2005
LLB 2660001 BSc Accounting with Law / Law with Accounting 2770201 BSc Management with Law / Law with Management 2770201
This subject guide was prepared for the University of London External System by:
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Ian Yeats, MA (Aberdeen), BCL, MA (Oxford), Barrister, Senior Lecturer in Law, Queen Mary College, University of London. Paula Giliker, MA (Oxon), BCL, PhD (Cantab), Barrister at Law, Fellow and Senior Law Tutor, St Hildas College, Oxford. Mary Luckham, LLB, Assistant Director, University of London External Laws Programme
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This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide. If you have any comments on this subject guide favourable or unfavourable please use the form at the end of this guide.
Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press University of London 2009. Reformatted and reprinted 2010 Printed by Central Printing Service, University of London All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.
Law of Tort
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Contents
1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1.1 1.2 1.3 1.4 1.5 Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . . . . 3 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . . . 6 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5.4 The liability of inspectors and other regulators . . . . . . . . . . . . . . . . 58 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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9.4 Intentionally causing nervous shock . . . . . . . . . . . . . . . . . . . . 113 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
12 Defamation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 152 12.1 General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 12.2 What does the claimant have to prove? . . . . . . . . . . . . . . . . . . 155 12.3 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 12.4 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
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1 Introduction
Contents
1.1 1.2 1.3 1.4 1.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Definition, aims and functions of tort . . . . . . . . . . . . . . . . . . . 3 Sources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Recommended reading . . . . . . . . . . . . . . . . . . . . . . . . . . 5 How to use this subject guide . . . . . . . . . . . . . . . . . . . . . . . 6 The examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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Introduction
Tort is a branch of the civil law (as opposed to criminal law) based on a claim that the defendant has caused injury or loss to the claimant by breaking a relevant obligation imposed by the general law. This definition tells you nothing about what conduct is tortious. You will understand that only when you know what counts as injury or loss and what obligations the law imposes. Very broadly, tort law is one of the methods by which people who have suffered injuries are compensated. It deals with whether losses should lie where they fall or should be transferred to someone thought to be to blame (not necessarily in a moral sense) for what has happened. Of course the person to blame will often be insured or will be a large company or government department and so the losses will often be spread more widely. For example, when a person is injured by a careless motorist, the motorists insurance company will pay the damages and the ultimate costs of the accident will fall on the general community who pay insurance premiums. Broadly speaking, the law of tort took its present shape in the nineteenth century although of course it has developed considerably since then. Those interested in a historical introduction may refer to Lunney and Oliphant pp.117; Winfield and Jolowicz pp.4450.
describe the relationship between tort and certain other branches of law explain the relationship between different torts and the bases of liability in each tort identify the principal policy difficulties with the contemporary law of tort identify and describe the sources of law relevant to tort.
On the impossibility of a definition of tort see Murphy (2003) p.3: Winfield and Jolowicz (2002) p.4; on the aims or functions of tort see Winfield and Jolowicz (2002) pp.117; Markesinis and Deakin (2003) pp.17 and 3741.
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what interests are being protected and against what sorts of interference (see below).
For example, the tort of defamation (see Chapter 12) protects the distinct interest of reputation: in respect of some elements liability is strict and in respect of others liability depends on proof of fault.
strict (e.g. consumer protection legislation): liability does not depend on proof of fault on the defendants part based on negligence by defendant based on intentional conduct by defendant based on the ultimate motive or purpose of the defendant (rare in English law).
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How should the law of tort relate to alternative sources of compensation? (See Winfield and Jolowicz pp.2043 and Markesinis and Deakin pp.4454.) The main sources are the social security system and insurance either by potential claimants (e.g. life insurance) or by potential defendants (e.g. car insurance). You are not expected to know the details of these systems but their existence affects (and perhaps should affect more) the content of tort law, and the relation between different sources of compensation is relevant to the calculation of damages (see Chapter 13). How far should liability be based on fault? (See Markesinis and Deakin pp.4144). To what extent should public bodies be liable for failures in regulatory systems? (See Chapter 5).
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1.2 Sources
In your study of this subject, you will have to consider the following sources of law.
Cases
Most of the law of tort is judge-made and is to be found in reported cases. This process is continuing and you should think about the direction in which the courts are moving as well as the content of decided cases (see, for example, the developments in relation to economic loss, in Chapter 5). In answering a question, as in advising a client or employer, you have to be able to judge how a court might decide a future case as well as describing what has been decided in past cases. You should also consider how appropriate judge-made law is as a source of new developments. Compare the willingness of the courts to be creative in relation to economic loss (see Chapter 5) and their refusal to be so in relation to environmental protection (see Chapter 11). Some cases are merely illustrations and applications to particular facts of well-established principles: they can be used as illustrations in handling problem questions in examinations. Other cases are the source of important principles: the judgments are discursive, discuss issues of policy and suggest lines of development for the future. These cases have to be studied with more care. The ability to identify important cases increases with experience, but you can be guided by the way in which particular cases are discussed in the textbooks.
Statutes
Some statutes replace or partly replace areas of the common law (e.g. Occupiers Liability Acts 1957 and 1984); some provide additional protection over a wide field (e.g. Consumer Protection Act 1987); some effect minor amendments only.
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They may apply an existing tort. If a public authority in England kills someone (contrary to Art 2) or tortures someone (contrary to Art 3) this plainly falls within the existing English law of tort. They may modify an existing tort. For example, Art 2 requires the state to provide protection against being killed and Art 3 requires the state to provide protection against inhuman and degrading treatment. An existing English tort may have to be modified in order to provide the necessary protection. See in particular Chapter 5. They may create a new right of action in damages: this is analogous to the existing tort of breach of statutory duty. This is discussed more fully in Chapter 7. It should be noted that section 8 of the Human Rights Act 1998 provides that a person is not entitled to an award of damages merely because a public authority has acted unlawfully under the ECHR, and the court has a discretion to decide whether an award is necessary in a particular case.
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Markesinis and Deakin Tort Law. (Oxford: Clarendon Press, 2003) fifth edition [ISBN 0199257124 (hbk); 0198762933 (pbk)]. Murphy, J. Street on Torts. (London: Butterworths, 2003) eleventh edition [ISBN 0406946825]. Rogers, W.V.H. (ed.) Winfield and Jolowicz on Tort. (London: Sweet & Maxwell, 2002) sixteenth edition [ISBN 0421768606]. These are quite lengthy and explore topics in greater depth and with more background than is essential, and also cover topics which are not included in your syllabus. Reference may also be made to: Howarth, D. Textbook on Tort. (Oxford: Hart Publishing, 2005) second edition [ISBN 0406959463]. Useful collections of cases and materials: Hepple, Howarth and Matthews Tort: cases and materials. (London: LexisNexis, 2000) fifth edition [ISBN 0406063265]. Lunney, M. and K. Oliphant Tort Law; Text and Materials. (Oxford: OUP 2003) second edition [ISBN 0199260559]. Weir, T. A Casebook on Tort. (London: Sweet and Maxwell, 2004) tenth edition [ISBN 0421878800]. Shorter and/or more introductory books include:
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These give an overview of the subject and its role but are not sufficiently detailed to serve as textbooks. A stimulating socio-legal work which addresses many of the policy issues (see Policy questions, section 1.1.2 above) is:
Cane, P. Atiyahs Accidents, Compensation and the Law. (Cambridge University Press, 2004) sixth edition [ISBN 0521606101].
although it is not suitable as a textbook. It would be sensible to buy one of the standard textbooks referred to and, especially if you do not have access to a library, one of the casebooks. Many cases are decided each year on this subject: you will find helpful notes on recent cases in the leading academic journals such as:
the Modern Law Review (MLR) the Law Quarterly Review (LQR) the Cambridge Law Journal (CLJ).
These journals may also contain general articles of interest. Judges increasingly make reference to such articles in developing principles in new or difficult areas of law. Such articles also frequently draw attention to the way in which particular problems are dealt with in other countries with similar problems.
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Problem questions
You will be given a set of facts and either asked to advise one or more of the characters or to discuss issues of tortious liability which arise. You must avoid simply identifying the subject matter of the problem (for example, negligent mis-statements) and writing all you know about it. Before writing, you should analyse the facts carefully to work out the relation between the parties and the legal issues to which they give rise. You can then select the legal principles which are relevant and marry the facts and the legal principles into a logically structured answer. You do not literally set out your answer in the form of advice but you must remember that you are solving a problem and not simply writing an account of a particular area of law. Most problems contain at least some issues where the law is not entirely clear; you have to identify these and suggest the solution to which you think a court will be likely to come and give your reasons for doing so. Problem questions seldom relate only to material in a single chapter. You may expect to have to answer questions that involve more than one tort or involve issues that are discussed in different chapters. In this guide specimen questions are not found at the end of every chapter.
Essay questions
Such questions rarely ask for a straightforward account of a particular topic. They ask you to write critically about a particular topic, to compare one topic with another, to suggest reforms and improvements, to analyse the reasons which lie behind particular areas of law and so forth. In both kinds of question the most common error is irrelevance. You must identify the precise issues(s) raised and direct your answer to it (them).
Why critically? Because the examiners want to see if you understand the subject well enough to write about it as a lawyer would sometimes a particular point of view has to be argued and sometimes you have to write from both sides of the issue.
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Notes
Contents
2.1 2.2 2.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Structure of the tort . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Organisation of the chapters . . . . . . . . . . . . . . . . . . . . . . . 11 Policy questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Introduction
Negligence is the most important modern tort: its study should occupy about half the course. It is important because of the great volume of reported cases and because it is founded on a principle of wide and general application. This chapter explains the basic structure of the tort and describes the organisation of the material in subsequent chapters.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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understand that the tort of negligence is structured on the concepts of duty of care, breach of duty and resulting non-remote damage indicate some of the social and policy questions that have influenced the development of the tort of negligence.
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This sentence encapsulates the traditional tripartite structure of negligence as a tort. It is not enough to show that defendant was careless: the tort involves a breach of duty that causes damage that is not too remote. Each of the emboldened words will in due course require detailed examination. The successful claimant in a negligence action must establish three propositions: a. that the defendant owed the claimant a duty of care. The claimant will in some circumstances be the only person to whom the duty was owed (a surgeon and patient for example): in others the claimant will be a member of a very large and possibly ill-defined class of persons to whom the duty was owed (a car driver and other road users). b. that the defendant broke the duty of care. This means that the defendants conduct fell below the standards that the law demands. c. that as a result of the breach the claimant suffered damage of a kind that the law deems worthy of compensation. However these propositions are not rigidly separate. They are convenient for the purpose of explaining the law, but they overlap to a great extent. Occasionally, but not very often, a court will indeed explicitly organise its judgment under these three headings. There is an example in Al-Kandari v Brown [1988] QB 665, referred to in Chapter 4. In other cases however a judge might on the same set of facts deny liability on the grounds that no duty was owed and another deny liability on the grounds that, although a duty was owed, it had not been broken. An issue such as the scope of liability for economic loss has sometimes been regarded as part of the duty question and sometimes as part of the remoteness of damage question. You will find other examples where a single set of facts can be analysed in different ways.
Chapters 3 (duty and breach) and 4 (causation and remoteness of damage) offer a general overview of the tort of negligence, illustrated mainly, but not exclusively, by cases involving careless conduct giving rise to death, personal injuries or damage to property. Chapter 5 deals with more complex areas that have been the subject of much litigation in recent decades: liability for careless advice or information; liability for psychiatric injuries and for purely economic damage; liability for failures to take action to avoid harm; liability for failures of supervisory or regulatory functions. Chapter 6 deals with the liability of two particular categories of defendants: that of occupiers towards those on their premises, and that of employers towards their employees.
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The underlying idea in a negligence action is very simple. If the claimants injuries result from behaviour that falls short of socially acceptable standards, then there should be compensation. If they do not, then the victim should bear the loss without compensation. Since carelessness is not generally criminal, the tort of negligence is the means by which the law attaches consequences to unacceptable behaviour. Lord Diplock once described negligence as the application of common sense and common morality to the activities of the common man (Doughty v Turner Metal Manufacturing Co [1964] 1 QB 518, noted in Chapter 4). In a number of recent cases the House of Lords has based its conclusions for or against liability by reference to what people generally would regard as fair. See for example Alcock v Chief Constable of South Yorkshire (Chapter 5) and Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52, [2004] 1 AC 309 (Chapter 3). The public view of what is fair may change over time. One question to consider is how far the law correctly reflects a public sense of fairness. One consequence however of the emphasis on fault is uncertainty. It may be difficult to get agreement as to whether the defendant was careless, and entitlement to substantial compensation may depend on the strength of the evidence before the court or (since all except a very tiny proportion of negligence claims for personal injuries are settled by negotiation or agreement) the strength of the bargaining positions of the parties. The ability to obtain compensation may also depend on the financial resources available to the defendant. A high proportion of successful claims are in areas (medical, road and industrial accidents for example) where defendants are either rich or are insured. One purpose of the tort might be thought to be to enforce standards of good behaviour: to deter people from being careless. In many situations the deterrent effect is limited. Car drivers are likely to drive carefully because of a fear of death or injury, or of prosecution resulting in fine or imprisonment. Fear of a civil action for damages hardly figures, since the damages will come from an insurance company (although admittedly the driver may find insurance more expensive or even impossible in future).
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There is a way in which liability in negligence does indeed affect behaviour and may force defendants in ways that are arguably not to the general benefit. Courts are increasingly aware of the so-called compensation culture, the desire to identify someone who is able to pay for injuries. The fear is that there will be a defensive reaction that drives out many socially useful activities. Schools may stop arranging excursions for pupils for fear of claims by injured pupils. Institutions such as homes for the elderly or nurseries for children may close if the costs of liability insurance become prohibitive. There may be other defensive consequences. Family doctors may refer too many healthy patients to specialists to protect themselves against negligence claims, thereby adding to the costs of the health service and delaying appointments for patients in need of specialist services. As a recent example of a judicial fear of the compensation culture, see Tomlinson v Congleton Borough Council [2003] UKHL 47: [2004] 1 A.C. 46 (Chapter 6).
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Activity 2.1
Write down brief notes on what Tomlinson v Congleton Borough Council [2003] tells you about the effects of compensation culture. You will return to this case in Chapter 6: you will find an easy introduction to the ideas of compensation culture in the speech of Lord Hoffmann.
Conclusion
You should bear the contents of this chapter, particularly the policy issues that keep arising in negligence claims, as you study the chapters that follow.
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Notes
Contents
3.1 3.2 3.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Duty of care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Functions of the duty concept . . . . . . . . . . . . . . . . . . . . . . 18 Breach of duty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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Introduction
This chapter introduces the first two elements in establishing an action in the tort of negligence. Did the defendant owe the claimant a duty to take care? Was the defendant in breach of that duty?
Learning outcomes
By the end of this chapter and associated readings, you should be able to:
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explain the concept of duty of care and its purposes identify the various tests that have been suggested for the existence of a duty of care discuss the duty concept in the context of some particular situations, namely, controlling others, duty of lawyers and duty to unborn children describe the standard of care required of defendants both in general and in respect of particular skills
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Essential reading
Markesinis and Deakin, pp.8595, 167184 Murphy, pp.171181, 231263 Winfield and Jolowicz, pp.103134, 190208 Lunney and Oliphant, pp.90100, 107129, 139187.
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First, by a majority, the House of Lords recognised a new relationship as giving rise to a duty of care, that between manufacturers and the ultimate consumers of manufactured products (in this particular case a bottle of ginger beer). This is sometimes called the narrow rule in Donoghue v Stevenson: it still survives but has in practice been superseded by a new kind of liability established in the Consumer Protection Act 1987 (see Chapter 8). Secondly, Lord Atkin enunciated a broad principle of liability. A duty was owed to persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected He described such people as my neighbours: so his definition of the duty is called the neighbour principle.
Four tests: The neighbour principle A revised test (Lord Wilberforce) The current test: foresight, proximity and fairness An alternative test: assumption of responsibility
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b. A revised test There were many developments in the law of negligence in the years following that decision. These led Lord Wilberforce to redefine the neighbour principle. He turned it into a two-stage test in Anns v Merton London BC [1978] AC 728 at 75. The first question was whether there was a sufficient relationship of proximity or neighbourhood such that in the reasonable contemplation of the defendant carelessness on his part may be likely to cause damage to the claimant. If so, a prima facie duty of care arose. The second question was whether there were any considerations which ought to negative or reduce or limit the scope of the duty of care or the class of persons to whom it was owed. This test came under criticism in the following years as being too expansive and indeed the Anns case was itself overruled in 1991 (see Chapter 5). c. The current test: foresight, proximity and fairness The test is now stated in this form. The claimant has to show three things if there is to be a duty of care:
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It was reasonably foreseeable that a person in the claimants position would be injured. There was sufficient proximity between the parties. It is fair, just and reasonable to impose liability.
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There is no single case identified with this test, but one of its best expositions is in Caparo Industries v Dickman [1990] 2 AC 605. There is a particularly helpful discussion of the test by Bingham LJ in the Court of Appeal in the same case: Caparo Industries v Dickman [1989] QB 653 at 678-680. Notice that the decision of the Court of Appeal in that case was overruled by the House of Lords. For details, see Chapter 5.
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These three tests are very similar. In particular, notice that:
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They are very general. It is possible to understand what they mean in practice only after studying a number of illustrative cases. Policy considerations are explicit in the second and third tests, but are implicit in Lord Atkins test as well. Notice his use of ought and reasonably. There is a large moral component to his test. It is not just about what can be foreseen, but about what ought to be foreseen. These tests are of most use when the law is uncertain. These are concepts that judges use when deciding whether or not a duty of care ought to be recognised in new situations. Once a duty situation is recognised, the test in a sense drops out of the picture. So, in an examination context, there is no need to go through the Caparo test unless either the situation is a novel one, where there are no clear precedents, or you are trying to argue that the law ought to be changed (as was done by the House of Lords in respect to the liability of lawyers; see Duties of lawyers in 3.2.1 below). If the question you are answering is about a motorist knocking down a pedestrian, the duty of care is established by many previous cases and there is no need to go through the tests for establishing a duty afresh.
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d. An alternative test: assumption of responsibility For some purposes, an alternative test has been developed, namely whether there had been a voluntary assumption of responsibility by the defendant for the claimant. This test is particularly used in cases of liability for omissions, for mis-statements and for economic loss as discussed in Chapter 5.
Is there a duty at the abstract level (the notional duty or duty in law): e.g. does a motorist owe a duty of care to other road users? Or do barristers owe a duty of care to their clients? Is the particular claimant within the scope of the duty of care (duty in fact or the problem of the unforeseeable claimant): e.g. was this particular road user owed a duty by this particular motorist?
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Notice that many commentators prefer to treat the second question duty in fact either as a matter of breach of duty or as a matter of remoteness of damage. Some cases then are clear. Users of machinery, etc., on the roads, on building sites, in workplaces owe a duty of care to those likely to be affected. So do doctors, nurses, dentists, hairdressers, etc., providing services to the public. Below there is a series of illustrations of the application of the concept of duty of care, in situations where there has been doubt. More complex and developing examples are discussed in Chapter 5.
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C (Claimant)
X (Third party)
Proposed action
D (Defendant)
Examples of this problem would include the following: a. Should a school (or a parent) owe a duty of care to passing motorists to see that a child does not run out of the school and cause an accident? b. Should a host at a party owe a duty of care to prevent a guest driving home drunk and injuring a pedestrian? c. Should a car owner owe a duty of care to keep it locked up to prevent a thief stealing it and knocking down a pedestrian?
In the diagram above X is the child, the guest and the thief. As a general rule English law does not impose a duty, reasoning that the fault is that of X and not that of D. But exceptionally a duty may arise. In deciding whether a duty of care arises, it is relevant to ask:
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What is the relationship between X and D? Does D have some responsibility over X? What is the relationship between C and D? Does it involve some obligation on Ds part to protect C against harm?
See Home Office v Dorset Yacht Co [1970] AC 1104; Carmarthenshire County Council v Lewis [1955] AC 549; Topp v London Country Bus (South West) Ltd [1993] 1 WLR 976; AttorneyGeneral of British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR 1273. The issues discussed in this paragraph are similar to, and overlap with, issues discussed later in this guide: (a) whether the act of X amounts to a new and intervening cause breaking the link between C and D (see Chapter 4); (b) whether D can be liable for an omission to act where he fails to take steps that would prevent X from causing harm (see Chapter 5). The issues discussed in this paragraph must be distinguished from the question of vicarious liability (see Chapter 13). This paragraph concerns the primary liability of defendants for their own tort in failing to control others. In vicarious liability the defendant is liable for a tort committed by someone else. In the Dorset Yacht case both
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ideas are present. The Home Office were vicariously liable for the torts of the borstal officers. But the borstal officers were not vicariously liable for the torts of the boys: they were primarily liable for their own torts in allowing the boys to escape and cause harm. In the Hartwell case both vicarious liability and primary liability were considered as alternative causes of action. A very similar problem arises where in effect C and X are the same person. In the examples given above would the school, host or car owner owe a duty of care to the child, guest or thief? How far should defendants have to protect claimants against their own folly? Of course there are many cases where the defendant has specifically accepted responsibility for the safety of others, but the principle may extend further than that. See: Jebson v Ministry of Defence [2000] 1 WLR 2055.
Duties of lawyers
Lawyers of course owe a duty of care to their clients, but until recently it was thought that no duty was owed by barristers (and later solicitors also) in respect of work closely connected with the presentation of their case in court. Putting it in terms of the Caparo test, it would be said that, while there was foresight and proximity, it was not fair, just and reasonable to impose liability. The House of Lords has now decided that in contemporary conditions there are no policy reasons sufficient to justify this immunity and it should be abolished: Arthur J. S. Hall v Simons [2002] 1 AC 615. The circumstances in which a duty is owed and the scope of the duty are considered by the House of Lords in Moy v Pettman Smith (a firm) [2005] UKHL 7: [2005] 1 WLR 581.
Activity 3.1
Examine the reasoning of the House of Lords in Hall v Simons. What policy reasons previously were thought to justify the immunity? Why are those policy reasons no longer thought enough to justify it?
You should think about the ethical reasons for the childs inability to claim negligence and for the reluctance in most cases to allow the parents to claim.
where the child is healthy and is being raised in a loving family (McFarlane) where the child is disabled (Parkinson) where the child is healthy but the mother did not want children because of her own disability (Rees).
See McFarlane v Tayside Health Board [2000] 2 AC 59; Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530: [2002] QB 266; Rees v Darlington Memorial Hospital NHS Trust [2003] UKHL 52: [2004] 1 AC 309.
Law of Tort 3 Negligence: duty of care and breach of duty Novel situations
Other examples of cases where the courts have had to decide in novel situations whether they should hold that there was a duty of care are: Mulcahy v Ministry of Defence [1996] QB 732 (liability of injuries to soldiers on active service; Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607 (liability of rugby referee to injured player).
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Activity 3.2
a. How do the tests of a duty of care in Donoghue v Stevenson, Anns v Merton London Borough Council and Capro Industries v Dickman differ? In what respects are they similar? b. D is gardening at the front of her house. She goes into the house to pour herself a drink and leaves a spade lying in the garden. X, a passer-by, picks it up and attacks C, Ds neighbour. Is D liable to C? (In answering this question, think about various possibilities as to who X is, which might affect your answer.) c. To what extent is there (and should there be) liability: iv. if a person negligently injures a pregnant woman and the child is born dead v. a doctor negligently fails to identify a risk that a foetus has been damaged and does not suggest an abortion: the child is born disabled vi. a mother takes drugs throughout pregnancy: the child is born with a severe problem of drug dependency. g. Clarissa thinks that she may be pregnant and consults a pregnancy advisory service. They confuse her records with those of another client and inform her that she is not pregnant. By the time she discovers that she is pregnant, it is too late for an abortion. Advise her.
Summary
There is no liability in negligence unless there is a duty to take care. This establishes the necessary link between the claimant and the defendant. Such duties are widely recognised. In cases of doubt the modern test is whether there was foreseeability and proximity and it was fair, just and reasonable to impose the duty.
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The Glasgow Corporation case is a good illustration of the point made in Chapter 2 about the artificiality in many questions of looking separately at the three issues of duty, breach and damage. In this case there was only one simple question. Should Mrs Alexander, the manageress of a teashop, have told her child customers to stand outside while two people carried an urn of hot tea through the shop? The answer depends on what dangers a reasonable person would have expected and what steps (if any) such a person would have taken to avoid them. Lord Macmillans words are appropriate whether you think of this primarily as a question of breach of duty or as a question of remoteness of damage.
For one thing, there is sometimes doubt as to exactly what skill or qualifications the defendant professes to have.
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For another, there may be doubt as to whether a large group (say car drivers or doctors) should be sub-divided into smaller categories for the purpose of comparison with reasonable members of the group.
In the examples that follow it is more important to understand the reasoning and how it might be applied in other contexts than to know whether a particular defendant was or was not held to be negligent on a particular set of facts. Defining the group In these cases the problem was one of defining the group to which the defendant belonged: Phillips v Whiteley [1938] 1 All ER 566. Did the defendant, who had pierced the claimants ears, have to show the care of a reasonable surgeon or of a reasonable jeweller? In Shakoor v Situ [2000] 4 All ER 181 there is an interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England? Many cases involve car drivers. The only standard of care is that of a reasonable driver, whether the actual driver is highly experienced, newly qualified or even just a learner. It is irrelevant that the learner driver defendant was doing as well as she could, given her lack of experience, if a reasonable driver would have done better: Nettleship v Weston [1971] 2 QB 691.
Ask yourself what conclusion the judge reached, and why he did do so.
Medical negligence
A large number of the cases involving special skills concern medical negligence. The defendant is to be compared with a reasonable person of the same specialism and status: a general practitioner is not judged by the same standards as a consultant cardiologist and so on. There is a special problem with medical defendants (and to some extent with members of other professions). There is often no single right way of proceeding. Faced with a particular patient, one doctor might recommend surgery, but another might recommend treatment with drugs. The courts do not insist that one of these approaches must be right and the other wrong: they require that the defendant has acted in a way that would be supported by a body of respectable medical opinion. This is sometimes called the Bolam test as set out in that case. This test allows the medical profession to some extent to determine appropriate standards for itself, but the courts reserve the right to strike down a medical practice as unreasonable (as explained in Bolitho). Other examples of the application of this principle are: Whitehouse v Jordan [1981] 1 WLR 246; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634; and Wilsher v Essex Area Health Authority [1987] QB 730. (This is the decision of the Court of Appeal. The case went to the House of Lords, but only on the issue of causation and not on the issue of breach of duty (see Chapter 4).) The most controversial application of the Bolam test occurs where it is alleged that the doctor failed to give the patient sufficient warning of the risks of the proposed treatment (or possibly of the risks of not having the treatment). English law in principle applies the Bolam test and asks whether the information given was in accordance with what a respectable body of medical opinion would have done, but Australian courts have taken a view more generous to the patient and ask what a reasonable patient would expect to be told. See Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871 and Rogers v Whitaker (1992) 175 CLR 479. The English approach is sometimes criticised as showing a doctor knows best attitude and ignoring the autonomy of the patient. The professional bodies now encourage greater openness and encourage doctors to explain the advantages and disadvantages of particular treatment unless there is a good reason for not doing so. It will now be more difficult for a doctor to argue that a reluctance to be open about the advantages
You should read and make notes on: Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 Bolitho v City and Hackney Health Authority [1998] AC 232
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and risks of treatment is in accordance with medical opinion. For a more recent example, although it is principally concerned with causation issues (see 4.1.1), see Chester v Afshar [2005] UKHL 1 AC 134. If you are considering a claim for the consequences of medical treatment, you should think of different ways of presenting the argument. Most cases are based on the idea that the individual doctor (or nurse, etc.) is negligent and that the health authority or private hospital is vicariously liable. For the details of vicarious liability, see Chapter 13. In some cases it may be appropriate to consider arguing whether the health authority or hospital is itself negligent, e.g. by entrusting a procedure to an inappropriately junior doctor, or by overworking its staff so that they are too tired and make mistakes. The approach described in medical cases would certainly apply to professions similar to medicine, such as dentistry or physiotherapy. The extent to which the courts will be willing to defer to professional opinion in other professions is less certain, although it is likely to apply in all cases where different members of the profession might reasonably take different views. For the example of solicitors, see Edward Wong Finance Co Ltd v Johnson, Stokes and Master [1984] AC 296, and of rugby referees, see Vowles v Evans [2003] EWCA Civ 318: [2003] 1 WLR 1607.
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Summary
The actual defendant is to be compared with how a reasonable person would have acted in the same circumstances. Where a particular skill (driving for example) or professional expertise (medical for example) is involved, the appropriate comparison is with a person with the same skill or expertise.
Activity 3.3
a. What is the level of the duty of care to be shown by: a newly qualified solicitor a learner driver a 12-year-old child?
b. What standard of care would have to be shown by Deirdre, an ambulance driver, (i) when taking a seriously ill patient to hospital and (ii) when driving her family to the seaside in the family car? c. D is a general practitioner. He prescribes certain tablets for his patient C, who is very fat. A recent article in a specialist journal of cardiology has suggested that there may be some risks in giving these tablets to overweight patients. C has a heart attack. Is D liable? d. D parks his car on a hill and walks away. Shortly afterwards, the car moves off downhill and strikes C. It is not clear why this has happened. Advise C.
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 3.1 3.2 3.3 Duty of care Functions of the duty concept Breach of duty Revision done
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Notes
Contents
4.1 4.2 4.3 4.4 4.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Causation: special problems: multiple causes . . . . . . . . . . . . . . . 34 Remoteness: the basic rule . . . . . . . . . . . . . . . . . . . . . . . . 38 Qualifications of the basic test . . . . . . . . . . . . . . . . . . . . . . 39 New and intervening cause . . . . . . . . . . . . . . . . . . . . . . . . 40 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
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Introduction
Negligence is one of those torts in which damage must be proved (see Chapter 1). Once a breach of duty has been established, the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue). You will understand what is meant by sufficiently closely connected in the particular context of negligence after studying this chapter. Causation and remoteness are the essential links between the breach of the obligation imposed by law and the damage. It is commonly said that causation is essentially a factual and logical question, but that remoteness is a legal question, based on policy considerations about the appropriate extent of a defendants liability. In broad terms this is true, but Lord Hoffmann has recently stated that the rules laying down causal requirements are creatures of the law and that it is possible to explain their content on the grounds of fairness and justice in exactly the same way as the other conditions of liability (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 at [54]). You must therefore consider the policy reasons behind most of the decisions in this chapter.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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state and explain the basic rule defining the causal link between the breach of duty and the damage identify the causal link that has to be established in hypothetical situations identify circumstances in which the basic rule produces unacceptable results and may have to be modified explain the policy considerations underlying those modifications explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence identify the policy reasons for choosing that rule of remoteness explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant.
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Essential reading
Markesinis and Deakin, pp.185214 Murphy, pp.264280 Winfield and Jolowicz, pp.209247 Lunney and Oliphant, pp.188252.
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4.1 Causation
Causation is relevant to all torts in which proof of damage is essential. The problem is usually discussed in detail in the context of negligence, but the principles apply more broadly, and some of the cases referred to in this section involve claims in other torts as well as in negligence. You must always remember to link the tort (i.e. the breach of duty in the case of negligence) and not merely the defendant to the damage. An example will illustrate the importance of this. A baby has brain damage: it has recently been vaccinated. If there is a claim for compensation, it will always be necessary to establish (on scientific evidence) that the vaccine caused the damage. If the claim can be brought within a tort of strict liability (see Chapter 1 for definition), nothing more need be proved in terms of causation. This is not so if the claim is in negligence, e.g. alleging that a doctor in breach of the duty of care failed to carry out proper tests to discover whether the baby had an allergy to the vaccine. It will then be necessary, in addition to showing that the vaccine caused the damage, to show that the breach of duty caused the damage. If the proper tests carefully administered would not have revealed the allergy, then the baby would still have been damaged and the breach of duty would not be a cause of the brain damage. You will find that the causation issue sometimes (though exceptionally) gives rise to difficult questions, but the underlying idea is very simple. We use the language of causation every day without much difficulty, and we understand that the language of causation is used in different ways in different contexts. We may for instance say, I was late for work to-day because the 7.30 train was cancelled. Here we know that the cancellation made lateness inevitable. But we do not know for certain that we would have been on time if the train had been running. Something else might have happened to delay us. On the other hand we often hear about research into the causes of disease. Advertisements for cigarettes may carry a warning that smoking causes lung cancer, but we know that here there is no inevitability: many non-smokers develop cancer and many smokers do not. We need more information before we can talk of the cause of the disease in any particular sufferer. You should make use of your knowledge of the ordinary usage of the language of causation in analysing problems.
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i. There may be doubt about what the natural course of events would have been if the defendant had behaved properly.
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For example, the defendant doctor failed to diagnose the claimant as having an illness in need of treatment. Was it so serious that the defendant would have died even if the proper diagnosis or treatment had been given? See: Barnett v Kensington and Chelsea Hospital [1969] 1 QB 428. The claimant fell overboard into icy water. The defendants rescue effort was inadequate. Would the claimant have perished in the cold water before even a competent rescuer could have saved her? See: The Ogopogo [1971] 2 Lloyds 410.
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ii. There may be doubt about how the defendant would subsequently have behaved if he had done what he should have done in performance of the duty.
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Look again at Bolitho v City and Hackney Heath Authority [1998] AC 232 (see Chapter 3). You will see that the doctor in breach of her duty failed to attend a patient, but she successfully argued that the action she would in fact have taken if she had attended would not have been negligent (because it was in accordance with a respectable body of professional opinion) and would not have saved the patient. The child would therefore still have been dead even if she had performed her duty by attending. Therefore her culpable failure to attend was not a cause of the death.
iii. There may be doubt about how the claimant would subsequently have behaved if the defendant had done what should have been done.
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The defendant doctor may have failed to warn the patient about the risks of treatment: would the patient have decided to have the treatment anyway? If so, the failure to warn cannot be a cause of the damage if one of the risks occurs. The defendant employers may have failed to provide safety equipment for their employees: would the deceased employee have used it if it had been provided? If not, then the failure to provide it was not the cause of the injuries. See: McWilliams v Sir William Arrol [1962] 1 All ER 623. This issue has recently been considered by the House of Lords in Chester v Afshar [2004] UKHL 41 [2005] 1 AC 134 where a majority of the House of Lords took a view very favourable to the claimant. You must address the policy reasons for this view. The surgeon had advised the claimant to undergo surgery but in breach of duty had failed to advise her of the risk. The claimant did not show that she would probably never have had the operation, but she did show that she would have taken her time and consulted friends and therefore would not have had the actual operation on the particular day that she did have it. The House of Lords held that she had therefore established that the breach of duty was a cause of her injury. Notice however that the sort of injury was something that happened on very rare occasions for no very obvious reason. The result would surely have been different if the injury had been due to some previously unknown peculiarity of the claimant, so that it might well have happened to her even if the operation had been postponed and performed on a different day.
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Note that in cases (ii) and (iii) it is particularly important to scrutinise the evidence given by the defendant and (if living) the claimant because their view of how they would have behaved may be coloured by what has now happened. It may seem harsh that the claimant in McWilliams had to prove that the deceased would have worn the safety harness if it had been provided, but it should be noted that the evidence was in fact very strongly to the effect that it was highly unlikely that he would have done so. iv. There may be doubt about how other people would have behaved if the defendant had done what should have been done. Here the test may be different, and this will be considered shortly.
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Activity 4.1
a. C steps into the road immediately in front of a car: the driver is exceeding the speed limit and talking on her mobile phone. C is struck and injured. Is D liable for the injuries? b. C collapsed with chest pains. D did not call an ambulance, but gave C a large glass of brandy. C dies. What more do we need to know in order to establish the cause of Cs death? c. C is employed by D. D in breach of duty has stopped providing safety helmets because they were rarely worn. C falls to the ground and suffers serious head injuries. Advise C. In all of the cases in (i) to (iii) the normal but for test seems to be applied, but
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explanation may be that what was in question was how other people (e.g. the prospective employer in Spring) would have behaved, and there would be no evidence on this point. It may be therefore that in cases under (iv) above the damage is properly to be regarded as the loss of a chance, and that it is not necessary to prove on a balance of probabilities that the other people would have behaved in a particular way. The decision in Hotson is consistent with an earlier decision of the Court of Appeal in Cutler v Vauxhall Motors [1970] 2 All ER 56. The defendants injured the claimant who as a result had an operation for varicose veins. He would, more likely than not, have required such an operation in a few years time even if the injury had not occurred. Therefore the majority of the court held that the operation was not caused by the defendants breach of duty. Students often unthinkingly misapply this case. It can be relevant only where the damage is a one-off event such as an operation from which the claimant fully recovers. If the breach of duty causes the claimant, for example, to lose a leg which would probably have had to be amputated in a few years anyway, the claimant is certainly entitled to damages at least for the additional years without a leg.
Activity 4.2
C, aged 21 and in her final year at university, is swimming in a council swimming pool. She suffers cramp and starts to drown. The lifeguard employed by the council is not at his post. C is eventually rescued but has suffered brain damage and will need constant care. It is possible that, if the lifeguard had been there, she would have been rescued in time to prevent the brain damage. It is possible that she would have had an excellent degree and realised her ambition of working as a solicitor in a large City firm. Advise C.
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2nd event
The damages in the box marked 1 are attributable only to the first event, those in the box marked 2 only to the second event. The problem lies with the damages in the shaded area, since either the first or the second event would, in the absence of the other, have brought about that damage. One thing is clear. If the first event is a natural occurrence such as a disease, then the tortfeasor responsible for the second event takes the victim as he finds him i.e. as a person earning 15,000 per year and cannot be liable for the damages in the shaded area. But what if the first event was a tort and the claim is against that tortfeasor? Does the tortfeasor continue to be liable for the loss in the shaded area even after the occurrence of the second event, which would independently cause the same loss? The House of Lords has considered this problem in Baker v Willoughby [1970] AC 467 and Jobling v Associated Diaries Ltd [1982] AC 794. It is best to start with Jobling. He had been injured in an industrial accident and permanently disabled. Some years later, before damages had been assessed, he was found to be suffering from a disabling disease that rendered him unfit for work. The House decided that the defendant was not required to compensate for the losses after the onset of this disease. The House was critical of (but did not overrule) the earlier decision in Baker. Bakers leg had been permanently damaged in a road accident. He had to change his job and was shot by robbers (who were of course tortfeasors but were never found) and as a result his leg was amputated. The House had held that the damage was not subsumed in the new tort, but the negligent motorist continued to be answerable for the damage to the leg (and its continuing economic and other consequences). There would be an obvious harshness if Baker were to lose his damages because he was the victim of two torts and not just one, but it is not easy to formulate a principle explaining why Bakers claim was not extinguished, but Joblings was. It is necessary to stress again that both cases were concerned with continuing liability for the consequences of the original injury and not with liability for the additional consequences of the second injury. It was not for instance argued that the defendant in Baker was liable for the amputation. We will consider that kind of situation later.
Damages are assessed once and for all so that if they are calculated and the case disposed of by settlement or by litigation before the second event occurs, the assessment will not be reopened (see Chapter 13, Section 13.3.2 Principle 4).
Activity 4.3
C is knocked down by D, a careless motorist. Because of his injuries he has to give up his job as a financial analyst and is unemployed. He is walking on the beach when he is struck by a freak wave. He suffers severe head injuries that would make him unemployable. Advise C.
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Activity 4.4
a. Did the claimant win or lose on the causation issue in each of the following cases: McGhee, Wilsher and Fairchild? b. Consider the following statements: i. The claimants injuries were certainly caused by a tortious breach of duty. ii. The claimants injuries were certainly caused by the defendant. Which of these statements are true of the facts in the three cases mentioned in question (a)? Feedback: You will find a helpful list of factors near the beginning of Lord Binghams speech in Fairchild. You should then match this list against the facts of the other cases.
state and explain the basic rule defining the causal link between the breach of duty and the damage identify the causal link that has to be established in hypothetical situations identify circumstances in which the basic rule produces unacceptable results and may have to be modified explain the policy considerations underlying those modifications.
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Summary
The fundamental rule is that the tort must cause the damage, i.e. if the tort had not occurred the claimant would not be in the same position. This must be shown on a balance of probabilities. There are however difficult situations where there are competing causes and the fundamental rule has to be abandoned or modified in order to prevent injustice.
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Activity 4.5
Why did Viscount Simonds say that the test of remoteness should be foresight and not directness? Are his reasons justified?
where (i) the defendant is in breach of duty to the claimant and (ii) it was foreseeable that the claimant would suffer some physical injury and (iii) the particular claimant has a particular susceptibility or abnormality and as a result suffers more serious injury or injury of a different type from that which was foreseen, then the defendant is liable for that further injury.
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The obvious situation is this: the defendant has carelessly struck the claimant on the head. It is foreseeable that the claimant will suffer cuts and/or bruises. The particular claimant however has an exceptionally thin skull (an egg-shell skull) and sustains a fractured skill and serious brain damage. That was not foreseeable, but the defendant is still liable for it. There is a good example in Robinson v Post Office [1974] 2 All ER 737. Notice that this case involves both a true causation point and an egg-shell skull point. The defendant was liable for the negligent grazing of the claimants shin. The claimant had an unforeseeable allergy. The hospital administered an antitetanus injection without carrying out the appropriate tests. Robinson had an allergy to the injection and the reaction caused brain damage. There were two elements to the decision:
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The evidence was that, even if the proper tests had been carried out, the allergy would not have been detected. Therefore the hospitals negligence was not a cause of the brain damage (i.e. the but for test (see 4.1.1) was not satisfied. Once the hospitals negligence was out of the way, the allergy was the equivalent of an egg-shell skull and, though it was unforeseeable, the defendant was nevertheless liable for it.
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c. Financial weaknesses What happens if the claimant has a financial rather than a physical weakness? If the defendant injures a claimant who happens, however unforeseeably, to be a leading soccer star whose career is ruined, then the defendant has, as with the eggshell skull cases, to take the victim as he finds him, i.e. to compensate the claimant for his actual loss. What has to be foreseen is physical injuries that were result in loss of employment. Once that has happened, the defendant has to compensate for the actual loss suffered. The position used to be less clear where the claimant suffers additional damage because of poverty. The leading case was Liesbosch Dredger v SS Edison [1933] AC 448 and many attempts have been made to explain and distinguish it. The House of Lords has however now decided that dicta in the Liesbosch case should not be followed. See also Lagden v OConnor [2003] UKHL 64 [2004] 1 All ER 277 [see from [45]-[62]).
C (injured)
X (intervening conduct)
D (negligent)
D negligently collides with Cs car and injures him. On the way to the hospital the ambulance driver X crashes into a tree and causes C severe injuries. Or at the hospital a nurse Y administers to C the wrong dose of the drug and causes brain damage. Or a patient Z goes berserk and stabs C repeatedly. Is D liable not only for the original
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Note: This is a striking example of a case in which the Court of Appeal went through each of the elements of the negligence action, i.e. duty, breach and remoteness, one after the other.
Activity 4.6
Look at the Dorset Yacht, Lamb, Smith and Al-Kandari cases. In which of these cases was the defendant liable for the consequences of the criminal behaviour of others? Identify the differences in facts that led to liability in these cases and not in the others.
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a. The hospital is not negligent, or, as in Robinson v Post Office (see 4.4) the hospitals negligence fails the but for test (see 4.1). In that case Daphne is likely to be liable for all the subsequent injuries. b. Gross negligence by the hospital unconnected with the initial injury (e.g. amputating the wrong leg). The implication of Robinson v Post Office is that in such cases the defendant would not be liable for the aggravation of the injuries. c. Where the hospitals negligence falls between those two, it is likely that it would not break the chain of causation, but that both the original defendant and the hospital would be jointly liable for the consequences. There is not conclusive authority on that point.
Activity 4.7
Cecil is injured in a road accident caused by the negligence of Delia. He is advised by the doctors not to return to work for three months. He is very conscientious and is bored at home, and his employer has a backlog of work. Cecil returns to work after a month, but two days later while working on a stepladder he turns dizzy and falls to the ground, breaking his arm. Is Delia liable for the broken arm?
explain the concept of remoteness of damage in general and identify the basic rules of remoteness in the tort of negligence identify the policy reasons for choosing that rule of remoteness. explain the concept of new and intervening cause and relate it (a) to the actions of third parties and (b) to actions by the claimant subsequent to the negligence of the defendant.
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 4.1 4.2 4.3 4.4 Causation Causation: special problems: multiple causes Remoteness: the basic rule Qualifications of the basic test Revision done
Contents
5.1 5.2 5.3 5.4 5.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Liability for pure economic loss and for negligent mis-statements . . . . 47 Liability for psychiatric injury . . . . . . . . . . . . . . . . . . . . . . . 53 Liability for omissions . . . . . . . . . . . . . . . . . . . . . . . . . . 55 The liability of inspectors and other regulators . . . . . . . . . . . . . . 58 Rescuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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Introduction
Until the middle of the twentieth century the tort of negligence was very largely concerned with careless conduct resulting in personal injuries or damage to property. Most of the illustrative cases in Chapters 3 and 4 were of that kind. In this chapter you have to study the major growth areas of the last 50 years. The material in this chapter is substantial and often quite difficult, for the following reasons: 1. There is a large volume of new case law. 2. Many of the cases involve two or even three of the topics listed below. 3. There are conflicting policy aims and objectives. 4. There has not been a steady pattern of development. In some areas (see particularly liability for economic loss and psychiatric injury) the law may at first have expanded too rapidly and the courts began to retreat from some of the early advances. More recently there have been signs of further expansion. It is particularly important that you should be sensitive to the historical development and to the current outlook of the courts.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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explain what is meant by pure economic loss explain the reasons why the courts have been hesitant about allowing recovery of compensation for such loss explain the circumstances in which a duty may arise in making statements identify the circumstances in which claims for economic loss may or may not succeed explain and discuss the uncertainties that exist in this area of law and the scope for reform explain why there are problems with allowing recovery for psychiatric damage distinguish between primary and secondary victims identify circumstances in which damages for psychiatric injury may be recoverable explain uncertainties in this area of law and consider possible reforms distinguish between acts and omissions explain the circumstances in which people may have positive duties to take action to protect others or to prevent injuries to others explain the extent of liability if a person does take action to protect others or to prevent injury to others when not under a duty to do so explain the circumstances in which a body with statutory powers may be under a common law duty of care in exercising or deciding not to exercise them describe the reasons for doubt about the appropriate scope of liability of bodies exercising regulatory, supervisory and similar powers explain the impact of the European Convention on Human Rights (ECHR) on the liability of such bodies describe the scope of the duty of care owed to rescuers.
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Essential reading
Markesinis and Deakin, pp.95165 Murphy, pp.182193, 203230 Winfield and Jolowicz, pp.134190 Lunney and Oliphant, pp.300501.
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5.1 Liability for pure economic loss and for negligent mis-statements
There is a very close relationship between these topics: a number of leading cases involve mis-statements that caused financial or economic loss to the claimant. It is therefore convenient to discuss them together although you will discover that there are cases about economic loss that do not involve careless advice or information. It is also necessary to examine some of the history of these topics in order to understand the present position.
A claimant suffers personal injuries: damages are recoverable for the economic consequences of the personal injuries, such as lost wages or salary if the claimant is unable to work because of the injuries. The claimants property is damaged. The claimant can recover for the economic consequences, which might be: the reduction in the value of the property or the cost of repairing it and might include the loss of profit from the use of the property.
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where there is no physical injury to any person or to any property where there is physical injury to a person other than the claimant or to the property of some person other than the claimant.
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Economic interests are intrinsically less worthy of protection than physical interests. If economic loss generally is recoverable, the burden on particular defendants will be unbearably high. (Imagine that the defendant carelessly pollutes a holiday beach. Holidaymakers stay away. All the business interests in the town suffer losses. Is the defendant to have to compensate them all?) A general rule against recovery of economic loss is clear and easy to apply. Claimants can often make good their economic loss in other ways than by claiming compensation: for example, if a factory has to shut down because of loss of power, it may be possible to make up for lost production by having extra shifts later. It may make more economic sense for potential claimants to insure against possible economic losses that they may suffer rather than for potential defendants to insure against economic losses that they may cause. Allowing economic loss to be recovered in tort muddles the boundary between contract and tort. The nature of this argument has changed because of the enactment of the Contracts (Rights of Third Parties) Act 1999. Before then claimants sometimes tried to frame a claim in tort because the strict rules of privity of contract prevented them from suing in breach of contract.
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For a time after the decision in the Hedley Byrne case it was thought that damages for economic loss might be recoverable as readily as for physical damage, but this did not happen. The pattern of cases is described below.
There is an example of this discussion in the case of White v Jones (see 5.1.5). Lord Goff points out that some legal systems would allow the claimants in that case an action to enforce the contract, but English law does not, even probably after the 1999 Act.
The speaker is therefore usually giving advice in a serious, business or professional context. He may be in the business of giving advice or he may be especially knowledgeable (and therefore specially to be trusted) about the subject on which he
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case was decided, but the analysis is more important now since the passing of the Unfair Contracts Act 1977. If the phrase is an exclusion clause, it is likely to fall under the Act, but it may not do so if it prevents any duty from arising in the first place. (You will have studied the 1977 Act in the course on Elements of the law of contract: despite its title, it also applied to exclusion clauses which are not terms of a contract.) This problem was considered in Smith v Eric S. Bush (a firm) (see above). It was held in that case that the words did amount to an exclusion clause and did not satisfy the test of reasonable (s.11 of the 1977 Act).
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Summary
The present state of the law is not entirely settled. For a period after 1964 there was an expansion of liability for economic loss followed after about 1980 by a period of restriction. Since the 1990s there has been a greater willingness to entertain claims. You will have to think carefully in the light of these cases and policy concerns when liability will arise: this is likely to occur where the defendant can be said to have acted for the benefit of an individual or a class of individuals, specifically to protect them from a particular kind of economic loss or to confer on them a particular kind of economic benefit.
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Activities 5.15.2
5.1 a. List the factors which might have led the House of Lords to come to different decisions in Caparo v Dickman and Smith v Eric S Bush. b. D, a university lecturer, is asked to write references in support of job applications by two students, Andrew and Betty. She confuses Andrew (who had been expelled for cheating) and Anthony and writes that Andrew was an excellent student. Andrew is appointed to the job and steals money from his employer. She says that Betty is expected to get a lower second class degree. Betty is not appointed. In the end she is awarded an upper second class degree. Is D liable? c. D writes a reference for C, an applicant for a postgraduate degree. Is he able to exclude his liability? 5.2 Are Cs economic losses recoverable from D in the following cases? a. D advises C to invest his money in Slushfund plc. The company collapses and C loses his money. In order to meet his immediate financial needs, he has to borrow at a high rate of interest. b. Ds employee, digging a hole in the road, damages a water main. The water supply has to be cut off for two days and Cs factory has to close for that period. There is no production and C is late in meeting an urgent order. c. C is given as a present a computer manufactured by D. There is a fault in the hard disk and C has to spend 500 putting it right. d. C is given as a present a computer manufactured by D. There is a fault in the hard disk. As a result files containing the draft of his doctoral thesis are corrupted and C loses six months of his research work. e. C has made a contract with X to maintain Xs central heating system for a fixed sum for a year: D negligently causes extensive damage to the system.
explain what is meant by pure economic loss explain the reasons why the courts have been hesitant about allowing recovery of compensation for such loss explain the circumstances in which a duty may arise in making statements identify the circumstances in which claims for economic loss may or may not succeed explain and discuss the uncertainties that exist in this area of law and the scope for reform.
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ii. T he claimant must have perceived the events or their aftermath (how soon is an aftermath?) with his own unaided senses: it is not enough to be told about it later. The notion of the aftermath derives from McLoughlin where Mrs M saw her relatives in the same state as they had been in after the accident. Should that be essential? iii. The claimant must have suffered through an immediate sudden impact on his or her senses. iv. The claimant must not have a special sensitivity to shock: the shock must be foreseeable in a person of reasonable fortitude (but, so long as some psychiatric injury is foreseeable, its precise form or severity does not have to be foreseen). Where the defendant caused himself serious injuries by negligent driving (i.e. the defendant and the primary victim were in a sense the same person), he was not liable to his father who went to the scene as a member of the rescue services. For the policy reasons behind the decision, see Greatorex v Greatorex [2000] 1 WLR 1976.
These cases have not been referred to in recent House of Lords decisions. There is no recent authority.
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Activity 5.3
Can C recover for psychiatric injury if: a. she hears on the radio that there has been a mining disaster at the nearby pit where her son works? b. she is wrongly told by D that her son has been killed in Australia (D had confused C with the mother of the deceased)? c. she sees her pet dog run over by a careless motorist?
explain why there are problems with allowing recovery for psychiatric damage distinguish between primary and secondary victims identify circumstances in which damages for psychiatric injury may be recoverable explain uncertainties in this area of law and consider possible reforms.
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5.3.4 Defendant who was not under a duty to act but voluntarily did so
What should be the scope of the duty of a defendant who was not under a duty to act but voluntarily did so? Suppose that in The Ogopogo the owner of another yacht in the vicinity tried to rescue the passenger but did so incompetently. Should there be liability? One view is that the other owner would be under no obligation to act, but by acting had assumed responsibility for the passenger and therefore had to show reasonable care. The snag with that view is that it would be a disincentive to go to peoples help. So the better view appears to be that the volunteer rescuer is liable only if the rescue makes matters worse than if nothing had been done. This is supported by East Suffolk River Catchment Board v Kent [1941] AC 74 and Stovin v Wise [1996] AC 923. If this is right, then it is important to note the difference from the position on causation in 5.3.3. Where the rescuer is a volunteer not under a duty to act, then it is necessary to compare what the position of the claimant is now with what it would have been if no rescue at all had been carried out. If the victim would probably have died if there had been no rescue at all, then the defendants incompetent efforts are not a cause of death. Much depends on what is meant by making matters worse. If other people are deterred from trying to rescue because of the defendants attempts, then he may have made matters worse. See e.g. Kent v Griffiths in 5.4.
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Consider further Kane v New Forest District Council [2001] 3 All ER 914 and Goringe v Calderdale MBC [2004] UKHL 15: [2004] 2 All ER 326.
Activity 5.4
a. Why does English law recognise only a moral and not a legal duty to take positive action to assist others? b. C is visiting D at Ds country house. C falls ill and asks D to send for a doctor. D tells C not to make a fuss and does not do so. In what circumstances, if any, is D liable? c. C is swimming offshore and gets into difficulties and calls for help. D, a strong swimmer, sets off to rescue him. When he sees who C is, D changes his mind and swims back to the shore. C drowns. Is D liable? d. In what circumstances does Lord Hoffmann in Stovin v Wise say that a public body can be liable for a failure to exercise its statutory powers so as to prevent harm to C?
explain the circumstances in which people may have positive duties to take action to protect others or to prevent injuries to others explain the extent of liability if a person does take action to protect others or to prevent injury to others when not under a duty to do so.
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they are set up for the purpose of protecting the public or a section of it it is clearly foreseeable that harm may be suffered if the supervisory or regulatory work is carelessly done in some cases the imposition of liability in tort on a regulator may help to encourage the regulators independence and prevent too close a relationship between the regulator and the regulated.
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Many arguments have been advanced as to why it is not fair, just and reasonable to impose such liability. You will find many examples of these in the cases cited: Many of the defendants are public bodies and an award of damages will come out of public funds. (Should an individual who has made a poor investment decision be encouraged to sue a financial regulator to make good losses?) There will often be a public law remedy (judicial review) where the regulator has erred. Many cases involve omissions and not positive wrongdoing and the law is reluctant to impose liability for omissions (5.3). A regulator often has a difficult job to balance conflicting interests. For example, a body has the job of licensing drugs. It has some indication that a drug may have harmful side effects. If it acts too slowly in banning it, new patients may have it prescribed and suffer ill effects. If it acts too swiftly on what turn out to be inaccurate indications, it will harm the profits of the drug company and prevent patients who would benefit from receiving the drug. Even if there is a duty of care, it would therefore be unusual for the regulators to be held in breach, because they were exercising judgment in a very difficult area. Would it be right that there should be an action in those rare cases where the regulator can be shown to have exercised judgment in a clearly careless way? Imposing a duty of care may lead to an over-defensive attitude on the part of the regulator. The burden of maintaining records, defending actions and so on may outweigh the advantages of imposing a duty of care.
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ii. The House of Lords decided a large number of cases involving social workers and the educational services. They are all reported together as X v Bedfordshire County Council [1995] 2 AC 633. Two of these cases involved social workers. In one (the Bedfordshire case) social workers failed to take children into care although they had had many reports from teachers, neighbours and so forth that they were being abused. In the other (the Newham case) social workers took a child away from her mother into care because, through a confusion about two men with the same name, they thought she was being abused by her mothers boyfriend. The House of Lords held that there was no duty of care in either case. Both cases were then taken to the European Court of Human Rights. In the Bedfordshire case the European Court ruled that there was a breach by the United Kingdom of article 3 in that the authorities had failed to save the children from inhuman treatment: Z v United Kingdom [2001] 2 FLR 612. In the Newham case the European Court held that there was a breach of article 8 in that the mother had not had access to documents recording the daughters interview, which would have revealed the confusion: TP and KM v United Kingdom [2001] 2 FLR 549. These cases may make it more difficult to hold that public authorities with duties to protect the public owed no duty of care in carrying out their functions. Remember however that they are relevant only if one of the articles of the ECHR is engaged.
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Activity 5.5
a. The Food Standards Agency learns of research that suggests that very large quantities of meat have been contaminated with a cancer-causing substance. They order the destruction of all stocks of this meat in supermarkets and butchers shops. It then turns out that only a small proportion of meat was affected. Are they liable for the loss to shops? b. The Royal Air Force mountain rescue team are alerted to the fact that a group of climbers have gone missing in fog. The controller of the rescue service misunderstood where the climbers were and they died before they were found. Are the rescue service liable for the deaths?
describe the reasons for doubt about the appropriate scope of liability of bodies exercising regulatory, supervisory and similar powers explain the impact of the European Convention on Human Rights (ECHR) on the liability of such bodies.
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5.5 Rescuers
Although there is no general duty to attempt a rescue, rescuers may have a claim for damages if injured in the rescue attempt. The courts are very ready to assume that it is foreseeable that, if someone is injured or endangered, others will go their rescue. The principles are not difficult to understand: Haynes v Harwood [1935] 1 KB 146; Cutler v United Dairies [1933] 3 KB 297; Baker v T. E. Hopkins [1959] 1 WLR 966 and Videan v B.T.C. [1963] 2 QB 650. There are special difficulties where the rescuer suffers psychiatric damage (see 5.2.4). There may be a claim where the defendant invites rescue by putting himself (and not other people) in danger: Harrison v British Railways Board [1981] 3 All ER 679. The rescuer must be injured by the rescue attempt itself: Crossley v Rawlinson [1981] 3 All ER 674.
Activity 5.6
The RAF mountain rescue service are called out to rescue climbers stranded on a mountain in bad weather. The climbers had gone out with inadequate clothing and climbing equipment. Callum, one of the rescuers, is seriously injured by a fall during the rescue. Has he a claim against the mountaineers?
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Notes
Contents
6.1 6.2 6.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Liability of occupiers . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 Liability of manufacturers . . . . . . . . . . . . . . . . . . . . . . . . 74 Liability of employers . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
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Introduction
This chapter deals with three relationships in which the common law has long recognised a duty of care. The relationships are all of great practical importance, and the common law duty has been affected in different ways by statutory intervention. These relationships are: i. the duty owed by occupiers of premises to persons in or on the premises: here the common law duty has been replaced by negligence-type statutory duties in the Occupiers Liability Acts 1957 and 1984 ii. the duty owed by manufacturers (and others involved in the production) of products to the consumers of the products: here the common law duty has not been replaced but has in practice been supplanted for most purposes by strict liability imposed by statute in the Consumer Protection Act 1987 (see Chapter 8) iii. the duty owed by employers to employees: here the common law duty of care (which has a distinctive character) has not been replaced or supplanted but exists alongside a range of statutory duties, both general and specific. In all these cases the relevant principles, cases and statutes are fairly straightforward and easy to understand.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
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explain which entrants into private premises are lawful visitors and which are not define who is to be treated as an occupier of premises describe and explain the nature of the duty owed by an occupier to lawful visitors explain the defences available to an occupier of premises explain the circumstances in which and the extent to which an occupier can exclude his liability to lawful visitors describe and explain the nature and extent of the occupiers duty to trespassers describe and explain the nature of an employers duty of care to employees describe and explain the extent of the employers liability for defective equipment used in the course of employment.
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Essential reading
Markesinis and Deakin, pp.329351, 559570 Murphy, pp.303325, 340347, 250256 Winfield and Jolowicz, pp.304328, 340351, 292303 Lunney and Oliphant, pp.514539, 503514.
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It follows that there can be more than occupier at the same time. For example, the owner of premises and building contractors carrying out extensive works may both be occupiers in respect of aspects of the safety of premises. Who is a lawful visitor? (s.1(2)) This is a slightly trickier question. The Act has abolished the distinction between different categories of lawful visitors (see s.2(1)). The distinction between lawful visitors and non-lawful visitors remains and can be problematic. We can distinguish a number of different situations:
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A person invited by the occupier on to the premises is a lawful visitor. A person may have an implied permission to be on the land. Normally people may be entitled to walk up the front path to ring the door bell and make enquiries of the occupier. However before 1984 the courts were very willing to use fictional devices in order to treat claimants (especially children) as lawful visitors so that they would have some statutory protection. Thus, if there were alluring things on the land for children to play on, the courts might treat these as in a sense inviting the children on to the land. Again, if an occupier knew that people were in the habit of walking across his land, perhaps as a short cut, and did nothing effective to deter them, he might be treated as having given them a licence to use the land. Since 1984 trespassers have had enhanced rights under the Occupiers Liability Act 1984, and the courts may therefore be much less willing to use such fictions.
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An invitation to enter the premises may be issued by someone other than the occupier, such as the son or daughter or an employee of the occupier. There is no problem if they have the occupiers permission to issue the invitation, but what if the occupier has forbidden them to do so? A sensible solution would be to ask whether the visitor would expect the person issuing the invitation normally to have authority to do so (see Ferguson v Welsh [1987] 1WLR 1553). See also Stone v Taffe [1974] 1 WLR 1575. A person who has a common law or statutory right of entry is a lawful visitor (e.g. the police executing warrants of arrest or search). But a person who is exercising a public or private right of way is not a visitor to the occupier (McGeown v Northern Ireland Housing Executive [1995] 1 AC 233). Miscellaneous cases can arise (see the discussion of Tomlinson v Congleton Borough Council below).
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A visitor may have permission to enter only until a certain time or only to enter certain parts of the premises, but the occupier must make clear the limits of the permission. Permission may normally be revoked (except in the third situation above), but the visitor must be given a reasonable time to leave.
Activity 6.1
a. Martha has been invited to dinner by Lord Nasty. As she drives up the avenue to his home, she is struck by an arrow carelessly fired by Lord Nasty, which misses the target. Has she a claim under the 1957 Act? b. Norma is visiting Lord Nastys stately home on a day it was open to the public. Part of the floor of the library had been taken up so that Slapdash Builders could carry out structural work. Norma did not notice and fell. Who was the occupier? c. Olive calls uninvited on Lord Nasty seeking a donation for the local church restoration fund. She is injured when part of the railing on the entrance stairway gives way. Was she a lawful visitor at the time? d. Helga is an au pair working for the Brown family. She is not allowed to have visitors. One afternoon, when the Browns are out, she asks another au pair, Luisa, to watch television in her bedroom. When Luisa is leaving, she is injured when part of the stair gives way. Was she a lawful visitor at the time?
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maintenance department that would be able to supervise outside contractors, but a domestic householder would have to trust a competent electrician to do a good job. An occupier might discharge the duty in such a situation by selecting the contractor carefully (e.g. checking that they belong to a professional organisation and not just giving the job to someone who called at the door or placed a small ad in the local newspaper). See Ferguson v Welsh (above) for a discussion of this sub-section. For an unusual case see Gwilliam v West Hertfordshire Hospitals NHS Trust [2002] EWCA Civ 1041: [2003] QB 443. Compare the reasoning of the different judges in that case.
6.1.4 Defences
i. Contributory negligence on the part of the visitor (see Chapter 13) ii. Volenti non fit iniuria. This is expressly referred to in s.2(5): for general principles of this defence, see Chapter 13. iii. Exclusion of liability. At common law (Ashdown v Samuel Williams [1957] 1 QB 409) and by s.2(1) of the 1957 Act the occupier was allowed to exclude his liability by contract or by notice in so far as he is free to do so. The occupier may therefore display a notice, saying Enter at your own risk. It is very important to distinguish the intention of such a notice from a notice warning of a danger (s.2(4)(a)) discussed above, and it is a very common error to confuse the two. A warning notice is an attempt to perform the duty: an exclusion clause is designed to protect the occupier against claims for breach of the duty. The occupier is however restricted in his ability to exclude his liability in a number of ways:
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Make sure that you can clearly distinguish between a warning of danger (which is an attempt to fulfil the duty of care) and an attempt to exclude liability.
On ordinary principles the notice must be clear (both in the sense of legibility and in the sense of its intended scope) and reasonably drawn to the visitors attention before entry. See also White v Blackmore (1972) 2 QB 561. The notice cannot exclude liability to those required and permitted by law to enter and who are therefore not free to stay off the occupiers land; they would be obliged to run the risk of injury for which there will be no compensation. It has been suggested, though never decided, that the occupiers duty cannot be reduced below the level of the duty owed to a trespasser. It would be surprising if the occupier could owe a higher duty to a person who had been forbidden to enter the property than to a person who had permission subject to an exclusion of liability clause. The main limitation on the right to exclude liability is now the Unfair Contract Terms Act 1977. This Act expressly applies to liability under the 1957 Act, but only applies to business premises. (Notice that this means that the premises are occupied for the purposes of a business rather than that a particular visitor is there for business purposes.)
Refer to the general discussion in 13.2.2 and again remember that despite its title the UCTA restricts the ability to exclude liability by non-contractual notices as well as by contract.
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Activity 6.2
a. Joe sees an advertisement in his local paper, saying All electrical work undertaken. Cheap rates. For details ring Kev on mobile no 097xxxxxx. Joe engages Kev to rewire his flat. Six weeks later Leo, a visitor, is electrocuted. Advise his widow. b. Compare the effect of the following notices at the entrance to Marks land: i. Persons entering these premises do so at their own risk ii. Private: no admittance to unauthorised personnel iii. Dangerous footbridge.
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Ratcliffe v McConnell [1999] 1 WLR 670 Donoghue v Folkestone Properties Ltd [2002] EWCA Civ 231: [2003] 2 WLR 1138 Tomlinson v Congleton Borough Council [2003] UKHL 47: [2004] I AC 46.
The general principles are best examined through the last of these cases, which also makes reference to its predecessors. Among the issues that should be considered in studying that case are these:
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Tomlinson had originally entered the premises (a park) lawfully, but had then thrown himself forward into a pool where swimming was forbidden. He was treated as a trespasser, but some of the judges were uneasy about this. Why? There is an extensive analysis of the requirements in ss.1(1), 1(3) and 1(4) of the 1984 Act. There was an extensive discussion of the policy arguments that led the House of Lords to reject Tomlinsons claim, including the likely social consequences of imposing a duty on a local council. You should compare this case with others that have also raised the question of how far the law should impose on others (particularly public bodies) an obligation to protect people against their own folly.
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Activity 6.3
a. What does a claimant have to prove in order to succeed in a claim under the 1984 Act? Which of these did Tomlinson not succeed in establishing? b. Compare the cases of Jolley v Sutton London Borough Council and Tomlinson v Congleton Borough Council. In both cases the claimants suffered similar injuries doing something silly in a public park. How many differences between the two cases can you identify that might have led to different results?
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explain which entrants into private premises are lawful visitors and which are not define who is to be treated as an occupier of premises describe and explain the nature of the duty owed by an occupier to lawful visitors explain the defences available to an occupier of premises explain the circumstances in which and the extent to which an occupier can exclude his liability to lawful visitors describe and explain the nature and extent of the occupiers duty to trespassers.
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Summary
Those in control of premises (occupiers) owe a common duty of care under Occupiers Liability Act 1957 to lawful visitors. This is a flexible duty varying according to the circumstances, some of which are given in the statute as examples. Occupiers owe a different and less stringent duty to non-lawful visitors under the Occupiers Liability Act 1984.
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This notion is well illustrated by the facts of the case. M was employed as a deckhand by the defendants, but was sent by them to work on a ship operated by a different company (in fact the parent company of the defendants). He was seriously injured when the captain of the ship (not an employee of the defendants) carelessly operated the safety systems. The defendants were liable because their duty had been delegated to the employees of the parent company and not properly performed. The employers duty to take reasonable care for the safety of the employees is sometimes set out under separate headings. In Wilsons and Clyde Coal Co Ltd v English (1938) AC 57, it was said to comprise the provision of a competent staff of men, adequate material, and a proper system and effective supervision: the provision of a safe place of work has sometimes been added to the list. These headings do not have to be scrupulously distinguished and applied: they are convenient subdivisions of a general principle of a non-delegable duty of care. Work-related stress cases Most cases of employers liability have involved physical injuries. Recently there has been public concern about work-related stress and this has been reflected in litigation. Think back to the discussion of psychiatric injury in Chapter 5: the House of Lords in White v Chief Constable of South Yorkshire [1999] 2 AC 455 suggested that employees were in no special position with regard to that type of injury. The White case clearly concerned the impact of an isolated gruesome event: the courts have been more sympathetic to claims involving the effects of stress over a substantial period of time. The first claims involved vulnerable groups: junior hospital doctors working very long hours; social workers with unmanageable case loads. Some jobs involve special pressures: some people cope with them better than others. The Court of Appeal tried to set out some general principles in a series of cases reported as Hatton v Sutherland [2002] EWCA Civ 76: [2002] 2 All ER 1. One of those cases was taken to the House of Lords in Barber v Somerset County Council [2004] UKHL 13: [2004] 1 WLR 1089, but this case is merely an application of the principles to the facts and the principles are still to be found in the Court of Appeals judgment. Only the central elements of the employers duty are likely to have this non-delegable character. It would be most unlikely to apply if, for example, a driver from another company delivering supplies to a factory were negligently to injure some workers at the factory. The employers/factory owners would be liable only for their own negligence. A borderline example would be where equipment purchased for use in the factory turns out to be defective. In Davie v New Merton Board Mills Ltd [1959] AC 604 the House of Lords held that the defendant employers had discharged their duty by purchasing tools from a reputable supplier: the employee could sue the manufacturer of the tool. This was reversed by the Employers Liability (Defective Equipment) Act 1969. You should note particularly the nature of the employers liability (s.1) and the definition of fault (s.2). The latter is not confined to negligence, but includes any act or omission which gives rise to liability in tort. This would seem to mean that the employer would be liable if the manufacturer were in breach of the strict liability
You may find it useful to draw a diagram of the relationships in this situation.
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imposed by the Consumer Protection Act 1987 (see Chapter 7). The courts have given the word equipment a wide interpretation favourable to injured employees (see Knowles v Liverpool City Council [1993] 4 All ER 321). Finally you must remember that the employers duties described in this section are owed only to their employees and not to others such as contractors working on the premises or visitors to the premises. Their claims must be based on the principles of common law negligence or on the Occupiers Liability Acts.
Activity 6.4
a. What is meant by saying that the employers duty of care is non-delegable? b. A, an employee of X Ltd, likes to play practical jokes on work colleagues. He balanced a pail of water above a door and invited B, another worker, to walk through the door. B had a weak heart and became seriously ill as a result of being drenched. Advise B. c. E worked as a district nurse from 1993 to 2004 with the W Health Authority. Her workload increased and, after suffering a nervous breakdown, she took early retirement. E asks you for advice. What questions would you ask her about her employment history before giving advice?
Summary
Employers owe a duty of care to their employees, but this is different in nature from the normal duty of care, being described as non-delegable. Courts are now developing principles under which employees can also recover for the effects of work related stress.
Learning outcomes
By this stage, you should be able to:
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describe and explain the nature of an employers duty of care to employees describe and explain the extent of the employers liability for defective equipment used in the course of employment.
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Question 3 Franks status is first problem. Lawful visitor or trespasser? Publicity had made it clear that only students allowed, but door staff let him in. However, even if trespasser, the occupiers through their staff clearly knew that he was in the building and exactly the same could have happened if he had been a student, so there might be a breach of the 1984 Act as they knew (?) about the light bulb. Can college escape liability by pointing to Mark as contractor? Could there be a separate claim against Mark. Was there possible contributory negligence by Frank running in darkness? Note the problem of property damage.
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 6.1 6.2 6.3 Liability of occupiers Liability of manufacturers Liability of employers Revision done
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Notes
Contents
7.1 7.2 7.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 Tort and illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Breach of statutory duty . . . . . . . . . . . . . . . . . . . . . . . . . 84 The Human Rights Act 1998 . . . . . . . . . . . . . . . . . . . . . . . . 86 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
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Introduction
Parliament has passed an Act that makes it compulsory to do something (e.g. for a building employer to provide safety helmets for employees) or makes it illegal to do something (e.g. to smoke while handling combustible material). The Act may impose a criminal sanction such as a fine on those who break the rule. Should an injured person have a civil law claim for damages? In other words, should the breach of the duty imposed by the statute be a tort as well as a crime? This is a long-standing question. A similar question can be raised in relation to the Human Rights Act 1998. Should a person suffering a violation of the European Convention on Human Rights have a claim for damages?
Learning outcomes
By the end of this chapter you should be able to
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explain the different ways in which liability may arise out of the failure to perform duties imposed by regulatory statutes identify the characteristics of the tort of breach of statutory duty explain the tests that have been deployed to determine when a statute is held to give rise to civil liability outline what has to be established by a claimant alleging a breach of a statutory duty that does give rise to civil liability explain the bases on which liability may arise where a public authority has infringed rights under the European Convention on Human Rights identify the circumstances in which the courts are likely to award damages for such infringements and the ways in which damages may be assessed.
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Essential reading
Markesinis and Deakin. pp.358374 Murphy, pp.417432 Winfield and Jolowicz, pp.264280 Lunney and Oliphant, pp.561583.
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They can decide that there should be civil liability for the breach. This is the tort of breach of statutory duty described in this chapter at 7.2.1. Suppose that Parliament has provided that employers in certain industries must ensure that their employees wear safety helmets. If the courts decide that there should be civil liability (see 7.2.1) and if the conditions described in 7.2.3 are satisfied, then the claimant, an injured employee, has an entitlement to damages, subject to any available defences. They can decide that the claim should be framed in negligence and the breach of the statutory requirement can be regarded as evidence of negligence. Take the safety helmet example again. The claimant would sue for a breach of the employers non-delegable duty of care (see Chapter 6) and argue that the failure to comply with the statute was a breach of that duty: the claimant would be likely to win but not bound to do so. This is the route that has been taken in some other common law jurisdictions and some commentators think that it should be followed in England. If it did, then the separate tort of breach of statutory duty would disappear. This has not happened as a general rule, but there are certainly examples of it. In Froom v Butcher [1976] 2 QB 286 (see Chapter 13) the fact that Parliament has made the wearing of seat belts mandatory makes it easier to hold that a person who fails to do so is not taking reasonable care for his safety and is therefore contributorily negligent i.e. the statutory duty helps to set the standard of reasonableness. A third possibility is to say that the claimant does not automatically have a claim for injuries resulting from a breach of the statutory duty, but may do so, depending, for example, on the seriousness of the breach and the state of mind of the defendant at the time of the breach. It is likely that this approach will be adopted in respect of some breaches of the European Convention on Human Rights (see 7.3).
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Summary
The fact that conduct is illegal in the sense of being criminal does not necessarily make it tortious as well, even if someone is injured as a result. Where a statute prohibits certain conduct and does not say whether or not there is to be civil liability for resulting damage the courts have to decide as a matter of policy whether there should be such civil liability.
The courts will not allow a civil action unless the statute is for the protection of a particular class. If the purpose of the statute is to protect the general public or to achieve some administrative objective, then there will be no civil action. This test is quite clear, but can be difficult to apply in practice (see in particular the ORourke case in the next section). There may be civil liability where the statutory duty is quite precise (e.g. to provide safety helmets of particular specifications) but not where it is very general and open-ended (e.g. to provide an education suitable for the needs of children). A private right of action for damages will not be appropriate where a public law action (e.g. to force a public authority to carry out its duty) would be more effective.
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It should be noted that, although it is usual to talk of statutory duties, in most cases the duty is not set out in the statute itself but in delegated legislation, i.e. in regulations made under the authority of the statute.
Lonrho Ltd. v Shell Petroleum Co. [1982] AC 173: the claimants sought compensation for damage to their business by the defendants, who had allegedly broken the oil embargo imposed on the regime in Southern Rhodesia that had illegally declared independence. It was held that the purpose of the embargo was to bring down the regime and not to protect the interests of individual companies. (The actual facts were more complicated, but this gives the gist of the point at issue for our purposes.)
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Hague v Deputy Governor of Parkhurst Prison [1992] 1 AC 58: the claimants had been wrongly segregated from other prisoners contrary to the requirements of the Prison Rules. It was held that these rules were concerned with securing proper prison administration and did not create individual rights. Some judges thought obiter that there might be liability for breaches of those parts of the rules that set safety standards in prison workshops. X v Bedfordshire County Council [1995] 2 AC 633: this case has already been considered in Chapter 5 . There you were invited to consider the claims based on the negligent way in which the statutory functions had been carried out. In addition the House of Lords rejected the argument that the breaches of the various welfare and education statutory provisions could be the basis of an action in breach of statutory duty. ORourke v Camden London Borough Council [1998] AC 188: this is a particularly interesting example. The House of Lords, overruling earlier authorities, held that a breach of the statutory duty on a local council to provide housing for homeless people did not give rise to civil liability. The principal reason was that the main purpose of the legislation was to promote the public interest in not having homeless people on the streets rather than to protect the homeless as a class of people. This is very sweeping and could apply to almost any such statutory provisions. For example, any legislation designed to prevent personal injuries could be described as having the public purpose of reducing the costs to the Health Service. Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39: [2003] 1 WLR 1763: breach of the statutory duty to give reasons for authorising the delay of an accused persons access to a solicitor did not give that person a private right of action. One case that does allow a private right of action is Kirvek v Attorney Gen. of Trinidad and Tobago [2002] UKPC 43: [2002] 1 WLR 2792. The claimants had been involved in a civil law claim: they had been required as a condition of continuing the action to pay a very large sum of money into court as a kind of security. The authorities did not deposit the payment in an interest-bearing account, but deposited it with the Treasury in a way that did not attract interest. The claimants were entitled to a civil action for damages representing the lost interest. It is unusual to allow an action for breach of statutory duty where the loss is economic, but it is difficult to see what other remedy would have dealt in a satisfactory way with the injustice to the claimants.
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These cases illustrate the reasons for denying a private law action. Remember that it is more important to understand the reasoning in these cases so that they can be applied in other contexts than to know about the particular statutory duties involved.
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The statute must have been broken. This is of course very obvious, but it is easy to overlook (see Chipchase v British Titan Products Co Ltd [1956] 1 QB 545). It is particularly important to notice that different statutes may require different mental states. Some statutes may impose strict liability, others may require something to be done so far as practicable and others may impose a duty to take care. Some statutes may impose duties only on employees or only on employers or on both. The claimant must belong to the class of persons whom the statute was intended to protect (Hartley v Mayo & Co [1954] 1 QB 383). The damage must be of a kind that the statute was intended to prevent. This is akin to the concept of remoteness of damage in negligence and is illustrated by Gorris v Scott (1874) LR Exch 125. This notion is sensible enough, but can be quite difficult to apply. For instance, it has been held that the purpose of regulations requiring machinery to be fenced is to keep the workman out of the machine and not to
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The damage must have been caused by the breach of duty. This concept has been explained in Section 4.1 and indeed some of the cases used to illustrate the notion of causation were claims for breach of statutory duty. See McWilliams v Sir William Arroll & Co Ltd [1962] 1 WLR 295.
Activity 7.1
a. What reasons did Lord Hoffmann give in ORourke v Camden London Borough Council [1998] AC 188 for saying that no civil action lay for breach of the statutory duty on the local council to provide accommodation for homeless people? b. Regulations require workers in a particular factory to wear a helmet if they are working at a height above 3 metres. Ivan falls from a platform 2.9 metres off the ground. He is not wearing a helmet and fractures his skull when he falls. Has he claim for breach of the regulations? c. Regulations require sheep on board a ship to be kept in separate small pens on the deck. Hughs sheep and those of other owners are transported by ship. There are no pens on the deck. During heavy seas the sheep all slither to one side of the deck, the ship capsizes and Hughs sheep are drowned. Has he a claim for breach of statutory duty? d. Statutory regulations require certain machinery to be fenced. John is working at an unfenced machine. Slivers of metal are extruded from the machine, coil themselves round Johns hand and pull it into the machine, injuring him. Has he a claim for breach of statutory duty? Feedback: see end of guide.
Summary
If the courts decide that a statute (or regulations made under it) give rise to civil liability and that there has been a breach, then the claimant is entitled to damages for any consequential injuries provided that he was a member of the protected class, that the damage was caused by the breach and that the damage was of a kind that the statute was intended to prevent.
explain the different ways in which liability may arise out of the failure to perform duties imposed by regulatory statutes identify the characteristics of the tort of breach of statutory duty explain the tests that have been deployed to determine when a statute is held to give rise to civil liability outline what has to be established by a claimant alleging a breach of a statutory duty that does give rise to civil liability.
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Summary
The Human Rights Act 1998 envisages (section 8) that an award of damages may sometimes be necessary to achieve just satisfaction where a public authority has infringed someones rights under the European Convention on Human Rights. An award of damages does not necessarily follow from such a breach. The courts are still working out the principles under which such damages should be awarded.
explain the bases on which liability may arise where a public authority has infringed rights under the European Convention on Human Rights identify the circumstances in which the courts are likely to award damages for such infringements and the ways in which damages may be assessed.
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 7.1 7.2 7.3 Tort and illegality Breach of statutory duty The Human Rights Act 1998 Revision done
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Notes
Contents
8.1 8.2 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92 Product liability: Consumer Protection Act 1987 . . . . . . . . . . . . . 93 Liability for animals: Animals Act 1971 . . . . . . . . . . . . . . . . . . 98 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
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Introduction
In this chapter, we look at particular statutory regimes where the desire to compensate victims has encouraged the legislator to impose strict liability. Here, fault need not be proved. It is important to remember, however, that claimants must still prove that the defendants actions caused their loss, that the loss is recoverable and that there are no defences which obstruct their claim or limit their damages. Under both statutes, contributory negligence is a defence to any claim. The 1987 and 1971 Acts deal with specific compensatory issues. In a consumer age, defective products can cause severe injury to the public, but it is often difficult to prove negligence. If your new coffee table arrives with scratches on the surface, were these caused by the manufacturer, the retailer or the delivery firm? If you take drug X and suffer serious headaches, is this due to drug X or due to natural causes? Even if you are able to identify drug X as the cause, is it defective or just an acceptable side-effect of a valuable drug? Most medications we take have side-effects, but we do not think of them as defective. In establishing a strict liability regime, the European Commission sought to harmonise the law relating to defective products across Europe, by requiring, in its Directive, a common level of consumer protection across each Member State. The Animals Act 1971 has a very different history. It modified existing common law provisions, which distinguished between ferae naturae (animals wild by nature) and mansuetae naturae (tame animals). The Act imposes strict liability on the keepers of animals which are dangerous, or not dangerous but known to be likely to cause harm or injury to another. The keepers of such animals will find themselves liable for injuries caused regardless of the fact that they were not at fault.
The Consumer Protection Act 1987 and the Animals Act 1971 can both involve the concept of strict liability: liability where the question of fault does not arise.
Learning outcomes
By the end of this chapter and the associated readings, you should be able to:
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explain the reasons behind the Consumer Protection Act 1987 identify the key provisions of the Act and be able to explain:
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the meaning of producer and who will be liable under the Act when a product is defective what defences exist what remedies exist
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explain the reasons for the enactment of the Animals Act 1971 describe the scope of liability under the Act evaluate the purposes of strict liability and consider whether any other areas of the law should be replaced by rules of strict liability.
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Winfield & Jolowicz, Chapter 10: Liability for defective products pp.352367.
Self-assessment questions
1. What do we mean by strict liability? 2. What do we mean by a defective product? 3. When can I recover at common law for damage caused by a defective product? 4. Why did the European Community decide to impose strict liability for defective products?
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Summary
At common law, liability for defective products depended on proof of negligence: see Donoghue v Stevenson [1932] AC 562. This was often difficult to prove in practice. The costs and risks of litigation left many consumers without an effective remedy. The Consumer Protection Act 1987 was introduced to comply with EC Directive 85/374 on liability for defective products and introduced a strict liability regime. Producers, in future, could be liable without proof of fault. However, the Act did not replace the common law. It supplemented it. If the Act is not applicable, the common law may still be worth consulting to see if it will support a claim.
Howells, G. and Mildred, M. Infected blood: defect and discoverability. A first exposition of the EC Product Liability Directive (2002) 65 MLR 95106. Consumer Protection Act 1987: liability for defective products (2002) 10 Med L Rev 8288. Hodges, C. Compensating patients (2001) 117 LQR 628632. Newdick, C. The development risk defence of the Consumer Protection Act 1987 (1988) 47 CLJ 45547.
manufacturers or producers (ss.1(2) and 2(2)(a)) own-branders (s.2(2)(b)) parties importing goods into the European Community (s.2(2)(c)).
Suppliers are not generally liable, except under the special provisions of section 2(3). There can be more than one producer, for example, the manufacturer of a component part and the manufacturer of the whole product. They will be jointly liable: section 2(5).
Activity 8.1
Can the following parties be sued under the Consumer Protection Act 1987? a. Digdeep plc, which provides coal to the public. b. Eric sells widgets to the public. He bought them from Fred, who did not tell him where they came from. There is no manufacturing mark on the widgets. c. George lives in Brussels. He bought a Wahoo jeep from Japan. He now wishes to sell it to Harriet, who lives in London. d. Indigo plc sell jeans marked Indigos. They are manufactured for them by Jackie.
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Self-assessment questions
1. Who can be sued under the Act? 2. When will a supplier be liable?
explain the meaning of the term producer and who will be liable under the Act.
Warnings
In A, Burton J specifically mentioned that warnings could render even non-standard products safe, provided that the warnings were clear and widely known (see also s.3(2) (a)). See also Worsley v Tambrands Ltd. [2000] PIQR P95.
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Activity 8.2
Ambrose Industries manufactures Relaxeze pills for people suffering from headaches. On the box, it states in bold type: Be warned. There is a very small risk that these pills may cause epileptic fits in some people. Anyone at risk of epilepsy should consult their doctor before use. This is also stated in the instructions accompanying the pills, which the user is instructed to keep. Beryl buys the pills and throws away the box with the instructions inside. She takes one pill and then has an epileptic fit. Would a court find Relaxeze to be defective under section 3?
Self-assessment questions
1. What is the basic test for a defective product? 2. What other factors do the courts examine? 3. Will it usually be easy to explain why a non-standard product is defective? 4. Why is blood infected by hepatitis C a defective product?
8.1.5 Defences
The Act provides the defendant with a number of defences listed in sections 4, 6(4) and 6(5). Although section 4(1)(e) the development risk defence has caused the most controversy, it is important not to forget the other defences which will protect the defendant from liability. It should also be noted that strict liability does not mean automatic liability, but simply that the claimant does not have to prove that the defendant has been at fault. Sections 6(4) and (5) even provide for a defence of contributory negligence where the damage is caused partly by a defect in the product and partly by the fault of the victim. A defence will exist where:
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the defect is due to compliance with a requirement imposed by law the defendant did not at any time supply the product the only supply of the product to another by the defendant was not in the course of business, and s.2(2) does not apply to the defendant or applies to him due to things not done with a view to profit the defect did not exist in the product at the time supplied 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 the defect was in a product in which the product in question was a component, and was wholly due to the design in the subsequent product or due to compliance by the producer of the product with instructions given by the producer of the subsequent product.
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The more complicated defences are ss.4(1)(c) and (e). The first excludes defendants who are not supplying goods in the course of their business and who are either suppliers (not within s.2(2)) or not acting with a view to profit.
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Activity 8.3
Do defences exist in the following situations? a. Griselda makes a fruit tart for a school cake sale. By mistake, she uses poisonous berries instead of blackberries. Griseldas cake is bought at the sale by Henrietta. b. Isobel produces Cureotis, a revolutionary new drug which is capable of providing a cure for some forms of cancer. It is a very difficult drug to produce and there is no way of preventing a tiny proportion of the drug being contaminated with the X virus. The X virus is undetectable. James uses Cureotis successfully and his cancer is now in remission. Unfortunately, he has recently contracted the X virus.
Self-assessment questions
1. What defences are there under the Act? 2. How easy will it be to establish the development risk defence after A v National Blood Authority?
8.1.6 Remedies
Section 5 describes the kind of damage covered by the Act. It covers death or personal injury or any loss of or damage to property, including land: section 5(1). However, it does not extend to pure economic loss: section 5(2). Equally, property damage is restricted by sections 5(3) and (4). It will not include:
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property not ordinarily intended for private use, occupation or consumption and not intended to be used for private use, occupation or consumption property damage which does not exceed 275.
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Liability cannot, however, be limited or excluded by any contract term, by any notice or by any other provision: section 7.
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Activity 8.4
Outline the remedies available in the following problem. Griselda sets up her own cake stall outside her house. She sells a fruit tart containing the poisonous berries to Ivor. He gives a piece to his son, Kevin. Kevin takes a bite, but decides that he doesnt like the taste and gives the rest to his pet cat, Jumper. Kevin becomes ill and Jumper dies. Jumper was a show cat, whose value has been estimated at 300.
Self-assessment questions
1. Can I recover damages for all injuries I have suffered? 2. When can I recover property damage? 3. Can the defendant exclude liability under the Act?
Summary
The Act, as interpreted in A v National Blood Authority, imposes strict liability on producers of defective products. This extends to own-branders and importers into the EC. As such, it marks a significant step in the European Commissions harmonisation programme which seeks to establish similar levels of consumer protection across the European member states. Liability for defective products should therefore be treated as a distinct area of tort law, in which a good working knowledge of the 1987 Act will be vital for examination success.
Nowadays a high proportion of deaths and injuries is caused by industrial and transport accidents, and relatively few by animals. In the early development of the common law injuries by animals were more significant, and a series of special torts was developed. These special heads of liability were put in statutory form by the Animals Act 1971 but the broad principles were retained. A defendant may be liable in any tort (particularly nuisance or negligence) as the result of the behaviour of animals. Owners of animals have a duty of care and may be liable in negligence even if they would not be liable under the Animals Act 1971 (see Draper v Hodder [1972] 2 QB 556). One exception to this was an immunity for allowing animals to escape on to the highway and do damage there (see Searle v Wallbank [1947] AC 341), but this was abolished by s.8 of the Animals Act 1971.
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8.2.4 Defences
As we saw in relation to the Consumer Protection Act 1987, strict liability does not prevent defences arising. These are listed primarily in section 5 of the Act. Section 5(1) provides that a person will not be liable under sections 24 for any damage which is wholly due to the fault of the person suffering it. Section 10 further provides for a defence of contributory negligence. Section 5(2) establishes a defence of voluntary acceptance of risk for section 2 only. Section 5(3) is equally confined to section 2 and provides that a person will not be liable to a trespasser on the land, if it is proved:
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This protects landowners with guard-dogs and keepers generally. See Cummings v Granger [1977] QB 397. Contributory negligence (see Chapter 13) is also a defence.
Howarth, D. The House of Lords and the Animals Act: closing the stable door (2003) 62 CLJ 548551. Amirthalingam, K. Animal liability equine, canine and asinine (2003) 119 LQR 563567.
Equine: relating to horses; canine: relating to dogs; asinine: relating to asses or donkeys.
Activity 8.5
Alexander is a keen animal-lover. He lives in a big house in the country and keeps six pet dogs. He also keeps a number of peacocks. He dotes on the animals and feeds them every day. One day, he decides to take his pet dogs to visit his sister, Agatha. He piles the dogs into the back of his van, and says goodbye to the peacocks. One of the peacocks, Florence, follows the car out of the drive and wanders into the main road. Barry, who is driving too fast, drives into Florence and suffers severe injuries. Alexander, who is driving very slowly, sees the crash in his rear-view mirror and stops. He backs up the van in an attempt to help. Barry staggers out of the car and towards Alexanders van. He opens the back of the van in an attempt to obtain assistance, but is attacked by Jupiter, one of Alexanders pet dogs. Jupiter is normally very mild, but is very protective of the van in which the dogs always travel on visits to Agatha. Advise Barry on his claim for personal injuries suffered due to the crash and the attack by Jupiter. Feedback: see end of guide.
Self-assessment questions
1. What is the aim of the Animals Act 1971? 2. Will the owner of an animal always be liable for injury caused by the animal?
explain the reasons for the enactment of the Animals Act 1971 describe the scope of liability under the Act evaluate the purposes of strict liability and consider whether any other areas of the law should be replaced by rules of strict liability.
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Examination advice
The topic of strict liability statutes rarely appears in its own right. This topic generally arises as part of a problem question, although the examiner may choose to set an essay question on either strict liability statutes generally or (less likely in recent years) developments in the law of defective products or animals. The Consumer Protection Act 1987 and the Animals Act 1971 are both complicated statutes. It is important to have a good understanding of their key sections (highlighted in this chapter) and a keen awareness how they work in practice. It is also not enough to cite the relevant sections. Students will be expected to refer to cases and use them by analogy to the problem set. Ultimately the student will face a number of practical questions if answering a problem question: is the product defective? Is the animal dangerous? Can the claimant satisfy the very tricky test in s.2(2)(b)? and so on. The student must be prepared to give the best answer they can to such questions.
Who is responsible for the problem with the pumping machine? On what basis can Jake sue? Will he recover for his injuries and property damage? Can the council sue for damage to the pumping machine? Who and on what basis can Michael sue for the injury caused by Kruncher?
We will look at each question in turn. Who is responsible for the problem with the pumping machine? The main candidates are the council, Ian or the manufacturer, Pumpfast plc. Reading the problem, there is no evidence that Ian was operating the machine negligently. This cannot be presumed. The fault therefore seems to be latent in the machine. The council supplied the machine and Pumpfast manufactured it. Manufacturers do have liability for faulty machines (or products) under the Consumer Protection Act 1987. The council, under that Act, will be liable as a supplier only if it fails within a reasonable period of time to identify who supplied the product to it: s.2(3). Here, there is no problem in identifying Pumpfast. The council will obviously owe a duty of care to its employees under employers liability (Wilsons & Clyde Coal Co v English [1938] AC 57) and liability under the Employers Liability (Defective Equipment) Act 1969 (see Chapter 6) , but Ian appears to be uninjured. It would be more difficult to show that the council owed a duty of care to Jake. Proximity would be difficult to establish: see Caparo v Dickman [1990] 2 AC 605.
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On what basis can Jake sue? Jakes best claim would be against Pumpfast plc under the Consumer Protection Act 1987. Pumpfast is a producer it is the manufacturer of the product: s.1(2). It will therefore be liable for any damage caused wholly or partly by a defect in the product: s.2(1). It must be shown, however, that the product is defective. Section 3 asks whether the safety of the product is not such as persons generally are entitled to expect. Reference should be made to all the circumstances of the case, including the way in which the product has been marketed, any markings or warnings or instructions, what might reasonably be expected to be done with the product, and the time at which the product was supplied: s.3(2). Looking at the facts of the question, there seems no excuse for the head of the pumping machine blowing off. We are not informed of any instructions or warnings which might serve to alert the user to this problem. The product would therefore seem to be non-standard and defective: A v National Blood Authority [2001] 3 All ER 289. It is difficult to see any of the section 4 defences as applicable here. It could be argued that this had never occurred before and so the state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control: s4(1)(e) (the development risk defence). However, the court in A, European Commission v United Kingdom [1997] All ER (EC) 481 and Abouzaid v Mothercare (UK) Ltd [2000] All ER (D) 2436; The Times, 20 February 2001 adopted a strict test that the producer should possess all accessible knowledge concerning the product. A court would be unlikely to accept that Pumpfast could not have tested the head of the pumping machine prior to supply. Jake would be able to recover for personal injury: s.5(1). Property damage, however, would be limited to property whose value exceeds 275 (perhaps possible with designer clothing?) and is for private use. Can the council sue for damage to the pumping machine? There is no reason why the council cannot also sue Pumpfast for its losses under the Consumer Protection Act 1987. However, under section 5(2), the producer is not liable for any losses to the product itself. This would exclude the councils claim. The council would be left to pursue a remedy in contract against the person from whom it purchased the pumping machine. Who can Michael sue for his injuries? Michael has a number of possible claims. He can sue Jake as the person who is the keeper of Kruncher, or he may try to sue the cause of the accident, which, in our analysis, is Pumpfast plc. This latter claim seems unlikely to succeed because the loss will be considered too remote a consequence of the accident. The claim against Jake will arise under the Animals Act 1971. Jake is the keeper as he owns the animal or has it in his possession: section 6(3)(a). Kruncher is a dog and so a non-dangerous species. Jakes liability will therefore arise under section 2(2) of the Act. Here, liability will only arise under the following circumstances: a. The damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; here, Michael is bitten, which would seem to satisfy (a). b. The likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances. This provision is less clear and therefore more difficult to satisfy. Kruncher is unnerved by the accident and reacts, as any dog would, by biting Michael when he tries to intervene. Are these abnormal characteristics? The cases seem to take a rather lenient view of this. In Mirvahedy v Henley [2003] 2 WLR 882, horses bolting while frightened by an unknown cause were considered to be within s.2(2)(b). See also the
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uu uu uu
the meaning of producer and who will be liable under the Act when a product is defective what defences exist what remedies exist
I can explain the reasons for the enactment of the Animals Act 1971. I can describe the scope of liability under the Act. I can evaluate the purposes of strict liability and consider whether any other areas of the law should be replaced by rules of strict liability.
If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 8.1 8.2 Product liability: Consumer Protection Act 1987 Liability for animals: Animals Act 1971 Revision done
Contents
9.1 9.2 9.3 9.4 9.5 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
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Introduction
This chapter deals with trespass to the person. which has three forms: assault, battery and false imprisonment. Each of these is an individual tort in its own right requiring proof of a direct and deliberate act on the part of the defendant. These torts are actionable per se. That is, the claimant does not need to have suffered any loss or damage as a result of the tort. A person is entitled to autonomy and bodily integrity and it is this right which is protected. As Lord Porter, referring to false imprisonment, said in the case of John Lewis & Co. v Tims [1952] 1 All ER 1203
[when] the liberty of the subject is at stake questions as to the damage sustained become of little importance.
The elements of the torts of assault and battery are very similar to those which make up the crimes of assault and battery. In fact, civil actions in respect of these torts are not numerous; they are frequently dealt with by the criminal courts. Note the difference in the standard of proof. That required in a civil action for trespass to the person is that the claimant must prove his or her case on balance of probabilities whereas in a criminal prosecution the standard of proof is beyond reasonable doubt. Where a defendant has deliberately but indirectly caused physical harm to a person, although this is not a trespass to the person it may be actionable if they have wilfully done an act calculated to cause harm to the plaintiff that is to say, to infringe her legal right to personal safety and has in fact thereby caused physical harm to her (Wright J in Wilkinson v Downton [1897] 2 QB 57 at pp.5859). This tort, known as the rule in Wilkinson v Downton, will also be considered in this chapter.
Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
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Distinguish between trespass to the person and harm caused by negligence Define the elements of assault, battery, false imprisonment and the rule in Wilkinson v Downton Explain how liability is established in respect of these torts Be aware of the circumstances in which consent may be a defence to trespass to the person Identify other defences to trespass to the person, in particular, the defence of self-defence.
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Essential reading
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Under the old forms of action a claimant had to choose between suing in trespass (direct) or in case (indirect) and little attention was paid to whether the tort was based on fault or on strict liability. In practice trespass is now regarded as requiring an intentional interference (although possibly only if direct). In Letang v Cooper [1964] 2 All ER 929 Lord Diplock was of the view that an action for direct, negligent interference could be brought either in trespass or in negligence. Whatever label was attached to it, the cause of action was identical D negligently and directly injured me. He did however agree with Lords Denning and Danckwerts that, where the action was for intentional, direct interference it was actionable per se. When the interference was direct and unintentional then, if it were an action in negligence, it required proof of damage but, equally, even if it were called trespass it would still require proof of negligence and damage. Lord Denning pointed out in Letang v Cooper:
Nowadays, if a man carelessly throws a piece of wood from a house into a roadway, then whether it hits the plaintiff or he tumbles over it the next moment, the action would not be trespass or case but simply negligence.
In Stubbings v Webb [1993] 1 All ER 322 the House of Lords held that where section 11 of the Limitation Act 1980 referred to negligence, nuisance or breach of duty this did not include trespass to the person, reinforcing the importance of a distinction between trespass and negligence. Therefore the man who throws the log and deliberately hits the claimant is guilty of trespass whether the claimant suffers injury or not; whereas the man who carelessly throws it without intending to hit the claimant but in circumstances where it is reasonably foreseeable that it would do so, and it does, would be guilty of negligence but only where the claimant suffers injury. Negligence is not actionable per se. One of the reasons for there being fewer civil proceedings than criminal is that in many instances of assault and/or battery where it might be worthwhile taking action against a defendant, the police are called to the scene and criminal proceedings instituted. In addition, many people who commit trespasses to the person are people of straw, that is they do not have sufficient means to make them worth suing. It follows, therefore
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that there are more criminal than civil cases. Bear in mind here, that although criminal decisions are often referred to in tort (and vice versa) they are only guidance and not binding until incorporated into the civil law by a civil court.
Activity 9.1
a. Name three distinguishing features of an action in trespass and in case. b. What does actionable per se mean? c. In the case of Letang v Cooper did the plaintiff (claimant) bring her action in trespass or negligence?
Summary
On balance it would appear to be the case that any action taken for intentional and direct interference with a person would lie in trespass whereas an action for indirect interference with the person would lie in negligence. Note that so far as trespass is concerned, the fault requirement relates to the act and not the consequences. A defendant will be liable for any direct consequence of his act.
Where a claimant knows that any threat will not be carried out there can be no assault as there will have been no reasonable apprehension of contact. Tubervell v Savage (1669) 1 Mod Rep 3.
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Omissions
It has long been said that something more than a mere omission is required for an assault and it was stated in Innes v Wylie (1844) 1 C & K 257 that it would not be an assault where the defendant does no more than stand passively preventing the claimant from entering a room. However note the recent criminal case of Santana Bermudez [2003] (discussed below).
Words
Words may negative what otherwise might be an assault. In Turberville v Savage (1669) 1 Mod Rep 3 the plaintiff (claimant) and the defendant were having an argument. The defendant placed his hand upon his sword and said: If it were not assize time I would not take such language from you. It was held that the words negatived what would otherwise have been an assault. For a long time, however, it was unclear as to whether words alone could amount to an assault. In the case of R v Meade (1823) 1 Lew CC 184 it was said that no words or singing could be equivalent to an assault. In R v Wilson [1955] 1 WLR 493 it was considered that the words get out the knives could amount to an assault. It would now seem from the decision of the House of Lords in R v Ireland and Burstow [1998] AC 147 that words alone (and in some circumstances silence) can constitute an assault where the victim apprehends the possibility of imminent force. Lord Steyn rejected the proposition that an assault could never be committed by words alone and said that silence might also constitute an assault, but whether it did so or not was a question of fact.
The proposition that a gesture may amount to an assault, but that words can never suffice, is unrealistic and indefensible. A thing said is also a thing done. There is no reason why something said should be incapable of causing apprehension of immediate personal violenceTake now the case of the silent caller. He intends by his silence to cause fear and he is so understoodAs a matter of law the caller may be guilty of an assault: whether he is or not will depend on the circumstances and, in particular, on the impact of the callers potentially menacingon the victim. (at p.162)
Activity 9.2
a. Would it be an assault to point a loaded gun at X if X did not know it was loaded? b. Has an assault been committed in the following situations? i. Jane crept up behind Bill intending to hit him. ii. Bill telephoned Jane and just breathed heavily down the phone without saying anything. iii. Jane was very angry with Bill and threatened to hit him. Bill, who was much taller and bigger than Jane, was not frightened by this. iv. Jane was driving her car on the motorway and overtook Bill. This made Bill angry so he drove alongside Janes car and made threatening gestures.
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9.2.2 Battery
According to Winfield, battery (which can take place without an assault) is the intentional and direct application of force [personal contact is unnecessary] to another person (without lawful justification).
Force
Even if the force used is trivial, the least touching of a person in anger is a battery. See Cole v Turner [1704] 6 Mod Rep 149. In Callis v Gunn [1964] 1 QB 495 it was held that wrongly taking a persons fingerprints could be a battery. Throwing water at the claimant although not at clothes she is wearing is a battery. See Pursell v Horn [1838] 7 LJ QB 228. Striking A and causing injury to B can amount to a battery to B as in Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890 where the defendant punched A who was holding a child in her arms. The child fell hitting its head on the floor. The defendant was guilty of a battery in respect of the child.
Act
As with assault, it has long been said that for there to be a battery there must be a voluntary action by the defendant. Battery (like assault) could not be committed by omission. In Fagan v MPC [1969] 1 QB 439 the defendant accidentally drove his car on to a policemans foot but, despite repeated requests, refused to remove it. It was held that there was an assault but not merely by omission. The defendants conduct, from accidentally driving on to the policemans foot to refusing to move, was a continuing act. He was still acting at the time he formed the necessary intention for battery, i.e. when he refused to remove the car. This it could be argued suggests a straining of the word act. In the more recent case of DPP v Santna Bermudez [2003] All ER (D) (Nov) where a drug addict about to be searched by a policewoman falsely told her that there were no syringes in his pocket, the Divisional Court of the Queens Bench held that, the policewoman having been pricked by one of the syringes, the defendant was guilty of battery. This is, however, a criminal case and must for the law of tort at least for the moment be treated as guidance only. In order to be guilty of battery, the defendants conduct must be voluntary and it must be proved on balance of probabilities that the defendant intended to bring about contact. It is thought that intention in this context includes subjective recklessness, that is, the defendant was aware of a risk of contact. Ordinary touching in the course of daily life is not battery. In Wilson v Pringle [1986] 2 All ER 440 it was suggested that touching must be hostile to amount to a battery. However, Lord Goff in Re F [1990] 2 AC 1 doubted whether the term hostile connoted anything more than contact beyond that which is ordinarily acceptable in everyday life, saying:
A prank that gets out of hand, an over-friendly slap on the back, surgical treatment by a surgeon who mistakenly thinks that the patient has consented to it, all these things may transcend the bounds of lawfulness, without being characterised as hostile.
If the contact is intentional and direct, a mistaken belief that it is lawful is irrelevant. In Poland v John Parr and Sons [1927] 1 KB 236 where an employee thought he saw a boy stealing sugar from his employers cart and attacked the boy, there was a battery. Note that there can be a battery without there having been an assault and similarly, there can be assault without battery.
Activity 9.3
Has the tort of battery been committed in any of the following situations? a. Sunita was at a crowded party and was enjoying herself tremendously. While dancing she trod on Kumars toe, hit Susan hard on the back and knocked James over.
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Summary
Before moving on ensure that you have understood the elements of the torts of assault and battery, i.e. what a claimant will need to prove in order to succeed in an action. Note that there needs to be no contact between the parties for an action in assault to lie; it is sufficient that the claimant apprehends contact and that the defendant intended the claimant to so apprehend. Battery does, of course, require the intentional application of unlawful force but, here, note that the force does not need to be substantial.
False imprisonment must involve complete restriction on the claimants freedom of movement. In Bird v Jones (1845) 7 QB 742 the defendants had partially fenced off a public footway on Hammersmith Bridge in London. Bird climbed over the fence to use the footway but was prevented from using it and told to climb back over the fence and cross the bridge outside the fence. It was held that this was not false imprisonment. The defendant had not imposed a complete restriction on Birds freedom of movement. Note that imprisonment may be anywhere from which the claimant does not have a reasonable means of escape, such as a room in a house, a coalmine (Herd v Weardale Coal Co. [1915] 3 KB 771), a bridge (Bird v Jones) and, possibly, even a public lavatory (Sayers v Harlow Urban District Council [1958] 1 WLR 623).
Every restraint of the liberty of a free man is an imprisonment, although he be not within the walls of any common prison (Blackstone: Commentaries III, 127).
Bird v Jones (above) illustrates that the restraint must be total, although if there is an escape-route, it will still be false imprisonment if the escape-route is not a reasonable one. Thus, in Sayers v Harlow Urban District Council (above) where the plaintiff (claimant) was locked in a lavatory the court felt that a potentially dangerous climb over the door, or through a window, was not a reasonably safe escape-route. There was no false imprisonment in this case for other reasons (see below). Where a person has imposed conditions on the means of egress from premises to which the other has agreed it may not amount to false imprisonment when such egress is refused. For example, when a person has boarded a train which has left the station, it would not be false imprisonment to ensure that the passenger remains on board until the train has stopped at the next station.
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In Robinson v Balmain Ferry Co. Ltd [1910] AC 295 the claimant paid one penny to enter a wharf in order to catch a ferry but then realised that there was a 20-minute wait for the next ferry. There was a charge of one penny for leaving the wharf stipulated on a notice above the turnstile and the defendants refused to let him leave until he had paid the charge. The Privy Council held that there was no false imprisonment. Five years later, in Herd v Weardale Steel, Coal and Coke Co. Ltd [1915] AC 67 the claimant, a miner, demanded (in breach of his contract of employment) to be taken to the surface before the end of the normal shift. His employers (the defendant) refused. The House of Lords held: the defendant was not liable, partly because he (the claimant) had impliedly consented to remain until the shift ended. The restraint must be actual rather than potential; see R v Bournewood Community and Mental Health NHS Trust ex parte L [1998] 3 ALL ER 289 HL.
Direct
The restraint must be direct. This was why the action in false imprisonment failed in Sayers (above). Here the defendant had not directly locked the plaintiff (claimant) in the lavatory. Therefore, the proper cause of action was negligence and not false imprisonment. Note that false imprisonment (like all other forms of trespass to the person) must be by way of an act and not an omission to release the claimant, but see again Santana Bermudez (above).
More recently, in the case of Murray v Ministry of Defence [1988] 1 WLR 692 HL Lord Griffiths expressed agreement with Lord Atkins view commenting that: [I]t is not difficult to envisage cases in which harm may result from unlawful imprisonment even though the victim is unaware of it. And later he said: The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage. In R v Governor of Brockhill Prison ex parte Evans (No 2) [2000] 3 WLR 843 the House of Lords held that a where a prisoner was detained for extra days because the term of imprisonment was wrongly calculated she was entitled to damages for false imprisonment even though the error in calculation was due to a judicial decision which changed the basis of the calculation and the governor of the prison was not at fault. However, this case was distinguished in Quinland v Governor of Swaleside Prison [2003] 1 All ER 1173 where the governors had not made any arithmetical or other errors. The warrant specified the incorrect, longer sentence and they were, therefore, not at liberty to release the claimant any earlier.
Activity 9.4
a. Why was there no false imprisonment in the case of Bird v Jones? b. Is it possible to falsely imprison a person where that person is not aware of it? c. Why is false imprisonment actionable per se?
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Summary
How would you summarise the law relating to the tort of false imprisonment? Can you define this tort? Is it an intentional tort? Is it direct? Is it relevant that the claimant was imprisoned for only a short time or that s/he was unaware of the imprisonment? What other factors might be relevant?
Note that this case was decided before there was any general recognition in law for recovery where a claimant suffered nervous shock. Wilkinson was confirmed by the Court of Appeal in the later case of Janvier v Sweeney [1919] 2 KB 316. Here, the defendant who was a private detective falsely claimed to be a police officer and told the plaintiff (claimant) that unless she provided them with letters belonging to her employer they would inform the police that her fianc (who was German) was a traitor. She suffered psychiatric injury as a result and recovered damages under the rule in Wilkinson v Downton. Despite attempts to extend Wilkinson notably in the cases of Khorasandjian v Bush [1993] QB 727 and Wainwright v Home Office [2003] UKHL, it is a tort which is little relied upon. In Wainwright where a mother and son were strip-searched in breach of prison rules the House of Lords ruled that the infliction of humiliation and distress by conduct calculated to humiliate and distress was not, in itself, tortious at common law. Therefore, the claimants alternative case based upon an extension of the rule in Wilkinson v Downton had not been established. In order to establish this tort, the House ruled, it would need to be proved that the defendant had actually acted in a way which he knew to be unjustifiable and intended to cause harm or at least acted without caring whether he caused harm or not.
Activity 9.5
Does the rule in Wilkinson v Downton apply to the situation where a claimant has suffered deliberate humiliation at the hands of the defendant?
Define the elements of assault, battery, false imprisonment and the rule in Wilkinson v Downton Explain how liability is established in respect of these torts.
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9.5 Defences
9.5.1 Consent
Where a person consents to what would otherwise be a trespass to the person, then no such tort will be committed. Its equivalent in negligence actions is the defence of voluntary assumption of risk volenti no fit iniuria (no injury is done to one who consents). Care must be taken with consent as limits have been placed on the extent to which consent will negative the tort of trespass to the person (see below).
Implied consent
Although consent must be specific in that the claimant must consent to the interference in question, it does not need to be expressly stated. When you hold your arm out so that the nurse or doctor can give you an injection you are impliedly consenting to that injection (although not to any other procedure as consent to one medical procedure does not, in itself, justify another). It is said that people impliedly consent to ordinary social contact, for example being jostled in a crowd see Wilson v Pringle and Re: F (above). Consent, however, must be real and any consent given will be vitiated where it has been obtained by fraud or duress. So in R v Williams [1923] 1 KB 340 the defendant was guilty of rape (and, therefore, battery) as he obtained the claimants consent to sexual intercourse by falsely representing to her that it would improve her singing voice as it was a breathing exercise. In Appleton v Garrett [1996] PIQR PI a dentist was found guilty of battery where he carried out extensive and unnecessary dental treatment in bad faith and for profit and was aware that the claimants would not have consented to the treatment had they known the truth. It seems that the fraud must go to the very nature of the act and there is some authority that a fraud as to the effect and consequences of the act is not enough to vitiate consent. See Hegarty v Shine (1878) 14 Cox CC 124 and R v Clarence (1888) 22 QBD 23. However, in R v Tabassum [2000] a criminal case the defendant was found guilty of indecent assault where he had examined the breasts of women who had consented because they believed that it was for medical purposes. Therefore, the court held that although there was, in essence, consent to the nature of the act there was no consent in relation to its quality. See also R v Dica [2004].
9.5.2 Capacity
Consent will not be vitiated by the claimants age provided the claimant understands the nature of the act. See Gillick v West Norfolk Health Authority [1986] AC 112. Here the House of Lords ruled that a person under 16 could consent to such advice and treatment without the need for any parental consent provided the child had the ability to appreciate the situation. In doubtful cases, or where there is parental disagreement, the child should be made a ward of court, which can then be approached for its permission. Note that there are situations where legislation has provided that a childs apparent consent will never be valid for the purposes of the criminal law, for example the Sexual Offences Act 2003 and the Tatooing of Minors Act 1969. A person of full age may lack the capacity to consent. In T v T [1988] the parent of a 19-year-old woman was granted a declaration in relation to the termination of a pregnancy. See also Re: F [1989] below. Where a person does have the capacity to consent but does not give such consent, an action in battery will lie. This also applies to medical treatment. Medical treatment carried out without a patients consent will, with very few exceptions, amount
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However, an action in the tort of battery is not available where a patient has consented in broad terms to a procedure but complains that her consent was based upon an inadequate disclosure of a risk or risks associated with that procedure. Chatterson v Gerson [1981] QB 432. Here an action will lie in negligence.
9.5.4 Self-defence
Self-defence is a complete defence provided the force used by the defendant was both necessary and reasonable in the circumstances.
Necessary
It must be necessary to use force for this defence to lie. Where a defendant mistakenly believes defensive force to be necessary he will still have the defence provided the mistaken belief was reasonable under the circumstances. See Bici [2003]. (This is different to the criminal law where the honesty of the defendants belief is sufficient; it does not have to be reasonable.) A defendant can pre-empt an attack where he honestly and reasonably believes it is necessary to do so to ward off an attack: he does not have to wait to be attacked.
Reasonable force
The force must be reasonable; it must be proportionate to the harm threatened. In Lane v Holloway [1968] the claimant, an old, drunk man, called the defendants wife a monkey-faced tart. The defendant, who was much younger than the claimant, went out into the street. The claimant hit him ineffectually. The defendant then struck the claimant with such savagery that the blow required 19 stitches. The court held that this was not proportionate force. Although the defensive force must be proportionate, the defendant will not be expected in the heat of the moment to weigh to a nicety the exact measure of defensive force to use. See Cross v Kirby, The Times 5 April 2000. The force used must not be retaliatory. See Lane v Holloway (above).
Necessity is a very limited defence and is usually expressed as a choice between the lesser of two evils. Historically, courts have been very reluctant to allow this defence to succeed. See Southwark London Borough Council v Williams [1971] and Monsanto v Tilly [1999] although it was accepted as a limited defence by Lord Goff in Re: F and Brooke LJ in A (Children) [2001]. See also Leigh v Gladstone (1909) where it was accepted as a defence to the battery (by way of force-feeding) a suffragette on hunger strike.
Provocation
In Lane v Holloway (above) it was stated that provocation was no defence to trespass. See also Barnes v Nayer, The Times 19 December 1986 and contrast Murphy v Culhane [1977].
ASBO is an acronym for Anti-Social Behaviour Orders which were introduced in April 1999 when the Crime and Disorder Act 1998 came into force. They can be served on anybody over the age of 10 where they have behaved in an anti-social manner that caused or was likely to cause harassment, alarm or distress.
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Mr Brown v Asbo
a. Assault Define assault Consider each of the elements of assault by reference to the facts of the question. Remember an action in assault only lies where the claimant actually apprehended the application of force. Letang v Cooper; Collins v Wilcock. (Note: it is not fear but apprehension which is required.) If Mr Brown saw the apple coming towards him then he may have apprehended the force the facts of the question are silent here. If he was not aware that it was going to hit him then there could be no assault.
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If Mr Brown did apprehend the force he would need to prove that Asbo intended him to apprehend the application of force or, it seems, was reckless in the sense that he was aware of a risk that he would so apprehend the force; Venna [1976]. On the facts of the question, this is unlikely. b. Battery Define battery Was there an intentional and direct application of force? Does it matter that there was no personal contact? Does it matter that Mr Brown appears not to have been injured? Was Asbos conduct voluntary? Did he have the requisite intention?
Asbo v Mr Brown
Assault See above Do these facts indicate that there was an assault? Can words negative an assault? Tubervell v Savage Despite the words, might there have been a reasonable apprehension of contact?
Asbo v Mrs Brown (She grabbed his arm and dragged him into her house)
a. Assault See above. If Asbo apprehended the application of immediate unlawful force before Mrs Brown grabbed him and she intended him to do so then she is guilty of assault. b. Battery See above. Mrs Browns conduct was voluntary and she applied direct force to Asbo. On the facts she is clearly guilty of battery from the moment she grabbed Asbo up to the time that she locked him in the shed. It does not matter that he was not hurt as this tort is actionable per se.
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 9.1 9.2 9.3 9.4 9.5 Trespass and case Trespass to the person False imprisonment Intentionally causing nervous shock Defences Revision done
Contents
10.1 10.2 10.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Deceit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123 The economic torts: general considerations . . . . . . . . . . . . . . . 124 The economic torts: fundamentals . . . . . . . . . . . . . . . . . . . 125 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
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Introduction
You should refer back to economic loss in Chapter 5 (Section 5.1) and the difficulties of allowing recovery for negligently inflicted economic loss. The torts referred to in this chapter deal with economic loss that is intentionally inflicted or in some cases inflicted for an improper purpose.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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identify the nature of the rights protected by the economic torts explain in respect of each tort what makes the conduct illegal describe the meaning of intention and motive in the context of these torts distinguish between pure purpose and unlawful means conspiracy explain the extent to which there has to be a contract and has to be a breach in the tort of inducing breach of contract identify the kinds of threat which amount to the tort of intimidation.
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Essential reading
Markesinis and Deakin, pp.506531 (ignoring 527530) Murphy, pp.115123, 143161 Winfield and Jolowicz, pp.625661.
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10.1 Deceit
Deceit is concerned with losses resulting from deliberate falsehoods. In many cases the falsehoods result in the deceived person entering into a disadvantageous contract. You will therefore have encountered some of the relevant principles and cases when dealing with fraudulent misrepresentation in your study of the law of contract. You will also remember from Chapter 5 of this guide that in Derry v Peek (1889) LR 14 App Cas 337 the House of Lords gave a narrow meaning to the tort of deceit. As a result of that narrow view and the development of liability for negligent mis-statements, the tort of deceit has been of limited importance.
There must be a false statement of fact. The defendant must actually have said something (or positively conveyed meaning in some other way): people are generally allowed to keep silent, but may have to correct what has already been said if it becomes false or if they discover that it was false. The statement must be one of fact and not a promise of future action, although there may sometimes be deceit if the defendant gives a false statement of his own present intentions. See Edgington v Fitzmaurice (1885) 29 ChD 459. The defendant must either know that the statement is false or be reckless in the sense of being indifferent as to whether it is true or false (Derry v Peek). The important point is that honest carelessness does not give rise to liability in deceit, although it may now do so under the principle established in Hedley Byrne (Chapter 5). The defendant must have intended that the claimant should act on the statement and the claimant must actually have done so, in the sense that the false statement was at least one of the factors that induced him to behave as he did (i.e. the false statement must have been a cause of the claimants loss).
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Now that the law allows recovery of damages for negligent misrepresentation, many claimants may rely on that tort rather than starting on the hazardous course of trying to establish that the defendant was dishonest. If, however, the claimant can establish dishonesty, there is an advantage in that the damages may be greater than in a negligence claim since the claimant can recover not merely foreseeable losses, but all losses arising directly from the mis-statement. See Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Managament) Ltd. [1997] AC 254. You will recall that the measure of damages in fraud and under the Misrepresentation Act 1967 was considered in your course in the law of contract.
Self-assessment questions
In cases of deceit: 1. What must the defendant intend? 2. Does the defendant have to know that the statement is false? 3. Must the claimant act upon the representation? 4. How are damages assessed? Is the assessment of damages more favourable to the claimant than in a negligence action?
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Meaning of rights
In the last two paragraphs one could easily talk of C and D as having a right to run a restaurant, but it is necessary to consider carefully what is meant by such a right. Ask yourself the meaning of the two following statements: 1. I have a right to wear a hat. 2. I have a right to be paid for the hat which I sold to a customer yesterday. The first statement merely means that I am free to do it and not that anyone else has a corresponding duty. The right to engage in trade or business is usually a right of this kind (i.e. you are free to do it but no one else has to help you): the right is, however, protected against certain kinds of interference.
Clearly D can do various things in order to attract custom, but equally clearly he cannot set fire to Cs premises or poison the food that C is going to serve or block the access to Cs premises so that prospective customers cannot reach the restaurant. All these activities are illegal and carried out with the intention of damaging C. But in a competitive society mere intention to affect someones business adversely cannot in itself be wrong. This chapter is therefore about the limits of the action that D can take to advance his economic interests. Many legal systems would think that D should be liable in these circumstances, but to impose liability on D however falls foul of the English principle that motive is generally irrelevant (see Chapter 1).
Subject matter
Many of the principles of these torts have been worked out in cases (a) involving competition between rival businesses or (b) involving disputes between employers and employees or their trade unions. The common law has only a subordinate role to play. The former (business competition) is regulated by competition law affecting monopolies both under domestic English law and the laws of the European Community; neither of these forms part of the syllabus for this subject. The latter (employment disputes) have been much affected by trade union legislation giving some protection to things done in furtherance of a trade dispute. The content of this legislation has been changed many times over recent decades. You will not be expected to demonstrate any knowledge of this legislation.
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(Allen)
D
Diagram 1 The decision in Allen v Flood Allen (D) was an official of the Boilermakers Trade Union. He told the boilermakers employer (X) that they would go on strike unless X dismissed certain shipwrights including Flood (C). Ds actions were aimed at C, but there was no illegality on either the line between C and X or on the line between X and D. All the contracts were terminable at very short notice. So the dismissal of the shipwrights (C) was not a breach of their contracts of employment, and, if the boilermakers had walked out, they would not have broken their contracts with X. The House of Lords held that no torts had been committed. The defendants were promoting their interests. This is consistent with an earlier decision in Mogul Steamship Co Ltd v McGregor, Gow & Co [1892] AC 25, giving similar protection to the actions of the defendants who had succeeded in driving the claimants out of the tea trade with China. In Quinn v Leathem [1901] AC 495 the House of Lords held however that, if but only if the defendants acted in combination with others, they could be liable in certain circumstances for driving an employer out of business if he took on non-union labour. The upshot of these famous cases and others is that at common law the defendant is liable only if (i) the conduct interferes with a pre-existing legal right (i.e. the second kind of right mentioned above, such as the right to be paid for a hat supplied) or (ii) the defendant has interfered with the claimants business by unlawful means or (iii) there is a conspiracy aimed at the defendant. We will now consider these three categories in more detail.
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CC
X X
D
Diagram 2 The decision in Lumley v Gye
i. The first line to concentrate on is that between C and X. The defendant must have interfered with the pre-existing legal rights that C has against X. Typically this will be a contract, e.g. for the provision of services or the supply of goods. Normally C will have an action against X for breach of contract, but he has in addition a right of action in tort against D for bringing about the breach. By contrast it is not a tort for D to persuade X not to enter into a contract with C, even if it can be shown that X would almost certainly have entered into the contract if it had not been for Ds behaviour. C did not have any existing rights but merely the hope that rights would arise when the contract was made. In Lumley v Gye Gye persuaded a singer (X) to break the exclusive contract for her services that she had with Lumley, but it would not be a tort for Gye to persuade X not to enter into such a contract in the first place. Between these two extremes there are several intermediate possibilities, and it is not essential that as a result of Ds conduct C should have an action in breach of contract against X. There is an example in Torquay Hotel Ltd v Cousins [1969] 2 Ch 106. The contract between C (the hotel company) and X (suppliers of fuel oil) contained a clause providing that X would not be liable if their failure to deliver was caused by industrial action. Nevertheless it was held that, even though X could not be sued for breach of contract D, could still be liable in tort for bringing the situation about. Even though they had not caused an actionable breach of the contract, they had prevented the performance of Xs obligations under the contract. The House of Lords upheld this approach in Merkur Island Shipping Corp v Laughton [1983] 2 AC 570. See also OBG Ltd v Allan [2005] EWCA Civ 106: [2005] 2 WLR 1174. ii. The second line to consider is that connecting D to C. What state of mind does D have to have? It is not sufficient for D to foresee the breach of Xs contract with C. D must know that there is a contract and intend to breach it. D need not know all the details. D may know that there must be a contract between C and X (e.g. a contract of employment under which C will have to give some period of notice if he wants to leave) and at least be reckless as to the consequences. See Emerald Construction Co v Lowthian [1966] 1 WLR 691.
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Activities 10.110.3
10.1 Consider the relationship between the claimant and X: is it a tort: a. to prevent Xs contract being performed even if X is not personally in breach? b. to prevent performance of a void contract? c. to induce X not to enter into a contract with the claimant? d. to prevent X renewing or extending an existing contract? 10.2 Consider the relation between the defendant and X: a. what is meant by inducement? b. what is the difference between direct inducement and indirect inducement of breach of contract? c. If the inducement is merely indirect, what consequences follow? d. what counts as unlawful means for the purposes of indirect inducement?
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10.3 Consider the relationship between the claimant and the defendant:
a. how much does the defendant have to know about the claimants contract or other rights? b. does the claimant have to intend to bring about interference? c. In what circumstances might a defendant be justified in inducing a breach of contract by X?
10.3.2 Intimidation
In this tort there is no interference with genuine pre-existing rights of the claimant: the claimant is affected in his economic interests by some illegal action or threat, usually directed at or through a third party.
No illegality
D
Diagram 4 Illegality i. In this tort there is no illegality involved in the relationship between C and X. X acts lawfully in relation to C, e.g. by dismissing C from employment in conformity with the employment contract or by refusing to enter into a contract with C. ii. I n this tort D must aim at C, that is it must be Ds intention to damage the trade, business or economic interests of C. iii. The illegality arises on the line between X and D. D must either act unlawfully towards X or threaten to do so. The most important illustrations are threats of violence against X as in Tarleton v McGawley (1793) Peake NP 270 or threats of breach of contract by D or others as in Rookes v Barnard [1964] AC 1129. What counts as illegality for these purposes is discussed in the textbooks (e.g. Markesinis and Deakin pp.519 ff). This suggests that the tort of intimidation, a term which implies physical threats, should be perceived more broadly as interference with business by unlawful means. This tort might include inducing breach of contract by indirect interference. It may include fraud or misrepresentations by D (see Lonro plc v Fayed [1992] 1 AC 448) or perhaps criminal activity not involving violence (discussed in Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173). iv. I t is unclear whether there are any circumstances in which a defendant can have a defence of justification. Most cases of intimidation involve three parties as just described. It seems to be possible to have two-party intimidation, i.e. D directly intimidates C. There is, however, a difference from the three-party situation. In the three-party situation C has no remedy other than the action in intimidation if X yields to the threats and damages C. In the two-party situation C has the choice of resisting the threats and
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Activity 10.4
a. What was the illegality threatened in Rookes? b. What illegality or threat of illegality is sufficient for the purposes of this tort? c. Can intimidation ever be justified? d. What policy reasons are there for allowing or refusing an action in intimidation if D threatens C (a) with violence or (b) with breach of contract unless C gives D his (Cs) car?
10.3.3 Conspiracy
Conspiracy falls into two categories: pure purpose conspiracy and unlawful means conspiracy.
Activity 10.5
a. Why should something be actionable in tort if done by a combination (Quinn) which is not tortious if done by one person (Allen v Flood)? b. What is meant by motive or purpose in the tort of conspiracy? c. In what circumstances can a conspiracy be justified? d. If two or more people combine to do something which is illegal but not tortious if done by one person, in what circumstances is that actionable as a tort?
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identify the nature of the rights protected by the economic torts explain in respect of each tort what makes the conduct illegal describe the meaning of intention and motive in the context of these torts distinguish between pure purpose and unlawful means conspiracy explain the extent to which there has to be a contract and has to be a breach in the tort of inducing breach of contract identify the kinds of threat which amount to the tort of intimidation.
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An action for breach of contract (but did the Hirams already have a contract with the College and was it Mrs Ps aim to break that contract if there was one or merely persuade the College not to enter into a hiring contract?) An action in intimidation (but is the League threatening any breach of any contract of its own with the College?) Is there any justification (i.e. can the League argue that its desire to promote decency justifies it in its course of action if it is otherwise a tort)?
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 10.1 10.2 10.3 Deceit The economic torts: general considerations The economic torts: fundamentals Revision done
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Notes
Contents
11.1 11.2 11.3 11.4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
The different forms of nuisance . . . . . . . . . . . . . . . . . . . . . 135 Private nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 The rule in Rylands v Fletcher . . . . . . . . . . . . . . . . . . . . . . 143
11.5 The relevance of the Human Rights Act 1998 . . . . . . . . . . . . . . 146 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
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Introduction
The law of nuisance and the rule in Rylands v Fletcher are specific torts which deal with problems arising either from disturbances which affect your enjoyment of your land, or simply disturb you as a member of the public. While private nuisance and the associated rule in Rylands v Fletcher are confined to interference with your rights in land, public nuisance has a wider application. It is limited, however, to claimants who have experienced special damage above and beyond that suffered by the rest of the public. As a student, it is important to ascertain exactly when these torts will arise and how a court might be expected to deal with them. This will involve considerations of liability (should the court intervene?) and remedies (if so, how?). In particular, as torts protecting rights to land, private nuisance and the rule in Rylands v Fletcher raise fundamental questions concerning to how we, as a society, live together. To what extent should householders have the freedom to do what they want in their own property? How far should their liberty be restrained by their neighbours? In seeking to balance the interests of all parties, the courts must make difficult decisions which directly affect the quality of peoples lives.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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explain the difference between various forms of nuisance and when each form is applicable apply the rule relating to the tort of private nuisance and the related tort of the rule in Rylands v Fletcher and, in particular, be able to identify:
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who can sue when a court is likely to find liability what defences exist what remedies exist
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outline the basic rules of the tort of public nuisance identify the potential for change in the law of tort following the implementation of the Human Rights Act 1998.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
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Statutory nuisances are beyond the scope of this course, but it is important that the student obtains a clear understanding of private nuisance, and, to a lesser extent, the basic principles of public nuisance.
Statutory nuisances are simply nuisances which operate by virtue of particular statutes. The best example perhaps is that of Part III of the Environmental Protection Act 1990, which is primarily concerned with matters of public health. The rule in Rylands v Fletcher, in contrast, is a specific rule named after a case in which Blackburn J in the Court of Exchequer Chamber stated:
We think that the true rule of law is that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.
It is thus a rule of liability imposed on a person due to an escape of a non-natural substance from the defendants land. The House of Lords in Cambridge Water Co v Eastern Counties Leather plc (1994) and Transco plc v Stockport MBC (2003) determined that it will only apply where the loss suffered is reasonably foreseeable and that it is, in reality, an extension of the tort of private nuisance to isolated escapes from land.
Activity 11.1
Classify the following nuisances: a. My neighbour plays the trumpet at all hours and, as a result, I cannot sleep. b. My neighbour has parked his car across the road outside my house. As a result, I cannot drive to work. c. My neighbours barbecue exploded and my garden is now covered with pieces of broken metal.
Summary
Although the courts frequently draw comparisons between private and public nuisance, they are in reality very different torts, which seek to protect different interests and have little in common apart from their name. Private nuisance will be relevant where the claimant suffers interference with use of his or her land. Public nuisance has a different concern. This is usually a disturbance which affects the public
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in general and the claimant in particular. It is important to ascertain (a) what kind of nuisance is applicable; (b) whether liability arises; and (c) if not, whether there are any other relevant torts, for example negligence.
physical injury to land (for example, by flooding or noxious fumes) substantial interference with the enjoyment of the land (for example smells, dust and noise) encroachment on a neighbours land, for example, by spreading roots or overhanging branches, which is of minor significance.
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All three forms seek to protect the claimants use and enjoyment of land from an activity or state of affairs for which the defendant is responsible.
Activity 11.2
Helen lives in her parents house and has suffered due to persistent telephone calls from a former admirer. Can she sue in private nuisance to get him to stop?
Protean = varied.
The test is one of reasonable user, balancing the interest of defendants to use their land as is legally permitted against the conflicting interest of claimants to have quiet enjoyment of their land. It is not a test of reasonable care. It is no defence to prove that the defendant had taken all reasonable care to prevent the nuisance occurring: Rapier v London Tramways Co (1893). The court will look at the result of the defendants conduct. Such a balancing exercise places a considerable amount of discretion on the
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
judge. It is impossible to establish a legal rule as to what is a reasonable use of ones land. As Lord Wright suggests, the most that can be done is to use common sense and obtain guidance from the many reported cases in this field. It should be noted, however, that the ordinary use of your home will not amount to a nuisance, even if it discomforts your neighbour due to poor soundproofing or insulation: Southwark LBC v Mills; Baxter v Camden LBC (2001).
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Malice The state of mind of the defendant would also seem to be relevant in assessing whether the defendants use of his or her land is reasonable. For example, in Christie v Davey (1893) the plaintiff succeeded in obtaining an injunction when her neighbour, frustrated by the noise of music lessons in her home, expressed his annoyance by knocking on the party wall, beating trays, whistling and shrieking. In the words of North J at 327: what was done by the defendant was done only for the purpose of annoyance and in my opinion, it was not a legitimate use of the defendants house. See also Hollywood Silver Fox Farm Ltd v Emmett (1936). The earlier House of Lords case of Bradford Corpn v Pickles (1895), which questioned the relevance of malice, is no longer followed.
Activity 11.3
In the following scenario identify factors which would influence a court in deciding whether an action for private nuisance would succeed: My neighbour is building an extension to his home for which he has planning permission. Last weekend it was very sunny and I decided to sunbathe in my garden. Unfortunately, my neighbour was drilling all weekend and it was unbearable. I complained and was told that it would not last for long and that I would have to put up with it. To express my annoyance, I have been playing my music very loud late at night.
Self-assessment questions
1. Will loud music always amount to a nuisance? 2. How does malice differ from the other five factors described above? How important do you think it should be? 3. How easy do you think it is to predict the question of liability in private nuisance?
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
Liability thus arises in two ways, which are both fault-based:
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adopting a nuisance, that is, using the state of affairs your own purposes; or continuing a nuisance, that is, with actual or presumed knowledge of the state of affairs, failing to take reasonably prompt and efficient steps to abate it.
It is essentially a rule of good sense and convenience. Where, as in Sedleigh-Denfield, the occupier of the land is best placed to deal with the nuisance, he or she will be liable if they are found to be at fault. It has been applied to the activities of trespassers on the occupiers land (Page Motors Ltd v Epsom and Ewell BC (1982)) and acts of nature (Goldman v Hargrave (1967) failure to extinguish with adequate care a tree which had been struck by lightning and had caught fire and Leakey v National Trust (1980) failure to protect neighbouring villagers from the effect of subsidence to its land). Being fault-based, unlike the usual test for private nuisance, the courts apply a very distinctive test for liability. In finding liability in Goldman, Lord Wilberforce added that the defendants conduct should be judged in the light of his or her resources and ability to act in the circumstances. In his Lordships view, it would be unjust to demand a standard of conduct of which the defendant was not capable, or to require an excessive expenditure of money. If, therefore, the defendant is poor, and abatement will require vast expense, the defendant will not be considered negligent. Equally, less will be expected of the infirm than of the able-bodied. See also Holbeck Hall Hotel Ltd v Scarborough BC (No 2) (2000).
The landlord There are three situations where the claimant may sue the landlord in addition to any claim against the tenant:
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where the landlord has expressly or impliedly authorised the nuisance where the landlord knew or ought to have known of the nuisance before letting (see Brew Bros Ltd v Snax (Ross) Ltd (1970)) where the landlord covenanted to repair or has a right to enter to repair (see Mint v Good (1951); sections 11 and 12 of the Landlord and Tenant Act 1985; and section 4 of the Defective Premises Act 1972).
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Most controversy relates to the first category of claims, which raises difficult questions in practice. The basic rule is that the court will examine the purpose for which the premises are let and consider whether the nuisance was a necessary consequence of the letting. If so, the landlord will be liable for authorising the nuisance: Tetley v Chitty (1986). In practice, complications arise. For example, in Smith v Scott (1973), a local authority was not found to have authorised the nuisance caused by a family they housed even when they were known to be a problem family. It could not be said that the council had authorised the Scotts to commit a nuisance when it had inserted in their tenancy agreement a clause expressly prohibiting the commission of such acts. This would seem unduly favourable to the landlord. See also Mowan v Wandsworth LBC (2001). Such potential difficulties are manifest in two Court of Appeal decisions of 2000 which are difficult to reconcile: Hussain v Lancaster CC and Lippiatt v South Gloucestershire CC. They appear to reach different conclusions, and students should take particular note of the way in which the Court of Appeal in Lippiatt seeks to circumvent the earlier decision in Hussain. The question in both cases was whether the local authority would be liable for the actions of their tenants (in Hussain) or their licensees (in Lippiatt). Hussain concerned a campaign of racial harassment against a shopkeeper on the defendants housing estate. It was alleged that the council, as landlords, should have intervened to prevent their tenants from harassing the Hussains. The Court of Appeal rejected this claim. The councils standard form tenancy agreement had included a
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clause instructing the tenant not to discriminate against or harass any residents or visitors. In the circumstances, the council could not be said to have authorised these acts. Secondly, the tenants actions did not involve a use of their land, which would be required to render the nuisance actionable. The Court of Appeal in Lippiatt took a different view. Here, travellers had been allowed to stay on council land and had caused havoc by trespassing, dumping rubbish and other acts of vandalism on neighbouring land. In finding the council liable, Hussain was distinguished on two grounds:
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The travellers had used the land to commit the nuisance, here, by using it as a launching pad to commit acts of nuisance on neighbouring properties. The council was more likely to be liable for the acts of trespassers and licensees than tenants (as in Hussain). While tenants have statutory protection, it is easier to evict trespassers and licensees from land. By failing to do so within a reasonable period of time, the council found itself liable.
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It must be questioned whether this distinction is a convincing one. It is far from established that a private nuisance must emanate from use of land. It will in most cases, but is this the same as a rule? See Thompson-Schwab v Costaki (1956).
OSullivan, J. Nuisance, local authorities and neighbours from hell (2000) 59 CLJ 11. Davey, M. Neighbours in law [2001] Conv 31.
Activity 11.4
Hopeful District Council has decided to use a local church hall as a drop-in centre for drug addicts. It is very successful and attracts a number of people each day. Unfortunately, local householders have complained that after visiting the drop-in centre, saying that the addicts have been throwing needles in their gardens and the burglary rate has increased. Would the Council be liable for the actions of the addicts in nuisance?
Self-assessment questions
1. Who can be sued apart from the person creating the nuisance? On what basis? 2. What standard of care may be expected from a person who adopts or continues a nuisance?
11.2.4 Defences?
In advising a potential claimant, it is important to identify potential defences. Only when these are assessed can the student advise whether a claimant is likely to succeed. There are a number of defences specific to nuisance in addition to the ordinary defences of voluntary assumption of risk and contributory negligence. These are:
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Statutory authority If the nuisance is caused by the activities of a local authority (or any other body acting under statutory powers), it may be a defence that it is acting within the scope of its authority and therefore authorised by Parliament to act in this way. It is a question of interpretation of the relevant Act. In the absence of an express provision, the courts will interpret the Act to ascertain whether authorisation is implied: see Allen v Gulf Oil Refining Ltd (1981). Where the nuisance is the inevitable consequence of the performance of the authorised operations, a defence will lie. It is not inevitable,
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
however, if caused by the negligence of the defendant. Equally, the statute may contain a nuisance clause providing that nothing in the Act shall exonerate the undertaker from liability for the nuisance: Department of Transport v N.W. Water Authority (1983). Twenty years prescription This provides a defence where the nuisance has interfered with the claimants interest in land for more than 20 years. Two points should be noted: it does not apply to public nuisance, and time will only start from the moment the claimant is aware of the nuisance. See Sturges v Bridgman (1879). The act of a stranger See Sedleigh-Denfield v OCallaghan (1940).
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Ineffective defences
It is as important for the student to recognise defences which do not work as to identify those which will oppose the claimants action. The following are defences which have been rejected by the courts:
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Coming to the nuisance It is a well-established rule that the claimant may sue even though the nuisance was, to his or her knowledge, in existence before he or she arrived at the premises. See Bliss v Hall (1838) and Miller v Jackson (1977). Utility This is not a defence, although it may encourage the court to be more flexible in deciding a remedy: see Adams v Ursell (1913) and Miller v Jackson (1977). Due to many It is no excuse that the defendant was simply one of many causing the nuisance in question: see Lambton v Mellish (1894) where Chitty J held that if the acts of two persons, each being aware of what the other is doing, amount in the aggregate to what is an actionable wrong, each is amenable to the remedy against the aggregate cause of complaint.
Activity 11.5
Fred owns the local cricket club, which he established five years ago after receiving planning permission from the local council. It provides entertainment for the local community and draws in big crowds in the summer. Recently, Mrs Groan has moved next to the cricket ground and is complaining about the noise. She wants an injunction to close the club down. She is terrified that she will be hit by a cricket ball, although no-one has so far been hit by a ball. Fred believes there is only one chance in a million that this could happen. Advise Fred.
11.2.5 Remedies
There are three main remedies that the student should consider: an injunction; abatement; damages. It is important to consider which remedy would best suit the claimants needs. Does he or she want to stop the nuisance? If so, he or she should seek an injunction. Where the nuisance is no longer continuing, he or she would no doubt be seeking damages. In most cases, the claimant is likely to be seeking an injunction.
The main thing to note here is that it is a discretionary remedy and the claimant has no right to an injunction. Note that the court may decide to give damages in lieu of an injunction: section 50, Supreme Court Act 1981 and Shelfer v City of London Electric Lighting Co (1895). The court will seek to achieve an equitable result.
Abatement
This is a self-help remedy and thus to be exercised with caution. The most obvious example is where your neighbours branches grow over your fence and you cut them back. The House of Lords examined this remedy recently in Delaware Mansions Ltd v Westminster City Council (2002), but it is a remedy of limited utility and realistically only worth considering in relation to minor problems such as encroaching roots and branches.
Damages
The most important question in relation to damages is the extent to which the claimant may obtain compensation from his or her losses. Private nuisance, as a tort to land, is considered to protect proprietary interests. The rule therefore, as suggested by the leading case of Hunter v Canary Wharf (1997), would seem to be that the householder may obtain damages for interference with his or her interest in land, be it physical or non-physical, but not for personal injury. Damages will be awarded for the diminution in the value of the land or lesser enjoyment of the use of land or its fixtures: see Hunter v Canary Wharf, notably Lord Hoffmanns judgment. This contrasts with public nuisance where the claimant has long been accepted to obtain damages for personal injury in addition to damage to property, loss of custom, and perhaps even particular inconvenience caused to the individual. Consequential economic loss is recoverable: Andreae v Selfridge & Company Ltd (1938). Equally, damage to personal property would appear to be recoverable: see Halsey v Esso Petroleum Co Ltd (1961) damage to laundry hanging in the garden. It should of course always be considered whether the claim satisfies the rules of remoteness, which is the same test as used in negligence: are damages of a type which can be reasonably foreseen?
Newark, F. H. The boundaries of nuisance (1949) 65 LQR 480. OSullivan, J. Nuisance in the House of Lords normal service resumed (1997) 56 CLJ 483.
Self-assessment questions
1. What remedies exist for private nuisance? 2. Which will generally be the most useful? 3. What limits do the courts impose on damages for private nuisance?
Summary
Private nuisance is a tort to land and protects the claimants use and enjoyment of land. This involves a balancing exercise between the rights of the claimant and other householders. The defendant will only be liable if his or her conduct amounts to an unreasonable use of his or her land. The balancing exercise will be undertaken by judge who will take note of number of factors which are listed in 11.2.2. The leading case of Hunter v Canary Wharf has determined that only those with a right to land can sue. Potential defendants include the creator of the nuisance and, to a lesser extent, his or her employer, landlord or simply the occupier of the land who has adopted or continued the nuisance. There are a number of defences which must be considered (and those which must be rejected). It is important to consider carefully what remedies are available. Will the court grant an injunction? To what extent will a court award compensation for the claimants losses?
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
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explain the difference between various forms of nuisance and when each form is applicable apply the rules relating to private nuisance and, in particular, identify: who can sue, when a court is likely to find liability, what defences exist and what remedies exist.
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Winfield & Jolowicz, Chapter 15: Strict liability: rule in Rylands v Fletcher pp.54868.
This formula has inevitably been refined by time and now can be reduced to four points:
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the defendant brings on his lands for his own purposes something likely to do mischief which escapes (see Read v J. Lyons & Co Ltd (1947)) due to a non-natural use which causes foreseeable harm.
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All four must be proved to establish liability. In practice, it has been the last two criteria which have caused difficulties. In the important House of Lords case of Cambridge Water Co. v Eastern Counties Leather plc (1994), Lord Goff established that only foreseeable harm would be recoverable. His Lordship also questioned whether the rule should continue to be seen as analytically distinct from nuisance: it would . . . lead to a more coherent body of common law principles if the rule were to be regarded as essentially an extension of the law of nuisance to isolated escapes from land. The recent House of Lords case of Transco plc v Stockport MBC (2003) confirmed that the rule was in fact a subset of private nuisance. This case is particularly important because the House of Lords took the opportunity to review the modern scope and application of the rule in Rylands v Fletcher. In favouring a restrictive approach, the rule will in future be confined to exceptional circumstances where the occupier has brought some dangerous thing onto his land which poses an exceptionally high risk to neighbouring property should it escape, and which amounts to an extraordinary and unusual use of land.
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11.3.3 Defences
Liability will be reduced or eliminated if the escape is due partly or wholly to the claimants fault: see Ponting v Noakes (1894) and the Law Reform (Contributory Negligence) Act 1945, section 1. Unforeseeable act of stranger This is a well-established defence. The act must be due to the actions of a third party over whom the defendant has no control: see Box v Jubb (1879), Rickards v Lothian (1913) and Ribee v Norrie (2001). The third partys actions must be unforeseeable: Northwestern Utilities Ltd v London Guarantee Co (1936). Act of God Due to the advances in modern technology and science, this defence is largely defunct. The defendant will not be liable where the escape is due solely to natural causes in circumstances where no human foresight or prudence could reasonably recognise the possibility of such an occurrence and provide against it: compare Nichols v Marsland (1876) and Greenock Corp v Caledonian Rly (1917). Statutory authority This operates in a similar manner to that of private nuisance (see 11.2.4). See, generally, Green v Chelsea Waterworks Co (1894); Charing Cross Electricity Supply Co v Hydraulic Power Co (1914); and Dunne v North Western Gas Board (1964). Consent This may be express or implied and arises generally in the context of escapes from something maintained for the common benefit, for example, the water tank for a block of flats. In such circumstances, the tenant is assumed to forgo any rights against the landlord due to the benefit he or she gains, provided the escape occurs without negligence: Kiddle v City Business Properties Ltd (1942).
Activity 11.6
Janice plans to build a shed in her back garden and has bought wood and corrugated iron for this purpose which she leaves in her back garden. One night, there is a severe storm. Ken, her neighbour, is awoken by the storm and rushes out into his garden where he is hit by a large piece of corrugated iron which has blown over from Janices garden. He is now seriously ill. Due to the extraordinary winds, pieces of wood and iron blow into Kens garden ruining his prize flowers.
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Self-assessment questions
1. A bomb explodes in a factory. Does this amount to an escape? 2. Must the escape be foreseeable? 3. Does the rule in Rylands v Fletcher amount to a special rule for ultra-hazardous activities?
Summary
The rule in Rylands v Fletcher consists of four requirements: i. the defendant brings on his lands for his own purposes something likely to do mischief if it escapes ii. which escapes iii. due to a non-natural use, and iv. causes foreseeable harm. Guidance should be sought from the leading cases of Cambridge Water and Transco. Only those with a right to land may sue and there are a number of defences which are similar to those seen in private nuisance. The remedy will usually be that of damages, but it will be confined to proprietary losses and exclude claims for personal injury.
apply the rule in Rylands v Fletcher identify who can sue, when a court is likely to find liability, what defences exist and what remedies exist.
the interference does not affect the claimants land but the public as a whole and the claimant has suffered special damage.
For the claimant, there are two main concerns: Has the nuisance affected a class? Can I show special damage? Special damage consists of damage in excess of that suffered by the public at large. It must be direct and substantial and covers personal injury, property damage, loss of custom or business and, it is claimed, delay and inconvenience. If the individual cannot prove special damage, the only other basis on which an action may be brought in tort is in the name of the Attorney-General by means of a relator action (for example, see P.Y.A. Quarries above) or by a local authority under section 222 of the Local Government Act 1972: see, for example, Stoke-on-Trent City Council v B & Q (Retail) Ltd (1984).
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Spencer, J. R. Public nuisance a critical examination (1989) 48 CLJ 55. Kodilinye, G. Public nuisance and particular damage in the modern law (1986) 6 LS 182.
Activity 11.7
Catherine works in a city law firm in central London, but commutes from Balham in South London every day. To reach the station, she must pass under a railway bridge. Unfortunately due to pigeons roosting in the bridge, her suit has been ruined by pigeon droppings. She has complained to the railway company who own the bridge, but they refuse to do anything about the pigeons and told her to walk faster under the bridge. She has spoken to other commuters who have suffered the same problem. Advise Catherine. (Consider Wandsworth L.B.C. v Railtrack plc [2002] QB 756.)
Self-assessment questions
1. What is meant by special damage? 2. May a claimant without special damage sue in public nuisance?
Summary
Claims relating to public nuisance are usually straightforward. Provided the student recognises the possibility of a claim distinct to private nuisance and the two criteria mentioned above are satisfied, few difficulties arise.
explain the difference between various forms of nuisance and when each form is applicable.
Who can sue? Increasing the landlords liability for the actions of tenants.
The question here is of compatibility with Article 8 (right to a private and family life) and Article 1 of Protocol 1 (right to peaceful enjoyment of ones possessions). It should be noted in consulting any texts on tort that the decision of the European Court of Human Rights in Hatton v United Kingdom [2002] 1 FCR 732 which favoured intervention under Article 8 has since been overturned: (2003) 37 EHRR 28.
Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
has lived in the house for some time and had his enjoyment of the home interfered with, is at the mercy of the person who owns the home, as the only person who can bring proceedings. It is, however, weak authority a striking-out decision from Birmingham District Registry and it remains to be seen whether the courts will follow it. Note also the restrictive approach taken by the House of Lords in Marcic v Thames Water Utilities Ltd (2003).
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Activity 11.8
a. To what extent are the rights protected by European Convention of Human Rights applicable to claims for nuisance? b. What is the potential impact of McKenna?
Summary
The potential of the Human Rights Act 1998 to alter the rules of tort law remains to be seen. Challenges have already commenced. This is a developing area of law, but it is important to be able to indicate, when necessary, possible areas of change.
identify the potential for change in the law of tort following the implementation of the Human Rights Act 1998.
Rook, D. Property law and the Human Rights Act 1998: A review of the first year [2002] Conv 316. Morgan, J. Nuisance, property and human rights (2002) 118 LQR 27. Bright, S. and Bakalis, C. Anti-social behaviour: local authority responsibility and the voice of the victim (2003) 62 CLJ 305.
Examination advice
The topics of nuisance and the rule in Rylands v Fletcher usually arise in the same question and have therefore been dealt with together in this chapter. It is important to identify and distinguish between the different types of nuisance and recognise just when the rule in Rylands v Fletcher applies. Common errors include failing to appreciate a potential claim in public nuisance and applying the rule in Rylands v Fletcher indiscriminately. In relation to private nuisance, it is important to check that the interference is with an interest in land, the claimant has such an interest and remember that it may restrict the damages for which he or she is claiming. If the claimant does not have an interest in land, it will also exclude a claim under Rylands v Fletcher, but it still may be worth considering an alternative claim in public nuisance (or even negligence). As always, the student should read the question carefully and ascertain exactly what he or she is being asked to do: Is there a cause of action? On what basis? Do you think a court would find liability? Are there any defences? What remedies are available?
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Law of Tort 11 The law of nuisance and the rule in Rylands v Fletcher
A more fundamental question also arises: do the noise and property damage amount to a nuisance at all? The noise disturbs the worshippers (who have no rights to sue), but are they extra-sensitive (see Heath v Mayor of Brighton (1908))? Damage to property will, however, normally be regarded as a nuisance: see St Helens Smelting Co v Tipping (1865). ii. Public nuisance This will be based on the traffic jams in the village. It must be questioned, however, whether Arabella herself can show special damage. iii. The rule in Rylands v Fletcher The exploding barbecue would appear to fit under this head. The four requirements set out in Cambridge Water would appear to be satisfied, assuming that the damage is reasonably foreseeable. There is no personal injury to worry us here. d. Defences There does not seem to be any potential defences to discuss. e. Remedies Arabella really would like an injunction to stop the property damage and damages for the barbecue explosion. She would not obtain any damages for personal injury under private nuisance or the rule in Rylands v Fletcher. It seems unlikely that social utility would prevent the court from awarding an injunction (contrast Miller v Jackson (1977)).
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who can sue when a court is likely to find liability what defences exist what remedies exist
I can outline the basic rules of the tort of public nuisance I can identify the potential for change in the law of tort following the implementation of the Human Rights Act 1998.
If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 11.1 11.2 11.3 11.4 The different forms of nuisance Private nuisance The rule in Rylands v Fletcher Public nuisance Revision done
12 Defamation
Contents
12.1 12.2 12.3 12.4 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General principles . . . . . . . . . . . . . . . . . . . . . . . . . . . What does the claimant have to prove? . . . . . . . . . . . . . . . . 152 153 155
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Introduction
Defamation is a tort which protects the claimants reputation. As such, it does not directly protect claimants from intrusion into their private life, but against wrongful attacks to their reputation. This has a number of consequences. First, although abuse in private may be hurtful, defamation will only occur when a third party knows of the allegations that is, when the claim has been published. Further, it is irrelevant that the defendant did not intend to harm the claimant this will not prevent the claimants reputation being harmed, although it may, as we shall see, provide the defendant with a defence. We must also now look at defamation in the light of the Human Rights Act 1998 and, in particular, Article 10 which deals with freedom of expression. Paragraph 2 of Article 10 expressly states that the exercise of freedom of expression must be weighed against the need to protect the reputation or rights of others. The law of defamation must therefore strike a balance between protecting claimants against untrue statements which attack their reputation and the freedom of the defendant to express his or her views. This becomes particularly significant in relation to the press. Students must therefore be aware of the human rights issues arising from this particular tort.
Learning outcomes
By the end of this chapter and the associated readings you should be able to:
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Explain the nature and purpose of the tort of defamation Identify the general principles and distinguish between libel and slander Apply the rules relating to liability and, in particular, be able to identify:
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when a statement will be judged defamatory when a statement refers to a claimant when a statement has been published what defences exist what remedies exist.
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Discuss the impact of the Human Rights Act 1998 on the law of defamation.
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Winfield & Jolowicz, Chapter 12: Defamation and related matters, pp.404410.
imputation of a criminal offence punishable by imprisonment imputation of a contagious disease, for example, leprosy or plague imputation of unchastity or adultery by a female (s.1, Slander of Women Act 1891) imputation of unfitness or incompetence (s.2, Defamation Act 1952).
The last category arises most frequently in practice and should therefore be particularly noted. It extends to all words likely to disparage the claimants official, professional or business reputation, whether or not the words relate to the claimants office, profession, calling, trade or business.
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Activity 12.1
Identify whether the following statements involve libel or slander: a. I put on a play in London in which one of the lead characters insults my neighbour, Albert. b. I produce a model of Albert in my front garden which I dress as a burglar. c. I write in chalk on the pavement in front of Alberts house: Albert is a thief!
Self-assessment questions
1. What is the difference between libel and slander? 2. What is the role of a jury in a defamation trial? 3. Can a dead person sue for libel? 4. What are the four forms of slander that are actionable per se?
Summary
The courts distinguish libel from slander, regarding libel as more significant. Libel is thus a crime and actionable per se. Slander will require proof of special damage, except in four situations. The distinction between libel and slander is far from clear. Academics have questioned whether writing in chalk on walls and sky-writing by aeroplanes should be classified as libel or slander, although the conventional wisdom suggests libel. Such confusion will remain as long as English law continues to rely on this distinction. A further source of difficulty remains the use of judge and jury in most defamation cases. It is now rare to use a jury in a civil case and large awards of damages by juries have caused controversy and led to calls for reform.
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Identify the general principles of libel and slander and distinguish between them.
Winfield & Jolowicz, Chapter 12: Defamation and related matters, pp.410429.
The defendant must prove three things: that the statement is defamatory, refers to the claimant and has been published to a third party. The statement is presumed to be false unless proven otherwise. These three questions will be examined below.
Innuendo
Defamation is not confined to direct attacks on the claimants reputation. To protect the claimants reputation, defamation must also include implied or veiled attacks, which are generally known as innuendo. There are two types of innuendo: true (or legal) and false (or popular). A true innuendo is a statement where the attack is truly hidden in the absence of special facts and circumstances, which the claimant must show are known by some of the people to whom the statement is published. Tolley v J.S. Fry & Sons Ltd [1931] AC 333 is an example of this. Here, a famous amateur golfer alleged that a caricature of him had appeared without his knowledge or consent in an advertisement for Frys Chocolate. This, in itself, was not defamatory. However, Tolley claimed that for people who knew of his amateur status it would imply that, contrary to acceptable amateur conduct, he had accepted money. The House of Lords held the advertisement to be capable of bearing the meaning alleged. People knowing of Tolleys amateur status might think less of him and therefore his reputation would be diminished. Equally, in Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 there was nothing defamatory in publishing a photograph depicting Cassidy and a young woman announcing that they were engaged. However the fact that Mr Cassidy was still married led the majority of the Court of Appeal to recognise that the words were defamatory of the existing Mrs Cassidy, on the basis that a reasonable person knowing of their relationship might assume that she had cohabited with Cassidy outside marriage. This, in 1928, would be regarded in a negative light. It was no excuse that the newspaper did not know that Cassidy was already married, and had in fact been told by Cassidy that he was engaged to the woman with whom he had been photographed. A false innuendo is one which a reasonable person guided by general knowledge would infer from the natural and ordinary meaning of the words: Lewis v Daily Telegraph Ltd [1964] AC 234. The court does not have to be informed of any specific facts to draw this inference. For example, in Lewis itself, a paragraph in a newspaper had stated that the Fraud Squad were investigating the affairs of a company and
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its chairman, Mr Lewis. This was in fact true, but it was claimed that the paragraph contained an innuendo: that the company was being operated in a fraudulent and dishonest way. The majority of the House of Lords rejected this interpretation. A reasonable person might infer from the paragraph that the company and Lewis were suspected of fraud, but would not assume that Lewis and the company were guilty of such conduct. The general test is therefore: would the reasonable person view the statement as defamatory on the particular facts of the case?
Activity 12.2
Barbara has argued with her friend, Charles. He has now put up posters around the town which make the following statements:
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Barbara has plenty of friends, especially men. Barbara has spent some time in the police station, helping the police with their inquiries. Barbara is a thief. But at the bottom of the poster in small letters it says, in the local play. Do go and see it!
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Self-assessment questions
1. What is the meaning of defamatory? 2. What is the distinction between a true and false innuendo? 3. Can a misleading headline always be neutralised by the text of the story?
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Group defamation
Where the statement is general, the claimant will not be able to bring a claim for defamation unless he or she can show that it relates to him or her specifically. For example, if we use the phrase politicians cannot be trusted, there are many politicians and there is nothing to indicate to which politician it refers. In contrast, if the statement criticises a large company, for example, Tort Enterprises cannot be trusted, the company, which has its own legal identity, would be able to sue. Generally, therefore, criticism of a group of individuals will not support an action for defamation unless the group is so small that the claimant can establish that the statement must apply to every member of the class, or the claimant can identify some particular reference in the statement which singles himself or herself out. Therefore in the leading case of Knuppfer v London Express Newspaper Ltd [1944] AC 116, Knuppfer was unable to succeed in his claim for defamation. The article in question had criticised the Young Russian political party Mlado Russ, which had a small British branch of 24 members of which Knuppfer was the head. He claimed that his position as head was enough to single him out from the group. The House of Lords disagreed. There was not even a reference to the British branch in the article, which concerned the party generally. A reasonable person would therefore not have found Knuppfer to be singled out in the article.
Activity 12.3
A local newspaper carries the following story:
Corruption in high places. The Tortbury church choir has been pocketing all your collection money why do you think the vicar looks so happy? Clearly singers cannot be trusted. You might suppose that his superior would keep a better eye on him!
Amy (a chorister in the church choir), the vicar, Mrs Bloggs (a keen local singer), and the vicars superior, the Bishop, all wish to know whether they can sue for defamation.
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Self-assessment questions
1. Why must the claimant prove that the statement refers to him or her? 2. Is it true that as long as I refer to a fictional character I cannot be sued for defamation? 3. Is it impossible to bring a claim for group defamation?
12.2.3 Publication
The tort of defamation seeks to protect the claimants reputation. Statements will only harm the reputation if third parties are aware of them. Publication, that is communication of the libel or slander to a third party, is therefore a vital component of the tort. This is obviously satisfied by the printing of an article in a newspaper or book or shouting a remark in front of other people, provided the words are intelligible to the third party. Problems arise, however, when the defendant alleges that he or she did not intend to publish the statement and that it was meant to be a private remark between the claimant and defendant. Again, intention is not a defence. If it is reasonably foreseeable that the statement might come to the knowledge of a third party, publication will exist. In Theaker v Richardson [1962] 1 WLR 151, therefore, the defendant was liable for sending a defamatory letter to a married woman, which had been opened by her husband. The letter, which had been addressed to the wife, had been sealed in a brown envelope which looked like an election circular. The court upheld the view of the jury that it was foreseeable that the husband would open the letter. (Contrast Huth v Huth [1915] 3 KB 323.) Repeating a defamatory statement will be regarded as a further publication, leading to liability. Repetition will increase the damage to the claimants reputation. The original defamer may, however, still be found liable for the repetition if he or she has:
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authorised or requested publication intended that the statements should be repeated or republished, or informed a person, who is under a moral duty to repeat or republish the statement.
The original defamer will thus remain liable if the republication is, on the facts, the natural and probable result of the original publication: Slipper v BBC [1991] 1 QB 283. The Court of Appeal in McManus v Beckham [2002] 1 WLR 2982 doubted whether the Slipper test was fair to the defendant. It recommended that the jury should be directed that the defendant would be liable for the damage if either (a) the defendant knew that what she said or did was likely to be reported and that if she slandered someone that slander was likely to be repeated in whole or in part, or (b) a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage done by the slander.
Activity 12.4
Has publication occurred in the following examples? a. Anne sends a postcard to Boris, which states You are utterly dishonest. b. Charles sends a letter to David marked private and confidential in which he accuses David of adultery. The letter is opened by Davids wife. c. Elizabeth tells Fiona that Geraldine is a thief. Fiona, a renowned gossip, tells everyone in the village. d. Harry, the famous footballer, walks into Ivors shop and announces your football boots are rubbish. James, the keen reporter, writes this down and his article appears in the local newspaper.
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Self-assessment questions
1. Why must an article be published? 2. I leave a letter in a locked drawer in which I accuse Dominic of being a cheat. My cleaner breaks into the drawer and reads the letter. Have I published this letter to my cleaner? 3. Am I liable for simply repeating a defamatory statement?
12.3 Defences
Essential reading
There are a number of defences to defamation. They provide a broad, if complicated, basis on which the defendant can justify publication on the basis of freedom of expression, truth or consent. We will survey them below, but students should take particular note of justification (12.3.1), fair comment (12.3.2) and qualified privilege (12.3.3). Recent case law has been particularly active in the field of qualified privilege, in which the courts have explored the impact of the Human Rights Act 1998 on the tort of defamation.
Activity 12.5
Keith writes an article in which he accuses Lenny, a well-known amateur athlete, of writing a book for profit. Lenny responds by writing a letter to Keiths newspaper in which he accuses Keith of being a libellous journalist. In fact, Keith has experienced difficulties in proving whether Lenny was writing the book for profit, but has discovered that he accepted money for wearing a particular type of footwear. Keith has once been sued for libel, but the claim was settled prior to trial. Can either of these facts serve to justify the allegations made by Keith and Lenny?
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the statement must be in the public interest it must be a comment on true facts it must be honest and fair.
A failure to show one of these requirements will result in the claim failing. It is important to note, however, that the public interest does not translate into any topic which the public is interested in, but matters in which people generally are legitimately interested or concerned: see London Artists v Littler [1969] 2 QB 375 at p. 391. The statement must be a comment on a true set of facts. This can be inferred, for example, from a headline as in Kemsley v Foot [1952] AC 345, although the House of Lords seemed to adopt a stricter line in the more recent case of Telnikoff v Matusevitch [1992] 2 AC 343. Here, a letter was written in response to a previously published article in the Daily Telegraph. In deciding whether the allegation of racism was a statement of fact or comment, the court examined the letter without reference to the article it criticised. Their Lordships reasoned that many readers of the letter would not have read the article or have limited recollection of its contents. It should therefore be judged in isolation. See also section 6 of the Defamation Act 1952. The comment must also be fair and honest. The courts use an objective test: was the opinion, however exaggerated, obstinate or prejudiced, honestly held by the person expressing it? See Lord Nicholls in Reynolds v Times Newspapers [2001] 2 AC 127 and Albert Cheng v Tse Wai Chun [2001] EMLR 31, and Eady J in Branson v Bower (No 2) [2002] QB 737.
Activity 12.6
Mavis publishes the following article:
MORE EVIL THAN NORRIS: Oliver is an unrepentant racist and should be fired from his job. Such people do not deserve to work in our society.
Norris and Oliver have stated their intention to sue Mavis for defamation. Can she rely on the defence of fair comment? Norris is a television presenter, who often expresses controversial views in his television programme. Oliver had earlier written an article in the same newspaper in which he had expressed strong views against immigration. Last year, Oliver and Mavis had applied for the same job, which was given to Oliver.
Self-assessment questions
1. When can a defendant rely on a defence of justification? 2. Must the defendant prove that every allegation is true? 3. Why is fair comment important in terms of freedom of expression? 4. How easy is it to distinguish between a statement of fact and a comment on a true sets of facts?
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Explain when the defendant can successfully rely on the defences of justification and fair comment.
12.3.3 Privilege
Absolute privilege
This can be dealt with briefly. There are two types of privilege in English law: absolute and qualified. Absolute is the stronger form of privilege and applies on occasions where the need to protect freedom of speech is so important as to create an absolute defence to any action for defamation, irrespective of the motives or words of the author. Examples include statements made in Parliament by MPs (see Hamilton v Al Fayed [2000] 2 WLR 609 and s.13, Defamation Act 1996), reports and papers ordered to be published by either house of Parliament, judicial proceedings, fair and accurate contemporaneous reports of United Kingdom court proceedings (s.14, Defamation Act 1996) and communications between high officers of state (Chatterton v Secretary of State for India [1895] 2 QB 189).
Qualified privilege
This is a weaker form of privilege. It will only apply on occasions where it is desirable that freedom of speech should be protected, but not where the author is activated by malice: see Horrocks v Lowe [1975] AC135. It is for the judge to decide whether the occasion is a privileged one, and whether a reasonable jury could find that the authors dominant motive was malice. The jury will decide whether any allegation of malice has been proved. Qualified privilege exists at common law and under the Defamation Act 1996. Qualified privilege at common law The courts look for two requirements:
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That X had a duty or interest in communicating the information to Y. This may be legal, moral or social. Y has a corresponding interest in receiving the information in question.
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See Adam v Ward [1917] AC 309; Toogood v Spyring (1834) 1 CM & R 181; Osborn v Boulter [1930] 2 KB 226; Watt v Longsdon [1930] 1 KB 130; Bryanston Finance Ltd v de Vries [1975] QB 703; and Kearns v General Council of the Bar [2002] 4 All ER 1075. Therefore, if my old employer writes a reference for me and sends it to my new employer, that reference will be protected by qualified privilege. My former employer is under a social duty to provide such a reference. My new employer has a keen interest in receiving the reference. Both requirements are thus satisfied, and my former employer will be protected against a claim for defamation unless the reference is written with malice: Spring v Guardian Assurance [1995] 2 AC 296. In view of the importance given to freedom of expression, it has been questioned whether the media should always be able to claim qualified privilege for any story they publish, especially when they concern political figures. In Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the House of Lords firmly rejected any general head of qualified privilege. The court would instead look at each case individually. However, Lord Nicholls did give some guidance. In future, courts should consider a number of factors (which are not exhaustive) in deciding whether a duty to publish political discussion could be established, namely:
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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 the nature of the information is it a matter of public concern?
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The Reynolds test has been applied subsequently in a number of cases. It is clearly not an easy test to satisfy. The test is one of responsible journalism and it is for the newspaper, with reference to the 10 criteria listed above, to demonstrate to the court that they deserve the defence of qualified privilege. See Loutchansky v Times Newspapers Ltd (No.1) [2001] 4 All ER 115; Loutchansky v Times Newspapers Ltd (No.2) [2002] QB 783; Bonnick v Morris [2003] 1 AC 300, PC; and Jameel v Wall Street Journal Europe SPRL [2005] EWCA Civ 74, Independent, February 9, 2005, CA. Qualified privilege under statute This may be found under section 15 and Schedule 1 of the Defamation Act 1996. Section 15 provides that publication of any report or statement contained in Schedule 1 of the Act is privileged unless published with malice. Schedule 1 is divided into two sections. Part I deals with reports which are privileged without explanation or contradiction. Part II deals with reports which are privileged subject to explanation or contradiction, that is, that qualified privilege may be lost if it is proved that the defendant has been requested, by the claimant, to publish in a suitable manner a reasonable letter or statement by way of explanation or contradiction, and has refused or neglected to do so: section 15(2). See McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277.
You should look up this Act to discover what these sections mean.
Trindade, F. A. Defamatory statements and political discussion (2000) 116 LQR 185. Williams, K. Defaming politicians: the not so common law (2000) 63 MLR 748. Loveland, I. Freedom of political expression: who needs the Human Rights Act? [2001] PL 233.
the defendant is not the author, editor or commercial publisher of the statement the defendant took reasonable care in relation to the publication the defendant did not know, or had no reason to believe, that what he or she did caused or contributed to the publication of a defamatory statement.
It thus serves to protect parties involved in the distribution process, who inadvertently become involved in the publication of defamatory material, provided that they undertake reasonable care. Further, sections 1(3)(a)(e) provide a non-comprehensive list of individuals who do not qualify as authors, editors or publishers. See Godfrey v Demon Internet Ltd [1999] 4 All ER 342.
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to admit that he or she was wrong (or partly wrong) to offer in writing to make a suitable correction and apology to publish the correction and apology in a manner that is reasonable and practicable in the circumstances to pay the claimant such compensation (if any) and such costs as may be agreed or determined to be payable.
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If an offer to make amends under section 2 is made, but not accepted, it is a defence unless the defendant knew or had reason to believe that the statement referred to the claimant and was false and defamatory of him or her: see section 4, as applied in Milne v Express Newspapers (No.1) [2004] EMLR 24, and Horrocks v Lowe [1975] AC 135. The person making the offer need not rely on it as a defence, but if he does, section 4(4) specifies that he may not rely on any other defence. In any event, any offer may be relied on in mitigation of damages: section 4(5).
12.3.6 Consent
It is a defence if the claimant has expressly or impliedly consented to the publication of the defamatory matter: Cookson v Harewood [1932] 2 KB 478n; Chapman v Lord Ellesmere [1932] 2 KB 431.
Activity 12.7
The Daily Scandal publishes the following story:
Ex-prime minister, Tony Brown, in funding scandal. Just where did those party millions go? Yesterday, Mr Brown was not answering his telephone, despite the continued efforts of our journalists. Oh no, Mr Brown. Just what have you been up to??!!!
The story is later found to be untrue. It was based on allegations by Mr Browns former Parliamentary Secretary who had been dismissed for dishonesty. She has now withdrawn the comments and left the country. The Daily Scandal wish to rely on qualified privilege.
Self-assessment questions
1. When can a defendant rely on absolute privilege? 2. How can a claimant undermine a defence of qualified privilege? 3. Is it true that a newspaper can always rely on qualified privilege when printing a story involving a political scandal? 4. When will the defence of innocent dissemination apply? 5. When can the defendant use an offer to make amends as a defence?
Explain when the defendant can successfully rely on the defences of absolute and qualified privilege. Explain when the other defences of innocent dissemination, unintentional defamation and consent may be relevant. Discuss the relevance of the Human Rights Act 1998 in this context.
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12.4 Remedies
Essential reading
There are two main remedies: damages and injunctive relief. Damages are assessed by the jury. They may include an award for aggravated damages (where the defendants conduct has led to additional mental distress) and exemplary damages (where the defendant deliberately sets out to profit at the expense of the claimants reputation). Attention should also be drawn to sections 12(1) and (4) of the Human Rights Act 1998 which ask the courts to have particular regard to freedom of expression when considering whether to grant a remedy which might affect this right. Concern has been expressed that the jury, despite judicial direction, is not the best body to assess damages. In most other civil cases, damages will be assessed by the judge. After a series of notoriously high awards, there have been a number of reforms. First, section 8 of the Courts and Legal Services Act 1990 now empowers the Court of Appeal to substitute its own figure of damages for that of the jury without the need for a retrial. Secondly, the cases of Rantzen v Mirror Group Newspapers (1986) Ltd [1994] QB 670 and John v Mirror Group Newspapers Ltd [1997] QB 586 seek to increase judicial guidance. A jury will now be directed to seek guidance from previous Court of Appeal decisions under section 8, and to consider the purchasing power of the award and whether it was proportionate to the damage suffered. Reference may also now be made to the level of damages awarded in personal injury cases. See also Kiam v MGN Ltd [2003] QB 281 and Grobbelaar v News Group Newspapers Ltd, HL [2002] 1 WLR 3024. The courts are, however, reluctant to grant injunctions prior to trial (interlocutory injunctions). This would amount to a restriction of freedom of speech without the benefit of full consideration by the court. As stated in Bonnard v Perryman [1891] 2 Ch. 269, the court has the jurisdiction to restrain by injunction the publication of a libel, but the exercise of this jurisdiction is discretionary. An interlocutory injunction should therefore not be granted except in the clearest cases, and should not be granted when the defendant swears that he will be able to justify the libel, and the court is not satisfied that he may not be able to do so. This was supported by the Court of Appeal in Holley v Smyth [1998] QB 726. The courts discretion to grant interlocutory relief would not ordinarily be exercised to restrain a libel where the defendant had a defence or claimed justification, unless the claimant had proved that the libel was plainly untrue. Claims may also be dealt with summarily under sections 810, Defamation Act 1996. Where the claimant has no realistic prospect of success and there is no reason why the claim should be tried, the claim will be dismissed: s.8(2). Where it appears to the court that there is no defence to the claim which has a realistic prospect of success and there is no other reason why the claim should be tried, in contrast, the court may give judgment and summary relief to the claimant: ss.8(3) and 9.
Activity 12.8
Reg Rocker, the famous pop star, brings a libel action in relation to the following story in the Daily Scandal: Reg Rocker doesnt sing live he is miming to a CD! He prides himself on his live performances. During the trial, the jury are clearly impressed by him and award him 8 million in damages. In the court next door, a victim of a road traffic accident caused by negligent driving, who is paralysed from the neck down and has a life expectancy of 2 years, is awarded 1.5 million in damages. Reg is now concerned that the Court of Appeal may reduce his damages and seeks your advice.
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Self-assessment questions
1. Who assesses the level of damages? 2. What guidance may a judge give the jury? 3. Will it be easy to obtain an injunction to prevent publication of a forthcoming story which I believe to be defamatory of me?
Summary
The remedies given by the court are obviously important. They seek to re-establish the reputation of the claimant. Although a large damages award may express the jurys indignation as to how the newspaper has treated the claimant, the courts have been careful to emphasise that damages should be compensatory and any larger award must be justified as exemplary damages.
Identify which remedies exist and any potential difficulties arising from the award of damages.
Examination advice
The topic of defamation may appear in the form of an essay or a problem question. An essay will usually focus on the interest protected by defamation (the reputation) and compare it with provisions which provide for freedom of expression (notably Article 10 of the European Convention on Human Rights, now implemented in UK law by the Human Rights Act 1998). Problem questions tend to focus on various statements and whether they are defamatory, refer to the claimant, published, and require the student to identify any defences which may exist. Students must also be careful to distinguish defamation from claims for harassment, injury to privacy rights and malicious falsehood. Harassment is now covered by the Protection from Harassment Act 1997. Privacy is protected by breach of confidence, and malicious falsehood deals with false statements of fact which can be shown to damage the business interests of the claimant: Khodaparast v Shad [2000] 1 WLR 618.
Maisie Mazda had once had cosmetic surgery to remove a small mole from her cheek. The coverage on page 7 of the newspaper explains that the girl in the photograph is Horaces niece, Jackie, whom he and his wife brought up after her parents were killed in an air crash when she was aged 8. Advise as to any possible claims in defamation.
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Is the statement defamatory? Does it refer to the claimant? Has it been published? Any there any defences?
We will look at each statement in turn. a. What a motley crew are on offer for the good voters of Barsetshire North! The word motley is clearly not flattering, but seems to be used in jest. It would be difficult to allege that this realistically tended to lower the plaintiff in the estimation of right-thinking members of society generally (Sim v Stretch [1936] 2 All ER 1237). Usually, it will, in any event, be difficult for a member of a group to show that the statement directly point to him or her: see Knuppfer v London Express Newspaper Ltd [1944] AC 116. Here, one presumes that the crew consists of Maisie, Tom and Horace. This being a small group, group defamation would not be an obstacle. However, they would be unlikely to succeed in showing that the statement is defamatory. b. First theres Maisie Mazda. Like all politicians, she likes to pass herself off as something she is not. She may look the glamorous granny, but we know its not nature but the surgeons knife which gave her the face and figure she always seems so anxious to flaunt. Here, Maisie will have to show that this statement is defamatory, namely that it tends to lower the plaintiff in the estimation of right-thinking members of society generally. The allegation is that she has had cosmetic surgery. Is such a statement enough to make right-thinking members of society think less of her? In our society, more and more people are having cosmetic surgery. It is no longer unusual and indeed common amongst public figures. However, we do note that people often deny having cosmetic surgery, preferring others to believe that their good looks are natural. Is this allegation therefore enough to lower her reputation? It seems doubtful. However, there is a further allegation that Maisie likes to pass herself off as something she is not. The innuendo is that in having cosmetic surgery, she is showing that she is dishonest and seeks to mislead. This would seem to harm Maisies reputation. Having shown that the statement is defamatory, the statement clearly refers to Maisie (she is named) and has been published (it is on the front page of a newspaper). We now need to look at defences. We are told that Maisie Mazda had once had cosmetic surgery to remove a small mole from her cheek. On this basis, the Barsetshire Chronicle is likely to try and prove justification. It must show that the words used were substantially true: Alexander v North Eastern Railway Co (1865) 6 B & S 340. Even if the statement simply referred to Maisie having cosmetic surgery, it cannot be said to be substantially true. There is a considerable difference between surgery to her face and figure and the removal of a small mole. In any event, the Chronicle must justify every allegation (or sting) which arises from the statement: Cruise and another v Express Newspapers plc [1999] QB 931. Suggestions of dishonesty are clearly not justified by the fact that she had minor cosmetic surgery in the past. Other defences such as fair comment and qualified privilege might also be considered. A fair comment must be based on a substantum of fact (see Kemsley v Foot [1952] AC 345). There is one fact the surgery on the mole and politicians are a matter of public interest, but was the opinion, however exaggerated, obstinate or prejudiced, honestly held by the person expressing it? Comments may be exaggerated, but the court will look for the presence of malice which will undermine the fair comment defence. Here, the words used go far beyond a comment on minor cosmetic surgery and must throw doubt on this defence. Qualified privilege (see Reynolds v Times Newspapers [2001] 2
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Conclusion
In summary, Maisie, Horace and Jackie would appear to have good claims in defamation. The claim of Tom seems more problematic.
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when a statement refers to a claimant when a statement has been published what defences exist what remedies exist
Discuss the impact of the Human Rights Act 1998 on the law of defamation.
If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 12.1 12.2 12.3 12.4 General principles What does the claimant have to prove? Defences Remedies Revision done
13 Miscellaneous
Contents
13.1 13.2 13.3 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Vicarious liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171 Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179 Reflect and review . . . . . . . . . . . . . . . . . . . . . . . . . . . 185
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Introduction
This chapter considers three topics of general importance. The first is vicarious liability, where an employer in the usual case is held liable for torts committed by an employee. The second is a range of defences on the grounds of contributory negligence, consent to the tort, and participation in an illegal action. Finally, we look at remedies for torts: damages, the use of structured settlements, and the effect on damages where one of the parties dies.
Learning outcomes
By the end of this chapter and the relevant readings, you should be able to:
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distinguish between primary and vicarious liability suggest reasons why the law should hold employers liable for certain torts committed by their employees distinguish between an employer and an independent contractor identify when an employee is acting in the course of employment explain the provisions of the Law Reform (Contributory) Negligence Act 1945 describe what is meant by contributory negligence explain the basis on which the courts reduce damages as the result of contributory negligence explain the role of consent as a defence to an action in negligence or breach of a tort of strict liability describe when a defendant is able to exclude tortious liability explain when a defendant may escape liability by showing that the claimant had consented to run the physical risk of injury explain in what circumstances a defendant may escape liability by showing that the claimant had been acting illegally or morally reprehensibly at the time of the injury explain the purposes of damages in tort for personal injuries and the general principles according to which they are assessed explain the nature of structured settlements and their advantages and disadvantages explain the effect on compensation for personal injuries if the victim dies.
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Markesinis and Deakin, pp.571603 Murphy, pp.503524 Winfield and Jolowicz, pp.701734 Lunney and Oliphant, pp.757796.
The employer has established a business and derives the economic benefits of commercial success: the employer ought therefore to be liable for damage caused by the business. The employer has created a risk and should be answerable if the risk materialises. Similar arguments have been used to justify other examples of strict liability, such as consumer protection and liability for animals (see Chapter 8).
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the alleged tortfeasor was an employee the employee committed a tort the employee committed the tort in the course of employment.
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But dont forget that employers may still be liable primarily for any negligence of their own, e.g. in training or supervising the employee.
iii. The tort must have been committed in the course of employment
This proposition is rather obvious, but it has proved difficult to identify a test that will distinguish between those torts that do occur in the course of employment and those that do not. The modern tendency of the courts seems to be in borderline cases to lean in favour of imposing vicarious liability if that is possible. a. The Salmond test The test set out by Sir John Salmond in his textbook on tort has been commonly used by the courts:
A master is liable even for acts which he has not authorised, provided that they are so connected with acts which he has authorised that they may be rightly regarded as modes although improper modes of doing them.
The explanation and application of this test can be illustrated by the following cases: a. The general approach. See: Century Insurance Co Ltd v Northern Ireland Road Traffic Board [1942] AC 509; Beard v London General Omnibus Co [1900] 2 QB 530; General Engineering Services Ltd v Kingston and St Andrew Corporation [1989] 1 WLR 69. b. A number of cases have dealt with the problem where an employee has deviated from the course of employment. Was the deviation sufficient to take the employee out of the course of employment? See: Williams v Hemphill 1966 SLT 259; Storey v Ashton (1869) LR 4 QB 476; Ilkiw v Samuels [1963] 1 WLR 991. c. Generally an employee is not in the course of employment when driving to and from the place of work, but there are exceptions depending on the nature of the job and particular contractual arrangements: Smith v Stages [1989] 1 All ER 833.
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d. There is a further complication where the employee is doing something specifically forbidden by the employer. The outcome is then said to depend on whether the prohibition limited the sphere of employment (in which case the employee is not in the course of employment) or to limit the manner in which the employee carried out duties (in which case the employee is still in the course of employment). See Plumb v Cobden Flour Mills Co Ltd [1914] AC 62, per Lord Dunedin; Limpus v London General Omnibus Co (1862) 1 H & C 526; Rose v Plenty [1976] 1 WLR 141. e. In the cases considered so far the employee had committed the tort of negligence. It is, however, more difficult to apply vicarious liability where the employee has deliberately caused the damage to the claimant and/or the employee is guilty of a crime. How can such activities be in the course of employment? Using the orthodox test, the courts did impose vicarious liability where the employee was acting for the benefit of the employer (e.g. by assaulting a suspected thief) or stole property that he was employed to clean. See: Poland v Parr & Sons [1927] 1 KB 236; Warren v Henlys Ltd [1948] 2 All ER 935; Lloyd v Grace, Smith & Co [1912] AC 716; Morris v CW Martin & Sons Ltd [1965] 2 All ER 725; Heasmans v Clarity Cleaning Co Ltd [1987] IRLR 286. The limits of this approach were reached in a case where a deputy headmaster sexually abused a pupil during a school trip to Spain: Trotman v North Yorkshire CC [1999] LGR 584. It is difficult to describe such conduct as an unauthorised mode of carrying out the deputy headmasters duty. The Court of Appeal therefore held that his employer was not vicariously liable. This case has now been overruled by the House of Lords. b. The Lister test The House of Lords decided that the warden of a residential school for children, who had some years after the events been convicted of sexual assaults on pupils in his care, was acting in the course of employment so as to make his employers vicariously liable: Lister v Hesley Hall Ltd [2001] UKHL 22: [2002] 1 AC 215. This case, and the views expressed by various judges, are very important and must be considered carefully.
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The House emphasised the close connection between the acts of the warden and the job he was employed to do. A number of judges noted that the warden was the very person selected to discharge the employers own pastoral responsibilities to the children. This sounds very like the language of a non-delegable duty of care (see Chapter 6) rather than the traditional language of vicarious liability and hints at some fault on the part of the employer. Which employees might fall within the Lister test? First, there are some dicta in the case itself. In particular it was said that there would be no vicarious liability if the abuse had been perpetrated by a caretaker or handyman at the school (whose duties involve looking after the property rather than the pupils). The scope of Lister has been considered in two cases:
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Mattis v Pollock [2003] EWCA Civ 887: [2003] 1 WLR 2158 (vicarious liability imposed) Attorney-General of the British Virgin Islands v Hartwell [2004] UKPC 12: [2004] 1 WLR 1273 (vicarious liability rejected, but employer primarily liable).
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It is not clear how far the Lister test will supplant the more traditional approaches. Does it apply only to intentional wrongdoing by the employee?
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distinguish between primary and vicarious liability suggest reasons why the law should hold employers liable for certain torts committed by their employees distinguish between an employer and an independent contractor identify when an employee is acting in the course of employment.
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Activity 13.1
a. B works as a van-driver delivering goods for C Ltd. He owns the lorry and licences it; he wears C Ltds overalls and there is a removable sign on the van bearing C Ltds name; he has no fixed working hours and can deliver the goods when he wishes within a given period. He carelessly knocks down and injures A while delivering goods. Is C Ltd vicariously liable? b. D is a van driver employed by E Ltd. While on his rounds, he stops to collect his own television from a repair shop. He parks his van carelessly and it moves off, injuring F. Is E Ltd vicariously liable?
There was a gentlemans agreement after the outcry about the Romford case (in which it was really the employers insurers and not the employers who pursued the employee) under which liability insurers agreed not to exercise their rights except in certain circumstances. This appears to have been observed.
13.2 Defences
Essential reading
Markesinis and Deakin, pp.740771 Murphy, pp.281302 Winfield and Jolowicz, pp.247262, 845867. Lunney and Oliphant, pp.253299.
Specialised defences (e.g. to a defamation or nuisance action) have been considered under the appropriate tort. Some reference has already been made at various points to the defences listed below: contributory negligence, consent and illegality.
Note: The term contributory negligence should be used only to describe the negligence of the claimant. For instance two motorists, X and Y, through the carelessness of both of them injure a motor cyclist, C, who was not wearing a crash helmet. C sues X. It is appropriate to describe Cs failure to wear a helmet as contributory negligence, but it is confusing to describe Ys carelessness as contributory negligence.
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b. The apportionment works in this way. The judge must first determine the amount of damages payable if the claimant had not been negligent and then deduct a certain percentage to reflect the claimants contribution. It seems that the percentage may reflect both the relative potency of the claimants and defendants actions in causing the damage and the relative blameworthiness of the parties. There is modern authority for the view that damages cannot be reduced by 100 per cent, although of course another defence may be available that achieves that effect. See also Stapley v Gypsum Mines [1955] AC 663; Pitts v Hunt [1991] 1 QB 24; Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360. Notice that in the Gypsum Mines case the result might have been different if the defendants had relied on the defence that follows in the next section.
13.2.2 Consent
At first sight it seems obvious that someone who consents to the tort should not then turn round and sue. In practice however, it is complex and controversial. First, three introductory discussion points: a. The role of consent varies from tort to tort. It has already been referred to in the torts of battery (Chapter 9) and defamation (Chapter 12). In those torts, however, the application of the defence is quite straightforward. The patient who consents to the incision and excision necessary to remove an appendix is agreeing to the very thing that would otherwise be a battery. The position is very different when the tort involved is negligence or a tort of strict liability, where it is usually referred to as assumption of risk. Here the claimant cannot usually know in advance what is going to happen in the way that a patient awaiting surgery does, and therefore the application of the defence has to be carefully controlled. b. The defence of volenti non fit iniuria cannot operate until there has been a tort. This seems obvious, but is often overlooked in examinations. Take the position of a claimant who works in a dangerous job say on a fishing boat in the deep oceans. If the employers observe all safety regulations and take the reasonable care required by the common law, then no tort has been committed. That is why the claimant cannot sue, and not because of any consent to incur risks. The issue of consent only arises if there has been a breach of regulations or of the common law duty, and it is argued that the claimant knew of this breach and nevertheless agreed to face that risk. c. Consent can operate in two quite different ways and they can be illustrated by sections 2(1) and 2(5) of the Occupiers Liability Act 1957 (see Chapter 6). Section 2(1) envisages the occupier excluding liability by a notice saying Enter at your own risk, so that the visitor runs the legal risk of being unable to get compensation for any injuries sustained. Section 2(5) envisages the visitor incurring the physical risk of injury by, e.g. crossing a defective bridge. These two strands will be considered separately.
Exclusions of liability
Both the common law and statute recognised the right of a defendant to exclude liability by a suitably worded notice. In addition to the Occupiers Liability Act it was at one time common for motorists to attach notices to the dashboard of the car saying that passengers travelled at their own risk. (The reason was that at that time drivers were compelled to insure against liability to third parties outside the car but not liability to passengers. That has not been the law since 1971.) This right to exclude liability is strictly controlled and has been further constrained by statute.
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13.2.3 Illegality
What should happen if the claimant is engaged on some illegal (perhaps criminal) activity, and this illegality is a cause of the injuries sustained? An instinctive answer might be that no compensation should be available, but in fact illegality seldom operates as a complete bar to liability.
Activity 13.2
Before you consider the few cases that there are, ask yourself in which, if any, of the following examples, the claimant should be denied any compensation (in all of them the damages might at least be reduced on the basis of contributory negligence). a. Carol, knowing that her car has defective brakes, is unable to avoid hitting a car driven by Daniel that goes through red traffic lights in front of her. b. Cedric and Damian are robbing a bank: Cedric is injured when Damian uses too much explosive to blow open the safe door. c. Charles, having robbed a supermarket, is injured when Della drives the getaway car too fast. d. Chloe and Dawn are driving from London to Manchester to rob a bank: Chloe is injured when Dawn crashes the car a few miles outside London. e. Colin, a passenger, exhorts Deirdre, the driver, when they are stuck in a traffic jam to get past by driving on the wrong carriageway against oncoming traffic. f. Cuthbert is burgling Daphnes house and is injured when Daphne fires a gun, intending to scare him. Feedback: These are primarily examples for you to think about whether you believe that the injured persons should have a claim or you would be shocked if they did. Some of the examples arise or are discussed in the cases that follow. In cases in which the courts have denied liability on the basis of the claimants own wrongdoing, two lines of reasoning have been followed:
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It is shocking to the conscience that the claimant should be allowed compensation in such circumstances. On the particular facts there is no relevant basis on which the appropriate standard care of could be determined. See Pitts v Hunt [1991] 1 QB 24; Revill v Newberry [1997] QB 567; Clunis v Camden and Islington Health Authority [1998] 2 WLR 902; Vellino v Chief Constable of Greater Manchester Police [2002] 1 WLR 218.
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This whole question has been considered by the Law Commission (Law Com: Consultation Paper No 160: The Illegality Defence in Tort).
explain the provisions of the Law Reform (Contributory) Negligence Act 1945 describe what is meant by contributory negligence explain the basis on which the courts reduce damages as the result of contributory negligence explain the role of consent as a defence to an action in negligence or breach of a tort of strict liability describe when a defendant is able to exclude tortious liability explain when a defendant may escape liability by showing that the claimant had consented to run the physical risk of injury explain in what circumstances a defendant may escape liability by showing that the claimant had been acting illegally or morally reprehensibly at the time of the injury.
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Activity 13.3
a. A and B are employees of X Ltd. They know that they are required to wear heavy boots at their place of work, but they find them uncomfortable and decide not to wear them. B spills molten liquid on As foot. Has A a claim against X Ltd? b. C and D set off in Ds car to rob a bank. As the car approaches the bank, Ds foot slips off the brake and the car hits a lorry. C is seriously injured. Has he a claim in tort? c. Look again at the cases on rescuers (Chapter 5). Can a claim by a rescuer be defeated by a plea of contributory negligence or assumption of risk? d. E and F have both been smoking cannabis. This makes them late for an appointment, so they agree to travel as fast as they can on the motorway in order to get there on time. F runs off the road and injures E. Discuss the application of all the foregoing defences to these facts. e. Facts as in (d), but E and F take a motorboat out on a lake. F crashes the boat into a jetty and injures E.
13.3 Remedies
Essential reading
Markesinis and Deakin, pp.792795, 804842 Murphy, pp.539561 Winfield and Jolowicz, pp.762788 Lunney and Oliphant, pp.797868.
13.3.1 Introduction
Damages are the commonest remedy in tort. In earlier chapters (e.g. Chapter 4) consideration has been given to questions of remoteness of damage. This section is concerned with a different question. Once it is decided that damages are recoverable for a particular loss, how is the actual sum of money determined? The calculation of damages in tort is a complex and detailed subject. It is important to explain the limits of what you are expected to know. You are likely to be asked one of the two following types of question: a. To make a general critique of the way in which damages are assessed for personal injuries. This can be considered at three levels: i. Given the objectives of the present system, does it achieve them? ii. Should the system be changed so that, for example, damages will be paid in monthly instalments depending on how the claimants circumstances are at the time of payment? iii. Should the system of damages for personal injuries be abolished and absorbed within the social security system, or is it right that victims of torts should be treated differently from those who suffer injury, illness or unemployment in other ways? b. A request to outline the way in which damages will be assessed for the benefit of individual claimants in problem questions.
In torts such as nuisance, interferences with economic interests and defamation the claimant may seek an injunction to restrain the defendant from behaving in a particular way in the future. Some reference to that remedy has been made in the appropriate chapters, but a detailed study of injunctions is not further considered in this course.
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Here is an example of the level of detail that may be expected. There is an important question of principle about how far tort damages should be integrated with social security payments. It is important to know that the law now allows for the state to recover some of what it has paid in benefits (see below) but it is not necessary to know the details or mechanisms or any differences between different kinds of social security payments.
13.3.2 Principles
1. The principles for the assessment of damages for personal injuries are laid down by the common law with some statutory modifications (e.g. in the Administration of Justice Act 1982 and the Damages Act 1996). A useful case to illustrate the heads of liability and the policy issues at stake is Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174. In this case a successful professional woman, unmarried and with no dependants, suffered catastrophic injuries that left her intermittently conscious but with an expectation of living for many years. 2. The object of the damages is to place the claimant in the position he or she would have been in if the tort had not occurred. 3. Compensation is based on what the claimant has lost and not on the claimants present needs. This troubled Lord Denning in a number of cases such as Lim Poh Choo in that Dr Lim was awarded a very large sum of money (and nowadays it would be a great deal larger) that she could never spend and of which a large part would go on her eventual death under a will drawn up many years earlier or on intestacy to people who might have taken no interest in her welfare in the meantime. 4. Damages are awarded once and for all as a lump sum and the calculation cannot be reopened. There is a very limited power to award provisional damages (i.e. damages calculated at the trial but only payable if certain changes in the claimants condition occur in the future) in the Administration of Justice Act 1982 s.6 and the Damages Act 1996 s.3. There is also the possibility of a structured settlement described below. None of these systems provides for a review of damages if the claimants circumstances change. So probably many claimants get too much, because they recover their health or find well-paid work or die, and others get too little because their condition is worse than was thought. The calculation of damages is speculative. The court or the parties advisers have to speculate about: a. whether the claimants condition will improve or deteriorate b. what the claimants future would have been if the injuries had not occurred.
Pecuniary damage
Compensation is paid for money that the claimant has lost because of the tort and for expenditure that the claimant has incurred as a result of the tort.
Losses sustained
The most obvious loss is that of income if the claimant is unable to work for some time or at all or is forced to move to easier and less well remunerated employment. The court therefore has to decide what the claimants prospects are what they would have been if the tort had not occurred.
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these sums are deducted from the damages payable by the tortfeasor (snag: the tortfeasor gets the benefit of the victims prudence or of others generosity) the claimant keeps these other benefits and gets damages in full (snag: the claimant is overcompensated) the tortfeasor pays back to the donors the sums received by the victim from other sources (snag: in many cases the administrative costs would be very high).
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You will see from your reading of the textbooks that all of these solutions have some part to play. In particular some efforts are now made to see that tortfeasors pay back some social security payments to the state, so that the costs of accidents fall more on the defendants insurers and less on public funds. Illustrations: Social Security (Recovery of Benefits) Act 1997; Parry v Cleaver [1970] AC 1; Smoker v London Fire & Civil Defence Authority [1991] 2 AC 502.
The claimant is entitled to recover the costs resulting from the tort. The typical examples are the cost of medical treatment, future institutional care, adaptation of home and assistance with daily routine. You should notice two particular issues:
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Double compensation must be avoided. This is illustrated by Lim Poh Choo. The claimant was unable to work again and was cared for in a nursing home. She was entitled in principle for loss of earnings and cost of care. But the nursing home was providing her with accommodation, food, etc., which she would have had to pay for out of her income if she had not been injured. So part of the costs of the nursing care had to be deducted to avoid her being overcompensated. Sometimes nursing and support care is provided by a spouse, parent or other relative, who may give up work and look after the injured person for nothing. It is now settled that the claimant is entitled to compensation for the cost of such care (which may be far less than the income that the carer would have enjoyed) and holds the sums on trust for the carer (Donnelly v Joyce [1974] QB 454).
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But notice that this can work out very unfairly if the tortfeasor and the care provider are the same person: Hunt v Severs [1994] AC 350.
Non-pecuniary damage
The claimant is also entitled to receive compensation for pain and suffering and for loss of amenities. The sums awarded for these losses have for the most part to be conventional, but the Court of Appeal in a series of cases reported together as Heil v Rankin [2001] QB 272 increased the level of appropriate compensation, especially in the more severe cases. (One of the cases so dealt with was that of Kent v Griffiths, the substance of which was referred to in Chapter 5.) The victim is generally entitled to obtain private medical treatment and be compensated for it. There are now mechanisms that allow the Health Service in some cases to recover from the tortfeasor the costs of care it has provided to the victim. See the Road Traffic (NHS Charges) Act 1999.
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A cause of action in tort lapsed if either party died. This was remedied by the Law Reform (Miscellaneous Provisions) Act 1934, which allowed most actions to survive and be brought by or against the estate of the deceased. (An action in defamation is still an exception.) Where the death was independent of the tort, there is no particular problem; but, where the tort caused the death, then there are problems in deciding what damages are appropriate. The common law did not allow an action by those who were dependent on the deceased for loss of support, because their loss was purely economic. This was changed by Parliament in the nineteenth century. The details have been revised on a number of occasions: the present law is in the Fatal Accidents Act 1976.
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In practice substantial damages are payable under the 1976 Act rather than the 1934 Act. This can be criticised because the 1976 Act is based on a traditional view of a family with a breadwinner on whom spouse and children are dependent and who must be protected if the breadwinner is killed.
The survival of the deceaseds cause of action for the benefit of the estate
Where the victim survived the tort for some time, then this is the mechanism by which damages suffered by the victim while alive are recovered, so that the estate can sue for damages for loss of earnings, medical expenses and pain and suffering between tort and death. Where, however, death is instantaneous, little or nothing is payable. There is nothing for pain, suffering and loss of amenity (see Hicks v Chief Constable of South Yorkshire Police [1992] 2 All ER 65) and there is no recovery for lost future earnings (see Administration of Justice Act 1982 s.4).
What categories of persons are able to bring an action as dependants? What is a dependant? How are a dependants damages assessed?
Learning outcomes
By the end of this chapter, you should be able to:
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explain the purposes of damages in tort for personal injuries and the general principles according to which they are assessed explain the nature of structured settlements and their advantages and disadvantages explain the effect on compensation for personal injuries if the victim dies.
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Self-assessment questions
1. What is the aim of damages in tort for personal injuries? Are there any other aims that the law should recognise in formulating principles for the assessment of damages? 2. What is the distinction between pecuniary and non-pecuniary damage? 3. How are damages for lost earnings calculated? 4. What is meant by the lost years? What is their relevance to the assessment of damages? 5. Where a victim dies as the result of a tort, on what bases are damages assessed? Are these bases justifiable in contemporary social conditions? 6. What is a structured settlement? What are its advantages and disadvantages? In what type of case is a structured settlement appropriate?
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7. What changes have been made by Wells v Wells and Heil v Rankin? Are these justified?
Activity 13.4
Outline how damages will be assessed in the following cases. Are you satisfied with the results in these cases? a. Anne is knocked down by a careless motorist and sustains a badly broken leg. She has it treated in a private clinic in Switzerland and then spends a month recuperating in a nursing home in Surrey. b. Betty, an 18-year-old A level pupil, is knocked down by a careless motorist and suffers devastating brain injuries. Her mother Cilla (a leading silk at the commercial law bar) gives up her practice to look after her. The congregation at her local church has a collection that raises 3,000 for her. Would your answer be the same if Cilla had been the careless motorist? c. Hugh, aged 22, unmarried and with no dependants, is killed outright by a careless motorist. What damages, if any, will be payable by the defendant?
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If you ticked need to revise first, which sections of the chapter are you going to revise?
Must revise 13.1 13.2 13.3 Vicarious liability Defences Remedies Revision done
Feedback to activites
Contents
Chapter 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 Chapter 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 190 Chapter 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191 Chapter 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 Chapter 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Chapter 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 Chapter 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 Chapter 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 198 200 203
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Chapter 3
Activity 3.1
All the judges refer to these reasons, although there are differences of emphasis. You should have identified among the reasons for having the immunity: (i) the fact that lawyers in court owe a duty to the court that may sometimes conflict with the duty to their clients; (ii) that the prospect of being sued in negligence might adversely affect the quality of their argument by e.g. raising every conceivable point in their clients interests; (iii) that suing the lawyer would to some extent reopen the correctness of the original decision. The House of Lords thought these reasons no longer applied in 2002 (although there was a disagreement about whether the immunity should remain in criminal cases). A main reason was that the public would not understand why lawyers had an immunity that other professions did not enjoy.
Activity 3.2
a. No feedback provided b. You should have considered what was said in Home Office v Dorset Yacht and other cases. Normally in such a case there would be no liability, but you consider exceptional cases, e.g. if X was another neighbour who was known to be violent and aggressive where it is arguable that the result might be different. c. (i) Remember to consider that, although there is no liability to the estate of the dead child, there may be liability to the mother and the damages would include the suffering sustained by the loss of her baby; (ii) neither the Congenital Disabilities Act nor the common law allows an action by the child: for the claim by the parents see McFarlane and later cases; (iii) the Congenital Disabilities Act does not allow a claim by the mother. Ask yourself why mothers are not generally liable for damage to their unborn children, but are liable if they injure them by careless driving. d. No doubt the advisory service has a duty of care. Do you think that the reasoning in McFarlane etc. applies also to these facts? (In McFarlane etc. the negligence caused the pregnancy and not the failure to terminate it).
Activity 3.3
a. On learner drivers see Nettleship v Weston and on children see Blake v Galloway. You will have to think about these cases and general principles would apply to the case of a newly qualified solicitor. b. When driving to hospital she still has to drive with reasonable care. In an emergency it may be legitimate to drive in a way that is not ordinarily acceptable, but it still has to be reasonable in the circumstances. On going to the seaside, she is judged by the standards of an ordinary driver. She is not penalised because, as a highly trained driver, she might have been expected to do better in the circumstances. c. Examine the cases on standard of care to be shown by medical practitioners. You might note the following elements in the facts: (i) as a general practitioner, should he know about things discussed in a specialist journal? (some help perhaps from Shakoor v Situ, though only by analogy); (ii) should he tell the patient about the risks? (consider Chester v Afshar and decide whether the facts are in any respects different). d. This might be one of the exceptional situations in which the maxim res ipsa loquitur can be applied.
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Chapter 4
Activity 4.1
a. The driver is doing two things that are criminal (speeding and using her mobile phone while driving). This does not necessarily mean that they are tortious (see Chapter 1). However the courts may take the view that Parliament has set a proper standard and failure to observe it must therefore be a breach of civil duty of care. There is some authority (about 50 years ago) that exceeding the speed limit is not necessarily negligent (because in the particular circumstances reasonable care was shown), but in the present climate of opinion about speeding, this might be difficult to apply. The main issue is that D cannot be liable unless C shows on a balance of probabilities that D would have been able to stop if she had not been speeding and using her phone. b. It might be important to know whether the brandy caused the death (in which case the important issue is whether administering brandy was a breach of duty) or whether the brandy was irrelevant and the cause of death was a failure to call for an ambulance in the sense that medical treatment would have saved C (in which case the important issue is whether such failure was a breach of duty on this see 5.3). c. See McWilliams v Sir William Arroll.
Activity 4.2
It is important to distinguish the two issues. She has to prove on a balance of probabilities that she would not have suffered the actual damage (the head injuries) if the lifeguard had carried out a careful rescue. But in turning this head damage into money it is not necessary to show that she would probably have become a solicitor. (For more on calculation of damages for personal injuries, see Chapter 13.)
Activity 4.3
This case falls between Baker v Willoughby and Jobling v Associated Dairies. The second event is not a natural disease and it is not a tort. You have to decide which authority should be applied to these facts. Both views are arguable.
Activity 4.4
Feedback provided at the end of the activity.
Activity 4.5
No feedback provided.
Activity 4.6
Among the relevant differences are these: (a) In Dorset Yacht and to some extent in Al-Kandari there was responsibility on the part of D for X. There was none in the other cases. (b) Again in Dorset Yacht and Al-Kandari the criminal conduct was the very thing that might have been expected and not just a foreseeable possibility.
Activity 4.7
Clearly Delias negligence satisfied the but for test of causation, but does Cecils decision amount to a new and intervening cause? Read McKew. Would you want to apply it to a conscientious as well as a foolhardy claimant?
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Chapter 5
Activity 5.1
This is discussed in the textbooks: consider i. the social importance of the situations ii. the sort of people likely to be involved: house purchasers or takeover bidders iii. the number of potential claimants if there is negligence.
Activity 5.2
a. Remember to ask who D is (e.g. a stockbroker or a friend), the social setting in which the advice is given and to consider separately the two different economic losses sustained. b. Whose water main is it? Is the economic loss pure or consequential? See Spartan Steel. c. Consider the cases on defective property. d. When a fault in a computer corrupts a document, is that physical damage or economic loss? Does it matter? e. Note that C is claiming from D in these problems. C is for example British Gas and it has to do the repairs under the maintenance contract with the customer (C) and cannot charge C. Can it recover from D in tort?
Activity 5.3
Distinguish between (a) where the claim would be against the mine owner and (b) where the claim would be against the informant. As the law stands, it seems that there is no claim in (a) and there might be in (b). Would it be sensible to impose liability on a muddled informant who got it wrong and not on the people who caused the death? In (c) Attia would suggest there might be liability, but would it depend on the motorist having some relationship with C (e.g. a person caring for the dog in Cs absence)?
Activity 5.4
a. For a start see Lord Hoffmann in Stovin v Wise and the discussion of the issue in textbooks. b. See the discussion in The Ogopogo. Consider various possibilities. D is aged 95, has no phone and snow is falling. C knew when he accepted the invitation that D did not believe in conventional medicine. D thought that C was fooling around (as he had done before) or that C was making a fuss about something trivial. c. Is D a lifeguard, an adult looking after C (a child) or a stranger? If so there may be a duty? If not does he assume responsibility by setting off? Or does he make matters worse by setting off and thereby deter others on the beach from trying to help?
Activity 5.5
a. There is room for speculation here. The Agency is carrying out public duties and has to balance the interests of consumers and suppliers. Should it be easier to impose liability where there is damage to the economic interests of suppliers than it is where there is damage to the health of consumers? Even if there is a duty breach has to be proved and that is not easy. The Agency has acted on research (it may be its own or independent) and is not liable merely because it got it wrong. b. There are cases in the books on various rescue services, police, fire, coastguards. Have they assumed responsibility to climbers (a) by establishing a rescue service or (b) by agreeing to send a team to the stricken climbers in this case?
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Activity 5.6
This is not clearly settled in English law. There can be liability to rescuers where the defendant does something foolhardy as in Harrison, but that was a foolhardy and pointless act of stupidity in leaping on to a moving train. Would it be right to deter people from engaging in risky pastimes such as hang gliding, parachute jumping, potholing, etc. by making them liable to professional rescue services who have to look for them or help them in distress.
Chapter 6
Activity 6.1
a. See the discussion of whether the 1957 Act applies to activities on the land (e.g. Lunney and Oliphant p.523).1 b. See the discussion in Wheat v E. Lacon & Co Ltd [1966] AC 552. c. It might depend on whether she was still on the stairs leading to the entrance doorway or had walked into the entrance hall, and also on whether there was any notice saying No charitable collectors (see 6.1.4). d. See the discussion in and of Stone v Taffe [1974] 1 WLR 1575: if you were Luisa, would you think you were allowed to visit Helgas bedroom at her invitation?
Activity 6.2
a. Is this a proper way for a householder to get electrical work done? OLA 1957 s.2(4) (b). b. Get clear in your minds what these notices are aimed to do: (i) makes clear that the visitor may come in but will not be able to sue occupier for injuries: is it an effective exclusion clause? (ii) is an attempt to exclude visitors, not to exclude liability. If effective, an entrant will not be a lawful visitor. (iii) is an attempt to warn (s.2(4)(a)) and thereby fulfil the common duty of care to a visitor.
Activity 6.3
a. The main requirements are in s.1(3) of the 1984 Act. If you read the judgments in Tomlinson you will see that not all judges reasoned in the same way about this subsection but they reached the same conclusion. b. You have to use your imagination. The two cases to some extent reveal different philosophies. Do you think that any of these is a relevant distinction: the age of the claimants; the nature of the supposed danger; the knowledge the defendant had about the danger; the status of the visitor (lawful or unlawful); any others?
Activity 6.4
a. See the accounts in the textbooks and in the Nash Dredging case. b. The employer is unlikely to be vicariously liable (see Chapter 13) but might be liable for failing to provide competent fellow workers (see also Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348). c. See the factors listed as relevant by Hale LJ in the case of Hatton v Sutherland and applied by the House of Lord in Barber.
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Chapter 7
Activity 7.1
a. See the speech of Lord Hoffmann. b. No, because the statute has not been broken. c. When you have thought about this, look at Gorris v Scott (1874) LR Exch 125. d. When you have thought about this, look at Millard v Serck Tubes [1969] 1 WLR 211.
Chapter 8
Activity 8.1
To see who can be sued under the 1987 Act, we need to look at sections 1 and 2 of the Act. a. Digdeep provides coal. Coal is obviously a natural element, but we are told in section 1(2) that a producer includes someone who has won or abstracted the product. Hence, Digdeep plc is a producer and therefore could be sued under the Act. b. Eric is not a producer. He has not manufactured the widgets. He merely supplies them. Any liability under the Act will depend on section 2(3). This states that where damage is caused wholly or partly by a defect in a product, any person who supplied the product shall be liable if:
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the person who suffered the damage requests the supplier to identify one or more of the persons to whom section 2(2) applies in relation to the product that request is made within a reasonable period after the damage occurs and at a time when it is not reasonably practicable for the person making the request to identify all those persons the supplier fails, within a reasonable period after receiving the request, either to comply with the request or to identify the person who supplied the product to him.
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Eric cannot inform any victim of the manufacturers identity. He can, however, identify Fred. Provided he informs the victim within a reasonable period of the identity of Fred, he will not be liable. c. George has imported a product from outside the EC into the EC. He is not the producer. He could only be liable if he satisfies s2(2)(c), which renders liable any person who has imported the product into a member State from a place outside the member States in order, in the course of any business of his, to supply it to another. However, George does not appear to be acting in the course of business. Thus he is not liable under the Act. d. Jackie is obviously within the Act as a producer. However, to the purchaser, the jeans are marked Indigos. Section 2(2)(b) provides that any person who, by putting his name on the product or using a trade mark or other distinguishing mark in relation to the product, has held himself out to be the producer of the product will be liable. Both Jackie and Indigo are therefore potentially liable under the Act.
Activity 8.2
Ambrose is a producer under the Act: sections 1(2), 2(2)(a). The pills it has manufactured have caused Beryl a serious injury, but Ambrose will only be liable under the Act if the pills are found to be defective under section 3. It depends whether they provide the safety which persons generally are entitled to expect. They are a standard product, that is, Ambrose knows that each pill will contain a risk of fits. Looking at section 3 generally, we note that the packaging contains an express warning, as
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do the instructions inside. Beryl, it would seem, reads neither the packaging nor the instructions, but they are available. Guidance may be gained from the case of Worsley v Tambrands Ltd [2000] PIQR P95. Here, Mrs Worsley, on purchasing tampons, had been warned of the risk of toxic shock syndrome on the packaging of the product, and in detail on a leaflet which accompanied the product which the purchaser was advised to read and keep. Ebsworth J. held that:
The reality of this case is that the claimant had lost the relevant leaflet and, for some inexplicable reason, misremembered its contents as to the onset of the illness. That does not render the box or the leaflet defective, and the claim must fail. The defendant had done what a menstruating woman was, in all the circumstances, entitled to expect: (1) they had a clearly legible warning on the outside of the box directing the user to the leaflet; (2) the leaflet was legible, literate, and unambiguous and contained all the material necessary to convey both the warning signs and the action required if any of them were present; and (3) they cannot cater for lost leaflets or for those who choose not to replace them.
In Worsley, therefore, Mrs Worsley should have been alerted due to the warning of the initial symptoms of her illness and would have been able to go to her doctor before it became life-threatening. Here, Ambrose would argue that it gave a clear warning which should have alerted Beryl to the risk of an epileptic attack and, if she was at risk, she should have consulted her doctor. Although Worsley is clearly a stronger case in that there was a time lapse between the initial symptoms and the onset of serious illness, it could be argued that, by analogy to Worsley, Ambrose has given a sufficient warning of the dangers to render the product safe.
Activity 8.3
a. The cake is a product and, if poisonous, is clearly defective under section 3. Does Griselda have a defence? Under section 4(1)(c), if she is not supplying goods in the course of business and is simply a supplier or not acting with a view to profit, she will have a defence. We assume that she is not a professional cook, but merely providing the cake to contribute to school funds. She has made the cake and so is a producer within section 2(2). She is not acting with a view to profit personally, but of course seeking to profit the school. It is to be presumed that this will satisfy section 4(1)(c). b. The drug, Cureotis, taken by James the product has been contaminated by the X virus. On the analysis of A v National Blood Authority [2001] 3 All ER 289, the pure drug would be the standard product which the consumer assumes that he will receive, and the drug contaminated with the X virus, non-standard. In the absence of any widely acceptable warnings, the drug taken by James will be deemed defective under section 3. Can Isobel rely on the section 4(1)(e) development risk defence? She must establish that the state of state of scientific and technical knowledge at the relevant time was not such that a producer of products of the same description as the product in question might be expected to have discovered the defect if it had existed in his products while they were under his control. Following A and European Commission v United Kingdom [1997] All ER (EC) 481, regardless of the fact that Isobel is producing a valuable drug and that it is impossible to detect the virus, the risk of the virus is known and therefore she cannot rely on section 4(1)(e). This seems harsh and potentially would seem to discourage the production of valuable drugs, but in A, Burton J clearly stated that the strict liability goal of the Act would be taken very seriously. All Isobel could possibly do would be to publicise the risk and ensure that all consumers knew the risk they were taking in using the drug. If it were deemed socially acceptable, then the court might find that the drug was not defective in the first place. It will not, however, alter its approach to section 4(1)(e).
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Activity 8.4
This time Griselda is acting with a view to profit, if not acting in the course of a business. She cannot rely on section 4(1)(c). The cake is defective (section 3) and causes injury to Kevin and damage to Kevins property, Jumper. Section 5(1) allows for recovery for personal injury. Kevin can recover for this. The death of Jumper amounts to property damage, which takes us to sections 5(3) and (4). His value is greater than the limit of 275, but the court must also be satisfied that he is a pet cat and not a commercial asset. Arguably, a show cat is a commercial asset and is not intended for private use. However, the fact that he seems to belong to Kevin who is treating him as a pet suggests that he is both a pet and a show animal. Certainly, if it can be shown that Jumper is primarily a pet, there should be no problem satisfying section 5(2).
Activity 8.5
Barry will attempt to claim under the Animals Act 1971. First, he must identify whether the animals involved will be classified as dangerous or non-dangerous. Under the definition in section 6(2):
a dangerous species is a species (a) which is not commonly domesticated in the British Islands; and (b) whose fully grown animals normally have such characteristics that they are likely, unless restrained, to cause severe damage or that any damage they may cause is likely to be severe.
Peacocks are not commonly domesticated, but dogs are. The claim involving Florence will therefore proceed under section 2(1). This provides that the keeper of the dangerous animal here, Alexander will be strictly liable for any damage caused by such an animal. We can assume that Florences escape caused the accident: see Mirvahedy v Henley [2003] 2 AC 491 (horses escaping from a field on to a dual carriageway). Defences do, however, exist. Barry has been at least contributorily negligent. It may even be found on more detailed investigation that the accident was his fault entirely: section 5(1). Barry could try an alternative claim against Alexander for negligence how did the peacock escape? but the defences would be equally applicable against such a claim. Jupiter is a pet dog and therefore any liability would arise under section 2(2). Barry would have to satisfy the three tests:
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the damage is of a kind which the animal, unless restrained, was likely to cause or which, if caused by the animal, was likely to be severe; and the likelihood of the damage or of its being severe was due to characteristics of the animal which are not normally found in animals of the same species or are not normally so found except at particular times or in particular circumstances; and those characteristics were known to that keeper or were at any time known to a person who at that time had charge of the animal as that keepers servant or, where that keeper is the head of a household, were known to another keeper of the animal who is a member of that household and under the age of sixteen.
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It is foreseeable that a dog may cause severe injury to an individual. Jupiters reaction, however, might be seen as the ordinary act of a dog defending his territory. However, in Curtis v Betts [1990] 1 WLR 469, the court found the attack on a young boy by a normally docile dog while being transferred into a Land Rover to be transported to the local park for exercise did satisfy section 2(2)(b). The dog was very protective of areas regarded as its territory and this could be regarded as a temporary characteristic. Equally, therefore, we can argue that Jupiter defending the back of the van was a temporary characteristic, capable of satisfying section 2(2)(b). Liability would then depend on whether Alexander was aware of this fact. If we assume that he does, do any defences arise? Again, we can argue fault or contributory negligence, but here the court would ask whether Barry should have been aware that there were dogs in the back of the van, bearing in mind his condition at the time. It certainly would be difficult to claim that he voluntarily assumed that risk under
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section 5(2). As there is no evidence that he entered the back of the van, he cannot be deemed a trespasser under section 5(3). Barrys claim will thus depend largely on whether the court finds him to be at fault, and, if so, to what degree.
Chapter 9
Activity 9.1
a. The three main distinctions were that trespass:
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was actionable per se required an act directed at the plaintiff (claimant) whereas case was satisfied by an act or an omission required a direct injury whereas an indirect injury would satisfy the requirements for case.
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b. The claimant does not need to have suffered any loss or damage as a result of the tort. c. She brought her action in trespass.
Activity 9.2
a. This might not, in itself, amount to an assault as X might not reasonably apprehend the application of unlawful personal force. b. i Provided Bill was not aware that Jane was creeping up behind him intending to hit him there would be no assault. ii. If Jane had apprehended the application of force and Bill had intended that she should then he could be guilty of assault. In Ireland and Burstow the House of Lords ruled that words and perhaps even silence could amount to an assault. iii. There would be an assault if Bill apprehended the application of even the slightest force. It is immaterial that he was not frightened. iv. There must be a reasonable apprehension of force: Thomas v National Union of Mineworkers. As to whether any apprehension was reasonable would depend on the facts. If Jane is safe in her car then words and gestures no matter how threatening cannot amount to assault if they cannot be put into effect.
Activity 9.3
a. Sunita was dancing at a crowded party. Although jostling in a crowd would be considered to be one of the vicissitudes of life (Wilson v Pringle) and not an actionable battery, whether these incidents were actionable would depend on Sunitas state of mind. There was a direct application of unlawful personal force to Kumar, Susan and James and if Sunita intended to inflict force in any of the situations then an action in battery would lie. It has been suggested that subjective recklessness might be treated as an intent for this tort. If that is the case and Sunita was aware of a risk that her conduct might result in a battery then her conduct might well transcend the bounds of lawfulness although treading on Kumars toe might be considered merely a vicissitude of a crowded party. b. As to whether John would be guilty of battery in respect of Fred would depend upon his state of mind. (See (a) above.) John would be guilty of battery when he pushed Roger out of the way to get the seat and would also be guilty of battery against the baby even though he did not actually strike the baby. See Haystead. c. There would be no battery when the train pulling up caused Fred to stand on Johns foot. However, when he refused to remove it he would be guilty of battery.
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Activity 9.4
a. There was no false imprisonment in the case of Bird v Jones because the defendant had not imposed a complete restriction on Birds freedom of movement. b. It is possible to falsely imprison a person where that person is not aware of it. See Meering and also Murray v Ministry of Defence although it is likely to have an impact on the amount of damages awarded. c. False imprisonment is actionable per se because the mere fact of the imprisonment is an injury in itself in that it is a wrongful interference with a persons liberty. d. There was no false imprisonment in Sayers because the defendant had not directly locked her in the lavatory.
Activity 9.5
It was ruled by the House of Lords in Wainwright v Home Office that the rule in Wilkinson v Downton will not apply to this situation. Conduct calculated to humiliate and distress is not, without more, tortious at common law.
Chapter 10
Activity 10.1
(a), (b) and (d) fall between the two extremes of inducing a breach of an existing contract (unlawful) and inducing someone not to enter into a contract (case (c) lawful). Not all of them have yet been the subject of decisions, but there is speculation about them in the books. What do you think?
Activity 10.2
a. The issue is how far merely putting facts before X and letting him decide amounts to inducement. (b) Does D strike at X through someone else? (c) See Stratford v Lindley. (d) See for example Markesinis and Deakin p. 514.
Activity 10.3
The answer to these is not very clear and the texts will guide you as to possible answers. On the one hand it is not enough negligently to bring about a breach of contract. Is it enough that D knows there must be some sort of contract between C and X and intends to break it if he can? There are extreme examples where it is justified to induce a breach of contract (see Brimelow v Casson): what other circumstances might be sufficient?
Activity 10.4
a. Threat of breach of contract. b. See the discussion above and the references. c. Do you think that the ultimate purpose might ever be so important that it justifies an illegal act to bring it about? d. Might there be a public interest in preserving the peace and allowing an action in intimidation in the first situation and not the second?
Activity 10.5
(a) This is a philosophical question. It might be that two people combining is more threatening than one person alone, but the one might be extremely powerful on its own. Are there are any other ways in which the rule can be explained? Consider the
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relationship between (b) and (c): given that the defendants have to aim to injure the claimant, is there any room left for a defence of justification? (d) No feedback given.
Chapter 11
Activity 11.1
a. This is a private nuisance it interferes with my use and enjoyment of land. b. This does not interfere with my land because the nuisance occurs outside my property. It cannot therefore be classified as a private nuisance. It affects the public and I have suffered special damage: this is a public nuisance. c. Here we are dealing with an isolated escape from one garden to another. This indicates potential liability under the rule in Rylands v Fletcher.
Activity 11.2
The facts resemble Khorasandjian v Bush (1993) where the daughter was permitted to sue in private nuisance to obtain an injunction to stop persistent telephone calls to her parents home where she lived. Note, however, that following Hunter v Canary Wharf (1997), it is not enough to live with ones parents. To have a right to sue, the claimant must possess an interest in land or exclusive possession of the land. In Hunter, the House of Lords held that Khorasandjian v Bush had been incorrect in allowing the daughter to sue. Their Lordships were influenced, however, by the introduction of the Protection from Harassment Act 1997, which imposes criminal and civil liability for harassing behaviour. Section 1 provides that (1) A person must not pursue a course of conduct (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other. Helen may therefore seek damages and/or an injunction under s.3, but note that a course of conduct must involve conduct on at least two occasions: s.7(3). Conduct does, however, include speech: s.7(4).
Activity 11.3
Planning permission is not a relevant factor unless it changes the character of the area: see Gillingham Borough Council v Medway (Chatham) Dock Co Ltd (1993) and Wheeler v JJ Saunders Ltd (1996). However, the court would consider: i. The duration and frequency of the drilling. ii. T he level of noise. Was is unbearable to the reasonable person or are you being extra-sensitive? See Heath v Mayor of Brighton (1908). iii. Malice: I have been deliberately playing loud music: see Christie v Davey (1893).
Activity 11.4
The question here is whether the Council is liable for its failure to control the activities of others. The drug addicts do appear to be interfering with the use and enjoyment of the local householders land. Is this, put simply, a Lippiatt or an Hussain situation? The church hall appears to be the focal point for the addicts can it be said to be a launching pad for their activities? If so, the relevant authority would seem to be Lippiatt and the Council would be liable. This is supported by the fact that the addicts are licensees and not tenants. Note, however, how thin the line seems to be between this scenario and Hussain where the Council was not found to be liable.
Activity 11.5
Assuming that Mrs Groan has a good cause of action in private nuisance (she has an interest in land and the noise or potential threat to property suffice), the question arises whether Fred has any defences to her claim. Planning permission is not a defence. Prescription cannot be established on the facts. Equally he cannot rely on the social utility of cricket, nor the fact that Mrs Groan has come to the nuisance. He must therefore hope that the court will exercise its discretion in his favour when
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Activity 11.6
This is an isolated incident and concerns an escape from one piece of land to another. This should indicate to the student the likelihood of a claim under the rule in Rylands v Fletcher. The four Cambridge Water requirements must be satisfied:
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the defendant brings on his lands for his own purposes something likely to do mischief which escapes due to a non-natural use, and which causes foreseeable harm
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Here, there is clearly an escape, but the other requirements may be more difficult to satisfy. Is placing building materials on your land something likely to do mischief or, to use the terminology of Transco: has Janice brought some dangerous thing onto her land which poses an exceptionally high risk to neighbouring property should it escape, and which amounts to an extraordinary and unusual use of her land? Arguably building materials can cause serious injury, but is building a shed an unusual use of her land? Equally, it may be difficult to establish that the accident was reasonably foreseeable as the circumstances are somewhat unusual. In any event, as seen below, any personal injury claim is unlikely to be recoverable. In relation to defences and remedies, it is now unlikely that a storm would be classified as an Act of God and the other defences do not appear to apply. It is questionable, however, whether Ken can sue for his personal injuries (see 11.3.4), but he may recover the damage to his prize flowers (property damage) if he can show that the damage was reasonably foreseeable.
Activity 11.7
The question here relates to a public nuisance. The problem does appear to affect the reasonable comfort and convenience of life of a class of Her Majestys subjects, that is, the people passing under the bridge. On the basis of Sedleigh-Denfield (which remember applies to both public and private nuisance), if the defendant was aware of the nuisance caused by the pigeons, had a reasonable opportunity to abate it, had the means to abate it, but has chosen not to do so, then the defendant will be liable. But has Catherine suffered special damage? Her, presumably expensive, suit is ruined, but we are told that the other people passing under the bridge suffer the same fate. In the Wandsworth case, the action was brought by the local authority under section 222(1) of the Local Government Act 1972 which enables a local authority to institute civil legal proceedings in its own name where it considers it expedient to do so for the promotion or protection of the interests of the inhabitants of its area. The question of special damage was therefore not in issue. On the assumption, however, that not every person suffers harm who walks under the bridge, Catherine may bring her claim for damages.
Activity 11.8
No feedback provided.
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Chapter 12
Activity 12.1
a. Section 4(1) of the Theatres Act 1968 states that performances of a play (except when given on a domestic occasion in a private dwelling) shall be treated as publication in permanent form and therefore libel. This would be libel. b. I am depicting Albert as a burglar and therefore alleging that he is dishonest. In Monson v Tussauds Ltd (1894) 1 QB 671, the Court of Appeal found that a waxwork in Madame Tussauds was sufficiently permanent to amount to libel. It depends if the model is a permanent fixture in my garden. c. It has been suggested that even though rain would remove the chalk from the pavement, this would be libel: see Winfield and Jolowicz at p. 405, who comment that this is arbitrary.
Activity 12.2
To be defamatory, a statement must tend to lower the plaintiff in the estimation of right-thinking members of society generally (Sim v Stretch [1936] 2 All ER 1237) or lead to the claimant being shunned or avoided (Youssoupoff v MGM Pictures Ltd (1934) 50 TLR 581). We need to examine each statement in turn: a. Barbara has plenty of friends, especially men. This, at first, seems harmless. It is a good thing to have lots of friends. However, the last two words especially men could be argued to carry a negative meaning. Having lots of male friends may be regarded as an innuendo that she is flirtatious or even has loose morals. However, in modern times, having lots of boyfriends would not generally be seen as defamatory unless, of course, Barbara was a nun or married. b. Barbara has spent some time in the police station, helping the police with their inquiries. Again this seems a factual statement. But does it suggest, by way of innuendo, that Barbara is a criminal? In Lewis v Daily Telegraph Ltd [1964] AC 234, the statement that Lewis was being investigated by the police for fraud was not found to suggest that he was guilty of fraud. It merely suggested that he was a suspect. Here, a court is likely to find that the only meaning would be that Barbara is a suspect in some case and not that she is a criminal. c. Barbara is a thief. But at the bottom of the poster in small letters it says, in the local play. Do go and see it! To say Barbara is a thief is defamatory. However, it can be argued that the insult is neutralised by the explanation at the bottom of the poster explaining that she is pretending to be a thief in a local play. In Charleston v News Group Newspapers Ltd [1995] 2 AC 65, the House of Lords held that an explanation can neutralise an insult, but only if it is obvious to the reader. Lord Nicholls did warn newspapers, however, that they were playing with fire, and that if the explanatory text were tucked away further down the article or on a continuation page, the court would be likely to take a different view. Here, the explanation is placed at the bottom of the poster in small letters. It is on the same page, but it depends how small the lettering is and whether a passer-by looking at the poster would read it.
Activity 12.3
This story alleges corruption, which is clearly defamatory. The parties must, however, show that the story refers to them specifically. The church choir are named specifically, but they are a group. In Knuppfer v London Express Newspaper Ltd [1944] AC 116, the House of Lords was not prepared to allow an individual who was part of a large group to bring an action in defamation. Amys claim will therefore depend on the size of the choir. Lord Porter in Knuppfer advised that the court should examine the size of the
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Activity 12.4
Publication requires knowledge of the defamatory words by a third party. In the first example, Anne sends a postcard to Boris stating that he is dishonest. She does not necessarily intend anyone else to know. However, it is a question of foresight. The courts will presume, in the absence of evidence to the contrary, that statements on a postcard will be read by third parties and are therefore published. Charles, however, places the defamatory words in an envelope which is sealed and marked private and confidential. It would not be considered foreseeable that Davids wife would ignore this and open the letter. Consider Theaker v Richardson [1962] 1 WLR 1512. Elizabeth has published a defamatory comment about Geraldine to Fiona. Fiona repeats this accusation. However, it could be argued that Elizabeth knows that Fiona is a gossip and will thus repeat the accusation. If it can be shown that she intended repetition, she may remain liable for the damage caused by repetition: see Slipper v BBC [1991] 1 QB and McManus v Beckham [2002] 1 WLR 2982. Harry clearly publishes his slanderous accusation in the shop, but should he be responsible for the damage caused when James newspaper prints the story? The situation is very similar to that in McManus v Beckham [2002] 1 WLR 2982 where the court applied the test that the jury should be directed that the defendant would be liable for the damage if either (a) the defendant knew that what she said or did was likely to be reported and that if she slandered someone that slander was likely to be repeated in whole or in part, or (b) a reasonable person in the position of the defendant should have appreciated that there was a significant risk that what she said would be repeated in whole or in part in the press and that that would increase the damage done by the slander. Here, Harry, by virtue of his fame and the fact that he is being followed by a reporter, should have appreciated that his controversial words would be repeated. Ivor would, however, have to prove special damage to sustain his claim for slander against Harry.
Activity 12.5
Keiths accusation that Lenny, an amateur, has taken money amounts to an accusation that he has acted contrary to his amateur status, and therefore is a professional. In Williams v Reason [1988] 1 WLR 96, a Welsh amateur rugby player sued in respect of an article which accused him of writing a book for profit, contrary to his amateur status. The defendants claimed justification and were permitted to allege in support of the article that the player had previously taken money for wearing a particular brand of boots. The sting of the defamatory words was that Williams had compromised his amateur status (so-called shamateurism) and the evidence of the boots money went to justify that charge.
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Lenny, however, is likely to have less success. In Wakley v Cooke (1849) 4 Exch. 511, the court held that the term libellous journalist indicated that the claimant was in the habit of libelling people and even proof that the claimant had lost a libel case did not serve to justify this innuendo.
Activity 12.6
Mavis could argue that racism is a matter in the public interest, but may find the other two requirements for fair comment more difficult to prove. Her headline More evil than Norris suggests that Norris is evil therefore it is not a comment, but a statement of fact. However, she can argue, as in Kemsley v Foot [1952] AC 345, that Norris, like Lord Kemsley, is a well-known figure and that she is commenting on his well-known behaviour during his television programme. Provided that this is her honest opinion, this is fair comment. However, she may have more difficulty with Oliver. Oliver, we presume, is not a public figure and therefore this looks very like a statement that Oliver is a racist which she must justify or be found to be defamatory. She would argue, as in Telnikoff v Matusevitch [1992] 2 AC 343, that this is a comment on his earlier article, but there is no reference to the article in her statement. Most readers would therefore take the statement at face value. In any event, Oliver could argue that Mavis view was not honest, as she was motivated by malice, although he would have to prove
Activity 12.7
The story is defamatory of Tony Brown, unless the Daily Scandal can establish a defence of qualified privilege. The question must be whether it can satisfy the Reynolds criteria. It has sought a response from Mr Brown so as to give him a right of reply, but only during the day before the story was published. It is a very serious allegation corruption and the tone of the article is somewhat sensationalist. The Daily Scandals greatest problem is its source. Mr Browns former Parliamentary Secretary may seem at first to be a strong source as someone close to him, but she was dismissed for dishonesty. She is therefore likely to hold a grudge and there is a suggestion that she may indeed be untrustworthy herself: see Loutchansky v Times Newspapers Ltd (No.6) [2002] EWHC 2490 where The Times newspaper was heavily criticised for relying on evidence from the wife of a businessman alleged to be a friend of the claimant. She had spent three years embroiled in divorce proceedings against her husband, and it was apparently alleged that she had paid 400,000 to have him killed. As the court said, It should have been obvious to any responsible journalist that she was highly unlikely to be a reliable source of information about her husband. In view of such concerns, the Daily Scandal should have made clear efforts to verify the information given by the secretary and not relied on her word alone. In other words, it has not satisfied the test of responsible journalism and cannot rely on the defence of qualified privilege.
Activity 12.8
The jury has clearly found the statements to be defamatory of Reg and there is no evidence of a defence being brought by the Daily Scandal. Any query must therefore lie in the amount of damages awarded. 8 million is a huge amount of money even if the story was a blatant lie. It is likely that the Court of Appeal will use its power under section 8 of the Courts and Legal Services Act 1990 to substitute its own figure of damages for that of the jury without the need for a retrial. One may question, in particular, whether the jury was informed by way of guidance, compliant with John v Mirror Group Newspapers Ltd [1997] QB 586, of the level of damages awarded in personal injury cases. The award is clearly disproportionate to the damages awarded by the judge in the very serious road traffic case. In Kiam v MGN Ltd [2003] QB 281, the Court of Appeal refused to interfere unless the sum was out of all proportion to that which sensibly could be regarded as appropriate. This does seem to be the case here.
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Chapter 13
Activity 13.1
a. See as a parallel the Ready Mixed Concrete case, but it is a matter of impression and not hard and fast rules. Do you think that B is really an employee? How do the features of his relationship add up? b. No doubt he is not in the course of employment when he is in the shop (nothing to do with his work) but can you regard parking the van carelessly as part of his job? A tort would have to be proved res ipsa loquitur might be relevant (see Chapter 3).
Activity 13.2
No feedback provided.
Activity 13.3
a. In answering this consider the Shatwell case and ask yourselves what further information you would need in order to give a satisfactory answer. b. They are about to commit an illegal act, but the carelessness is not connected with the illegal act. Do any of the policy reasons for a defence of illegality operate to deny C damages? c. You should be able to reach a decision after examining similar situations in Chapter 5. d. and e. Are there distinctions between the two situations? Is Es position morally different in the two situations?
Activity 13.4
a. She is not required to use the NHS, but surely she cannot recover for any private medical treatment? Was this reasonable expenditure here? b. See in particular Hunt v Severs. c. These would be minimal: no pain and suffering, no dependants (and so no Fatal Accidents claim), no loss of earning (Administration of Justice Act reversing Pickett where the claimant is dead). Do you think that this is appropriate?
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Notes