TORT REVISION NOTES:....................................................................................

10
What is a tort?......................................................................................................10
o Compensating losses...................................................................................11
o Corrective justice........................................................................................11
o Distributive justice.....................................................................................12
o Deterrence/standard setting.....................................................................12
Looking at individual torts:..............................................................................12
Approaching tort:.................................................................................................12
ar...............................................................................................................................12
Intentional Interference with the Person........................................................13
TRESPASS TO THE PERSON...........................................................................13
- Assault and battery:....................................................................................13
- BATTERY: elements....................................................................................13
- Transferred intent?......................................................................................14
- Hostility?.......................................................................................................14
- Coincidence of intention............................................................................14
- Fagan v Metropolitan Police Commissioner........................................15
- ASSAULT: elements.....................................................................................15
o The threat must be of immediate and direct force...........................15
- FALSE IMPRISONMENT: Elements:......................................................15
- Intention........................................................................................................15
- Complete restriction...................................................................................16
- Relevance of claimant’s knowledge?...................................................16
o The fact that the claimant is unaware doesn’t negate the act of
false imprisonment.............................................................................................17
- Causation test?.............................................................................................17
• [65] ‘All that a claimant has to prove in order to establish false
imprisonment is that he was directly and intentionally imprisoned by
the defendant, whereupon the burden shifts to the defendant to show
that there was lawful justification for doing so.’.......................................18
- Conditions and terms..................................................................................18
DEFENCES..............................................................................................................18
- Self-defence..................................................................................................19
 In tort D’s belief must be both honestly and reasonably held..........19
o 2 points that were left open:...................................................................19
o Self-defence must be proportional to the force.................................19
o Held: Violence may be returned with necessary violence. But the
force used must not exceed the limits of what is reasonable in the
circumstances.......................................................................................................20
- Lawful arrest/prevention of crime.........................................................20
- Interference based on public interest....................................................21
- Necessity.......................................................................................................21
 - Paternalistic Interference..........................................................................21
- Where someone lacks the capacity to consent, the test is:.............22
- Elements: intentional infliction of harm..............................................23
o Consequence – must be a recognised physical injury or psychiatric
harm.........................................................................................................................23
- HARASSMENT............................................................................................24
- What amount to harassment?..................................................................24
o In my judgment the touchstone for recognizing what is not
harassment for the purposes of sections 1 and 3 will be whether the
conduct is of such gravity as to justify the sanctions of the criminal
law.’.........................................................................................................................25
- Course of conduct:.......................................................................................25
- Not harassment if:.......................................................................................25
- Protection from harassment act 1997...................................................26
Negligence & Duty of Care.................................................................................26
Elements.................................................................................................................26
Duty.........................................................................................................................26
- Held: Lord Atkin: the neighbour principle.........................................27
- Novel Situations..........................................................................................27
- 3 criteria........................................................................................................28
- Policy or Principle?.....................................................................................28
- Defensive practices....................................................................................29
- Avoiding conflicts of interest...................................................................29
- Distributive justice.....................................................................................30
- Human Rights Considerations.................................................................30
- What counts as an injury in the physical sense?................................31
• De minimis rule...........................................................................................31
actionable bodily damage which had an impact on their lives is
certainly more than negligible.........................................................................32
Physical injury cases...........................................................................................32
- Qualifications and exceptions..................................................................32
Conclusions:...........................................................................................................32
BREACH OF DUTY OF CARE.........................................................................33
Negligence: four questions...............................................................................33
Basic test.................................................................................................................33
Objective standard...............................................................................................33
- Skill.................................................................................................................34
o Can’t depend on a personal standard level..........................................34
- Disability.......................................................................................................34
- Relevant factors...........................................................................................35
 Compensation Act 2006.............................................................................35
  Social Action, Responsibility and Heroism Act 2015.........................35
- Professional standards................................................................................36
- Industry Standards......................................................................................37
Factual Causation....................................................................................................37
General rule = But for test..............................................................................38
Difficulties in causation: 2 hunters problem...............................................38
- Exception 1:..................................................................................................38
o Any contribution beyond de minimis rule..........................................39
- Exception 2:..................................................................................................40
- 2 hunters scenario.......................................................................................40
o But for test cannot be satisfied depending on the balance of
probability.............................................................................................................40
- The Fairchild Rule: summary...................................................................41
o Majority:.......................................................................................................42
o Minority.........................................................................................................42
 S3 Compensation act 2006........................................................................42
o Basically = barker is wrong in cases concerning asbestos and
mesothelioma........................................................................................................43
• Did not abandon the causation requirement in Fairchild but
extended it.............................................................................................................43
- A note on breach:........................................................................................44
- Exception 3;..................................................................................................44
- Exception 4...................................................................................................45
- In each scenario: What is the situation? What test applies?..........46
- Supervening Acts:.......................................................................................46
- Intervening acts – novus actus interveniens.........................................46
- Intervention of nature................................................................................47
- Novus actus interveniens............................................................................47
- Intervention of 3rd party............................................................................47
- Intervention of the Claimant.................................................................48
- Remoteness....................................................................................................48
- The thin skull rule.......................................................................................49
- Policy limitations.........................................................................................49
Pure economic loss..................................................................................................49
- Why does pure economic loss matter?...................................................50
- General rule..................................................................................................50
o Pure economic loss cannot be recovered – not contingent.................50
o This case was only an illustration, not precisely the starting point
of the concept -> not a foundational authority...........................................50
- Defective Premises Act 1972..................................................................51
 o evidence that sometimes the parliament can and will decide on
this area..................................................................................................................51
o You cannot assume responsibility for a party you don’t know that
exists – too broad of a scope for liability.....................................................53
- Express assumption of responsibility......................................................53
Omissions – Duty to Rescue?...............................................................................53
- Special duty of care scenarios.................................................................53
- The general rule...........................................................................................53
The rationale for no duty to rescue rule.......................................................54
- Problems with the rule..............................................................................54
Exceptions – where a duty of care for omissions is established..............54
- Exception 1...................................................................................................54
- Exception 2...................................................................................................55
- Exception 3...................................................................................................56
• Dorset Yacht.................................................................................................56
- Exception 4...................................................................................................56
- Liability of 3rd Parties................................................................................56
- Stovin v Wise...............................................................................................56
- Additional illustrative cases....................................................................57
- Osman v Ferguson.......................................................................................57
- Dorset Yacht v Home Office....................................................................57
- Proximity.......................................................................................................57
o Capacity to warn C.....................................................................................58
o Knowledge of 3rd party’s propensity.....................................................58
 Specific knowledge:......................................................................................58
 No knowledge:................................................................................................58
o Temporal and geographic proximity.....................................................58
o Knowledge of C’s identity........................................................................58
 Nor is it necessary:......................................................................................58
o Identifiable class at special risk..............................................................58
- Policy considerations...................................................................................58
Duty of Care: Public Authorities........................................................................59
- What is a public authority?......................................................................59
- Direct v Vicarious Liability.....................................................................59
- Crystallising cases – leading decisions...................................................59
- Threshold Requirements.............................................................................59
- Ultra Vires Test...........................................................................................60
- Pure Omissions.............................................................................................60
- Summary........................................................................................................60
o Omission made the situation worse.......................................................60
o Assumption of responsibility....................................................................61
 - Emergency services.....................................................................................61
- Equality principle........................................................................................61
- Policy considerations...................................................................................61
- Finding duty of care: neglected and abused children.......................61
- Article 8: Private life.................................................................................62
- Article 6: Fair trial......................................................................................62
Psychiatric illness....................................................................................................63
Pure vs consequential injury.............................................................................63
- Psychiatric injury cannot be consequential on property damage. 63
- Pre-requisites for claiming psychiatric injury....................................63
2. Must identify type of claimant eg primary victim, secondary
victim, stressed at work etc..............................................................................63
- Types of claimant........................................................................................63
- The history of psychiatric harm in tort.................................................63
- Pre Alcock-requirements............................................................................63
- Primary victims...........................................................................................64
- Included claimants......................................................................................64
- Guilt ridden...................................................................................................64
- Excluded claimants......................................................................................64
- Fear of the future.......................................................................................64
- Other Features..............................................................................................65
- Secondary victims.......................................................................................65
- Pre-alcock requirements do apply to secondary victims................65
- Who do you have a close and loving relationship with?................65
- Own unaided senses....................................................................................65
- Immediate aftermath of the event.......................................................65
- ‘Fear of the future’ claimants................................................................66
- Stressed at work..........................................................................................66
- Duty arises where:......................................................................................66
o Melville v Home Office compared to -> Pratley v Surrey CC.....66
o Pratley............................................................................................................66
- Claimants that don’t fit.............................................................................66
o Butchart v Home Office...........................................................................66
o Where there is no immediate victim, C is treated as a primary
victim.......................................................................................................................67
- Establishing the duty: Caparo test.........................................................67
- Tests for identifying victims:..................................................................67
o Secondary victims.......................................................................................67
Reforms...................................................................................................................67
- Secondary victims: proposed reforms....................................................68
Defences: General...................................................................................................68
 - Corr v IBC.....................................................................................................69
- St George v Home Office.........................................................................70
o Willingness is the key element – not knowledge of risk..............................71
o TEST:..............................................................................................................74
Summary of defences:........................................................................................74
Occupiers’ Liability................................................................................................74
What is Occupier’s Liability? Statutes:...........................................................74
Background:...........................................................................................................75
o 4 categories of person: contractor, invitee (common interest),
licensee, trespasser..............................................................................................75
Each Act applies to the occupier of ‘premises’:.........................................75
Key terms:..............................................................................................................76
o Permission may be limited in scope as to place, time or
behaviour:..............................................................................................................76
o Some persons are not visitors but, nevertheless, are given
protection under the 1957 Act.........................................................................77
- Occupier: Who is an occupier?................................................................77
o Key case resolved the issue:....................................................................77
 Denning  the person with ‘immediate supervision and control’
was an occupier – ‘degree of control over the state of the premises’ 78
o Causation between breach and harm is necessary......................................................79
- Automatic discharge and independent contractors (IC)...............................................81
Establishing duty under the 1984 Act: No automatic assumption of duty...............................81
- Requirements under s1 OLA 1984:..........................................................................81
- s1(3)(b): D knows (or ought to know) that C will come into the vicinity of the danger
82
- s1(3)c: Reasonableness of offering protection is a question of fact in each case..............82
- Standard owed under the 1984 Act........................................................................82
- Causation still required..........................................................................................83
Restrictions, exclusions and defences.................................................................................83
- 1957 Act is silent but contributory negligence clearly allowed in practice.....................83
- Contributory negligence also available under the 1984 Act........................................83
- Recoverable damages...........................................................................................83
NUISANCE........................................................................................................................84
o No nuisance and no negligence – only claim would be on the dangerousness of the thing84
- A tort against land................................................................................................85
- Who can be sued for nuisance?...............................................................................89
 Coventry v Lawrence no2 (2016)............................................................................90
 Held: The landlords of the stadium could be only responsible where they had authorised it
by either:....................................................................................................................90
- ‘Coming to the nuisance’.......................................................................................90
- Acquisition of a right by prescription.......................................................................90
 - Statutory authorisation.........................................................................................91
Remedies for nuisance...................................................................................................91
o Calculation of damages..........................................................................................92
The Rule in Rylands v Fletcher........................................................................................93
- What happened in Rylands?..................................................................................93
o You need to have brought a dangerous thing onto your land.......................................93
o You must have accumulated it on your land/non-natural user.....................................93
o The dangerous thing must escape/ there must be an escape.........................................94
- Remoteness and Rylands........................................................................................94
- The modern place of Rylands.................................................................................94
Recoverable forms of harm.............................................................................................95
Defences.....................................................................................................................95
Privacy........................................................................................................................95
What is privacy?...................................................................................................95
No general tort of invasion of privacy..........................................................96
o Refused to recognize a general principle of invasion of privacy. 96
Breach of confidence...........................................................................................96
- Extended = no need for pre-existing relationship.............................97
Human rights Act 1998......................................................................................97
o Court recognised a new tort of misuse of private information......97
Elements of misuse of private information..................................................98
o Which one has greater weight? Consider public interest in
publication.............................................................................................................98
- Relationship between Article 8 and 10................................................98
What is the nature of misuse of private information?.............................99
- REMEMBER: Not a general privacy tort. This is a tort relating to
information and the misuse of that information.........................................99
- Murray v Express Newspapers ltd [2004............................................99
o Health/medical information.....................................................................99
o Information relating to sexual relations/relationships.....................99
Photographs.........................................................................................................100
- Privacy in public places?.........................................................................101
- Compare Strasbourg court in Von Hannover to HL in Campbell
101
private about that information nor can it be expected to damage her
private life.’.........................................................................................................102
o Child's Art 8 right to be........................................................................102
o Child aspect:...............................................................................................102
o Public space aspect:...................................................................................102
 Child aspect..................................................................................................103
 Older children/ younger children.............................................................103
- Suspected or arrested for a crime.........................................................103
 Would be a direct press censorship to hold otherwise, no reasonable
expectation of privacy can be found in open courts – open justice........104
- Political speech..........................................................................................104
- Educational speech....................................................................................104
- Artistic speech...........................................................................................104
- Gossip............................................................................................................104
- Balancing factors.......................................................................................105
Remedies...............................................................................................................105
- Injunctions...................................................................................................106
 With each publication, a new tort arises. Keeping the injunction
allows the court to prevent more torts.........................................................107
- 2 situations in which proof of damage is not required:.................108
- 3 basic requirements for the action in defamation:........................108
1. A defamatory statement:.....................................................................108
2. Which refers to the claimant.............................................................109
3. Publication..............................................................................................109
- Defamation and the internet..................................................................109
- Limits to the action in defamation.......................................................110
- Defences to Defamation..........................................................................110
o Honest opinion...........................................................................................110
 2 requirements:............................................................................................111
o Absolute privilege......................................................................................111
o Qualified privilege....................................................................................111
o Publication on a matter of public interest (formerly Reynolds
privilege or responsible journalism)............................................................111
o Offer of amends.........................................................................................113
o Innocent dissemination............................................................................113
- Remedies......................................................................................................114
o Injunction....................................................................................................114
- Policy issues................................................................................................114
Structure for PQ:...............................................................................................114
- Basic conceptual framework..................................................................................115
o It does not depend on C’s being at fault – liability is strict........................................115
- A non-delegated duty is one that, cannot be shifted to someone else.........................115
- Neither of these doctrines are freestanding ‘torts’ themselves...................................115
Understanding non-delegable duties (NDD)....................................................................116
- NDDs post-Woodland..........................................................................................118
 Lord Reed considered some important matters:.......................................................118
- The shape of vicarious liability.............................................................................118
o Various approaches have been used:......................................................................119
  Integration into D’s organisation both in terms of the work undertaken and the structures
of the organisation:.....................................................................................................119
 Composite test: Looking at the whole situation, is T actually in business for themselves? –
referred to as the entrepreneur test..................................................................................119
o Difference between employee and IC...................................................................119
- Moving beyond employment to situations that are ‘akin to employment’.................121
REMEDIES AND PRINCIPLES OF COMPENSATION..............................................................122
Types of damages:.......................................................................................................122
2. Aggravated damages -> but are these really compensatory?.......................................123
3. Exemplary (or punitive) damages -> damages with the aim of punishment.................123
- Cause of action limitation?...................................................................................123
- What does ‘calculated to make a profit’ mean?......................................................123
4. Nominal damages -> cases where the claimant has been the victim of a wrong/right has
been infringed but no damage has resulted....................................................................123
5. Contemptuous damages -> technical legal victory for claimant but award reflects
disapproval of claimant bringing the claim at all...........................................................123
6. Restitutionary damages -> awarded not to compensate a loss that C suffers but a gain that
D makes...................................................................................................................123
o Damages for personal injury -> compensatory.........................................................124
- Exceptions to lump sum awards............................................................................124
- Major change in 2003 -> introduction of periodical payment orders.........................124
- Calculation of Award – Pecuniary loss...................................................................124
o Law reform Act 1948, s2(4).................................................................................125
- Non-pecuniary loss.............................................................................................125
o Calculation?.....................................................................................................126
o How is it done in practice?.................................................................................126
- Collateral benefits.............................................................................................126
- Damages and Death............................................................................................127
Act 1934 s1...............................................................................................................127
s1(2)(a)(ii)...............................................................................................................127
o Death as a cause of action....................................................................................127
o S1(1) Right of action for wrongful act causing death................................................127
o For whose benefit does the action lie? S1(1)...........................................................128
o Limits on the injury for which damages can be awarded?.........................................128
• S3(3) – re-partnering (ignored).............................................................................128
o Calculation of award...........................................................................................128
- Bereavement (grief)..........................................................................................129
TORT REVISION NOTES:

Introduction to the Law of Tort; Tort and the

System

What is a tort?
- Type of civil wrong committed against an individual rather than the
state.

o Basic pattern = act/omission + causation + fault + protected

interest + damage = liability.

- Tort than can be described as the area of civil law which provides a
remedy for a party who has suffered breach of protected interest
- Imposed on all of us -> a duty owed to everyone in that situation
o ‘Tortious liability arises from the breach of a duty primarily fixed
by law; this duty is towards persons generally and its breach is
redressible by an action for unliquidated damages’ Prof Winfield,
Winfield and Jolowicz on Tort
 A general, involuntary duty
 Can be breached in a number of different ways: Fault isn’t
always necessary.
- Tort is an extremely diverse field – described as ‘a mosaic’
- Tort and Contract -> the duty in tort is imposed by law generally,
doesn’t have anything to do with an agreement between 2 people who
consented to the agreement. While tort compensates loss, contract
protects expectation.
o The duty in tort is owed in rem but in contract it is owed to the other
party -> they are concurrent meaning you can be liable in both at
the same time (decided by the SC in Henderson v Merritt) but you
can’t claim the damages for both – only once.
- Fundamental difference in remedies -> in contract the law aims to put
you in the position if the contract happened. Tort in the other hand, almost
all of the time is concerned with compensating. Aims to put you in the
position before the tort – aims to restore whereas contract aims to replace.
Compensation is measured in accordance to trusts.

- Tort and Criminal Law -> in tort, the state may be treated as an
individual. In criminal law, the state brings the action against an
individual. In criminal the individual is punished by the state on behalf of
everyone. Main difference lies in the nature of their objectives. Tort law is
aimed at compsensation whereas criminal law punishes. Tort is an action
against an individual by another individual
- Civil wrong -> remedies are almost always damages (money) ->
other remedies are also available in particular torts. Eg injunction but
rarely available.
- Tort and Human Rights -> HRA 1998 makes the ECHR binding in the
UK – statutes and case law must be interpreted and applied in a sense
which is compatible with Convention rights as far as possible. Rights
relevant to tort law:
o Article 2: right to life
o Article 3: right to freedom from inhuman and degrading
treatment
o Article 5: right to liberty and security
o Article 6: right to a fair trial
o Article 8: right to respect for private and family life
o Article 10: right to freedom of expression

- The influence of Insurance -> approximately 94% of tort actions are

based upon insurance, for the simple reason that it is only the insured
defendant who is likely to be able to pay compensation should he be held
liable. One policy concern for judges is the potential impact which a
decision might have on the insurance industry in the future.
o 2 areas of liability are noted for their statutory requirements for
compulsory insurance = Employers’ liability and Road Traffic
Act
o Smith v Eric Bush, Lord Griffiths: ‘there was once a time when it
was considered improper even to mention the possible existence of
insurance cover in a lawsuit. But those days are long past. Everyone
knows that all prudent, professional men carry insurance and the
availability and cost of insurance must be a relevant factor when
considering which of two parties should be required to bear the risk
of a loss.’
o Reflects an awareness that one of the functions of tort is to
spread the cost of losses efficiently – more than simple
blameworthiness.

- Aims of tort law

o Main objective = compensation
o Secondary objectives:
 Deterrence
 Justice

o Compensating losses
 Shifts losses to the appropriate person
 Availability of insurance is key
 The standard measure of damages

o Corrective justice
 Rooted in Aristotelian ethics
 Based on equality
 o Distributive justice
 Looks beyond the parties
 How does it relate to corrective justice?
• MacFarlane v Tayside Health Board [2000] 2 A.C. 59: ‘It
is possible to view the case simply from the perspective of
corrective justice. It requires somebody who has harmed
another without justification to indemnify the other... But
one may also approach the case from the vantage point of
distributive justice. It requires a focus on the just
distribution of burdens and losses among members of a
society.’ Per Lord Steyn
o Deterrence/standard setting
 ‘It is the function of the law of tort to deter negligent conduct
and to compensate those who are the victims of such conduct.
It is not the function of the law of tort to eliminate every iota
of risk or to stamp out socially desirable activities.’ The
Scout Association v Barnes [2010] per Jackson LJ
 Individual deterrence -> uses civil sanctions such as
damages to alter the behaviour of the individual so as to
avoid infliction of damage.
 Depends -> will the sanction affect the defendant? Most
damages are paid out by insurance companies. One way to
make the person more concerned would be increasing the
premium they have to pay for the insurance.
Another aspect that could affect the D relates to reputation
eg lawyers, doctors have a reputation to protect.
 General or market deterrence -> related to reducing the
costs of accidents. Achieved by imposing the cost of
accidents on those who participate in accident causing
activities -> internalising externalities

- Compensation culture?
o The availability of legal aid has been progressively reduced and
replaces by the conditional fee agreement (CFA), sometimes
known as ‘no-win, no-fee’. Investigated by the Review of Civil
Litigation Costs – Jackson Review 2010

- Torts can overlap -> Spring v Guardian Assurance [1995]

Looking at individual torts:

- What is the point of this tort?
- What interests are protected by this tort?

Approaching tort:
- Who can sue whom, in what tort, for what dam age and
ar e there any defences?
- It is alwayDsowcnlrouadcediablylMyriidmulapJeothrwtaanin(mt
[email protected])o what tort one is
Intentional Interference with the Person

TRESPASS TO THE PERSON

- Umbrella term
- Involves assault, battery and false imprisonment.
- Intention
o Intentional torts require deliberate conduct -> act must be
intended not the injury itself.
 ‘It is the act and not the injury which must be intentional.
An intention to injure is not essential to an action for
trespass to the person. It is the mere trespass by itself which
is the offence.’ Wilson v Pringle at 249
 Conduct must be direct – has become diluted and no longer
is of great importance.
 Actionable per se – does not require proof of damage.
The amount of damage however will be considered when
calculating damages.

- Assault and battery:

o Distinguishing assault and battery -> “An assault is an act
which causes another person to apprehend the infliction of
immediate, unlawful, force on his person; a battery is the actual
infliction of unlawful force on another person.”
o Protect aspects of our personal/bodily integrity. Battery protects
out bodily integrity, assault protects the rights not to be put in fear
of unlawful invasion of our integrity.

- Collins v Wilcock
o ‘The fundamental principle, plain and incontestable, is that every
person's body is inviolate… The effect is that everybody is
protected not only against physical injury but against any
form of physical molestation.’

- BATTERY: elements
o Intended, deliberate conduct
o Application of direct immediate force
o The application must be unlawful – without consent

- Williams v Humphrey – pushed C into swimming pool, causing injury

which was not intended. Actionable as battery bc even if the injury was
unforeseen, the pushing was intended.

- Letang v Cooper
o Facts: hotel in Cornwall. Sunbathing on the grass which was also
used as a carpark. D ran over her leg and she sued. Was it trespass
or negligence?
 o Held: Lord Denning argued that the claimants claim was one of
negligence because the act of D did not involve any intention.
 ‘[When] the injury is not inflicted intentionally, but
negligently, I would say that the only cause of action is
negligence and not trespass. If it were trespass, it would be
actionable without proof of damage; and that is not the law
today.’
 Not trespass as it was done unintentionally.

- Transferred intent?
o Livingstone v Ministry of Defence -> Northern Irish soldiers
had to be deployed to fight. Soldiers fired bullets into a crowd and
the claimant was injured. Soldiers deliberately fired in the crow
but not specifically to injure any one in particular. Lord Hutton
argued that this doesn’t excuse the conduct -> ‘when a soldier
deliberately fires at one rioter intending to strike him and he
misses him and hits another rioter nearby, the soldier has
“intentionally” applied force to the rioter who has been struck.’
o Does not require target required conduct.

o Bici v Ministry of Defence -> can recklessness ever suffice for

intention? In principle, recklessness will suffice for intention when
it comes to deliberate conduct, but it must be subjective
recklessness meaning that D must realise the risk of harm ->
appreciation of harm by D.

- Hostility?
o Is the intentional conduct enough or does it have to be
hostile?
o Does touching count? -> yes, in battery, excluding everyday life
touching/actions – Collins v Wilcock
o If the act is outside the boundaries of ordinary social life, consent
can negate battery (subject to issues about capacity)
-> Collins v Wilcock
o Wilson v Pringle (1986) -> Overruled -> hostility does not
determine actionable battery.
o F v West Berkshire Health Authority – The HL gave extensive
consideration to the tort of battery in a case medically imposed
sterilization for a mentally subnormal patient. Although this could
be described as hostile, in the absence of meaningful consent, it
would constitute battery, unless a different source of authority could
be found. A declaration was given that the procedure was necessary
in the best interests of the patient.

- Coincidence of intention
- Does intention and act have to occur at the same time?
- Fagan v Metropolitan Police Commissioner
o D drives over police officer’s foot
o Police said get off you’re on my foot and D did not remove the car
and still applies the force.
o At first D did not intend to run over his foot but when he did not
remove the car knowing he was on his foot then the act became a
battery.

- ASSAULT: elements
o Intention that claimant apprehends the application of
unlawful force
 Claimant’s reasonable apprehension of the application of
unlawful force.
 Decided objectively and an unfounded apprehension will not
find an action in assault
 Stephens v Myers – D went to strike the plaintiff, but
someone intervened and prevented him. Here, an assault was
committed as it had been reasonable for the plaintiff to
anticipate a hit.
o The threat must be of immediate and direct force.
 Threat? Stephens v Myers -> “It is not every threat,
where there is no actual personal violence, that
constitutes an assault, there must in all cases, be the
means of carrying the threat into effect.”
 Immediacy -> Tuberville v Savage -> puts his hand on
his sword while talking to the claimant, ‘If it were not
assize time, I would not take such language from you’.
Held that it wasn’t an assault bc words can negate the
conduct.
 Can words alone amount to an assault? -> R v Ireland: silent
phone calls. Additional element of fear was that D called
their home phones which means that he knew they were at
home. Held that words can amount to assault -> apprehension
of unlawful violence.
o In many cases, an anticipation of force (assault) will be followed
by the impact itself (battery) and any compensation for the first
will be included within that for the second

- FALSE IMPRISONMENT: Elements:

o D must intend the restriction of C’s freedom of movement
o Imprisonment must entail complete restriction of C’s freedom
o False indicates that the restriction must be unlawful

- Aims to protect our personal liberty in a physical sense

- Intention
- R v Governor of Brockhill Prison, ex parte Evans
o Prisoner held in prison for longer than she should have been,
based on governor’s miscalculation. She sued for false
imprisonment.
o Governor was held liable, as ‘false imprisonment is a tort of
strict liability’
o D does not need to act in bad faith, or to intend to imprison
falsely.
o Intention does not matter when the act is not lawfully justified.
o The governor was acting in good faith, but he was still falsely
imprisoning her bc her sentence ended, and he had no lawful
explanation.
o Lawfulness requirement is separate than intention

- Prison officers Association v Iqbal

o Prison officer strike which meant that prisoners were not
allowed to wander around and locked in cell all the time.
o Did not intend to lock them in -> but this does amount to false
imprisonment if D realises that his conduct or omission will
result in imprisonment
 ‘I would hold that, if the defendant realises that the likely
consequence of his act or omission will be that the claimant
is imprisoned and carries on with that act (or omission - see
above) regardless of that likely consequence, that will
amount to false imprisonment, provided of course that the
other requirements are satisfied.’
 But in this case the officers were not held liable -> bc
already lawfully locked in his cell. The prisoner does not
have a right to be set out at a specific time each day as a
private right.

- Complete restriction
- Bird v Jones
o Claimant was walking along a public highway near the river. Some
part of it was fenced so that people can watch the boat races.
o Claimed that he was falsely imprisoned bc his freedom of
movement was restricted
o Claim failed bc he could have gone in another direction ->
partial restriction
o Patteson J 752: ‘Imprisonment is, as I apprehend, a total
restraint of the liberty of the person, for however short a time,
and not a partial obstruction of his will, whatever inconvenience it
may bring on him.’

- Relevance of claimant’s knowledge?

- Murray v Ministry of defence
 o During the troubles of Northern Ireland. Claimant was raising
money to fund the IRA which was illegal, and soldier came to her
house to arrest her but this was not told to her. She claimed that
since they did not make clear that she was being arrested, she was
being falsely imprisoned.
o Lord Griffiths (obiter) -> ‘If a person is unaware that he has
been falsely imprisoned and has suffered no harm, he can
normally expect to recover no more than nominal damages …
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.’
o The fact that the claimant is unaware doesn’t negate the act of
false imprisonment.

- Lawfulness
- Hague v Deputy Governor of Parkhurst Prison
o Alleged that there were various breaches of prison rules ->
made conditions worse
o When you’re lawfully imprisoned you can’t sue for other
limitations imposed within the detention which hinders your
personal liberty.

- Austin v Commissioner of Police of the Metropolis

o May day protests -> Police detained people during the process
o Some of the protesters sued for false imp and the breach of their
personal right to liberty and security of person (article 5 of ECHR)
o Claims failed since the police had justification and they did not
detain them for any longer than necessary.
o The intention of the police was to detain them only so long as was
reasonably thought necessary -> so they were justified to hinder
their movement in that fixed period.
o The necessity defence has been increasingly used as an answer to
claims brought under s5 -> here HL interpreted it as permitting
reasonable measures for crowd control in extreme and exceptional
circumstances

- Causation test?
o The supreme court’s answer is that there is no causation test.
o Lumba case -> facts: a very dangerous foreign national
prisoner. The law was that if you were foreign national prisoner
you would be deported back to your country at the end of your
sentence. There would always be a gap between end of sentence
and deportation. Finished his sentence and was detained -> but
the govt was pursuing a secret policy of detaining the prisoners
who had finished their sentence. Claimed that this was unlawful
-> in breach of public policy.
 But the case was that according to the public policy, since he was a
very dangerous offender he would still be detained despite the secret
policy. If the formal policy had been followed, there were still
grounds for detaining the claimant.
 6:3 split on liability: Claimant succeeded – there is no
‘causation test’ in the sense suggested. We don’t ask what
would have happened. Does not matter if you acted
lawfully bc you already acted unlawfully.
 Different 6:3 split: Claimant entitled only to nominal
damages bc no damages suffered
 Majority -> Lord Dyson -> the right to liberty is of
fundamental importance.
• ‘The introduction of a causation test in the tort of
false imprisonment is contrary to principle both as a
matter of the law of trespass to the person and as a
matter of administrative law. Neither body of law
recognises any defence of causation so as to
render lawful what is in fact an unlawful
authority to detain, by reference to how the
executive could and would have acted if it had acted
lawfully, as opposed to how it did in fact act...’
• [65] ‘All that a claimant has to prove in order to
establish false imprisonment is that he was directly
and intentionally imprisoned by the defendant,
whereupon the burden shifts to the defendant to
show that there was lawful justification for doing
so.’
 Dissenting -> logically inconsistent and devalues false
imp.

- Conditions and terms

o Herd v Weardale Steel Co -> refused to any more coal mine work
bc he thought it was dangerous. He wasn’t allowed to go up bc he
already agreed that he’ll come up at the end of his shift. No false
imp bc it was the conditions of the agreement he accepted.
o ‘So, my Lords, it is not false imprisonment to hold a man to the
conditions he has accepted when he goes down a mine.’

DEFENCES
- Self-defence
- Consent
- Lawful arrest/prevention of crime
- Interference based on public interest
- Statutory authority
- Necessity and capacity
- Paternalistic interference

- Self-defence
- Leading case Ashley v Chief Constable of Sussex:
o [51] ‘If a person is actually under a potentially lethal attack or
such an attack is imminent, the law recognises that he is entitled,
or permitted, to defend himself and, if need be, to kill his
assailant. The killing is justified.’
o Mr Ashley was killed by a police officer when his house was being
raided. He was thought to be a dangerous offender. The police
thought he was going to attack him and he shot him, died in his
bed. His family brings a claim for his killing.
o They were allowed to bring a private claim even though the chief
admitted fault of negligence. But they were not going to admit that
he was unlawfully killed.
o Ashley was not attacking him so no self-defence -> made a
mistake, honest mistake test.
o The Ashley family argued that the test should be different in
private law -> additional check on self-defence even though you
honestly made a mistake. There must be a reasonableness element
as well. This is different from the test in criminal law.
 Issue: ‘whether self-defence to a civil law claim for
tortious assault and battery, in a case where the assailant
acted in the mistaken belief that he was in imminent
danger of being attacked, requires that the assailant acted
under a mistaken belief that was not only honestly but
also reasonably held.’
 In tort D’s belief must be both honestly and
reasonably held.
o Reasons: Lord Scott at [18]:
 ‘It is one thing to say that if A's mistaken belief was honestly
held, he should not be punished by the criminal law.
 It would be quite another to say that A's unreasonably held
mistaken belief would be sufficient to justify the law in
setting aside B's right not to be subjected to physical violence
by A.’

o 2 points that were left open:

 Where D’s reasonable belief is based on information told him
by a third party rather than the victim’s actions
 Should self-defence be available to a claim for battery only
where the defendant was actually being attacked or in
imminent danger of an attack? In civil law, should you have a
defence at all if you were mistaken?
o Self-defence must be proportional to the force

- Revill v Newberry
 o The C was planning to burgle, and D was paranoid that someone
was going to burgle his house and waited at night with a gun to
defend his property.
o Shot the burglar through the door.
o Held: Violence may be returned with necessary violence. But the
force used must not exceed the limits of what is reasonable in the
circumstances.

- Consent
o Acts as a defence to a trespass claim, as it negates the
unlawfulness of D’s action
o No actionable injury can happen to one who is willing

- Chatterton v Gerson
o 442-3 ‘[What] the court has to do in each case is to look at all the
circumstances and say "Was there a real consent?" I think justice
requires that in order to vitiate the reality of consent there must be a
greater failure of communication between doctor and patient than
that involved in a breach of duty if the claim is based on negligence.
…

- Lawful arrest/prevention of crime

- Criminal Law Act 1967 s3
o (1) A person may use such force as is reasonable in the
circumstances in the prevention of crime, or in effecting or
assisting in the lawful arrest of offenders or suspected offenders
or of persons unlawfully at large.
o (2) Subsection (1) above shall replace the rules of the common
law on the question when force used for a purpose mentioned in
the subsection is justified by that purpose.
- When does what you’re doing helps prevention of crime?

- Ali v Heart of England NHS

o Hospital worker gave wrong info to the police due to a
misunderstanding -> Reported a suspicion of crime
o Genuine belief -> not a tort.
o [27] ‘not every case in which wrong information which has been
given to the police which has led to an arrest will produce a
conclusion that someone is liable to the claimant who has been
arrested for false imprisonment. Being responsible for giving
wrong information to the police – as the store detective in
Davidson clearly was - is not the same thing as being responsible
for the arrest.’
o [36] ’A defendant who merely provides information to the police
in good faith is not procuring the claimant's arrest even if it is
practically inevitable’ that an arrest will follow.’
 o Different from deliberately making the police believe that
there is a crime.

- Albert v Lavin
o D is queuing
o He wasn’t feeling well and decides to jump the queue
o Police thought there was going to be a breach of peace
o D doesn’t believe he was police and punches him in the
stomach.
o Assault to a police officer
o But 565: ‘every citizen in whose presence a breach of the
peace is being, or reasonably appears to be about to be,
committed has the right to take reasonable steps to make
the person who is breaking or threatening to break the
peace refrain from doing so; and those reasonable steps in
appropriate cases will include detaining him against his will.’
o Applies to everyone.

- Interference based on public interest

o Prison Act 1952, s12 (1): A prisoner, whether sentenced to
imprisonment or committed to prison or remand or pending trial
or otherwise, may be lawfully confined in any prison.
o Statutory authority to intervene with bodily integrity ->
renders it lawful
o See Lumba

- Necessity
o This defence only applies in very limited circumstances
o In F v West Berkshire Health Authority
 A lady who suffered from severe learning difficulty -> mental
age of a small child. Developed a romantic relationship with
another patient in the hospital and they were having sex.
The doctors thought she could not handle pregnancy and
contraception. Decided that she’d be sterilized, consented by
the family -> she lacked capacity to give consent herself
 Held: in such situations where it is necessary to preserve the
life, health or well-being of the patient may lawfully be
given without consent.’

- Paternalistic Interference
- Mental capacity Act 2005:
o s.1 The principles
 (2) A person must be assumed to have capacity unless it is
established that he lacks capacity.
  (3) A person is not to be treated as unable to make a decision
unless all practicable steps to help him to do so have been
taken without success.
 (4) A person is not to be treated as unable to make a
decision merely because he makes an unwise decision.
 (5) An act done, or decision made, under this Act for or on
behalf of a person who lacks capacity must be done, or
made, in his best interests.
 (6) Before the act is done, or the decision is made, regard
must be had to whether the purpose for which it is needed
can be as effectively achieved in a way that is less restrictive
of the person’s rights and freedom of action.

- Where someone lacks the capacity to consent, the test is:

o s.4 Best interests
o (1) In determining for the purposes of this Act what is in a
person’s best interests, the person making the determination must
not make it merely on the basis of—
(a) the person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour,
which might lead others to make unjustified assumptions
about what might be in his best interests.

- ZH case
o Claimant was severely autistic and had learning difficulties
o School trip to a swimming pool
o He went near to the pool and stayed staring transfixed to the water
o The teachers handled it wrong and accidentally pushed him in the
water
o He was pinned down and handcuffed by the police.
o [40] ‘A striking feature of the statutory defence is the extent to
which it is pervaded by the concepts of reasonableness,
practicability and appropriateness.’
o [49] ‘the MCA does not impose impossible demands on those who
do acts in connection with the care or treatment of others. It
requires no more than what is reasonable, practicable and
appropriate. What that entails depends on all the circumstances of
the case.’

- THE TORT IN WILKINSON V DOWNTON:

- The rule in Wilkinson v Downton concerns the intentional, indirect
infliction of harm: elements:
o Wilfully
o Committed an act
o Calculated to cause physical damage to the plaintiff
o By indirect means
- Facts of the case:
o D told the lady that her husband was involved in a serious
carriage accident -> was a joke
o She fell ill when she heard the news
o 58-9: ‘The defendant has … wilfully done an act calculated to
cause physical harm to the plaintiff - that is to say, to infringe
her legal right to personal safety, and has in fact thereby caused
physical harm to her. That proposition without more appears to
me to state a good cause of action, there being no justification
alleged for the act. This wilful injuria is in law malicious,
although no malicious purpose to cause the harm which was
caused, nor any motive of spite is imputed to the defendant.’

- Elements: intentional infliction of harm

o Intentional infliction of harm
o Conduct:
 must be conduct for which there is no justification or
excuse
 intention
 intention to cause severe distress
 recklessness not included
o Consequence – must be a recognised physical injury or psychiatric
harm

- Rhodes v OPO
o James Rhodes wrote a book concerning his mental health
problems as a child he suffered from sexual assault
o His ex-partner was very concerned that his son was going to find
out the truth about his father and suffer from sever distress
o Evidence that the son coped very badly
o Argued that it was intentional infliction of harm since he knew that
publishing the book would damage his son
o Held: supreme court rejected this argument
o [77] ‘It is difficult to envisage any circumstances in which
speech which is not deceptive, threatening or possibly
abusive, could give rise to liability in tort for wilful
infringement of another's right to personal safety.
o The right to report the truth is justification in itself … there is
no general law prohibiting the publication of facts which will
cause distress to another, even if that is the person's intention.’
o Enough that he intended to cause severe distress which in fact
results in recognisable illness -> the level of harm is not relevant, if
there was intention to cause any harm it is enough.
 o [83/87] ‘[it is sufficient that he intended to cause severe distress
which in fact results in recognisable illness] Our answer to the
second question is not to include recklessness in the definition of
the mental element. To hold that the necessary mental element is
intention to cause physical harm or severe mental or emotional
distress strikes a just balance.
o It means that a person who actually intends to cause another to
suffer severe mental or emotional distress (which should not be
understated) bears the risk of legal liability if the deliberately
inflicted severe distress causes the other to suffer a recognised
psychiatric illness.’
o [89] ‘In the present case there is no basis for supposing that the
appellant has an actual intention to cause psychiatric harm or
severe mental or emotional distress to the claimant.’
-> he only told his own story.

- ABC v West Heath 2000 Ltd

o Sexual abuse
o Malicious intention
o Argued that can amount to the tort in Wilkinson v Downton
o But the court disagreed and held: Since the consequences were so
obviously clear, it can be said that you had intention to cause
harm.

- HARASSMENT
- Protection from Harassment Act 1997
o Harassment = crime
o Private law cause of action
o Not a tort

- s.1 (1) A person must not pursue a course of conduct—

o (a) which amounts to harassment of another, and
o (b) which he knows or ought to know amounts to harassment of
the other.
(3) Subsection (1) does not apply to a course of conduct if the
person who pursued it shows—
o (a) that it was pursued for the purpose of preventing or
detecting crime,
o (b) that it was pursued under any enactment or rule of law or to
comply with any condition or requirement imposed by any
person under any enactment, or
o (c) that in the particular circumstances the pursuit of the
course of conduct was reasonable.

- What amount to harassment?

- Conn v Sunderland CC
o Behaviour of a foreman of a building site towards his
employees
 o In my judgment the touchstone for recognizing what is not
harassment for the purposes of sections 1 and 3 will be whether
the conduct is of such gravity as to justify the sanctions of the
criminal law.’
o Must be sufficiently serious

- Veakins v Kier Islington Ltd

o Does not need to prove maliciousness
o [16] ‘Although malice is not an ingredient of harassment. I
accept that the presence of malice makes satisfaction of the
“oppressive and unacceptable” test easier to achieve.

- Ferguson v British Gas Trading

o British gas insisted that Ms Ferguson owed them money, but she
didn’t. She sued for harassment bc she was getting regular
threatening letters
o [20] ‘What British Gas was threatening was undoubtedly
serious
o Companies can be defendants under the act

- Course of conduct:
S.7 Interpretation (as amended)
(4) “Conduct” includes speech.
(5) References to a person, in the context of the harassment of a person,
are references to a person who is an individual. – company can’t be a
claimant but can be a defendant.

- Language individually can be a tort

- Iqbal v Dean Manson

- Not harassment if:

s.1 (3) Subsection (1) does not apply to a course of conduct if the person
who pursued it shows—
(a) that it was pursued for the purpose of preventing or detecting
crime,
(b) that it was pursued under any enactment or rule of law or to
comply with any condition or requirement imposed by any person
under any enactment, or
(c) that in the particular circumstances the pursuit of the course of
conduct was reasonable.

- Hayes v Willoughby
o Your sole purpose must be prevention of crime if you want to use
the defence
o Reasonable connection between your act and what was
actually happening -> test of rationality and good faith
 - Protection from harassment act 1997
- s.3 Civil remedy
o (2) On such a claim, damages may be awarded for (among other
things) any anxiety caused by the harassment and any financial
loss resulting from the harassment.
o NB: The Court may also grant ‘an injunction for the purpose of
restraining the defendant from pursuing any conduct which
amounts to harassment’

- Jones v Ruth: harm need not be foreseeable

o One house was occupied by a couple and the other was
occupied by a man who was doing building work. They
complained about the noise levels, but he reacted
aggressively -> anger, homophobia
o Claimant suffered a psychological harm and wanted to claim
damages for her suffering
o Held: there is nothing about foreseeability of harm in the statute.
Section 1 is concerned with deliberate conduct of a kind which the
defendant knows or ought to know will amount to harassment of
the claimant. Once that is proved the defendant is responsible in
damages for the injury and loss which flow from that conduct.

Negligence & Duty of Care

- Negligence is about owing a duty of care respective of someone

else’s well-being
- In English law there is no general duty to other people ie to rescue

Elements
- The D must have owed a duty of care to the claimant
- They must have breached that duty
- The breach must have caused
- Actionable damage

Duty
- The ‘duty of care’ is a duty to take reasonable care with respect to
another.
- Liability arises when there is a casual link after the breach

D v East Berkshire
- Council was investigating abuse allegations -> parents’ abuse to
children
- Parents suffered a wrong -> they did not abuse their children
- Lord Rodger [100] ‘I do not actually find it helpful to bear in mind—
what is in any event obvious—that the public policy consideration which
has first claim on the loyalty of the law is that wrongs should be
remedied. Harm which constitutes a "wrong" in the
 contemplation of the law must, of course, be remedied. But the world
is full of harm for which the law furnishes no remedy.’

Development of duty Donoghue v

Stevenson
- Snail found in ginger beer
- She sues the manufacturer
- Manufacturer argues that he doesn’t owe everyone a duty of care
- Held: Lord Atkin: the neighbour principle
o ‘The rule that you are to love your neighbour becomes in law, you
must not injure your neighbour; and the lawyer's question, who
is my neighbour? receives a restricted reply. You must take
reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour.
Who, then, in law is my neighbour?
o The answer seems to be - persons who are so closely and directly
affected by my act that I ought reasonably to have them in
contemplation as being so affected when I am directing my mind to
the acts or omissions which are called in question.’
o 2 requirements for the principle to apply:
 Proximity: close and direct relations that the act directly
affects the other person
 Foreseeability of harm
- Held: manufacturer owes a duty of care

- Robinson v West Yorkshire Police

o Frail lady in her 70s
o Walking down the road
o The police officers have observed a drug dealer in the park
down the road. Called for back up
o Tackled the suspect to arrest him -> Mrs Robinson gets hurt in the
way
o Held: no duty of care on Mrs Robinson -> the police must be
solely focused on preventing crime

- Novel Situations
- Caparo v Dickman
o 617-8: ‘What emerges is that, in addition to the foreseeability of
damage, necessary ingredients in any situation giving rise to a
duty of care are that there should exist between the party owing
the duty and the party to whom it is owed a relationship
characterised by the law as one of 'proximity' or 'neighbourhood'
and that the situation should be one in which the court considers
it fair, just and reasonable that the law should impose a duty of a
given scope upon the one party for the benefit of the other.’
 - 3 criteria
o Proximity
o Reasonable foreseeability
o Fair, just and reasonable to impose the duty

- Robinson case
o [21] ‘The proposition that there is a Caparo test which applies to
all claims in the modern law of negligence, and that in
consequence the court will only impose a duty of care where it
considers it fair, just and reasonable to do so on the particular
facts, is mistaken…’
o [27] ‘It is normally only in a novel type of case, where
established principles do not provide an answer, that the
courts need to go beyond those principles in order to decide
whether a duty of care should be recognised. Following Caparo,
the characteristic approach of the common law in such situations is
to develop incrementally and by analogy with established authority.
The drawing of an analogy depends on identifying the legally
significant features of the situations with which the earlier
authorities were concerned.’
o [27] ‘The courts also have to exercise judgement when deciding
whether a duty of care should be recognised in a novel type of case.
It is the exercise of judgement in those circumstances that involves
consideration of what is “fair, just and reasonable’
o Caparo is a summary of the existing law but is not the guideline
which is to be used for every single case -> applies in unexpected
situations which have not yet been covered by case law

- Policy or Principle?
- Darnley v Croydon Health Services NHS Trust
o Suffered a head injury and went to the emergency service
o The lady at the desk was not a medical person; secretary
o Gave the wrong information -> told him he had to wait 4-5
hours for a doctor, but he could be seen in 30mins in reality
o He went home after 20 mins
o He suffered from severe brain damage afterwards and this
could have been avoided at the hospital
o He sued on the basis of duty of care -> duty to give accurate
information and not to give inaccurate information
o Novel situation -> can he claim duty of care
o CA held no duty of care
o SC -> here we are not concerned with the imposition of a duty of
care in a novel situation. The common law in this jurisdiction has
abandoned the search for a general principle capable of providing
a practical test applicable in every
 situation in order to determine whether a duty of care is owed and, if
so, what is its scope.’
 The present case, however, falls within an established
category of duty of care
 It has long been established that such a duty is owed by those
who provide and run a casualty department to persons
presenting themselves complaining of illness or injury and
before they are treated or received into care in the hospital’s
wards
 Whenever we are faced with a case where there is no
previously established authority, we don’t just go apply
Caparo.
 Is there a direct authority? Is there a close
enough authority? And then we go to novelty
cases -> Caparo

Limiting Liability
- Scope of liability
o floodgate arguments -> too many arguments for the need for duty
or is it about uncertainty of scope?

- Defensive practices
o Too many duties eg police, hospital-> they will be more
concerned with not being negligent than their actual
duty/task.
o Hill v Chief Constable of West Yorkshire
 Held: no duty in the circumstances partly because it will
hinder the police’s ability of investigating crime -> if the
police owed a duty of care to every single citizen, then this
would be ineffective.
o Michael v South Wales Police
o Darnley v Croydon NHS Trust (UKSC)
 Undesirable consequences -> not enough to show that a duty
is owed. Merely saying that there is a duty, doesn’t mean that
there is legality -> did D take reasonable care?

- Avoiding conflicts of interest

o Where there is already a duty of care, courts are careful not to look
at another duty of care owed by the defendant.
o D v East Berkshire -> parents argued that if the council when
investigating the allegations of parental abuse to their children
caused them harm they would have the right to sue on the basis
of duty of care. The court rejected this argument because in this
case it wouldn’t be possible to owe a duty of care to both the
parents and the children -> must prioritise -> the only duty
would be safeguarding the child’s interests
 o ‘Ordinarily, when considering the imposition of a duty of care
previously unrecognised by the law, the courts are astute not to
create a conflict of interest.’

- Distributive justice
o Social policy considerations must be taken into account in
relation to liability
o White v Chief Constable
 Police negligently allowed too many people in the
terraces. Many people were crushed to death
 Police agreed that they were negligent
 It was argued that the police owed their families a duty of
care
 Police tried to bring a claim against the Chief Constable
saying that they suffered psychiatric harm
 Held that police could not sue -> reasoning was that given
that the families couldn’t sue, the police can’t sue either.
Would be unfair to allow the police to sue for the same
harm that was denied to the families -> against the notions
of distributive justice.
 Dissenting -> Lord Goff argued that the families and the
police are two different issues. ‘it is in any event
misleading to think in terms of one class of plaintiffs being
"better off" than another. Tort liability is concerned not only
with compensating plaintiffs, but with awarding such
compensation against a defendant who is responsible in law
for the plaintiff's injury. It may well be that one plaintiff
will succeed on the basis that he can establish such
responsibility, whereas another plaintiff who has suffered
the same injury will not succeed because he is unable to do
so.’

- Human Rights Considerations

Actionable Damage
- Unlike in the tort of trespass -> you must suffer damage to be able to
sue -> there should be a failure to take reasonable care on the
defendant’s part.
- Hinz v Berry
o Drove to Kent and were going to have picnic in a park.
o Mrs Hinz and her daughter went to pick flowers, on their way
back a car negligently drove into her family, severely injuring her
children and killed her husband.
o What can she sue for?
 Lord Denning MR at 42:
 ‘In English law no damages are awarded for grief or sorrow
caused by a person's death. No damages are to be given for
the worry about the children, or for the
 financial strain or stress, or the difficulties of adjusting to a
new life.
 Damages are, however, recoverable for nervous shock, or,
to put it in medical terms, for any recognisable psychiatric
illness caused by the breach of duty by the defendant.’
 Can’t sue for mere traumatic emotions -> tort is not there
to compensate for ordinary human emotions -> there must
be a recognised psychiatric injury.

- What counts as an injury in the physical sense?

o Rothwell
 Employers were exposed to asbestos -> risk of plural plaques
and respiratory conditions. They developed plural plaques
which is only an indication that they’ve been exposed to
asbestos. The claimants tried to sue on the basis that they
were anxious about the possibility that they would develop
other cancerous diseases.
 Held: rejected. The mere risk of harm is not enough to
bring a claim. The plural plaques did not affect their
breathing or everyday life, so the risk does not amount to
proof of harm.
 [7] ‘a claim in tort based on negligence is incomplete
without proof of damage. Damage in this sense is an
abstract concept of being worse off, physically or
economically, so that compensation is an appropriate
remedy. It does not mean simply a physical change, which
is consistent with making one better, as in the case of a
successful operation, or with being neutral, having no
perceptible effect upon one's health or capability.’
• De minimis rule

o Dryden
 Employers were exposed to platinum salt. Exposure to
platinum salt can develop allergies and the reaction hinders
everyday life. But the claimants developed a platinum
sensitisation which is not as serious as an allergy but still
they were moved to another section of the factory so that
they don’t develop the allergy.
 They sued that they can’t do their everyday work due to this
sensitisation which led to them being moved by their union.
 Held: sensitisation is not harmful in itself so does not cause
actionable damage or injury by itself. SC held that there is
actionable damage since the effect of the sensitisation was
that the men were significantly worse off. Their bodily
capacity to work was impaired ->
 actionable bodily damage which had an impact on their
lives is certainly more than negligible.
 Is it consistent with Rothwell?

Physical injury cases

- General Principle: D will normally owe C a duty to take care not to do a
positive act, if it is reasonably foreseeable that D’s doing an act will result
in someone like C suffering some kind of physical injury.

- Qualifications and exceptions

o Top v London Country Bus
 the bus was stolen, and the claimant’s wife was killed
(knocked off from her bike)
 the bus company was sued for negligence
 no liability because the third parties interfered
themselves -> you can’t hold the bus company
responsible for the act of 3rd parties.

- The Aliakmon
o Carriage of goods -> Goods damaged by bad storage
o Are shipowners liable in tort to buyers?
o Damages for economic loss
o The buyers were not the owners of the property when it was
damaged
o ‘In order to enable a person to claim in negligence for loss caused
to him by reason of loss of or damage to property, he must have
had either the legal ownership of or a possessory title to the
property concerned at the time when the loss or damage occurred.’
- Lord Brandon at 809
o Clear limitation -> they were not the legal owner so can’t
bring a claim.

Conclusions:
- Caparo must be used as a checklist dealing with pure novel cases: when
the tort is outside the already established categories
- Establishing a duty of care
o Existing authority?
o Special duty scenario?
o Novel situation? -> really novel? -> Caparo -> very rare that
we’re going to have a purely novel situation.
BREACH OF DUTY OF CARE
Elements:

- The D must have owed a duty of care to the claimant, they must have
breached that duty and that breach must have caused actionable
damage to the claimant.

Negligence: four questions

- Did D owe C a duty of care?
- Did they breach that duty?
- Did the breach cause loss?
- Is C’s damage actionable?

Basic test

- ‘Negligence is the omission to do something which a reasonable man,

guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and
reasonable man would not do’ -> Blyth v Birmingham Waterworks Co

- What discharges the duty?

Objective standard
- Reasonable man test
- Healthcare at Home v Common Services Agency
o [3]: ‘The behaviour of the reasonable man is not established by the
evidence of witnesses, but by the application of a legal standard by
the court. The court may require to be informed by evidence of
circumstances which bear on its application of the standard of the
reasonable man in any particular case; but it is then for the court to
determine the outcome, in those circumstances, of applying that
impersonal standard.’
- Skill
- Nettleship v Weston
o A learner driver
o A family friend agreed to teach her how to drive -> she crashed
into a lamp post and the claimant got leg bruises and sued
o D argued that she tried her best in the sense that she was a learner
driver
o Court rejected this -> ‘It is no answer for him to say: "I was a
learner driver under instruction. I was doing my best and could
not help it." The civil law permits no such excuse. It requires of
him the same standard of care as of any other driver…
 The learner driver may be doing his best, but his
incompetent best is not good enough. He must drive in as
good a manner as a driver of skill, experience and care, who
is sound in wind and limb, who makes no errors of
judgment, has good eyesight and hearing, and is free from
any infirmity’
o Can’t depend on a personal standard level

- Can age be a consideration?

o Mullin v Richards
 2 school girls fighting with rulers -> they were meant to
be shatter proof, but they shattered
 Claimant suffered an injury
 The reasonable standard here was the standard of a 15- year-
old.

- Disability
o Mansfield v Weetabix
 Did not know he was suffering from a condition
 Ended up crashing into the claimant’s shop while he was
suffering from the condition caused from his medical issue ->
passed out and drove into a shop -> hindered his ability to
drive.
 Held: In my judgment, the standard of care that [the driver]
was obliged to show in these circumstances was that which
is to be expected of a reasonably competent driver unaware
that he is or may be suffering from a condition that impairs
his ability to drive. To apply an objective standard in a way
that did not take account of [his] condition would be to
impose strict liability. But that is not the law.’
- Relevant factors
o Timing
o Utility of conduct
 Compensation Act 2006
o S1 deterrent of potential liability
o A court considering a claim in negligence or breach of
statutory duty may, in determining whether the defendant
should have taken particular steps to meet a standard of
care (whether by taking precautions against a risk or
otherwise), have regard to whether a requirement to take
those steps might-
(a) prevent a desirable activity from being
undertaken at all, to a particular extent or in a
particular way, or
(b) discourage persons from undertaking
functions in connection with a desirable
activity.
o Directed for only where there is a duty of care

 Social Action, Responsibility and Heroism Act

2015

o Probability of harm
 Bolton v Stone
• Claimant was walking alone and was hit by a
cricket ball. The ball came from a cricket field
close by where there was a 7foot fence
• Record breaking hit
• Claim -> must have taken more reasonable care
towards such an incident than only putting up a fence
of 7foot. But before this no one has ever hit the ball
that far
• Held: ‘It is not enough that the event should be such
as can reasonably be foreseen; the further result that
injury is likely to follow must also be such as a
reasonable man would contemplate, before he can be
convicted of actionable negligence. Nor is the remote
possibility of injury occurring enough; there must be
sufficient probability to lead a reasonable man to
anticipate it. The existence of some risk is an ordinary
incident of life, even when all due care has been, as it
must be, taken.’
• Not negligent -> low probability of hitting the ball
that far and hitting a person walking by -> not
sufficiently foreseeable

 The Wagon Mound

 • Ship in Sydney harbour, where vessels were
undergoing repair, due to which hot metal would
sometimes fall into the water
• By error of engineers, oil spilled out of TWM onto
the water and as it reached the wharf where repairs
were undergoing, sparks landed on the oil
-> fire broke out and damage caused to vessels.
• Held: the court looked whether the risk was
remote. Reasonable chief engineer should have
known that there was a risk of fire. Even the
smallest probability must be taken into
account

o Gravity of harm
o Costs of precautions
o Context

 Wooldridge v Summer
• Horse show
 Claimant was a photographer who got injured when a horse
went people are less likely to be injured.

 Blake v Galloway
• The limits and rules of the game

- Professional standards
- General test = Bolam Test
o Claim failed
o Claimant was at a mental hospital operated by D. he was
subjected to electro-shock therapy.
o The claimant suffered injury as a result of this. Negligence of the
hospital to carry out this without tying him down to limit the risk
of the injury.
o Held: McNair J: not guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art.
o There must be a responsible body of fellow professionals who are
of the same opinion

- Montgomery v Lanarkshire
o Concerns duty owed by doctor in disclosing risks to their
patients
o C’s son was born with severe disabilities due to complications
during his delivery
o Mother was diabetic and just over 5 feet -> Babies born to
diabetic mothers tend to be larger
 o The doctor did not explain to the mother all the risks involved bc he
thought when women know about the risks, they opt for a C-section
o She gave birth through vaginal delivery and complications
arose.
o Held: Bolam does not apply the disclosure of risk -> bc the
Bolam test limited the disclosure of info about risk
o Lords Kerr and Reed:
 [82] ‘In the law of negligence, this approach entails a duty
on the part of doctors to take reasonable care to ensure that
a patient is aware of material risks of injury that are
inherent in treatment.
 This can be understood, within the traditional framework of
negligence, as a duty of care to avoid exposing a person to a
risk of injury which she would otherwise have avoided, but it
is also the counterpart of the patient's entitlement to decide
whether or not to incur that risk.’
o Materiality test -> whether in the circumstances, a reasonable
person in the patient's position would be likely to attach
significance to the risk, or the doctor is or should reasonably be
aware that the particular patient would be likely to attach
significance to it.’ -> re-orientates the patient doctor relationship
 Bolam allows doctors to choose and judge which risks
should be disclosed – doctor’s medical selectivity
o Her consent must have been taken into account before
interfering with her bodily integrity
o How far does this case reach as far as disclosure is concerned?
o The doctors must disclose the relevant risks without the
patient having to ask.

- Industry Standards
- Baker v Quantum Clothing – leading authority
o Claimants all worked in the knitting industry
o Claimed to have suffered hearing problems as a result of
working with noisy machines
o Where there are agreed industry standards, should the courts read
ahead of that and look if there was negligence?
o Should the courts interfere with industry standards?
o Held: the court doesn’t surrender its judgement to industry
standards. The industry standards are what should be
applied – the reasonable care is confined to the standards -
> but the court’s decision can still be outside of the standards

Factual Causation
Durham v BAI Ltd – trigger litigation

Divisible injury = the contributions to the injury can be apportioned according

to contribution of various causes

Indivisible = the contribution cannot be apportioned as between different

causes

General rule = But for test

- But for D’s act would the claimant have suffered their injury or loss?
- Causation cannot be proven unless the but for test is satisfied

- Barnett v Chelsea Hospital

o B’s tea was laced with arsenic by an unknown murderer.
o The doctor refused to see him when he visited the hospital and
B was sent away to sleep it off
o B died from poisoning
o Held: Claim failed. Doctor had been negligent in refusing to
treat B, but causation had not been proved
o ‘had all care been take, still the deceased must have died’ -> no
breach bc the cause of death was poison

Difficulties in causation: 2 hunters problem

- Example: A is out hunting in the forest, 2 other hunters, B and C both at
the same time negligently shoot in the same direction and A was killed.
- 2 possible problems:
o Multiple causations – A is hit in the head by 2 bullets, both of
which were sufficient to kill him. Therefore, the but for test
cannot be satisfied.
o Evidentiary gaps – A is hit by a single bullet, and it is
impossible to determine whether it was from B or C’s gun – 50-
50 situation

- Exception 1:
- Multiple cumulative causes: material contribution to harm
- Bonnington Castings Ltd v Wardlaw
o C worked in steel and was in charge of mechanic hammer. In
using it, it gave off dust -> no known way of preventing
exposure to dust
o Also exposed to the same dust by grinders -> measures weren’t
deployed by employers. C developed lung condition
o 2 different sources of the same dust – in respect of hammer, no way
to avoid/prevent, but it was negligent to expose him to the dust of
the grinder.
o Held: the dust from the grinder materially contributed to the
disease -> both were causes
 o Any contribution beyond de minimis rule

- Holtby
o Asbestosis suffered by C -> asbestos also causes some fatal
cancer types
o Asbestosis is a divisible injury – the more you’re exposed to it, the
worse your condition gets.
o C exposed by several defendants throughout his working
years – in case of a divisible injury, the liability can be
apportioned
o Held: must prove D’s tortious conduct made a material
contribution to his disability. D is only liable only to the
extent of that contribution -> D must bear the liability of
only the part of the injury he caused, not all.
o Difficulty -> dividing liability is hard

- Bailey v Ministry of Defence

o C suffered a brain damage as a result of being starved of oxygen
after suffering from a heart attack after aspirating her vomit
o Left in a state of weakness after undergoing operation at D’s
hospital and she alleged the operation was negligent
o She developed a pancreas disease after the operation
o 2 causes contributing to her state of weakness – which cause brain
damage - Brain damage not divisible
o In cases of indivisible injuries, where liability cannot be
divided, must show material contribution but apportioning
liability is not necessary
o Hospital held liable

- Williams v The Bermuda Hospitals Board

o C was suffering from acute appendicitis and was admitted to an
A&E
o Appendix removed but he suffered complications resulting
from an infection from the removal of the appendix
o Claimed that the delay for his treatment was negligent and he said
that the infection he suffered was worse because it was delayed
o Lord Toulson -> we must look at the sequence of the events.
 ‘The sequence of events may be highly relevant in
considering as a matter of fact whether a later event has
made a material contribution to the outcome …, or
conversely whether an earlier event has been so overtaken
by later events as not to have made a material contribution
to the outcome. But those are evidential considerations. As
a matter of principle, successive events are capable of each
making a material contribution to the subsequent outcome.’
 o This does not involve a recognising an exception to the but for test
o More than 1 cause to the injury = more than 1 answer to the but
for test -> we can’t apportion the harm but the harm suffered is
greater

- Exception 2:
- Evidentiary Gaps – material contribution to the risk of harm

o Involves more than 1 potential causative factor and the

language of material contribution
o Different from above
o Result of the but for test is a question mark -> can’t distinguish
which factor caused the harm because there is an evidentiary gap
-> can’t figure out

- 2 hunters scenario
o 2 people shot negligently in the direction of A and A suffered
injury
o Who caused the harm?
o A was hit by a single bullet – impossible to determine whether it
was from B or C’s gun
o A’s estate cannot prove, on the balance of probabilities which
defendant shot him. Should he therefore be unable to recover?
o But for test cannot be satisfied depending on the balance
of probability
o What should be done? – should we change the but for test?
o Case examples: Summer v Tice (California) approved by
Cook v Lewis (Canada)

- McGhee v National Coal Board

o Worked in the national coal board which exposed him to brick dust
as part of his work
o D did not provide any showers to wash off after work – had to go
back home
o He was thus exposed more than he should have been -> some of his
exposure was negligent some wasn’t.
o In this case, the more you’re exposed the risk of contracting the
skin irritation gets worse – not the more you’re exposed, the
sicker you get
o Can’t tell what the tipping point was
o Held: ‘In the circumstances of the present case, the possibility of a
distinction existing between (a) having materially increased the risk
of contracting the disease, and (b) having materially contributed to
causing the disease may no doubt be a fruitful source of interesting
academic discussions between
 students of philosophy. Such a distinction is, however, far too unreal
to be recognised by the common law.’

- Key authority: Fairchild

o Cs were exposed to asbestos dust during the course of
employment with more than one employer. Cs contracted
mesothelioma (a serious form of cancer) as a result of the
exposure (breach of duty) – invariably fatal
o You can develop the disease years later of exposure -> long
latency period – stays hidden
o The more you’re exposed the more the risk that you will develop
it – does not worsen condition but merely increases the risk of
developing the disease
o It was medically impossible to determine which of the employers
had exposed Cs to the dust which had caused the cancer -> treated
like the 2 hunters scenario
o Applying the “but for” test, the Court of Appeal held that Cs’
claims failed on the balance of probabilities.
o Held: can prove their case. They can use an exception to the but
for test. They can prove that by exposing them to asbestos, each D
has materially increased the risk of developing the condition -> bc
any exposure increases the risk to develop this cancer
o Applying McGhee -> ‘by proving that the defendants individually
materially increased the risk that the men would develop
mesothelioma due to inhaling asbestos fibres, the claimants are
taken in law to have proved that the defendants materially
contributed to their illness.’
 A unanimous HL found for the plaintiff, despite recognition
that an evidential gap existed, in the basis that when proof
was impossible, justice was best served if the party at fault
bore the loss which had been incurred. Lord Wilberforce – the
default here consisted not in adding material quantity to the
accumulation of injurious particles but by a failure to take a
step which materially increased the risk

- The Fairchild Rule: summary

o In exceptional, limited circumstances (see below), where the nature
of the injury is such that it cannot be proved which of several
defendants caused it, if the claimant can prove that the defendant
has materially increased the risk of injury or loss, that is sufficient
to satisfy the requirements of causation.
o Problem: Once you make an exception for one litigant,
everyone wants one. Must make clear the criteria for
exception – floodgate

- Barker v Corus
o Similar facts -> C’s husband had been exposed to asbestos by the
British Steel during periods of self-employment.
o In Fairchild exposure was tortious -> in this case, some of the
exposure was C’s own fault
o Does Fairchild apply? We should modify the extent of liability
-> D should be only liable for the extent of the exposure he caused
-> the extent of contribution to the risk of harm
o Result: The claimant was entitled to recover: The Fairchild
exception could operate even though not all the potential causes of
damage were tortious, and a non-tortious source of risk did not
have to have been created by someone who was also a tortfeasor,
o BUT damages were assessed by reference to the share of risk
attributable to the breaches of duty by the defendants
o Majority:
 [31] In Fairchild the majority held that ‘the creation of a
material risk of mesothelioma was sufficient for liability’.
 [43] ‘In my opinion, the attribution of liability according to
the relative degree of contribution to the chance of the
disease being contracted would smooth the roughness of the
justice which a rule of joint and several liability creates’
 [43] ‘The justification for the joint and several liability rule
is that if you caused harm, there is no reason why your
liability should be reduced because someone else also
caused the same harm.
 But when liability is exceptionally imposed because you may
have caused harm, the same considerations do not apply and
fairness suggests that if more than one person may have been
responsible, liability should be divided according to the
probability that one or other caused the harm.’
o Minority
 Not actionable unless you caused the actual disease – not
the mere risk of it
 Fairchild – exception for establishing liability for the
cancer caused
 We take in the material increase in as a means of casual test -
> you can sue for abstract risk
 It does not create a new tort where you can sue for the risk
 Whole point of Fairchild was to let the Cs recover - The
reason why you need an exception for this is because of the
causal problem, no point in allowing them to recover only
20% of damages
o Parliamentary debate on the Barker decision: added section 3 to
address the Barker situation
 What it does is - reverses Barker as it applies its facts
 S3 Compensation act 2006
 • S3(1) This section applies where—
 (a) a person (“the responsible person”) has negligently
or in breach of statutory duty caused or permitted
another person (“the victim”) to be exposed to asbestos,
 (b) the victim has contracted mesothelioma as a result
of exposure to asbestos,

o s3(2) The responsible person shall be liable—

 (a) in respect of the whole of the damage caused to the
victim by the disease (irrespective of whether the victim
was also exposed to asbestos—
• (i) other than by the responsible person,
whether or not in circumstances in which
another person has liability in tort, or
• (ii) by the responsible person in circumstances in
which he has no liability in tort), and
 (b) jointly and severally with any other responsible
person.

o Basically = barker is wrong in cases concerning

asbestos and mesothelioma
o Parliament responds very quickly to Barker – but
section 3 only applies to facts in Barker

- Limits of Fairchild
o Floodgate requests -> once you create an exception everyone wants
one
o Wilsher – the case to contrast with the limits of Fairchild
 A baby developed a very serious eye condition
 Number of different possible causes. One of them was
attributable to the negligence caused by the hospital –
others could have occurred naturally – none of the causes
were same
 Held: can’t satisfy causation. Fairchild is a narrower
exception – applies to specific facts ie asbestos
 [170] ‘The claimant must prove that his injury was caused,
if not by exactly the same agency as was involved in the
defendant's wrongdoing, at least by an agency that
operated in substantially the same way.
• Held that it applies either to asbestos or things that
work the same way so that a wider range of cases can
fall under the scope of the Fairchild rule.
• Did not abandon the causation requirement in
Fairchild but extended it

- Sienkiewicz
 o Limits of Fairchild – Lord Rodger in Sienkiewicz
 [166] ‘It is important that judges should bear in mind that
the Fairchild exception itself represents what the House of
Lords considered to be the proper balance between the
interests of claimants and defendants in these cases.
Especially having regard to the harrowing nature of the
illness, judges, both at first instance and on appeal, must
resist any temptation to give the claimant's case an
additional boost by taking a lax approach to the proof of
the essential elements. That could only result in the balance
struck by the Fairchild exception being distorted.’

- A note on breach:
o Fairchild does not justify relaxing tests for other elements of
negligence
o Bear in mind: the relationship between each part of the
negligence inquiry and their links to each other.

- Exception 3;
- Loss of a Chance

o Loss of a change of avoiding a particular injury

o Courts distinguish between = personal injury and financial
interest injury cases
o Hotson v East Berkshire
 A boy fell from a tree and broke his him and was not
correctly diagnosed for a period of time. Developed a
severe condition that deformed his hip and caused
permanent disability
 When he got to the hospital there was a 75% chance that he
would develop this condition even though he was treated
correctly – the assessment of probability is based on
medical analysis
 The Claimant sued on the basis that he was deprived the
25% chance of not developing this condition
 Held: ‘In a sentence, the plaintiff was not entitled to any
damages in respect of the deformed hip because the judge
had decided that this was not caused by the admitted breach
by the defendants of their duty of care but was caused by the
separation of the left femoral epiphysis when he fell some
12 feet from a rope on which he had been swinging.’

- Leading authority: Gregg v Scott

o Gregg went to see his doctor bc he had a lump under his arm
 o Doctor negligently diagnosed it as being okay. It turned out to be
cancerous. Delay of several months for Gregg to get the
treatment
o 42% chance of him having a favourable outcome, after the
diagnosis his change fell to 25% - wanted to sue for this
o Held: must prove 51% so he falls into the unfavourable
category. The reduction in chance does not affect the balance of
probability. Claim fails. Lord Nicholls dissents – unfair and not
logical.

- Economic loss: Allied Maples v Simmons and Simmons

o Simmons & Simmons – negligent
o Held: ‘The plaintiff must prove as a matter of causation that
he has a real or substantial chance as opposed to a
speculative one. If he succeeds in doing so, the evaluation of the
chance is part of the assessment of the quantum of damage, the
range lying somewhere between something that just qualifies as
real or substantial on the one hand and near certainty on the
other.’
o Real or substantial chance
o You cannot quantify the loss of a change the same as personal injury –
you can quantify economic loss

- Exception 4
- Disclosure of risk

- Chester v Afshar
o Took all reasonable care as to the carrying out of the operation – not
negligent. However, the operation had a small probability of
developing severe condition regardless how the operation was
carried out with all due care.
o The claimant suffered this injury
o Claim was that the doctor was negligent that he did not warn the
claimant of the risk.
o Causation link – the claimant did not say that she wouldn’t have
had the operation, but she said she wouldn’t have had it on that
particular day
o Held: in favour of Chester. We must regard causation as satisfied
in such circumstances: treated as proved her case. It was the
product of the very risk that she should have been warned about
when she gave her consent – not fully informed consent. Her right
of autonomy and dignity can and ought to be vindicated by a
narrow and modest departure from traditional causation principles.’

o [87] ‘The function of the law is to enable rights to be vindicated

and to provide remedies when duties have been breached.
Unless this is done the duty is a hollow one,
 stripped of all practical force and devoid of all content. It will have
lost its ability to protect the patient and thus to fulfil the only
purpose which brought it into existence.’ – very likely that she
wouldn’t have suffered if she did not have the operation on that
specific day

- In each scenario: What is the situation? What test applies?

LEGAL CAUSATION

- Legally recognisable cause – to impose liability

- Must work out legal causation combined with factual causation
- Not every factual cause is a legally relevant cause

- Supervening act = Overcoming act -> another factor arises after the
damage has occurred
- Intervening act = Coming in between -> another factor arises in
between D’s breach and C’s damage – breaks the chain of causation

- Supervening Acts:

- Baker v Willoughby
o C hit by a car and he was left with injuries in this left leg. Sued the
defendant driver
o During the trial – he got shot in his left leg in an armed
robbery. His leg was amputated due to this shooting
o D argued that he should not be held liable for the harm he
caused due to amputation
o Held: D’s claim failed – manifest injustice if succeeded
o ‘The supervening event has not made the plaintiff less lame nor
less disabled nor less deprived of amenities. It has not shortened
the period over which he will be suffering. It has made him more
lame, more disabled, more deprived of amenities. He should not
have less damages through being worse off than might have
been expected.’

- Gray v Thames Trains

o Survived the accident but suffered PTSD
o Sued D on the basis of PTSD and the fact that this affected his
ability to work – loss of earning
o He was driving one day, and a pedestrian was walking on the road.
He got annoyed and stabbed the pedestrian to death (during this
PTSD) – convicted with manslaughter
o Held: diminished responsibility but still guilty – inconsistent
with policy to have allowed D’s argument

- Intervening acts – novus actus interveniens

- Empress Car Co v National Rivers Authority
- Intervention of nature
o Carslogie Steamship Co
 C’s ship suffered damage from a collision at sea with D’s ship
 On its way to the court – caught in a storm
 Repairs were done for both event repairs – took 30 days where
it should have been 10 days.
 Sued for loss of profits for the period of repair – can’t use
ship
 Storm broke the chain of causation
 Held: in favour of D – chain was broken. Did not lose
profits as a result of D’s breach

- Novus actus interveniens

- Rubenstein v HSBC
o Concerns the global financial crisis
o Rubenstein was trying to buy a house but couldn’t find the right
property
o So, he asked HSBC to keep his money in the bank so that he can
get interest and to keep the money safe -> he did not want any
risk
o HSBC negligently advised him to put his money in a fund
which did expose the money to risk of loss -> affected by
global financial crisis
o HSBC argued that the global financial crisis was a very dramatic
event that it should be a novus actus and thus break the chain of
causation
o CA rejected: legal responsibility for C’s losses is what we’re
concerned with
 ‘It was the bank’s duty to protect Mr Rubenstein from
exposure to market forces when he made clear that he
wanted an investment which was without any risk (and
when the bank told him that his investment was the same as
a cash deposit).
 Chain of causation not broken

- Intervention of 3rd party

- Lamb v Camden LBC
o Council was carrying out repairs. The contractors negligently
caused the water mane to burst -> undermined the foundations of
C’s house cause crack in on the floors and walls
o House left empty for repairs -> squatters moved and caused
extensive damage to the property
o C sues the Camden Council claiming but for their negligent
road works this wouldn’t have happened
o Can we blame the council for the squatters’ action?
o Claim failed: not up to the council to protect the dangerous act of
the squatters -> chain of causation broken
 o Reasonable man test

- Intervention of the Claimant

- McKew v Holland
o C was injured at work -> suffered a leg injury
o Flight of stairs had no handrail – jumped down when he felt like
he was about to fall to avoid injuring his daughter. Sued
employer for fractured ankle
o Concluded: Not negligent to jump when he felt his legs was going
-> natural reaction to avoid injury to his daughter, but it was
negligent on his behalf to go down the stairs with his daughter in
the first place.
 ‘If a man is injured in such a way that his leg may give
way at any moment he must act reasonably and carefully…
- Reeves v Commissioner of Police
o Character of the claimant must be examined to see if chain of
causation is broken by their negligent conduct
o Claimant killed himself – he was of known suicide risk while at
custody by the police and he succeeded to kill himself -> police
owed him a particular duty of care bc it was widely known that he
was at suicide risk
o Police argued -> deliberate act of killing yourself should
amount to a break in the chain of causation
o Court rejects the argument -> the whole point of the duty of
care was to prevent the suicide – it was a breach
 Where such a duty is specifically directed at the prevention
of the occurrence of a certain event I cannot see how it can
be said that the occurrence of that event amounts to an
independent act breaking the chain of causation from the
breach of duty, even although it may be unusual for one
person to come under a duty to prevent another person
deliberately inflicting harm on himself.’
o Can’t rely on an intentional act for breaking the chain of
causation

- Remoteness
- Extent of damages you’re responsible for
- The reasonable foreseeability test; Key authority:
o The Wagon Mound
 Judged by the standard of the reasonable man that he ought
to have foreseen them
 ‘[Their Lordships] have been concerned primarily to
displace the proposition that unforeseeability is irrelevant if
damage is “direct.” In doing so they have inevitably insisted
that the essential factor in determining liability is whether
the damage is of such a
 kind as the reasonable man should have foreseen.’ ->
objective test, subjective foreseeability is irrelevant

- The thin skull rule

- Take your victim as you find him
o Smith v Leech Brian
 Argued that it was not reasonably foreseeable that a burn
on your lip will result in cancer
 Held: bc of the claimant’s characteristics the extent of
damage is greater and we still ask the remoteness question –
damage was reasonably foreseeable

- Policy limitations
- Leading authority -> SAAMCO
o People who negligently valued properties too high
o Finance organisations, C, let money on the basis of the value of
these properties. Borrowers defaulted and sold the properties for
less than their purchase value -> as a result of the negligent
evaluation the claimants have lost out
o General fall in the property market – unrelated to the
negligent evaluation
o C argued that he lost a lot of money due to negligence
combined with the fall in property values in the market
o Court held that you can’t show all the losses – must show the loss
related to the negligence of the defendant -> not every loss is the
responsibility of the defendant

- BPE Solicitors v Hughes-Holland

o Negligently confirmed mistake in transaction
o You can’t blame D for all of your losses, you can only blame D for
the losses that are attributable to the negligent information

- Calvert v William Hill

o C addicted to gambling -> asked William Hill to prevent him from
gambling with them for any further (they have schemes that don’t
let you gamble anymore)
o He was allowed to gamble
o Suffered losses due to breach of duty of care towards him but
claim failed bc he couldn’t show that wouldn’t have gambled
elsewhere -> he would have suffered these losses anyway
o Scope of duty only extended to him gambling with them ->
would have gambled with someone else

Pure economic loss

- Why does pure economic loss matter?
o A person’s negligence would not cause other people physical
injury or property damage -> but can cause them to suffer
economic loss

- General rule
- Spartan Steel
o Steelworks company
o Contractors negligently cut the power supply to the company
-> as a result company closed down. Sued the contractors bc they
suffered economic loss
o As a result of the power being cut, they argued:
 They lost the metal already in the furnace at the time
 Lost the profit on the melts in progress when the power was
cut
 Lost the profit on four further melts which were not
possible during the power cut -> they couldn’t make
profits
o Court held: can recover damages for the first 2 points but not for
the last point bc that is pure economic loss -> would not be able to
make profit anyway
o First 2 matters = property damage which is recoverable on the
basis of negligence
o But 3 = using the factory during the power cut is beyond the
responsibility of the defendant
o Pure economic loss cannot be recovered – not
contingent

- Exam technique tip:

o Precision is important
o Spartan Steel did not create the definition -> it is only an
example of the general rule
o This case was only an illustration, not precisely the starting
point of the concept -> not a foundational authority

- Boundary between property damage and pure economic loss

- Donoghue v Stevenson
o Established the idea of duty of care
o Neighbour principle
o Negligent production of ginger beer with the snail in it

- Murphy v Brentwood
o Council approved the plans based on negligently carried out
engineer inspections. House built on negligent foundations
o Claimant sold it for much less than the market value instead of
carrying out repairs
 o The loss purely economic even though it is related to the
house -> must be consequential to property damage

- Target v Torfaen Borough Council

o C fell down the stairs bc there was no handrail
o Sued that the council did not provide it even though he
complained
o Council’s argument was rejected by the court
o Once you know the danger, it can be fixed -> he complained so
the Council knew, and he had no other way of entering his house
o The council could have done something
o ‘But knowledge of the existence of a danger does not always
enable a person to avoid the danger

- Defective Premises Act 1972

o S 1 (1) A person taking on work for or in connection with the
provision of a dwelling (whether the dwelling is provided by the
erection or by the conversion or enlargement of a building) owes
a duty –
o (a) if the dwelling is provided to the order of any person, to
that person;
o and (b) without prejudice to paragraph (a) above, to every person
who acquires an interest (whether legal or equitable) in the
dwelling;
o to see that the work which he takes on is done in a
workmanlike or, as the case may be, professional manner, with
proper materials and so that as regards that work the dwelling
will be fit for habitation when completed. ...
o evidence that sometimes the parliament can and will decide
on this area

Assumption of responsibility
- Hedley Byrne
o Company wanted to play some adverts and claimants agreed to
help to place these adverts but wanted to check the
creditworthiness of the company before the dealing -> asked the
bank but the bank negligently said they were good even though
they were in poor condition
o But the bank before giving this decision with the notice that they
should not be held liable -> disclaimer given
o The company defaulted, and they suffered econ loss
o ‘A reasonable man, knowing that he was being trusted or that his
skill and judgment were being relied on, would, I think, have three
courses open to him. He could keep silent or decline to give the
information or advice sought: or he could give an answer with a
clear qualification that he accepted no responsibility for it or that it
was given without that reflection
 or inquiry which a careful answer would require: or he could simply
answer without any such qualification…’
o : ‘… If he chooses to adopt the last course he must, I think, be held
to have accepted some responsibility for his answer being given
carefully, or to have accepted a relationship with the inquirer which
requires him to exercise such care as the

circumstances require.’

- Banca Nazionale del Lavoro v Playboy Club London

o C’s casino -> customer gambling and they check creditworthiness
of the customers through a special company to ask references for
the playboy club to the banks
o They asked about a customer and the bank negligently said that
he was good for the money. The customer then losses and cannot
pay
o The playboy club sue the bank, but the bank said that they did
not give advice to them but to the other company
o They did not know they the other company was acting on
behalf of the club and that they would rely on that advice
 o Liability depends on assumption of responsibility -> as far as
the bank was concerned, the playboy club was not the part of the
equitation, so they did not voluntarily assume responsibility
o You cannot assume responsibility for a party you don’t know
that exists – too broad of a scope for liability
o ‘[The Bank] had no reason to suppose that Burlington was
acting for someone else, and they knew nothing of the Playboy
Club. [Thus] it is plain that they did not voluntarily assume any
responsibility to the Club.

- Express assumption of responsibility

- Calvert v William Hill
o Addicted gambler
o Agreed to prevent him from gambling
o Played and lost
o Is a duty of care owed?
o Held: yes bc they did assume a responsibility -> the claim failed
based on causation but there was still a responsibility issue
o [47] ‘The scope of their duty was to help him to control his
gambling. The harm from which their duty was intended to
help protect him was gambling; it was to go some way to
protect him from his gambling propensity. It follows, in our
judgment, that the quantification of his loss for breach of a
duty of this scope cannot as a matter of law ignore the other
probable consequences of his gambling propensity.
o Assumption of responsibility = Control mechanism

Omissions – Duty to Rescue?

- Special duty of care scenarios

o In UK law = no duty to rescue
o Omissions and 3rd parties are interlinked

- The general rule

- No duty of care for ‘pure’ or ‘mere’ omissions i.e no duty to
rescue
- Home Office v Dorset Yacht Co Ltd -> Lord Diplock = not
legal liability for omissions
- Stovin v Wise -> for liability for negligence you must have causation
– so in case of omissions since you don’t have an act, there is no
causation thus no liability.

- Stovin v Wise
o Liability of a highway authority who failed to remove an earth
bank which hindered the driver’s visibility
 o Car and motorbike crash as the result of poor visibility of oncoming
traffic due to earth bank that Norfolk County Council had indicated
required removal, but had neglected to remove
o Ms Wise wants to get compensation from the authority who has
been negligent
o Held: no duty of care on the part of the highways authority
because not removing the earth bank is an omission -> real
responsibility was on the part of the driver

- Michael v Chief Constable of South Wales

o Ms Michael called 911 to report that her ex-boyfriend came to her
house, found her with her new boyfriend, dragged the new bf into
his car and told her when he comes back he will kill her.
o She reported it – her call was misdirected to the wrong police
station
o Call was not properly recorded -> failed to record the death
threat
o She did not receive an immediate call back from the
appropriate police service due to the failure to record the
death threat
o She calls again to report the urgency but by the time police
comes, she was killed
o Held: no duty of care on behalf of the police -> the real fault lies
with the boyfriend

The rationale for no duty to rescue rule

- Values of British society and the legal system
o Why burden me?
o Why infringe my autonomy by imposing a law on me to rescue
others?
o Why pick on me?
o Etc

- Problems with the rule

o Arbitrary distinction between an act and omissions
o ‘Wrongs should be remedied’
o Highly individualistic, as compared to eg feminist or
communitarian approaches.
o Robinson v West Yorkshire Chief Constable – Lord Reed

Exceptions – where a duty of care for omissions is established

1. Creation of the risk
2. Assumption of responsibility to protect C from danger
3. Special relationship
4. Occupier’s liability

- Exception 1
- Creation of the risk
o Yetkin v London Borough of Newham
 Duty of care found = the council decided that the plants
would make the roads nicer. They failed to maintain the
plants – wildly grown and disturbs visibility of pedestrians.
Yetkin crosses the road and crashes into a driver coming
straight ahead. The driver is not liable.
 The flower beds that the council planted created a risk and
thus gave rise to a duty of care – they need to take care of
the plants to avoid the creation of risk
 Difference with Sumner v Colborne = here, there is a
creation

- Exception 2
- Assumption of responsibility
- If the defendant has done something
- Kent v Griffiths
o Asthma attack
o Ambulance called, and they don’t come in time
o 40 mins late -> Mrs Kent had a dreadful asthma attack and
blood did not go to her brain
o Her husband could have driven to the hospital
o But he relied on the promise of the ambulance being on their way
o Assumption of care -> relationship of proximity

- Capital Counties plc v Hampshire County Council

o Joint cases
o Significant case here – where the fire service came to the scene
and turned off the sprinklers and undertook another way to handle
fire. Held that there was a duty of care bc they did something
additionally stupid
o Creation of risk

- Barrett v Ministry of Defence

o Birthday celebrations
o Duty free night in Norway – cheap alcohol
o Took advantage of this and got drunk
o Found to be drunk -> officer takes him to his bunk, on the 3rd
check he was found dead choking on his own vomit.
o Held: duty of care -> responsibility assumed for him

- Reeves v Commissioner of Police for the Met

o Suicidal
o Put in prison and was supposed to be watched
o Held: duty of care bc they were supposed to prevent him from
committing suicide
- Exception 3
- Special relationship
- Parent/child, teacher/pupil, employer/employee, doctor/patient
• Dorset Yacht
• Savage v South Essex Partnership NHS Foundation Trust
• Duty of an hospital to take care of an escaping patient
• Committed suicide
• Held: hospital responsible to take care of the patient

- Exception 4
- Occupier owes positive duty to protect visitors

• Occupiers Liability Act 1957

• Occupiers Liability Act 1984
• Goldman v Hargrave
• Lightning hits his garden and fire starts
• Omission to stop the fire = duty of care

- Liability of 3rd Parties

- The rule = no duty of care for acts of 3rd parties

- Stovin v Wise
o Lord Hoffman -> it is one thing for the law to say that a person who
undertakes some activity shall take reasonable care not to cause
damage to others. It is another thing for the law to require that a
person who is doing nothing in particular shall take steps to prevent
another from suffering harm from the acts of third parties. The law
does not impose a duty to prevent a person from being harmed by
the criminal act of a third party based simply upon foreseeability

- Michael v Chief Constable of South Wales Police

o English law does not as a general rule impose liability on a
defendant for injury or damage to the person or property of a
claimant (C) caused by the conduct of a third party (T).

- Robinson v West Yorkshire chief constable

o Liability is generally imposed for causing harm rather than for
failing to prevent harm caused by other people

- Mitchell v Glasgow CC
o M killed by violent neighbour D, whom he had been in a long
running dispute with, after council notified D that he was to be
evicted following numerous complaints about his behaviour.
o Held = no duty of council to offer protection
 o Policy reasons given to deal with ideas of justice that the claimants
might expect from the court -> giving context to the very strict rules
applied

- Topps v London County Bus

o LCB left an unlocked minibus in a layby overnight -> driver left the
bus for a shift change
o Short-staffed so the other driver was very late
o Someone informs the company about the stable bus
o Someone breaks in the bus for a joy ride, he was drunk, and he
run over a lady cyclist
o Thief could not be found
o Held = no duty of care for the bus company

- Additional illustrative cases

- Hill v CC west Yorkshire police
o Mother of the final victim of the Yorkshire Ripper on grounds
that the police had been negligent in their detection of Peter
Sutcliffe.
o Held = duty of care

- Osman v Ferguson
o Teacher formed an unhealthy attachment to a student.
Teacher eventually followed student and father home,
shooting both and killing the father.
o Held = no duty of care

- Special Cases – where a duty of care can be found

- Dorset Yacht v Home Office
o Prison officers failed to adequately supervise 10 borstal boys with
criminal intentions (juvenile delinquents) in their custody.
o They were looked after by 3 home officers
o The boys escaped and commandeered a boat, destroying it in the
process.
o Held = duty of care established -> they were supposed be under
the guard of the home office
o Denning – on whom should the responsibility fall upon?
 The yacht owners or the home office?
 Denning said -> before this upon the innocent victim,
but in this case there is a duty of care on behalf of the
home office
 Lord Atkin – the officers ought to have foreseen the
consequence of their failure to supervise the boys

- Proximity
o Degree of control that D has over the third party
 Dorset Yacht v HO
  Hill v CC of West Yorkshire
 Michael v South Wales Police

o Capacity to warn C
 Osman v Ferguson
 Palmer v Tees HA
o Knowledge of 3rd party’s propensity
 General knowledge:
• Dorset Yacht

 Specific knowledge:
• Osman v Ferguson

 No knowledge:
• Hill

o Temporal and geographic proximity

o Relational proximity
 Mitchell v Glasgow CC

o Knowledge of C’s identity

 Knowledge of C is not sufficient:
• Michael
• Mitchell

 Nor is it necessary:
• Dorset Yacht

o Identifiable class at special risk

 Dorset Yacht v HO

- Policy considerations
o Practical problems
o Resource diversion
o Conflict of duties
o Size of the class
o Other means of compensation
o Implications for other sectors

Summary:
• No duty of care for pure omissions
• No duty of care for actions of third parties
Unless…
• Fit within an established exception or it is possible to establish a
novel duty of care on the basis of a Caparo-type analysis
Duty of Care: Public Authorities

- What is a public authority?

o Established by statutory instrument
o Statutory duties
o Statutory powers
o The public authority may be joined to the action by the private
party originally sued by the C to get a contribution or an
indemnity -> Stovin v Wise

- Direct v Vicarious Liability

o Direct liability -> can’t make additional claims for damages
o Vicarious liability -> Being liable for someone else’s wrong.
o Two challenges:
 To find a public authority directly liable – decisions are
likely to be non-justiciable -> Carty v Croydon LBC
 Since the public authority can only act through its
employee or agents and if they are negligent, vicarious
liability will arise, it may rarely be necessary to invoke a
claim for direct liability -> Phelps v Hillingdon LBC

- Crystallising cases – leading decisions

- Robinson v CC of West Yorkshire Police
o Liability for direct acts of public authorities is no different from
private
o Based on constitutional law principles – Entick v Carrington
-> public authorities should be subject to the same liability as private
individuals

- Michael v CC of South Wales Police

o No liability for omissions by public authorities – same as
private individuals

- Threshold Requirements
- Justiciability
o Is this the type of issue that the court should decide on?
o East Suffolk Principle
 A duty of care cannot arise automatically out of a
statutory duty or power that the public authority
exercised, or failed to exercise, for C’s benefit
 Statutory duty still doesn’t give rise to a private law
duty of care -> must establish a separate duty of care
 Facts: period of exceptionally high tides. Breaches to the sea
wall were not repaired efficiently and the flooding continued
for several months, causing significant damage to C’s pasture
land.
 Held: Statutory duty but private no duty of care
 o X v Bedfordshire CC
 Lord Browne-Wilkinson: ‘in order to find a cause of action
flowing from the careless exercise of statutory powers or
duties, [C] has to show that the circumstances are such
as to raise a duty of care at common law. The mere
assertion of the careless exercise of a statutory power
or duty is not sufficient.’

- Ultra Vires Test

- Integration of public and private law:
- Dorset Yacht: attempt to introduce an ultra vires test ‘there must come a
stage when the discretion is exercised so carelessly or unreasonably that
there has been no real exercise of the discretion which Parliament has
conferred. The person purporting to exercise his discretion has acted in
abuse or excess of his power. Parliament cannot be supposed to have
granted immunity to persons who do that.’ as per Lord Reid
o Suggests a 2 stage test to link the public law duty of care to the
private law duty of care
- X (Minors) v Bedfordshire CC: it was neither helpful nor necessary to
introduce public law concepts to determine whether a statutory power
could base a duty of care as per Lord Browne- Wilkinson

- Pure Omissions
o Very unlikely to be successful
o Although some of the arguments justifying the no liability for
omissions rule they don’t apply to public authorities e.g. ‘why pick
on me’ the general rule applies.
o Court unwilling to create exceptions:
o Stovin v Wise; Gorringe
o Michael v CC of South Wales Police

- Summary
- Establishing a duty of care: limited exceptions to omissions
principle

- A duty of care is owed where

o Omission made the situation worse
 Public authority created a new danger or positively
increased the danger:
 Capital & Counties PLC v Hampshire CC ->
firefighters turn of the sprinklers
 Yetkin v London Borough of Newham -> failure to
take care of the plants which blocked visibility on the
road
 o Assumption of responsibility
 Assumption of responsibility generates a private law
obligation to exercise reasonable care.
 Gorringe v Calderdale MBC as per Lords Hoffmann and
Brown
o A statutory duty is ‘simply irrelevant to whether a common law
duty is owed.’ A common law duty is created ‘if at all, by what the
public body has actually done: whether it assumed responsibilities
or done acts which, if they had been done by a private body, would
have given rise to a duty of care.’ - Lord Hoffmann

- Emergency services
o Kent v Griffiths – ambulance failed to turn up on time ->
duty of care
o Michael – failure of the police to direct her call to the right
police station -> no duty of care

- Equality principle
o At common law, public authorities are generally subject to the
same liability in tort as private individuals and bodies – Lord Reed
in Robinson
o Public authority owes a duty of care for positive acts
o Omission principle applies
o Statutory duty/power does not automatically equal to a
positive act -> no automatic duty of care
o Policy considerations apply to novelty situations only

- Policy considerations
o Greater public good outweighs individual hardship
o Resource diversion
o Duty would result with defensive practices ie owing a duty of
care would diver the authorities from carrying out their original
task-> courts like this
o Safeguarding from legal proceedings

- Finding duty of care: neglected and abused children

o Cases where the statutory duties where failed or carried out
negligently.
o X v Bedfordshire CC
 Five children from the same family had been the victim of
appalling maltreatment and neglect.
 It was brought to the attention of the council by various
professionals (doctors, teachers, neighbours etc) but they did
not put the children on the Child Protection Register.
 Took 4.5 years to do something about this
 Held: no duty of care
- M v Newham LBC
o Failure to properly assess child abuse by a local authority
psychiatrist led to the identification of the wrong perpetrator
and the wrongful the separation of mother and child
o Actual abuser was a cousin with the same name of the
mother’s boyfriend
o The authorities failed to carry out a proper investigation – did not
let the mother and child to communicate to fix the
miscommunication
o Held: No duty of care -> to have a duty of care would conflict
with policy reasons

- D v East Berkshire
o Suffers a pigmentation disease
o Father takes the daughter to the doctor. The doctor does not
diagnose the illness but only treat the bruises
o Swimming teacher sees the bruises and reports this to the
council – child separated from her family
o She is then correctly diagnosed but at this point she suffered a lot of
psychiatric injuries from the separation.
o Held: duty of care established
o Reasoning: no risk of floodgates since it is a very serious breach,
fear of sleeper actions not relevant, wrongs should be remedies, no
other redress for compensation

- The role of Human Rights

- Public Authorities & ECHR

- Article 3: Freedom from torture

o Z v UK: awarded damages £320,000

- Article 8: Private life

o TP and KM v UK (video tape)
o RK and AK v UK (brittle bones)
o Mere errors in judgement do not give rise to article 8

- Article 6: Fair trial

o Osman v UK: approach of UK courts amounted to a blanket
immunity
 No duty of care established so he goes to the ECHR
 Blanket of immunity

o Barrett v Enfield: is not a blanket immunity

o Z v UK: on the basis of clarification from HL, ECHR ‘ate its
words’
Psychiatric illness

Pure vs consequential injury

- Consequential psychiatric injury is ‘commonplace in personal injury
cases’ whereas pure psychiatric injury cases ‘unusual difficulty for the
court’
o Pure psychiatric = no physical harm

- Psychiatric injury cannot be consequential on property damage

o Attia v British Gas; Yearworth v North Bristol NHS Trust
 Possible to make a claim that was associated with
property damage
 But you need to prove more than psychiatric damage
o Can be consequential on physical harm but NOT on property
harm

- Pre-requisites for claiming psychiatric injury

1. Proof of a recognised psychiatric injury – limitation on claims
o Medical test required
o De minimis threshold

2. Must identify type of claimant eg primary victim, secondary victim,

stressed at work etc.
o Type of claimant changes the rules that are applicable to you
o Not all claimants necessarily fit in the classifications

- Types of claimant
o Primary victim
o Secondary victim
o Fear of the future
o Stress at work
o Residual category

- The history of psychiatric harm in tort

- Hillsborough disaster
o Human crash at a football match. Crush occurred at the stand
allocated to the Liverpool fans
o The pens were opened to stop overcrowding outside the
stadium, causing overcrowding and crushing inside the
stadium
o Fault of the police – negligence

o Alcock v Chief Constable of South Yorkshire [1992] ->

distinguished between claimants

- Pre Alcock-requirements
 o Reasonable fortitude of customary phlegm
o Sudden horrifying event
o Do not necessarily apply to all victims

- Primary victims
o Alcock ‘involved either mediate or immediately, as a
participant’ – there in the moment or arriving to the moment
very shortly
o Page v Smith ‘zone of danger’ – you yourself could have
suffered a physical harm but luckily you didn’t
o White exposed to danger and risk of physical injury
o W v Essex ’an unwilling participant in the event’
o Rothwell ‘involvement in an accident…’

- Included claimants
- Zone of danger
o Page v Smith
 Psychiatric injury triggered by a car accident
 But not claimable bc he wasn’t crushed

o McLoughlin v Jones
 Solicitor failed to properly defend claimant
 Incorrectly accused of threatening his tenants – solicitor failed
to find good character references
 Court held he was in the zone of their incompetence
 Deprivation of liberty = physical harm – Lady Hale

- Guilt ridden
o Merthyr Tydfil County BC v C
 Child abuse
 Neighbour abusing the child
 Considered a primary victim

o Hunter v British Coal Corp

 Fire hydrant exploded and colleague died
 Claimed for psychiatric injury but claim failed bc he
wasn’t harmed or wasn’t close to the danger

- Excluded claimants
- Rescuers
o White v CC of South Yorkshire Police
 Policy reason why rescuers don’t get to make a claim

- Fear of the future

o CJD Litigation
o Pleural Plaques Litigation
- Duty of care
 o Reasonable foreseeability
o Proximity
o Policy
 CJD Litigation
 White CC of South Yorkshire

- Other Features
o No need to show reasonable fortitude
 Page v Smith
o No requirement of shock

- Secondary victims
- Cases where you are not in the zone of danger, but you are
allowed to make a claim
- Alcock requirement
o A close tie of love and affection with the injured person
o Witness the event with own unaided sense
o Proximity to the immediate aftermath

- Pre-alcock requirements do apply to secondary victims

o Reasonable fortitude
o Sudden and horrifying event

- Who do you have a close and loving relationship with?

o Parent-child relationship = yes
o Spouse = yes
o Siblings = no
o Pets = unlikely

- Own unaided senses

- Hillsborough disaster
o Relatives watched it on tv but were not present in the zone of
danger
o Still saw a traumatic event related to their relatives
o BBC license agreement = cannot broadcast overly sensitive and
traumatic events
o It was held that this disaster wasn’t sufficiently traumatic bc it
was broadcasted

- Immediate aftermath of the event

o Alcock -> either have to be present or very close to witness the
aftermath
o O’Brian -> woman’s all family was in a car accident and she
rushed to the hospital to see them -> 2 hours after the accident
was on the margin of what is allowable. Arbitrary dividing lines
made by the court about the after
- ‘Fear of the future’ claimants
o No temporal immediacy to the shock so not in the zone of
danger therefore not a primary victim
o Pleural Plaques Litigation -> exposed to asbestos so the fear of
harm should be enough in itself for mental harm. But court
rejected this as there was no physical harm
o CJD Litigation -> 2 group litigation orders

- Stressed at work
o Where employees are overworked to the point of mental
illness a claim is permitted
o Johnstone v Bloomsbury HA
 Junior doctor at UCL overworked for many hours had
continuous breakdowns. The court held that anyone would in
such circumstances so allowed to make a claim against the
hospital

- Duty arises where:

o Particular employee was vulnerable to a stress induced illness
o It was objectively foreseeable, to a reasonable employer, that
psychiatric injury could result from a particular task

o Melville v Home Office compared to -> Pratley v Surrey CC

 He had to cut down dead bodies in prison
 Held: terrible conditions so there must be a duty of care

o Pratley
 Hid her illness keeping a stiff upper lip
 Held: bc she hid it the employer couldn’t be liable

- Claimants that don’t fit

o C was not in the zone of danger, but psychiatric harm was
reasonably foreseeable + assumption of responsibility
 AB v Tameside and Glossop HA
• Care worker who tested for HIV positive
• Exposure to HIV might mean that they might be
positive – told patients on the phone
• Held: telling on the phone not negligent

o Butchart v Home Office

 Prisoner in cell – identified as a suicide risk
 Was in cell with another suicide risk prisoner and he
committed suicide
 Suffered harm from witnessing this
 Held: duty of care bc the police were responsible for the
prisoners
 o Where there is no immediate victim, C is treated as a primary
victim
 AB v Leeds Teaching Hops NHS Trust
• Harvested the organs of dead babies under their care
without telling the family members
• Exposed – family members suffered trauma
• 2 of the parents were held to be insensible so they
could not make a claim
• One lady was described as emotionally fragile so
allowed to make a claim

 Farrell v Avon HA
• Rushes to the hospital to meet his new baby
• Informed that his baby died and was handed the dead
baby to say goodbye. But later he was informed that
his baby wasn’t that one and it was alive
• Sued for psychiatric harm
• Vulnerable to harm

- Establishing the duty: Caparo test

o Reasonable foreseeability of psychiatric injury
o Proximity
o No requirement of reasonable fortitude
o Unclear whether shock is required

- Unclear if shock is necessary or taken into consideration

- Tests for identifying victims:

o Primary victims
 Physical or psychiatric injury foreseeable
 No Alcock requirements
 No requirement of shock - unless a Page v Smith type victim
 Thin skull rule

o Secondary victims
 Psychiatric injury foreseeable
 Alcock requirements
 Must show sudden shock
 Reasonable fortitude

Reforms
- Doctrinal clarity vs sympathy
- Primary victim
o Suggested that the test is too wide
o Reasonable foreseeability
  Not just reasonable foreseeability for the particular C but
whether injury to a class of persons to who C was one, was
foreseeable
 Smith v Co-op Group Ltd

- Secondary victims: proposed reforms

o Close tie of love and affection: updated list of presumed
relationships needed eg to include civil partnership
o Immediate aftermath: blunt instrument
o Direct perception: arbitrary and artificial distinctions
o Normal fortitude ‘stalks the current law’
o Shock: blunt and crude control mechanism

Defences: General

Contributory negligence
- Contributory Negligence involves the claimant being partly at fault for
the harm which they have suffered.
- Prior to 1945, contributory negligence was a complete defence.
o The claim would fail completely even if the defendant was
95% guilty
- It is not a complete defence anymore.

Law reform (contributory negligence) Act 1945 s1

- 1(1) Where any person suffers damage as the result partly of his own
fault and partly of the fault of any other person or persons, a claim in
respect of that damage shall not be defeated by reason of the fault of the
person suffering the damage, but the damages recoverable in respect
thereof shall be reduced to such extent as the court thinks just and
equitable having regard to the claimant's share in the responsibility for
the damage:
- Provided that—
(a) this subsection shall not operate to defeat any defence
arising under a contract;
(b) where any contract or enactment providing for the limitation of
liability is applicable to the claim, the amount of damages
recoverable by the claimant by virtue of this subsection shall not
exceed the maximum limit so applicable.
- (2) Where damages are recoverable by any person by virtue of the
foregoing subsection subject to such reduction as is therein mentioned,
the court shall find and record the total damages which would have been
recoverable if the claimant had not been at fault…
- Balancing exercise -> court apportions responsibility. This does not mean
that even if the defendant is a little bit guilty, that you have a complete
defence
- You need to know the overall value of the claim – then you order a
proportionate amount to match to the loss suffered by the claimant
- Froom v Butcher

o The claimant suffered injury in a car accident

o He had not been wearing his seat belt because he didn’t like
wearing it and he’s seen accidents that the driver was being
trapped
o This was before it was illegal not to wear the seat belt
o He suffered more damage than he would if he was wearing the
seat belt. The accident was entirely the fault of the defendant
o But the extent of the injury is partly because of the negligent
defendant and partly because he wasn’t wearing his seat belt
o Held: Lord Denning -> ‘Negligence depends on a breach of duty,
whereas contributory negligence does not. Negligence is a man's
carelessness in breach of duty to others. Contributory negligence is
a man's carelessness in looking after his own safety. He is guilty of
contributory negligence if he ought reasonably to have foreseen
that, if he did not act as a reasonable prudent man, he might be hurt
himself.’
o nothing to do with multiple causation or the conventional structure
of the tort of negligence (duty, breach etc) -> this is entirely
defence based
o Held that damages had to be reduced here even though the accident
was the defendant’s fault. The statute deals with the damage not
the accident.
o Denning -> ‘The accident is caused by the bad driving. The damage
(what the statute talks about) is caused in part by the bad driving of
the defendant, and in part by the failure of the plaintiff to wear a
seat belt. If the plaintiff was to blame in not wearing a seat belt, the
damage is in part the result of his own fault. He must bear some
share in the responsibility for the damage: and his damages fall to
be reduced to such extent as the court thinks just and equitable.’
o Not who caused the accident but who is in fault for causing the
damage.

- Corr v IBC
o Mr Corr was injured at an accident at work which left him
disfigured and this left him clinically depressed. As a result of his
depression he killed himself
o Does the claimant’s willing act break the chain of causation?
o Held: no because it was because of the employer’s fault for causing
depression. Causation claim failed. Then the employer argued that
he was partly at fault for his death by his decision to jumping
o Majority held: damages should not be reduced on the basis of
contributory negligence
 - St George v Home Office
o Claimant was addicted to drugs and alcohol since the age of 16
o Sentenced to prison
o When he arrives, he tells them about his addiction and he also tell
them withdrawal causes him to have epileptic seizures
o He falls from his bunk during the seizure and bashes his head
o Suffers further seizures due to hitting his head and suffered very
serious brain damage
o Sued home office – home office did not take reasonable care and
placed him at the top bunk
o Home office argued he was partly at fault because it was his fault
that he had the seizure due to his addiction and that damages
should be reduced
o Court: rejects home office’s argument. Contributory negligence
requires that the claimant’s fault has contributed to the damage.
The fault must result in damage and we assess this causation
through potency

- Jackson v Murray
o A little girl at school, got off the school bus and tried to cross the
road without looking. The driver was driving fast and didn’t
adjust his speed when he saw the school bus
o The little girl suffered serious injury because of the crash
o Courts -> first instance 90%, reduced to 70% and then
Supreme Court reduced it to 50%
o No right way to calculate the percentage of fault. The
blameworthiness cannot be measured – complex judgement

Defence of ‘volenti non fit iniuria

- No wrong is done to one who consents
- No actionable injury occurs to one who is willing
- Complete defence
- If the claimant has acted so recklessly with disregard for
themselves, the claim would fail

- Morris v Murray

o Went to a few pubs to have a few pints and got drunk

o Drove to the local airfield to have a joy ride at his friend’s
plane
o Plane crashed and D (pilot) died
o C severely injured
o Breach of duty of care to your passenger to fly while drunk
o At the same time the friend was equally drunk
o Held: defence of volenti applied because he assumed the risk of
injury
 o Accepting the obvious risk of injury is a complete bar to your
defence
o “if it is evident to the passenger from the first that the driver is so
drunk that he is incapable of driving safely, the passenger must
have accepted the obvious risk of injury.” – discharged the pilot
from liability for negligence

- ICI v Shatwell

o C responsible for explosives at work

o The workmen had been told that there is a particular safety
regulation about how to place the explosives
o C and his brothers preferred to follow some other way thinking they
know better - Severe explosion
o Held: they were experienced in the field and had full knowledge,
so they were not allowed to sue their employer – they willingly
assumed the risk of injury

- Osborne v London & north western railway co

o ‘It is plain that mere knowledge may not be a conclusive defence.
There may be a perception of the existence of the danger without
comprehension of the risk: as where the workman is of imperfect
intelligence, or, though he knows the danger, remains imperfectly
informed as to its nature and extent.’
o Willingness is the key element – not knowledge of risk.

- Baker v Hopkins
o D’s firm were contractors who agreed to clean a well - 50ft
deep well
o To clean it you have to remove some water
o They were given a petrol-powered pump which gives off fumes
o If you put fumes down a confined space there are severe
health risks
o The men passed out from the fumes
o Doctor is the claimant: he ties rope around his waist and jumps
down to help – he passes out too. He argued that the employers
created this risk
o The doctor knew this was a risk and he chose to jump – he dies
after being rescued. The other 2 men also die
o Issue: defence of volenti? Have you willingly assumed the risk of
injury?
o Held: no.
 ‘If C, actuated by an impulsive desire to save life, acts
bravely and promptly and subjugates any timorous over-
concern for his own well-being or comfort, I cannot think
that it would be either rational or seemly to say that he
 freely and voluntarily agreed to incur the risks of the situation
which had been created by A's negligence.’
 Did you freely and voluntarily agree to incur the risk of
injury NOT did you knew the existence of the risk

- Reeves
o Deceased known to be at suicide risk while being in custody
o Rare duty to protect someone from suicide but this situation is one
of those
o They argued that they should have the defence of volenti –
suicide is voluntary assumption of risk of death
o Rejected this argument: volenti is a complete defence and that
they had to protect him
o Volenti is not triggered when the act is the act you had a duty to
prevent from happening

Exclusion of Liability
Unfair Contract Terms Act 1977 – applies to contracts other than
consumer contracts
- s2 Negligence liability
- (1) A person cannot by reference to any contract term or to a notice given
to persons generally or to particular persons exclude or restrict his
liability for death or personal injury resulting from negligence.
- (2) In the case of other loss or damage, a person cannot so exclude or
restrict his liability for negligence except in so far as the term or notice
satisfies the requirement of reasonableness.
- (3) Where a contract term or notice purports to exclude or
restrict liability for negligence a person’s agreement to or
awareness of it is not of itself to be taken as indicating his
voluntary acceptance of any risk.
o The mere fact that someone is aware of risk does not allow you
to rely on volenti

Consumer Rights Act 2015, s65 Bar on exclusion or restriction of

negligence liability
- (1) A trader cannot by a term of a consumer contract or by a consumer
notice exclude or restrict liability for death or personal injury resulting
from negligence.
- (2) Where a term of a consumer contract, or a consumer notice,
purports to exclude or restrict a trader's liability for negligence, a
person is not to be taken to have voluntarily accepted any risk merely
because the person agreed to or knew about the term or notice.
- (3) In this section “personal injury” includes any disease and any
impairment of physical or mental condition.

Ex turpi causa non oritur actio – Illegality defence

- No action can arise out of dodgy circumstances
- Holman v Johnson – general rationale
o ‘No court will lend its aid to a man who founds his cause of
action on an immoral or an illegal act
o Defence of illegality means that you can’t bring a claim in a
circumstance of illegality
o Key reason: stultification – making someone or something look
stupid
- Gray v Thames Trains
o Ex turpi causa is ‘a rule of law, based on public policy, which
prevents someone from obtaining compensation for the
consequences of his own criminal act.’
o PTSD case where D kills a pedestrian
o Held: Not able to recover from the moment of his act of killing
o He is criminally responsible - in private law he can place blame on
Thames trains because all of this was bc of his PTSD
-> would be inconsistent
o Lord Rodger at [77]: ‘the courts are conscious that inconsistencies
should be avoided where possible … in the present case, when
considering the claim for loss of earnings, a civil court should bear
in mind that it is desirable for the criminal and civil courts to be
consistent in the way that they regard what the claimant did …
Failure to do so would generate the sort of clash between civil and
criminal law that is apt to bring the law into disrepute.’
o The law systems must be consistent to protect the integrity of the
justice system -> ‘The law cannot at one and the same time
incarcerate someone for his criminality and compensate him civilly
for the financial consequences.’ – Lord Brown

- Delaney v Pickett
o Car accident, C is the passenger
o When they were rescued, they were found to have drugs on them
o The claim should fail bc they were drug dealers
o But there was only possession – no indication of them being
under drugs when driving
o Held: rejected. No illegality, the illegality was incidental but
did not have anything to do with the tort here– just a
background requirement. ‘There was no relevant nexus between
the illegality upon which the Appellant was engaged and the
tortious conduct of Mr Pickett which gave rise to his injuries.’

- Patel v Mirza (2016) – 9 Justices

o Divide amongst judges
o 5:4/6:3/5:1:1:2 split as to reasoning
 o Clear majority established the test
o Facts: friends and at a poker evening they had a plan to engage in
insider trading. The issue was related to the share prices of RBS
and one of them knew that there was going to be an announcement.
They decided to pledge some bets on the share prices of RBS. So,
C gave 600K pound to place a bet to the D. Relying on insider
information is illegal. The govt did not release the announcement
and the bets were never placed – C wants to get his money back but
D refuses
o Majority: agree that he should get the money back but
different reasoning
o Lord Toulson: ‘The essential rationale of the illegality doctrine is
that it would be contrary to the public interest to enforce a claim if
to do so would be harmful to the integrity of the legal system (or,
possibly, certain aspects of public morality, the boundaries of
which have never been made entirely clear and which do not arise
for consideration in this case).’
o TEST:
o a) to consider the underlying purpose of the prohibition
which has been transgressed and whether that purpose will
be enhanced by denial of the claim,
 Insider information illegal -> but Information wasn’t
used, and bets not placed
o b) to consider any other relevant public policy on which the denial
of the claim may have an impact and
o c) to consider whether denial of the claim would be a
proportionate response to the illegality, bearing in mind that
punishment is a matter for the criminal courts.’
 Would it be proportional?
 Disproportionate to let D keep the money when the
illegal activity has not been carried out
o The public interest is best served by a principled and transparent
assessment of the considerations identified, rather by than the
application of a formal approach capable of producing results
which may appear arbitrary, unjust or disproportionate.’
o The reliance test in Tinsley v Milligan – wrongly decided so
overturned

Summary of defences:
• Contributory Negligence
• Volenti Non Fit Injuria/Assumption of Risk
• Exclusion of Liability
• Ex turpi causa non oritur actio/Illegality

Occupiers’ Liability
What is Occupier’s Liability?
Statutes:
 - Occupiers’ Liability Act 1957: applies to visitors
- Occupiers’ Liability Act 1984: applies to non-visitors ie
trespassers

- Statutory crystallisation of duty of care and negligence with unique

features
o Only apply to ‘occupiers’
o Exceptionally, they impose a positive duty to act
o There might be no duty owed at all in some cases
o Key question: is the relevant Act engaged at all?

- Key case: Tomlinson v Congleton v Borough Council (2003, HL)

o Wider influence on the law of negligence generally.

Background:
- Statutory reform of older, inelegant common law rules:
o Indermaur v Dames (1866 HL)
o 4 categories of person: contractor, invitee (common interest),
licensee, trespasser
o ‘Visitors’ dealt with by the 1957 Act, but trespassers left
without protection for a substantial period afterwards
o Common law categories still relevant for determining who is an
occupier and which Act applies to the claimant

Each Act applies to the occupier of ‘premises’:

a. OLA 1957 s 1(1): ‘The rules enacted by the two next following
sections shall have effect, in place of the rules of the common law, to
regulate the duty which an occupier of premises owes to his visitors
in respect of dangers due to the state of the premises or to things done
or omitted to be done on them.’
b. OLA 1984 s 1(1)a: ‘The rules enacted by this section shall have
effect, in place of the rules of the common law, to determine—
(a) whether any duty is owed by a person as occupier of premises to
persons other than his visitors in respect of any risk of their suffering
injury on the premises by reason of any danger due to the state of the
premises or to things done or omitted to be done on them…’

‘Premises’ are not just land

- OLA 1957 s 1(3)a: ‘…any fixed or moveable structure, including

any vessel, vehicle or aircraft’ – very broad
o Tomlinson v Congleton Borough Council (2003, HL): Natural
features of land can count as ‘premises.’ Doesn’t have to be a
building, acts can be applied to natural features of
 land. This case -> abandoned place filled with water not
meant to be swam in. claimant doesn’t follow instructions

Key terms:

- Visitor: are you a visitor?

o OLA 1957 s 1(2): Visitors are common law invitees or
licencees
o OLA 1957 s 5 covers contractors
 A visitor has permission to be there, this can be express or
implied (salespersons)
o Pearson v Coleman Bros (1948, CA) – 7-year-old child searching
for a toilet in circus still an invitee (i.e. a visitor post 1957) when
she was attacked by a lion after wandering off in a circus. She
wasn’t wandering around out of curiosity; she was searching for a
toilet and it wasn’t obvious where it was.
o Permission may be limited in scope as to place, time or
behaviour:
 ‘When you invite a person into your house to use the
staircase, you do not invite him to slide down the banisters,
you invite him to use the staircase in the ordinary way in
which it is used.’ The Carlgarth (1926) per Scrutton LJ –
suggests that you might invite somebody to your premises
but their behaviour can change as in they can act in a way
which is not in the ordinary use of the premises – this shifts
their position out of the visitor category and thus out of the
1957 act towards the 1984 act.
 Warning signs are important signals of where you are
authorised to be, see Tomlinson v Congleton Borough
Council (2003, HL)
• Tomlinson ignored the dangerous water sign and
dived in standing position, paralysing himself.
• Majority proceeded on the basis that passing by a
‘Dangerous Water- No Swimming’ sign changed C’s
status to a trespasser from a visitor. But Longmore LJ
and, then, Lord Scott were unprepared to consider when
paddling became swimming, any duty owed was
surely as a visitor
 But it might be harder where there are no warning signs, the
question hinges on whether you are ‘authorised’ to be there:

 Kolasa v Ealing Hospital NHS Trust (2015, HC)

 ‘…although when the Claimant was brought to the
hospital and was put to wait in A&E he was a visitor to the
hospital and was owed the common duty of care under
section 2(2) of the 1957 Act, his act of climbing over the
wall was not an act covered by his general
 permission to be on the site as a patient nor was it part of
the permission given by the Defendant to patients leaving
the site after, or even without, treatment. He was, therefore,
no longer an invitee or visitor but a trespasser.’

 Spearman v Royal Utd Bath NHS Trust (2017, HC)

 ‘A person's state of mind and intention is an important
additional factor. So here, intending to leave the Emergency
Department, Mr Spearman, in his confused state of mind,
thought (wrongly but honestly) that he needed to go upstairs
to get out and, indeed, go over the barrier to get out. His
belief meant that he remained a lawful visitor and, in my
judgment, he did not become a trespasser at any time
material to this case.’

o A more lenient approach taken with children, certainly before the

OLA 1984, with ‘allurement’ used to justify shifts in status, see
Cooke (Note that  now allurement no longer necessary for this
purpose, but still relevant to the standard of the duty owed, see
below)
o Permission can be revoked but must be clear and a
reasonable period must be given
o Some persons are not visitors but, nevertheless, are given
protection under the 1957 Act
 s 2(6) applies to those who enter by right (police and
emergency services)
 s 1(4) shifts ‘Ramblers’ to the 1984 Act, see also OLA 1984
s 1(6A), which rules out liability for risks arising as a natural
feature of the landscape (but preserves the chance of a claim
where risk is deliberately created)

- Occupier: Who is an occupier?

o Not necessarily a property-based relationship -> focus is on
factual relationship of control rather than a legal one. May
coincide with the owner being the occupier but does not have to.
o OLA 1984 s1(2) states to look to its meaning under 1957 Act
-> which directs to the common law definition
o Cavalier v Pope (1906 HL) suggested an occupier was akin to a
‘bouncer’. Contractual duty to repair does not necessarily make
him the occupier. Occupier is the person that can admit or
refuse entry.
o Key case resolved the issue:
 Wheat v Lacon (1966, HL)
 Facts: D, a brewers firm, leased a pub to R as manager and
licencee. R and Mrs R lived in a flat above the pub, but with
no resulting property right or tenancy. D allowed R to have
guests stay. C’s husband, a guest,
 was found dead at the bottom of a set of stairs in the pub,
with an incomplete handrail, and no working light at the
top. C sued R and D under the 1957 Act. Failed against R
but appealed on the claim against D
 Held: D (pub owners) were occupiers either, per the majority,
because a company can occupy a premise through its
employees, or, per Denning, because they had control of the
premises, despite not being in physical occupation. D
retained sufficient control as they had complete control ov9er
the bottom of the building as they had not given Rs a
tenancy agreement and could enter for repairs.
 But no breach of the resulting duty. Being incomplete was
not enough to make the handrail dangerous and the bulb had
been removed by an unknown T so no breach. Lacon not liable.
 Denning emphasised the key of understanding
occupancy which is factual control over the premises.
They had control of the premises despite of not being in
actual occupation.
 Denning  the person with ‘immediate supervision
and control’ was an occupier – ‘degree of control over
the state of the premises’
 Wheat confirmed you could have multiple occupiers,
dependent on the degree of control but, as Lord Morris
stressed: ‘Measure and the content of that duty were not,
necessarily, the same’.

- What amounts to sufficient control?

o Harris v Birkenhead Corporation (1976, CA) - Possession is not necessary, it is enough
that D had asserted their right to dispossess the owner, even if they actually had
not when C, a child, wandered into the abandoned house and injured themselves.
o Ferguson v Walsh (1987, HL) - C can be a visitor for one D, but, where there is
multiple occupation, a trespasser for the purposes of another D.
 Facts: C injured when on a building site where unauthorized
subcontractors had been allowed to work.
 Held: ‘If it be the case that one only of such occupiers authorises a
third person to come onto the land, then plainly the third person is,
vis-a-vis that occupier, a lawful visitor. But he may not be a lawful
visitor vis-a-vis the other occupier.’ per Lord Gof

- A key distinction: occupancy v activity duties

o s 1(1) OLA 1957: ‘The duty which an occupier of premises owes to his visitors in
respect of dangers due to the state of the premises or to things done or omitted
to be done on them…’
o Fairchild case – the correct action was in negligence, not occupier’s liability. The
asbestos exposure did not result from the premises but from the activity.
 It was what was going on in those premises which caused him harm’ per Brooke
LJ
o But depends on the state or use of the premises – eg shooting, speedboating
o Keown v Coventry Healthcare NHS Trust (2006, CA) - climbing a fire escape for fun
and falling – the behaviour was flawed, and it did not fall under the act as the
premises had nothing to do with it.

- The duty owed under the 1957 Act: the common duty of care
o A visitor is automatically owed the duty under the 1957 Act, subject to
modifications, exclusions or restrictions
 s 2(1) ‘An occupier of premises owes the same duty, the “common duty
of care”, to all his visitors, except in so far as he is free to and does
extend, restrict, modify or exclude his duty to any visitor or visitors
by agreement or otherwise.’
o The standard imposed by that duty is the ‘common duty of care’
 s 2(2): ‘The common duty of care is a duty to take such care as in all the
circumstances of the case is reasonable to see that the visitor will be
reasonably safe in using the premises for the purposes for which he is invited
or permitted by the occupier to be there.’
 Duty is tailored to the use of the premises – if you go beyond that, you
cease to be visitor and any protection is then a matter for the 1984 Act.
o The test is of breach is objective, which, as in negligence, is a finding of fact
 Likelihood of harm, gravity of harm, cost of prevention  all relevant
 Tomlinson: HL emphasised the importance of considering social utility of
D’s act
o Cunningham v Reading FC, knowledge of the risk is relevant. Crumbling
stadium quite diferent to an unpredictable shelf-ripper.
 Critical thinking: The law is incentivising occupiers to inspect their
premises
o The particular risk must be foreseeable, but that isn’t automatically enough
 Darby v The National Trust (2001, CA) - When one dives into water, the
foreseeable (obvious) risk is drowning not water-borne disease
o Per s 2(3) Known vulnerabilities of claimant can alter standard:
 Pollock v Cahill (2015, HC) D left an upper window open during the
night and C, who was blind fell through it, paralysing himself. C’s ‘hugely
competent’ ability to deal with being blind was of relevance to the
obvious risk! The risk is absolutely obvious when you have a blind guest
staying with you.
o Where what is required from D is straightforward and reasonable, it is not
enough to just point to potential defensive practice
 English Heritage v Taylor (2016, CA) - Risk was a non-obvious sheer
drop into a moat from a path, warning signs would have been easy and
cheap to erect.
o Causation between breach and harm is necessary
o Warnings are, in practice, a good way to discharge the duty as made clear in s 2(4)(a),
but are not automatically decisive:
  ‘where damage is caused to a visitor by a danger of which he had been
warned by the occupier, the warning is not to be treated without more as
absolving the occupier from liability, unless in all the circumstances it
was enough to enable the visitor to be reasonably safe;

- Modifying the standard owed under the 1957 Act

o 2 special circumstances listed in s2(3) modify the duty of care under the 1957 Act,
children and those with special skills.
o Children:
 s 2(3)(a) an occupier must be prepared for children to be less careful than
adults;
o ‘Allurement’ has shifted to be used to identify what dangers an occupier
should have been aware of as presenting a risk to children. No clear rationale
emerges from cases, generally natural features less ‘tempting’ to children than
structures
o Often articulated through what an occupier can expect from
parents/guardians:
o Glasgow Corp v Taylor (1922)
 Facts: P’s 7 y.o. son dies, having eaten poisonous berries in a public park.
Had the risk of poisoning from berries been obvious D could have
relied on parents not allowing ‘children of tender years’ to be near
them. Not obvious that the berries were poisonous
 Held: The risk here was not obvious at all, so they were in breach.

o Marsden v Bourne Leisure Park (2009, CA)

 Parents were not at fault in letting 2-year-old wander of and drown in a
pond but, nor were D occupiers in breach for failing to make clear there
was a path between caravan park and a pond, which was marked on the
site map. The risk was clearly obvious to parents and D, developing Phipps,
entitled to rely on them.

o Lunney & Oliphant -> If the risk is not obvious, why should D take care, if it is,
why did you let your child near it? D might even recover contribution from a
parent if they were at fault
o Jolley v Sutton (2000, HL) foreseeability of risk also diferent when dealing with
children, be prepared for children to endanger themselves in unexpected
ways.
o Special skills:
 ‘s 2 (3)(b) an occupier may expect that a person, in the exercise of his
calling, will appreciate and guard against any special risks ordinarily
incident to it, so far as the occupier leaves him free to do so.’
 Shifts burden of care onto those best placed to deal with it
 Roles v Nathan (1963, CA) - Two sweeps, despite warning from D
about carbon monoxide in an industrial boiler they were hired to
clean, return at night to finish the job and sufocate.
 • Held: per Denning and Hartman: No breach, this was precisely the
sort of risk they should guard against; per Pearson LJ
(dissenting) magnitude of the risk put it beyond the ordinary
scope of what a sweep should guard against.

- Automatic discharge and independent contractors (IC)

o Duty owed under the 1957 Act will be discharged if it flows from a shoddy work
carried out by a competent independent contractor per s 2(4)(b)
 ‘…where damage is caused to a visitor by a danger due to the faulty
execution of any work of construction, maintenance or repair by an
independent contractor employed by the occupier, the occupier is not to be
treated without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the work to an
independent contractor and had taken such steps (if any) as he reasonably
ought in order to satisfy himself that the contractor was competent and
that the work had been properly done.’

o The IC must actually be competent: Millar v Rooney (2006, NIQB)

o In some cases, merely employing a competent IC is not sufficient and the courts
have imposed a duty on the occupier to supervise and check the work of their
contract
o Ferguson v Welsh: Duty to check where D knows there is an
unsafe system to work.
 Duty to monitor and supervise
o AMF International v Magnet Bowling (1968, HC):
 Facts: C’s specialist timber was damaged by a flood when D’s
IC failed to install flood protection on a site they were
working on.
 Held: D may have to employ a further IC to check the work of
the first throughout the work, not just at the end.
Mocatta J gave the example of employing a naval surveyor to
ensure a ship was built properly. Here, they had failed to do so
when it was clearly necessary.

Establishing duty under the 1984 Act: No automatic assumption of duty

- There are preliminary tests about whether a duty under the 1984 Act arises
at all – whether the injury comes from the premises or the activity
- Much more focused on whether there was a duty concerning the
particular risk that has caused the harm here – not any general risks
- Requirements for a duty clearly set out in OLA 1984 s 1(3) and a duty is only
owed to a trespasser where all 3 requirements are satisfied
- The question is considered at the moment of harm, not, say, the moment the
premises are completed or designed.

- Requirements under s1 OLA 1984:

- s 1(3)a: D must know, or have reasonable ground to know the danger exists
- Dangerous here is considered broadly eg in Keown, the danger of falling from
an unguarded fire escape.
- s1(3)(b): D knows (or ought to know) that C will come into the vicinity of the danger
- Donoghue: there was just no way D had reasonable ground to believe that
trespassers would be diving in the harbour at 1am on the 27th December,
even if, at first instance, the court had held D knew many people did
exactly that…at the height of summer.
- D is entitled to make a reasonable assessment of whether, when and how
trespassers are present.
- Swain v Puri (1996, CA)
- Facts: C, a child, falls through D’s roof. CA stressed constructive knowledge
is insufficient to satisfy the test, but D cannot intentionally turn a blind
eye, ‘shut-eye’ knowledge, knowing that they would find something if
they looked.
- Held: C was the first trespasser here, and, as such, no duty was owed. He did not
know that someone would go to the roof and injure themselves. Protection is
available if you don’t know that people would actually be on such premises.
- s1(3)c: Reasonableness of offering protection is a question of fact in each case.
- Doubted in Keown, even if the Act had been engaged at all
- Standard owed under the 1984 Act
o Where there is a duty, the standard is diferent from the 1957 Act per OLA
1984 s 1(4):
o At common law, there has been no duty at all, until Herrington v Board of
British Railways (1972, HL)
 Facts: 6 y.o. C electrocuted whilst trespassing on train lines where it was
known children played.
 Held: Duty is owed, but famously difficult to parse exactly what… “The five
Law Lords spoke with diferent voices…when they sought to identify the
content of that duty” per Brooke LJ in Donoghue.

o General agreement that the duty was lower than the standard of care in the 1957
Act: Duty was one of ‘common humanity’ captured in the 1984 Act.

- Range of factors are relevant here, including many of the considerations taken into account
in s 1(3) but he occupier is not an insurer of C‘s risk
- s1(5) warnings are, again, a key part of discharging the duty but focused on the ‘danger
concerned’ so ‘Keep Out!’ May not be sufficient.
o Key to distinguish between the role of signs and warnings as helping to
determine which Act is relevant and their role as discharging the duty as they
draw attention to the relevant risk
o Warnings cannot be sufficient themselves if they are routinely ignored as in
Tomlinson where they are known to be ‘patently inefectual’ per Hofmann, and
further measures may be required to rely on 1(5)
 o In Donoghue there were warnings on the harbour generally but not on the
slipway C jumped from, so D failed to satisfy the duty, but, luckily, the duty
never arose in the first place!

- Causation still required

- Tomlinson marked a shift towards strongly emphasising that there is no duty to guard
against obvious risks.
o The fact that such people take no notice of warnings cannot create a duty to take
other steps to protect them.’ Per Lord Hofmann
o No duty arises in relation to premises, not occupancy duty but relates to your own
behaviour -> if your behaviour regards obvious risks then neither of the acts ofer
protection.
- At heart, Tomlinson is about the relationship between imposing a duty in tort and
personal freedom. If I choose to freely undertake an action that causes harm to myself,
should that be remediable through tort?

Restrictions, exclusions and defences

- The 1957 Act permits the exclusion, restriction or modification of the occupier’s duty. The
limits of what one may do are provided by UCTA and the CRA.
- Where they apply, you cannot exclude or restrict liability for death or personal injury due
to negligence: UCTA s 2(1); CRA s 65(1)
- But neither applies to ‘recreational or educational’ visits (UCTA s 1(3)(b)); or
‘recreational’ (CRA s 66(4)) visitors…unless it was within the business purposes or purpose
of the traders business, craft or profession. So beware the farmer hosting a class of school
children, who might, thus, be able to exclude liability!
- OLA 1957 s 2(5) preserves volenti non fit inuria as a defence – narrow
- 1957 Act is silent but contributory negligence clearly allowed in practice.

- OLA 1984 s 1(6) preserves volenti non fit inuria

- Contributory negligence also available under the 1984 Act
o Young v Kent CC (2005, HC) Damages reduced by 50%

- Recoverable damages
- Beware, not all forms of damage are recoverable under each Act:
o OLA 1957 s 1(3)b: ‘the obligations of a person occupying or having control
over any premises or structure in respect of damage to property, including the
property of persons who are not themselves his visitors.’
- What about consequential losses? See AMF International v Magnet Bowling (1968, HC)
where Mocatta J was open to allowing recovery of the monies it cost C to salvage the
damaged timber.
- OLA 1984: Obviously personal injury included, but see s 1(8): ‘Where a person owes a duty by
virtue of this section, he does not, by reason of any breach of the duty, incur any liability
in respect of any loss of or damage to property.’
NUISANCE
PRIVATE NUISANCE

What is the tort of private nuisance?

- It is a tort against land, this is its key characteristic and what defines it in relation to
other torts
- It is not concerned with personal injury
- It is concerned with non-trespassory unlawful damage to or interreference with the use
and enjoyment of land
- Public nuisance is almost always a criminal ofence – in theory but rarely in practice

- What are the constituent parts?

o It revolves around one central question:
o Is D’s interference with the land unreasonable/substantial. If so, it is that
characteristic that renders it unlawful.
o This is a question of fact, so to understand nuisance we need to understand what the
factors that weigh into this consideration are.
o As it is a tort against land, C must have a sufficient interest in the land to bring a
claim.

- No pre-existing duty of care requirement as in negligence

- Nuisance is not actionable per se – must show damage
- Interferences that are sufficient for nuisance are often ongoing situations, but an
isolated event where sufficiently serious enough may suffice – not a doctrinal
requirement for it to be ongoing
o Where insufficiently bad to trigger nuisance, isolated events (where there is an escape
of something from D’s land onto C’s land) may be caught under the (probably)
separate doctrine of the rule (not tort) in Rylands v Fletcher
o Summary = if it is an isolated event which does not trigger nuisance, and
there is no negligence involved, then there will only be liability where the
thing was dangerous, and D had accumulated it on their land
o No nuisance and no negligence – only claim would be on the
dangerousness of the thing

- 3 ways in reality that you may commit nuisance:

“Private nuisances are of three kinds. They are (1) nuisance by encroachment on a
neighbour's land; (2) nuisance by direct physical injury to a neighbour's land; and
(3) nuisance by interference with a neighbour's quiet enjoyment of his land.” per Lord
Lloyd in Hunter v Canary Wharf (1997, HL)
o Encroachment is something on my land spreading onto your land
o The second category is physical damage without encroachment
o The third category accounts for the majority of cases in practice: does not
require physical damage to be actionable whereas the previous 2 do
o Often deals with environmental factors: smells, noise, fumes etc
o The interferences here are indirect, and thus nuisance needed to develop
to fill the gap left by requiring direct interference in trespass.
 o Whilst there often will be in practice, there is no doctrinal
requirement for an emanation from D’s land – Thompson-Schwab v
Costaki (1956): interference with C’s enjoyment of their land would
suffice -> very broad criteria
• No requirement that anything needs to pass from D’s land to C’s
land
- Note: It is absolutely no defence to a claim in nuisance that you were not being
negligent in creating the interference (reasonableness of behaviour is not a defence)
- What is the purpose of nuisance
o Nuisance is not actionable per se, like trespass, which is more
obviously vindicatory, nuisance requires harm.
o Compensation of loss
o Network Rail v Williams (2018, CA)
o ‘The purpose of the tort of nuisance is not to protect the value of
property as an investment or a financial asset. Its purpose is to protect the
owner of land (or a person entitled to exclusive possession) in their use and
enjoyment of the land as such as a facet of the right of ownership or
right to exclusive possession.’ per Etherton MR
o If nuisance is about policing a balance between competing interests, liberties and
rights between the parties (and often, in practice, actual rather than legal
neighbours), then we must ask who is doing the balancing and how are they
deciding upon it?
o We’re all expected to put up with smells, noises etc, to a degree, but
how do we balance an essentially individualist tort with collective
interest in the land as a whole?

- A tort against land

o This focuses the ‘harm’ in nuisance on injury to land (either tangible or
intangible)
o Where D interferes with C’s comfort and convenience the complaint often
arises from personal physical discomfort (smells, noise, fumes etc) but
nuisance treats that impact as tied to C’s land, not C’s person.
o The reduction of the enjoyment/utility of C’s land is assessed
objectively
o Where D’s nuisance damages chattels, there is no recovery per se, unless
the damage is consequential to damage to the land:

o Nuisance is fundamentally limited to those who have a proprietary interest in the

land: Hunter v Canary Wharf (1997, HL)
o Facts: Cs, around 1000 sued in nuisance because D’s building of the Canary
Wharf Tower had interfered with/stopped their TV signal for one year and
building the Limehouse Link had caused homes to be covered in dust.
o CA Held: Those with a ‘substantial link’ to the property could claim
o HL Held: CA was wrong, Khorasandjian was overturned.
‘The Court of Appeal adopted the not easily identifiable category of those who
have a "substantial link" with the land, regarding a person who
 occupied the premises "as a home" as having a sufficient link for this purpose.
o Hunter confirmed damages in nuisance are measured objectively. It does
not depend on how many are resident there OR whether D is actually
there to experience the interference themselves.
o Lord Cooke in Hunter was willing to allow claims on the basis of
‘occupation’:
 ‘Occupation of the property as a home is, to me, an
acceptable criterion, consistent with the traditional
concern for the sanctity of family life
o What are the HRA 1998 implications of this restriction?
- What does nuisance not protect?
o Some matters are beyond the scope of protection of tort law
o Examples:
 Views from your land without a restrictive covenant not to interfere
 Aesthetic value of your view?
 What about being viewed on your land? Ostensibly no protection for
such ‘privacy’ per se in nuisance but see dicta per Griffin J in Bernstein v
Skyviews (1978, HC)
 No right to water flowing onto your land through undefined channels

- Some rights do not exist automatically, but can be acquired over time as an
easement: free passage of air over land and light
- Some rights exist automatically:
o Physical integrity of your land fixtures on it. But physical damage to the land
requires change that ‘renders the article less useful or less valuable’ – mere
change to land is not enough
o Support of your land in its natural state by neighbour’s land – eg your land
holds your neighbour’s land; see below:
o Holbeck Hall Hotel ltd v Scarorough
 Facts: D failed to stop the clif under the claimant’s hotel from
eroding, destroying the hotel
 Held: positive duty to protect C’s land may arise where D knows or is
constructively aware that there is a risk. Here D was not given the
magnitude of the risk
o So, what was the result in Hunter?
 As to the TV interference, the answer was an emphatic no
 Lords Gof, Hofmann and Hope saw it as a basic principle of the common
law that you could do what you want with your land, short of your
neighbours having a right or an agreement not to.
 As views can only be protected by agreement, there was no possible claim
for the TV interference in Hunter: too many might be afected:
o Is it necessary that the nuisance must have come from D’s land?
 No, it is a tort against land not from land

- Unpacking unlawful interference

o Locality can be key, depending on the type of harm
  Where harm is physical damage (categories 1 and 2), locality is
irrelevant  the law presumes this is unlawful interreference
 Where harm is interference with amenity then the locality is relevant.
• Interreference with comfort and convenience -> ability of
enjoyment of land
• Not physical damage
 Sturges v Bridgman (1879, CA)
• Facts: C complained about the noise of a pestle and mortar
which had been used for more than 20 years to make
confectionary by D, C’s Marylebone neighbour, following C, a
physician, building a shed in his garden in which he started to see
patients.
• Held: It was actionable nuisance as an easement had not been
required, despite the length of time of D’s activity, injunction
granted.
 This rule allows D to claim the C chose to move to the property and
now he’s complaining about it. But this does not mean that an action is
impossible. The unreasonable degree of interference will just be
measured relative to that
 Locality is generally assessed broadly – but can be more granular
 Areas can change over time
• Is planning permission relevant to defining or changing
locality? Gillingham DC v Medway Doc 1993
o Facts: D is granted planning permission to newly
develop land into a commercial port, leading to
tremendous amounts of heavy goods traffic, in the
interests of economic development of the area.
o Held: Injunction for actionable nuisance rejected.
• Coventry v Lawrence (2014) – authoritative obiter
o Facts: C moves into a bungalow near a stadium in and
around of which, Coventry had held motor-racing
events (with appropriate planning permission) since
1976.
o Held: D liable in nuisance. On this point the majority
rejected the relevance of planning permission for
assessing whether an interference was unreasonable given
the locality of the neighbourhood.

o Despite the supposedly strict nature of nuisance, harm to the claimant must be
foreseeable where the remedy is damages
 Nuisance is strict liability – no need to show fault
 Harm to C foreseeable to D? – subjective reasonableness only related to
damages
 Cambridge Water Co v Eastern Counties Leather (1993, HL)
 Facts: C sues in negligence, nuisance and Rylands for damage done to
their well following chemicals that D used in the course of their
 business seeping into the ground and travelling 1.5 miles to the well.
 Held: No recovery, there had been no negligence and whilst fault
wasn’t required for nuisance, that did not mean D could be liable for
unforeseeable harm. Drawing on Wagon Mound No 2, foreseeability of
harm was required for both nuisance and Rylands. Here, it was entirely
unknown that chemicals could get into the aquifer or travel that far
along it.
 Includes the type of harm as well: If I can only foresee my factory
will make noise and interfere with your enjoyment, no action
where the noise unforeseeably caused physical damage by smashing
your windows.

o Whether the interference is substantial/unreasonable is judged objectively, so the

personal characteristics or sensitivities of the claimant themselves are irrelevant:
 Barr v Bifa Waste Services (2012)
 Facts: Cs, residents of a housing estate in an area with a history of
tipping and disposal, sue for the odours coming from a nearby waste
disposal site, run by D, when it started to accept more organic waste.
 Held: Actionable nuisance.
• Q = created an amount of discomfort in excess of that which “an
ordinary person could reasonably be expected to put up with”’
per Carnwarth LJ
• Intensity, duration and frequency of the supposed nuisance are all then
key factors in assessing whether the interference is substantial
enough to be actionable nuisance.
 Test = objective reasonableness

o What is an ordinary use of premises? What is ordinary behaviour?

o What is breach? – discretion given to judges
o Nuisance disguises sensitive social mechanics of ordinary life -> the court
decided what is acceptable behaviour in day to day life

o Can you sue in nuisance bc D’s activity scares you?

 Birmingham Development Co v Tyler
 Facts: C sought an injunction where D left an exposed wall, which C felt
was very unstable and dangerous.
 Held: No actionable nuisance where fear is only honest and subjective. A
claim would only be allowed where the fear was ‘well founded…that is
that the property or activities are actually dangerous’ per Rimer LJ.
o What if D carrying out the activity out of malice towards C?
 Christie v Davey (1893, HC)
Facts: D had taken to trying to disrupt their neighbour C’s ability to
provide piano lessons in their home, which C was doing for around 17
 hours a week, by ‘knocking on the party-wall, beating on trays,
whistling, shrieking and imitating what was being played’
Held: D was liable in nuisance – precise right to enjoy your land free from
inconvenience
o Although the behaviour wouldn’t amount to an actionable negligence itself, the
fact that they were done with malicious intent, it translates it to actionable
nuisance. You are expected to put up with a particular degree of interference on a
daily basis but the law makes it clear that if the interference is malicious, then
there is actionable nuisance – you are not excepted to put up with interference
which intentionally causes you inconvenience or distress.

- Who can be sued for nuisance?

o 3 possibilities: someone who creates it, someone on whose land the nuisance
occurs or someone who authorises it
o Liability of an occupier is for adopting or continuing the nuisance
 Nuisance will inevitably have been caused by a third party or arisen
naturally -> To adopt a nuisance is to use it to your own benefit
 To continue a nuisance is to fail to take steps to remove it once D is
aware
 Leading case: Sedleigh Denfield v O’Callaghan (1940, HL)
• Facts: Third party lays a pipe across a culvert on D council’s land.
D’s employees use it occasionally to channel water onto D’s land
and (poorly) fitted a metal grate to keep it free from leaves. It
becomes blocked during a heavy storm and overflows onto C’s land
– meant to prevent this but failed
• Held: D was aware, or ought to have been aware through their
employees of the nuisance. Simple steps were required to have
abated the nuisance -> quasi-fault assessment. Not clear what the
actual nuisance was: the pipe itself or the water flooding?
o Where nuisance arises from a natural feature of the land, the overlap is clear
• Goldman v Hargrave (1967) – privy council case
o Facts: D fails to put out a fire on his own land that spread to C’s
land. The firefighter summoned by D had just cut down the tree
and left it to burn out.
o Held: D liable for breach of a general duty to remove or reduce
the hazards on his land, whether man-made or naturally
arising. But this was, exceptionally, tailored to D’s subjective
means and resources. On the facts, D could easily have put the
fire out (had the resources) and had not.
• Leakey v National Trust (1980)
o Facts: Burrow Mump (a hill) sufers a landslide and damages C’s
land. C sues, nominally, in nuisance.
o Held: Applying Sedleigh-Denfield, liability would only arise
where D had breached a duty to stop the nuisance tailored to their
subjective resources. D was liable on the facts bc had the
 resources to stop the nuisance. Extent and type of harm must be
foreseeable

o Authorisation: can the landlord be held liable for nuisance on their land?
 Coventry v Lawrence no2 (2016)
 Fact: attempted to hold the landlord of the stadium liable for the
nuisance.
 Held: The landlords of the stadium could be only responsible where they
had authorised it by either:
• Directly and actively participating in it or
• Where there was a very high degree of probability (bordering on
virtual certainty) that letting their property would result in
nuisance
• Just doing nothing or not enough to stop the nuisance is not
enough to impose liability on the landlord – the tenants are
carrying out the act, not the landlord himself.

 Cocking v Eacott (2016, CA)

 Vos LJ, giving the leading judgment, rejected the idea that the duty in
Sedleigh-Denfield was only limited to failure to take reasonable means to
abate it, preferring Lord Wright’s supposed formulation of the duty
• Critical thinking question: Is a diference between the natural use
cases and cases where the nuisance is created by T justifiable?

Defences to Nuisance

- ‘Coming to the nuisance’

o Not a defence to say this was happening when you came here’(Sturges) but may be
highly relevant to assessing locality. Emphasised in Miller (cricket case)
o Sturges really contained two possible rules:
1) Coming to the nuisance is no defence
2) No defence to actionable nuisance where D’s existing activity only
becomes a nuisance because of C changing their own behaviour
o Second rule rejected in Sturges but recently reassessed in obiter in Coventry.
- Acquisition of a right by prescription
o Requirements
 20 uninterrupted years of C putting up with an actionable nuisance will
have given D a right (easement) to carry it out.
 Time starts from when C is aware of the nuisance.
 The interference must be uniform and certain and cannot vary in
intensity – difficult to rely on bc eg the very difficult for noise levels to be
the same intensity and frequency all the time
 This defeated D’s claim in both Dennis and Coventry regarding noise
 - Statutory authorisation
o Where D’s conduct is authorised by statute there can be no action for
nuisance: Allen v Gulf Oil (1981, HL) Oil refinery in Milford Haven
o The activity must be carried out without negligence in order to benefit from the
defence and relevant statutes will often make provision for a statutory
compensation scheme which covers the authorised nuisance
o ‘Administration cannot authorise a nuisance’, Tony Weir.
o D’s activity still has to fall within the statute itself:

o Necessity?
o Southport Corpn v Esso (1953, HC) D jettisons 400 tons of oil to lighten his ship,
that had been stranded in the Ribble estuary. Devlin J thought necessity would
be available where the nuisance protected human life but not property. Note D
lost on other grounds in the Lords
o Contributory negligence

Remedies for nuisance

o Where nuisance is past -> Damages

o Where nuisance is ongoing -> Injunction (discretionary remedy) and/or
damages
o Critical thinking point: When, if ever, should D be permitted to ‘buy’ the right to
commit nuisance against C?
 Shelfer v City of London Electric Co (1895, CA)
• Facts: D complained of ongoing nuisance caused by vibrations from
C’s machine
• Held: CA overturned refusal at first instance to award an
injunction. Smith LJ noted that damages were more
appropriate than an injunction where:
‘1) If the injury to the plaintiff's legal rights is small
2) And is one which is capable of being estimated in money
3) And is one which can be adequately compensated by a small
money payment
4) And the case is one in which it would be oppressive to the
defendant to grant an injunction’

o Public interest in D’s ongoing activity was not one of the Shelfer criteria.
 In Miller a diferent two-man majority thought it was appropriate to
take account of the public interest when considering whether to injunct
D’s activity.
 Held: Public interest in playing cricket should prevail, so damages
rather than an injunction.
 In Kennaway C awarded an injunction as Shelfer made no mention of public
interest
  In Dennis, C awarded substantial damages (1 million GBP) on the basis that
the public interest in fighter pilots being able to train outweighed the
private.
 Considered at length in Coventry by Lords Neuberger and Sumption in
obiter:

o How to deal with the free rider point?

 Although planning permission was not relevant for the liability

question, Lord Neuberger thought it should be given greater weight
when considering remedies:
 ‘…the existence of a planning permission which expressly or inherently
authorises carrying on an activity in such a way as to cause a nuisance by
noise or the like, can be a factor in favour of refusing an injunction and
compensating the claimant in damages. This factor would have real
force in cases where it was clear that the planning authority had been
reasonably and fairly influenced by the public benefit of the activity, and
where the activity cannot be carried out without causing the nuisance
complained of.’ [125]

o Calculation of damages
 Remember, the focus is on the impact D’s action has on C’s amenity interest
in the land not C’s personal discomfort themselves.
 Hunter: Hofmann suggested that diminution in of capital or rental
value or loss of amenity cases in contract were a guide to actually
calculate this
 Dobson v Thames Water (2009, CA)
• Facts: Cs sued in nuisance and breach of their art 8 Convention rights
for smells generated from D’s sewage treatment plant
• Held: In a case where there was no loss of market value, no
physical damage to the property, no loss of income from its
use/letting but simply loss of amenity, damages were calculated
by looking at the ‘actual impact’. Equally, damages in nuisance
would often satisfy any further possible Human Rights claim.

 Anslow v Norton Aluminium (2012, HC), assessment of loss of amenity due to

smells from D’s plant where there was no reliable data on any reduction
in the value of the properties carried out using assessment of damages for
loss of amenity in personal injury cases!
 Further flexibility post-Coventry?
‘It seems to me at least arguable that, where a claimant has a prima facie
right to an injunction to restrain a nuisance, and the court decides to
award damages instead, those damages should not always be limited to the
value of the consequent reduction in the value of the claimant's property.
While double counting must be avoided, the damages might well, at least
where it was appropriate, also include
 the loss of the claimant's ability to enforce her rights, which may often be
assessed by reference to the benefit to the defendant of not suffering an
injunction.’ Per Lord Neuberger (emphasis added)

The Rule in Rylands v Fletcher

- Rule in Ryland is strict liability -> accumulates something to own land and the thing
escapes and causes damage.
- Liability under Rylands v Fletcher is now regarded as a particular type of nuisance.
Negligent conduct is not required as it is strict liability. Imposing liability without
proof of negligence is controversial and therefore a restrictive approach has been taken
with regards to liability under Rylands v Fletcher.

- What happened in Rylands?

o Facts: D builds a reservoir; it fills with water; unknowingly connects with C’s
mine; D’s independent contractors don’t realise this; fill the tunnels with water
bursts through and floods C’s mine causing damage.
o Held: Loses at first instance: No negligence (no fault) and no direct damage; it was an
isolated escape which appeared to rule out negligence, trespass and nuisance.
Overturned on appeal:
 “We think that 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 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.”
o Upheld upon further appeal to the Lords, where Lord Cairns glossed
Blackburn’s formula with the idea of ‘non-natural user’ as a key requirement
-> in the absence of negligence, if the D had been using the land in an ordinary
way there would be no liability –> non-natural use has been added to the test
o Failure to make sure that a thing that is likely to cause harm is kept safe
o Requirements:

1. That the defendant brought something onto his

land;
2. That the defendant made a “non-natural use” of
his land
3. The thing was something likely to do mischief if it
escaped;
4. The thing did escape and cause damage.

- Later development of the rule

o You need to have brought a dangerous thing onto your land
 Must bring the hazardous material on to his land and keep it there. If the
thing is already on the land or is there naturally, no liability will arise.
o You must have accumulated it on your land/non-natural user
  Accumulated for the defendant’s own purposes – for a non-natural use
of the land
 How does this contrast with nuisance?
 Special use of land? Increasing the risk through use?
 Time and place relevant: Read v J Lyons (HL 1946) – claimant was
injured by the explosives in D’s possession. Held the storage of
explosives was a natural use of land bc it was during WW2 and C was a
supervisor of ammunition. Outside wartime would not be a natural use.
 Expansion of the term -> Cambridge Water Co v Eastern Counties Leather
pls (HL 1994): made clear that the natural/non-natural use test is not
very reasonable.
 Contraction of the term: Transco -> extraordinary and unusual use is what is
required per Lord Bingham, a retreat from Cambridge.
o The dangerous thing must escape/ there must be an escape
 Diference with nuisance -> must escape from the land
 Key to the result in Read -> the event all happened on D’s land, held: no
escape = no liability.
 Gore v Stannard appeared to restricting escape to the thing itself,
certainly where it concerns fire – but what about explosions?
 Fire now obviously very difficult to apply under the rule unless it is the
fire itself that is accumulated – see Jones v Festiog Railway Company
 Fires Prevention Act 1774 s86

- Remoteness and Rylands

- Blackburn in Rylands assumed D was liable for all harm
o Lord Goff in Cambridge clearly challenged that, just as he had done for the
nuisance claim in that case, reading Rylands as bound by a negligence-style
remoteness rule as well.
o What is it that has to be foreseeable?
 Extent and type of harm in the event of an escape
 Imposed for both nuisance and Rayland
 Not the escape that needs to be foreseeability, but the extent and the type
of harm must be foreseeable

- The modern place of Rylands

- A separate principle or has it been subsumed?
o Lord Gof in Cambridge preferred the latter: ‘an extension of the law of
nuisance to cases of isolated escapes from land ...’
- This was confirmed in Transco:
o ‘The rule in Rylands v Fletcher is a sub-species of nuisance, which is itself a tort
based on the interference by one occupier of land with the right in or
enjoyment of land by another occupier of land as such.’ per Lord Bingham
o Did not reject the rule all together but made it a part of nuisance
- But it remains distinct from nuisance. Unreasonableness aims at diferent things in each ->
accumulation or natural user is irrelevant for nuisance
 o In Rylands – use of land must be unreasonable (or extraordinary, post
Transco).
o Nuisance – interference must be unreasonable.
o Rylands – looks at the defendant’s conduct
o Nuisance – looks at the interference with the claimant
o Accumulation – has no place in the tort of private nuisance.
o Requirements for Rylands are unique
o Claimant can sue under Rylands where there is a proprietary interest – just like
nuisance

Recoverable forms of harm

- Damage to Cs land
- Personal injury? Transco and Gore suggest no.
- Damage to chattels not consequential on damage to land? -> not if it is simply a sub- species
of nuisance, same position of recoverability as under nuisance

Defences

- Focused on -> disproving causation

- Act of god
o Nichols v Marsland (1876)
o Greenock Corporation v Caledonian Railway (HL, 1917)
- Act of a stranger
o D must not have control over the third party
o Does it only apply to intentional behaviour of the third party or negligent
behaviour?
- Statutory authorisation (if properly construed)
- Claimant’s own act – but not if abnormally sensitive
- Contributory negligence if C only partly responsible

Privacy

What is privacy?
- Academic definitions:
- Warren and Brandeis (1890) Harvard LR 628: ‘right to be let
alone’
- Nicole Moreham (2005) 121 LQR 628: ‘the state of “desired
inaccess” or as “freedom from unwanted access”’
- Kirsty Hughes (2012) 75 MLR 806 — building on Moreham,
understands privacy from a behavioural perspective. One enjoys
privacy when ‘he, she or they successfully employ barriers to obtain or
maintain a state of privacy’
- Charles Fried (1968) 77 Yale LJ 475— ‘Privacy is not simply an
absence of information about us in the minds of others; rather it is the
control we have over information about ourselves
- No set definition -> subjective
 - Topical concept

No general tort of invasion of privacy

- Wainwright v Home Office [2003]
o Mother and son stripped searched for drugs in prison
o Son was mentally impaired -> led to PTSD
o Prison had its own rules for strip search. No consent given and no
drugs found. Prison officer touched the son without consent –
battery
o Hoffmann: “Strip searching is controversial because having to take
off your clothes in front of a couple of prison officers is not to
everyone’s taste”
o Refused to recognize a general principle of invasion of privacy
o Court’s view = Not for the courts to develop this area of law
-> left to Parliament

Pre-HRA 1998 / Campbell v MGN [2004]

- Piecemeal protection -> protection across a selection of torts
o Trespass to the person
o Trespass to land
o Nuisance
o Defamation
o Protection from Harassment Act 1997
o Wilkinson v Downton
o Breach of confidence
- Problem: some of them do not involve any interference with your
personal information which is an essential element of privacy

- Kaye v Robertson [1991]

o Claimant was an actor. Involved in a severe car accident
o Taken to the hospital and underwent surgery. Journalists gained
access to his private hospital files. Interviewed him at length and
took photos of him
o Was not in a fit state to give valid consent
o Sought an injunction for the story not to be published
o Held: CA confirmed that there is no right to privacy in English
law and rejected claims in the torts of: libel, trespass to the person
and passing-off. Kaye did, however, achieve limited redress under
the tort of malicious falsehood.

Breach of confidence
- An equitable doctrine -> not a tort
- Is a wrong based upon the breach of a duty to keep confidence
arising from confidential situation, transaction or relationship.
- Requirements: Coco v AN Clark [1968]
o 1) Information was of a confidential nature
 o 2) Information was communicated in circumstances
importing an obligation of confidence
o 3) There must be an unauthorised use of that information to the
detriment of the party communicating it

- Issue with this doctrine -> second requirement is problematic.

Privacy characterized by relationship = gave rise to obligation of
confidence
- Traditional view = pre-exiting relationship
- Extended = no need for pre-existing relationship
o Attorney General v Guardian Newspapers (No 2) [1990]
o ‘a duty of confidence arises when confidential
information comes to the knowledge of a person... in
circumstances where he has notice, or is held to have
agreed, that the information is confidential, with the
effect that it would be just in all the circumstances that
he should be precluded from disclosing the
information to others’

Human rights Act 1998

- Incorporates privacy into the development of the law  A8 and
A10
- Campbell v MGN Ltd [2004]
o Lord Nicholls at [11]: ‘In this country development of the law has
been spurred by the enactment of the Human Rights Act 1998’
o Lord Hoffmann at [60] ‘What human rights law has done is to
identify private information as something worth protecting as an
aspect of human autonomy and dignity’
o Naomi Campbell = claimant
o Piers Morgan, editor of the Mirror at the time published articles
about her drug addiction and photos of her leaving
treatments/therapy
o She publicly said that she did not take drugs
o She accepted that the newspaper was allowed to correct this
statement -> she takes drugs and is undergoing treatment. But she
argued that the additional information cannot be published without
consent. The disclosure of details of her treatment, accompanied by
the secretly taken photos, were more than just ‘peripheral’ to the
main story and went beyond merely setting the record straight.
o The newspaper argued that there was no breach – relied on
public interest defence and that additional details were
peripheral details and were not important
o Naomi won and was given damages
o Court recognised a new tort of misuse of private
information
 o Underlying value of breach of confidence changed = more
about autonomy and dignity rather than only protecting a
relationship of confidence

- S6 = makes it unlawful for a public authority to act in a way which is

incompatible with human rights
- S8 = right to privacy. private persons can be sued too, extends s6
(horizontally applied)
- S10 = freedom of expression

Elements of misuse of private information

- Step 1 Is Article 8 (right to privacy) engaged?
o Did the claimant have a reasonable expectation of privacy
in respect of the disclosed information?
o Objective test

- Step 2 Proportionality/balancing analysis:

o Balancing exercise: Art 8 against Art 10 (right to private and
family life vs freedom of expression)
o Which one has greater weight? Consider public interest in
publication

- Ratio of Campbell
o Uncertain – judges give different reasons
o Lord Nicholls: (1) reasonable expectation of privacy? (2)
balancing exercise
o Baroness Hale: (1a) reasonable expectation of privacy? (1b)
publisher of information knows/ought to know about this? (adds in
an extra step) (2) balancing exercise – argued that the courts were
not creating a new form of action but just extending the doctrine
o Lord Hope: more radically different: (1a) obvious that the
information is private? (1b) If not, would disclosure give
‘substantial offence’ to reasonable person of ordinary sensibilities
placed in similar circumstances to claimant? (2) balancing exercise
– inspired by an Australian case which was inspired by a US case

- Relationship between Article 8 and 10

- Neither has precedence over the other
- Both are vitally important = affirmed by UKSC in:
o PJS v NGN Ltd [2016]
 ‘(i) neither article has preference over the other,
(ii) where their values are in conflict, what is necessary is
an intense focus on the comparative importance of the
rights being blamed in the individual case, (iii) the
justifications for interfering with or restricting each
 right must be taken into account and (iv) the
proportionality test must be applied

What is the nature of misuse of private information?

- Tortious? Equitable? Sui generis?
- Vidal-Hall v Google Inc [2015
o Accepted that is a tort bc it differs from BOC (equitable) bc they
protect different interests even though they have same underlying
values
o [18] ‘[a]lthough the issue as framed in this appeal in one sense is a
narrow one, it is none the less appropriate to look at it in the broader
context.’
o [21] ‘the concepts of confidence and privacy are not the same
and protect different interests… it is also the case that the
action for misuse of private information has been referred to as
a tort by the courts.’
o [43] ‘Misuse of private information is a civil wrong without
any equitable characteristics.’

- REMEMBER: Not a general privacy tort. This is a tort relating to

information and the misuse of that information

Article 8: illustrations
- When will a claimant have a reasonable expectation of privacy?
- Murray v Express Newspapers ltd [2004
o Objective question -> broad and takes the all circumstances of the
case
o Eg the attributes of the claimant, nature of the activity, the
place, the nature and purpose of the intrusion, absence of
consent etc.

- Some illustrations of when C may have a reasonable expectation of

privacy
o Health/medical information
 Campbell v MGN [2004] – courts recognise information
about health to be private and confidential but depends on
fact and degree. Not every statement about a person’s
health will carry the badge of confidentiality or risk doing
harm to that person’s physical or moral integrity

o Information relating to sexual relations/relationships

 Mosley v NGN [2008] - one is usually on safe ground in
concluding that anyone indulging in sexual activity is entitled
to a degree of privacy — especially if it is on private
property and between consenting adults (paid or unpaid).’
Essentially their own business
 K v NGN [2011] – husband having an affair. Wife found out
but wanted to keep it from the children. Their work
 life becomes complicated. Wanted to keep the story away
from the press. End of employment for X. Asks for
injunction. Injunction granted – work place is still private
information, breach of A8.
 Interest of children had a lot of weight
o Photographs
o Privacy in public places
o Suspected/arrested for a crime

Photographs
- Campbell v MGN [2004]
o Lord Hope: [123] ‘But these were not just pictures of a street scene
where she happened to be when the photographs were taken. They
were taken deliberately, in secret and with a view to their
publication… The zoom lens was directed at the doorway of the
place where the meeting had been taking place.’ – the nature of the
zoom lenses not ordinary. You would reasonably not except people
taking pictures of you
o Baroness Hale: [155] ‘A picture is “worth a thousand words’
because it adds to the impact of what the words convey; but it
also adds to the information given in those words.’

- Douglas v Hello! No3 [2006]

o Contributed a lot in the development of privacy in the UK
o The couple was getting married and brought a claim against
Hello! Magazine for breach of confidence
o The photos of their wedding published in the magazine. This was
problematic bc they already agreed with the OK magazine, their
rival, that they will give them exclusive access to their photos for 9
months after the wedding
o Arranged for security and rules for no photos to be taken – an
intruder took photos and that’s how Hello got the images
o Reasonable expectation in respect of the photos?
o Court held: [105] ’there will be a fresh intrusion of privacy
when each additional viewer sees the photograph and even
when one who has seen a previous publication of the
photograph is confronted by a fresh publication of it.
o Emphasised the power of photography -> adds an extra
dimension or weight to the reasonable expectation of privacy

- Mosley v NGN ltd [2008]

o M was the then president of the F1 racing – claimant
o Defendant was the publisher of the News of the World
o M was participating in a S&M orgy -> published the story and
even put photos (someone else in the orgy took photos and sold
them)
 o Taking advantage of sex workers
o The act was also considered to be Nazi themed bc some people were
wearing prison uniforms. This is extra problematic bc M is a relative
of the Mosleys in England of the 1930 who were the only people
supporting fascism at the time
o Court did not find it to be Nazi themed
o There was also a video -> M sues for an injunction. Granted
damages

- Privacy in public places?

- Can you have a reasonable expectation of privacy even in a public
place?
o Yes – within reason

- Von Hannover v Germany no1 (2005)

o Involved Princess Caroline of Monaco – brought several claims
against journalists and publishers in domestic German courts
o Photos of her doing everyday activities published -> Princess
Caroline is a public figure but none of the photographs showed her
on duty, they were domestic -> private action, no public interest for
the pics to be published
o Brought the cases to the European court of HR bc German
courts rejected her arguments
o Strasbourg held: Article 8 infringement. Germany had not
complied with the article bc the article also imposes a positive duty
on the state to protect the private life of citizens
o [50] ‘the guarantee afforded by Article 8 of the Convention is
primarily intended to ensure the development, without outside
interference, of the personality of each individual in his relations
with other human beings… There is therefore a zone of
interaction of a person with others, even in a public context,
which may fall within the scope of “private life”.
o [53] ‘In the present case there is no doubt that the publication… of
photos of the applicant in her daily life on her own or with
other people falls within the scope of her private life’

- Compare Strasbourg court in Von Hannover to HL in

Campbell
o Baroness Hale in Campbell:
o [154] ‘If this had been, and had been presented as, a picture of
Naomi Campbell going about her business in a public street, there
could have been no complaint. She makes a substantial part of her
living out of being photographed looking stunning in designer
clothing. Readers will obviously be interested to see how she
looks if and when she pops out to the shops for a bottle of
milk. There is nothing essentially
 private about that information nor can it be expected to damage
her private life.’
o Article 8 application in the UK and Strasbourg not always
aligned.

- Murray v Express Newspapers [2008]

o Infant son of JK Rowling – 19 months old, taken photos of him while
out for a walk with his parents
o David (child) bringing the claim – can a baby have a
reasonable expectation?
o Child's Art 8 right to be
 [37] ‘considered in a wider context by taking into account
not only the circumstances in which the photograph was
taken and its actual impact on the child, but also the position
of the child’s parents and the way in which the child’s life as
part of the family had been conducted…. The court can
attribute to the child reasonable expectations about his
private life based on matters such as how it has in fact
been conducted by those responsible for his welfare
and upbringing’ – JK Rowling had been very private about
her child so can attribute a reasonable expectation

o Child aspect:
 [50] ’the parents’ wish, on behalf of their children, to
protect the freedom of the children to live normal lives
without the constant fear of media intrusion is (at least
arguably) entirely reasonable and, other things being equal,
should be protected by law’

o Public space aspect:

 ‘they were not taken as street scenes but were taken
deliberately, in secret and with a view to their
subsequent publication.’ – intention to make a profit
 [54] ‘the focus should not be on the taking of a
photograph in the street, but on its publication. In the
absence of distress or the like caused when the photograph
is taken, the mere taking of a photograph in a street may
well be entirely unobjectionable.’

- Weller v Associated Newspapers plc [2015]

o Famous musician of a band out with his 16-year-old daughter and
10-month-old twins - Out in a café and were photographed
o Weller talked to the photographers and was assured that if the
pictures of his children were published, they would be blurred –
they weren’t
o CA held: rights infringed
 o Family element distinguishes it from Campbell – family outing
emphasised
 [61] ‘this was a private family outing... The essential point
is that it was a family activity which belongs to that part
of life which is protected by the broader right of
personal autonomy recognised in the case law of the
Strasbourg court’
 [61] The family element of the activity distinguishes it
from Naomi Campbell’s popping out the shops for a
bottle of milk and Sir Elton John standing with his driver
in a London street, outside the gate to his home wearing a
baseball cap and tracksuit: see John v Associated
Newspapers plc [2006]’

 Child aspect
• [32] ’When a person goes out in public, he assumes
certain risks. But it cannot reasonably be said that
young children, even when they are in public, lay
themselves open to the possibility of their privacy
being invaded’
• [33] ’A child’s reasonable expectation of privacy
must be seen in the light of the way in which his
family life is conducted’
 Older children/ younger children
[31] ’An older child may be able to exercise his
autonomy in a similar way to adults… they may
create “a personality and public profile of their
own”. An older child is likely to have a greater
perception of his own privacy and his
experience of an interference with it might well
be more significant than for a younger child.’

- Suspected or arrested for a crime

- Can you have a reasonable expectation of privacy?
- Khuja (formerly known as PNM) v The Times [2017]
o Well known in Oxford
o Arrested by the police under an investigation for organised
child sex grooming and organised child prostitution
o Released – not arrested was only a suspect
o A separate trial arises later -> a witness shares evidence of the
abuses she refers to an abuser with PNM’s first name -> the
prosecuting council believes that abuser to be PNM
o Uses his full name in the trial to identify him – public trial
(open court)
o Judge granted an injunction for any report throughout the trial that
identified PNM’s first name
 o Police notified PNM that he would not be charged. The Times
wanted to publish the story of him being arrested and released
o Should PNM pursue the injunction to disguise his name?
o Held: no reasonable expectation
 ‘the law proceeds on the basis that most members of the
public understand that, even when charged with an
offence, you are innocent unless and until proved guilty
in a court of law’ -> being arrested or identified as a
suspect does not mean you are guilty of the crime. Most
people know this as a basic principle
 The public is entitled to know what happens in the
courts – in public cases
 The media serve as the eyes and ears of the wider public
 Would be a direct press censorship to hold
otherwise, no reasonable expectation of privacy can be
found in open courts – open justice

- Article 10
- What does it protect?
o Freedom of expression
o What type of speech?
o Von Hannover (No 1) (2005)
o Information shared must be capable of contributing to a
debate in a democratic society
o [65] ‘the publication of the photos and articles in question, of
which the sole purpose was to satisfy the curiosity of a
particular readership regarding the details of the
applicant’s private life, cannot be deemed to contribute to
any debate of general interest to society’
o Eg gossip not included

- Axel Springer AG v Germany – relaxation of criteria?

- Political speech
o Highly protected
o Hale in Campbell – top of the list of the protected speech

- Educational speech
o Important to protect
o Enables the development of individuals – Hale in Campbell

- Artistic speech
o Protection of creativity and free thinking

- Gossip
 o Not important to protect
o Bottom of the list
o Mosley v NGN: Eady J
 There must be some limits and, even in more serious
cases, any such intrusion should be no more than is
proportionate’
 [127] ‘it is not for the state or for the media to expose
sexual conduct which does not involve any significant
breach of the criminal law.
 It is not for journalists to undermine human rights, or
for judges to refuse to enforce them, merely on grounds
of taste or moral disapproval. Everyone is naturally
entitled to espouse moral or religious beliefs to the effect
that certain types of sexual behaviour are wrong or
demeaning to those participating. That does not mean that
they are entitled to hound those who practice them

- Balancing factors
o Axel Springer AG v Germany (2012):
 Contribution to debate of general interest
 How well known is the person concerned and what is the
subject of the report? Are they a public persona acting in a
public context, or a private individual? [91] cf approach of
ECtHR in Von Hannover (No 1) (2005) and Von Hannover
(No 2) (2012). – distinction between public and private
figures
 Prior conduct of the person concerned, have they
courted publicity in this area?
 Method of obtaining information (did the defendant proceed
in good faith?) and veracity of the information - ethical
journalism
 Content, form and consequences of the publication. Way in
which photo/information is presented, the dissemination,
circulation figures etc

Remedies
- Damages:
- What is actually being compensated when court awards damages?
o Infringement of right itself, humiliation, distress?
o Mosley v NGN -> the right itself which aims to protect
personal dignity, autonomy and integrity.
o [216] ‘it is reasonable to suppose that damages for such an
infringement may include distress, hurt feelings and loss of
dignity. The scale of the distress and indignity in this case is
difficult to comprehend. It is accepted in recent jurisprudence that a
legitimate consideration is that of vindication to mark the
infringement of a right: see, e.g.
 Ashley v Chief Constable of Sussex [2008]’ – not substantive
damages in the context of this case

- Clarification in the Gulati v MGN

o Phone hacking scandal
o Certain employees of British newspapers hacked into the voice
messages of well-known people and wrote stories about them
o [45] ‘In my judgment, the judge was correct to conclude that the
power of the court to grant general damages was not limited to
distress and could be exercised to compensate the claimants
also for the misuse of their private information. The essential
principle is that, by misusing their private information, MGN
deprived the claimants of their right to control the use of
their private information.’
o [47] ‘the claimants had suffered damage in that their private
information had been misappropriated and had genuinely
suffered considerable distress’
o Must show that there is a reasonable relationship between
damages for misuse of personal information and personal
injury -> balance
o Should damages be awarded for each invasion of privacy? – matter
of judicial discretion. Each event/invasion gives rise to a separate
cause of action.
o Should English law mirror Strasbourg and award modest
compensation?
 Strasbourg only has to give just satisfaction for
infringement of rights
 English tort law awards much larger damages
 Concluded in this case that, English courts are not bound by
EU courts: measure of damages is more for the English
domestic law. First reason is that the conditions of the tort
are governed by English law and not the Convention.
Secondly, it is more appropriate for the national court to
award damages

- Injunctions
- What if the information is in the public domain?
- Is there any justification for the court to be granting an injunction if
the story is already published (eg in a smaller medium)?

- Mosley v NGN [2008]

o If it is out there, it is already out there.
o Injunction to take down the video of the orgy was rejected and
instead damages were awarded.
o Court giving an injunction would make so little difference bc it
was so widespread on the internet and a lot of people already saw it
 - PJS v NGN Ltd [2016] – leading case in awarding injunctions
o Claimant and partner were well-known names in the
entertainment industry, they had young children. Claimant had
an affair outside marriage and sexual encounters
o Some of these encounters wished to sell their stories and gave them
to the Sun. The Sun was restrained from publishing the stories
o One of the affairs that PJS had went to a US magazine and they
published the story. Information is now available in the States –
only available in the States in hard copy
o Publishers blocked access to the story from other places but
eventually the story made its way to publications in Canada and
Scotland. Also picked up in Twitter and rest of social media
o Given that the information is out there, NGN argued the injunction
should be lifted and newspapers should be allowed to publish the
story
o The press raged against this injunction – headlines
o Lord Mance in the UKSC
 Stayed the injunction despite the fact that the
information was out in the public domain
 Different approach than Mosley.
 With each publication, a new tort arises. Keeping
the injunction allows the court to prevent more torts
 Lord Neuberger’s judgment in PJS emphasises how important
it is to characterise the underlying interest as privacy and not
confidence
• [57] ‘If PJS’s case was simply based on
confidentiality (or secrecy), then, while I would not
characterise his claim for a permanent injunction as
hopeless, it would have substantial difficulties.’
• [58] ‘However, claims based on respect for privacy
and family life do not depend on confidentiality (or
secrecy) alone’
• [63] ‘if there was no injunction in this case, there
would be greater intrusion into the lives of PJS
and [others] through the internet’

DEFAMATION

- Defamation = harm caused by a person who made a public

claim/statement about someone else which damages their
reputation
- Strict liability tort
- The tort of defamation is divided into 2 causes of action  libel and
slander
- Libel is a defamatory statement in permanent form (written) ->
applied to publications in writing and also includes TV and radio
broadcasts (Defamation Act 1952) and theatre performances
o Actionable per se -> without proof of damage
o But must prove that the claimant must satisfy the court that
serious harm has been or is likely to be suffered before a
statement is actionable

- Slander is defamation in a transitory form such as a speech or a

gesture
o Generally, actionable only with proof that the claimant has
suffered special damages – usually financial
- Broadcasting is considered libel not slander as the act of recording turns
it into libel

- 2 situations in which proof of damage is not required:

o Imputation of a criminal offence, punishable by imprisonment
o Imputation of unfitness or incompetence in an office,
profession or business

- 3 basic requirements for the action in defamation:

o A defamatory statement which causes or is likely to cause
serious harm
o That the statement refers to the claimant
o That the statement is published

1. A defamatory statement:
o According to the Defamation Act 2014 s1(1) – a statement is not
defamatory unless its publication has caused or is likely to cause
serious harm to the reputation of the claimant.
o "A publication, without justification or lawful excuse, which is calculated to
injure the reputation of another, by exposing him to hatred, contempt, or
ridicule." – earliest definition that is still being referred to (Parmiter v
Coupland 1840)
 Intended to raise the bar against claimants and in favour of
free speech
o Mere abuse will not be actionable – but the position and/or
occupation of the claimant is relevant as in Berkoff v Burchill
o Context will be taken into consideration – Charleston v NGN
where it was held that a publication had to be read as a whole.
o Innuendo -> at times the defamatory meaning of the
statement may not be self-evident – 2 types of innuendo
 The true or legal innuendo applies to a situation in which
additional facts must be pleaded by the claimant in order to
establish the defamatory meaning for the statement ->
Meaning innuendo
 The false or popular innuendo requires knowledge of
alternative or slang meanings or words or reading
 between the lines. Examples are words with double meanings
eg gay. -> reference innuendo
o Single meaning rule -> meaning of words are subjective and can be
multiple. The ‘right’ meaning of the word should be considered to
be the meaning the adjudicator to whom the law confides the
responsibility of determining it – artificial and arbitrary (Slim v
Daily Telegraph Ltd)

2. Which refers to the claimant

o Usually straight forward
o But sometimes the claimant may infer that D’s description of a
real/fictional character refers to him
o Hulton v Jones [1910] -> test applied was whether reasonable
people would believe that the statement referred to the plaintiff.
The intention of the defendant was not relevant
o Group or class defamation -> arises when a claimant says that a
statement referring to a group is defamatory of him eg all law
students are lazy.
 According to Knupffer v London Express Newspapers if the
words refer to a small enough group that they may be taken
to refer to each member – then it may be actionable as such

3. Publication
o The defamatory statement must be communicated to a third party
– someone other than the claimant or their spouse
o Reasonable foresight – complications arise when the defendant did
not intend a third party to read the statement: Huth v Huth [1915]
– the court applied a test of whether it had been reasonably
foreseeable and if the answer is negative then D would not be
treated as having published the defamatory words
 Contrasted with Theaker v Richardson (1962)

o Repetition – every repetition of a defamation constitutes a fresh

defamation and is thus actionable.
 Defamation Act 1952 s1
 Slipper v BBC – held that repetition was arguably the
foreseeable result of the publication and therefore the
defendant’s possible responsibility for it should be put to a
jury

- Defamation and the internet

o Publications on the internet raises problems concerning both the
attribution of responsibility and the defamation of publication
o First major case = Godfrey v Demon Internet Ltd (2001)
  Established that an Internet Service Provider (ISP) could be
entitled to the distributors; defence of innocent
dissemination under the Defamation Act 1996 s1.
However here the ISP had been notified of the defamatory
posting on its bulletin board but had not removed it in 2
weeks. Liability arose bc the defendant could not be said to
have exercised reasonable care before publication
 Can be contrasted with Bunt v Tilley -> since the
Defamation Act 2013 such providers might be able to use
the protection provided by s5 or s10.

- Limits to the action in defamation

o Derbyshire CC v Times Newspapers -> HL held that to allow local
authorities and other governmental bodies to sue for defamation
would have a chilling effect that is, hinder free public debate on
political matters which is the highest public importance
o This case pre-dated the HRA 1998 under which such questions
would now be considered under A10 ECHR
o Applies also the actions by political parties -> but individual
politicians can sue in their personal capacities as in Reynolds

- Defences to Defamation
o Truth (formerly justification)
 The first and most frequently applied defence is truth
according to the Defamation Act 2013 s2.
 English law starts with the assumption that the defamatory
statement is false, and the burden is on the defendant to
prove that it is true objectively tries on the balance of
probabilities.
 This is an absolute defence and is not defeated even if it is
made maliciously
 When a statement contains more than one allegation the
defendant is obliged only to prove the truth of the sting or
harmful portion rather than the truth of every word –
specified by the Defamation Act 1952 s5
 When an allegation is specific, it cannot be justified by
evidence of a general tendency
 Repetition rule specifies that it is not a defence that ‘you
quoted a defamatory statement’ – it is regarded the same as
publishing it again

o Honest opinion
 Formerly known as ‘fair comment’ – set out in s3 of the 2013
Act
 Underused due to technical difficulties
  Protects socially important function of honest and fair
criticism and debate, which, bc it is based upon opinion
cannot be proved to be true or false
 2 requirements:
• The opinion must be genuine and honestly held,
rather than an imputation of fact
o Objective test
• The statement must implicitly or explicitly indicate
the factual basis for the opinion
o It is an opinion so cannot be proved to true or
false -> BUT the facts upon which it is
based must be justified
o Spiller v Joseph -> detailed consideration of
what is required for the factual basis of the
opinion. No longer has to be a comment that
affects the public interest.

o Absolute privilege
 Article 9, Bill of Rights 1689 -> the freedom of speech and
debates or proceedings in Parliament ought not to be
impeached or questioned in a court or place out of the
Parliament
 Absolute bc it is not defeated by proof of malice
 Protection covers situations in which it is very important that
participants be able to speak freely and honestly without fear
of repercussions
 Parliamentary privilege / judicial privilege / executive
privilege

o Qualified privilege
 Qualified bc can be defeated by malice. The meaning of
malice is different from that in fair comment
 According to Horrocks v Lowe qualified privilege will be
lost if the defendant is proved to have held a dominant and
improper motive accompanied by lack of honest belief in
the truth of the statement or recklessness regarding its truth
 2 types:
 Statutory -> the Defamation Act 1996 s15 and sch1 sets out
a long list of different types of reports which are covered by
qualified privilege.
 Common law -> accorded to someone who is acting
under a legal, moral or social duty to communicate
information to a person who had a corresponding interest
in receiving that information

o Publication on a matter of public interest (formerly

Reynolds privilege or responsible journalism)
 Difficult bc there is no identifiable reciprocal
duty/interest
 Addressed in HL in a landmark case of Reynolds
• Facts: an accusation was made by the Times that the
former PM of Ireland had lied to Parliament.
Following a jury verdict in his favour, which awarded
him 1p in damages, the defendant appealed on the
issue of the availability of the defence of qualified
privilege
• Held: the HL considered the issue in the context of
freedom of expression and the public’s right to know
under A10 ECHR. This had to be balanced with the
important individual interest in protection of
reputation -> Times lost the appeal, denied the defence
of qualified privilege. No generic defence in English
law

 Related to Qualified Privilege at Common Law = Factors

which should be taken into account in deciding whether a
particular report could be protected by qualified privilege
were identified by Lord Nicholls in Reynolds as:
• The seriousness of the allegation
• The nature of the information and the extent to
which the subject matter is of public concern
• The source of the information
• The status of the information
• The steps taken to verify the information
• The urgency of the matter
• Whether comment was sought from the claimant
• Whether the article contained the gist of the
claimant’s version of the story
• The tone of the article
• The circumstances of the publication including the
timing

 See also -> Jameel and Flood.

• Lady Hale -> it should now be clear that the
Reynolds defence is a different jurisprudential
creature from the law of privilege, although it is a
natural development of that law.
• The public only have a right to be told if 2 conditions
are fulfilled: 1) must be a real public interest in
communicating and receiving the information 2)
publisher must have taken the care that a responsible
publisher would that to verify the information
published.

 According to s4 of the Defamation Act 2013, the so- called

Reynolds defence has been abolished and
 replaced with the category of qualified privilege known
as publication on a matter of public interest. It requires
the defendant to give affirmative answers to the following
two questions:
• Is the statement complained of on a matter of public
interest or part of such a statement? AND
• Did the defendant reasonably believe that
publishing the statement was in the public
interest?
• Economou v de Frietas (2016) – was the first detailed
consideration of s4. In holding that the defence was
available to the defendant, the judge was guided by
the principles set out in Reynolds.
o ‘the statutory formulation in s4(1) obviously
directs attention to the publisher’s belief that
publishing the statement is in the public interest,
whereas the Reynolds defence focussed on the
responsibility of the publisher’s conduct.
Nonetheless, it seems to me it could not sensibly be
suggested that the rationale for the Reynolds defence
and for the public interest defence are materially
different, or that the principles that underpinned the
Reynolds defence, which sought to hold a fair
balance between freedom of expression on matters of
public interest and the reputation of individuals, are
not also relevant when interpreting the public interest
defence.’

o Offer of amends
 This defence applies to unintentional or innocent
defamation, occurring either bc the defendant thought that
the statement was true of the claimant or made a
statement which was true of someone else but was taken
to refer to the claimant. The defence is set out in the
Defamation Act 1996 ss2-4 requiring the defendant to:
• Make an offer in writing to the claimant that the
will
• Publish a correction and apology and
• Pay compensation and costs
 Freezes the process

o Innocent dissemination
 Common law defence – replaced by the DA 1996 s1
 The defendant must not be an ‘author, editor or
publisher’ of the statement but rather be involved in
mechanical processing, copying or distribution of the
material.
  Not available if D cannot prove on balance of probabilities
that he took reasonable care in relation to its publication

- Remedies
o Damages -> compensatory remedy
 Problems with disproportionately high damages awards for
libel became evident in the 1980s – power to review
specifically the quantum of damages
 DA 2013 s11 stipulates that trial will be without a jury
unless the court orders otherwise
 John v MGN -> Elton John won a libel action in respect of
an article in the daily mirror which claimed that he adopted
a bizarre weight-loss strategy. The jury awarded him 350k
but was reduce to 75k on appeal under the 1990 Act. The
CA endorsed for the first time that the judge may indicate
to the jury appropriate guidelines of the range of
appropriate damages in the case; furthermore, that it may
be appropriate for him to draw comparisons with levels of
damages in personal injuries cases
 It is difficult to put an accurate price on loss of
reputation. Already poor reputation can mitigate
damages
 Bingham MR:
• “The successful plaintiff in a defamation action is entitled to
recover, as general compensatory damages, such sum as will
compensate him for the wrong he has suffered. That sum
must compensate him for the damage to his reputation;
vindicate his good name; and take account of the distress,
hurt and humiliation which the defamatory publication has
caused.”

o Injunction
 Highly unlikely that an interim injunction will be granted to
prevent an initial publication
 According to Bonnard v Perryman such a threat to the right
of free speech would only be justified in the most exceptional
case.

- Policy issues
o Role of the jury in calculating damages
o Not clear that the common law has sufficiently adapted to the
particular issues around internet defamation
o Costs in libel actions are extremely high and many media
defendants are reluctant to defend cases which are
increasingly being settled rather than litigated
o Concerns about threats to article 10

Structure for PQ:

 - Go through statement by statement
- Is this defamatory?
o Test = would the statement lower the reputation of the person in
the eyes of the right-thinking member of the society – Lord
Atkin in Sim v Stretch
o Fact or opinion
o Serious harm – actual or potential

VICARIOUS LIABILITY AND NON-DELEGABLE DUTIES

- Basic conceptual framework

- Vicarious liability is liability of other people’s actions
o A commits a tort against B but C is liable for the consequences
o This is a secondary form of liability which inherently hinges on A committing a
tort against B
o It does not depend on C’s being at fault – liability is strict
o It does not matter what tort A has committed, if the requirement of VL are
satisfied, C can be held liable.

- A non-delegated duty is one that, cannot be shifted to someone else

o A causes harm to B but C is liable in tort for the consequences
o This is a primary (or personal) form of lability. C is liable here bc they owe a duty
directly to B which A’s activity breaches – C is not at fault for the act that has
caused the harm to B
o A herself does not, necessarily have not committed a tort against B
o Again, liability here does not depend on showing were themselves at fault and
so, liability is in that sense, strict
- Note in both scenarios, A may be liable to B directly themselves. Our focus here is on C’s
responsibility
- Neither of these doctrines are freestanding ‘torts’ themselves
- NOTE: difference between employer’s liability and VL is that VL is owed FOR the
employee whereas the former involves a duty of care towards the employee.

- A key principle: there is no vicarious liability for the act of independent contractors that
you hired – main difficulty = the scope
o Vicarious liability, traditionally, focused on the liability of an employer for
torts committed by their employees – there must be an employment
relationship
o If A is not C’s employee but is, instead, an independent contractor that C has
hired to perform a task, then C could not be vicariously liable for harm to B
resulting from A’s actions
o UNLESS C owed B a non-delegable duty, in which case it did not matter that it was
A that had caused the harm and not C. C would be in breach of this non-
delegable duty and B could recover from them directly.
o So, although diferent in nature, they possess an important symbiosis.
Understanding non-delegable duties (NDD)
- We are familiar with the notion of delegable duties of care. If you get the IC to do it,
then the occupier’s duty is discharged – paying satisfies the duty
- What makes non-delegates duties a special category?
o The ordinary duty of care in negligence is a duty to take reasonable care
o A NND exceptionally is a duty to see that reasonable care is taken. You need to
bring about a particular result -> can’t satisfy by avoiding it
o Question of law -> there are some long-standing established categories
 Employers duty to provide a safe working environment for their
employees. Think of the importance placed on this duty in cases like
Fairchild.
 Fire: Balfour v Barty King (1957, CA)
 The performance of ultra-hazardous activities: “Acts which by their
very nature involve in the eyes of the law special danger to others”
 Honeywill & Stein v Larkin Brothers (1934)
• Facts: C hired D to photograph X’s cinema. D used dangerously
explosive magnesium flashbulbs and, negligently, thus sets fire to the
cinema. C paid X for the damage and then sued D to recover the
funds.
• Held: C owed a non-delegable duty towards X and was, thus
liable for the damage resulting from D’s negligence and could
recover from D.
• But how do we tell what sorts of activities are ultra-hazardous?
 No theory explains when or why NDD arose

- Woodland v Swimming Teachers Association (2014 UKSC)

o Facts: C, who was 10, sufered a catastrophic brain injury having got into
difficulties during a swimming lesson which took place during school hours and
which was run by an IC who the school had engaged to comply with their
obligation under the national curriculum. The IC and her employees the swimming
teacher and lifeguard were the only ones present and were not worth suing as they
were not employees of the school, ruling out VL.
o So, C argued that the school owed her a NDD to ensure reasonable care was taken
during the lessons.
o Held: There was a NDD owed by the school and, as such the school could be liable
for the negligence of their IC
o A number of features of Woodland are worth close attention:
i. Lord Sumption identified two broad categories (but not exclusive) of
cases within which a NDD will be owed:
• The first, described as ‘large, varied and anomalous’, was
represented by Honeywill but he was as cautious about its
continued relevance
• The second was an attempt to create an abstract set of guiding
principles, a ‘Donoghue’ moment for NDD – abstract set of rules
o The second category of cases where an NDD would be owed, of which
Woodland itself was a good example, was defined by an assumption of
responsibility by D. The resulting duty had three basic characteristics:
i. Duty arises not from the negligent character of the act but because of an
antecedent relationship between D and C
ii. The duty is an affirmative duty to protect a particular class of persons
against a particular class of risks, not merely to refrain from acting in a way
that foreseeable causes harm.
iii. The duty is, by virtue of that relationship, personal to the defendant. It
may be delegated in practice, but, legally, it remains with the defendant.

o Lord Sumption viewed NDDs as an important but, ultimately, exceptional

category -> they are inconsistent with fault-based principles on which the law of
negligence is based
o Setting aside the Honeywill category, an NDD had five features, which could be used
to identify in any given case if a duty was non-delegable or not:
 ‘(1) The claimant is a patient or a child, or for some other reason is
especially vulnerable or dependent on the protection of the defendant
against the risk of injury. Other examples are likely to be prisoners and
residents in care homes.

 (2) There is an antecedent relationship between the claimant and the

defendant, independent of the negligent act or omission itself, (i) which
places the claimant in the actual custody, charge or care of the defendant,
and (ii) from which it is possible to impute to the defendant the
assumption of a positive duty to protect the claimant from harm, and
not just a duty to refrain from conduct which will foreseeably damage
the claimant. It is characteristic of such relationships that they involve
an element of control over the claimant, which varies in intensity from
one situation to another, but is clearly very substantial in the case of
schoolchildren.

 (3) The claimant has no control over how the defendant chooses to
perform those obligations, i.e. whether personally or through
employees or through third parties.

 (4) The defendant has delegated to a third party some function which is an
integral part of the positive duty which he has assumed towards the
claimant; and the third party is exercising, for the purpose of the
function thus delegated to him, the defendant's custody or care of the
claimant and the element of control that goes with it.

 (5) The third party has been negligent not in some collateral respect but
in the performance of the very function assumed by the defendant and
delegated by the defendant to him.’ per Lord Sumption at [23]
 o The decision represented an extension of liability, in the context of a public
authority, into an area where there had previously been no duty. How does this
reconcile with the various policy concerns expressed in Robinson and the numerous
other public authorities’ cases?
o But keep in mind that -> such judicial statements are not to be treated as if
they were statutes and can never be set in stone.” Per Lady Hale at [38]

- NDDs post-Woodland
- Armes v Nottinghamshire CC (2017 UKSC)
o Facts: C was, under their statutory powers in s21 Child Care Act 1980, taken into
care by D when she was 7. D placed her into foster care with A, who
physically abused her, and then B, who sexually abused her. No proof that D was
negligent in selecting the foster parents or in supervising the placements while they
were ongoing.

o Held: D did not owe a non-delegable duty covering the safety of children in its
care while they were placed with foster parents
 Trial judge rejected the notion of an NDD on the basis that it was not
fair, just and reasonable to impose it even if Lord Sumptions’ five factors
were satisfied -> treated fair, just and reasonableness requirement as a
separate Caparo like requirement
 He felt it would impose an unreasonable financial burden, it might
force councils to be less willing to foster out children in need
 In the UKSC Lord Reed (delivering the leading judgement) began with NDD
first, before moving to VL, an interesting analytical approach, begin with
D’s direct duties, as, if satisfied there was no need to further impose
vicarious liability (although, of course, you may still want to sue the
‘employee’ tortfeasor in any case, think about vindication).
 Lord Reed considered some important matters:
• No bar to a finding of a NDD, to point to the harm having
arisen from deliberate wrongdoing rather than, as in
Woodland, negligent behaviour
• Fair, just and reasonable is not routinely a separate requirement,
the Woodland criteria wrap up this assessment
• Whilst Woodland confirmed voluntary assumption of
responsibility as the root of this second ‘open’ category on
NDDs, the duty placed upon D, which they would not be able to
delegate, obviously could arise by statute.
• Key question = what was actually ways the duty that had been
entrusted to D? focusing closely on statutory language, the answer
was to arrange, supervise and pay for day to day care, not provide it.

- The shape of vicarious liability

- 3 requirements for a successful claim
o Tortfeasor must commit a tort against C
o There must be a relationship between T and D which is capable of sustaining the
imposition of VL. Classic example = employment relationship
o A sufficient connection between the relationship and the tort. There can be no VL
if the tort arose as result of T going on a frolic of their own

- For whom may D be vicariously liable: Employees

o Key principle, you cannot have VL for the acts of your independent
contractors -> ICs are those with whom D has a contract for services

o Employees (servants) are the classic example of who D can be vicariously liable
for but it is now, clearly broader than this
 An employee was someone with whom D has a contract of service
 How do we actually identify whether you are an employee?

o Various approaches have been used:

 Control: the greater the control D has over what, how, when and
where, T does his job the more likely it is that T is D’s employee –
classic test used in the medical cases, but unlikely to be relevant now
-> not necessarily controlling them as a puppet
 Integration into D’s organisation both in terms of the work
undertaken and the structures of the organisation:
• to what extent was T’s work integral to D’s business or
organisation? The greater the extent, the more likely T is an
employee, the more it seems T’s task is accessory to D’s
business, the less so. -> Stevenson, Jordan and Harrison v
Macdonald
 Composite test: Looking at the whole situation, is T actually in
business for themselves? – referred to as the entrepreneur test
• ‘…the fundamental test to be applied is this: ‘Is the person who has
engaged himself to perform these services performing them as a
person in business on his own account?’.
• if yes = contract is a contract for services
• if no = contract is a contract of service
• The application of the general test may be easier in a case where
the person who engages himself to perform the services does so in the
course of an already established business of his own; but this factor
is not decisive.’ Market Investigations Ltd v Minister of Social
Security (1969, HC) per Cooke J

o Difference between employee and IC

 Employee Independent Contractor

Is integrated into the business, Has no interest in the employer’s

with the possibility of profit business
sharing

Is paid a regular wage Is paid by the job done

Has tax and benefits provisions Does not have tax or benefit
from the employer provision

Is supplied with tool, uniforms or Supplies his own tools etc

vehicle

Works at a regular time and place Determines his own hours and
methods

- Loaned Employees
- The problem: A employs B but then ‘loans’ B to C to perform a piece of work. Whilst
carrying this out, B injures Z. Who can Z sue vicariously?
- Mersey Docks and Harbour Board v Coggins and Griffith (1947)
o Facts: A harbour authority let a mobile crane to a firm of stevedores for
loading a ship, providing a crane driver who was employed and paid and liable
to be dismissed by the authority. The general conditions under which such
employees were hired by others stipulated that crane drivers hired out should be
the employees of the hirers. The crane driver’s negligence caused injury to a
bystander, who sued the authority.
o Held: Harbour authority, as general permanent employer, retained
responsibility for the negligence of their crane driver. Shifting this
presumption was possible but difficult to do. The agreement between the
authority and the firm was not decisive.
 “The proper test is whether or not the hirer had authority to control
the manner of execution of the act in question. Given the existence of that
authority its exercise or non-exercise on the occasion of the doing the act
is irrelevant.” per Lord Uthwatt

- Mersey seeks to identify one employer in relation to any negligent act, but can two
employers be vicariously liable for T’s act?
o Viasystems ltd v Thermal Transfer (2005)
 Facts: C engages D1 to install machinery in C’s factory. D1 subcontracts this
to D2; D2 contracts with D3 to supply fitters and fitters’ mates (i.e.
labourers). A fitter’s mate supplied by D3 (along with a fitter) but
working under the supervision of a foreman from D2 negligently
flooded the site.
 D3 was held vicariously liable at trial but appealed on the basis that they
were not liable at all, D2 contended that they should be dually
vicariously liable.
 Held: Dual liability is possible in cases where the negligent employee was
working under supervision and control of employees of 2
 diferent companies. Not a common solution to displace Mersey Docks.

- Moving beyond employment to situations that are ‘akin to employment’

o Recent cases pressured the employee/IC split, or the need for any contract at all
between the tortfeasor and the defendant. The key shift came in 2 cases to do with
sexual abuse carried out by members of religious organisations
o E v English Province of Our Lady of Charity & JGE v Portsmouth Roman Catholic
Diocesan Trust (2012)
 Facts: C had been placed in the care of nuns as a young child and alleged
that she had been raped by a priest (D2) appointed by the bishop of the
local diocese (a unit of ecclesiastical geography) during that period. D1
was a trust that was established to provide the Catholic Church with a
legal personality. The priest did not have a contract with the church and,
once appointed, could not realistically be controlled in how he carried
out his ministry. It was common ground that he was not an employee
of the Church.
 Held: There could be vicarious liability where the relationship
between D and T was so akin to employment that it was just that D
could be liable for his acts
• “If there is a close connection test, it is that the relationship
between the defendant and the tortfeasor should be so close to a
relationship of employer/employee that, for vicarious liability
purposes, it can fairly be said to be akin to employment. For
this purpose one is looking to identify the broad characteristics
of the employer/employee relationship.” per Ward LJ

o Examined underlying policy rationales of VL. Held that it was fair to extend
vicarious liability – but noted that fairness and justice are not enough to be a
stand-alone test
o The doctrine of VL does give rise to a clash of 2 broad policies upon which the law
of torts if founded, one that there ought to be an efective remedy for the victim
of another’s wrongful act, and the other that the defendant should not generally
be held liable unless he was at fault -> only policy considerations can explain the
triumph of the former over the latter

o Catholic Child Welfare Society v Various Claimants (2012) - CCWS

 Facts: C appealed against the finding that D (the ‘Institute’), a religious
order, was not vicariously liable for sexual and physical assault carried out
by members of that religious order.
 Held: Both bodies were vicariously liable.
 Lord Philips set out the five policy reasons or factors that made it fair, just
and reasonable to impose vicarious liability
 Considering the facts of this case, stage 1 of the test for VL was
satisfied
 o Cox v Ministry of Justice (2016)
 Facts: T, a prisoner, injured C whilst working in a prison managed by D.
Claim against D, as being vicariously liable for the prisoner was
dismissed at trial but allowed by the Court of Appeal. D appealed.
 Held: Focusing on the three most relevant of Lord Philip’s five factors,
there was a sufficient relationship here to satisfy stage 1 of the test for
vicarious liability.
 Lord Reed, delivering the judgement of the UKSC, adopted Philips’
analysis.
 It was not necessary that the ‘business’ be profit generating in the
traditional sense
 Here the CCWS five factor approach was satisfied:
 The activity was carried out in furtherance of the prison’s aims
and was of direct and immediate benefit to it rather than
merely rehabilitation of prisoners
 Prisoners who work in the kitchens carry out an integral part of
that activity
 They are placed in a position where there is a risk that they
might cause negligent harm (hence their health and safety
training)
 They work under the direction of the prison staf
 There is no need for an alignment of objectives between D and T,
indeed, in this sense the case may be stronger for prisoners than
employees
 Payment of a wage was not necessary, as could be seen in
CCWS

REMEDIES AND PRINCIPLES OF COMPENSATION

Types of damages:
1. Compensatory damages -> damages designed to put the claimant back into the position
as if the tort had not been committed.
- Livingstone v Raywards Coal Co (1880) -> the measure of damages is the sum of money
which will put the party who has been injured, or has sufered, in the same position
as he would have been in if he had not sustained the wrong for which he is now
getting his compensation.
- Smith New Court Securities Ltd v Scrimgeour Vickers ltd -> In a case of deceit or
negligent misrepresentation C is entitled to be put into as good a position as if no
representation had been made, but not to be put into as good a position as if the
statement had been true
- Calculation can be difficult for harm that does not have an easy economic valuation
eg the distress in the phone-hacking cases or general misuse of private information
- Representative Claimants v MGN ltd [2015]
- Richard v The British Broadcasting Corporation [2018]
2. Aggravated damages -> but are these really compensatory?
- Something that D has done increased the harm caused to the claimant
- You wouldn’t get aggravated damages in a negligence action -> usually in a tort which
requires intention

3. Exemplary (or punitive) damages -> damages with the aim of punishment
- Controversial
- In English law there are significant limits on when exemplary damages can be
awarded
- Rookes v Barnard [1964] -> Lord Devlin’s 3 categories
o Oppressive, arbitrary or unconstitutional action by the servants of the
government -> eg police
o Cases in which the defendant’s conduct has been calculated by him to make a
profit for himself which may well exceed the compensation payable to
the plaintif
o Any category in which exemplary damages are expressly authorised by statute

- Cause of action limitation?

o Kuddus v Chief Constable of Leicestershire [2002]

- What does ‘calculated to make a profit’ mean?

o Does it require a full-on economic calculation of losses and benefits or can it be
less formal?
o Can be less formal -> it is what the defendant anticipates
o AT v Dulgheieru [2009] -> false imprisonment case. Human trafficking of
prostitutes

4. Nominal damages -> cases where the claimant has been the victim of a wrong/right
has been infringed but no damage has resulted
- Example from false imprisonment: Parker v Chief Constable of Essex [2018]

5. Contemptuous damages -> technical legal victory for claimant but award reflects disapproval of
claimant bringing the claim at all
- Grobbelaar v News Group Newspapers Ltd [2002]
o Liverpool goal keeper sued the newspaper for claiming that he was paid money
to let in a goal
o Won the case but HL reduced his damages
6. Restitutionary damages -> awarded not to compensate a loss that C suffers but a gain that D
makes
- Not to be confused with the independent cause of action for unjust enrichment –
talking here about remedies available for a tort
- Main torts for which restitutionary damages can be awarded are not ones
covered in this course eg conversion, trespass to land
o Note though that in some respects an award of exemplary damages under Lord
Devlin’s second category in Rookes v Barnard might be seen as restitutionary
 o Damages for personal injury -> compensatory
- Historically, rule was that damages were awarded once and only and in a lump sum at the
end of trial
- What reason might support such a rule?
o Benefit for the insurance industry – certainty of liability, minimise
administration costs (D’s point of view)
o From C’s point of view – practical issues eg you might die early

- Exceptions to lump sum awards

o Provisional damages – Senior Courts Act 1981 s32A but note that damages might
allow you to go back to court and claim further damages
o Structured settlements -> annual payment which represents their loss ->
periodic payment.
 Can be adjusted (flexible) but has fundamental limits -> you cannot go back
and renegotiate if anything changes in the future

- Major change in 2003 -> introduction of periodical payment orders

- Damages Act 1996 s2(1)
- Also, provisions allowing for a court to order that a periodical payment order (PPO)
may be varied but possible disease or deterioration must be specified in the original order
– makes it more flexible
- Payments under a PPO are varied in line with the retail price index but note power to
disapply this

- Calculation of Award – Pecuniary loss

o Lump sums
o A number of divisions possible to assist in calculating a personal injury
damages award – use here pecuniary division
o Main headings under pecuniary damages
 Costs of care
 Loss of earnings – awarded to reflect the fact that earning capacity has been
damaged by the injury

o Challenge with lump sum awards: how to deal with loss of earnings post- trial?
• Multiplier method – work out the net annual loss and multiply it by a
figure that represents as a starting point the length of the time for
which the loss will be sufered
• Problem – giving the claimant a lump sum to cover losses that will occur
in the future potentially over(under?) compensates the claimant
• Solution – adopt a discount rate, the rate of return on an investment net
of tax and inflation a claimant could expect to receive
• But how to calculate?
o Considered in Wells v Wells [1999] – cautious and
conservative.
o Set rate = -0.75% (reduced by statutory order)
 o Statutory reform of process for making order – Civil Liability Act 2018 s10, sch
A1 -> one assumption that must be made in calculating rate is that the relevant
damages are invested using an approach that involves:
 More risk than a very low level of risk but
 Less risk than would ordinarily be accepted by a prudent and
properly advised individual investor who has diferent financial
aims

- Loss of earning during the lost years – years that C would have been alive for but as a
result of the tort will not be
o Pickett v British Rail Engineering [1980] – note deduction for domestic
element

- Contingencies/vicissitudes – possibility that the loss might have been caused in any
event eg illness, unemployment
o General statistical vicissitudes vs specific vicissitudes
o Where contingency manifests itself between the date of accident and the date
of the trial -> Jobling v Associated Diaries, Baker v Willoughby

- Cost of care -> C claims for the medical and associated caring costs incurred or to be
incurred as a result of the tort

o Some particular issues:

o Can D argue that C should have mitigated her losses by using NHS care rather
than private care?
o Law reform Act 1948, s2(4)
o Note the ability of the NHS to reclaim certain costs from a compensation
payer in respect of NHS care provided to C
o Can C claim the cost of care required as a result of the tort that is
provided to him/her gratuitously as a result of the tort?
 As a general rule, no pay no recovery – damages are for proved loss
 Donnelly v Joyce – CA allows recovery for nursing services to plaintif
provided gratuitously by his mother = loss was the need for the
services
 ‘Plaintif’s need’ rationale disapproved in Hunt v Severs -> award of
damages in respect of gratuitous caring services to be held on trust for
the third party carer but, as the carer on the facts was the tortfeasor,
there would be no damages awarded

- Non-pecuniary loss
- Claims for losses that do not have a ready equivalence in money
o At common law, three heads of claim
 Pain and sufering
  Loss of amenity
 Loss of expectation of life
 Always an idiosyncratic head and abolished by AJA 1982 s1(1)(a)

o Pain and suffering -> compensation for discomfort etc associated with the injury
itself, and also for worry, stress of a shortened life
 Pain and sufering assessed on a subjective basis – so a
permanently unconscious claimant receives no award
 Compare with loss of amenity – hard to define but broadly five for
the loss of the claimant to live his/her life in the way they did
before the tort
 Objective or subjective – H West & Son v Shephard: majority held that
the award is objective

o Calculation?
 No objectively verifiable process
 Important that the awards remain consistent
 Thus, the level of awards is a matter for judicial decision and new
guidelines can be set by the CA
 Heil v Rankin – does not require legislation but is dealt by the court

o How is it done in practice?

 Judges use Guidelines for the Assessment of General Damages in
Personal Injury Actions
 Contains a long list of general injuries, then divides each injury by
severity, and then lists a band within which an award for non-
pecuniary loss would normally be expected to be made
o How much? Total importance and sexual function in the case of a young man?
o Note the legislative interference for awards of non-pecuniary damages for
whiplash in motor vehicle accidents – regulation not yet passed

- Collateral benefits
o Considers what to do when claimant receives other payments and
benefits in respect of the same injury for which he/she is claiming
damages for in the tort action
o Question is whether these amounts should be deducted from the
damages award D has to pay to C, or whether they are ignored
o Rules are detailed and not always consistent but some common law
guidelines
 Insurance payments are generally not deductible – Bradburn v Great
Western Railway
 Charitable payments are generally not deductible – Parry v
Cleaver
  Benefits akin to pay generally deductible – Hussain v new Taplow
Paper Mills
 Statutory social security benefits are ignored in calculating the lump
sum but are deducted by defendant from the amount paid to claimant
by relevant govt department

- Damages and Death

o Death raises question in tort claims in 2 ways
 Efect of death on existing causes of action
 Death as creating a cause of action
o As to 1), death of a party to a tort action ended the action
o This was changed by legislation 1934: Law Reform (Miscellaneous Provisions)
Act 1934 s1

o Effect of death on certain causes of action

 S1 (1) and (2)
 2)c) – where the death of that person has been caused by the act or
omission which gives rise to the cause of action, shall be calculated
without reference to any loss or gain to his estate consequent on his
death, except that a sum in respect of funeral expenses may be included
 Legislation aims to give an action to the estate for any claim the
deceased had at the date of death (Apart from defamation)
 Note the limits on the damages the estate can claim, in particular
s1(2)(a)(ii)
 What is left is the claim for damages for the period between the date of
the accident and the date of death
 If a very short time between date of accident and date of death, is
there any claim?
 Hicks v Chief Constable of South Yorkshire [1992]
• Parents of 2 who were killed in a crash
• Sued for non-pecuniary harm – fear, stress and distress of the
impending harm
• Pain and sufering not recoverable independently of some
underlying injury to which they relate
 1934 act – tort before death is the cause of action

o Death as a cause of action

 At common law the death of a person did not create a cause of action in
another person in respect of loss or damage the death cause that person:
Baker v Bolton
 Changed by legislation in 1846, remains the basis of the modern
legislation (Fatal Accidents Act 1976)
 As a statutory action, it is to the terms of the statute we must turn to
determine actionability

o S1(1) Right of action for wrongful act causing death

  ‘death is caused by any wrongful act, neglect or default which is such as
would have entitled the person injured to maintain an action and recover
damages in respect thereof
 1st requirement – if death hadn’t occurred, and the person would not be
able sue for damages and no recovery of damages (section does not
apply). Will be liable if the person was alive and can sue for damages
 Notwithstanding the death of the person injured

o For whose benefit does the action lie? S1(1)

 S1(2) – subject to subject to section 1A(2) below, every such action shall
be for the benefit of the dependants of the person who died
 Dependants are a defined class s1(3) so can only claim if fall within the
statutory definition
 What do the dependant’s claim for? – dependency
 S3(1) assessment of damages
 (1) in the action such damages, other than damages for bereavement, may be
awarded as are proportioned to the injury resulting from the death to the
dependants respectively

o Limits on the injury for which damages can be awarded?

 Franklin v South Eastern Railway
• It has been held that these damages are not be given as a solatium:
but are to be given in reference to a pecuniary loss. If damages are
not to be calculated on either of these principles, nothing remains
except that they should be calculated in reference to a reasonable
expectation of pecuniary benefit, as of right or otherwise, from
the continuance of the life

 But also, possible to claim for the value of the domestic services the
deceased provided to the dependant eg cooking, cleaning
 What other factors are relevant to the assessment of damages?
• S3(3) – re-partnering (ignored)

o Other benefits – s4
 In assessing damages in respect of a person’s death in an action under this
Act, benefits which have accrued or may accrue to any person from his
estate or otherwise as a result of his death shall be disregarded
 Some difficulties have arisen where domestic services have been replaced
gratuitously – is this a benefit that results from the death? Should it
matter if it is the surviving parent who replaces the services?
• Could be the extension of pre-existing parental duties

o Calculation of award
 Same basic techniques as for awards of future loss on personal injury cases
ie the multiplier approach but more complicated in 3 ways:
  Contingencies are greater bc we do not know how long both the
deceased would have lived or the dependant will live post trial
 At least in the case of child dependant, their dependency will lessen as the
child get older
 In H v S [2003] CA held that awards made in respect of gratuitously
provided domestic services to the dependant should be held on trust for
the provider of those services – to be consistent with Hunt v Severs

- Bereavement (grief)
o Legislation initially interpreted no claim for it – an express provision is now
included in Fatal Accident Act 1976 s1A
o Note the limited class who can claim and the limit on the amount that can be
claimed
o Smith v Lancashire Teaching Hospitals NHS Trust [2017] – CA made a
declaration of incompatibility under the HRA s4 in respect of the failure to
include long term de facto relationships within the class of eligible
bereavement damages claimants – legislation has not yet been amended to comply
o While bereavement damages cannot be awarded outside s1A, it seems there can be
an award for the intangible loss of services to the dependant caused by the death
of the deceased – Blake v Mad Max Ltd [2018]