’Gbenga Bamodu
i
Preface
ii
To
iii
Contents
Table of Cases
Legislation and Legislative Instruments
iv
2.4.3 Self-defence ........................................................ 21
2.5 False Imprisonment ................................................... 21
2.6 Defences to False Imprisonment ............................... 27
2.7 Intentional Infliction of Distress .................................. 28
2.7.1 The tort (or rule) in Wilkinson v Downton............. 28
Chapter Three: ........................................................................ 31
Trespass to Land .................................................................... 31
3.1 Introduction ................................................................ 32
3.2 Elements of Trespass to Land ................................... 33
3.2.1 Direct interference ............................................... 33
3.2.2 Intention............................................................... 38
3.2.3 Trespass to land is a tort actionable per se ......... 40
3.2.4 Unjustifiable interference ..................................... 40
3.3 Defences to an Action for Trespass to Land .............. 40
3.4 Remedies for an Action for Trespass to Land ............ 41
Chapter Four: .......................................................................... 43
Trespass to ‘Personal Property’ and Conversion .................... 43
4.1 Introduction ................................................................ 44
4.2 Interference with Another Person’s Goods ................ 46
4.3 Trespass to Goods..................................................... 46
4.3.1 Actionable per se................................................. 47
4.3.2 Direct interference ................................................... 48
4.3.3 Intention .................................................................. 48
4.3.4 Remedy ............................................................... 49
4.4 Conversion ................................................................. 50
4.4.1 Examples............................................................. 51
4.4.2 Remedies ............................................................ 54
v
Chapter Five: .......................................................................... 55
Negligence: Duty of Care ........................................................ 55
5.1 Introduction ................................................................ 56
5.2 The Basic Elements of the Tort of Negligence ........... 56
5.3 Historical Development of Negligence and the Concept of
Duty of Care ................................................................. 57
5.3.1 Interesting historical titbits ................................... 62
5.4 Establishing the Duty of Care..................................... 66
5.4.1 Determining whether a duty of care exists or not 69
5.4.2 Operation of the tests for imposing a duty of care –
examples from case law .................................... 77
Chapter Six: ............................................................................ 87
Negligence: Breach of Duty .................................................... 87
6.1 Introduction ................................................................ 88
6.2 The Standard of Care ................................................ 89
6.3 Breach of Duty of Care: Some Parameters from Case
Law .................................................................................. 95
6.3.1 Reasonable care NOT perfect care ..................... 96
6.3.2 Standard of care: an objective standard .............. 97
6.3.3 Foreseeability of harm ....................................... 100
6.3.4 Magnitude of risk ............................................... 101
6.3.5 Practicality of taking measures to prevent the harm
101
6.3.6 Public utility or good .......................................... 101
6.3.7 Legislative intervention ...................................... 102
Chapter Seven: ..................................................................... 103
Negligence: Causation and Remoteness of Damage ........... 103
7.1 Introduction .............................................................. 104
7.2 ‘Factual’ Causation and ‘Legal’ Causation ............... 104
vi
7.3 Factual Causation - The ‘But For’ Test .................... 105
7.4 Legal Causation - ‘Remoteness of Damage’ ............ 111
7.4.1 Remoteness of damage .................................... 112
Chapter Eight: ....................................................................... 117
Negligence: Psychiatric Damage .......................................... 117
8.1 Introduction .............................................................. 117
8.2 What is Psychiatric Damage or Harm? .................... 119
8.3 Types of Claimant: ‘Primary Victim’ and ‘Secondary
Victim’ ............................................................................ 120
8.3.1 Primary victims .................................................. 121
8.3.2 Secondary victims ............................................. 122
Chapter Nine: ........................................................................ 126
Negligence and Product Liability ........................................... 126
9.1 Introduction .............................................................. 127
9.2 Claims for Product Liability in Contract .................... 128
9.3 Claims for Product Liability in Tort ........................... 131
Chapter Ten: ......................................................................... 136
Nuisance and the Rule in Rylands v Fletcher ....................... 136
10.1 Introduction ........................................................... 137
10.2 Private Nuisance................................................... 138
10.2.1 Interference with land – who can sue? ........... 139
10.2.2 Unreasonable interference ............................. 141
10.2.3 Remedies and defences in an action for nuisance
....................................................................................... 144
10.3 The Rule in Rylands v Fletcher ............................. 146
vii
Chapter Eleven: .................................................................... 150
Defamation............................................................................ 150
11.1 Introduction ........................................................... 151
11.2 Defamation: ‘Libel’ or ‘Slander’ ............................. 152
11.3 Elements of Defamation ....................................... 153
11.3.1 Whether the defendant’s statement is defamatory
153
11.3.2 Whether the statement refers to the claimant 157
11.3.3 Whether the statement has been published i.e.
communicated to a third party ........................................ 164
11.4 Defences to an Action for Defamation ....................... 167
11.4.1 Truth............................................................... 167
11.4.2 Honest opinion ............................................... 168
11.4.3 Privilege ......................................................... 168
11.4.4 Publication in a matter of public interest......... 170
11.4.5 Persons not responsible for publication ......... 170
11.4.6 Operators of websites .................................... 171
11.5 Offer to Make Amends .......................................... 172
Glossary of Terms ............................................................. 173
Index.................................................................................. 178
viii
Table of Cases
ix
Bolitho v City and Hackney Health Authority [1997] UKHL 46;
[1998] AC 232 …………………………………………………... 100
Bolton v Stone [1951] UKHL 2, [1951] AC 850 … ……… 100, 101
Bonnington Castings Ltd v Wardlaw [1956] UKHL 1, [1956] AC
613 ……………………………………………………………….. 109
Bourhill v Young [1942] UKHL 5, [1943] AC 92 95, 142, 145, 148
Bowes v Shand [1877] 2 AC 433 …………………………….... 129
x
Doughty v Turner Manufacturing Company Ltd [1963] EWCA Civ
3, [1964] QB 518 ………………………………………………... 113
xi
Holmes v Mather (1875) 133 LT 361 …………………………... 49
Holmes v Wilson (1839) 10 A & E 503 ……………………. 34, 35
Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC
1004 …………………………………………………………. 80, 116
Hotson v East Berkshire Area Health Authority [1988] UKHL 1,
[1987] AC 750 …………………………………………………... 109
Hughes v Lord Advocate [1963] UKHL 1, 1963 AC 837 …… 114
Hunter v Canary Wharf Ltd [1997] UKHL 14, [1997] AC 655 140,
141, 142
Hutchins v Maughan [1947] VLR 131 ………………………..…. 48
Huth v Huth [1915] 3 KB 32 ……………………………………. 165
xii
Lumba (WL) v Secretary of State for the Home Department
[2011] UKSC 12 ………………………………………………….. 25
O'Shea v MGN Ltd and others [2001] EWHC QB 425 ……… 161
xiii
Orchard v Lee [2009] EWCA 295, [2009] PIQR P16 …………. 99
Orme v Associated Newspapers Ltd (‘The Moonies case’) (1981)
The Times February 4 ……………………………………….…. 162
Oropesa, The [1943] P 32 ……………………………….…….. 116
Overseas Tankship (UK) Ltd v Morts Dock & Engineering
Company Ltd (The Wagon Mound No 1) [1961] UKPC 2, [1961]
AC 388 ……………………………………………………... 113, 114
xiv
Scott v Shepherd [1773] 2 Wm Bl 892 …………………………. 18
Sedleigh-Denfield v O’Callaghan [1940] AC 880 ……………. 141
Sienkiewicz (etc) v Greif (UK) Ltd; Knowsley MBC v Willmore
[2011] UKSC 10 ………………………………………………… 111
Six Carpenters Case (1610) 8 Co Rep 146a ………………….. 35
Smith v Leech Brain & Co [1962] 2 QB 405 ………………….. 115
Smith v Littlewoods, [1987] UKHL 18, [1987] 2 AC 241 ……... 74
Smith v Stone 82 ER 533 (1647) ………………………………. 39
Sobrinho v Impresa Publishing SA [2016] EWHC 66 ……….. 156
St Helen's Smelting Co v Tipping [1865] 11 HL Cas 642 ….. 141
Stanley v Powell [1891] 1 QB 86 ……………………………….. 12
Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC
35 ………………………………………………………..… 31, 36, 42
Stennett v Hancock & Peters [1939] 2 All ER 578 …………... 132
Stephens v Myers (1830) 4 C&P 349 ………………………….. 16
Sturges v Bridgman (1879) LR 11 Ch D 852 ………….. 143, 146
xv
Watt v Hertfordshire County Council [1954] EWCA Civ 6, [1954]
1 WLR 835 …………………………………………………….… 102
Weld-Blundell v Stephens [1920] AC 956 ……………………. 116
Wennhak v Morgan (1888) 20 QBD 635 …………………….. 164
Wheeler v JJ Saunders Ltd [1994] EWCA Civ 32 …………… 143
White and Others v Chief Constable of South Yorkshire and
Others [1998] UKHL 45, [1999] 2 AC 455 ……….. 117, 119, 122
Wilkinson v Downton [1897] EWHC 1 (QB) ………….. 28, 29, 30
William Leitch & Co Ltd v Leydon [1931] AC 90 ……………… 47
Wilsher v Essex Area Health Authority [1987] UKHL 11, [1988] 1
AC 1074 …………………………………………………………. 109
Wilson v Pringle [1987] QB 237 ………………………………… 18
xvi
Legislation & Legislative Instruments
United Kingdom Legislation
International Instruments
xvii
Chapter One:
Think About!
1. What is a tort?
2. On what basis does or should the law classify an action or omission as a tort?
7. Should the remedies for tort or the remedies for crime prevail where the same action or
omission amounts to both a tort and a crime?
1
1.1 General Introduction
2
regarded as done against the state and which are generally
punished by penal or criminal sanctions! Unlike the law of tort,
the aim of criminal law is generally to punish an offender.
In view of the variety of the actions and omissions that have been
held by the courts to be torts and the different circumstances
relating to them, it is not so straightforward to establish the
conceptual basis for tort completely and conclusively.
3
are protected by tort; why should those right or interests be
protected; and, why should the law provide a remedy if those
rights or interests are affected by the action or omission of
another person?
1.4 Terminology
To start with, the law of tort seeks to protect the right or interest
of a person on an underlying assumption that the person has
suffered a ‘loss’ or ‘harm’ or ‘damage’, as a result of another
person’s action or omission affecting that right or interest.
4
Examples of clear loss or harm or damage arising from a tort
include:
Next, care should be taken about the use of the word ‘wrong’ in
the law of tort. In general, what is meant is a ‘legal wrong’, that
is, an action or omission that the law classifies as a wrong in law.
It is to be distinguished for example from a ‘moral wrong’. For
example, a person who sees another drowning and does nothing
to assist may have committed a ‘moral wrong’ yet they may not
5
be regarded as having committed a ‘legal wrong’! A well-
publicised recent example of this is the viral video of a group who
watched and encourage another man drowning without doing
anything at all to help him:
http://edition.cnn.com/2017/07/20/us/florida-teens-drowning-
man/index.html
6
liability’. For most torts, the defendant will normally only be held
liable if he was in some way ‘at fault’. This means that the
defendant must have deliberately acted (or failed to act) in a
wrongful manner or that the defendant did not behave in a
manner that was to be reasonably expected to prevent the
damage that occurred.
7
1.6 The Role of Insurance
1.7 Classification
8
intend the consequence/s of the action, as what is required is the
intent to carry out the act. On the other hand, there are
circumstances when whether the defendant intends a particular
consequence is relevant; this is sometimes referred to as
‘subjective recklessness’. We shall be exploring these issues
further when we deal with specific examples of intentional torts.
3. Strict Liability Torts: with this type of tort, the defendant can be
held liable for the occurrence of a particular event or
consequence – no matter that (a) he did not intend the event or
consequence and/or (b) that he did his best to prevent the event
or consequence from occurring. There are only a few examples
of strict liability torts and, evidently, there will usually be
significant policy considerations behind the treatment of a tort as
being of strict liability.
9
Chapter Two:
Think About!
10
2.1 General Introduction
The tort of trespass to the person is an old tort which had greater
importance before the English courts recognised the tort of
negligence. In modern times, some actions that might have been
brought in the past in trespass are brought in the tort of
negligence. This is particularly true of claimants seeking
compensation for personal injury.
11
to the claimant by an indirect action or indirect cause attributable
to the defendant. For this reason, our discussion of trespass to
the person will also include a consideration of intentional infliction
of distress.
12
fault-based tort and it is necessary to prove intention to do an
action or omission by the defendant or at least a form of
recklessness about the action or omission.
13
their action will have a particular consequence – yet goes ahead
with the action; Iqbal v Prison Officers Association [2009].
2.2 Assault
14
Assault does not require actual physical violence or even
physical contact.
If the claimant knew that there was no real threat of unlawful force
to him, or if the claimant was not even aware of the threat of
unlawful force to him, then there is not likely to be assault. For
example, if John knew that the gun was not loaded, then Donald
pointing the gun at him is not likely to be assault. Similarly, if John
was walking towards the door and did not see John point a gun
at him from the back, there would not be assault – even if the gun
was indeed loaded.
15
circumstances. It does not matter that a very brave or foolhardy
person would not have apprehended fear; neither does it matter
that a particularly timid or cowardly person would have been
afraid; this point is acknowledged in the case of Stephens v
Myers (1830) 4 C&P 349.
16
2.2.2 Intention
The required intention in the tort of assault is either: (a) that the
defendant intended to cause the claimant to apprehend unlawful
force; or (b) was reckless about the possibility that their action
would cause the claimant to apprehend unlawful force.
2.3 Battery
17
If John raises David’s hand and uses it to hit Thomas,
John’s action is likely to be treated as direct force
2.3.2 Force
18
It is now generally accepted that the correct legal position is that
the force or touching does not have to be with ‘hostile intent’. In
Collins v Wilcock [1984], Goff LJ adopted the approach that for
force to amount to battery, the touching should be more than the
type of physical contact that is ‘generally acceptable in the
ordinary conduct of daily life.’ This approach was also supported
in Wainwright v Home Office [2003] UKHL 53.
2.3.3 Intention
19
2.4 Defences to Assault and Battery
2.4.1 Consent
20
2.4.2 Necessity
2.4.3 Self-defence
The tort of false imprisonment is the third of the torts under the
umbrella of trespass to the person. It is also a tort that is
‘actionable per se’, that is, actionable ‘of itself’. This means that
a person may be able to sue for false imprisonment even if they
have not actually suffered any harm or injury.
21
Austin & Anor v Commissioner of Police of the
Metropolis [2009] UKHL 5
During a demonstration in central London, the Police
established a cordon and prevented the claimants from
leaving the Oxford circus area; it was held that this would
amount to false imprisonment - except that the Police were
acting lawfully because they thought it necessary to
prevent people from leaving the area.
22
Bird v Jones [1845] EWHC QB J64
The defendant fenced off part of a footpath on a bridge so
that he could charge people to watch a boat race; the
claimant normally walked along that footpath at other
times; the defendant tried to walk on the footpath on the
day; he was being prevented from doing so but managed
to climb over the rope fence; police officers that the
defendant had employed prevented the claimant from
passing through the footpath; they said he could go back
the way he came in and take another route; held (QB, by
3-1 majority): there was no false imprisonment since the
claimant had an alternative route open to him; partial
obstruction and disturbance should not be confounded
with total obstruction and detention.
Compare
23
measures to escape, even if there is false imprisonment, it may
affect the amount of damages that the court will award.
24
Intention to restrict the claimant’s freedom of movement: false
imprisonment is an intentional tort, so there is a requirement that
the wrongful action of the defendant must have been done
intentionally or with recklessness.
25
government had a published policy that foreign prisoners
only awaiting deportation are ordinarily to be released
pending deportation; but the government was operating
an unpublished policy that foreign prisoners awaiting
deportation are ordinarily to be detained pending
deportation; held: the detention of the prisoner beyond the
prison term pending deportation was unlawful as it was
contrary to the published policy; the prisoner could sue for
false imprisonment.
26
Herd v Weardale Steel, Coal & Coke Co [1915] AC 67
Claimant agreed to work in a mine from 9.30AM to 4PM;
he refused to do the work that he was required to do; at
11AM, he requested to be taken back to the surface; a lift
became available at 1.10PM but his employers did not let
him take the lift until 1.30PM; he sued for false
imprisonment; held: there was no false imprisonment; the
claimant had consented to be in the mine until 4PM.
27
2.7 Intentional Infliction of Distress
28
The case of Wilkinson v Downton was followed in a later case:
For a long time, however, cases were not being brought under
the rule in Wilkinson v Downton – especially because of the
development of the law on nervous shock in the tort of
negligence.
29
Note:
(c) In Wainwright & Anor v Home Office [2003] UKHL 53, the
House of Lords was not willing to extend the rule beyond physical
harm or recognised psychiatric illness to include intentional
infliction of distress
(d) In Rhodes v OPO & Anor (above), the court did not settle
whether intentionally causing significant distress, on its own, can
give rise to a cause of action though Lord Neuberger seemed to
be of the opinion that it should be possible.
30
Chapter Three:
Trespass to Land
Think About!
Through his company, Bocardo, Mr Mohammed Al Fayed was the owner of an estate
in Oxted, Surrey UK. A company called Star Energy (etc) was drilling for oil; without
informing Mr Al Fayed, Star Energy constructed three wells beneath his estate at a
depth of at least 800 feet. For 17 years - between 1990 and 2006 - Star Energy pumped
oil from the oil fields and Mr Al Fayed did not know about this; although he had some
suspicions about the drilling activities in 1992, it was only in 2006 that he found out
through official records that pipelines were under his land.
Mr Fayed sued for trespass to land. Should he be entitled to succeed in an action for
trespass to land?
If he succeeds in an action for trespass, what remedy should he be entitled to?
Should he be entitled to an injunction to prevent Star Energy from continuing to drill
for oil using pipelines under his land? Or should the court not grant an injunction but
award a different kind of remedy e.g. damages?
If the court decides to award damages, how much damages should he be entitled to?
Should he be entitled to a share of the proceeds of the drilling up to the time of the case
– which could be up to £7,000,000? Or should he only be awarded a small amount e.g.
£1,000 due to the fact that he did not really suffer any harm as such as a result of the
presence of the wells under his land?
31
3.1 Introduction
To some extent, the tort also protects the rights of the claimant
arising from ownership of property; but this is indirect - as an
owner would still have to show a right to possession. One
principle allowing for this is called ‘trespass by relation’; this
allows a person who is not in possession, but is entitled to it, the
right to sue right from the time he became entitled to the right of
possession - even though he actually enters into possession at a
later point.
32
3.2 Elements of Trespass to Land
This really means that for the tort to be committed the defendant
must have done something that affects the claimant’s property
and his right to possession. Indirect interference usually refers to
a situation where the defendant does not do anything directly to
the claimant’s property but allows something to happen to it; this
will not normally be covered by trespass to land but may be dealt
with by another tort called nuisance.
33
putting an object or something on someone’s property:
e.g. throwing something onto another person’s land;
placing something on another person’s property; this
could even be ‘continuing’ trespass if the object is not
removed; Holmes v Wilson (1839) 10 A & E 503.
Examples:
34
known as continuing trespass! In Holmes v Wilson (1839) 10 A
& E 503 The highways authorities erected buttresses to support
a road that was sinking; the buttresses trespassed on the
claimant’s land; the claimant sued for trespass and won; the
buttresses were not removed; so, the claimant sued again and
won again.
35
the Police liable for trespass ab initio after they had entered a
property by lawful authority.
36
concept of the strata belonging to anybody would be an
absurdity, that was not so on the facts of this case and the
claimant was entitled to succeed for trespass to land.
Compare with:
37
Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB
479
The defendant flew aircraft over the claimant’s property and took
photos of the property among others; the defendant then offered
to sell the photos to the claimant; the claimant sued for trespass;
held: the defendant was not liable for trespass; flying over the
claimant’s property in the circumstances of the case did not
infringe the claimant’s right to airspace; Griffiths J said that the
best way to balance the rights of a landowner to enjoy the use of
his land against the rights of the general public to take advantage
of all that science now offered in the use of airspace is
3.2.2 Intention
38
to be on the land and the intention element of the tort of trespass
to land would not be present.
Compare:
and
Gilbert v Stone 82 ER 539 & 902 (1647) {Style and Aleyn reports
respectively*}
The defendant was sued for going onto the claimant’s land and
stealing a horse; he claimed that he was forced by 12 men, who
threatened to kill him, to enter the land and steal the horse; held:
that the claim of the defendant was not a defence to the
claimant’s action.
{*There are some questions about the relative accuracies of the
two reports of the case.}
and
39
3.2.3 Trespass to land is a tort actionable per se
40
reasons of public or private safety and without negligence on the
part of the defendant, the defendant may be able to successfully
defend an action for trespass to land; as reflected for example in
Cope v Sharp [1912] 1 KB 496.
Jus Tertii (‘rights of a third party’): if the defendant can show that
the person in possession claiming trespass is not entitled to
possession and that the right actually belongs to a third party,
then s/he may be able to successfully defend an action for
trespass to land.
41
Damages: damages may be awarded to compensate the
claimant for actual loss suffered or nominally in a token sum to
denote that trespass has been committed even though no real
harm has been done; it is helpful to remember that trespass to
land is actionable per se; remember also the case of Star Energy
etc v Bocardo.
42
Chapter Four:
Think About!
1. Ahmed left his phone on the table while he stepped outside to have a chat with Nadine. John
picked up Ahmed’s phone and begins playing a game on it.
2. Leslie Ltd of the UK ordered 100 bales of cotton from Nourhan Co of Egypt; Leslie Ltd asked
Nourhan Co to ship the cotton to Leslie Ltd’s customer Putinovich in Russia; this was because
Leslie Ltd had made a contract to re-sell the cotton to Putinovich. Leslie Ltd had not paid yet
and did not get to inspect the cotton before it was shipped to Russia. When the cotton arrived
in Russia, Putinovich rejected them because they were badly stained and damaged.
3. The professor lent his tort law book to one of his law students for one week; after the one
week had passed, the student refused to return the book!
43
4.1 Introduction
Chattels personal are then further divided into (a) tangible things
(‘choses in possession’) – physical items as mentioned earlier;
and intangible things (‘choses in action’), things like debts, bonds
and shares also as mentioned earlier.
44
Question: how would you classify software?
Property
Chattels Personal -
Chattels Real i.e. things not
leases connected to land;
generally 'movable'
45
4.2 Interference with Another Person’s Goods
46
‘the plaintiff in an action of trespass must at the time of the
trespass have the present possession of the goods either
actual or constructive, or a legal right to the immediate
possession.’ Johnson v Diprose [1893] 1 QB 512, 515
(Lord Esher)
47
Examples of actions that can amount to trespass include: moving
another person’s thing from one place to another i.e. asportation;
taking something away from the possession of the person entitled
to possession; directing a missile at another person’s goods;
destroying another person’s goods; making contact with another
person’s goods; and, using another person’s goods without
permission.
4.3.3 Intention
The key point here is that the defendant’s action must have been
directed at the claimant’s goods voluntarily; in that event, what
matters is that the defendant intended to do the action in relation
to the goods which the claimant complains about; the defendant
48
would still be liable even if he did not know that he was
trespassing or even if he thought that the goods belonged to him;
Holmes v Mather (1875) 133 LT 361.
4.3.4 Remedy
The Torts (Interference with Goods) Act 1977 provides that relief
in proceedings for wrongful interference, so far as appropriate,
may be in the form of an order for delivery of the goods and
payment of consequential damages; or, an order for delivery of
the goods but giving the defendant an alternative of paying
damages by reference to the value of the goods, together in
either alternative with payment of any consequential damages;
or damages.
49
4.4 Conversion
50
{Side Note: a finder has a better title to the item that he or she
found than anyone else except the true owner of the item;
Armory v Delamirie [1722] EWHC J94}
4.4.1 Examples
51
Intention: the defendant must have intended to do the action
which amounted to the interference with the claimant’s goods.
The defendant does not have to have intended to deny the right
of the person who has or who is entitled to possession. In fact,
the defendant may have been acting under a mistaken belief, but
as long as s/he intended to do the action that interferes with the
right of possession s/he can be liable for conversion.
52
Fouldes v Willoughby (1841) 8 M&W 540
The claimant, with his two horses, went on the defendant’s
ferryboat and paid for their carriage; on a suggestion that
the claimant had behaved improperly, the defendant
refused to carry the horses; the claimant refused to take
the horses off the boat; the defendant put the horses on
shore; the claimant still refused to get off and travelled on
with the boat; the horses were taken to the defendant’s
brother’s hotel; when the claimant asked for them the next
day, he was asked to pay for their keep or they would be
sold; he did not pay, they were sold; held: the defendant
could not be liable for conversion but only for trespass.
… it has never yet been held that the single act of removal
of a chattel, independent of any claim over it, either in
favour of the party himself or any one else, amounts to a
conversion of the chattel.’ per Lord Abinger CB
Compare with
53
4.4.2 Remedies
The Torts (Interference with Goods) Act 1977 provides that relief
in proceedings for wrongful interference, so far as appropriate,
may be in the form of an order for delivery of the goods and
payment of consequential damages; or, an order for delivery of
the goods but giving the defendant an alternative of paying
damages by reference to the value of the goods, together in
either alternative with payment of any consequential damages;
or damages.
54
Chapter Five:
Think About!
55
5.1 Introduction
56
5.3 Historical Development of Negligence and the
Concept of Duty of Care
57
whether manufacturer, salesman or landlord, customer,
tenant, stranger, and so on.
58
regard to those circumstances he would cause danger of
injury to the person or property of the other, a duty arises to
use ordinary care and skill to avoid such danger ……
Although the majority of the court did not accept Brett MR’s
proposition, there seemed at least to be a willingness to accept
that a person who fails to exercise due care with resulting injury
or harm to another person should be held responsible for their
negligent act.
59
Several years later, the English courts eventually established
negligence as a tort in its own right, based on the breach of a
duty of care owed by one person to another which caused harm
or injury to the other. This came by way of a bare 3-2 majority
decision in the important case of Donoghue v Stevenson.
Part of the argument of the two law lords in the minority relates
to what might be termed as the ‘floodgates’ argument that a wider
principle would mean for example that any manufacturer of
anything would be potentially liable to anyone who may
legitimately use the thing at some point; it can be seen from the
following statement of Lord Tomlin:
60
On the other hand, the other three law lords (Lords Atkin,
Thankerton & Macmillan) held that the claimant could be entitled
to succeed. Lord Atkin gave the famous judgment that formed the
basis of the recognition of negligence as a tort. First, Lord Atkin
accepted that a general principle should not be framed too widely
and must be subject to limits: ‘To seek a complete logical
definition of the general principle is probably to go beyond the
function of the judge, for the more general the definition the more
likely it is to omit essentials or to introduce non-essentials.’
61
Finally, Lord Atkin interpreted Heaven v Pender as having
established the same principles ‘when it is limited by the notion
of proximity introduced by Lord Esher himself and A. L. Smith L.J.
in Le Lievre v Gould [1893] 1 QB 491, 497, 504.’
62
consequently in effect against the decision in these previous
cases, which I now proceed to examine.’
Quoting F Pollock
‘“It appears,” says Sir Frederick Pollock, Law of Torts, 13th ed.,
p. 570, “that there has been (though perhaps there is no longer)
a certain tendency to hold that facts which constitute a contract
63
cannot have any other legal effect. The authorities formerly relied
on for this proposition really proved something different and much
more rational, namely, that if A. breaks his contract with B. (which
may happen without any personal default in A. or A.'s servants),
that is not of itself sufficient to make A. liable to C., a stranger to
the contract, for consequential damage. This, and only this, is the
substance of the perfectly correct decisions of the Court of
Exchequer in Winterbottom v. Wright 10 M & W 109 and
Longmeid v. Holliday. 6 Ex 761 In each case the defendant
delivered, under a contract of sale or hiring, a chattel which was
in fact unsafe to use, but in the one case it was not alleged, in the
other was alleged but not proved, to have been so to his
knowledge. In each case a stranger to the contract, using the
chattel — a coach in the one case, a lamp in the other — in the
ordinary way, came to harm through its dangerous condition, and
was held not to have any cause of action against the purveyor.
Not in contract, for there was no contract between these parties;
not in tort, for no bad faith or negligence on the defendant's part
was proved.”’
‘If, on the other hand, you disregard the fact that the
circumstances of the case at one stage include the existence of
a contract of sale between the manufacturer and the retailer, and
approach the question by asking whether there is evidence of
carelessness on the part of the manufacturer, and whether he
owed a duty to be careful in a question with the party who has
been injured in consequence of his want of care, the
circumstance that the injured party was not a party to the
incidental contract of sale becomes irrelevant, and his title to sue
the manufacturer is unaffected by that circumstance.’
64
negligence where the law exacts a degree of diligence so
stringent as to amount practically to a guarantee of safety.’
65
Finally, Cleasby B noted as follows in Francis v Cockrell
66
other words, how the courts decide that a defendant owes the
claimant a duty of care.
67
user (especially a motorist) owes a duty of care to other road
users. There are other recognised situations and we shall be
examining some of them in due course. On the other hand, a
fundamental question remains: what are the underlying reasons
for holding that one person owes another a duty of care in any
particular situation? In other words, what is the conceptual basis
for imposing a duty of care?
A history of the cases shows that the courts have not always
found it easy to set out clearly the underlying basis for imposing
a duty of care on a person – outside the scope of contractual
obligations. Historically, one person’s duty towards another was
in law tied to the existence of a contract between them – i.e.
obligations are assumed voluntarily by agreement in return for a
consideration. The problem with this approach is that a person
who suffered an injury or loss because of the carelessness of
another person would not be able to sue the careless person –
unless they had a contract between them.
68
Pharmacy – because he was not the one who suffered the injury;
he could not sue Shampex Ltd either – because he was not in a
contract with them.
The first thing to remember is that if the defendant does not owe
the claimant a duty of care the claimant will not be able to sue the
defendant. In other words, ‘no duty of care = no liability’.
69
o See: Pelman v McDonald's Corp (McFat
Litigation I) 237 F.Supp.2d 512 (S.D.N.Y. Jan 22,
2003)
https://biotech.law.lsu.edu/cases/food/pelman01.h
tm
70
One of the most famous and most important side comments is
that of Lord Atkin in which he elaborated the famous ‘neighbour’
test or principle; the extract below is part of his side comment:
71
other hand, the approach involving the relationship of the
neighbour test and policy considerations has not been
straightforward for the courts in many instances or even
generally.
72
relationship between the claimant and the defendant falls within
the neighbour test of Lord Atkin in Donoghue; then the courts
would determine whether the circumstances are such that they
consider that wider considerations of policy justify holding that a
duty of care should be imposed on the defendant.
73
In essence, this approach means that as long as harm was
reasonably foreseeable and there was the required proximity
between the parties, the defendant would be held to have a duty
of care – unless there was policy reason not to do so; (see for
example Lord Goff’s observation in Smith v Littlewoods [1987]
UKHL 18, [1987] 2 AC 241, 280).
74
massive extension of a prima facie duty of care restrained
only by indefinable “considerations which ought to negative,
or to reduce or limit the scope of the duty or the class of
person to whom it is owed.”’
75
The resulting effect of the developments is that first, the courts
prefer that the recognition of a duty of care in new circumstances
should occur by ‘analogy’ (i.e. by comparison to existing
recognised situations) and incrementally (i.e. recognition of a
duty of care in new circumstances should proceed somewhat
cautiously). A three-stage test also emerges for establishing if a
duty of care exists, which can be expressed in the following
manner:
76
5.4.2 Operation of the tests for imposing a duty of care –
examples from case law
77
Under the Caparo approach, greater significance is to be
attached to the ‘traditional categorisation of distinct and
recognisable situations as guides to the existence, the scope and
the limits of the varied duties of care which the law imposes.’
(Lord Bridge)
Foreseeability of Damage
78
Compare also the American case of Palsgraf v Long Island
Railroad Co 248 NY 339, 162 NE 99 (1928)
Proximity
The claimant was the mother of one of the last victims of a serial
rapist and killer known as the Yorkshire ripper; the killer had
committed 13 murders and 8 attempted murders in the area
concerned over a period of five years; the claimant claimed that
the Police’s negligence in the investigation and failure to catch
the murderer resulted in the death of her daughter; held (HL):
although there was foreseeability of harm, as the identity of the
killer was not known and as the class of potential victims was
large, the circumstances were not enough to establish a duty of
care by the Police to the deceased victim.
79
Watson v British Boxing Board of Control Ltd & Anor [2000]
EWCA Civ 2116, [2001] QB 1134, [2001] 2 WLR 1256
80
essential relationship can be tested. Indeed it is difficult to
resist a conclusion that what have been treated as three
separate requirements are, at least in most cases, in fact
merely facets of the same thing, for in some cases the
degree of foreseeability is such that it is from that alone that
the requisite proximity can be deduced, whilst in others the
absence of that essential relationship can most rationally be
attributed simply to the court's view that it would not be fair
and reasonable to hold the defendant responsible.
"Proximity" is, no doubt, a convenient expression as long as
it is realised that it is no more than a label which embraces
not a definable concept but merely a description of
circumstances from which pragmatically, the courts
conclude that a duty of care exists.’
81
It is also to be borne in mind that Donoghue v Stevenson related
to negligent conduct of the defendant. On the other hand, the tort
of negligence has also extended to the realm of negligent
statements by a defendant.
82
care exists i.e. on whether to impose a duty of care.
This was the position held by the courts in cases before and up
to Candler v Crane, Christmas & Co [1951] 2 KB 164 which
confirmed the same position. In that case, however, Denning LJ
(as he then was) gave a very powerful dissenting judgment which
seriously queried whether the position then held by the courts to
be the law was correct.
Many years later, in the case of Hedley Byrne & Co Ltd v Heller
& Partners Ltd [1963] UKHL 4, [1964] AC 465, the English
courts accepted and established the principle that a defendant
can be liable to a claimant for making a negligent statement in
some circumstances - even if there is no contract or fiduciary
relationship between the parties.
83
for a defendant to be liable to a claimant for negligent statement,
there still needs to be some form of ‘special relationship’ between
them.
The speeches of the law lords gave various grounds for possibly
finding that the relationship between the parties is of such a
nature that a duty of care should be imposed on the party making
the negligent statement.
He also said:
84
Lord Morris of Borth-y-Gest said: ‘if A assumes a responsibility to
B to tender him deliberate advice there could be a liability if the
advice is negligently given.’
He also said:
and
and
85
Lord Devlin said:
86
Chapter Six:
Think About!
87
6.1 Introduction
For reiteration and emphasis, the point being made in the last
paragraph is that the defendant’s conduct or behaviour can only
be a breach of duty if the conduct or behaviour is not up to the
standard of behaviour that was expected of the defendant. But
88
the question immediately arises, how do we determine the
standard of behaviour that the defendant is expected to meet?
This raises for us one of those significant fine distinctions that we
often have to make when studying law in the common law
system.
89
‘take reasonable care’
‘acts or omissions which you can reasonably foresee’
‘I ought reasonably to have them in contemplation’
This helps us to put in context what is to come – that is, that the
setting of the standard of behaviour expected of the defendant is
tied to the concept of ‘reasonableness’. But, in what way is the
conduct expected of the defendant tied to ‘reasonableness’? The
answer is that the standard of conduct expected of the defendant
is that which is expected of a ‘reasonable person.’
90
Who is this ‘reasonable man’?
91
‘reasonable man’ to ‘reasonable person’. Secondly, the question
of whether it is truly possible to identify a reasonable man or
person is inescapable.
92
The horse-drawn bus between Knightsbridge and Clapham,
which Lord Bowen is thought to have had in mind, was real
enough. But its most famous passenger, and the others I
have mentioned, are legal fictions. They belong to an
intellectual tradition of defining a legal standard by
reference to a hypothetical person, which stretches back to
the creation by Roman jurists of the figure of the bonus
paterfamilias. As Lord Radcliffe observed in Davis
Contractors Ltd v Fareham Urban District Council [1956] AC
696, 728:
93
Lord Hope of Craighead in Chester v Afshar [2004] UKHL 41,
[2005] 1 AC 134:
Reality?
94
reasonable person is merely an abstraction whose
characteristics are invented by the judges who are called
upon to decide whether defendants have been negligent or
not.’ P Cane, Atiyah’s Accidents, Compensation and the
Law (7th ed., CUP 2006) 37-38.
95
Some of the factors that are likely to affect the decision of the
courts on whether there is a breach of duty in particular
circumstances include:
96
to see that the track was as free from danger as reasonable care
and skill could make it; but they did not have a duty to guard
against risks that were not reasonably foreseeable, or which were
inherent to the type of activity involved as spectators could
reasonably foresee before choosing to take the risk.
97
know that they were so impaired by a medical condition they may
escape liability; Mansfield v Weetabix Ltd [1998] 1 WLR 1263.
98
In Orchard v Lee [2009] EWCA 295, [2009] PIQR P16, L, a 13
year old boy, was playing the game of tag with another 13 year
old boy in a school playground; whilst running backwards L
collided with the claimant who was a lunchtime assistant
supervisor at the school; L’s head collided with the claimant’s
cheek and it became a serious injury; the claimant sued L in
negligence and the issue was whether L had breached his duty
of care; The Court of Appeal held that L had not breached his
duty of care and was not liable; that the primary question should
be whether the conduct of the child falls below the standard that
should objectively be expected of a child of that age; L was not
running about and playing tag in a way which was to a significant
degree outside the norm for 13 year olds.
99
exercises the ordinary skill of an ordinary competent man
exercising that particular art.’
100
6.3.4 Magnitude of risk
101
care; Watt v Hertfordshire County Council [1954] EWCA Civ
6, [1954] 1 WLR 835.
102
Chapter Seven:
Think About!
1. In September 1964, C was knocked down by D’s car which had collided with him; C
suffered severe injury to his left leg and ankle; the injury restricted his use of the left leg and
left him restricted in the types of job that he could do for a living. Later, in November 1967,
C was attacked by armed robbers; the robbers shot C in the same left leg, which was further
injured and had to be amputated; the robbers escaped and could not be traced.
C sued D for negligence in knocking C down with the car. C claims for loss of the use of his leg
and loss of earning capacity both up to the time when he was shot by the robbers and for
after that time. D argued that he should only be liable up till the time that the robbers shot C
in the same leg and not for D’s loss of amenity or loss of earning capacity after that.
2. Read: Baker v Willoughby [1969] UKHL 8, [1970] AC 467
3. Note Cardozo CJ’s warning about negligence potentially causing exposure to liability ‘in
an indeterminate amount for an indeterminate time to an indeterminate class.’ Ultramares
Corporation v Touche (1931) 174 N.E. 441, 444
103
7.1 Introduction
Importantly, the claimant not only has to show that s/he suffered
some injury or loss, s/he must also show that there is a causal
link between the loss and the breach of duty by the defendant. In
other words, for a claimant to succeed in negligence, s/he must
show that the injury or loss s/he suffered was caused by the
defendant’s breach of duty. We now turn to the rules that the
courts apply in relation to the issue of causation.
104
In English law, there are two aspects to causation in the tort of
negligence:
105
defendant’s breach of duty should have been the only cause of
the defendant’s loss or injury. Indeed, there may be several
causes for the defendant’s loss or injury; and the defendant’s
breach of duty may be just one of such causes. Ultimately, the
‘but for’ test is really a test to determine whether the defendant’s
breach of duty is a sufficient cause to make him or her liable for
the injury or loss suffered by the claimant.
See also: Nyang v G4S Care & Justice Services Ltd & Ors
[2013] EWHC 3946; Chester v Afshar [2004] UKHL 41, [2005]
AC 134; compare: Baker v Willoughby [1969] UKHL 8, [1970]
AC 467.
106
appear that the judges will make exceptions in some
circumstances. A statement on this point by one senior judge is
particularly worthy of extensive quotation.
The law habitually limits the extent of the damage for which
a defendant is held responsible, even when the damage
passes the threshold 'but for' test. The converse is also true.
On occasions the threshold 'but for' test of causal
connection may be over-exclusionary. Where justice so
requires, the threshold itself may be lowered. In this way the
scope of a defendant's liability may be extended. The
circumstances where this is appropriate will be exceptional,
107
because of the adverse consequences which the lowering
of the threshold will have for a defendant. He will be held
responsible for a loss the plaintiff might have suffered even
if the defendant had not been involved at all. To impose
liability on a defendant in such circumstances normally runs
counter to ordinary perceptions of responsibility. Normally
this is unacceptable. But there are circumstances, of which
the two hunters' case is an example, where this
unattractiveness is outweighed by leaving the plaintiff
without a remedy.’
In shorter and simpler terms another judge said: ‘the "but for" test,
applied in its full rigour, should no longer be treated as a single,
invariable test applicable to causation issues, in whatever
circumstances they may arise.’ The President of the Queen’s
Bench Division in Clough v First Choice Holidays and Flights
Ltd [2006] EWCA Civ 15.
108
In cases where several factors, including the defendant’s breach
of duty, are potentially the cause of the claimant’s loss or injury
the courts tend to frame the question as to: whether the
defendant’s breach of duty caused or materially contributed to
the claimant’s loss or injury.
109
This approach has been particularly relevant in a number of
cases involving claimants who had contracted cancer because
they had been exposed to asbestos as a result of the breach of
duty of their employers. The case of Fairchild v Glenhaven
Funeral Services Ltd involved claims by three employees
(including the deceased F) against several employers each of
which had exposed the employees to contact with asbestos.
The Court of Appeal held that as the claimants had not been able
to establish causation, the defendants were not liable; on further
appeal the House of Lords held that it is true that normally the
claimant has to prove that but for the defendant’s breach of duty
s/he would not have suffered the injury which occurred; however,
in special circumstances there should be a variation or relaxation
of that rule; that though in this situation it may be unjust to impose
liability on an employer whose breach of duty may not have been
the cause of the claimant’s loss, it is more unjust to leave the
claimant without compensation simply because it could not be
scientifically proven which of the employer’s breach of duty did
cause the loss; that the effect of the earlier case of McGhee v
National Coal Board is that where an employer’s breach of duty
materially increased the risk of the claimant’s injury, it is to be
treated as if it had materially contributed to the injury; that the
claimant is entitled to recover against each of the employers
involved for full compensation (i.e. the employers are liable jointly
and severally).
110
In Barker v Corus (UK) Plc [2006] UKHL 20, [2006] 2 AC 572,
there was an element different from the facts in Fairchild v
Glenhaven etc. In Barker, some of the employers concerned
had become insolvent; the House of Lords held that the solvent
employers should not have to pay for the portion of liability of the
insolvent employers; instead of the ‘joint and several liability’
approach used in Fairchild v Glenhaven etc, the court
employed an approach of ‘proportionate liability’.
111
conduct? What if another act or event, for example, the action of
a third party (or even of the claimant), subsequent to the
defendant’s negligent conduct, contributes to the claimant’s loss?
In essence, the question under ‘remoteness of damage’ can be
stated as follows: even if the defendant’s negligent conduct is a
factual cause of the claimant’s loss, is the claimant’s loss too
remote from the defendant’s conduct to allow the claimant to
recover damages for the defendant’s negligence?
In the first place, it may be that the loss that resulted to the
claimant was not such as was likely to result from the defendant’s
conduct; negligent conduct remote to the damage or loss. On the
other hand, another event might have also intervened after the
defendant’s conduct and contributed to the loss that occurred;
this is called novus actus interveniens (‘new intervening act’).
112
The ‘direct consequence’ test was not popular and became
discredited. It was overturned and jettisoned in a later case:
Overseas Tankship (UK) Ltd v Morts Dock & Engineering
Company Ltd, also known as The Wagon Mound No 1 [1961]
UKPC 2, [1961] AC 388.
113
that it was foreseeable that the lid falling in would cause liquid to
splash out and result in burns to him; held (CA): the damage to
the claimant was too remote; damage from an eruption was not
reasonably foreseeable; and, it was different from being splashed
by liquid;
114
BDH supplied V with chemicals in glass ampoules with labels
stating ‘harmful vapour’. While a scientist was washing off the
labels, one of the glass shattered and this caused a violent
explosion; this was due to the fact that the chemical came into
contact with water; the explosion led to severe damage, blew up
the roof of the laboratory, and a scientist died; it was held that the
defendant would be liable for all the damage; at least damage
from a small chemical explosion was foreseeable; it did not
matter that what happened was a large explosion; the kind of
harm was foreseeable.
Related to the last point are situations or cases falling within the
ambit of what is often referred to as the ‘egg-shell skull rule’. In
essence, the point here is that a defendant must take the
victim/claimant as the defendant finds the latter. The defendant
will not escape liability for his/her negligent conduct merely
because the loss or injury suffered by the victim is made worse
by a factor peculiar to the victim.
115
The question here is to determine whether the intervening act
broke the chain of causation that started with the defendant’s
negligent conduct so that the defendant might possibly not be
held liable for the claimant’s loss. It is generally accepted that
later deliberate wrongful acts like crimes are likely to be regarded
as breaking the chain of causation; see e.g. Weld-Blundell v
Stephens [1920] AC 956 {libellous statement broke chain of
causation started by leaking of a document}.
116
Chapter Eight:
Think About!
1. Y rode a motorcycle negligently; he was involved in a crash with a car and was killed; the
claimant who was 8 months pregnant was getting off a tram at the time; she did not see the
crash but heard it; she walked past the scene of the accident; by this time Y’s body had been
removed but there was a lot of blood; the claimant’s baby born later was stillborn and the
claimant claimed she had suffered nervous shock. Recall Bourhill v Young [1942] UKHL 5.
2. M’s husband and three children were involved in a car accident caused by the negligence of
the (first) defendant; she was at home at the time of the accident and did not witness it; a
witness came to inform her about an hour later and drove her to the hospital; there she learned
that one of her children had died after the accident; she saw her other children with injuries
and her husband in shock – all covered with dirt and oil; she sued the defendant (and others
involved in the accident) claiming damages for conditions she said she had suffered: severe
shock, organic depression and a change of personality. Read: McLoughlin v O'Brian [1982]
UKHL 3
3. During a football match, the Police were responsible for crowd control; the Police were
negligent in directing too many people to one end of the stadium; this led to a disaster as a
crush resulted and 95 people died, with another 400 injured; people at the other end of the
stadium could see what was going on; the match was also televised live on television and many
people were watching at home; the events were also replayed on news stories; 16 relatives or
persons connected to people in the area of the crush brought an action against the Police for
nervous shock leading to psychiatric injury; some were in the stadium; some were watching
at home; some also identified a relative’s body at the mortuary. Apart from the relatives, some
Police officers who were involved in rescue operations also claimed for psychiatric injury.
4. Read: Alcock v Chief Constable of South Yorkshire [1991] UKHL 5 and White and Others v Chief
Constable of South Yorkshire and Others [1998] UKHL 45.
5. Watch the video in this link: https://www.youtube.com/watch?v=J6kAtdwNJ5s
117
8.1 Introduction
118
We should note early on that English law is not concerned with
providing damages (compensation) for the shock itself resulting
from a traumatic event; rather it is concerned with damages for
the effects of the trauma in terms of a recognised psychiatric
illness.
119
[1999] 2 AC 455: ‘the law cannot compensate for all emotional
suffering even if it is acute and truly debilitating.’
Consider:
120
Generally, a person who is both physically injured and also
suffers psychiatric damage as a result of the defendant’s
negligence is regarded as a primary victim; the first example
above. Similarly, a person who is exposed to but does not suffer
physical injury as a result of the defendant’s negligence but who
suffers psychiatric damage is also regarded as a primary victim;
the second example above. On the other hand, a person who is
not himself put in fear of physical injury but who suffers
psychiatric damage, as a result of witnessing a traumatic event
involving others following the defendant’s negligence, is
regarded as a secondary victim; the third example above.
121
within the ‘primary victims’ category. In Page v Smith, Lord Lloyd
(giving the lead majority judgment) said that in primary victim
cases, the test ‘ought to be whether the defendant can
reasonably foresee that his conduct will expose the plaintiff to risk
of personal injury. If so, then he comes under a duty of care to
that plaintiff.’ He also said that hindsight ‘has no part to play
where the plaintiff is the primary victim.’ It can be argued,
however, that these statements were not intended to limit the
class of primary victims as such.
122
Evidently, therefore, as the courts clearly aim to limit the number
of potential claimants in secondary victim cases through the use
of ‘controls’ a claim for psychiatric damage as a secondary victim
is less likely to succeed than a claim as a primary victim.
Naturally, wherever possible, a claimant would want to present
themselves as a primary victim.
123
2. Sufficiently close relationship with the immediate victim
124
‘To allow her claim may be, I think it is, upon the margin of
what the process of logical progression would allow. But
where the facts are strong and exceptional, and, as I think,
fairly analogous, her case ought, prima facie, to be
assimilated to those which have passed the test.’
125
Chapter Nine:
Think About!
1. Yasmine needed to submit her coursework on Tuesday 10 April 2018; Monday 09 April 2018
was a holiday in her university. At 1PM she bought a laptop from Komputall Ltd to use for
typing up her coursework. By about 11PM she had finished the coursework; but before she
could print it or upload it to her university’s submission system, the computer suddenly died
and stopped working altogether. It turned out that the computer had a defective processor
which stopped working.
2. Ali needed to submit his coursework on Tuesday 10 April 2018; on Monday 09 April 2018,
he bought a laptop from Chipfales Ltd to use for typing up his coursework. On the morning of
Tuesday 10 April 2018, Ali had the laptop on his laps while he worked on his coursework in
bed. Suddenly the laptop blew up and Ali suffered some burns on his laps. It turns out that the
computer had a defective cooling system.
3. Farouk went into Tarkwa Pharmacy and bought a body cream; the body cream was
manufactured by Skinchumps Ltd. When he got home, his wife Martha tried the body cream;
her sister Sofiya who was visiting them also tried the cream. They both contracted a very
infectious skin disease. When Sofiya returned to her home, which was 20 kilometres away, her
daughter Amira was infected by the skin disease.
126
9.1 Introduction
127
readily identify that one option for the actual buyer of the ginger
beer would be to sue for breach of contract.
Question: are there any other parties who may possibly be able
to sue?
Question: are there any other parties who may possibly be sued?
Question: is there any other branch or aspect of the law that may
be involved?
128
contract. Second, it is also good to have at hand and in mind
some of the contractual rules relating to product liability for the
sake of both comparison and completeness.
129
The reason that the buyer was able to reject the fruit in Re Moore
and Landauer was that the fruits did not meet contractual
obligations regarding the description of what was being sold - in
view of section 13 of the English statute known as the Sale of
Goods Act 1979 which provides that goods sold by description
should match the description.
130
directly on whether a product is dangerous or defective, the
interpretation and understanding of some of those terms implied
under statutory provisions mean that they can be applied in such
cases. For example, one aspect of whether an item is of
‘satisfactory quality’ is safety; thus, a product which is unsafe may
give rise to liability in contract on that basis.
131
injury to the consumer's life or property, owes a duty to the
consumer to take that reasonable care.’
132
As a claim in tort for defective products is generally a claim in
negligence, we must remind ourselves of the requisite elements
of the tort of negligence and pay attention to how they may apply
in particular cases. As you will still remember, hopefully, the
elements of the tort of negligence are:
duty of care
breach of the duty of care
loss or injury to the claimant
causation – of the loss or injury by the breach of duty
133
Can Mrs Anton sue Finmedocs Ltd?
Can an action be brought by (or on behalf of) the baby
against Finmedocs Ltd?
Was the baby a buyer or an end-user of the product at the
time it affected her?
Can the baby be regarded as an-end user of the medicine
at any time?
http://eureka.criver.com/the-tragedy-of-thalidomide/
The potential problems that might arise in tort in a case like that
in the example include the following:
134
Indeed, the then European Community introduced a strict liability
regime through its Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative
provisions of the Member States concerning liability for defective
products. This Directive has been implemented in the United
Kingdom through the Consumer Protection Act 1987.
135
Chapter Ten:
Think About!
1. James lives with his parents in their property in Rehab Estate; he does not pay any rent
but has lived in the property for 18 years. Twitters Estates Ltd has recently built a tower
block in Rehab Estate; the tower block is now blocking out the television reception in the
property in which James lives as well as the nice view that James had previously enjoyed
from his bedroom window. What are the legal options open to James?
2. Khaled bought some fireworks and kept them in the garden of his home in anticipation
of using them to celebrate an upcoming festival with his family. Four days before the
festival, some children who had come to visit Khaled’s children set fire to the fireworks
and one of the fireworks flew out, into and through the window of Khaled’s neighbour’s
property. This caused a fire and extensive damage to the property of the neighbour. What
legal remedies are open to Khaled’s neighbour?
136
10.1 Introduction
The tort of nuisance and the rule in Rylands v Fletcher are two
of the ways by which English tort law addresses interference with
a person’s use or enjoyment of their land. They are both
concerned with some civil disputes between owners of lands that
are close enough such that activities or events on one may affect
the other.
137
10.2 Private Nuisance
138
which, when reaching the claimant’s land, cause interference
with the claimant’s use or enjoyment.
139
land before being able to sue for private nuisance is
Khorasandjian v Bush [1993] 3 WLR 476. In that case, an 18
year old woman was subjected to pestering and abusive
telephone calls at her parents’ and grandparents’ house by the
defendant. She obtained an injunction which the defendant
challenged on appeal; part of the defendant’s argument was that
as the woman did not have an interest in the house, she could
not sue successfully for nuisance. The Court of Appeal rejected
the defendant’s argument and allowed the claim in nuisance.
Dillon LJ said: ‘it is ridiculous if in this present age the law is that
the making of deliberately harassing and pestering telephone
calls to a person is only actionable in the civil courts if the
recipient of the calls happens to have the freehold or a leasehold
proprietary interest in the premises in which he or she has
received the calls.’
140
212; McKenna and Others v British Aluminium Ltd [2002] Env
LR 30 (Ch D).
141
tends to require the courts to do a balancing act between the right
of the defendant to use his land as he wishes ordinarily and the
right of the claimant not to have his own use or enjoyment of his
land interfered with. In doing this balancing act, the courts tend
to take a range of factors, including the locality, into account in
determining whether the defendant should be held liable for
nuisance.
142
between what might not be regarded as nuisance in an industrial
area but which would be nuisance in a residential area. The
danger, however, is that the rule might be applied in a manner
that means that what is nuisance in an affluent neighbourhood
might not necessarily be treated as such in a poorer
neighbourhood.
Apart from the issue of locality, the courts may also take into
account the intensity or severity, the timing and the duration of
the interference; for example, playing loud music on a one-off
143
occasion may not be treated in the same way as doing so for
extended periods of days, weeks or months. In Halsey v Esso
Petroleum [1961] 2 All ER 145 it was held that noise coming from
an oil factory was not private nuisance when it occurred in
morning daytime but was nuisance when it occurred at night.
The courts may also take into account the intention of the
defendant in causing the interference, particularly whether he
acted with bad motive or malice. In Hollywood Silver Fox Farm
v Emmett [1936] 2 KB 468, the defendant farmer arranged the
firing of a gun on his own land to disrupt the breeding of silver
foxes on neighbouring land, it was held that an injunction would
be granted even though it was not ordinarily unreasonable for a
farmer to fire a gun on his land. Similarly, in Christie v Davey
[1893] 1 Ch 316 the action of the defendant in banging trays on
a wall and shouting in order to disrupt music lessons being given
on a neighbouring property was held to amount to nuisance.
144
not actionable per se and generally the claimant must show proof
of the harm or loss that was suffered.
145
10.3 The Rule in Rylands v Fletcher
‘the true rule of law is, that the person who for his own
purposes brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it 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.…
146
The House of Lords agreed with Blackburn J’s judgment but in
respect of Blackburn J’s allusion to something on the defendant’s
property ‘which was not naturally there’, Lord Cairns treated this
as a ‘non-natural use’ when he said, inter alia, ‘… the
Defendants, not stopping at the natural use of their close, had
desired to use it for any purpose which I may term a non-natural
use, for the purpose of introducing into the close that which in its
natural condition was not in or upon it ….’
147
merely be the ordinary use of the land ….’ In the relatively recent
case of Transco plc v Stockport Metropolitan Borough
Council [2003] UKHL 61, water escaped from a pipe owned by
the defendant and caused an embankment to collapse and in turn
causing the claimants’ nearby gas main to be exposed and
needing emerging support work; the claimant’s claim for the cost
of carrying out the repairs failed. Lord Bingham considered the
element of non-natural use of land and preferred that it is seen in
terms of ‘ordinary user’ rather than ‘natural user’. He said:
148
In concluding this overview of the rule in Rylands v Fletcher, it
is to be pointed out that a number of defences may be available
to a defendant if the claimant establishes the elements of the tort
under the rule. Potential defences to an action under the rule
include:
149
Chapter Eleven:
Defamation
Think About!
1. “… there is a great deal of the law of defamation which makes no sense” (Prosser)
2. What kind of communication can amount to ‘defamation’?
3. What is the difference between ‘libel’ and ‘slander’?
4. What is the effect of the ability to sue for defamation on the idea of freedom of speech?
5. Amr Dabilo is a very famous Egyptian musician who is well-known in Egypt both for his music
and for his public commitment to his family and faithful living. He visited London (UK) in July and
returned to Egypt in August. Last September, the Mediterranean Trumpet, which is a news
magazine based and published in London for the Arab community, printed a story that Amr
Dabilo was seen in a night club drunk from drinking beer and whisky and that he was seen flirting
with two prostitutes.
The Mediterranean Trumpet also has a website which carried the story about Amr Dabilo; the
website can be accessed in several countries and in cities including, Dubai, Abu Dhabi, Mecca and
Tunis in each of which Amr Dabilo has large fan bases.
The story published by the magazine is in fact entirely false!
6. Read: Steel & Morris v The United Kingdom [2005] ECHR 103 {Application no 68416/01}
7. Read: ‘McLibel: Longest case in English history {BBC News Report}
http://news.bbc.co.uk/2/hi/uk_news/4266741.stm
150
11.1 Introduction
We can spot that while the tort of defamation seeks to protect the
claimant’s right to protection of his reputation, the tort can also
clash with the defendant’s own right to freedom of expression.
Some of the cases that were decided by the courts before the
Defamation Act 2013 was enacted still continue to be relevant.
151
11.2 Defamation: ‘Libel’ or ‘Slander’
At common law, the reason that the difference between libel and
slander matters is that libel is ‘actionable per se’. This means that
a person only has to show proof that a libel was made about them
to win in an action for libel; they don’t even have to prove that
they suffered actual damage or loss.
On the other hand, slander is not actionable ‘per se’. This means
that the claimant would have to prove the damage or loss that
they suffered – before they can win in an action for slander.
152
In the case of ‘a body that trades for profit’, harm to the reputation
is not ‘serious harm’ unless it causes or is likely to cause serious
financial loss.
153
of society generally; or which tends to make them shun or
avoid that person.’ {Professor Winfield}
154
Serious Harm:
Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831
MGN published an article that a millionaire landlord was
improperly making money from tenants who were
dependent on social security benefits; the article also
mentioned the claimants, a housing association and its
chief executive, as also renting out property in the same
area; MGN published an apology to the claimants in the
next edition of its newspaper; held (Bean J): ‘the date from
which one looks backwards (to see whether substantial
harm has been caused) or forwards (to see whether
substantial harm is likely to be caused) is the date on
which the claim is issued’; ‘"serious harm" involves a
higher threshold than "substantial harm" would have done;
and … it "raises the bar" over which a claimant must jump’;
the court does not accept that ‘in every case evidence will
be required to satisfy the serious harm test’; ‘the apology
was sufficient to eradicate or at least minimise any
unfavourable impression created by the original article in
the mind of the hypothetical reasonable reader who read
both’; considering that there is a residual class of readers
of the original article who did not read the apology …. ‘it is
important to note that the apology is now far more
accessible on internet searches than the original Article’;
claimants ‘accept that there is no specific evidence that
the Article has caused serious harm to their reputations so
far; and I consider that such serious harm cannot be
inferred. In my judgment they have also failed to show that
it is more likely than not to cause serious harm to their
reputations in the future.’
155
Monroe v Hopkins [2017] EWHC 433 (QB)
Two tweets suggested that the claimant ‘condoned and
approved of scrawling on war memorials, vandalising
monuments commemorating those who fought for her
freedom’. The court held: that the tweets can cause harm
to the claimant's reputation in the eyes of third parties, of
a kind that would be serious.
Defamatory Statement
In Ames v The Spamhaus Project Ltd & Anor [2015] WLR (D)
511, Warby J said that a ‘defamatory meaning is one that
substantially affects in an adverse manner the attitude of other
people towards the claimant, or has a tendency to do so.’
156
Generally, what is considered defamatory is looked at from the
eye of a reasonable person or reasonable reader of the
statement claimed to be defamatory; that reasonable reader is
considered to be a person who is neither naïve nor unduly
suspicious; see Jeynes v News Magazines Ltd [2008] EWCA
Civ 130.
157
to. It would also be the case where the statement includes a
picture of the claimant.
Also, even if the statement does not explicitly identify the claimant
but additional background could show that it was indeed the
claimant that it was referring to, the claimant might still be able to
sue – if s/he can show that the statement was published to people
who know the additional information.
The more difficult cases are the situations where the defendant
did not intend to refer to the claimant at all. It is important to
remember that under the English common law, the key question
is whether a reasonable person would understand the statement
to be referring to the claimant. The result is that, in effect, a strict
liability approach applies in relation to unintentional defamation;
the intention of the defendant is irrelevant.
158
If the defamatory statement was meant to refer to a non-existing
person or fictional character but there is a real person with the
same name that the defendant gave to the non-existing person
or character, that real person may be able to sue for defamation.
[The defendant] cannot show that the libel was not of and
concerning the plaintiff by proving that he never heard of
the plaintiff.’ per Lord Loreburn LC
From the head note to the case: ‘In an action for libel it is
no defence to shew that the defendant did not intend to
defame the plaintiff, if reasonable people would think the
language to be defamatory of the plaintiff.’
159
the second David Johnson will be able to sue the claimant – as
long as a reasonable person who knows him would understand
the statement to be referring to him.
160
“The plaintiff is known as a hairdressers' assistant to a
comparatively wide circle of customers and other
acquaintances in Camberwell, where he has acquired a
modest fame. A reasonable man who had some
acquaintance with him might have been prudent enough,
on reading the alleged libel, to say: "This may refer to
some other Harold Newstead": but I am not satisfied that
every reasonable man would necessarily have been so
cautious. The man who believes no ill of his neighbour
until the accusation is proved beyond doubt against him is
without question a reasonable man; but it would be
fallacious to argue that every reasonable man attains to
that high standard of judicial fairness.” Du Parcq LJ
"… liability for libel does not depend on the intention of the
defamer; but on the fact of defamation" Russell LJ in
Cassidy v Daily Mirror Newspapers [1929] 2 KB 331.
161
was a ‘look alike’ or ‘spit and image’ of herself; she sued
for defamation claiming that reasonable people who knew
her would have thought she was the one in the photos;
held (Morland J): that the common law strict liability
principle of Hulton v Jones applies notwithstanding the
novelty of facts in this case; despite the ‘offer of amends’
procedure of the Defamation Act 1996, the strict liability
principle remains an interference with the freedom of
speech; the advert in this case is not unlawful and is a form
of expression protected by Article 10 ECHR; in light of Art
10(2) ECHR, in this instance of a look-alike case, the strict
liability principle is not a restriction on freedom of
expression that is necessary in a democratic society for
the protection of the reputation of others.
e.g. “all BUE Year One law students are arrogant fools”.
162
Nevertheless, the key issue remains whether a reasonable
person would believe the statement to refer to the claimant
him/herself.
"if a man wrote that all lawyers were thieves, no particular lawyer
could sue him unless there is something to point to the particular
individual". per Willes J., in Eastwood v Holmes [1858] I F & F
at p. 349
Compare
Aspro Travel Ltd & Ors v Owners Abroad Group plc [1996] 1
WLR 132
The defendants made statements to others that two companies
were ‘going bust’ or ‘would be bankrupt in a few days’. The two
companies were family businesses of the individual claimants
and in which they were directors; they were business rivals of the
defendants; held: the statements were capable of being
defamatory of the individual claimants as well as their companies
who were also claimants in the case.
and
163
Riches & Ors v News Group Newspapers Ltd [1985] EWCA
Civ 20
The News of the World published a letter in which a man made
serious allegations against Banbury CID; there were 12 members
of Banbury CID; 10 out of the 12 sued for defamation successfully
and obtained damages, {retrial ordered on exemplary damages}.
164
defamation; however, one should now bear in mind that section
1 of the Defamation Act 2013 now says that a statement is
defamatory only if it has caused or is likely to cause ‘serious
harm’.
Compare with:
165
a natural and probable consequence of the defendant’s
action that the claimant’s husband would open and read
the letter.
(a) the claimant can sue each person who ‘repeats’ the
publication – this is why it is possible to sue each of the author,
publisher, printer, editor etc; and
166
which they have some amount of control over ---- even if they are
not the ones who put the information there;
(c) Internet and social media have the effect that defamatory
matter may be disseminated very quickly and much more widely
than was in the contemplation of the defendant;
All these and other factors raise issues that are interesting to
explore and we will explore some of them in the context of
Defences to an action for defamation.
11.4.1 Truth
167
Alexander v North Eastern Railway Co [1865] 6 B & S 340,
(1865) 34 LJ QB 152, the statement was effectively that the
claimant was sentenced to prison for three weeks; but the
claimant had only been sentenced for two weeks; it was held
there was no defamation.
11.4.3 Privilege
168
Absolute Privilege
Qualified Privilege
169
11.4.4 Publication in a matter of public interest
170
or circumstances of the publication, and previous conduct or
character of the author, editor or publisher.
171
11.5 Offer to Make Amends
172
Glossary of Terms
173
control of the thing; e.g. a person who has the keys to
a car parked in a car park; or a person who has the
legal documents to a house or to shares in a company
Conversion doing an act to goods in a way which is inconsistent
with the right of the ‘owner’ or person in possession or
entitled to immediate possession
‘Damage’ the ‘injury’ or loss or harm that a victim of tort suffers;
(mostly singular) it is also used in other aspects of private law including
contracts
‘Damages’ money compensation awarded by a court to a person
(always plural) who wins in a lawsuit; the lawsuit may not even be for
tort but, for example, for a breach of contract
Defamation generally means to make a false statement about a
person - which damages the person’s reputation; in
English law, it means a tort which aims to protect
people against damage to their reputation
Defamatory means a statement which ‘has a tendency to injure the
statement reputation of the person to whom it refers’
Defendant a person who is defending something; a person who
has been sued and who is defending a legal action
False this is a technical expression that refers to a particular
imprisonment tort; it means an unlawful restriction of another
person’s freedom of movement
Inflict to do something (unpleasant or painful) to another
person
Infringe to violate; to interfere with; in tort law, it usually relates
to violation of another person’s right or interest
recognised by law
Infringement a breaking of the rules; an interference; in tort law, it
generally means an interference with another
person’s legal right
174
Intangible things things that do not have a physical existence but can
or yet be owned e.g. shares, bonds, debts, debentures
(‘choses in
action’)
Jus Tertii a type of defence that a defendant to an action for
trespass to land (or to goods) may try to use; the
defendant would try to argue that another person (a
third party) has a better right to the land (or to the
goods) than the claimant
Justification the reason why somebody feels they are entitled to do
something; it can be excuse that is allowed in law for
doing an action that could be otherwise unlawful
Libel normally refers to a defamatory statement that is
made in some permanent form, e.g. in writing or print
Nervous shock similar to psychological injury; it refers to the effect
suffered by a person who has witnessed or been
exposed to an action or event of a traumatic nature
Offer to make this is a remedy in an action (or potential action) for
amends defamation introduced by the Defamation Act 1996; it
allows a (potential) defendant to offer to make a
retraction, an apology and an offer of compensation
rather than face having to pay full damages for making
a defamatory statement
Ownership generally means to have the highest level or amount
of legal rights over a thing that can be owned
Pacta sunt Latin maxim meaning ‘agreements must be kept’
servanda
Per se ‘in itself’ or ‘by itself’ or ‘of itself’
Personal in the sense in which this is used in relation to the tort
integrity of trespass, this means a sense of personal safety
and privacy; similar to ‘personal space’; in ordinary
175
English, ‘integrity’ relates to a person’s sense of good
and honest behaviour
Possession the situation of having physical custody or right to
physical custody or control of a thing
Property (1) another word for ‘ownership’; or, (2) legal rights
that a person can have over a thing; it may be ‘full’
rights e.g. ownership as with somebody who owns a
house; it may be less than full rights e.g. as with
someone who only has a lease on a house (or
someone who has a ‘security’ over a borrower’s thing
e.g. house or car); or, (3) an item or a thing that
someone can own
Proposition a statement or suggestion that expresses an idea or
concept; it may be correct or not correct
Psychiatric in tort, this means a mental health problem that a
damage or injury victim suffers due to the action of the defendant
Publication in tort law, this means the communication of a
statement by one person to another person (who is
not the communicator’s spouse and who is not the
claimant)
Real property land and things attached to land
Remedy to correct something that is wrong; in tort law, to give
compensation to a victim of tort, or to assist a person
to prevent a tort being committed against them
Repeated every time a defamatory statement is repeated or
publication communicated afresh, this amounts to a publication
Restitution to restore something to its proper owner or to the
person entitled to it
Restraint similar to constraint; the limit placed on what a person
can do; the limit placed on the amount of space in
which a person can move around
176
Restrict to limit what a person can do; to limit the amount of
space in which a person can move around
Right to the right of a person who may or may not be in actual
possession possession but who has the legal entitlement to actual
or constructive possession
Slander normally relates to defamatory statements made in a
form that is not permanent, i.e., in a form that is
temporary or transitory, e.g. by speech or gestures
Subjective this is used in the law of tort in relation to the mindset
recklessness or ‘intention’ of the defendant; it refers to a situation
where the defendant knew what would likely happen
but still went ahead and did something to cause it to
happen
Tangible things physical items
or
‘choses in
possession’
Tort ‘actionable a tort for which the claimant can sue simply because
per se’ it happened; the claimant does not have to prove that
s/he suffered any injury or loss
Trespass ab doing an act that is not permitted on or in relation to
initio another person’s land after having initially entered the
land by permission under statute or the common law
Trespass to intentionally and directly interfering with another
property person’s land (or goods) without lawful excuse
177
Index
178
Rylands v Fletcher ………………………………… 147-149
Damages ………...……………………………………..…... 6, 7, 23
injunction and ……………………………..………… 41, 144
negligence and contributory negligence ………..... 23, 149
nominal ………………………………………….... 42,47, 49
public bodies ……………………………………………..… 7
psychiatric harm ………………………………………... 119
trespass to goods …………........................................... 49
trespass to land ………………………………………. 40, 42
Defamation:
author …………………...………… 164, 166, 168, 170, 171
defamatory statement ……… 152, 154, 156-164, 166, 170
editor ……………………………………. 164, 166, 170, 171
libel …………………………………….. 152, 153, 159, 161
printer ……………………………………………………. 166
publication ………………… 151-156, 165, 166, 170, 171
publisher ……………………………… 164, 166, 170, 171
repeated publication ………………………………….. 166
serious harm ……………………………...….. 152-156, 165
slander ……………………………………………. 152, 153
Defences:
assault and battery ………………………..…………. 20-21
defamation ……………………………………….... 167-171
false imprisonment ………………………….…………... 27
nuisance …………………………………………………. 145
Rylands v Fletcher ……………………………………... 149
trespass to land ……………………………………..... 40-41
Distress:
distress damage feasant ………………………………… 41
intentional infliction of ………………………………... 28-30
psychiatric damage and ………………… 29, 30, 119, 122
Duty of care:
see also Breach of duty of care
foreseeability ……………………………….… 66, 71, 73-81
historical development in negligence ………………. 57-62
negligence and ……………………………………..… 55-86
neighbour test or principle 61, 66, 71-72, 73, 75, 77-78, 89
proximity …………………………...…. 62, 71, 75-77, 79-81
179
reasonable care …………………………. 61, 66, 70, 71, 85
standard of care ……………….…………………. 8, 89-102
Economic loss …………………………...… 67, 76, 81, 82, 86, 118
Ejectment …………………………………………………………. 41
False Imprisonment …...………………………………..….. 21-27
Fiduciary duty/relationship ……………………………… 83, 84, 86
Foreseeability:
see also Duty of Care
egg-shell skull rule ……………………………..……….. 123
psychiatric damage …………………..…………… 123-125
remoteness of damage …………………..…. 111, 113-115
standard of care …………………………………….. 89-102
subjective recklessness ……………………………..…... 14
Freedom of expression ……………….……… 151, 161, 162, 168
Goods ………………………………...…… 44-54, 59, 67, 129, 130
Harm, see Damage
Honest opinion ………………………………………………….. 168
Injury, see Damage
Insurance …………………………………………………….… 8, 97
Intention (role of) ……………………………………………... 12-14
assault ………………………………………………… 13, 17
battery …………………………………………………..… 19
false imprisonment ………………………………………. 25
intentional tort ……………...…. 8, 9, 11, 17, 19, 25, 38, 39
Internet (Defamation and) ……………………………………… 166
Jus tertii …………..…………………………………………….... 41
Libel see Defamation
Loss see Damage
Manufacturer ………….. 58, 60, 68, 70, 81, 98, 127-129, 131-134
Misfeasance …………………………………………………….... 70
Negligence:
see also Duty of care
contributory negligence ….……………………. 23, 97, 149
negligent conduct …….… 81, 82, 104, 111, 115, 116, 121
negligent misrepresentation …………………………….. 82
negligent misstatement ……………………………… 82, 86
negligent statement ………………………………..… 81-86
Nervous Shock …………….…… 29, 60, 118, 119, 120, 124, 127
180
New intervening act/novus actus interveniens ………… 112, 115
Non-feasance …………………………………………………..… 70
Nuisance
abatement …………………………………..…………… 145
locality …………………………………………….... 141-143
private nuisance …………………………………… 137-145
public nuisance …………………………………………. 137
statutory nuisance …………………………………….... 137
Obligations:
law of …………………………………………..…………. 2,3
contractual ………………………………………..… 68, 130
Offer to make amends ….………………………………….… 172
Ownership …..…...…………………..…. 32, 44, 50, 57, 138, 139
Personal injury ….. 8, 11, 62, 67, 81, 82, 118, 119, 122, 135, 142
Possession
actual possession ………………………………………... 46
constructive possession ……………………………..… 173
right of/to ……………………………..… 32, 33, 50, 22, 139
trespass by relation …………………………………….... 32
Privilege ……………………………………………… 164, 170, 174
absolute …………………………………………............ 169
qualified ………………………………………………….. 169
Privity of contract ……………………………………... 68, 128, 139
Product liability …………………………………………….. 126-135
defective product ……………………… 129, 132, 133, 135
liability in contract ………………………………….. 128-131
liability in tort ……………………………………….. 131-133
strict liability ………………………………………... 133-135
Proof:
beyond reasonable doubt ……………………………… 105
balance of probabilities …………….…….…. 105, 108, 110
of harm or loss …………………………………….. 145, 148
of libel ……………………………………………............ 152
of serious harm …………………………………………. 153
Property:
interest in land ………………….……………………….... 32
nuisance and …………………………… 138-140, 143-145
181
personal property …………………………............ 5, 44, 45
real property …………………………………………. 5, 6,44
the rule in Rylands v Fletcher and …….………… 146, 147
trespass to land and …………………………..……… 32-42
trespass to goods and ……………………………….. 44-49
Proximity see Duty of care
Psychiatric damage or injury …………………………... 117-125
Public interest ……………………………………………... 169, 170
Public utility ……………………………………………. 96, 101, 145
Reasonable man …………………..… 65, 84, 90-95, 97, 113, 161
Reasonable person ……………… 90-97, 154, 157, 158, 160, 163
Remedies:
civil remedies ……………………………………..………... 2
nuisance ……………………………………………. 144-145
psychiatric harm/damage …………………….. 28,118-120
trespass to goods and interference ……………. 45, 46, 49
trespass to land ………………………………………. 41, 42
Rylands v Fletcher (the rule in):
escape ………………………………………... 137, 146-149
foreseeability of damage or harm ……………….. 148, 149
non-natural use (or user) of land ………………… 147, 148
Standard of care see Duty of care
Strict liability …………. 6-9, 12, 134, 135, 137, 146, 148, 158, 162
Subjective recklessness ……………………………….. 9, 13, 14
Trespass:
trespass ab initio ……………………………………... 35, 36
trespass to goods …………………………………….. 46-49
trespass to land ………………………………............ 31-42
trespass to the person ……………………………….. 10-27
Unjust enrichment …………………………………………........ 2, 3
Volenti non fit injuria …………………………………….............. 97
182
To God be the glory
183