things worse than they wereor whether the defendant is merely not making things better. We’re concerned with the latter here.(3) Examples of liability for omissions(A) CREATING THE RISKe.g. Hobbs (Farms) Ltd v Baxenden Chemical Co [1992] 1 Lloyds Rep (in leni)C is injured by a product and this product had been made by the D perfectly carefully. At the time noone realised there was anything dangerous or problematic with it. Later however, problems with designwere brought to the manufacturers’ attention but the manufacturer made no attempt to contactpurchasers. Duty of care was owed in regard to that negligent failure to warn the purchasers of thatproduct about that defect that had come to light.(B) UNDERTAKING RESPONSIBILITY FOR THE CLAIMANT’ S WELLBEINGCapital and Counties plc v Hampshire County Council [1997] QB 1004Facts: 3 appeals held all essentially concerned with the fire brigade’s liability for failing to put out a firein some way. In the second 2 cases, all that we could say about the fire brigade was that they hadn’tdone enough. Whereas in the first one, the fire brigade arrives, apparently they don’t do enough to startwith, but then the fire brigade officer orders the sprinkler system turned off and that made the buildingburn down.Judgment: In general, there’s no DoC owed by a fire brigade in respect of a fire. Nonetheless, in the thirdcase here there was liability.Notes: There are no policy reasons to require a duty being imposed in respect of getting there in timeonce they accept a call. Further, once they arrive, the fact that there may be conflicting demands placedon the fire services (e.g. might have to break down another house to save a block) means thereshouldn’t’ be a duty imposed there either.Kent v Griffiths [2001] QB 36Facts: An ambulance had not turned up in time for unexplained reasons. The result of their delay wassevere injury to the claimant.Judgment: There is no general duty on the ambulance service to respond to a call; but once a call hasbeen accepted, the service owes a duty to the named individual at a specific address.Notes: CA distinguish the fire service because conflicting demands aren’t placed on them once they’reallocated to a particular call. Lord Woolf however recognises they if they’re called to the scene of amajor road accident for instance, there might still be conflicting demands (e.g. who to save first) butsays that a duty of care would still exist. (and tort law would avoid imposing excessive liability as long as
  • 16. they weren’t negligent in choosing the order in which they treated people) This distinction betweenCapital and Kent does not seem convincing.Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225, [55] (Lord Bingham)–(Casewhere C was threatened with death if he did not drop charges and eventually killed) Here, Binghamsuggests that the real distinction between the two cases is that Capital is about property damage whileKent is about personal injury. Life should be given more weightage but beyond that, property, especiallycommercial property as in Capital, is typically insured. Though courts aren’t meant to take that intoaccount, they often do. Flowing from this, it does seem to suggest that if a fire brigade is required tohelp someone personally in danger, there could be a DoC.Barrett v Ministry of Defence [1995] 1 WLR 1217Facts: C got very drunk on cheap duty free booze at his naval base’s bar and lies down. A senior officerorganises for him to be taken away and he’s left alone and proceeds to puke and choke.Judgment: It is held that once the duty officer organises for him to be taken away, a duty of care arises.Notes: There was a question of whether a duty should arise for the Ministry of Defence with regards topreventing him from becoming so drunk as to become a danger. The answer seems to be no as the lawfavours autonomy and the effect of such a duty would be to ‘dilute self-responsibility’. (So the duty hereis relatively limited. Cf. Jebson)Jebson v Ministry of Defence [2000] 1 WLR 2055Facts: Soldiers go to the town of Portsmouth. Transport is a lorry with a canvas back basically, on theway back, the soldiers notice that driving along behind the lorry is a young woman in the car. In an effortto impress her, one of them climbs up to the lorry roof to do a dance. He falls off and gets injured.Judgment: Because the officer organised the event, he assumed a responsibility for the safety of thesoldiers throughout. So the mere fact that he was the CO who organised the event meant that he washeld to have responsibility throughout.Notes: Is it because of his position in employment rather than the mere fact he organised an event? Is iteven an employment context? Does Jebson mark a large, and indeed perhaps overly large, extension ofthis assumption of responsibility context? Consider the case of someone organising an office party,could he be liable? The ruling seems confined to the military context.Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 - Man commits suicide in a cell.Authorities knew he was at risk and failed to take steps to prevent him from killing himself. There it’dseem that the position of responsibility occupied by prison authorities is what gives rise to the duty. It isbecause they locked someone up, confined his movements etc..., that they ought to take careto providesafety in that confined space.
  • 17. (C) OCCUPATION OF LANDIt’s said that a person’s control over land gives rise toa responsibility to prevent damage occurring toother people.Goldman v Hargrave [1967] 1 AC 645Facts: A tree on a man’s land got hit by lightning. He thought he’d let it burn out (that’s the negligent bit.Not putting it out). But the weather got worse and the wind changed etc so it flared up and the firespread to the neighbour.Judgment: He’s made liable for failing to prevent the damage occurring to his neighbour.Notes: Why should occupying land give rise to such a duty? - The person at risk isn’t allowed to come onto your land to get rid of your danger also the person can’t really move away. - Note that there is an issue of cost of prevention. It’s quite important on the facts there that there’s quite a simple task he could have done to stop the spread of the fire. So it seems we’re only requiring landowners to take ‘reasonable steps’ to prevent the harm rather than all possible steps. However, as different people have different amounts of resources, there is a lingering question of whether these ‘reasonable steps’ will be assessed subjectively or objectively. Particularly with omission situations where potentially expensive acts are required.(4) Liability for Acts of Third Parties(A) GENERAL RULEThe general rule is that you don’t owe a doc to prevent TP’s from causing damage to anyone. Indeed, it’sreinforced by the general rule of causation which is that a TP’s voluntary act breaks the chain ofcausation. So even if I do something negligent, e.g. leave the keys in my car so a thief steals it; if the thiefruns over you, his voluntary act would break the chain of causation b/w me leaving the keys and yourdamage. So generally the fact that a TP has injured you cannot make me liable in negligence. (Essentiallydescribes Topp v London Country Bus [1993] 1 WLR 976)But there are exceptions and the way they’ve developed underlines an underlying difficulty in the lawregarding the DoC and that’s whether you can use the foreseeability test or whether you have toidentify particular situations where a DoC arises. Nonetheless, as with other areas of tort, it is nowreasonably clear that mere foreseeability isn’t enough.(B) EXCEPTIONS TO THE GENERAL RULEHome Office v Dorset Yacht [1970] AC 1004Facts: Young offenders at Dorset snuck out, stole a boat and crashed into one owned by D.Judgment:
  • 18. Lord Reid: DoC should be based on foreseeability and if it was foreseeable, liability would hinge oncausation (and whether it was broken)Lord Diplock (and Pierce): Mere foreseeability isn’t enough. Identifies certain features of the situation athand that made it appropriate to impose a DoC. Here, the high degree of control justified the duty (sothis applies more generally to prison officers and prisoners)Notes: So it seems an important factor in imposing liability for acts of Third Parties is the degree ofcontrol D was entitled to exercise over the TP.Smith v Littlewoods Organisation Ltd [1987] AC 241Facts: Case concerned a cinema in the town centre of a Scottish town which was burned down byvandals who broke in. Owners of the cinema didn’t realise there was such a risk; when it burns down, itdamages neighbouring property and it is the neighbours suing the cinema owners.Judgment: No DoC owed. Majority focus on the question of foreseeability.Lord Goff by contrast was clear that mere foreseeability was not enough. Some categories he suggestedincluded: - Degree of control exercised over the TP - Presence of an ‘assumption of responsibility’ by D to protect C against a TP - If D negligently created a risk which a TP then foreseeably triggered (e.g. fireworks for a village festival stored in an unlocked shed which are then set off by trespassers causing damage)Mitchell v Glasgow City Council [2009] 1 AC 874Facts: C (Mitchell’s spouse) has this violent antisocial neighbour who causes him various problems.Mitchell complains to the council. Council summoned neighbour to a meeting. Following the meetingneighbour returns to the house and kills Mitchell.Here it was said that the council had been negligent asthey should have warned C that the meeting was going to take place. What would he have done then?Gone out or maybe gone away for a few days to let the neighbour calm down for a bit.Judgment: HL held that no DoC was owed to him. The idea being that they were simply exercising theirstatutory powers andno criticism could have been made for them calling the meeting. They also saidthat the council had not assumed responsibility to Mitchell to protect him against the neighbour andLord Hope says it’s only when there’s been an assumption of responsibility that you can find that afailure to warn a TP has been a breach of a DoC.Notes: This case illustrates how important it is that we choose one option over another in terms ofimposing a DoC. Here, mere foreseeability would have led to the imposition of a duty. Focus on Goff inSmith and the HL here to get an understanding of liability for acts of TP’s.Part of Lord Hope’s reasoning was that if you imposed a duty here, you’d have to impose a duty onprivate landlords and housing associationsSUMMARY - No general duty to act in English law (Stovin v Wise)
  • 19. - A good way to tell the difference between an act and omission is whether the defendant made things worse (which would be an act and thus potentially have liability) or whether he merely did not make things better - There are nonetheless exceptions to this rule such as when you undertake responsibility to act o This is explicitly not the case for the fire department (Capital and Counties)  No policy reasons to impose duty at time of answering call  Policy reasons (conflicting interests) against duty at time of arrival  Unstated reason? insurance o However, it seems to be so for the ambulance service (Kent)  No conflicting interests once allocated to a call. Nonetheless, even if there are there’d still be a duty o The distinction between the above 2 is unsatisfactory and in Van Colle, Bingham suggests that the reason may be that one deals with personal injury and another with property. So is there a duty if the fire service is called to rescue someone? o Where someone is clearly in a very bad state and you make some motion of helping them (Barrett) o Perhaps employers and employees? (wide reading of Jebson) o Something in the nature of organising an activity for servicemen (narrow reading of Jebson) o Prison officers and prison guards (Reeves) o Occupiers of land and visitors (Goldman. Note how special cost considerations may arise here) - With regards to liability for the acts of third parties again, the general rule is that there is no DoC owed. However there are some exceptions. - Home Office v Dorset Yacht; where D has a high degree of control over the TP. Note that the category approach was favoured by the majority here. - Smith v Littlewoods; The majority favoured a foreseeability approach. Lord Goff firmly took a category approach and suggested a few. o High degree of control o Assumption of responsibility o Where D has created a dangerous situation but is negligent allowing the TP’s to ‘realise the danger’ (or make the danger materialise essentially) - Mitchell; adopted Lord Goff’s reasoning in Smith. So it seems the mere foreseeability approach is gone.Seminar 5: Duty of care 4: publicauthorities
  • 20. (1) The techniques used to narrow the scope of duty(A) DIRECT LIABILITY AND VICARIOUS LIABILITYPhelps v Hillingdon London Borough Council [2001] 2 AC 619 - example of assumption of responsibilityby individual psychologist to child.X (minors) vBedfordshire County Council [1995] 2 AC 633 - authority can only act through its employees.(B) JUSTICIABILITYHome Office vDorset Yacht Co Ltd [1970] AC 1004 - illustrations of justiciability; suggestion of ultra virestest to define public authority’s liability.X (minors) v Bedfordshire County Council [1995] 2 AC 633 - rejection of ultra vires test; ask insteadwhether authority had acted within its discretion, and apply policy/operational distinction.Barrett vEnfield London Borough Council [2001] 2 AC 550.Phelps v Hillingdon London Borough Council [2000] 3 WLR 776Carty v Croydon London Borough Council [2005] 1 WLR 2312, especially at [20]-[37] - rejection of thediscretion test; scepticism about the value of the policy/operational distinction.Connor v Surrey County Council [2010] EWCA Civ 286 [76]-[102] (Laws LJ) - arguing that the underlyingidea of justiciability has changedCraig, Administrative Law (L&O 504-505)(C) ARE PUBLIC LAW CONCEPTS RELEVANT ?Stovin vWise [1996] AC 923 - dicta that claimant must show irrationality where duty based on failure toexercise statutory power.Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057 - some caution about the dictain Stovin. See in particular [4] (Lord Steyn), [26] and [31] (Lord Hoffmann). But contrast [91] (LordRodger).(2) Applying the test for a duty of careCaparo Industries plc v Dickman [1990] 2 AC 605 - basic test for dutyX (minors) vBedfordshire County Council [1995] 2 AC 633 - not fair, just and reasonable to imposeliability for negligent conduct of child abuse investigations
  • 21. Barrett vEnfield London Borough Council [2001] 2 AC 550 - fair just and reasonable to impose liabilityfor decisions as to child’s future, once he had been taken into care.Phelps vHillingdon London Borough Council [2000] 3 WLR 776 - assumption of responsibility bypsychologist employed by authority to child in respect of assessing child for dyslexia.Stovin vWise [1996] AC 923 - vital importance of statutory context.D v East Berkshire Community Health NHS Trust [2004] QB 558 (CA); [2005] 2 AC 373 (HL) - veryimportant case; you need to be familiar BOTH with the Court of Appeal’s analysis of the claim by thechild (which was not appealed to the House of Lords) AND with the House of Lords’ analysis for theclaim by the parents.D v Bury Metropolitan Council [2006] 1 WLR 917, [1]-[32] only - wide application of D v East Berkshire.Jain v Trent Strategic Health Authority [2009] 1 AC 853Merthyr Tydfil County Borough Council v C [2010] EWHC 62 (QB)Seminar 6: Breach of duty and causation1(1) Breach of duty(A) BASIC TESTWhether D was negligent.Blyth v Birmingham Waterworks Co (1856) 11 Ex 781: “Negligence is the omission to do somethingwhich a reasonable man, guided upon those considerations which ordinarily regulate the conduct ofhuman affairs, would do, or doing something which a prudent and reasonable man would not do”.(B) OBJECTIVE STANDARDObjective standard;Nettleship v Weston [1971] 2 QB 69 – A learner driver crashed into a lamp post and injured herinstructor. CA said that negligence was judged by reference to an objective standard and in general, thereasonable person test shouldnt be modified by reference to D’s characteristics.To be judged in context;This is particularly relevant to sporting situations (or situations analogous to sporting situations)Wooldridge v Summer [1963] CA
  • 22. Facts: A photographer is injured by one of the competitor’s horses while taking pictures at an showjumping event.Judgment: the CA held that the duty of care would only be breached where a competitor displayed‘reckless disregard’ for the safety of the rider. So it’d be necessary to show a high degree of negligence,even recklessness. Here, D was held to have made ‘an error of judgment’ rather than ‘actionablenegligence’.Blake v Galloway [2004] (CA)Facts: Teenage boys were playing a game which involved throwing pieces of bark at each other. One ofthem threw a bit of bark so hard that it hit his friend in the eye, causing serious injury.Judgment: CA said it was akin to a sport and there was an almost tacit agreement between the ‘players’as to what they’d do. Thus the context allows the standard of the duty owed to be lowered andprevented the finding of a breach.Without reference to hindsightYou have to assess whether the defendant is careless by reference to the date of the event.Roe v Minister of health [1954] CAFacts: D ran a hospital. C had been in for an operation which required anaesthetic. He was injected withanaesthetic but unfortunately, it’d become contaminated and the contamination in it caused C tobecome paralysed. The contamination had come about in a peculiar way. Anaesthetic was stored inglass vessels called vials. These vials were stored in an antiseptic called phenol. Nobody realised it at thetime but those glass vials were at risk of microscopic cracking, through which the antiseptic couldpenetrate. It was this penetration that had caused the contamination in Roe’s case.Roe’s case was the first time anybody realised that this was how anaesthetic could becomecontaminated. And after it was realised, articles were published about this risk etc… Roe sues thehospital for negligence.Judgment: CA says hospital wasn’t negligent as it has to be judged by the state of expertise as it exists atthe time of the alleged negligence. You can’t use the benefit of hindsight. (Per Denning “we must notlook at the 1947 accident with 1954 spectacles)So we start from a basic position of an objective standard just by reference to the context and the timeof the incident. There are 2 questions we might ask: - Are there any characteristics of the particular defendant that can be taken into account? - What are certain factors the RP would consider in deciding whether to do (or not do) an activity?
  • 23. BUT COURTS SOMETIMES TAKE D’S SPECIAL CHARACTERISTICS INTO ACCOUNT :Age, specifically young ageMullin v Richards [1998] 1 WLR 1304Facts: Two 15-year old schoolgirls were fencing with plastic rulers during a class when one of the rulerssnapped and a fragment of plastic caused one of them to go blind in one eye.Judgment: CA held that the standard of care should be modified to the extent of taking D’s age intoaccount as people who are young are less capable of appreciating the likely consequences of theiraction.Notes: From this judgment, is not clear whether either old age or mental immaturity can be taken intoaccount. (e.g. 20 year old with a mental age of 10)Professional StatusPhillips v Williams Whiteley Ltd [1938] 1 All ER 566Facts: C had her ears pierced by a jeweller in a department store. He sterilised the needle in a flame aswas the practice for jewellers then but did not take the steps a doctor would have. C gets an infection.Judgment: CA held that it is the nature of the task that determines the standard of care. Also, where aperson undertakes an activity requiring specialist skills, they’re required to reachthe standard of aperson reasonably competent in that skill.DisabilityMansfield v Weetabix Ltd [1998] 1 WLR 1263Facts: Driver of a Weetabix lorry suffering from malignant insulinoma crashed into the front of a shop.The disease makes you drowsy and affects your concentration and depth perception. Also, it comes ongradually so it isn’t easy to appreciate that you’ve been affected by it. Importantly, the driver didn’trealise he was suffering from it as for those who do, treatment is available.Judgment: CA said to disregard the disability would essentially be to impose strict liability which is notwhat the law of negligence is about. The RP test can thus be modified to take disability into account.(Here, a reasonable person who didn’t know he suffered from MI, and thus wouldnt have realisedsomething was wrong, would have continued to drive)CERTAIN FACTORS A REASONABLE PERSON TAKES INTO ACCOUNT WHEN DECIDING WHETHER TO PERFORM (OR NOTPERFORM ) AN ACTIVITY 1. Likelihood of Harm 2. Gravity of the Harm 3. Cost of taking precautions
  • 24. 4. PurposeLikelihood of harmBolton v Stone [1951] AC 850Facts: C lives close to a cricket ground and is hit by a cricket ball which is hit out of the ground. In thisground, there was a fence around the edge which was about 7 feet high and the ground was on a bit ofa slope. In fact, for the ball to hit the claimant, it had to have travelled about 17 feet high in the air. Andin the past 30 years it was said, the ball had only been hit out of the ground on half a dozen or sooccasions, and prior to this, no one had been injured.Judgment: The court held that low likelihood of harm meant it was not negligent for the club to have amatch there. So the fact that the RP would only have expected this to happen in a fantasticalcombination of circumstances went to show there wasn’t a breach of docThis was confirmed more recently inWhippey v Jones [2009] EWCA Civ 452Facts: C was a runner in a park. D was owner of hector, the Great Dane who apparently weighed 12stone. Unfortunately for C, Hector knocked into his right shoulder and through a series of events causedhim to break his ankle. C sues D for negligence.Judgment: CA holds it’s not negligent to let dog off leash in the park because dog never had previoushistory of jumping onto people or barging into them. I.e. because likelihood of harm is so small, a RP isjustified in taking the risk of that harm“*16+ … Before holding that a persons standard of care has fallen below the objective standard expectedand so finding that he acted negligently, the court must be satisfied that a reasonable person in theposition of the defendant (i.e. the person who caused the incident) would contemplate that injury islikely to follow from his acts or omissions. Nor is the remote possibility of injury enough; there must be asufficient probability of injury to lead a reasonable person (in the position of the defendant) toanticipate it.”Gravity of HarmParis v Stepney Borough Council [1951] AC 367Facts: C worked for the council on a street cleaning vehicle. He only had one functioning eye. Whenusing a hammer to remove a bolt on a vehicle, a scrap of metal is liberated by this act and it goes into hisgood eye. So he completely loses his sight as a result of the accident. He sues the council saying they’renegligent in failing to provide him with goggles in the use of the vehiclesJudgment: D owed a higher standard of care to the claimant because they knew that for him inparticular, an injury to his good eye would be extremely serious.
  • 25. Cost (and practicability) of precautionsLatimer v AEC Ltd [1953] AC 643Facts: Here, there’d been a downfall of rain which had caused flooding in D’s factory. As a result of thatflooding, coolant for the machines which ran in open channels on the floor had been washed out ofthose channels. After the water subsided, that coolant which was like oil had been left all over thefactory floor. D realised there was a problem and they obtained 3 tonnes of sawdust to sprinkle over thefloor to make it less slippery, they then reopened the factory.C was a worker who slipped and fell on a staircase on a set of stairs that didn’t have this sawdust (buthad coolant). It was a set of stairs that was rarely used.Judgment: HL said one had to take into account the economic cost of closing the factory for a night indeciding whether employees had taken reasonable care in reopening it after taking the precautions theyhad taken. The only way to remove the risk would have been to close the affected part of the factoryuntil it dried out. This would have been expensive and disproportionate to the relatively small risk ofinjury.PurposeWatt v Hertfordshire CC [1954] 1 WLR 835Facts: C was a fireman. He was injured whilst travelling to an emergency call. The circumstances of thatemergency were slightly peculiar. Fire brigade has received this call in relation to a person trapped in avehicle after a road accident.For some reason, the fire brigade didn’t have the correct vehicle for transporting the equipment they’dneed to extract the person from the road accident. As such, they put it on a different vehicle notdesigned to carry it. C is on back of vehicle, basically holding the equipment in place. When the vehiclecomes to a stop, the equipment moves on the back of the vehicles and crushes/injures CJudgment: CA said there’s no breach of duty of care as the purpose for which the risk has been takenwas to get to the scene ASAP to help the trapped person. So that purpose, that socially beneficialpurpose (to save a life), altered the assessment of whether the D, the fire brigade, had been negligent.Notes: Even a socially beneficial purpose does not mean the defendant is justified in taking any risk.Emergency services for example, must still take care in passing re lights and remember to use theirsirens and lights. Also now, s1 of the Compensation Act 2006 allows the court to consider whetherprecautionary or defensive measures might prevent a socially desirable activity.(C) ‘LEARNED HAND FORMULA’There is a breach of duty if the cost of precaution is less than likelihood of the harm multiplied by thegravity of the harm
  • 26. C<L*GBy doing this, American courts have felt they give more certainty to the way the breach of dutyassessment is carried out. There are potential problems though(D) SPECIFIC ISSUES REGARDING BREACH OF DUTY CONCERNING PROFESSIONALSBolam v Friern Hospital Management Committee [1957] 1 WLR 582Facts: Person treated for depression by electric shock therapy. Consequence of being administered withthe treatment is that your limbs flair around due to the force of the electric shock. On the facts of thiscase, the patient had been strapped onto the bed in order to stop him falling off when the electricityhad been administered. Unfortunately he’d been strapped on so tightly and reacted extremely forciblyso that when he did move, he broke his leg. He argued it’d been negligent not to give him any musclerelaxing drug before administering the therapy. However, there was some issue about whether theyshould have administered itJudgment: J McNair resolved the problem by saying it wasn’t necessary to show that what a particulardoctor had done in the circumstances was what reasonable doctors would do in the case. So long aswhat was done conformed with a responsible body of medical opinion, it’d satisfy the test for takingreasonable care.It’s been criticised for being too protective of professionals. The HL clarified the situation;Bolitho v City and Hackney HA [1998] AC 232Facts: C suffered brain damage as a result of a doctor’s failure to attend to clear a child’s blockedairways by intubation. There was a difference of medical opinion as to whether intubation wasnecessary in the particular circumstancesJudgment: It’s necessary to satisfy the test to show that the responsible body of medical opinion youwere following was both based on somerational foundation and that it had made an assessment of boththe advantages and disadvantages of pursuing that particular approach or course of treatment.Though the tests from Bolam and Bolitho are primarily developed for doctors, they apply to allprofessions.SUMARRY - You typically have a breach of duty where D has been negligent. Per Blyth v Birmingham Waterworks negligence is doing something a RP person wouldn’t or not doing something a reasonable person would. - When we talk about the RP here, we mean it is judged from an objective standard (Nettleship v Weston) taking into account the context (Wooldrige v Summer, Blake v Galloway), and without the benefit of hindsight (Roe v Minister of Health) - However, certain characteristics of the particular D can be taken into account. Notably:
  • 27. o Age, especially young age (Mullins v Richards) o Profession (Phillips) o Disability (Weetabix) - When considering the factors a RP would take into account, there are 4 main things we look at o Likelihood of harm occurring (Bolton v Stone, Whippey v Jones) o Gravity of the harm (Paris) o Cost and practicability of precautions (Latimer v AEC) o Purpose (so socially desirable purposes will have a lower standard of duty owed to C – Watt; nb. Compensation Act 2006 s1) - Also take note of the learned hand formula(2) Causation 1(A) THE BASIC BUT FOR TESTStarting point for causation is the basic ‘but for test’. It works on the balance of probabilities.Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428Facts: C was turned away from the hospital by a doctor who refused to examine him. He later died ofarsenic poisoning. It was later shown that he would not have recovered even if properly diagnosed as itwas too late to administer the antidote at that point.Judgment: No liability for breach of duty as there was no causation(B) EXCEPTION: MATERIAL CONTRIBUTION TO DAMAGEWhere there are multiple causes of damage, It can be hard to prove ‘but for’ causation. Thus, theclaimant only has to show that D made a ‘material contribution to damage)Bonnington Castings Ltd v Wardlaw [1956] AC 613Facts: C contracted pneumoconiosis while comes about through breathing contaminated air. (It wascontaminated with silicone dust in this case) There were two main causes of dust, one of which wasrequired by law to be extracted (and so, only one cause was negligent) It was impossible to prove ‘whichdust’ had caused the disease.Judgment: D could be liable as they were responsible for a material contribution to the damage. It doesnot have to be a significant cause but it has to be a material contribution rather than a negligible one.(Per Lord Reed: if you were responsible for a single speck of dust, you wouldn’t be liable)(C) EXCEPTION: MATERIAL CONTRIBUTION TO RISK OF DAMAGEMcGhee v National Coal Board [1973] 1 WLR 1
  • 28. Facts: Here, C gets dermatitis which he alleges is a result of exposure to brick dust while cleaning outbrick kilts. While D is not negligent in respect of that exposure, it is alleged that they are negligent infailing to provide washing facilities. As it were, C had to cycle home covered in the dust.The problem here is that no one is quite sure exactly how the dermatitis comes about. If it occurs themoment the dust lands, say it causes an abrasion of the skin which will inevitably result in dermatitis,since D is not negligent at that point, it seems there’d be no liability.However, if it is caused through prolonged contact with the skin, cycling home with the dust has clearlycontributed to the disease occurring. The point here is that we really do not know. The sole causal linkthat C can establish is that the employer’s action (or inaction rather) increased the risk of gettingdermatitis.Judgment: HL here held that a material increase in the risk of damage was sufficient for liability. This wasquite a radical decision and in Wilsher, they attempted to re-interpret McGhee to the point where itwould be as though it never happened.Wilsher v Essex Area Health Authority [1988] AC 1074Facts: The defendant hospital, initially acting through an inexperienced junior doctor, negligentlyadministered excessive oxygen during the post-natal care of a premature child who subsequentlybecame blind. Excessive oxygen was, according to the medical evidence, one of five possible factors thatcould have led to blindness. On the "balance of probabilities" test, the hospital would not be liable, sinceit was more likely that one of the alternate risks had caused the injury. (CA found liability applyingMcGhee)Judgment: The House of Lords found that it was impossible to say that the defendants negligence hadcaused, or materially contributed, to the injury and the claim was dismissed. It also stated that McGheearticulated no new rule of law, but was rather based upon a robust inference of factThis reinterpretation however was subsequently rejected.Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32Facts: C had worked for several different employers, all of whom had exposed him to asbestos. The(late) claimant contracted mesothelioma (a form of cancer that is almost always caused by exposure toasbestos) and died. His wife sued the employers on his behalf in negligence. However, due to longlatency periods (it takes years before symptoms are evident), and the fact that a single fibre of asbestoscan trigger mesothelioma, it was impossible to attribute his death to a single employer generally, nor onthe balance of probabilities.Judgment: The HL reaffirms the McGhee test of material contribution to the risk of harm and rejects theWilsher analysis (but approves the result) and thus, all the employers were jointly and severally liable.
  • 29. Notes: So we have this new principle based on increase in risk but we know that in Wilsher there was noliability but in McGhee there was. So we’re left with the question of when an increase in risk will besufficient.These limits on the Fairchild exception come through quite clearly in the Barker caseBarker v Corus UK Ltd [2006] 2 AC 572Facts: C’s husband, who died of mesothelioma, had been exposed to asbestos during three periods in hisworking life: first while working for a company which had since become insolvent, secondly whileworking for D and thirdly, while self-employed. (at first instance, D and the insolvent company were heldto be jointly and severally liable subject to a 20% reduction for contributory negligence)Judgment: The HL said it didn’t matter that not all of the exposures were wrongly. Therefore, adefendant who wrongly exposed the deceased to the risk may still be liable even though the otherexposures either occurred naturally or resulted from the deceased’s own acts.Also, they applied‘proportionate liability;Notes: This clarification leaves us with 2 limits to applying Fairchild/Barker. 1. Scientific uncertainty – The idea that it is the limits of science which prevents the identification of the actual defendant responsible for the damage and that this limit shouldn’t bar C from a claim. 2. Same causal agent/mechanism – Since Wilsher was upheld, it seems that to apply Fairchild, the damage must have the ‘same causal agent’ (see notes on the dicta explaining this)On proportionate liability, Lord Hoffman and the majority thought it was more fair. Lord Rodger indissenting felt that to apply proportionate liability was to make Fairchild not an exception to ‘but for’causation but a new method of causation in itself.For various reasons, this caused a political backlash resulting in s3 of the Compensation Act 2006 whichspecifically only refers to cases of mesothelioma caused by exposure to asbestos.SUMMARY - Starting point is ‘but for’ causation (Barnett) - There is an exception where D was responsible for a material contribution to the damage (Bonnington) - There is a further exception where D is responsible for a material increase in risk of damage (Barker but also important are the cases leading up to Barker) o McGhee – material increase in risk of damage was sufficient for liability o Wilsher – material increase of risk was not sufficient. McGhee reinterpreted o Fairchild – Essentially follows McGhee and says that a material increase in risk of damage was sufficient and while they reject the Wilsher analysis, they approve the result - Barker – resolves the tension between Fairchild and Mcghee somewhat
  • 30. o Says that D can be liable when responsible for a material risk in increase of damage regardless of whether all the sources of exposure were negligent o However, they favoured ‘proportionate liability’ which per Lord Rodgers reasoning seems to make this not an exception to ‘but for’ causation but a new form of causation o Importantly, to use the Fairchild exception, it seems you need  Scientific uncertainty  Same causal agent/mechanismSeminar 7: Causation 2 and remoteness(1) Causation 2(A) LOSS OF A CHANCECourts are extremely reluctant to impose liability where the negligence of the defendant caused theclaimant to lose a chanceHotson v East Berkshire Area Health Authority [1987] AC 750Facts: a boy fractured his hip when he fell from a tree. The hospital made a misdiagnosis and the boydeveloped a hip deformity. Experts confirmed that he would have had a 75% chance of developing thedeformity even with the correct diagnosis. The trial judge (upheld by CA) awarded him 25% in damagesfor his lost chance of recovery.Judgment: HL reversed the previous decisions considering that since there was only a 25% chance thatthe negligence caused the injury, ‘but for’ causation was not satisfied.Gregg v Scott [2005] 2 AC 176Facts: D had negligently misdiagnosed the claimant’s malignant cancer as benign. This delayed theclaimant’s treatment by nine months and reduced his chances of being cured from 42% to 25%.Judgement: The majority of the HL (3-2) upheld the earlier decision in Hotson, though Lord Nicholls(joined by Lord Hope) argued strongly for loss of a chance to be actionable.Notes: If claims for a ‘loss of chance’ were actionable, it is likely there would be pressure for all damagesto be awarded on proportionate liability. Also there’s the floodgates argument (people made even a few% worse off by medical negligence might try and claim)Finally, statistics aren’t perfect but with BoP, atleast you have a higher chance of getting it right.(B) INTERVENING ACTSAn intervening act may break the chain of causation between the defendant’s breach of duty and theloss or damage suffered by the claimant.
  • 31. In Environment Agency (formerly National Rivers Authority) v. Empress Car Co. (Abertillery) Ltd. (1998)2 WLR. 350, Lord Hoffman says there are 2 strong indicators to look out for - Deliberate voluntary acts - Extraordinary natural eventsThe third type is a bit more tricky, namely, negligent actsExtraordinary natural eventsHoffmann illustrates this in the case. Imagine I’ve got a drum full of flammable liquid on my premises. Ifthat liquid catches fire because it’s a very warm day and that makes it spontaneously combust etc, wewouldn’t regard it as something that breaks the chain. In the scheme of things, it being a hot day isn’tparticularly unusual.If on the other hand, the drum is struck by lightning during a storm and that causes it to catch fire, thatwould be an extraordinary natural event.Deliberate voluntary actsSimilarly in relation to deliberate voluntary acts, talking about the same drum, there’s a workmansmoking who casually negligently drops the cigarette into the drum that probably wouldn’t break thechain of causation.But if he deliberately puts it in knowing there’s flammable liquid in the drum that probably would breakthe chain of causation.Negligent actsThe other thing that might break a chain of causation would be a negligent act. However, this is going tobe more difficult to establish.(Phrased ‘positively’, it seems the original defendant will be responsible for injury and damage which arethe natural and probable results of the initial wrongful act; he will also be liable where the interveningact is one he should have foreseen)(phrased negatively, there seem to be three main things against the negligent act breaking the chain (i)where the nature of the duty is such that it will be made redundant by breaking the chian, (ii) where thenegligent act is quite unusual or extraordinary, (iii) where the claimant himself breaks the chain by doingsomething stupidly negligent)The final point Hoffman made in Empress Car is about the relation between the rules on intervening actsand the rules of a DoC to prevent damage being inflicted by a TP (e.g. smith v littlewoods). (This point isalso made in Reeves) is that the court has to consider the nature of the DoC.Reeves v Metropolitan Police Commissioner [2000] 1 AC 360
  • 32. Facts: The deceased (C) was in the prison and committed suicide (after 2 earlier failed attempts). Thepolice knew he was a suicide risk. It was held that the police did owe him a DoC to protect C frominjuring himself which they breached by leaving the flap of the cell door open. (remember the rules onDoC for TP’s)Judgment: Applying the general principles about intervening acts, it seems like the chain of causation isbroken by a voluntary deliberate act. However, the courts decided that the intervening act principlecouldn’t be established.Notes: Here, the point of the duty is to prevent a person from deliberately harming himself. If at thecausation stage of the claim the court were to say that he’s broken the chain by deliberately harminghimself that would be making a mockery of the duty.So if a duty is express in terms of being a duty to prevent either someone injuring himself or a duty toprevent another person injuring him, then these general rules about breaking the chain of causationdon’t apply. The chain will not be broken by voluntary deliberate acts by C or a TP.Knightley v Johns [1982] 1 WLR 349Facts: There’s a car accident in the Queensway tunnel in Birmingham. D1 is the person who negligentlycrashed his car. Police come and they realise they haven’t stopped incoming traffic from coming in. Sothey send 2 cops back into the tunnel into oncoming traffic (on bike) and a car comes and crashes intoone of bikers.The police officer is clearly negligent or at least in contravention of police standing orders. First of allthey failed to stop the traffic at the correct end of the tunnel. Then the officer in charge of the incidentorders the bikers to go the wrong way and the police biker is suing the original accident causer.Judgment: The CA is quite clear that the mere fact that an intervening act is negligent does not breakthe chain of causation (i.e. negligent acts do not automatically break the chain of causation); thenegligent act needs to be quite unusual or extraordinary. Here, the CA emphasised that the twodeliberate contraventions of police orders, namely blocking the wrong end and then sending the officersagainst the flow of traffic, were unusual acts of negligence and thus were held to break the chain ofcausation. (The original defendant will be responsible for “injury and damage which are the natural andprobably results of the *initial+ wrongful act”)Further, it is also possible for the claimant to break the chain of causation by doing something stupidlynegligent. (Highlighted in Spencer). More specifically, for an act of a claimant to be a novus actusinterveniens, it must be entirely unreasonable in all the circumstances.Spencer v Wincanton Holdings Ltd [2010] PIQR P8Facts: C suffered injury due to workplace negligence and had to have an amputation of one leg (or mostof it). While he had prosthetics, pending modification to his car he could not drive it with theprosthetics. 3 years after the injury while filling his car at a gas station, without wearing prosthetics or
  • 33. using crutches, he tripped and suffered injury which made him wheelchair bound. He sued D in respectof the further damage he suffered. At first instance the judge held that the chain of causation was notbroken but reduced damage by a third for contributory negligence.Judgment:The second ground of appeal based on the respondent’s unreasonable conduct also failed. There was nonovus actus interveniens that broke the chain of causation. Whilst each case must be considered on itsown facts the trial judge was entitled to find that the respondent’s conduct was not “unreasonable” ascontended for. The respondent made a misjudgement in running a risk by not using his prosthesis orsticks and this was properly reflected in the reduction for contributory negligence.”(2) REMOTENESSThe Wagon Mound (No 1) [1961] AC 388Facts: Overseas Tankship had a ship, the Wagon Mound, docked in Sydney Harbour in October 1951.The crew had carelessly allowed furnace oil (also referred to as bunkering oil) to leak from their ship.The oil drifted under a wharf thickly coating the water and the shore where other ships were beingrepaired. Hot metal produced by welders using oxyacetylene torches on the respondents timber wharf(Morts Dock) at Sheerlegs Wharf fell on floating cotton waste which ignited the oil on the water. Thewharf and ship moored there sustained substantial fire damage. In an action by Morts Dock fordamages for negligence it was found as a fact that the defendants did not know and could notreasonably have been expected to know that the oil was capable of being set alight when spread onwater. The dock owners knew the oil was there, and continued to use welders.Judgment: Here the PC decided that the main link between damage and liability is foreseeability andthat it is not only that damage generally must be foreseeable but the type of damage as well.Here, the fire damage was not foreseeable and thus D was not liable. (Damage generally could beforeseen though. For example, environmental damage from the oil potentially leading to propertydamage. Under the only rule from Re Polemis, this would have sufficed.)It is sufficient to foresee the type of harm, not the magnitude (Essentially the ‘egg-shell’ skull rule)Smith v Leech Brain & Co [1962] 2 QB 405Facts: C was splashed by molten metal as a result of his employer’s negligence and suffered a burn to hislip. This burn triggered cancer, from which the claimant died. The claimant’s lip was pre-malignant atthe time of the incident.Judgment: There is no dispute as to liability for the initial injury. Further, the HL says that while thesubsequent cancer was not foreseeable, it is merely the extent of the injury and the remoteness rulesmerely require you to foresee the type of damage. (sometimes called the ‘eggshell skull rule’; per Lord
  • 34. Parker “If a man is negligently run over... it is no answer to the sufferer’s claim for damages that hewould have suffered less injury... if he had not had an unusually thin skull or an unusually weak heart”)It is sufficient that you foresee the type of harm may come about and not the exact method it comesabout(e.g. in wagon mound there’s a distinction between damage caused merely by oil and that by fire)Hughes v Lord Advocate [1963] AC 837Facts:On November 8, 1958 evening the appellant, an eight year old boy with his ten year old uncle waswalking down Russell Road, Edinburgh. Some Post Office employees were repairing cables under thestreet. They opened a manhole on the surface of the road, which was nine feet deep and put a weathertent on it. A ladder was put inside the manhole for access. The tent was again covered with a tarpaulinfor better protection, but the workmen left one of the corners a gap of two feet and six inch. They hadalso fixed four red paraffin lamps on the site to warn the traffic since 3.30pm. The workmen left the siteat about 5pm for a tea break to a nearby Post Office building. Before leaving, they took out the ladderand put it on the ground outside the tent.While the workmen were out, the plaintiff and his uncle arrived at the site and started meddling withthe equipment. They picked up one of the lamps and entered the tent. They took the ladder along withwhich was kept outside the site in order to explore the manhole. Thereafter, they took a piece of rope(which was not a part of the Post Office equipment) and tied it to the lamp and went inside themanhole. After exploring the manhole they succeeded to come out of the manhole safely. Somehow,the appellant tripped over the lamp, and it fell into the manhole. The lamp broke, the paraffin withinleaked, the paraffin vaporised which resulted to an explosion with flames reaching up to thirty feet. Dueto the impact of the blast, the appellant fell into the hole and suffered severe injuries from burns.Judgment: The HL held that knowledge of the source of danger would suffice. So while it may not beforeseeable that a small boy would come along to the manhole with the lamp, pick it up, go in, comeout, and then drop the lamp causing an explosion causing him to fall back in and get hurt, you couldprobably foresee that a child may come along and get hurt.So it is important to define the kinds of foreseeable damage by reference to the result and what mightbe termed ‘the basic method’ by which the result comes out. So in Hughes, the type of damage ispersonal injury by getting burnt and it doesn’t matter that the detailed way in which the harm cameabout was unforeseeable. So both the extent of the harm and the detailed method by which it cameabout needn’t be foreseeable as long as the type of harm is foreseeably and it that it was reasonablyforeseeable that the source of danger might cause that type of danger.What counts as a different type of harm, and what merely goes to the extent of the same type ofharm?(Courts seem to take a wide interpretation of the extent)(focus on Page v Smith and Corr v IBC which shed some light on this question)
  • 35. Corr v IBC [2008] UKHL 13Facts:As a result of D’s negligence C suffers a severe head injury at work. He receives surgery but beginsto suffer from PTSD and clinical depression as a result of the injury and a few years later, kills himself.Judgment:HL say the suicide is effectively a kind of symptom/a facet of the clinical depression. It’smerely the extent of the harm, not a different type of the harm. So it wasn’t necessary to foresee he’dcommit suicide as a result of getting this type of head injury. All it was necessary to foresee is that he’dsuffer depression and the suicide goes to the extent of that depressionNotes: If all that needs to be foreseen is that the harm may be suffered in a broad sense, that doesn’treally insist on a tight test. This is the reason courts have been focusing on this point.Page v Smith [1996] AC 155Facts:C involved in a minor car accident and was unjury but this caused a recurrence of his MEJudgment: In the case of direct victims, their Lordships said the following test should be applied: "Couldthe defendant reasonably foresee that his conduct would expose the plaintiff to the risk of personalinjury, psychological or physical?" If the answer was yes, it would be irrelevant that the extent of thedamage was unforeseeable because the plaintiff had special sensitivities. This is based on the eggshellskull rule, that is, one "takes the plaintiff as one finds him". Consequently, the defendant was foundliable for the nervous shock suffered by Mr Page.Summary - Loss of a chance is not sufficient to warrant an actionable claim (Hotson) - Confirmed in Gregg but with a particularly strong dissent this time. There are legitimate concerns against allowing it though o Might mean a push for all claims to be based on ‘proportionate liability’ o Floodgates o Statistics aren’t perfect but at least with BoP you have a greater chance of getting it rightSeminar 8: Defences to Negligence Claims(1) Voluntary assumption of risk (volenti non fit injuria = no wrong isdone to one who consents)NB this defence should not be confused with the argument that can be made in response to batteryclaims (discussed in seminar 12) that the claimant has consented to the defendant’s touching; here the
  • 36. point is that the defendant has voluntarily assumed the risk of harm, not that he has consented to theharm itself.The most common situation is where it can be concluded from the factual situation that C hasconsented to the riskWoodley v Metropolitan District Railway Co (1877) 2 Ex D 384The plaintiff, a workman in the employ of a contractor engaged by the defendants, had to work in a darktunnel rendered dangerous by the passing of trains. After he had been working a fortnight he wasinjured by a passing train. The jury found that the defendants in not adopting any precautions for theprotection of the plaintiff had been guilty of negligence. (CA reversed this but HL returned to the originalverdict)Essentially, one mustn’t confuse knowledge and consent of the risk. It is not enough that C knew thatthe risk was there: one must prove consent to that riskDann v Hamilton [1939] 1 KB 509Facts: On a motoring trip, participants go to various pubs on the way to London and back out. Thisaffects driver’s ability to drive. During the trip, some passengers become so alarmed by the way that thedriver is driving that they abandon the car. Car crashes, driver dies and C is badly injured.The defences claimed are both (1) Contributory negligence (put aside for now) and (2) volenti non fitinjuriaJudgment: The defence failed: Held that it only really applies in extreme cases. There would be 2situations in which the defence of volenti might be appropriate-1. Implied permission to be careless- C gave permission to D to act carelessly2. Deciding to enter an obviously dangerous situation- e.g. meddling with an unexploded bombNotes: Getting into a car with an obviously drunken driver does seem like deciding to enter into anobviously dangerous situation. The defence probably failed for historical reasons. This case was in 1939and drink driving was still very common and not really frowned upon. So it may well be that in itscontext, this case makes sense: because at the time the obviousness of the danger isn’t as glaring as itwould be to us todayA. IMPLIED PERMISSION TO BE CARELESS- C GAVE PERMISSION TO D TO ACT CARELESSLYICI Ltd v Shatwell [1965] AC 656Facts: C works in a quarry as a shot-firer. His job was to blast away rocks that were used for industrialpurposes. Before they carried out the blast, they were instructed to run a test in which everyone else
  • 37. had to be well away from the area in which the explosive was to go off: to carry this out, he had to uselong wires to operate the explosive from the shelter in which they were situated at.On the day of the test, they didn’t have the long wires. While one person went off to get the long wires,the other two decided to carry out the test with short wires. The bomb explodes and the C is injured. Heseeks to sue his employer for vicarious liability for the carelessness of his work colleagueJudgment: the defence is established. HL emphasises that all the instruction and training that had beengiven to the shot firers, and that previously one of the shot firers had been fired for not carrying out thetests. Given that factual background, the actions of the 2 shot firers in testing the circuit using the shortwire gave rise to an implied promise by the man who was injured not to sue the person who injuredhim.Notes: This almost seems to draw on contractual ideasB. DECIDING TO ENTER AN OBVIOUSLY DANGEROUS SITUATIONMorris v Murray [1991] 2 QB 6Facts: C and D are friends, and had been out drinking heavily. C drives them from the pub to the airport.At the airport, they take off the wrong way down the runway and fly off with the wind behind them(should have taken off into the wind). The plane crashes and the pilot dies, with C severely injured. Hasvolenti been established here? (following Dann v Hamilton, it seems that it shouldn’t be established)Judgement: The court applied a subjective test and held that the claimant was aware of the risk he wastaking and therefore consent was found (in contrast with Dan)Notes: Though they took a subjective approach, the CA was slightly troubled by the argument that if Cwas so drunk as to not appreciate the risk, consent wouldn’t be found. So in a sense, his legal problemwas that he was not drunk enough. If a more ‘contract like’ theory is taken, an objective approach wouldbe taken. Mitchell feels the subjective approach is appropriate here though.Woodridge v Sumner [1963] 2 QB 23: (About the photographer injured at a horse race)Notes: CA said that the volentidefence isn’t very useful in large group situations. They feel it is far betterto deal with these situations by adjusting the standard of care that was owed. Essentially, not that Cagreed to D being careless but that C wasn’t entitled to demand D reach the level of care that he wouldordinarily have to reach.So in these situations, they can be dealt with either by the volentidefence or by changing the standard orcare to reflect what we think C should be entitled to demand in the circumstancesCorr v IBC Vehicles Ltd [2008] AC 884(negligent injury leading to subsequent depression and suicide)Notes: Here it was argued that in deciding to jump off from a height, C entered into an obviouslydangerous situation. Nonetheless, the defence of volenti failed. Despite features that seem to make it a
  • 38. promising argument. It was held that the depression had so affected his mental processes that hecouldn’t evaluate the merits of not jumping off the car park. There was therefore no consent to a risk,because there was no true/ free consent. (Again, this highlights that the test is objective)(2) Contributory negligenceLaw Reform (Contributory Negligence) Act 1945, s 1(1): ‘Where any person suffers damage as the resultpartly of his own fault and partly of the fault of any other person or persons, a claim in respect of thatdamage shall not be defeated by reason of the fault of the person suffering the damage, but the damagerecoverable in respect thereof shall be reduced to such extent as the court thinks just and equitablehaving regard to the claimant’s share in the responsibility for the damage.’‘Fault’ is defined in s 4 to mean ‘negligence, breach of statutory duty or other act or omission whichgives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributorynegligence.’Note: The definition of fault in the act is important. Pre-1945, the defence was only applicable to certaintorts. Post-1945, courts can apply it to the extent it thinks it’s applicable. The Act only reforms the effectof contributory negligence though, it doesn’t reform when the defence is available nor does it expandthe categories.“WHERE ANY PERSON SUFFERS DAMAGE AS THE RESULT PARTLY OF HIS OWN FAULT AND PARTLY OF THE FAULT OFANY OTHER PERSON OR PERSONS” – SO BOTH PARTIES MUST HAVE BEEN AT FAULTGough v Thorne [1966] 1 WLR 1387Facts: 7 year old girl is crossing the road with her mum and a lorry stops to let them through. Once theypass the lorry, they get hit by a car that was trying to overtake the lorry. Had the little girl been negligentin crossing the road without checking and relying simply on the indication by the lorry driver and theelder sibling assisting her?Judgment: It was reasonable reliance- the test of fault does seem totake into account the same factorswe take into account in establishing that D were in breach of duty. Should there be a more complicatedsituation with more factors, we might look at how C weighed up these factors.Jones v Livox Quarries Ltd [1952] 2 QB 608Causation is somewhat important to contributory negligence. So C’s fault has to have caused some partof the damage.Facts: C was injured at work when two quarrying vehicles collided. The claimant was sat on the back ofone of the vehicles at the time of the collision, without the driver’s knowledge and in contravention ofthe explicit prohibition in doing so. Applying the last opportunity doctrine, one wouldn’t say that C’sfault caused his damage at all. Thus, CA had to consider if the doctrine still applied post-1945.
  • 39. Judgment: Given that contributory negligence post 1945 is no longer a complete defence, the doctrine,that was developed to deal with the harshness of the fact that it was a complete defence, doesn’t needto apply and C’s act was taken to be contributory negligence. (recall again that finding fault under theact is similar to finding a breach of duty. So assessed by reference to a reasonable person)Per Denning: “In order to illustrate this question of causation, I may say that if the plaintiff, whilst hewas riding on the towbar, had been hit in the eye by a shot from a negligent sportsman, I should havethought that the plaintiffs negligence would in no way be a cause of his injury. It would only be thecircumstance in which the cause operated. It would only be part of the history. But I cannot say that inthe present case. The mans negligence here was so much mixed up with his injury that it cannot bedismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage”Thus the approach towards causation here has become broader/more inclusive. Courts focus onwhether C’s fault is merely part of the history/background. If it is, it won’t regard the fault as havingcaused the loss because there won’t be a sufficient connection in time, place and circumstancesbetween C’s fault and the damage that he suffers. (because above, C’s negligence in riding atop theexcavator, even if shot, would clearly satisfy ‘but for’ causation)BUT THE DAMAGE RECOVERABLE IN RESPECT THEREOF SHALL BE REDUCED TO SUCH EXTENT AS THE COURT THINKSJUST AND EQUITABLEThe extent to which C owed actions that could have prevented the harms or reduced the severity:Froom v Butcher [1976] QB 286: carelessly not wearing a seatbelt affects the severity of the injury thatis suffered.Carelessness Rule: If both have contributed equally but one has been more careless, then the morecareless one should pay a bit more. There is a problem of working out how much of a reduction to makefor the ‘less careless party’ though.Denning in Froom: Introduces guidelines for what the figure should be- but these guidelines haven’treally been followed(3) Illegality (ex turpi causa non oritur actio = no action arises from a disgraceful cause)(3) ILLEGALITY (EX TURPI CAUSA NON ORITUR ACTIO = NO ACTION ARISES FROM A DISGRACEFUL CAUSE)C could lose claim for damage in negligence because C was involved in an illegal activity at the time.There must be a close connection between the injury sustained by C and the illegal activity for thedefence to work.4 different approaches as to how the defence should work:(1) The fact that C was doing a criminal offense should have no impact on the liability of D:Revill vNewberry [1996] QB 567
  • 40. Facts: C went to steal property from a shed but the owner was ready waiting with a shotgun. The ownerfired the gun in panic when C started to enter the shed causing serious injuries.Judgment: CA held that the claimant should not be deprived of a claim on the basis of illegality, sayingthat it was too ‘far-reaching to deprive [the claimant] even of compensation for injury which he suffersand which otherwise he is entitled to recover at law’(2) C’s illegality simply one factor that must be considered in the Caparo test under the heading of fair,just and reasonable: Vellino v Chief Constable of Greater Manchester [2002] 1 WLR 218This approach matters because if illegality is a defence in itself, the fact that C was involved in the illegalconduct bars the claim- but if it’s just one factor in Caparo, it might be outweighed in regard to otherfactors in determining if it’s FJR to impose a DOCFacts: C a criminal, having a party in his flat when police arrest him. Tries to avoid arrest by jumping outof his flat, gets injured in landing on the pavements. It was found that police didn’t stop him fromjumping and stood to one side while he tried to jump. In seeking to escape from police custody, C wascommitting a criminal offense. Thus police argued that no DoC owed because of this criminal actHeld: that no duty was indeed owed- but Sedley LJ dissented. He felt that C’s illegality was outweighedby police failing to perform their duty to stop him jumping. Applying the Caparo test, the fact of C’sillegality shouldn’t be determinative because D had also committed a breach of duty.(3) Illegality alters the standard of care that C is entitled to expect- it makes it impossible to ascertainwhat that standard of care should be:Pitts v Hunt [1991] 1 QB 24Facts: claim by a passenger on a motorcycle brought against the motorcycle driver. The driver had beendriving very recklessly with the encouragement of the passengerHeld: that in these circumstances, very hard to fix what the standard of care should be and whatreasonable care requires under those circumstances(4) Claim should be barred where is one is relying on one’s own criminal conduct: one shouldn’t beentitled to claim if one’s negligence damages require one to assert that one had committed criminal acts:Gray v Thames Trains Ltd [2009] 1 AC 1339Facts:Claim from a victim of the Ladbroke Grove rail crash. D’s negligence caused him to suffer PTSD-while suffering from PTSD he had stabbed and killed someone who had annoyed him. Thus at the timeof the trial, he was in a secure mental hospital. Claimed in respect of the PTSD suffered (D admittedliability) and further claimed (Claims 1 and 2) for earnings that he had lost as a consequence of the PTSDClaim 1: While in the mental hospital cannot earn any money at all (Complete loss of earnings)Claim 2: As it is, his earning capacity with PTSD is lower than it would have been had been not injured(Loss of earnings continuing into the future)
  • 41. Makes no reference to the fact that he is now in a mental hospitalHeld:WRT Claim 1: Failed, because one cannot claim for lost earnings while in custody- one cannot claim forthe consequences of a criminal penalty that was imposed by court. It wouldn’t be reflective of aconsistent legal system if the criminal system said that one had to go to a mental hospital, and anothersaid that you could get compensation for the penal sanctionWRT Claim 2: One cannot disregard the fact that he is now in mental hospital in a decision that hecannot earn money. Failed again because court held that they couldn’t ignore what the criminal courthad done- wouldn’t assess damages pretending that C was still at liberty and all that was the issue was areduction in earning power. Effectively, would take into account the imposition of a criminal sentencebecause it did cut off the D’s liability.The vicissitudes of life can have the potential to affect life- at this point, D’s liability should be stoppedThis doesn’t mean that criminal sentences always stop tort rights – rather, on the facts of this case, hecannot get compensationImpact of remoteness: Loss of earnings is classically foreseeable, and it doesn’t matter that it cameabout in a slightly strange way (via PTSD)Check the HL arguments against claim 2- they seem quite sillySummary - 3 main defences o Consent (Volenti) o Contributory negligence o Illegality (some dispute as to whether it’s a defence) - Consent o Easiest way is to see if there’s some express consent. Consent to the risk is not the same as knowledge of the risk (Woodley v metropolitan district railway) o Where the consent is not express, courts have indicated there are 2 main situations in which it can be inferred (Dann)  Implied consent to the risk; (more) objective standard (Shatwell)  Deciding to enter an obviously dangerous situation (Morris) Subjective test (Morris and Corr) Also in situations witch large groups, particularly sporting events, it might make more sense to lower the standard of care rather than enquiring into the individual’s state of mind (Wooldridge) - Contributory negligence o Covered by the Law Reform (Contributory Negligence) Act 1945  S1 – explains the workings
  • 42.  S4 – defines fault (essentially uses breach of duty analysis) o Pre-1945, contributory negligence was a complete defence. This was somewhat mitigated by the ‘last opportunity’ doctrine. o So first to work, both parties actually have to have contributed.  Fault essentially uses a breach of duty analysis (E.g. in Gough, it was reasonable for the girl to rely on the directions of the lorry driver and thus, she didn’t contribute)  Also, with regards to ‘contributed’, there is a different concept of causation. You look at whether C’s act has been relegated to history and if so, there’s no causation (Jones) o And the court then makes an award that is ‘fair and just’  E.g. if one part is ‘more careless’ than the other, the award is adjusted to reflect that (Froom v Butcher) o The problem with contributory negligence is deciding how responsible each party is. Denning suggests some guidelines in Froom but they aren’t really followed so really it’s up to the judge. - Illegality (4 theories on it) o It is unfair to allow an illegality defence where C would otherwise be entitled to compensation at law (Revill) o Illegality comes in at the stage of deciding whether a DoC exists as something to be considered under stage 3 of the Caparo test o There is an illegality defence (Gray v Thames Trains) o Illegality alters the standard of care C is entitled to expectSeminar 9: Occupier’s Liability(1) The common lawStandard of care varies with status of entrantContractor – Invitee – Licensee – Trespasser(2) Occupier’s Liability Act 1957(A) WHO IS AN OCCUPIER ?Wheat v Lacon and Co Ltd [1966] AC 552Facts: The case concerned a brewery which occupied the bottom floor of a pub. The manager and hiswife have the top floor of it where they allow guests to stay. A fatal accident occurs on the stairs. It wasclaimed there wasn’t a light and the bannister was too short
  • 43. Judgment: Lord Denning defined occupier as a person who has sufficient control over the premises tothe extent that he ought to foresee that lack of care on his part can cause damage to his lawful visitors.(B) WHO IS A VISITOR ?Section 1(2) preserves common law position:“…for the purpose of the rules so enacted the persons who are to be treated as an occupier and as hisvisitors are the same (subject to subsection (4) of this section) as the persons who would at common lawbe treated as an occupier and as his invitees or licensees.”(Essentially, invitees and licensees; contractors are included. Importantly, the CL has developed rulesregarding implied licenses – e.g. Glasgow corp v Taylor)(C) COMMON DUTY OF CARESection 2(1): ‘An occupier of premises owes the same duty, the “common duty of care”, to all hisvisitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to anyvisitor or visitors by agreement or otherwise.’Section 2(2): ‘The common duty of care is to take such care as in all the circumstances of the case isreasonable to see that the visitor will be reasonably safe in using the premises for the purposes forwhich he is invited or permitted by the occupier to be there’(D) WHAT THE ACT COVERSSection 1(1):The rules enacted by the two next following sections shall have effect, in place of the rulesof the common law, to regulate the duty which an occupier of premises owes to his visitors in respect ofdangers due to the state of the premises or to things done or omitted to be done on them.Dangers due to the state of the premisesFairly self-explanatory (e.g. Wheat v Lacon)Things done or omitted to be done on the premises?Fairchild v Glenhaven Funeral Services [2002] 1 WLR 1052 (in the CA): ‘occupancy’ duty - not a dutyarising from activities being carried out on landNotes: CA draws a distinction between duties arising from occupancy and duties arising from theactivities that have been carried out. It does it again by looking back at the CL which was developed pre-1957 and says that occupier’s liability is due to dangers based on the static state of the premises,whereas activity duties are based on things that have been done on that premises.With regards to the ‘things done or omitted to be done on them bit’, they give the following example: ifsomebody has carelessly carried out some repair work on a building and part of the building falls down,they say that that then would come within the second part of s1(1).
  • 44. Again Mitchell isn’t sure about it because the language of 1(1) seems broader. But the compellingreason to interpret it narrowly is because if we interpret it broadly, even situations where for instancean invitee is attacked by the dog of the owner may be covered by the act. This could make occupier’sliability have the potential of being a huge exception to the general principle of a lack of liability againstTP’s.Tomlinson v Congleton BC [2004] 1 AC 46Facts: In May 1995: C dived into the water of an artificial lake at a county park and hit his head on thesandy bottom, leaving him tetraplegic. He subsequently brought proceedings against Congleton BoroughCouncil under the Occupiers Liability Act 1984 (as a trespasser),Judgment: Lord Hoffman draws a distinction between a risk that arises out of the state of the premisesand a risk arising out of the act of the claimant. Only the former will have liability under the act.(E) SPECIAL ISSUESSection 2(3): The circumstances relevant for the present purpose include the degree of care, and ofwant of care, which would ordinarily be looked for in such a visitor, so that (for example) in propercases— (a) an occupier must be prepared for children to be less careful than adults; and (b) 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.Section 2(4):In determining whether the occupier of premises has discharged the common duty of careto a visitor, regard is to be had to all the circumstances, so that (for example)— (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and (b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.(i) Children – s 2(3)(a)Phipps v Rochester Corp [1955] 1 QB 450Facts: Some children were out on their own playing in a grass field which was part of D’s building site.There was a ditch which had been dug into which C fell. There were no warnings regarding the potentialdanger. Though it was an obvious danger for an older child or an adult, this was not the case for C. Also,it was reasonable for children to be playing in that open space.
  • 45. Judgment: The judge held that the occupier was entitled to assume that either the parents wouldn’t letthe children onto the premises at all or that the parents will be there to look after them. So it may bethat an occupier might be able to say that reasonable care of the visitors safety did not require him totake extra care for kids as he had anticipated/expected/insisted even that the parent should accompanythe child onto the premises.Notes: Importantly, Devlin J doesn’t suggest this will always work. If the occupier is or ought to be awarethat children often play unsupervised in the area, then he does have to take precautions sufficient toallow the unsupervised child to be safe.What for instance will that mean about warnings? Little children might not be able to read orunderstand the significance of the warnings. This means then that the duties you would owe aredifferent depending on what you know about the neighbourhood. (E.g. a well-known child truancyneighbourhood with kids always running about vs one where the kids are always supervised. Does thismean occupier’s liability is altered by the prosperity/social conditions of the area in which the propertyis located?)Jolley v Sutton LBC [2000] 1 WLR 1082 (Also important for remoteness of damage)Facts: Here, the authority is the occupier of a council estate on which there is an old wooden boat whichwas in a bad condition that had been abandoned. The Claimants were children who liked the boat andhad a dream they were going to mend the boat and take it to the seaside and sail it. They start to try anddo work to mend the boat. Unfortunately, while doing this work, the boat which is rotten, collapsesonto one of them badly injuring him.Judgment: Since the council had conceded that it should have removed the boat because of the risk thatchildren might suffer minor injuries if the rotten planking gave way beneath them, the wider risk ofmore serious injury being caused by the condition of the boat, which could have been eliminatedwithout the council incurring additional expense, also fell within the scope of the councils duty of care.(Highlights that for remoteness, it doesn’t matter if you don’t foresee the exact way the damage comesabout or the magnitude. Merely foreseeing the type of damage is enough)(ii) People there ‘in the exercise of their calling’ – s 2(3)(b)Essentially refers to people there for a specific purpose. E.g. you’d expect an electrician to take care notto suffer shocks. There are limitations. E.g. if an ambulance man trips over a hold to the floor, is it a riskincidental to his calling? The courts haven’t taken a consistent approach. Note that most cases in thearea concern delivery men and ambulance men.(ii) Warnings - s 2(4)(a): ‘enough to enable the visitor to be reasonably safe’Darby v National Trust [2001] PIQR 372Facts: C dives into a pond and drowns. He was a competent swimming but the pond was murky, and asmuch as 10 feet deep in places. People frequently swam in it but little was done to discourage this –only an inconspicuous sign by the car park. It is suggested that there should be a sign saying that if youdive into the cold water you might get hypothermia and drown. The question for the court is whetherthat’s an obvious risk. It’s not as trivial as a general sign saying you might drown in water or a sign saying
  • 46. you may fall off the edge of a cliff for instance. The issue was about the extra risk the cold water carries.(There is also a further question about a sign warning of the risk of Weil’s disease)Judgment: the risks to competent swimmers of bathing in the pond were obvious, and that there wastherefore no duty to warn against swimming. The additional submission by the claimant that the risk ofWeils disease required warning notices, and that had they been present they would have prevented theclaimants husband from swimming, could not support a claim for damages resulting from a quitedifferent cause.(iv) Independent contractors - s 2(4)(b): discharges common duty of care if reasonable to employcontractor, plus reasonable steps taken to ensure contractor is competent and insured against third-party liabilityHaseldine v Dawe [1941] 2 KB 343Facts: Work being done is work to a lift and the independent contractors engaged tell the occupier thatthe lift is safe to use even though some parts of it may need replacing. As it is war time, the contractorsays you’re unlikely to be able to get these parts anyway so we suggest merely re-greasing these parts.Cis injured when using the lift, the mechanism breaks and the lift plunges to the bottom of the shaft.Judgment: It is held that D is not liable and the court emphasises that the occupier had done all that wasreasonable. Realise that in most circumstances where s2(4)(b) might apply, occupiers’ are likely to be inno position to evaluate whether it’s been done safely or properly.An issue that has come up more recently are what steps the occupier has to take to show that it wasreasonable to entrust the work to a particular independent contractor.Gwilliam v West Herts Hospital NHS Trust [2003] QB 443Facts: Here, an independent contractor is putting up a ‘splat wall’ for a charity fair. C is injured when thesplat wall collapses in this fair. She alleges that D should be liable as they did not provide a safeenvironment for her as a visitor, and that they failed properly to enquire into the contractors insurancestatus(which had expired just a few days before the event and meant they were not in a position to payout the full amount of damages)Judgment: CA controversially said occupier should take the step of asking the contractor whether theyhad insurance.Notes: Sedley LJ who dissented thought this wasn’t enough. He felt that the occupier ought to establishthat the insurance would still be in force at the time any damage might occur.Payling v Naylor [2004] EWCA Civ 1325 – Gwilliam approach to insurance is unusualSummary: The independent contractor here provided nightclub security on an on-going basis for thedefendant occupier. The general approach to insurance taken here is that here is no requirement tocheck on the insurance status at all. We’re told that when faced with a one-off transaction, there’s agreater onus to enquire as to the insurance position of the independent contractor but that is reducedwhen there’s an on-going series of transactions. This does not seem to be a convincing reason todistinguish the cases.
  • 47. There’s another factor however. Here, the occupier had a good reason to think it was reasonable toentrust this work to the security firm; contractor was accredited under some sort of police scheme asbeinga good contractor.Notes: After the 2 cases, as a matter of law, you don’t always have an obligation to enquire aboutinsurance position. And even when you do, detailed investigation isn’t required; you just need to askwhether they have insurance.(F) THE COMMON LAW AND TRESPASSERSCL position applied to those not covered by the 1957 Act. (i.e. no duty owed)Addie v Dunbreck [1929] AC1054: comes on property at own risk. This was qualified in 2 ways though.Doctrine of AllurementGlasgow Corp v Taylor [1922] 1 AC 44– allurementThe case concerns a bush with berries on it in the botanical gardens. Kids were welcome to go to thegardens but weren’t welcome to eat the exhibit. As soon as they did, they become a trespasser for thosepurposes. Tragically, the berries were poisonous when consumed. It’s said by having this bush with shinyberries on it, the council was to be liable to him as a visitor even though he was doing something hewasn’t allowed to do. (So the children became implied licensees)Duty of common humanityBritish Railways Board v Herrington [1972] AC 877: duty of common humanityThe HL in Herrington thought that the general rule of no liability for trespassers was too harsh and thatone ought to owe them a lesser duty to visitors. One ought to owe them a duty of ‘common humanity’in relation to obvious high risk dangers. Particularly serious dangers.Unfortunately in Herrington, 5 speeches are delivered and they take various lines on what this dutyshould be. So they didn’t succeed in any clear sense of saying what the law was.This caused the LC toenquire and eventually you get the 1984 Act.(3) Occupiers’ Liability Act 1984(A) THE STATUTORY SCHEMESection 1(3): ‘An occupier of premises owes a duty to another (not being his visitor) in respect of anysuch risk as is referred to in subsection (1) above if: (a) he is aware of the danger or has reasonable grounds to believe that it exists; (b) he knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and
  • 48. (c) the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.’Section 1(4): ‘Where, by virtue of this section, an occupier of premises owes a duty to another in respectof such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to seethat he does not suffer injury on the premises by reason of the danger concerned.’(B) APPLICATION OF THE SCHEMEDonoghue v Folkestone Properties Ltd [2003] QB 1008Facts: C dived into a harbour in winter and broke his neck. Awarded damages (less 75% for contributorynegligence) at first instancesJudgment: While it was clear that D knew that people dived in the harbour and thus should have donemore, CA held that the phrase ‘the other’ in s1(3) and ‘another’ in s1(4) referred to the individualclaimant who suffered injury. Thus, it did not follow that, because the defendant owed a duty totrespassers swimming in the harbour during the summer of whose presence it was aware, a similar dutywas owed to such trespassers in the winter; that, since on the judges findings the defendant had had noreason to believe that the claimant or anyone else would be swimming in the harbour in mid-winter inthe middle of the night, the defendant had owed no duty to the claimant under section 1(3); and that,accordingly, liability was not establishedTomlinson v Congleton BC [2004] 1 AC 46Notes: In the case, Lord Hoffman tells us that the circumstances to take into account under s1(3)(C) areall the factors which you take into account for breach of duty. Namely things like the gravity of the harmand cost of precaution for instance.But he also says there are broader issues to take into acct particularly in a case like Tomlinson itself. Hesuggests that context influences our sense of whether protection should be offered against the risk.Hoffman talks about it being an issue of freedom, In Tomlinson itself, the council had already being toremove the attractive features of the lake to stop people going near it (ploughing up the beach replace itwith rushes etc.)In a sense, protection here interferes with freedom of the general population (to enjoythe countryside)There’s another kind of freedom though that Hoffman also talks about namely, the freedom of theindividual to undertake dangerous activities such as diving into a lake or mountaineering. They aredangerous but we wouldn’t think protection should be offered against a risk.Tomlinson is a landmark case as the judges seem to be fighting against a ‘compensation culture’.SUMMARY - Pre 1957, the law on OL was a mess. 4 different categories and the lines were getting blurred etc. No duty owed to trespassers and different duties for the rest - OL Act 1957 to attempt to codify and harmonise
  • 49. o Occupier – someone who exerts a reasonable degree of control over the premises (wheat v lacon) o Visitor – s1(2); invitees, licensees, contractors (licenses can be implied – Glasgow corp) o Duty owed? A common duty to take care to ensure reasonable safety. (s2(1), (2) to all visitors, which can be modified by agreement and to the extent they are allowed in the premises) in respect of dangers arising from the premises and things done or not done(s1(1))  Fairchild – seems to draw a distinction between activities done on the premises and the sort of static state of the premises saying only the latter is covered  Tomlinson – distinction drawn between risks due to the (static) state of the premises and risks due to the acts of the claimant o Exceptions to the common duty  Children (s2(3)(a)) – suggests a higher standard might be owed Phipps – if the kids are/ought to be supervised, that is enough to require only the standard duty (won’t always apply and means the duty may vary by area) Jolley – example of a higher standard being owed. Also useful for RoD.  People exercising their calling (s2(3)(b)). Note the lingering question of the scope of ‘their calling’  Warning signs (s2(4)(a)) – enough to make the premises ‘reasonably safe’ Darby – the area was reasonably safe and though there was an extra risk of disease which was not adequately warned off, it was not relevant to the death of the claimant and thus not explored  Independent contractors Haseldine; reasonable reliance Gwilliam; reasonable reliance can extend to checking insurance Payling; seems gwilliam is rare. Requirement may exist with regards to one-off contracts as opposed to recurring ones but even if it does, it is only as to enquire whether the contractor has insurance not to take further steps - Old CL positions remained for trespassers. 2 qualifications though o Doctrine of allurement (Glasgow corp) o Duty of common humanity (british railways board) - Law with regards to trespassers changed by the Occupier’s liability act 1984 o If D is aware of the danger, knows or has reason to believe C will encounter the danger, and the danger is one which he might be expected to protect against… Then, he has a duty to take reasonable care to ensure C doesn’t suffer the risk o Donoghue v Folkstone–The act is limited to the particular claimant and the particular circumstances o Tomlinson – all the circumstances to be taken into account including freedom of the individual to do something dangerous and freedom to factor in other factors in deciding not to put up signs or damage a potentially beautiful place (fight back against a compensation culture)Seminar 10: Product Liability
  • 50. Donoghue v Stevenson establishes that a producer can be liable to the end user. However, it seems to befelt that negligence liability wasn’t enough for product liability. There are some arguments for strictliability: - Manufacturer better placed to bear the risk - Moral enterprise theoryNonetheless, it seems those reasons didn’t convince parliament. The Act comes from the Europeandirective and their main reasoning was for free movement of goods.(1) Cause of ActionFor liability under the 1987 Act, you need to have: A Product which is defective and it has got to causedamage.(A) ‘PRODUCER’ AND ‘PRODUCT’Consumer Protection Act 1987 s1(2)“Producer”, in relation to a product, means— (a) The person who manufactured it;. (b) In the case of a substance which has not been manufactured but has been won or abstracted, the person who won or abstracted it;. (c) In the case of a product which has not been manufactured, won or abstracted but essential characteristics of which are attributable to an industrial or other process having been carried out (for example, in relation to agricultural produce), the person who carried out that process;. “product” means any goods or electricity and (subject to subsection (3) below) includes a product which is comprised in another product, whether by virtue of being a component part or raw material or otherwise; and(B) DEFECTConsumer Protection Act 1987 s3Section 3 – meaning of ‘defect’ (1) … there is a defect in a product … if the safety of the product is not such as persons generally are entitled to expect; and for those purposes “safety”, in relation to a product, shall include safety with respect to products comprised in that product and safety in the context of risks of damage to property, as well as in the context of risks of death or personal injury. (2) In determining for the purposes of subsection (1) above what persons generally are entitled to expect in relation to a product all the circumstances shall be taken into account, including- (a) the manner in which, and purposes for which, the product has been marketed, its get- up, the use of any mark in relation to the product and any instructions for, or warnings
  • 51. with respect to, doing or refraining from doing anything with or in relation to the product; (b) what might reasonably be expected to be done with or in relation to the product; and (c) the time when the product was supplied by its producer to another; and nothing in the section shall require a defect to be inferred from the fact alone that the safety of a product which is supplied after that time is greater than the safety of the product in question.(C) LIABILITY FOR DEFECTIVE PRODUCTSSection 2(2): This subsection applies to – (a) the producer of the product; (b) any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product; [e.g. supermarket brands] (c) any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another.Section 2(3): Suppliers who are unable to meet the victim’s request to identify any other identities inthe supply chain (e.g. wholesalers or manufacturers)(D) APPLICATION OF THE ACTA v National Blood Authority [2001] 3 All ER 289Facts: The claimants contracted hepatitis from blood suffered from the defendants and brought a claimunder the Consumer Protection Act 1987.Judgment: Held that as the blood was produced and sold (need not be for profit), it is a product. The Actis not limited to ‘traditional’ good.Burton J says that in identifying whether there’s a defect, you first identify the harm and then look atwhether the product is a standard or non-standard product.Also, while he reaffirms that the general idea with the directives were to impose strict liability, he seemsto read down the act. He introduces the idea of ‘relevant circumstances’ and says that certain factors(e.g. such as avoidability and social benefit here) are not to be considered as this would cause the test toslip into one for negligence.Notes: Despite Burton J’s assertion that certain factors were to be disregarded, it seems that these arefactors the courts have taken into account in other cases.Abouzaid v Mothercare, CA, 20 February 2001 – Where C is hit in the eye by the elastic strap. Onefactor that influenced the court was that the producer could have done more to prevent the accident. Inother words avoidability.
  • 52. Bogle v McDonalds [2002] EWHC 490 – where C is burnt by hot coffee. One factor against liability is thatit is in the social interest to have coffee served hot.Non-standard ProductA product which doesn’t conform to the manufacturers own standard. There’s almost always going tobe liability unless there’s generally something in the expectation of the public that will prevent liabilityfrom arising.Richardson v LRC Products (2000) 59 BMLR 185 – A defective condom leads to an unwanted pregnancynonetheless, D is not liable under the CPA.Standard productThe main problem here is with finding a comparatorGeneral Standards (what people would expect) ?Palmer v Palmer [2006] EWHC 1284 (QB) at [44]-[54] – inadequate instructions render seat-belt devicedefective by failing to warn against perils of creating slack in beltIndustry Standards ?Pollard v Tesco Stores Ltd [2006] EWCA Civ 393 – Child resistant cap opened in less than 2 minutes byan unsupervised toddler. Per LJ Laws ‘. ‘The test as to whether a product had a defect under the 1987Act was what persons generally were entitled to expect. Persons were generally entitled to expect thatthe bottle in the instant case would be more difficult to open than if it had an ordinary screwtop.Anything more specific, as a test of public expectation, ran into difficulties. The bottle was more difficultto open than an ordinary screwtop, though not as difficult as it would have been if the British Standardtorque measure had been complied with. Thus, there was no breach of the 1987 Act’So it seems the obvious comparator would be the same or similar product by a different manufacturer.This in itself is ridiculed with difficulties. It does seem that you would have to attack the whole designprocess. Many factors are considered at this stage with regards to both price and form. So you wouldhave to consider many aspects such as the look, purpose, and function of the product amongst others.This is one of the reasons why proving defectiveness of standard products is going to be so difficult.Products that provide informationNo conclusive ruling(2) Available DefencesSection 4 – defences (1) …
  • 53. (a) that the defect is attributable to compliance with any requirement imposed by or under any enactment or with any Community obligation; or (b) that the person proceeded against did not at any time supply the product to another; or (c) that the following conditions are satisfied, that is to say – (i) that the only supply of the product to another by the person proceeded against was otherwise than in the course of a business of that person’s; (ii) … or (d) that the defect did not exist in the product at the relevant time; or (e) that the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control; or (f) that the defect— (i) constituted a defect in a product ("the subsequent product") in which the product in question had been comprised; and (ii) was wholly attributable to the design of the subsequent product or to compliance by the producer of the product in question with instructions given by the producer of the subsequent product. (2) In this section, “the relevant time” … means – (a) … the time when he supplied the product to another;Section 6(4):Where any damage is caused partly by a defect in a product and partly by the fault of theperson suffering the damage, the Law Reform (Contributory Negligence) Act 1945 and section 5 of theFatal Accidents Act 1976 (contributory negligence) shall have effect as if the defect were the fault ofevery person liable by virtue of this Part for the damage caused by the defect.S(4)(1)(e)This was tried in A v National Blood (Art 7(e) was tried rather. Check) - It failed because they did know that hepatitis existed in some batches. - What they couldn’t do was eliminate it from all as they didn’t really have a way to determine which batches had hepatitis without screening all the blood which was expensive and time- consuming.It was tried in Mothercare as well - It was accepted that the risk was not heard of not easily foreseeably however any limitations were not due to the state of ‘scientific and technical knowledge’; it was held that accident reports did not constitute technical knowledge and D could have discovered the defect through practical testing.European Commission v United Kingdom [1997] 3 CMLR 932 - state of the art defenceNOT a question of what is commonly done re safety in industry (or eg practicability of safety)
  • 54. knowledge of expert in the sectorscientific knowledge is not linear – most ‘advanced’ knowledge.accessibility–example of information published only in Manchuria in ChineseSeminar 11: Private Nuisance(1) Statutory nuisance (L&O 681 but we will lecture you on this)Environmental Protection Act 1990, part III(2) Public nuisanceA-G v PYA Quarries Ltd [1957] 2 QB 169Tate & Lyle Industries Ltd v GLC [1983] 2 AC 509Corby Group Litigation Claimants v Corby BC [2009] QB 335(3) Private nuisancePrivate nuisance is the unreasonable interference with the claimant’s enjoyment of his or her land.(A) A TORT AGAINST LANDAs is clear from the definition of nuisance, it is a tort against land.St Helen’s Smelting Co v Tipping (1865) 11 HLC 642Hunter v Canary Wharf Ltd [1997] AC 655 • Dust generated in the construction of the Canary Wharf tower has caused in the inhabitants to develop respiratory problems, promoted asthma in children living in the area • Claims brought against construction of Canary Wharf tower by landowners and their spouses and children, people who have been lodgers in the places affected by the dustWhy can’t they sue? • Actions in private nuisance are usually concerned with interference with the enjoyment of land. • If we allow people who do not have an interest in land to claim, it turns into a personal tort • Court tries to keep it distinct from the tort of negligence
  • 55. • Relies on an article by Newark who traces the history of tort of nuisance (Assize of Nuisance). He concludes that nuisance should be confined to interference with enjoyment of land • Court adopts this traditional approachLord Cooke’s dissent • Lord Cooke took the approach that people who lived on land, especially as a home, people should be entitled to sue, particularly children • Under the UN Treaty on Children, children were entitled to a safe environment to grow up • Highlights that the HL in the majority was taking a very traditional kind of approachThe fact that liability for nuisance is confined to people who have the right to exclusive possessionmeans that we also have to think a little carefully about the damage that you can sue for. What kinds ofdamage is this owner or tenant entitled to sue for? E.g. let say one of the owner of tenants suffered asthma from exposure to the dust, what would their claim have formed under the tort of private nuisance? • The claim is for the damage to the value of the land, people are less inclined to buy the land or lease it because of the dust in the air • Loss in amenity value of the land – cannot use the land in a manner that you expect to deal with it • Claim is not for the personal injury suffered – the claim for personal injury is in negligence (Lord Hoffmann)Notes: In Hunter, it was affirmed that both material and physical damage and loss of amenity amount tointerference with property interests.Only people with proprietary interest in land entitled to sue for private nuisance and only for interestsrelating to land – property damage or loss in amenity value, not personal injury (Hunter v CanaryWharf).How did the HL define the class of proprietary interest in land? • Those who are entitled to exclusive possession of land • Typically, the owner and the occupier as tenant • But not the licensee, who has permission to be on the land but has no legal interest in land does not have standing to sue (cf Khorasandjian v Bush – licensee granted standing)BUT NOTEIt is possible that with the implementation of the Human Rights Act 1998 and article 8 of the ECHR,individuals without a proprietary interest in their home could bring a claim in nuisance. This is hinted inMcKenna v British Aluminium Limited [2002] (note that it was merely a striking out application).
  • 56. Also, note definition ‘home’ for the purposes of article 8 in Khatun v United Kingdom [1998] is relativelywide. (includes for example children, tenants)(B) REASONABLE USERIt is clear we are concerned with an unreasonable interference. There are certain ‘common sense’factors we consider: - Extent of the interference - Duration of the interference - The timing, particularly with regards to noiseBeyond that, there are certain specific categories we need to think about(i) Locality/coming to the nuisance - Locality is only relevant in the case of amenity damage (St Helen’s Smelting Co) - Also, what might be a nuisance in one locality might not be so in the other (Sturges) - Note that the nature of a locality may change with planning permissions. (Watson v Croft-Promo Sport Ltd) - It is no defence to say that something was always done (Miller, Sturges) However, the fact that the claimant ‘came to the nuisance’ may be considered, particularly at the remedy stage.St Helen’s Smelting Co v Tipping (1865) 11 HLC 642Facts: D began extensive smelting works on its property which was situated within a mile and of C and Calleged that the fumes from the work had caused damage to trees and shrubs on C’s land.Judgment: Jury found for C. Upheld on appeal to HL.Notes: This case sets out an important distinction between activities which cause ‘material injury toproperty’, in which case locality is irrelevant, and those which case ‘sensible and personal discomfort’, inwhich case locality is relevant.Sturges v Bridgman (1879) 11 Ch D 852Facts: A confectioner had for more than twenty years used a pestle and mortar in his back premises,which abutted on the garden of a physician, and the noise and vibration were not felt as a nuisance andwere not complained of. But in 1873 the physician erected a consulting-room at the end of his garden,and then the noise and vibration became a nuisance to him.Judgment: It was held to be a nuisance and it was no defence to say that ‘he had always done it’.Notes: Importantly, here Thesiger LJ says ‘what would be a nuisance in Belgrave Square would notnecessarily be so on Bermondsey’ i.e. residential area vs industrial area. (For a good modern examplesee Baxter v Camden LBC (p648)).
  • 57. Miller v Jackson [1977] QB 966Facts: Developers build houses very close to the boundary of a cricket ground and as a result, ballsoccasionally fly into C’s garden.Judgment: There is liability in nuisance however, C only gets damages, not an injunction.(ii) Sensitive claimants - The classic thinking was that the claimant’s sensitivity isn’t something that can increase the liability of D (Robinson) - More recently, it has been suggested that liability should since on whether the interference was reasonably foreseeably (Network Rail Infrastructure v Morris)Robinson v Kilvert (1889) 41 Ch D 88Facts: C stored brown paper which is particularly sensitive to heat. Heat rises from D’s premisesunderneath.Judgment: CA said there’s no liability because the fact that C’s property was a bit warm wouldntnormally be an interference, and it certainly wouldnt be an unreasonable one.Network Rail Infrastructure Ltd v Morris [2004] Env LR 41Facts: C owns a studio close to the track and has some music recording devices. The recording process isinterfered with by some trackside electronic equipment owned by D. So it does seem like C is a sensitiveclaimant.Judgment: CA decides to take a different approach. They say you look instead at whether theinterference was reasonably foreseeable and here it wasn’t.Notes: Some commentators have criticised this test as it would mean that so long as a sensitive claimanttells D about the interference, there’ll be liability in nuisance. It seems unlikely that the CA would haveintended this.(iii) Malice - If a defendant acts with malice, that might turn an otherwise reasonable act into a nuisance (Christie v Davey)Christie v Davey [1893] 1 Ch 316Facts: Concerns neighbours. C is a music teacher. D sends a letter complaining about the music but noaction was taken. D then bangs on the wall and makes mocking noises whenever the music occurs so Cbrings a claim in nuisance.
  • 58. Judgment: The motive for which the interference was taking place was made relevant to the question ofwhether the interference was reasonable or not.Hollywood Silver Fox Farm Ltd v Emmett [1936] 2 KB 468Facts: Rifle shots are fired as close to the fox pens as possible with the aim being to cause the foxes togive birth to a stillborn baby or to eat their own young.Judgment: While firing a shotgun in the countryside is normally acceptable, the motive made the act anuisance.Contrast the above 2 cases with Bradford Corp v PicklesBradford Corp v Pickles [1895] AC 587Facts:Here, C has a reservoir on the land and water flows into it through D’s land. D wants C to buy hisland but C isn’t interested. As such, D alters the flow from the water on the spring from his land so it’sno longer feeding the reservoir on C’s land. He effectively cuts off the water supply.Judgment:HL said this doesn’t give rise to liability in nuisance even though he was doing it quitedeliberately to case this nuisance to the d’s land. The reason they give is that regardless of the intention,the act is lawful and thus permissible.Notes: On the face of it, it is hard to reconcile Bradford with the other decisions. Mitchell says the thingto focus on is probably that there are special rules dealing with water rights. The HL in pickles draw on arange of authority even going back to Roman law about people’s rights to use water in any self-interested way particularly as far as the law of nuisance is concerned. As a neighbour, you have no rightto insist that your neighbour permit water to flow into your land.Olliphant feels the best explanation is suggested in Winfied; namely that the right to make noise onone’s land is relative, whilst the right to alter percolating water is absolute. Where a relative right is inissue it is appropriate to consider malice. The problem arises, in the absence of clear judicial authority,in defining what relative rights are. (Note for example that the right to make noise and smells arerelative)(iv) Public benefit, planning permission, and statutory authorityPublic BenefitThe fact that D’s activity is for public utility doesn’t prevent it also amounting toa nuisance (Bamford).However, if an activity is for the public benefit, that may be a consideration taken into account indetermining the reasonableness of the defendant’s use of his land. Further, if an activity is in the publicinterest, a different remedy may be required as an injunction may not be appropriate. (Dennis)Bamford v Turnley (1862) 3 B & S 66
  • 59. Facts: D was burning bricks on his land resulting in smoke and smell that affected C. D won but one ofthe arguments was that D should not be subject to a claim in private nuisance as his activity was for thepublic benefit.Notes: Bramwell B for his part felt that an activity was only for the public benefit if there was a netbenefit after paying compensation and that the argument did not hold water. - Although the authorities suggest that public benefit is not an absolute defence, it seems that it may be a consideration taken into account in determining the reasonableness of the defendant’s use of land. - If private rights are to be extinguished in favour of the general public this has generally been thought to be a matter for parliamentDennis v Ministry of Defence [2003] 2 EGLR 121Facts: C, the owner of a country estate adjoining an RAF base, claimed that the noise amounted to anuisance. D argued that the public benefit prevented it from being characterised as a nuisance.Judgment: Buckley J held that whilst public benefit could not be used to justify conduct that wouldotherwise be a nuisance, it may be relevant to determining the remedy that should be granted. (Ifnuisance was found, an injunction would have been the appropriate remedy because the conditions forthe award of damages in lieu of an injunction, set out in Shelfer, would not have been met. Nonetheless,an injunction clearly would not have been appropriate. Thus, Buckley J effectively extended thecircumstances, well beyond Shelfer, when damages could be granted in lieu of an injunction.)Statutory authorityDefendants have immunity in respect of proceedings for nuisance in respect of inevitable consequencesfrom carrying out statutorily permitted activity. (Note that the immunity only extends to inevitableinterferences) Alternatively, no action lies for doing that which the legislature has authorised, unlessdone negligently.Allen v Gulf Oil Refining Ltd [1981] AC 1001Facts:D built and operated an oil refinery under the authority of the Gulf Oil Refining Act 1965. C claimedshe was adversely affected by noxious odours, vibrations, and offensive noise levels emanating from therefinery, as well as alleging that she and members of her family lived in fear of explosion at the refinery.D pleaded statutory authority.Judgment:HL held that the statute expressly or by necessary implication gave authority to construct andoperate the refinery, and that this authority conferred on the defendant immunity from proceedings forany nuisance which might be the inevitable result of constructing a refinery on the land, howevercarefully sited, constructed, and operated.Notes:The question with statutory authority is thus one of statutory construction.
  • 60. Planning permissionPlanning permission can change the character of the area and if so, you assess the reasonableness of theinterference with respect to the new character. (Gillingham)Also, where the planning permission doesn’t change the character of the area, the fact that permissionhas been granted in itself does not prevent liability in nuisance. (Wheeler)Gillingham DC v Medway (Chatham) Dock Co Ltd [1993] Ch 19This was a case involving the granting of planning permission for D to operate a 24h commercial wharf inan area that had formerly been part of the Chatham Royal Dockyard, Buckley LJ hinted that planningconsents relating to major redevelopments that of necessity prejudiced some local inhabitants might actas a defence to subsequent private nuisance actions by those adversely affected. InHunter, it has beenmade clear that the comments in Gilingham mean no more than suggesting that the character of aneighbourhood can change in line with planning permissions.Wheeler v JJ Saunders [1996] Ch 19Planning permission in the case concerned the intensification of pig farming, Held that it did not changethe character of the neighbourhood(C) FORESEEABILITY AND FAULTOne of the confusing issues in nuisance is whether it is a fault-based tort. The short answer to thisquestion is that it depends, first, on what remedy is sought, and, secondly, on what is meant by fault.Most authors agree that where C is seeking an injunction, the question of fault is irrelevant. This isbecause at the time the case is brought, the defendant knows that his conduct is causing the claimantinconvenience, and the only question for the court is whether the inconvenience amounts to a nuisancefor the purpose of preventing such conduct in the future.(i) Where D creates the nuisanceCambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264D spilt some chemical on its floor which over time, got into the water supply of C, forcing them to moveto a new water source and stuff. (facts not so relevant here) Judgment for D though.Here, the principle above is mentioned (where C is seeking an injunction, the question of fault isirrelevant). However, it is also made clear that a failure to take reasonable care in carrying out anactivity on land is not necessary to establish liability in nuisance.Nonetheless, a defendant will only be liable for reasonably foreseeable consequences of theunreasonable user. This might be construed as a form of fault-based liability.Note that an alternative view is that there is really no difference between the fault requirement innegligence and that in nuisance, at least where damages are sought rather than an injunction.
  • 61. Delaware Mansions Ltd v Westminster CC [2002] 1 AC 321(case concerned liability for encroaching tree roots)Also, case describes damage caused by a natural occurrence as nuisance but, at least where damage toproperty is claimed, it is in reality negligence.This is one of the cases where it has been recognised that the occupier of a land may owe a duty to actpositively to prevent harm to his neighbour. Lord Cooke says at 333 “The level nuisance or negligence istreated as of no real significance. In this field, I think the concern of the common law lies on working outthe fair and just content and incidents of a neighbour’s duty rather than affixing a label and inferring theextent of the duty from it”Network Rail Infrastructure Ltd v Morris [2004] Env LR 41EM interference case. C failed as the interference was not reasonably foreseeable as a result of thedefendant’s conduct and as such, couldn’t amount to an unreasonable use of land.(ii) Third parties / natural eventsSedleigh-Denfield v O’Callaghan [1940] AC 880Facts:a TP (who was trespassing) constructed a pipe on D’s land to channel water from a ditch forirrigation. Though it was meant to have a grill to prevent debris entering, this was built negligently. Thepipe got blocked and flooded (twice), and damaged C’s land.Judgment:Though D didn’t know about it, as a member of his order did, he was held to know.Notes:Essentially established that a nuisance was continued or adopted if the defendant knew or oughtto have known of the existence, or the possibility of a nuisance on his land and failed to take reasonablesteps to bring the nuisance to an end.It is now well established that an occupier can be liable for a nuisance on his land created by the acts ofa third-party.It has also been used to impose liability on occupiers for the actions of their predecessors in title;and to support the liability of a landowner in nuisance where a TP uses the defendant’s land as a basefrom which to engage in activities off the defendant’s land which interfere with C’s use and enjoymentof his land. (note that though liability above would seem to arise under the principle in sedleigh, itseems to arise only in nuisance in respect of amenity damage (such damage not being actionable innegligence).A similar fault-based liability is imposed where the alleged nuisance is constituted by an isolated escape.(see more on 661)Goldman v Hargrave [1967] 1 AC 645Case where a lightning strike set a tree on D’s property on fire. D took action to put it out but this wasinadequate and the fire spread to C’s property and caused extensive damage.
  • 62. Applying the principle in sedleigh, PC held that the occupier of land owed a duty to his neighbour toremove any hazards, whether natural or man-made. The duty was based on the occupier’s knowledge ofthe hazard and foresight of damage to his neighbour if he failed to act. The standard of care required ofthe occupier was what it was reasonable to expect of him in his circumstances, and since the duty to actwas imposed on the occupier, the individual resources of the occupier were to be considered inassessing whether his response was reasonable. The PC felt that liability, if any, arose in negligence.Leakey v National Trust [1980] QB 485(‘Barrow Mump’ case on 662) Again reiterates that the test of deciding whether what the defendant didwas sufficient or reasonable is somewhat subjective in that the resources available to D can be takeninto account.NB. The result of these cases is that where the alleged nuisance is caused by a natural occurrence anaction may be commenced in either nuisance or negligence, but that liability will be determinedaccording to principles applicable to the law of negligence.The only exception is where the damage C alleges is not sufficient to found an action in negligence butwould be in nuisance.(4) The rule in Rylands v Fletcher (1866) LR 1 Exch 265The rule imposes strict liability for the escape of ‘dangerous things’ on land. For liability, fourrequirements need to be satisfied. 1. The object in question must be a ‘dangerous thing’. I.e. something likely to cause damage if it escapes. 2. The ‘dangerous thing’ must’ve been accumulated on the defendant’s land. (Rylands). This is sometimes phrased as being a ‘non-natural’ use of the land (Read, Transco) 3. dangerous thing must escape from D’s land 4. dangerous thing must cause damage to the claimantNote:No liability for escapes caused by acts of God or malicious third parties; no liability for death orpersonal injuryRylands v Fletcher [1868] (HL)Facts: D engaged independent contractors to construct a reservoir to supply water to his mill. This wasbuilt over abandoned mine shafts which collapsed due to the weight of the water, causing water toflood into C’s colliery. D had not be negligent and there was no basis for a claim in private nuisance as Dhad taken reasonable care to select a competent and experienced independent contractor.Judgment: D was held liable on the basis that ‘the person who for his own purposes brings on his landand collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, ifhe does not do so, is prima facie answerable for all the damage which is the natural consequences of itsescape’. Lord Cairns described the required use of land as ‘non-natural use’.
  • 63. Non-natural use of landThis particular aspect has presented the most difficulty. The debate exists as it is unclear whether thisrefers to a use of the land which isn’t attributable to natural processes or rather, whether by non-natural use we should understand it as some extraordinary or unusual use. (Per Read and Transco, itseems the latter view is preferred)Read v J Lyons & Co [1947] AC 156Facts:Concerned an explosion in an armament factory. Question was whether the explosion could giverise to Rylands liability.Judgment: HL said that the storage of explosives in an armament factory is a natural use of land.Notes: It was acknowledged that ‘what may be regarded as dangerous or non-natural will vary accordingto the circumstances’ taking into account the ‘circumstances of the time and the practice of mankind’Transco plc v Stockport MBC [2004] 2 AC 1Facts: Escape of water from a pipe owned by the defendant LA caused an embankment to collapse,which exposed a gas pipe, thus necessitating expensive emergency remedial work by the claimant.Judgment:HL did not accept that this fell within Rylands on the basis that the supply of water throughpipes was normal and routine and not something that presented a particular hazard. The risk presentedby any particular activity had to be considered by contemporary standards. As the pipe carried no morerisk of fracture leading to the escape of water than any other pipe, it could not be considered a non-natural use of land. Lord Hoffman noted that damage to property caused by leaking water was a riskagainst which insurance was available, which supported the conclusion that this situation did not meetthe high threshold of exceptional risk arising from non-natural use that is required if a claim underRylands is to succeed.LiabilityIt is clear that the tort is one of strict liability. However, in Cambridge Water, Lord Goff made it clear thatliability here was only strict in the sense that the defendant would be liable even if he had taken steps toprevent the escape occurring and that the type of damage suffered by the claimant must still bereasonably foreseeable.Cambridge Water Co Ltd v Eastern Counties Leather plc [1994] 2 AC 264Facts: the defendant company was a leather manufacturer which used chemical solvents in the tanningprocess. These chemicals were stored in drums on the defendant’s premises. Following new Europeanregulations, tests were carried out on the claimant’s water and it was found to be polluted by thechemicals from the tannery as spillages had leaked into the water. At first instance, the claim based onRylands was dismissed on the basis that there was not a non-natural use of land due to the amount oftime that the tannery had been in operation and the industrial area in which it was located. The CA
  • 64. rejected this argument and held that the storage of chemicals was a non-natural use of land and foundthe defendant liable for the damage caused on a strict liability basis. This issue was reconsidered by theHL.Judgment: Lord Goffexamined the precise wording inRylands as evidence that the principle required ‘atleast foreseeability of the risk’ as a prerequisite to recovery of damages. He went on to say that the tortwas strict liability only in the sense that D would be liable for the consequences of escape even if he hadtaken steps to prevent it occurring. Lord Goff made reference to Wagon Mound (No 1) and concludedthat Rylands required foreseeability by D of the relevant type of damage.Seminar 12: Intentional interferencewith the person(1) Cause of action(A) MEANING OF INTENTIONHL was invited to import a Woolin style meaning of intent but declined to do so saying the aims of thedifferent strands of law are different. But if anything, one would think intent might have a widerdefinition where mere compensation is concerned rather than punishment. It is also important that theaction be intended as if not, it is merely negligence.(B) ASSAULTDefinition: An unlawful act which causes another person to apprehend the infliction of immediate,unlawful force on his person.Stephens v Myers (1830) 4 C& P 349: (D walking towards C at some church meeting waving a clenchedfist and was stopped while still 2-3 seconds away from being able to conduct the battery). D was liablefor assault so the test for assault requires the reasonable apprehension of an immediate an unlawfultouching. It need not be an action possibility.R v Ireland [1998] AC 147: (Repeated silent phone calls) HL hold that silence can constitute an assault.They note that it is contextual as well. E.g. if you had two people in a room and one said nothing, thatwould not be sufficient.(C) BATTERYDefinition: The intentional and direct (unlawful) application of force to a person.Hostility?
  • 65. Required in Wilson v Pringle [1987] QB 237but disapproved in Re F [1990] 2 AC 1; So it is not required.This is in line with the criminal law definition. (See R v Brown)A positive actInnes v Wylie (1844) 1 Car & Kir 257: D (a policeman) was standing passively blocking a doorway. Heldthat it was not a battery and that a positive act was required.Directness RequirementThis requirement seems to be absent in the criminal law. With regards to trap cases and the like, it isunclear whether they satisfy the directness requirement for the tort. The case law seems to indicatethat the danger must be created in a relatively short time period before damage for it to be actionable.(D) INTENTIONAL INFLICTION OF PHYSICAL OR EMOTIONAL HARMWilkinson v Downton [1897] 2 QB 57Facts: D decides to play a practical joke on C and falsely tell her that her husband was seriously injured inan accident. This caused her to vomit, her hair to turn white, as well as suffer other serious andpermanent psychiatric and physical harm.Judgment: It was held that a person who has ‘wilfully done an act calculated to cause physical harm tothe claimant and has in fact thereby caused physical harm to her’ has provided a good cause of action.Notes: So here, you need to specifically intend harm as opposed to intending the unlawful application offorce and for liability, damage has to be suffered (unlike assault and battery which are actionable ‘perse’)Khorasandjian v Bush [1993] QB 727Facts: Stalking case where D is constantly harassing C amongst other things by calling her at home. Theharassment is so intense she’s at risk of developing a psychiatric injury in the future.Judgment: The CA use Wilkinson to grant an injunction to prevent the tort happening.Notes: After Khorasandjian, it seemed like Wilkinson might grow into a useful tort but the need for it togrow has been reduced by the Protection from Harassment Act 1997.Protection from Harassment Act 1997 ss1, 3, 7S1(1) essentially prohibits a course of conduct which amounts to harassment or he ought to knowamounts to harassment.In s1(2) “For the purposes of this section, the person whose course of conduct is in question ought toknow that it amounts to harassment of another if a reasonable person in possession of the sameinformation would think the course of conduct amounted to harassment of the other.”
  • 66. Importantly, per s7(3), a “course of conduct” must involve conduct on at least two occasions.If you are guilty of harassment, s3 allows for civil remedies such as damages and an injunction. It’s also acriminal offence.Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224Facts: An employee claims to be harassed by his departmental manager in the NHS in breach of s1 of theHarassment Act and sues the employer claiming they’re vicariously liable.Judgment: Per Lord Nicholls of Birkenhead. Where the quality of the conduct said to constituteharassment is being examined, courts will have in mind that irritations, annoyances, even a measure ofupset, arise at times in everybodys day-to-day dealings with other people. Courts are well able torecognise the boundary between conduct which is unattractive, even unreasonable, and conduct whichis oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable thegravity of the misconduct must be of an order which would sustain criminal liability under section 2.Notes: HL confirms that the tort imposes vicarious liability.Ferguson v British Gas Trading Ltd [2010] 1 WLR 785Facts: C had changed to another gas provider. For a period of about five months after the transfer, Dwas attempting to get some payments from C which she did not owe due to a computer error. D made astriking out application.Judgment: Although harassment under section 1 of the 1997 Act was both a crime and a tort that didnot modify in any way the constituents of the civil wrong; that, since the individual was expected totolerate a certain amount of annoyance, the impugned course of conduct had to be grave, in that it wasoppressive and unacceptable, before either the criminal or civil law would intervene; and that thedefendants conduct as alleged by the claimant was capable of satisfying that test and so the claimshould go to trial.Notes: The key point here is that the act is drafted broadly enough to take account of this sort ofharassment. So it covers all sorts of harassing conduct and is not limited to stalkers or threats ofviolence.Wainwright v Home Office in the CA: [2002] QB 1334, [1]-[15], [41]-[51] (Lord Woolf CJ), [74]-[86](Buxton LJ); in the HL: [2004] 2 AC 406Facts: C and his mother are strip-searched when visiting his brother in prison. C was so severely affectedby his experience as to suffer post-traumatic stress disorder. Mrs Wainwright had suffered emotionaldistress but no recognised psychiatric illness.Mental Element QuestionPer the CA, it seems that you required subjective recklessness. D needs to be aware that he’s createdthis risk of harm. It will not suffice that D was objectively reckless.This is not fully uncontested as while Lord Woolf took this view, LJ Buxton wasn’t so sure and started offby thinking the test was one of objective recklessness. Nonetheless, the test does seem to be subjective.
  • 67. Role of Wilkinson todayLord Hoffman stresses that the scope of Wilkinson has been reduced today. It is important that the casewas decided in 1897 as there was no liability under negligence for psychiatric injury at the time. Overthe course of the 20th century however, liability for PI does come to be recognised.Lord Hoffman personally feels that Wilkinson should’ve been swept into the law of negligence and hasonly been kept alive by barristers and textbook writers. However, while he isn’t convinced the tort has arole in itself independent of negligence, he does not rule out the potential for a tort based on oramending Wilkinson which would cover ground not currently protected by the law of negligence or theProtection of Harassment Act.This would have to be a non-recognised psychiatric injury such as grief (which would not be covered bynegligence) and would have to be the result of a one-off incident. (So as to not be covered by the Act).He does go on to say that if you had such a tort, you’d have to be very careful about how intention wasdefined and thought that the current subjective recklessness test of intention in Wilkinson would not begood enough. There’s also the point of how people regularly suffer distress and humiliation at work.(2) Defences(A) CONSENTRequirements:1. C must have the capacity to consentRe MB [1997] 2 FLR 426 – The claimant must be capable of understanding and retaining the informationand using it in making a decision. (most relevant in medical cases)2. Consent must be real (C must understand the broad nature of the touching)Chatterton v Gerson [1981] QB 432 (misleading information)Facts: C consents to a nerve treatment operation. Unfortunately, more nerves than intended were killedoff which resulted in her having numbness in parts of her body. The issue was whether her consentwasn’t real or whether it had been destroyed by not being properly informed about the risk.Judgment: The judge analysed it in 3 steps. He came to the conclusion that the failure to inform herdidn’t prevent the consent from being real.He said generally, fraud vitiates consent; e.g. fraudulently induced sexual intercourse would amount torape. However he said, for a situation like this involving medical treatment, the lack of information toamount to preventing the consent being real has to go on beyond mere carelessness.He concluded that what you’re looking for is whether C understood the broad nature of the act. (Here,she understood it was a medical procedure therefore, she consented to the touching.)Mitchell thinks the conclusion is right and the test he came up with is right but he doesn’t think thejudge can be right when he talks about at the start of his judgment that fraudulently induced consent tointercourse amounts to rape. That’s not what the criminal law says.
  • 68. R v Dica [2004] QB 1257D charged in relationship to various acts of sexual intercourse he’d had with women when he knew hewas HIV positive. It’s made very clear by the CA that there’s no question of him being guilty of rape. TheFact he represented that in some way he wasn’t suffering from HIV didn’t take away the consent to theintercourse.So the key test is really whether you understand the broad nature of the touching. It’s not so much aquestion about being given misinformation. Only misinformation that means you no longer understandthe broad nature of the touching can count as taking away consent.3. The consent given must cover the application of forceCovered in the case of checkBoy needed to be admitted to a hospital to have his tonsils out and owing to misadministration, insteadhe was circumcised. The consent to having your tonsils out doesn’t extend to anything the doctors maydo on you while you’re under GA.Note that consent can be implicit/implied.Blake v Galloway [2004] 1 WLR 2844 (boys throwing sticks)[21] In a sport which inevitably involves the risk of some physical contact, the participants are takenimpliedly to consent to those contacts which can reasonably be expected to occur in the course of thegame, and to assume the risk of injury from such contacts. Thus, for example, in the context of a fightwith fists, ordinarily neither party has a cause of action for any injury suffered during the fight. But theydo not assume “the risk of a savage blow out of all proportion to the occasion. The man who strikes ablow of such severity is liable in damages unless he can prove accident or self-defence”(B) SELF-DEFENCEA person may use such force as is reasonable to protect against an actual or perceived threat of harmagainst themselves or another person. The force used must be proportionate to the threat.Ashley v Chief Constable of Sussex Police [2008] UKHL 25, [2008] 1 A.C. 962 – HL held that in caseswhere the assailant had acted in a mistaken belief that he was being attacked, this mistaken belief mustbe honestly and reasonably held in order for self-defence to be available against a civil claim in assaultor battery.(C) CAPACITY/NECESSITYMental Capacity Act 2005 ss 1-6, 24-27 (note this is an important statute and it is essential that you arefamiliar with these sections)Section 1: principless. 1(2) A person must be assumed to have capacity unless it is established that he lacks capacity.
  • 69. s. 1(3) A person is not to be treated as unable to make a decision unless all practicable steps to help himto do so have been taken without success.s. 1(4) A person is not to be treated as unable to make a decision merely because he makes an unwisedecision.Section 2: people who lack capacity “for the purposes of this Act”:s. 2(1) a person lacks capacity in relation to a matter if at the material time he is unable to make adecision for himself in relation to the matter because of an impairment of, or a disturbance in thefunctioning of, the mind or brainSection 3: inability to make decisions.s. 3(1) a person is unable to make a decision for himself if he is unable –(a) to understand the information relevant to the decision,(b) to retain that information,(c) to use or weigh that information as part of the process of making the decision, or(d) to communicate his decision (whether by talking, using sign language or any other means).Section 4: assessment of best interestss. 4(2) The person making the determination must consider all the relevant circumstances…s.4(3) He must consider –(a) whether it is likely that the person will at some time have capacity to in relation to the matter inquestion,s. 4(4) He must, so far as reasonably practicable, permit and encourage the person to participate,…s.4(6) He must consider, so far as is reasonably ascertainable –(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statementmade by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if he had capacity…Section 5: Acts in connection with care or treatmentPerson doing such an act is treated as if claimant had consented with capacity (ie, not liable) if:
  • 70. before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to thematter in question, andwhen doing the act, D reasonably believes –that P lacks capacity in relation to the matter, andthat it will be in P’s interests for the act to be done.Section 24. Advance decisions to refuse treatment.Definition: decision must be made after person has reached age 18, and has capacitys.24(3) P may withdraw or alter an advance decision at any time when he has capacity to do so.s.24(4) A withdrawal (including a partial withdrawal) need not be in writing.s.24(5) An alteration of an advance decision need not be in writing…Section 25. Validity and applicabilitys.25(1) An advance decision does not affect the liability which a person may incur for carrying out orcontinuing a treatment in relation to P unless the decision is at the material time-(a) valid, and(b) applicable to the treatment.s.25(2) An advance decision is not valid if P-(a) has withdrawn the decision at a time when he had capacity to do so,…(c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.s.25(3) An advance decision is not applicable to the treatment in question if at the material time P hascapacity to give or refuse consent to it.
  • 71. s.25(4) An advance decision is not applicable to the treatment in question if-(a) that treatment is not the treatment specified in the advance decision,(b) any circumstances specified in the advance decision are absent, or(c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at thetime of the advance decision and which would have affected his decision had he anticipated them.s.26 Effect of advance decisionss.26(1) If P has made an advance decision which is – (a) valid, and (b) applicable to a treatment,the decision has effect as if he had made it, and had had capacity to make it, at the time when thequestion arises whether the treatment should be carried out or continued.s.26(2) A person does not incur liability for carrying out or continuing the treatment unless, at the time,he is satisfied that an advance decision exists which is valid and applicable to the treatment.(D) GENERAL PRINCIPLES OF NECESSITYF v West Berkshire Health Authority [1990] 2 AC 1 (L&O 89-94). These principles, although they predatethe Mental Capacity Act 2005, are relevant for two reasons. First, the Act only applies to certain types ofincapacity (s.2). Second, Lord Goff’s discussion indicates how the courts might interpret the Act.Here, Lord Goff gave examples of necessity that went beyond medical treatment;For example, if I push you out of the way of an oncoming vehicle you weren’t aware of, I’d have adefence of necessity if you sued for battery.The point about the defence of necessity is that it arises in situations where it’s impractical tocommunicate with C. So whereas ordinarily, if you were going to touch someone, you’d obtain theirconsent to do so, in the lorry pushing example, they’d be run over if you did so.So the defence of necessity can apply more broadly than medical care or treatmentSome specific points - If D doesn’t believe act is in C’s best interests but is doing it, he won’t have a defence under s5. - If D is wrong about it and it is in C’s best interest to have the treatment done, that’d be covered by the common law principles of necessity as those arebsaed on whether it’s actually in C’s best interest and now whether D believes it is.
  • 72. - So where D wrongly believes it’s not in the best interests to have the treatment done, he’d have no defence under the Act but you should have a defence under the common law if it actually is in C’s best interests.Re MB [1997] 2 FLR 426 (L&O 96-99) (helpful to show the way the courts may interpret the 2005 Act).(E) CONTRIBUTORY NEGLIGENCE?Law Reform (Contributory Negligence) Act 1945 ss 1 and 4 – see Seminar 8 handout for textMurphy v Culhane [1977] QB 94Standard Chartered Bank v Pakistan National Shipping Corporation [2003] 1 AC 959Bici v Minstry of Defence [2004] EWHC 786 (QB)Q about whether it could apply in situations where D has committed an intentional tort (standardchartered case concerned intentional tort of deceit)Standard Chartered Bank v Pakistan National Shipping Corporation [2003] 1 AC 959checkThere, HL concluded that the defence of contributory negligence would only be available where it’dpreviously been available prior to 1945. They said the 1945 Act was designed to change only the effectof a defence in contributory negligence, not to increase the number of situations where the defence isavailable.Prior to 1945, contributory negligence was a complete defence and hence it’s unsurprising that prior to1945, courts didn’t accept it as a defence to intentional torts.However, after 1945, though we have the Standard Chartered decision that’s probably the mostauthoritative, we have 2 other cases that seem to suggest something else.Murphy v Culhane [1977] QB 94and Bici v Ministry of Defence [2004] EWHC 786 (QB)Murphy v Culhane [1977] QB 94C is essentially killed as a result of C’s actions. There are suggestions that contributory negligence couldapply for intentional torts. However, it’s merely an interlocutory appeal and a CA decision which the HLin Standard Chartered refuse to say was correctly decided.Bici v Ministry of Defence [2004] EWHC 786 (QB)Soldiers taking part in United Nations peacekeeping operations in Kosovo owed a duty to preventpersonal injury to the public and had breached that duty by deliberately firing on a vehicle full of peoplewhen they had no justification in law for doing soElias J found that regardless, the claimants could not be said to have contributed to the damage.Nonetheless in dicta, he considered contributory negligence in tort and suggests that it should beallowed.
  • 73. Ultimately inBici, the Standard Chartered case isn’t discussed and the point is dealt with in brief. Murphyis a CA decision which the HL in standard chartered refuse to say was correctly decided.So though the case law is patchy, the leading case is Standard Chartered. And unless the SC says the caseis wrong, the position seems to be that contributory negligence isn’t available for intentional torts suchas battery.When do these defences apply?They clearly apply for battery and assault.With regards to Wilkinson, consent is clearly applicable however, there is no case law for the otherdefences so it’s hard to say.Seminar 13: Defamation(1) The cause of actionCause of action consists of the publication of defamatory words; Publication here means making knownthis imputation to one or more people other than the claimant.(A) DEFAMATORY MEANINGThe CA in Berkoff said there are several separate tests for deciding whether the words have adefamatory meaning - Causes C to be shunned - Exposes C to hatred, ridicule, or view with contempt - Lowers the claimants reputation in the estimation of right-thinking people (dominant test)Right-thinking people?Byrne v Dean [1937] 1 KB 818Facts: There, the implication was that C had reported to the police the presence in a golf club of someillegal gambling machines. C sued for defamation. Because C as a member of the golf club was nowbeing shunned or being treated less favourably by members at the golf club.Judgment: It’s held there’s no liability because right thinking people wouldnt think less of a person whoreported a criminal offence to the police.Notes:
  • 74. Dissent; its true right thinking people might not think less favourably on someone for reporting illegalactivity; but nonetheless, right-thinking people might shun disloyalty. The allegation here may be readnot as imputing reporting to the police but as imputing disloyalty - Shows importance of right thinking people test - Focuses on the question of how defamatory language should be interpreted. What’s the appropriate approach to take? In particular, what do we do with allegations that can be read as making a range of different defamatory accusations against our claimant?Berkoff vBurchill [1996] 4 All ER 1008Facts: A film critic reviewing the movie Frankenstein said that C was hideously ugly and thatFrankenstein was marginally better looking. (Second time she’d made a similar comment).There’s this general idea that simply to say something crude or abusive shouldn’t amount to defamationas it’s not the kind of thing that’ll lower their reputation in the eyes of right thinking people.But with thebreadth of the test extending to ridicule, it’s possible situations like this might be covered.His typical roles were minor characters or a gangster/villain. Typically characters which weren’texpected to be pleasant looking. In that sense, it probably wouldnt really affect his job.Judgment:CA suggested that people might be put off from seeing his work because they thought it wasan unpleasant experience, that might be enough to count as defamation. (so the finding in this case issimply that it can be put to the jury.)(B) INTERPRETATIONWords can have both defamatory and non-defamatory meanings. How does the court interpret them?Lewis vDaily Telegraph [1964] AC 234Facts: D publishes an article saying that C’s company is being investigated by the fraud squad. C sues onthe basis that the words were understood by readers as implying that he’d been guilty of fraud.Judgment: HL said we’re concerned with the ordinary meaning of words (so we’re dealing with theordinary reasonable reader) and thus, guilt of fraud could not be interpreted from the article. (And sothere was no case to go to a jury)Notes: HL said it was quite important that we shouldn’t read the words in an ultra-technical or ‘lawyer’like way. But even if that were the case, people shouldn’t be allowed to sue because those reading thearticle had read too much into it.What if readers have special knowledge allowing them to give the statement a different meaning to thatof the ordinary reasonable reader?Cassidy v Daily Mirror[1929] 2 KB 331
  • 75. Facts:Here, D published a photograph of a man and a woman with the caption, “Mr Corrigan with miss xwhose engagement has been announced”; the people in the photo saw the photographer at a horserace and asked them to take this picture telling him they’d just became engaged to be married.However, Mr Corrigan was actually married and was Mr Cassidy. His wife, C, brought the claim on thebasis that her friends saw the picture in the mirror and when they saw the caption, that lowered MrsCassidy’s reputation because the friends thought she was the one not married to the man.Judgment:CA held that this defamatory meaning was actionable. In doing so, there were 2 things to noteabout their findingNotes: - The daily mirror didn’t know about Mrs Cassidy so it couldn’t have known that people would have read this statement as being defamatory. In defamation, that doesn’t matter though as liability is strict. So no fault liability. - It was only possible because the claimant was permitted to set out the story behind the photo. How it was that people came to give these words a defamatory meaning which they would not at first sight bear. o That technique as setting out a special meaning not on the surface of the words, is the technique of pleading ‘a true innuendo’. That’s where you explain why words that don’t on their surface explain what they mean actually have that meaning. You explain special circumstances. Special knowledge possessed by a class of readers.A false innuendo by contrast is where C in his formal pleading explains what the words mean but thatexplanation is simply amplifying or expanding what the obvious meaning is.In Byrne, the problem is the class of people were not right thinking people but in Cassidy, the problemwas that the people were right thinking people who had some particular special knowledge who had areason which was invisible to ordinary people.So in Cassidy the class is if you like right thinking, specially informed people.(C) LIBEL AND SLANDER(Libel is in permanent form whereas slander is impermanent, typically speech) Libel is actionable per sewhile slander requires proof of special damage with 4 exceptions (indictable criminal offence, seriouscontagious disease, professional incompetence, allegations of unchastity)Why the distinction?Thorley v Lord Kerry (1812) 4 Taunt 355The court recognises that it is not possible to justify the libel/slander distinction on the basis that writtenwords necessarily cause more harm or reach a larger group. Also, as defamation is now a strict liability
  • 76. offence, the idea of written words having more malice is irrelevant. The court here says though thatultimately there is a lot of historical support for the distinction and as such, we have to keep it.2 Exceptions ThoughTheatres Act 1968 s 4(1)Words spoken in the course of a theatrical performance are to be treated as libel (though interestingly, notthose spoken during rehearsal)Broadcasting Act 1990 s 166(1)Words spoken in a broadcast (essentially any programme) are to be treated as libel.(D) WHO CAN SUE FOR DEFAMATION?Any individual named or referred to in the ordinary meaning of the words (Lewis) can sue.Companies:Jameel v Wall Street Journal Europe sprl [2007] 1 AC 359Facts:Discussed below. However, one of the arguments raised was that for a company to sue in defamation,it should have to prove actual damage.Notes: The HL by a majority reject that argument. So a company can sue in the same way as an individual.Hoffman dissent: companies aren’t like people where a company has no ‘immortal part’ no ‘soul’ or sortof ‘human dignity’ and as a result, it ought not to have remedies for defamation in the same way anindividual.Groups:KnupffervLondon Express Newspaper Ltd [1944] AC 116Facts: In an article, D accused a group (the young Russians party) of trying to help the Germans in their wareffort against Britain. C was the leader of the party and sued on the basis that people would think of himwhen they saw a reference to the party.Judgment: HL said that the question was whether the reference to a group in itself implied a reference toevery member of the group. One of the things you’d consider was the size of the group. They mentioned aScottish case with 7-8 people mentioned where all could sue and contrasted it with a large group for whichit was clear all couldnt. Here, he was not allowed to sue.Notes: There are some peculiarities with Knupffer’s case in particular which may have denied him a claim.Government:Derbyshire County Council vTimes Newspapers Ltd [1993] AC 534Facts: The Sunday times had published articles alleging that the council had mismanaged its pension funds.The council itself along with the council leader and the finance leader sue for defamation.
  • 77. Judgment: The HL holds that no liability is possible in defamation to governmental bodies (like a LA or agovernmental department). So a governmental body like a LA, a government department, cannot sue fordefamation. (Though here, the 2 individuals can)Notes:The main reason for this has to do freedom of speech; the importance of being able to debate,criticise, evaluate, the activities of elected authorities. It’s important to notice though that HL was careful tosay that that didn’t mean you could say what you’d like about government and never be liable. Could beliable either under malicious falsehood or if sued by individuals concerned.(E) STRICT LIABILITYE Hulton & Co vJones [1910] AC 20Facts: The newspaper produced what was intended to be a fictitious sketch about Mr Artemis Jones, anupright member of the community at home but a drunken lout on holiday. An actual Artemis Hones, abarrister in Peckham, sues for defamation.Judgment: The claim succeeds. The HL says that the intention of the publication is not important but rather,what is understood by it.NewsteadvLondon Express Newspapers [1940] 1 KB 377Facts: D publishes an article reporting that Mr Newstead from Camberwell who was convicted for bigamy.This was actually true however, the claim is brought my another Mr Newstead (same first name as well) alsofrom Camberwell.Judgment: The claim succeeds. So wordsintended true of their target may also be libellous.Notes: As a result of these 2 decisions (amongst others), it became media practice to institute a processcalled ‘negative checking’; it’s where you go through various listings, directories, and any other sort ofinformation you can find to illuminate a coincidence of names. Particularly important for fictionO’Shea v MGN [2001] EMLR 943Facts: D published a pornographic advertisement featuring an AV model who bore a striking resemblance toC and indeed, those who knew C thought she’d gone into porn. C brings a claim for defamation.Judgment: The claim fails; it is not possible to do anything like negative checking with pictures and imposingstrict liability in such circumstances would be inconsistent with art. 10. Secondly, there is no pressing socialneed for the protection of look-alikes.(2) Defences(A) INNOCENT DISSEMINATIONDefamation Act 1996 s 1 – Essentially, where D is neither author, editor, nor publisher of the defamatorymaterial, where he neither knew nor ought to know that the material was defamatory, he’d have thedefence available. (Distributors etc… extends to electronic publications)Notes:
  • 78. Note the wording. It is important to realise that the defence can be lost even where: - D is informed that the material is defamatory - D suspects that the material might be defamatory.(B) JUSTIFICATIOND only needs to prove that the claim is true in substance. This leads to two particular points (i) Repetition rule (Stern) (ii) Ensure that the actual thrust of the defamatory claim, confined to its scope, is proved. (allegations of general bad conduct are not proved by a single instance of unrelated bad behaviour and vice-versa)SternvPiper [1996] 3 All ER 385D merely reports something another person has said. Mere repetition without actual proof does not sufficefor justification.Bookbinder v Tebbit [1989] 1 All ER 1169Facts:Claims were made by D (a prominent conservative leader) that C (leader of a labour CC) hadsquandered public money by overprinting its stationery. C adduces many other instances of public moneybeing wasted during his term in office.Judgment: CA holds that it is not possible to justify the allegation by pointing to other alleged instances ofsquandering public fundsScott v Sampson (1882) 8 QBD 491 – General evidence of a bad reputation is not justification.Defamation Act 1952 s 5 – Essentially reverses the old CL position“In an action for libel or slander in respect of words containing two or more distinct charges against theplaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved ifthe words not proved to be true do not materially injure the plaintiff’s reputation having regard to the truthof the remaining charges”(C) FAIR COMMENT4 elements - Comment (as opposed to fact) - Fair - In the public interest - Can’t be malicious (reintroduces an element of fault)CommentClearly covers subjective opinions. But how far does this idea of a comment go?Telnikoff vMatesuvitch [1992] 2 AC 343
  • 79. Facts:Concerns a letter published in a newspaper in response to a previous letter. C sues alleging that the Dmade it seem that he was advocating a racialist recruitment exercise when in fact he wasn’t. The questionthen was whether the statement was a statement of comment or a statement of fact. If you put the lettersside by side, it seemed like a comment.Judgment: HL said you had to look at the publication as it would be seen by the ordinary reasonable readerand therefore, it had to be looked at in isolation.Can something count as a comment if presented as an inference/deduction from factual evidence?Historically yes, though note Singh and SpillerBritish Chiropractic Association v Singh [2010] EWCA Civ 350Facts: D wrote an article in which through deduction, he presented certain statements about the(in)effectiveness of chiropractic treatment. At first instance, it was held that to qualify as fair comment, thestatement had to be a statement of opinion, not a statement of fact, even if the statement of fact ispresented as a conclusion from other facts.Judgment: The CA failed to specifically deal with this point but allowed the defence of fair comment.Notes:With regards to malice, it is clear Singh holds these opinions but it is possible the newspaper editor mightnot have the defence available. This was not explored.One thing the CA focused on here was the context of the debate. CA seemed to be saying that in this kind of(epidemiological)area, the debate is necessarily about matters of opinion. So even though CA says it’s verymuch based on the facts, it suggests courts are going to be open to recognise as comments, things whicharen’t expressly flagged up as being comments. So it seems that while it’s got to be a statement of opinion,you don’t need to preface it expressly as long as the nature of the subject matter shows it’s your opinion.Spiller v Joseph (2010) (UKSC)Here, again the court doesn’t specifically deal with this question. However, Lord Phillips says he is doubtfulthat presenting something as a deduction from true facts is enough to make it qualify as a comment. (In thecase, the defence of fair comment was allowed)FairThere seem to be 2 strands to this 1. Sufficient foundation of fact a. Unclear exactly how much foundation. London Artists indicates that it must be enough for a person to reach the same conclusion as the actual defendant. It is emphasised that fair comment should allow for people to be prejudiced. 2. Factual foundation must be identified a. Unclear as to the degree of identification.It used to be thought that you had to set out the factual foundation in sufficient detail to allow the reader to decide whether they agreed with the opinion.
  • 80. b. SC in Spiller v Joseph said that the test now is simply that you might identify at some general level the factual basis of the comment. i. Allows people to comment on public events or occasions. One of the examples given is people commenting on the performance of contestants of a reality TV show the next day. So if something is publicly (well-)known, you’re not required to set out the factual basis for your comment in detail.Matter of public interestWell-expressed in London Artists. Public interest is to be understood broadly and even extends todevelopments in show business.London ArtistsvLittler [1969] 2 QB 375Facts:D wrote and published a letter suggesting the claimants had taken part in a plot to force the end ofthe run of a successful play with D was producing. D alleged that C1 had written on behalf of all fourclaimants of the case identical notices to leave the cast. The defendants pleaded fair comment and qualifiedprivilege.Judgment: The defence of fair comment failed (The fate of plays publicly performed and the comings andgoings of the actors are matters of public interest on which fair comment can legitimately be made.However, the facts on which that comment is based must be truly stated, and an allegation that there is aplot between the principal actors to end the run of a play is not a comment but a statement of fact whichmust be justified.) Qualified privilege failed as the publication was not privileged.Notes:Lord Denning: Three points on the defence of fair comment - Was the comment made on a matter of public interest? - In order to be fair, the commentator must get the facts right - Were there any facts on which a fair minded man might honestly make such a comment?Comment must not be maliciousMalice in this context merely means that D does not hold the opinion he expresses. (It had a differentmeaning in the rest of defamation) See SinghDefamation Act 1952 s 6– “In an action for libel or slander in respect of words consisting partly ofallegations of fact and partly of expression of opinion, a defence of fair comment shall not fail by reasononly that the truth of every allegation of fact is not proved if the expression of opinion is fair commenthaving regard to such of the facts alleged or referred to in the words complained of as are proved”(D) QUALIFIED PRIVILEGE(i) Common LawToogood v Spyring (1834) 1 CM & R 181 – For a statement to be privileged it must serve the "commonconvenience and welfare of society" and be "fairly warranted by any reasonable occasion or exigency",
  • 81. meaning that there must be a duty to publish to the particular audience which, in turn, must have acorresponding interest in receiving the material.Notes: The general idea behind qualified privilege is that the person disclosing it has some sort of legal ormoral duty to publish it. More recently, there is this idea of the Reynolds defence which isn’t strictlyqualified privilege but more generally, a defence that the information published is in the public interest.Reynolds v Times Newspapers Ltd [2001] 2 AC 127Facts: D had published an article in Ireland stating that Reynolds, the former Irish Prime Minister, had misledthe Irish Parliament. This article was subsequently published in the UK but did not include the explanationthat Reynolds had given for the events, which had been printed in the original article. Reynolds brought anaction for defamation. The defences of justification and fair comment were unavailable, given the factualnature of the article. The question for the HL was whether the defence of qualified privilege should beextended to cover the mass media.Judgment and Notes: In his judgment, Lord Nicholls provided a list of 10 criteria against which attempts touse the Reynolds defence should be judged:“The elasticity of the CL principle enables interference with freedom of speech to be confined to what isnecessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, intoday’s conditions, to the importance of freedom of expression by the media on all matters of publicconcern. Depending on the circumstances, the matters to be taken into account include the following. Thecomments are illustrative only. 1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true. 2. The nature of the information, and the extent to which the subject-matter is a matter of public concern. 3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect. 6. The urgency of the matter. News is often a perishable commodity. 7. Whether comment was sought from the claimant. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary. 8. Whether the article contained the gist of the claimant’s side of the story. 9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact. (HL indicates that a sensationalist tone would count against D) 10. All the circumstances of the publication taken as a whole, including the timing.The list is not exhaustive. The weight to be given to these and any other relevant factors will vary fromcase to case. Any disputes of primary fact will be a matter for the jury, if there is one. The decision onwhether, having regard to the admitted or proved facts, the publication was subject to qualifiedprivilege is a matter for the judge. This is the established practice and seems sound. A balancingoperation is better carried out by a judge in a reasoned judgment than by a jury. Over time, a valuablecorpus of case law will be built up.
  • 82. In this particular case, the HL felt the standards hadn’t been met. Crucially, the source of the allegationwas one of C’s political rivals that bore him an obvious grudge. Secondly, the article in the Englishedition did not contain C’s version of events. Thus, it did not satisfy the requirements of responsiblejournalism. By contract, the Irish version did. It explained Reynolds’ side and wasn’t completely relianton this biased source of information.Jameel v Wall Street Journal Europe SPRL [2007] 1 AC 359Facts: This concerned a publication in the European edition of the Wall Street Journal. The WSJ reportedthat the Saudis were cooperating with the US in the investigation of terrorism and had thus frozen theaccounts of various Saudi companies, naming some in the article.Judgment:Lords Bingham/Hope: reciprocity between duty and interest was essentialLords Hoffmann/Hale: Reynolds was not a privilege but a new public interest defenceHale: it is not useful to analyse the case in terms of a duty/interest; it is in truth a defence of publication inthe public interestHoffmann: the categories of responsible journalism are not tests to passPer curiam: You don’t have to show that the specific defamatory allegation is a matter of public interest. It’senough if you show that he subject matter of the story is a matter of public interest.Further developments since JameelA key development is this idea of ‘reportage’; it gives a defence to someone who has simply reported whatsomeone else has said in a neutral tone, provided the defendant has not adopted the allegation beingreported.It is important to realise that the repetition rule still applies however, you can make a clear, balanced, andneutral report of allegations made in the public interest and provided the allegation is not adopted, the dutyto verify the underlying truth is less pressing.Malice - If malice is shown on the part of the defendant, the privilege is lost - Malice for qualified privilege means that your predominant motive was not to perform the duty underlying the privilege. - This is likely to have little relevance to the Reynolds privilege - The Reynolds privilege simply addresses the single question of whether a responsible journalist would see publications as justified, true, or falseHorrocks v Lowe [1975] AC 135Per Lord Diplock: QP is lost on occasions where it is misused – malice is one of these occasions The motive with which the defendant on a privileged occasions made a statement is crucial
  • 83. The speech at the meeting was upon matters of local concern, and the evidence of malice was a ‘lack of apology’ The lack of apology is a tenuous evidence of malice, for it is consistent with a continuing belief in the truth of what one has said The crucial finding is the belief in truth – thus there can be QP Defence operating here(ii) Statute/ReportsDefamation Act 1996 s15s15 is structured in a particularly unusual way. It gives a defence of qualified privilege to 2 distinct categoriesof publications. Essentially, it’s concerned with reports of public proceedings/meetings/events. But it splitsthose public events into 2 categories. One category gains the defence of qualified privilege simply by fallingw/in the list of requirementse.g. reports on shareholders meetings count as being protected by qualified privilege.2nd cat only counts as being protected by qualified privilege provided C has been given the opportunity toreply.e.g. reports of proceedings in overseas legislatures are protected by qualified privilege but only providedyou offer C the opportunity to comment/reply and you publish that comment with the report.One particular issueMcCartan Turkington Breen (a firm) v Times Newspapers Ltd [2001] 2 AC 277S15 gives qualified privilege to reports of public meetings. While a press conference isn’t a public meeting inthe obvious sense of the word, the fundamental purpose is to publicise things being said.HL said that a press conference was ‘an important vehicle for promoting the discussion and furtherance ofmatters of public concern’ and thus can be afforded QP under statute.(E) ABSOLUTE PRIVILEGEThis arises only in narrowly defined circumstances and applies irrespective of D’s mental state. There are 2broad categories in which it works 1. Statements made in court (whether by judges, witnesses, representative, or parties) 2. Bill of Rights 1689, art 9 which provides that free speech in parliament should not be questioned outside of it.Defamation Act 1996 s 13This gives an option to wave parliamentary privilege. It essentially exists to allow MPs to sue.There is one other exception outside these two;Chatterton v Secretary of State for India in Council [1895] 2 QB 189
  • 84. This seems to cover communications made by one high level official to another. (Here, it was between thesecretary of state for the colonies to the undersecretary; i.e. a minister to his deputy) Here, the courts saidthe defence of absolute privilege should apply. However, this has been rejected in subsequent cases.Ultimately, it’s a powerful defence available in narrow circumstances.(3) Remedies(A) COMPENSATORY DAMAGESCourts and Legal Services Act 1990 s 8This was introduced to regulate damages as it was felt juries were awarding them too generously. Under s8,CA has the power to substitute its own award for a jury’s award. It was hoped that by doing this and byemphasising the importance of the right to freedom of speech, that the general level of the awards wouldbe brought down.JohnvMGN [1996] 2 All ER 35Claim by sir Elton against ‘the mirror’ in which the jury had awarded very high damages. CA said the awardwas too high and should be reduced and in the future, jurors should be told to think about the comparableawards for personal injury damages.For instance, LordBingham giving the leading judgment, talked about the kinds of awards that would bemade for non-pecuniary loss where you had for instance, loss of a limb or permanent disability. And thatthese kinds of awards should not be lower than the awards made for defamationSo in assessing compensatory damages, juries and indeed judges now have totake into account not onlywhat they think the extent of the loss might be but also if you like, consistency across the law.Consider awards for serious and even less serious injuries and try to ‘even out’ the awards.(B) EXEMPLARY DAMAGESCan damages be punitive? One of the situations where exemplary damages can be awarded is wherethere’s some proof that D calculated that it was profitable to commit the tort.(C) MITIGATIONWhat can a defendant do to keep the award level down?Scott v Sampson (1882) 8 QBD 491Whilst D is allowed to show C already had a bad reputation, D is not allowed to prove that C has done thingsthat means he deserves to have a bad rep. So if you sue for defamation, and you’ve got some nasty secretsin your past that people don’t know about, D isn’t entitled to bring that up.That’s an important restriction not only in itself, but also, because it has a profound effect on theway thedefence of justification operates. Recall, we discussed there’d be a conflict b/w parties as to how the wordswould be interpreted.
  • 85. The rule in Scott means that there’s an incentive for D to give words the widest meaning possible. So it’salmost strange that it’s often D arguing for a wide meaning as they have evidence of some wrongdoing by aC so they want a wide meaning. They can’t use it under mitigation because of Scott so they can only bring itin under the defence of justification. So they’ll say the words have a broad meaning which includes the kindof stuff we have information on.(D) OFFER OF AMENDSDefamation Act 1996, ss 2-4A new statutory mechanism. Essentially, it’s s2-3 that focuses on the question of an offer of amends as aremedy. s4 provides that if you’ve been offered amends (d has offered tomake amends in some way, andyou’ve rejected it) that can be a defence for D provided D neither knew nor ought to have known that thematter was defamatory.(E) INJUNCTIONSDealt with in seminar 16 on remedies in general14. Privacy(1) No right to privacy in English lawMalone v Metropolitan Police Commissioner [1979] Ch 344 – The police wire tapped the defendantwithout authority from any statute and convicted him of an offence on the basis of evidence obtained asa result of the wiretap. It was held that he had no right to privacy to be protected.Though there was no general right to privacy, there was a patchy but somewhat effective coveragethrough torts such as trespass, nuisance, defamation and the harassment (after the act and Wilkinsonbefore it). There wasn’t complete coverage though and the notable gaps are highlighted in the twocases below.Kaye v Robertson [1991] Fleet Street Reports 62Facts: C was an actor who had a bad accident and suffered brain damage or some other serious injury.Reporters from a tabloid newspaper get into his room despite sign saying no visitors etc. However, helets them in so there’s no remedy in trespass. They then interview him and they publish the interviewand pictures as being an exclusive in the Sunday sport.Judgment: in the CA, C wins using malicious falsehood and it was the fact that D said they’d obtained hispermission for the exclusive that was the falsehood. It caused him damage as it would put off othertabloids from potentially bidding for his story.
  • 86. Notes:We can see the basis for the decision doesn’t go to the heart of the problem as really, he wasinjured and wanted to protect the fact that he’d been disturbed while resting in this bad state.Other torts were tried and failed; defamation, trespass to the person (flash), tort of passing off (requiresC to show there’s been some confusion in the market created by D’s act)Importantly, the CA remarked that it seemed to be a shame that we don’t have a tort to do with privacythat could give C the right kind of remedy.A rather different attitude towards a tort of privacy is taken in Wainwright.Wainwright v Home Office [2004] 2 AC 406 (Lord Hoffmann)Facts: Concerned the claimants being stripped searched when visiting someone in prison. Besidesclaiming under Wilkinson, they sought to claim a tort of invasion of privacy committed against them byvirtue of the strip-search.Judgment: Hoffman rejects this idea that we need a general tort of privacy. He’s unconvinced by the UScomparative materials that have been produced. For him, it seems the importance of protecting privacyis something the law of tort should bear in mind as it develops its own autonomous categories oftortious liability. He’s against creating or recognising a new tort.Notes: However, in other strands of privacy, broadly, dealing with unwanted publishing, we have seen alarge expansion of protection of privacy through the expansion of the tort of breach of confidence.The main reason the courts have expanded the tort of breach of confidence to provide a remedy forbreach of privacy is to do with the influence of the convention rights. The courts are clear to say thatthey aren’t compelled to act in this manner due to the HRA but rather, are simply taking account ofconvention case law.(2) Breach of confidence protecting privacy before the HRA 1988Note: 3 elements to the classic tort of breach of confidence. (i) element of confidence, (ii) obligation ofconfidence, (iii) unauthorised use of the confidential information (element, duty, breach)Woodward v Hutchins [1977] 1 WLR 760 (Denning)Facts: The claim here is in respect of a book written by a man who used to be the tour manager of acollective of pop musicians including Tom Jones (Woodward. Jones is his stage name) one incidentconcerns tom jones being drunk and unpleasant on a commercial airliner.Judgment:CA says there’s no tort committed in respect of that info because it’s not confidential. All thepeople on the flight had the chance to see jones behaving in this way.
  • 87. Notes:So it seems that for information to have this element of confidence, it has to be secret or at leastknown only to a very small number of people.Something private on the other hand doesn’t necessarily need to be known to a small number ofpeople. So this idea of confidentiality seems to mean something narrower or at least different to whatprivacy means.Stephens v Avery [1988] 1 Ch 449Facts: C and D were close friends who freely discussed matters of a personal nature on the basis that itwas secret and disclosed in confidence. D passed on to a newspaper, details of the plaintiffs sexualconduct. C brought an action claiming damages on the grounds that the information was confidentialand was knowingly published in breach of the D’s duty of confidence. The defendants applied to strikeout the claim as disclosing no reasonable cause of action but the master refused. The defendantsappealed.Judgment: Held, dismissing their appeal, that although the courts would not enforce a duty ofconfidence relating to matters which had a grossly immoral tendency, information relating to sexualconduct could be the subject of a legally enforceable duty of confidence if it would be unconscionablefor a person who had received information on the express basis that it was confidential subsequently toreveal that information to another. The defendants had not shown that there was no legal basis for theplaintiffs claim.Notes: So while the typical example of an obligation of confidence is in the commercial context,particularly with regards to trade secrets and the like, it is clear it can potentially arise in othercircumstances.(3) The transformation of the traditional tort of breach of confidence(A) THE TRANSFORMATION IN CAMPBELL V MGNCampbell v MGN [2004] 2 AC 457 (Lords Hoffmann and Hope, Lady Hale)Facts: Naomi Campbell is spotted and photographed, coming out of a narcotics anonymous meeting, bythe paparazzi. The photos are published along with a story and the complaint is about the disclosure in‘the mirror’.Judgment:Rather helpfully, the elements of that story are broken down into 4 separate bits by HL. (i) Alleges the fact of the addiction (ii) Alleges she’s being treated for drug addiction (iii) Show’s that she’s attending NA
  • 88. (iv) Information is given about the treatment methods used at NAIn relation to the first 2 aspects of that story, the fact of the treatment and the fact of the addiction,Campbell accepts they were entitled to publish it as it’s exposing her previous lie about not being a drugaddict.The Issue then becomes whether there should be liability in relationship to the other 2 elementshighlighted namely, the details of treatment and a photograph of her leaving NA.The majority hold there is liability (3-2 split); minority being Lords Hoffman and Nicholls.Even though it’s a split decision, all the members of the HL agree on the basic principles to be used indeciding cases like this. Oliphant is probably right to say Nicholls’s speech is the most helpful.Nicholls explains the tort of breach of confidence has expanded to the extent that it’s not appropriate totalk about a tort of breach of confidence in a sense. He says it’s more accurate to think of it as themisuse of private information. He says there are 2 stages to assessing whether this tort of misuse ofprivate information has occurred. (i) Whether there is a reasonable expectation of privacy. If so, you then go on to consider whether there are factors that outweigh that expectation of privacy (stage 2) (ii) Proportionality (typically balancing expectation of privacy with freedom of expression)Lord Nicholls says you can’t presume that one prevails over the other. These rights are of presumptivelyequal weight. So what you’ve got to look at is the extent of the interference with the privacy and thenature of the speech being set up against it.Nicholls point here is that because it was justifiable to publish the fact of addiction and the fact thatshe’s receiving treatment, the rest just follows from it.Note:With regards to the reasonable expectation of privacy, this was not really elaborated. Lord Nichollssuggested the test was whether the publication would be highly offensive to C. - Threshold requirement for the tort would depend on sensitivity of C - You run together the 2 questions Nicholls had been careful to sort out - It might mean that someone’s expectation reduced over timeLady Hale suggests focusing on whether the person publishing the information knew or ought to haveknown it was private - The same information could be legitimately published by one person but not by another.Later cases have made it clear it is an objective test about the reasonable expectation of privacy whichthe law might protect.
  • 89. (B) EXPECTATION OF PRIVACYThe test for the (reasonable) expectation of privacyAuthor of a Blog v Times Newspapers [2009] EMLR 22The court declined to restrain a newspaper from revealing the identity of a blogger, which it haddeduced from publicly available sources, because that information did not have about it the necessaryquality of confidence, nor did it qualify as information in respect of which the blogger had a reasonableexpectation of privacy, essentially because blogging was a public activity.The court adopted a two-stage approach when addressing claims based upon the publication ofallegedly private information in contravention of the European Convention on Human Rights 1950 art.8,asking whether the claimant had a reasonable expectation of privacy in relation to the particularinformation in question and, if so, whether there was some countervailing public interest such as tojustify overriding that prima facie right. The test for privacy was an objective one.The problem with a subjective test is further highlighted by;Murray v Sunday Express [2008] EWCA Civ 446Facts:C here is J.K Rowling’s child aged 19th months and the claim is based on a photo taken with a longranged lens of him being pushed in his pram.It’s a striking out application.Judgment: The decision from the CA is that it is arguable that the right to privacy under art8 is engaged.Notes:We may question the type of expectations 2 year olds have about privacy. This in turn may lead us toquestion Lord Nicholls formulation as he surely couldnt have intended to get witness statements from 2year olds. Indeed, in some ways we’d think the child’s privacy is particularly worth of protection asthey’ve had such little choice as to whether to expect this attention.So it seems to be an objective test and in a sense ‘more objective’ than other tests in that it shouldn’ttake C’s age into account in deciding what the reasonable expectation is. So this idea of the reasonableexpectation is a theme that comes through in the cases but we have to interpret intelligently. It’s anormative, objective test. Not one that turns on asking C what they’d actually expect and if answer isnothing they lose protection.(C) THERE ARE CASES WHERE CERTAIN COMPETING INTERESTS OUTWEIGH THE EXPECTATION OF PRIVACYNote: It is clear that public interest can outweigh the expectation of privacy (Woodward, Campbell). Butwith this test we’re focusing on balancing rights and the typical countervailing right is freedom of speech(Article 10)
  • 90. S12 of the HRA seems to tilt the favour a little bit towards freedom of speech and freedom of press.However, that doesn’t mean the burden is always on the claimant.HL in Campbell said you don’t treat all types of speech in the same way. Lady Hale suggests a sort ofhierarchy. Political speech is at the top of the list and is most likely to outweigh the right to freedom ofprivacy. While idle celebrity gossip will be significantly further down.As we get further down the list, the courts seem to be looking at the degree of interference with theright to privacy as compared with the rights to freedom of speech. With regards to things less thanpolitical speech;Murray v Sunday Express (CA)It is worth noting that the courts have taken a strong view when it comes to protecting the rights ofchildren. Besides the fact that we’re not talking about an individual’s subjective state of mind when weconsider a reasonable expectation of privacy, it seems that it will be relevant at the proportionality stagewith regards to children. In Murray, the CA seems particularly concerned to protect private informationabout children. So it seems that publishing private information about children is less likely to satisfy thattest of outweighing the article 8 rights.Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)Facts:Mosley was exposed as having a Nazi orgy with some prostitutes. The Nazi bit wasn’t true but therest was. It’s not a criminal offence he’s committed but it’s sort of immoral/perverted conduct. Hebrings a claim for breach of confidence. (Or misuse of private information rather)Judgment:Eady J says that exposing perverted conduct is not justifiable in this balance between expectations ofprivacy and freedom of speech as it isn’t in the public interest to have a person’s private, legal (albeitstrange or perverted) sexual habits exposed to the public. (though it could be in the public interest if thebehaviour involved the mocking of jews or the holocaust)Notes:Further, if you look at the most recent cases particularly Murray v Sunday Express, the courts keepsaying you need to weigh all the factors up and that you cannot point to a decisive or conclusive factor.The factors you weigh up would include things like what was previously said or done, the nature of theinvasion, etc…(4) The influence of the European Convention on Human RightsArt 8: Right to respect for private and family life
  • 91. A broader question on the role of HR jurisprudence in this areaIn relation to the Human rights act, courts are clear that if a PA violated your rights, you’d be protected.However, there is this issue of horizontal effect which the courts haven’t quite decided yet. For instance,Campbell couldn’t rely on the HRA as MGN isn’t a public body. However, there’s an argument which saysthat courts are public bodies and as such, have to give effect to individuals convention rights. Theargument means that a court hearing a case between 2 private individuals has to give effect toconvention rights.This is very much an academic argument and the courts still haven’t been able to or wanted to decidewhether it’s true or not.What do the courts say about the role of convention nights in relation to this tort of misuse of privateinformation?They may be to some extent persuaded by Strasbourg but there are passages in some judgments whichsuggest that it’s almost a happy coincidence that English law is being developed at the same time thatart8 rights are being developed in Strasbourg jurisprudence. One future question we might think aboutis how to engage the Strasbourg jurisprudence with English rules grown out of tort of breach ofconfidence.Peck v UK (2003) 36 EHRR 41Facts: The applicant was filmed in a public street on CCTV attempting to commit suicide by slashing hiswrists. Some six months later, the council published pictures of the incident in a report on thepreventative benefits of CCTV where the applicant’s face was not masked. Extracts of the footage werealso shown on regional TV though there, the applicant’s face was masked at the council’s request. Theapplicant sought JR of the council’s decision to release the footage. This was refused along with anappeal. He then applied to the ECHR.Judgment:Following the disclosure of the CCTV footage, the applicants actions were seen to an extentwhich far exceeded any exposure to a passer-by or to a security observation and to a degree surpassingthat which the applicant could possibly have foreseen. The disclosure by the Council thereforeconstituted a serious interference with his right to respect for private life. There were not relevant orsufficient reasons to justify the disclosure by the Council without obtaining the applicants consent orensuring as far as possible that his identity was masked. The applicants subsequent media appearancesdid not diminish the serious nature of the interference. Accordingly, the disclosures by the Council werenot accompanied by sufficient safeguards and they therefore constituted a disproportionateinterference with the applicants rights under Article 8.Notes:So here we note the ECHRs acceptance that certain incidents which take place in public can stillfall within someones private life and for which they can have a reasonable expectation of privacyVon Hannover v Germany (2004) 40 EHRR 1
  • 92. Facts: It’s a claim by the princess of Monaco against Germany on the basis that German law does notadequately protect her privacy. She was photographed doing things such as eating in a privaterestaurant (in English law, we’d probably regard that activity as having a reasonable expectation ofprivacy), picking up her children from school (that part however triggers the children elements and itmay be that for kids there’s a higher expectation of privacy in both English law as well as Article 8Strasbourg jurisprudence), and also, while shopping and being at a public swimming pool. (In Englishlaw, you wouldn’t regard claimants as having a reasonable expectation of privacy when photographed inthe streets going to shop or a public place)Judgment:Yet, in Von Hannover, the state was held to have violated her legal rights by failing to haveadequate protection against the publication of such photographs. (i.e. even the ones of her in publicviolated art. 8)Notes:The point is that even though English law has made significant efforts to align itself with the EUcase law, it’s still not brought itself into perfect symmetry with it.So in the future, inevitably, some kind of decision is going to have to be made about what happens inthese kinds of cases. Particularly in Campbell itself, Hale says a picture of Campbell going to the shopsfor a bottle of milk wouldn’t count as misuse of private information which is exactly contrary to what’ssaid in Von Hannover.(5) Statutory torts/remediesProtection from Harassment Act 2007Thomas v News Group [2002] EMLR 78Data Protection Act 1998, ss 1-2, 13, 32Seminar 15: Vicarious liability(1) RequirementsD1 has committed a tortD1 is D2’s employee (and not an independent contractor)D1’s tort was committed in the course/scope of his employment
  • 93. (2) Establishing an employment relationship: integration testNotes:To tell if someone is in biz on their own account, we have to look at 6 different factors. 1. Control 2. Provision of equipment 3. Provision of helpers 4. Degree of financial risk 5. Responsibility in investment and management 6. Opportunity to profit from sound management (i.e. being in a position where you make big strategic decisions)Market Investigations Ltd v Social Security Minister [1969] 2 QB 173Facts:The particular employee worked as a market researcher. In order to do this, she conductedinterviews with a range of people. Market investigations co provided her with questions they wantedher to ask. Told them what order to ask in and also gave information on how to extract moreinformation from an interviewee.She did however have a degree of flexibility about when to do the work. Simply told to do a certainnumber of interviews by a certain time.Judgment:Held she was an employee specifically because of the very control the market investigationscompany exercised over how she did the job. (Questions, order, methods)Lee Ting Sang v Chung Chi-Keung [1990] 2 AC 374Facts:Concerned a stone mason who worked for a particular subcontractor on short-term jobs. Heprovided no equipment. He was given tools to work with when he got to the building site and heprovided no helpers either. Nor was he responsible for investment and management.Judgment: held that he was an employee. The emphasis there was on the fact that he did not provideequipment and had no responsibility for providing helpers or substitutes if he was ill.Hall (Inspector of Taxes) v Lorimer [1994] 1 All ER 250Facts:D was a vision mixer. Worked about 800 days over a 4 yr period. It was a highly technical, job withregards to production of TV programmes and he worked on a range of projects.He was obviously being told what jobs to do but as a highly skilled individual, he wasn’t being told howto do it. He didn’t provide own equipment or helpers.But, if the production company’s customer failed to pay the production company for the project he’dworked on, he wouldn’t get paid. He was therefore exposed to financial risk.
  • 94. Judgment: That factor was held to be decisive in this particular context in making him an independentcontractor.Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510 (Concerning a ‘borrowed’employee)Facts:Viasystems contracted with Thermal Transfer to install air conditioning in its factory. ThermalTransfer subcontracted ducting work to S & P, who then subcontracted with Cat Metalwork for theprovision of fitters and fitters’ mates, on a labour-only basis. A fitter and a fitter’s mate were supplied byCat Metalwork and worked under the supervision of a fitter from S & P. The fitter’s mate negligentlycaused a flood in the factory. At first instance, only Cat Metalwork was vicariously liable. They appealedcontending Thermal Transfer should be vicariously liable as well.Judgment: The CA held that it was possible for dual vicariously liability to exist. They said it is notnecessary for the ‘borrower’ to have a direct (contractual) relationship of employment with the‘borrowed/ employee. May LJ: Concentrate on the relevant negligent act and see whose responsibility it was to prevent it. Who was entitled and in theory obliged to control the mate? Test is entitlement to control, with an implied obligation to control. The test in respect to a particular act is capacity to control – the party to whom it is fair to impose VL on, despite the liability flowing from the employee Rix LJ: control is important, but not sufficient as a sole test. Consider also integration of the employee into the work business or organisation of the employers. This is because VL involves no fault on behalf of the employer.(3) Course of employment: ‘close connection’ testTextbook by Salmond and the unauthorised mode test.There were difficulties between distinguishing what counts as an unauthorised mode of doing the joband doing something entirely different.Rose v Plenty [1976] 1 WLR 141Facts: The defendant milkman (and indeed all milkmen) had been told not to employ children to helpthem on their rounds. D disregarded the instructions and had hired a 14-year old boy (C) to help him.Due to negligent driving by D, C was injured.At first instance, recovery from the employer was barred as it was decided that it was not even in thescope of D’s employment to hire children and thus, there couldnt be vicarious liability.
  • 95. Judgment: CA said that the scope of the job was to distribute the “milk, collect the money and to bringback the bottles to the van” (Denning) and thus, the employment of C was merely an unauthorisedmode of going about the job rather than outside the scope of D’s employment.Going beyond the unauthorised mode test?More recent cases leading up to Lister started to go beyond the unauthorised mode test. The key case isa decision of the Canadian SC.Bazley v Curry [1999] 2 SCR 534Facts: C had been taken into care by a charitable institution. He was then sexually abused by one of theemployees of the institution.Judgment:Canada SC held that the employer was vicariously liable for that deliberate sexual abuse ofthe boy. They admitted you couldnt justify this by saying what the employee was doing was trying tofurther the business of the employer. Indeed, he was doing the opposite.But they said there are 2 justifications for imposing VL, - Fair compensation (benefit-burden); recognised the charity issue but said you can also characterise this in terms of the employers’ organisation having created the risk of the tort being committed. - Deterrence o As far as deterrence was concerned, SC said it’s important to impose VL so as to give very incentive and encouragement to employers so as to prevent sexual abuse happening in regard of their business o Greater care in training, recruitment, supervision etcThis kind of theoretical explanation of VL was found convincing by HL in ListerLister and the Close Connection TestLister v Hesley Hall Ltd [2002] 1 AC 215Facts: The claimants were residential students at a school for difficult children owned by the defendant.One of the wardens employed by the defendant was sexually abusing the children in his care and waseventually subjected to criminal proceedings. The claimants sought to hold the defendant vicariouslyliable for the harms they suffered as a result of the abuse.Judgment: The HL adopted the ‘closeness of connection’ test to determine whether an intentionallywrongful act by an employee would fall within the course of employment. Here the sexual abuseoccurred on the employer’s premises whilst the employee was engaged in performing his duties ofcaring for the children. As such, there was a close connection between the employment and the abuseso the employer would be vicariously liable. This was particularly so as there was an obvious risk ofsexual abuse in the circumstances so the employer should have been alert to it.
  • 96. Notes:Steyn – the need for the employment to be inextricably linked with the tortClyde – Take a broad approach considering all factors (nature of the act, purpose, context) - The fact that the act is done on the employer’s premises during working hours is helpful but not conclusive - Acts of passion and resentment will often fall outside the scope of employment - (+Millet) The mere fact that the employment has created the opportunity for the tort isn’t enoughHobhouse (dissent on close connection test) – idea of a non-delegable dutyFollowing this expansion of liability, employers have been found liable in subsequent cases forintentional torts of their employees. In Mattis v Pollock. vicarious liability was found where a bouncer,intent on revenge, stabbed a patron of the night club he worked at. Dubai Aluminium Co Ltd vSalaam.[18] established liability for fraud of employees, where it is outside of their duties or authority tomake certain representations.Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 [1]-[36] (Lord Nicholls)Mattis v Pollock [2003] 1 WLR 2158So even though it was an act of resentment/revenge, considering all factors (shows the importance ofthis point from Lord Clyde), because he’d been encouraged by the employer to act in this kind of way, VLwas recognised.Majrowski v Guy’s and St Thomas’ NHS Trust [2007] 1 AC 224 - Clarifies that VL extends to equitable wrongs and breaches of statutory obligations (unless specifically excluded) - It Is perfectly possible to have VL for harrassmentSeminar 16: Remedies(1) Compensatory damages(A) THE PURPOSE OF COMPENSATORY DAMAGESLivingstone v Raywards Coal Co (1880) 5 App Cas 25, 39 (Lord Blackburn): the measure of damages is‘that sum of money which will put the party who has been injured, or has suffered, in the same positionas he would have been in if he had not sustained the wrong for which he is now getting hiscompensation’
  • 97. Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254: in a caseof deceit or negligent misrepresentation C put into as good a position as if no representation had beenmade, but not into as good a position as if the statement had been true(B) POSSIBLE TORT ACTIONS(i) Action by living claimant(ii) Action by administrator of deceased claimant’s estate suing in deceased claimant’s name and provingelements of the claim that the deceased would have had to prove if he were still alive and suing himself:Law Reform (Miscellaneous Provisions) Act 1934, s 1(2)(iii) Action by dependants of deceased suing in their own names to recover the economic loss whichthey personally suffer because deceased will no longer provide for them, but NB their action is alsoderivative in the sense that they must prove the elements of the claim that the deceased would havehad to prove if he had survived and was now suing for personal injury: Fatal Accidents Act 1976(C) DAMAGES FOR PERSONAL INJURY(i) Lump Sums or Periodical Payments?Courts Act 2003, s 100, inserting new Damages Act 1996, s 2Damages Act 1996 s2Periodical payments (as amended by Courts Act 2003 s100) (1) A court awarding damages for future pecuniary loss in respect of personal injury— (a) may order that the damages are wholly or partly to take the form of periodical payments, and. (b) shall consider whether to make that order. (2) A court awarding other damages in respect of personal injury may, if the parties consent, order that the damages are wholly or partly to take the form of periodical payments. (3) A court may not make an order for periodical payments unless satisfied that the continuity of payment under the order is reasonably secure. (4) For the purpose of subsection (3) the continuity of payment under an order is reasonably secure if— (a) it is protected by a guarantee given under section 6 of or the Schedule to this Act,. (b) it is protected by a scheme under section 213 of the Financial Services and Markets Act 2000 (compensation) (whether or not as modified by section 4 of this Act), or. (c) the source of payment is a government or health service body.(to sum up s2(4), continuity of payment is reasonably secure where payment is made by government ora local authority. Private defendant’s security of payment will be established if the private defendantpurchases an annuity)
  • 98. E.g. – Tameside and Glossop Acute Services NHS Trust v Thompstone [2008] 1 WLR 2207 (The 4 claimantswere left brain-damaged after suffering birth-asphyxia as a result of the admitted defendantsnegligence. A periodical payment order was made)(ii) Financial/Pecuniary lossNeed to distinguish between two types of loss. Past financial loss (No significant legal difficulties. Youcan typically recover in full) and future financial loss. (Calculated by multiplying the multiplier by themultiplicand)The multiplier/multiplicand method• Multiplier: figure representing the number of years the loss will continue• Multiplicand: figure representing the annual loss (net of deductions) the claimant will sufferComplicating factors vicissitudes of life acceleration element inflation: Wells v Wells [1999] 1 AC 345 the ‘lost years’: Pickett v British Rail Engineering [1980] AC 136Vicissitudes of lifeBad things might happen to C in the future (reduction in life expectancy or general ability to ensure lifeat the standard assumed); these are termed the ‘vicissitudes of life’ and require that the figure bereduced.Courts and personal injury lawyers use actuarial tables from people concerned with these lifeexpectancy statistics to determine this.Acceleration ElementThe idea that part of the award can be investment and this should count towards the total award.Inflation: Wells v Wells [1999] 1 AC 345Wells v Wells [1999] 1 AC 345The question for the court was how to adjust the award for acceleration and inflation.Accelerated receipt: HL said you assume C will invest their damages in index linked governmentsecurities. They’re adjusted for inflation and they also give a guaranteed return. (3% interest at the timeof the case)
  • 99. That’s a very cautious way to invest money. But HL said it’s appropriate to assume such a cautiousapproach being taken by C. because, a C can’t afford to gamble with the money he needs for basicnecessities and medical care.So, in response to the Wells decision, parliament in the Damages Act 1996 (as amended after wells)fixed the assumed rate of return at 2.5%. (At the time they passed the statute in 2007, that’s what indexlinked government securities were paying)So today, courts assume people will invest in index linked government securities paying 2.5%. In facttoday though these securities pay <1%. So the reality doesn’t reflect what courts are assuming.The ‘lost years’: Pickett v British Rail Engineering [1980] AC 136Taking compensatory awards literally, it’d mean C shouldn’t be compensated for a loss of lifeexpectancy;Pickett v British Rail Engineering [1980] AC 136HL decided they didn’t like a literal mathematical application of multiplier rule. So they said that for theperiod you would have been alive, but now won’t be, you can recover the amount of your earnings thatwould have been spent on your family and your dependants.In order to calculate future financial loss accurately, many complicated mathematical calculations haveto be done. We’re not so concerned with it here. In practice, personal injury lawyers rely on a bookcalled ‘the Ogden Tables’ which set out what the appropriate figures are year by year for Cs of particularages.(iii) Non-financial loss pain and suffering – subjective assessment loss of amenity (not being able to do things you enjoyed) – objective assessmentH West & Son v Shephard [1964] AC 326 &Lim Po Choo v Camden & Islington AHA [1980] AC 174Both cases concerned with people who as a result of D’s negligence went into a coma. By its very nature,it’s clear there isn’t much pain and suffering (besides the initial impact).However, the Loss of Amenity award being assessed objectively, on the basis of what you’ve actuallybeen deprived of, would be high. Because of course in a coma, you can’t do anything.So you can get non-pecuniary damages for pain and suffering and loss of amenity, but how do you valueit?There are 2 main books. - Kemp and Kemp on personal injury damages. Created to try and get judicial consistency. - Judicial bodies something guidelines on something (check) (for np damages)
  • 100. So we have a way of ascertaining what judges have awarded in previous cases. But that doesn’tnecessarily reflect what people place on loss and suffering.Heil v Rankin [2001] QB 272LC in previous report had proposed that damages for non-pecuniary injury should be increasedsignificantly. Part of its argument for doing so was that in Northern Ireland where jury awards were stillused till the 80s, non-pecuniary damages were a lot higher. The LC said that this illustrates that theEnglish courts damages awards have sort of fallen out of sync/failed to keep up with public perceptionsabout the value of pain and suffering.CA in Heil said it might be right so we shall increase awards but not as much as LC wanted. For smallawards (under 10k), no increase. For awards at the top, we’ll increase by a third. And for awardsbetween 10k and the top (didn’t get a figure but probably 6 figures) but the increase should be tapered.At *99+, they say there’s no need to do this again. This is a one-off. That could be right, maybe there’s noneed to do it again. But if you look at the case, it’s quite interesting to see what they say about NorthernIreland. Namely, that jury awards, and ordinary people’s perception of pain and suffering is a lot higherthan the judges perception of what it should be.(D) AGGRAVATED DAMAGESTo compensate for additional pain, suffering, and distress, caused by the manner in which the tort wascommitted. Initially had a narrow scope. E.g. Richardson v Howie [2005] PIQR Q3 but has since beenwidened.Rowlandson v Merseyside Police [2007] 1 WLR 1065Facts:C was being disturbed by noisy neighbours and called the police. When they arrived, for somereason there was an altercation between the policeman and C. The officer clapped C in handcuffs infront of her family, took her into police car and to the station. She was then charged with obstructing apolice officer. A charge she was then acquitted of and it was found that the officer invented thesupposed events.Judgment: CA awarded damages for the torts against her, including the battery in dragging her to thecar. They held that aggravated damages could be awarded. Her anxiety caused by the tort had beenincreased by the way the tort had been committed.Notes:This case indicates the potential scope of an award of AD.Finally, it is worth reiterating out that aggravated damages are a form of compensatory damages.Choudhary v Martins [2008] 1 WLR 617
  • 101. C was repeatedly harassed etc… amongst other things by D. At trial, the judge made an award forpsychiatric injury and a separate award for injury to feelings which reflected the aggravating aspects ofthe case.This suggests that normally, you can just bundle up the aggravated damages with other non-pecuniarydamages. So often, you can just make one award which includes all the non-pecuniary loss under oneheading.(2) Non-compensatory damages(A+ B) NOMINAL DAMAGES AND CONTEMPTUOUS DAMAGESNominal – An award for no loss with regards to a tort actionable per se (battery, defamation)Contemptuous – where C has technically suffered loss due to a tort but the court (or jury in defamation)is trying to express its contempt for the claim being brought.Grobbelaar v News Group Newspapers Ltd [2002] 1 WLR 3024 The claimant was the subject of accusations of match fixings, and brought an action for defamation. Held that the claimant was entitled to £1 damages, the lowest sum possible.(C) EXEMPLARY DAMAGES (PUNITIVE )Rookes v Barnard [1964] AC 1129Exemplary damages are anomalous in tort but have too much history to get rid of it.However, we can confine it to 2 categories. i. Where D is a public body/authority and acted in an arbitrary and oppressive manner in committing the tort. ii. Where D calculates that if he commits the tort and has to pay compensatory damages, he will still make a profit. o Particularly suited to defamation; highlighted by Cassell v Broome [1972] AC 1027 o Concerned publication of book. HL confirmed that exemplary damages where D calculated he’d make a profit for committing tort were appropriate. Also said that a court had to be satisfied before making an exemplary award that a compensatory award wasn’t accurate.Kuddus v Chief Constable of Leicestershire [2002] 2 AC 122Clarifies that exemplary damages can be recovered even for torts where it hadn’t been recognisedbefore 1964 as long as It fits into one of the 2 categories.
  • 102. (D) RESTITUTIONARY DAMAGES‘a monetary remedy that is measured according to the defendants gain rather than the plaintiffs loss.The plaintiff thereby gains damages which are not measured by reference to any loss sustained. In someareas of the law this heading of damages is uncontroversial; most particularly intellectual property rightsand breach of fiduciary relationship.’The basis for restitutionary damages is much debated, but is usually seen as based on denying awrongdoer any profit from his wrongdoing. The really difficult question, and one which is currentlyunanswered, relates to what wrongs should allow this remedy.Ministry of Defence v Ashman (1993) 66 P & CR 195Abstract: A person entitled to possession of land may claim against a person who has occupied itwithout consent damages assessed on a restitutionary basis, by reference to the proper letting value ofthe property for the relevant period. D2, a Flight Sergeant in the RAF, was permitted by P to occupymarried quarters with his wife D1 and their two children and signed a certificate that he was entitled tooccupy the property only so long as he remained a serving member of the RAF living with his spouse,and that he would be required to remove his family from the accommodation if he ceased to live withhis spouse. In February 1991 D2 moved out, leaving D1 and their children in possession. They were givennotice on March 14, 1991 to vacate by May 16, 1991, but did not do so because they had nowhere elseto go. At the time D2 moved out his quartering charge was GBP 95.41 a month; but on May 17, 1991 aseven-day notice was served on D1 asserting for the first time the right to claim damages for trespass atGBP 108.93 per week. In November 1991 the judge made an order for possession and adjourned theclaim for mesne profits. In March 1992 one of Ds children got married and left home, and D1 receivedan offer from the local authority of a two-bedroom flat at GBP 33.44 a week which she accepted. Shevacated the married quarters on April 26, 1992. At the hearing of the claim for damages evidence wasgiven for P that a quartering charge is fixed by starting with a notional rent calculated by reference to anational average of local authority housing rents and then deducting 42 per cent; that where there isunauthorised occupation P seeks to recover on the basis of a market rent; and that the market rent inthis case was GBP 108.93 per week. The judge noted that he found the evidence of open market rent"totally compelling and persuasive", but found that, in taking possession of the married quarters, P hadacted on a clear and unequivocal assurance that the charge was calculated by reference to the averageof local authority rents, and that it was not open to P to disregard that assurance and seek to claim ahigher rent.Held, allowing Ps appeal and remitting the assessment of damages to the county court, that (1) thefinding of estoppel could not be sustained; (2) L was entitled to recover damages assessed on arestitutionary basis by reference to the proper letting value of the property to D1 for the relevantperiod; and (3) whilst in an ordinary case and a free market the proper letting value of the propertywould be the value to the trespasser of its use, such value could in the unusual circumstances of thepresent case reasonably be assessed by reference to what D1 would have had to pay for suitable localauthority accommodation
  • 103. (3) Injunctions(A) TYPES OF INJUNCTION (1) final/perpetual (given at the conclusion of a trial. Affects the future) (2) interim (essentially to keep everything the same until trial) (3) mandatory and prohibitory (4) quia timet (= ‘because s/he fears) (because you fear D will commit the tort against you. So its given to stop the act that will amount to the tort)(B) GENERAL PRINCIPLES(i) inadequacy of common law remedyE.g. damages may not be adequate for on-going events (e.g. nuisance)(ii) clean hands: Measure Bros Ltd v Measures [1910] 2 Ch 248 (general principle of equity)(iii) delay & acquiescence(iv) equity will not act in vain: AG v Observer Ltd [1990] 1 AC 109(the book ‘spycatcher’ was easilyavailable in the US and even reviewed in other English newspapers)(v) public interestDennis v Ministry of Defence [2003] 2 EGLR 121 (the case concerning the person who lives near anairfield) highlights the way the courts are taking account of the public interest in an activity continuingto not grant an injunctionMiller v Jackson [1977] QB 966 The public interest, which requires young people to have the benefit ofoutdoor games, may be held to outweigh the private interest of neighbouring householders who are thevictims of the balls therefrom, so as to prevent the grant of an injunction, even if the sportsmen areguilty of negligence.Kennaway v Thompson [1981] QB 88The case concerned powerboat racing in the lake district. Here, the court allowed the continuation ofsome powerboat racing but limited the number of races that could be held each year. It even limited thenumber of races that could be held involving the boats with the biggest engines which were particularlynoisy.This case is particularly useful as it highlights how the courts have the power to tailor injunctions togrant what’s called an injunction on terms where you allow the nuisance creating activity to continuebut only to a certain extent or at particular times on in a particular way; so it’s possible for courts to bequite creative in deciding how to use injunctions.(C) SPECIAL RULES FOR DEFAMATION
  • 104. Bonnard v Perryman [1891] 2 Ch 269eA case where a 7 member CA, specially convened for the purpose holds that the importance of Freedomof Speech is such that interim injunctions for defamation (injunctions preventing publication until trial)should not be permitted in cases where D pleads a valid defence. (e.g. truth, justification, qualifiedprivilege) or, where D contests that the words have a defamatory meaning.So that in effect makes it very difficult to get an injunction to restrain publication of defamatorymaterial.So if D then loses at trial, court can of course award a final injunction stopping publication ever again.