Lecture 1 Module introduction - what is Tort?

What is tort?

Tort can be described as the area of civil law which provides a remedy for a party who has
suffered the breach of a protected interest. The word itself is derived from the Latin ‘tortum’,
meaning twisted or wrong. A wide scope of interests is protected by the law of tort. Currently,
the tort which is the greatest source of litigation is that of negligence. Negligence concerns
personal safety and interests in property, as well as some economic interests. Physical
safety is also protected by the torts of trespass to the person while ownership of property is
governed by trespass to property. Other kinds of property interests are the domain of the
torts of nuisance and Rylands v Fletcher. Remedies for threats to one’s reputation are
provided by the tort of defamation. Recently, English law is seeing significant developments
concerning the protection of privacy from media intrusion.

Different torts deal with different types of harm

Different torts deal with the different types of harm or wrongful conduct and that the
‘ingredients’ for each of these diverse torts are different; each has its own particular
characteristics.

Tort: types of loss or harm covered

The law of tort deals with a wide range of activity and provides remedies for many different
types of loss or harm. In cases of traffic accidents, injuries in the workplace and, medical
negligence, the remedy sought by the claimant is likely to be damages, or compensation.
Tort also deals with disputes between neighbours about their use of land. If their use of land
is interfered with by overhanging trees or interferences such as noise or smells are deemed
to be unreasonable they will constitute the tort of nuisance. Here, rather than seeking an
award of financial compensation, the claimant may often be requesting the court to grant an
injunction, which is an order restraining the defendant from continuing to interfere with the
claimant’s enjoyment of his land.

Not all interests are protected by the law of tort

Where a loss is suffered as a consequence of an infringement of an interest protected by the

law of tort, the defendant will be liable to pay damages to compensate for that loss.
However, it is important to note that not all interests are protected by the law of tort so that a
person could suffer a loss as the result of another’s conduct for which the law does not
provide compensation. Damnum sine injuria is the Latin expression used to describe the
situations where harm is suffered but the interest is not one which is protected by the law of
tort and the claimant has no remedy in tort.

Competing interests

You will also see that many of the interests protected by the law of tort are competing
interests. The tort of nuisance provides an example, one resident may complain that the
volume of his neighbour’s music is so loud that it amounts an interference with his use and
enjoyment of his home or land. However, his neighbour may argue that that it is he who is
suffering the wrong, because he has the right to play his music in the privacy of his own
home without complaint or interference from others. In these situations it is the role of the
court to apply the law of tort in order to decide which of these competing interests should
receive legal protection. Similarly the clash between protection of reputation or confidence
and freedom of expression is the key issue in the debate over the extension of the law of tort
into the field of privacy.

Comparing Tort to Other Areas of Law (1) Tort and Contract

Comparing Tort to Other Areas of Law (2) Tort and Criminal Law

Tort and Human Rights

Prior to 2000 human rights law affected tort law only indirectly. Those claiming that a
decision made in an English court was contrary to the European Convention on Human
Rights could take the case to the European Court of Human Rights in Strasbourg. This right
still exists, however with the coming into force of the Human Rights Act 1998 key articles of
the Convention became binding in the United Kingdom. Statutes and case law must be
interpreted and applied in a sense which is compatible with Convention rights, as far as it is
possible to do so.

The Tort System - the main functions of tort law are:

• Compensation: required as a principle of (corrective) justice

Fault: responsibility for one’s conduct (but note vicarious liability)

Deterrence: note the role of insurance

Loss distribution (vicarious liability and pure economic loss)

Tort law was summarised by Lord Bingham in Fairchild v Glenhaven Funeral Services
(2002) as defining ‘cases in which the law may justly hold one party liable to compensate
another’.

Reading
Bermingham and Brennan, Chapter 1

Further reading
Weir, An Introduction to Tort Law, 2nd ed (2006), ch 1
Cole v Davis-Gilbert [2007] EWCA Civ 396
*Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex [2008]
UKHL 50
Harris, D, The Oxford Survey (Oxford Centre for Socio-legal Studies, 1984)
Woolf, Lord, Access to Justice: Final Report (1996)
Lecture 2 Overview of negligence/Tort as a system of compensation

The foundations of negligence

Winfield’s definition is as follows: ‘Negligence as a tort is a breach of a legal duty to take
care which results in damage to the claimant.’ Contained within this definition are the three
key elements which must always be established for a successful action in negligence. We
will study these elements separately however you should be aware that they are not always
neatly self-contained.

1. Duty of Care - does the defendant owe the claimant a duty of care?
2. Breach - has the defendant breached that duty?
3. Damage – has that breach caused damage of a legally recognised kind?

Insurance and ‘deep pockets’

Road Traffic Act 1988
The Employers’ Liability (Compulsory Insurance) Act 1969
Conditional fee agreements (CFA)

No-fault liability
Thalidomide tragedy 1961
The New Zealand scheme 1974:
The NHS Redress Act 2006

Compensation Act 2006

Cole v Davis-Gilbert [2007] EWCA Civ 396
Tomlinson v Congleton Borough Council [2003] UKHL 47
Cole v Davis-Gilbert [2007] EWCA Civ 396
Harris v Perry [2008] EWCA Civ 907
Hopps v Mott MacDonald [2009] EWHC 1881 (QB)
Trustees of the Portsmouth Youth Activities Committee v Poppleton
[2008] EWCA Civ 646.

Reading
Bermingham and Brennan, Chapters 2 and 4

Further reading
Weir, An Introduction to Tort Law, 2nd ed (2006), ch 1
Cole v Davis-Gilbert [2007] EWCA Civ 396
*Hopps v Mott MacDonald [2009] EWHC 1881 (QB)
*State of Fear: Britain's Compensation Culture Reviewed, (2005) 25 Legal Studies No 3 499
by Kevin Williams
Cane, P, Atiyah’s Accidents, Compensation and the Law (Cambridge University Press, 7th
edn, 2006)
Harris, D, The Oxford Survey (Oxford Centre for Socio-legal Studies, 1984)
Henderson, J, ‘The New Zealand Accident Compensation Reform’ (1981) 48 U Chicago LR
481
*Lewis, R, ‘Insurance and the Tort System’ (2005) 25(1) LS 85
Morris, A, ‘Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim
Damages for Personal Injury’ (2007) 70 M LR 349
Pearson, Lord, Royal Commission on Civil Liability amd Compensation for Personal Injury
(1978)
Stapleton, J, ‘Tort Insurance and Ideology’ (1995) 58 M LR 820
Woolf, Lord, Access to Justice: Final Report (1996)
Lecture 3 Duty of Care

According to John Fleming ‘…the basic problem in the tort of negligence is that of limitation
of liability.’ He points out that negligence is different from some torts such as assault or
defamation in that it is not tied to a particular relationship, type of harm or the protection of a
particular interest.

**Donoghue v. Stevenson [1932] AC 562 Lord Atkin provided the first general rule for
determining duty of care.

Policy
Duty of care can be broken down into two questions: first, one which is general and
determined as a matter of law and policy; followed by one which is specific and fact- based.

Rondel v Worsley [1969] 1 AC 191

Arthur JS Hall v Simons [2000] 3 All ER 673.

Expansion of the Duty concept in the 1960s and 1970s

*Home Office v Dorset Yacht Co. [[1970] AC 1004]
*Anns v London Borough of Merton [1978] AC 278 heralded a period in which the reach of
the tort of negligence was expanded.
*Murphy v Brentwood D C [1991] 1 AC 398, ratio in Anns was overruled by the House of
Lords.

Restriction of the duty of care in negligence

*Caparo Industries plc v Dickman [1990] 2 AC 605

*Marc Rich & Co v Bishop Rock Marine Co Ltd (The Nicholas H) [1996] 3 All ER 307
Watson v British Boxing Board of Control [2001] 2 WLR 1256
*Harris v Perry [2008] EWCA Civ 907
*Hopps v Mott MacDonald [2009] EWHC 1881 (QB)

Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13

Reading
Bermingham and Brennan, Chapter 4

Further reading on duty of care

Smith and Burns ‘Donoghue v Stevenson – the Not So Golden Anniversary’ (1983) 46 MLR
147

D. Howarth ‘Many duties of Care – Or a Duty of Care? Notes from the Underground’ Oxford
Journal of Legal Studies, Vol.26 No 3 (2006) 449-472
Lecture 4 Breach of Duty (1)

Introduction
Establishing that the defendant owed the claimant a duty of care is the first step in
formulating a negligence claim. Next the claimant must prove that the defendant has
breached that duty, that is, that he has been negligent.

Negligence in this sense is determined by answering two questions:

1. How ought a person in the position of the defendant have acted in the
circumstances? This has been determined by a combination of statute and
common law which sets the standard of care and is described as a matter of
law.

2. Did the defendant’s behaviour fall below the desired standard? i.e. breach. This
depends on assessing what actually happened in the case and is described as a
matter of fact.

Standard of care
The general standard of care in negligence is objective. The conduct required is often
described as that of the ‘reasonable man’.
Blyth v Birmingham Waterworks Co (1856) 11 Ex 781
*Glasgow Corp. v Muir [1943] AC 448

Who decides what the reasonable person would do?

Knowledge
*Roe v Ministry of Health [1954] 2 QB 66
*Paris v Stepney Borough Council [1951] AC 367
*Nettleship v Weston [1971] 3 WLR 370

Exceptions to the objective standard

Children
McHale v Watson [1966] CLR 199
*Mullin v Richards [1998] 1 WLR 1304

Illness
Roberts v Ramsbottom [1980] 1 WLR 823
Mansfield v Weetabix Ltd. [1998] 1 WLR 1263

Skill
*Wilsher v Essex H A [1988] 1 All ER 871
*Shakoor v Situ [2001] 1 WLR 210

Special Standards
Sport
*Wooldridge v Sumner [1963] 2 QB 43
Watson v British Boxing Board of Control [2001] 2 WLR 1256
Vowels v Evans [2003} 1 WLR 1607 CA

Risk
How do the courts apply the standard of care to a given situation?

How do we decide what a reasonable man, or woman, would have done in a particular
situation?
The cost of running the risk
This is made up of two elements:

1. Likelihood of injury
*Bolton v Stone [1951] AC 850

2. Severity of the injury

*Paris v Stepney BC [1951] AC 367

The cost of avoiding the risk

As with the cost of running the risk, this is made of two elements.

1. Importance of the defendant’s purpose

*Watt v Hertfordshire CC [1954] 1 WLR 835

2. Practicability of taking precautions against the risk

What would be the cost to the defendant of averting the risk?
*Latimer v AEC [1953] AC
*Watt v Hertfordshire County Council

The Wagon Mound

Overseas Tankship (UK) Ltd v Morts Docks and Engineering Co Ltd, The Wagon Mound
[1961] AC 388 PC
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty, The Wagon Mound (No 2) [1967] 1
AC 617 PC

Compensation Act 2006

Section 1 of The Compensation Act 2006 addresses the problem of the so-called
‘compensation culture’
*Harris v Perry [2008] EWCA Civ 907

Reading
Bermingham and Brennan, Chapter 5

Further reading
D. McArdle and M. James ‘Are you experienced? “Playing cultures”, sporting rules and
personal injury litigation after Caldwell v Maguire’
(2005) 13 Tort L Rev 193

M. Brazier and J Miola ‘Bye-bye Bolam: a medical litigation revolution?’ (2000) 8 Med Law
Rev 85

P de Prez ‘Something “old”, something “new”, something “borrowed” …The continued

evolution of Bolam’ (2001) 17 Prof Neg 75
Lecture 5 Breach of Duty (2) and Causation

Professionals
*Bolam v Friern Hosp Management Comm [1957] 2 All ER 118
*Wilsher v Essex AHA (above)

When expert evidence is produced on both sides of the argument, how can we be
sure that it is that of a ‘responsible body’?
Bolitho v City and Hackney HA [1998] AC 232
*Sidaway v Board of Governors of Bethlem Royal Hospital [1985] AC 871

Was there a breach?

The basic rule is that the burden is on claimant to establish that there has been a breach of
duty. The standard of proof is the balance of probabilities.
*Grant v Australian Knitting Mills [1936] AC 85.

Res ipsa loquitur

This Latin phrase means ‘the thing speaks for itself’
Scott v London and St Katherine’s Dock Co (1865) 3 H & C 596

What is the effect of res ipsa loquitur?

It allows the court to infer that the defendant has been negligent, but only in the absence of
plausible evidence from the defendant of lack of negligence.
George v Eagle Air Services Ltd [2009] UKPC 21

CAUSATION OF DAMAGE: Introduction

The question of causation can be divided into two issues: causation in fact and causation
in law, or remoteness (next week).

1. Causation in fact
The ‘but for’ test involves asking the question, ‘But for the defendant’s breach of duty,
would the claimant’s damage still have occurred?’ If the answer is ‘yes’, then the defendant’s
breach generally can be eliminated as a factual cause of the damage. If the answer is ‘no’,
then we know that the defendant’s breach is at the least one of the contributing causes of
the damage.

*Barnett v Kensington & Chelsea Management Committee [1969] 1 QB 428

Environmental Agency v Ellis [2008] EWCA Civ117: exceptions to the ‘but for’ test

Deficiencies in the ‘but-for’ test

Problems in the application of the ‘but for’ question arise in two particular circumstances:
first, when the answer to the question leads to an unjust or contradictory result and, second,
when it is impossible to answer the ‘but for’ question.

Several liability occurs when two or more parties act independently to cause the same
damage to a claimant. Each party is separately liable for the whole of the damage (but it can
only be recovered once).

Joint and several liability occurs when two or more parties act together to cause the same
damage to a claimant.
Contribution: Where there is joint and several liability, one party who pays compensation
may wish to claim a portion of this from the other wrong-doers. The Civil Liability
(Contribution) Act 1978 ss.1 and 2 enable the bringing of an action to recover contribution
from one or more of the other parties.

Reading on Breach of Duty

Bermingham and Brennan, Chapter 5

Further reading
D. McArdle and M. James ‘Are you experienced? “Playing cultures”, sporting rules and
personal injury litigation after Caldwell v Maguire’
(2005) 13 Tort L Rev 193

M. Brazier and J Miola ‘Bye-bye Bolam: a medical litigation revolution?’ (2000) 8 Med Law
Rev 85

P de Prez ‘Something “old”, something “new”, something “borrowed” …The continued

evolution of Bolam’ (2001) 17 Prof Neg 75

In advance of next week’s lecture please read the following two cases in full:
Barnett v Kensington & Chelsea Management Committee [1969] 1 QB 428
Bolitho v City and Hackney HA [1998] AC 232
Lectures 6 and 7 Negligence: Causation (continued)

What happens when it is not possible to accurately answer the ‘but for’ question
Cook v Lewis ([1952] 1 DLR 1
Fairchild v Glenhaven Funeral Services [2003] 1 AC 32
*McWilliams v Sir William Arrol [1962] 1 WLR 295

Loss of a chance
*Hotson v Berkshire Area HA [1987] AC 750
Gregg v Scott [2005] UKHL 2

Cumulative causes
*McGhee v National Coal Board [1973] 1 WLR 1
*Wilsher v Essex Area Health Authority [1988] AC 1074
Bailey v Ministry of Defence [2008] EWCA Civ 883

Asbestos
*Fairchild v Glenhaven Funeral Services Ltd ([2002] UKHL 22
*Barker v Corus UK ([2006] UKHL 20)
Compensation Act 2006, s.3 of which restored the Fairchild position of joint and several
liability in cases of mesothelioma, This meant that any one negligent defendant could, if
necessary, be ordered to bear 100% liability, regardless of the extent of his involvement with
the claimant.
Sienkiewicz v Grief (UK) Ltd. [2009] EWCA Civ 1159

Information about medical treatment

Sidaway v Bethlem Royal Hospital [1985] AC 871
*Chester v Afshar [2005] 1 AC 134.

Supervening causes
Unconnected events causing the same or greater harm as the first tort, sometimes referred
to as supervening causes.

*Performance Cars v Abraham [1962] 1 QB 33

Baker v Willoughby ([1970] AC 467)
Jobling v Associated Dairies ([1981] 2 All ER 7).

Causation in law (or remoteness of damage)

Winfield tells us, ‘No defendant is responsible ad infinitum for all the consequences of his
wrongful conduct, however remote in time and however indirect the process of causation, for
otherwise human activity would be unreasonably hampered. The law must draw a line
somewhere…not on the grounds of pure logic, but simply for practical reasons.’

Re Polemis ([1921] 3 KB 560) - all the ‘direct consequences’

*The Wagon Mound (No 1) ([1961] AC 388) – the foreseeability test.
*Hughes v Lord Advocate ([1963] 1 All ER 705).
Tremain v Pike ([1969] 3 All ER 1303)
*Jolley v. Sutton Borough Council ([2000] 1 WLR 1082
*Corr v IBC Vehicles ([2008] 2 W.L.R. 4993 WLR 395

‘The Thin Skull Rule’

*Smith v Leech Brain ([1962] 2 QB 405 (cf the ‘financial thin skull rule’ The Leisbosch
Dredger v SS Edison [1933] AC 449
Robinson v Post Office ([1974] 1 WLR 1176)
Lagden v O’Connor ([2003] UKHL 64).

novus actus interveniens, Latin phrase - new intervening act.

1 Actions by the claimant

McKew v Holland ([1969] 3 All ER 1621)
Spencer v Wincanton Holdings Ltd [2009] EWCA Civ 1404
Weiland v Cyril Lord Carpets ([1968] 3 All ER 1006)
Sayers v Harlow Borough Council ([1958] 1 WLR 623
Reeves v Commissioner of Police of the Metropolis ([1999] 3 WLR 363)
*Corr v IBC Vehicles ([2008] 2 W.L.R. 4993 WLR 395

2 Natural events
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292
Vacwell Engineering v BDH Chemicals Ltd. ([1971] 1 QB 88

3 Actions by third parties

*Knightley v Johns ([1982] 1 All ER 851
Wright v Lodge ([1993] 4 All ER 299
*Home Office v Dorset Yacht Co. [[1970] AC 1004
Smith v Littlewoods Organisation Ltd 1987
Mitchell v Glasgow City Council [2009] UKHL 11

Reading
Bermingham and Brennan pps. 98-107

Further reading

Reading on Causation
Bermingham and Brennan pps. 88-98

Further reading on Causation

H. Reece ‘Losses of Chances in the Law’ (1996) 59 MLR 188
L. Hoffmann ‘Causation’ (2005) LQR 121 592
J. Stapleton ‘Cause-in-Fact and the Scope of Liability for Consequences’ (2003) 119 LQR
388
J. Morgan ‘Lost Causes in the House of Lords: Fairchild v Glenhaven Funeral Services’
(2003) 66 MLR 277

Recap: Duty, Breach and Causation

Lecture 8 Liability of Public Bodies

Introduction
Before moving on to look at some of the problematic aspects of duty of care, it will be helpful
to re-cap on the topics of negligence considered so far.

• Duty of care is a key limiting device for the law of negligence

• It is a matter of law and is strongly policy-based
• The factors which courts take into account in determining duty of care are foreseeability
of harm, proximity and whether imposing a duty would be fair, just and reasonable.

Public Bodies as Defendants

Examples of what is meant by ‘public bodies’ are the central government (eg. Home
Office in Dorset Yacht), local authorities, schools, police or fire authorities and ‘quangos’
such as Thames Water.

The policy/operational distinction

X v Bedfordshire CC [1995] 3 All ER 353, HL
See also:
*Phelps v Hillingdon LBC [2000] 3 WLR 776
Barrett v Enfield BC [1999] 3 WLR 79, HL

Public Bodies Exercising a Statutory Discretion

Watson v British Boxing Board of Control [2001]

Omissions
In Stovin v Wise
See also:
Z v United Kingdom, Z v UK (2001) FLR - Court of Human Rights held infringement of Art 3
D v East Berkshire NHS Trust [2003] 4 All ER 796,
Kent v Griffths [2000] 2 WLR 1158
Stovin v Wise [1996] AC 923
*JD v East Berkshire Community Health Trust [2005] 2 AC 37
Merthyr Tydfil CBC v C [2010] EWHC 62 (QB)
Jain v Trent Strategic Health Authority [2008] 2 WLR 456 (pure economic loss)
Mitchell v Glasgow City Council [2009] UKHL 11

Relationship creating an assumption of responsibility

*Stansbie v Troman [1948] 2 KB 48
*Barrett v Ministry of Defence [1995] 3 All ER 87

Existing relationship with wrongdoer involving control

Home Office v Dorset Yacht (considered in duty lecture) is another example of an omission
– that is, the failure of the prison authorities to prevent the boys’ escape.
*Carmarthenshire County Council v Lewis [1955] AC 549

Creation of or failure to remove a danger which is then used by third parties

*Smith v Littlewoods [1987] AC 241
Mitchell v Glasgow City Council [2009] UKHL 11
Goldman v Hargrave [1966] 2 All ER 989
The Police: ‘Operational’ liability
*Knightley v Johns [1982] 1 All ER 851
Rigby v Chief Constable of Northamptonshire [1985] 3 All ER 87

Immunity?
*Hill v Chief Constable W.Yorks [1989] AC 53
Osman v Ferguson [1993] 4 All ER 344
Osman v UK (1999) 1 FLR 193
Swinney v Chief Constable Northumbria [1997] QB 464
Swinney v Chief Constable Northumbria (No 2) [1999] 11 Admin LR 811
*Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24.
* Van Colle v Chief Constable of Hertfordshire and Smith v Chief Constable of Sussex [2008]
UKHL 50

Reading
Bermingham and Brennan pps. 54 – 69

Further reading
Bailey, S (2006) ‘Public Authority Liability in Negligence: the Continued Search for
Coherence’ 26 LS 155
Gearty, C (2002) ‘Osman Unravels’ 67 MLR 87
Steele, J (2005) ‘Public Law Liability – a Common Law Solution?’ 64 CLJ 543
Lecture 9 Duty of Care: psychiatric injury

Why was the law slow to allow recovery for this type of injury?
The general lack of awareness or understanding of how the mind worked: psychological
conditions following accidents would now be given the medical diagnosis of post-traumatic
stress disorder (PTSD): until very recently, psychological injury was referred to in the law
reports as nervous shock’.

The requirement for a diagnosed psychiatric condition

Alcock v Chief Constable of S. Yorkshire (1991) (below) put it this way:

‘Grief, sorrow, deprivation and the necessity for caring for loved ones who have
suffered injury or misfortune must, I think, be considered as ordinary and inevitable
incidents of life which, regardless of individual susceptibilities, must be sustained
without compensation.’ There are cases in which the court appears to have not
enforced this requirement strictly.

Vernon v Bosley (No 1) [1994] 1 All ER 577

Historical development
Victorian Railway Commrs v Coultras (1888) 13 App Cas 22
*Dulieu v White [1901] 2 KB 669
*Hambrook v Stoke Bros. (1925). 1KB 141
*Bourhill v Young [1943] AC 92

Physically threatened - the ‘primary victim’

Dulieu v White (above)
*Page v Smith [1996] AC 155

A witness to danger to others - the ‘secondary victim’

Hambrook v Stokes [1925] 1 KB 141
Bourhill v Young [1943] AC 92
McLoughlin v O’Brien [1983] 1 AC 410

Difficulties with ‘primary/secondary’ distinction

W v Essex CC [2000] 2 WLR 601 HL
McLoughlin v Jones [2001] EWCA Civ 1743

Principles of liability
From Bourhill onwards, foreseeability of secondary victims began to be assessed in terms
of:
• Time
• Space or geography
• Causation
• Relationship to the primary victim of the negligence

The ‘Alcock test’

*Alcock v Chief Constable of the South Yorkshire Police (1992)

Rescuers
*White v Chief Constable of the South Yorkshire Police [1998] 3 WLR 1510 HL
Rescuers: Prior to White
*Chadwick v British Railways Board (1967)
Dooley v Cammell Laird & Co (1951)

What happens when the primary victim is also the wrongdoer?

Greatorex v Greatorex (2000)

Bad news
AB v Tameside and Glossop Health Authority (1997)
Allin v City and Hackney HA (1996)

Occupational stress is a developing area of employers’ liability see lecture 10

Reading
Bermingham and Brennan, pps. 108 -120

Further Reading
Liability for Psychiatric Illness (Law Com 249, 1999) HMSO

P.J. Cooke (2004) ‘Primary Victims: the End of the Road?’ 25(1) Liverpool Law Journal 29.

H. Teff (1998) ‘Liability for Negligently Inflicted Psychiatric Harm: Justifications and
Boundaries’ 57(1) Cambridge Law Journal 91
Lecture 10 Duty of Care: pure economic loss

Introduction: what is pure economic loss in tort?

Pure economic loss: history and background

As with psychiatric injury, some of the situations in which pure economic loss can occur raise
the prospect of what was described by an American judge Cardozo in 1931 as liability ‘in an
indeterminate amount for an indeterminate time to an indeterminate class.’

Pure economic loss caused by acts

*Cattle v Stockton Waterworks (1875)
*Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569
*Spartan Steel & Alloys v Martin [1973] 1 QB 27

Pure economic loss suffered due to acquiring defective property

*Anns v L B of Merton [1978] AC 728
Junior Books v Veitchi [1983] 1 AC 520
*Muirhead v Industrial Tank Specialities Ltd [1985] 3 All ER 705
*Simaan General Contracting Co v Pilkington Glass [1988] 1 All ER 791
D & F Estates Ltd v Church Commissioners [1988] 2 All ER 992

The over-ruling of Anns

*Murphy v Brentwood DC [1991]1 AC 398 - a turning point

Negligent misstatement
*Hedley Byrne & Co v Heller & Partners [1964] AC 465

The ambit of Hedley Byrne liability

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1971)
Esso Petroleum v Mardon (1976)

Causation
It is important to remember that the Hedley Byrne special relationship only goes to establish
duty of care. The claimant must also go on to prove breach and causation. JEB Fasteners v
Marks Bloom & Co (1981)

The context of the statement

Chaudhry v Prabhaker (1988)

Indirect statements
Smith v Eric S. Bush [1989] 2 WLR 790

Caparo v Dickman
*Caparo Industries plc v Dickman [1990] 1 All ER 568
James McNaughton Papers Group Ltd v Hicks Anderson & Co (1991)
Morgan Crucible Co plc v Hill Samuel Bank Ltd (1991)

Voluntary assumption of responsibility

Henderson v Merrett Syndicates Ltd (1994)
Williams v Natural Life Health Foods Ltd (1998).
Merrett v Babb (2001)

Advice
Mutual Life & Citizens’ Assurance Co Ltd v Evatt [1971] AC 793
Gorham v BT [2000] 1 WLR 2129

Negligent statements relied upon by a third party

*Spring v Guardian Insurance [1994] 3 WLR 354
Goodwill v British Pregnancy Advisory Service [1996] 2 All ER 161
Ross v Caunters [1980] Ch 297
*White v Jones [1995] 1 All ER 691

Recent interpretations of liability for negligent misstatements

West Bromwich Albion Football Club v El-Safty (2006)
Commissioners of Customs and Excise v Barclays Bank plc (2006)
Patchett v Swimming Pool & Allied Trades Assn Ltd [2009] EWCA Civ 717

Disclaimers
Hedley Byrne v Heller,
*Smith v Eric S. Bush [1989] 2 WLR 790
The Unfair Contract Terms Act s.2 (2)
McCullagh v Lane Fox & Ptnrs (1996)

Reading
Bermingham and Brennan pps. 120 -140

Further reading
Paul Mitchell and Charles Mitchell, “Negligence Liability for Pure Economic Loss (2005) 121
LQR 194
Jane Stapleton in Duty of Care and Economic Loss: A Wider Agenda (1991) 107 LQR 249
C. Barker ‘Wielding Occam’s Razor: pruning strategies for economic loss’ (2006) OJLS 289
Lecture 11 Negligence: General Defences

Introduction
Where a claimant establishes a successful cause of action in tort it is the open to the
defendant to plead one (or more) of the defences available. This lecture concerns general
defences applicable to all torts but which have particular relevance to claims in negligence.
The defences we will look at are:
(1) contributory negligence (2) volenti non fit injuria (3) ex turpi causa non oritur actio

(1) Contributory Negligence

Before the Law Reform (Contributory Negligence) Act 1945, contributory negligence was a
complete defence to an action in tort and no damages were recoverable for injuries or
damage caused partly by the claimant’s own fault.

Carelessness: relates to the damage not the cause of the accident

*Froom v Butcher [1976] 2 Q.B. 286
Condon v Condon [1978] R.T.R. 483

Contributory negligence and causation

Jones v Livox Quarries Ltd [1952] 2 Q.B. 608

Defendant must prove contributory negligence

Owens v Brimmell [1977] Q.B. 859
*Stanton v Collinson [2010] EWCA Civ 81
Smith v Finch [2009] EWHC 53 (QB)

Contributory negligence involving children

Yachuk v Oliver Blais Co. Ltd [1949] A.C. 386
Gough v Thorne [1966] 3 All E.R. 398

Contributory negligence in emergency situations

Jones v Boyce (1816) 1 Stark 493

(2) ‘Volenti non fit injuria’

Morris v. Murray [1991] 2 Q.B. 6
*Smith v Charles Baker & Sons [1891] A.C. 325
ICI Ltd v Shatwell [1965] AC 656

‘Volenti’ in sporting activity

Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923
Condon v Basi [1985] 2 All E.R. 453,
Watson v British Boxing Board of Control

‘Volenti’ in the case of rescuers

Baker v Hopkins [1959] 3 All E.R. 225
Cutler v United Dairies Ltd [1933] 2 K.B. 197 where
Haynes v Harwood [1935] 1 K.B. 146
(3) ‘Ex turpi causa non oritur actio’

Clunis v Camden and Islington Health Authority [1998] 3 All E.R. 180
*Vellino v Chief Constable of Greater Manchester Police [2001]
*Gray v Thames Trains Ltd [2009] UKHL 33; [2009] WLR (D) 195.

Overlap between volenti non fit injuria and ‘ex turpi causa non oritur actio’
Pitts v Hunt and it was held that s.149 made the defence of volenti impossible in any action
brought by a passenger against the driver of a vehicle on a public road. However, the
defence of ex turpi causa applied as public policy also prevents a claimant who is
engaged in illegal activity with the defendant from succeeding against the defendant for
wrongs done to the claimant during the course of such activity.

Necessity
*F-v-West Berkshire Health Authority [1990] 2 AC 1
*Rigby-v-Chief Constable of Northamptonshire [1985] 1 WLR 1242
R-v-Jones [2004] EWCA Crim 1981, [2005] 1 Cr App R 12
Austin-v-Metropolitan Police Commissioner [2005] EWHC 480
*Laporte-v-Ch. Const. Gloucestershire [2006] UKHL 55, [2007] 2 WLR 46

Reading
Bermingham and Brennan, Chapter 8

Further Reading

Kidner, R., ‘The Variable Standard of Care, Contributory Negligence and Volenti’ [1991]
Legal Studies 1

Tan, C., ‘Volenti non fit injuria: An Alternative Framework’ [1995] Tort LR. 208.

Law Commission Consultation Paper, No 180 ‘The Illegality Defence in Tort’,

Lecture 12 Employers’ Liability

Introduction: sources of an employers’ liability

When looking at employers’ liability to their employees it is important to note that a duty may
arise under the law of contract; employment contracts contain an implied term that an
employer will take all reasonable care to ensure the health and safety of his employees. In
the next lecture we will see that an employer may be vicariously liable for an injury caused to
his employee due to the tort of another employee, without the claimant having to show that
the employer was in any way at fault.

Common law
A personal non-delegable duty of care on employers to take steps to ensure the safety of
employees in the workplace

Statute
Health and Safety at Work Act 1974
Employers’ Liability (Defective Equipment) Act 1969

EU Framework Directive on Health and Safety (89/391/EEC)

Historical Background
Priestly v Fowler (1837) 3 M&W 1;150 ER 1030

Changing attitudes to employers’ liability

*Smith v Charles Baker & Sons [1891]
Law Reform (Personal Injury) Act 1948
Law Reform (Contributory Negligence) Act 1945
*Wilsons and Clyde Coal v English [1938] A.C.57

Non delegable Duty

McDermid v Nash Dredging And Reclamation Co Ltd [1987] AC 90

Defective equipment
Davie v New Merton Board Mills [1959] AC 604
Employers’ Liability (Defective Equipment) Act 1969 s.1 (1).
Coltman v Bibby Tankers [1988] A.C. 276

a) Competent staff
Hudson v Ridge Manufacturing Co. Ltd [1957] 2 Q.B. 348
Smith v Crossley Brothers

b) Adequate material
Employers’ Liability (Defective Equipment) Act 1969.
McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295

c) A proper system of working (including effective supervision)

Jebson v Ministry of Defence [2000] 1 W.L.R. 2055
*Hopps v Mott MacDonald Ltd [2009] EWHC 1881 (QB)

d) A safe place of work

Latimer v A.E.C. Ltd [1953] 2 All E.R. 499
Occupational stress: a developing area of employers’ liability
Walker v Northumberland County Council [1995] 1 All ER 737
*Hatton v Sutherland [2002] 2 All ER

When will an employer be liable for psychiatric illness caused by stress at work?
Barber v Somerset [2004] 2 All ER 385
Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ.
06
Daw v Intel Corporation Ltd [2007] EWCA Civ 70
Dickins v O2 plc [2008] EWCA Civ

Psychiatric harm resulting from acts of fellow employees

In Waters v Commissioner of Police of the Metropolis [2000]

Reading
Bermingham and Brennan, Chapter 10

N.J. Mullany ‘Containing claims for workplace mental illness’ (2002) 118 L.Q.R. 373

Barrett B., ‘Harassment at Work: A Matter of Health and Safety’ (2000) J.B.L 343
Lecture 13 Vicarious Liability

Introduction
A person is liable only for his own acts and liability will not usually be imposed unless the
defendant has negligently or intentionally caused the harm or damage to the claimant.
Vicarious liability departs from this principle.

An employee or an independent contractor?

An employee must be distinguished from an independent contractor since, as a general rule,
employers are not liable for torts committed by their independent contractors.

The 'control' test

Cassidy v Ministry of Health [1951] 2 K.B. 343
The ‘integration’ test . In Stevenson Jordan & Harrison v Macdonald & Evans [1952]
1 TLR 101

The 'economic reality' test

Ready Mixed Concrete (S.E.) Ltd v. Minister of Pensions [1968] 2 QB 497
Market Investigations Ltd v. Minister of Social Security [1969]
Ferguson v. John Dawson & Partners (Contractors) Ltd 1976 A.C. 1.

Who is liable when an employee is hired to another employer?

Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd 1947
*Viasystems Ltd v Thermal Transfer Ltd [2005] 4 All ER 1181

(2) There must be a tort

Morris v C.W.Martin [1966] 1Q.B. 716
Poland v Parr & Sons [1927] 1K.B.236

(3) The tort must be committed in the ‘course of employment'

Professor Salmond:
Is the wrongful act either ‘(i) a wrongful act authorised by the master, or (ii) a wrongful and
unauthorised mode of doing some act authorised by the master’.
*Century Insurance Co. Ltd v. Northern Ireland Road Transport Board [1942] HL
Beard v. London General Omnibus Co. [1900] 2 Q.B. 530

Joel v. Morrison (1834) 6 C. & P. 501

*Harvey v. R.G. O'Dell Ltd [1958] 2 Q.B. 78
*Hilton v Thomas Burton [1961] 1 WLR 705
Storey v. Ashton (1869) L.R. 4 Q.B. 476

Acts expressly prohibited by the employer

Twine v. Bean's Express Ltd [1946] (1946) 175 LT 131, CA
*Rose v Plenty [1976] 1976]1 W.L.R. 141

Criminal conduct
Morris v C.W. Martin & Sons Ltd [1966]
(Warren v. Henlys [1948]2 All ER 935
Keppel Bus Co. Ltd v. Sa'ad bin Ahmad [1974] W.L.R. 1082

• the above cases should now be considered in the light of the House of Lords
approach to vicarious liability in Lister and the Court of Appeal analysis of these
principles in Mattis v Pollock.

Policy and the ‘close connection’ test

* Lister v Hesley Hall Ltd. [2002] 1 AC 215
Lister overruled the decision in Trotman v. North Yorkshire County Council [1999] B.L.G.R.
584,

Application of the ‘close connection’ test

Dubai Aluminium v Salaam & Ors [2003] 2 AC 407

*Mattis v Pollock [2003] 1 WLR 2158

Gravil v Carroll [2008] EWCA Civ 689
Ministry of Defence v Radclyffe [2009] EWCA Civ 635
MAGA v The Trustees of the Birmingham Archdiocese of the Roman Catholic Church [2010]
EWCA Civ 256

Vicarious liability not restricted to common law torts

Majrowski v Guy’s and St Thomas’s NHS Trust [2006] UKHL 34
Protection from Harassment Act 1997

Indemnity
Lister v Romford Ice [1957] AC 555

Reading
Bermingham and Brennan Chapter 11

Further Reading
Brennan, C., Third party liability for child abuse: unanswered questions (2003) Journal of
Social Welfare and Family Law 25

Brodie D., The enterprise and the borrowed worker, (2006) Industrial .Law .Journal 35

Kidner, R., Vicarious liability: for whom should the employer be liable? (1995) 15 Legal
Studies 47

Newark, F.H., Twines v Beans Express Ltd. (1954) 17 MLR 102

Lecture 14 Negligence Liability Relating to Premises

The common law before 1957

‘Implied permission’
Lowery v Walker [1911] A.C. 10
Edwards v Railway Executive [1952] A.C. 737

Complication of the ‘old’ common law

Slater v Clay Cross Co Ltd [1956] 2 Q.B. 264

Occupiers’ Liability Act 1957

The 1957 Act, brings together all the previous categories of contractual entrant, invitee and
licensee into one single category of ‘lawful visitors’ to whom an occupier owes the ‘common
duty of care’.

Who is the Occupier?

*Wheat v. Lacon (E.) & Co. Ltd [1966] A.C. 522
Harris v Birkenhead Corporation [1976] 1 All ER 341

What duty is owed?

The Calgarth [1927]
Section 2 (1) OLA 1957

The ‘common duty of care’

Section 2(2) OLA 1957
*Latimer v AEC Ltd [1953] 2 All ER 449
Simms v. Leigh Rugby Football Club Ltd [1969] 2 All E.R. 923
Ward v The Ritz Hotel (London) [1992] PIQR P315

Distinguishing ‘occupancy’ and ‘activity’ duties

Section 1 (2)

Does the duty vary in respect of different visitors?

The Act specifically provides for two particular categories of visitor; (1) children and (2)
skilled visitors.

Children
Section 2(3)(a)
*Glasgow Corporation v. Taylor [1922] 1 AC 44
*Jolley v. Sutton London Borough Council [1998] 3 All E.R. 559
Simkiss v. Rhondda Borough Council [1983] 81 L.G.R. 460
Bourne Leisure Ltd T/A British Holidays v Marsden [2009] EWCA Civ 671

Skilled visitors
Section 2(3)(b) OLA 1957
*Roles v Nathan [1963] 2 All ER 908

Warning of Danger
Section 2 (4) (a)
*Staples v West Dorset District Council [1995] PIQR 439

Independent Contractors
Section 2 (4)(b)
Relevance of ‘technical nature of the job’
*Haseldine v. C. A. Daw & Son Ltd [1941] 2 K.B. 34
Woodward v. The Mayor of Hastings [1945] K.B. 174
*Bottomley v Tordmorden Cricket Club [2003] EWCA Civ 1575

Does occupier need to check if the independent contractor is adequately insured?

*Gwilliam v West Hertfordshire Hospital NHS Trust [ [2002] 3 WLR 1425
*Naylor v Payling [2004] EWCA Civ 560

Exclusion of Liability
Roles v Nathan [1963] Volenti Non Fit Injuria
Section 2(5) of the OLA 1957 provides that there is no liability for:
‘risks willingly accepted as his by the visitor’.
Unfair Contract Terms Act 1977
*White v Blackmore [1972] 2 QB 651

Local Authorities
*Anns v. London Borough of Merton [1978] A.C. 728
*Murphy v. Brentwood District Council [1990] 1 A.C. 398

Occupiers’ Liability Act 1984 - Liability for persons other than ‘visitors’
Addie & Sons Ltd v Dumbreck [1929] AC 358
*Glasgow Corporation v. Taylor [1922] above.

The duty of ‘common humanity’

British Railways Board v. Herrington [1972] A.C. 877

Occupiers' Liability Act 1984

Volenti Non Fit Injuria under the 1984 Act
Section 1(6) of the 1984
*Ratcliff v. McConnell [1999] 1 W.L.R. 670

Liability for trespassers: ‘self-inflicted harm’

*Tomlinson Congleton BC [2004] 1 AC 46
*Keown v Coventry Healthcare NHS Trust [2006] 1 W.L.R. 953
Mann v Northern Electric Distribution Ltd [2010] EWCA Civ 141
Trustees of the Portsmouth Youth Activities Committee v Poppleton [2008] EWCA Civ 646

Warnings: 1984 Act

1984 Act - a warning will be more effective against a trespasser

Reading
Bermingham and Brennan, Chapter 9

Further reading
Bragg & Brazier - ‘Occupiers and exclusion of liability’ (1986) 130 Sol Jo 251 and 274
Buckley - ‘The Occupiers Liability Act 1984 - has Herrington survived?’ (1984) Conveyancer
413
Jones - ‘The Occupiers’ Liability Act 1984 - the wheels of law reform turn slowly’ (1984) 47
MLR 713
Mesher J., Occupiers, Trespassers and the Unfair Contract Terms Act 1977’ (1979) 43
Conveyancer 58
Murphy - ‘Public Rights of Way and Private Law Wrongs’ (1997) 61 Conveyancer 362
Lecture 15 Product Liability

The Common Law Position

Donoghue v. Stevenson [1932] A.C. 562,
The ‘narrow ratio’ in Donoghue v Stevenson
The element of the decision known as the ‘narrow ratio’ is expressed as follows by Lord
Atkin:
‘… a manufacturer of products, which he sells in such a form as to show that he
intends them to reach the ultimate consumer in the form in which they left him with no
reasonable possibility of intermediate examination and with the knowledge that the
absence of reasonable care in the preparation or putting up of the products will result
in an injury to the consumer's life or property, owes a duty to the consumer to take
reasonable care.’

‘a Maunfacturer’
*Stennett v. Hancock and Peters [1939] 2 All E.R. 578
Watson v. Buckley, Osborne, Garrett & Co. [1940] 1 All E.R. 174

‘of products’
Haseldine v Daw [1941] 2 KB 343)
*Grant v. Australian Knitting Mills Ltd [1936] A.C. 85

‘which he sells’
Almost any type of transfer or exchange may come within the definition of ‘sells’ for the
purposes of manufacturers’ liability for dangerous or defective products.

‘the ultimate consumer’

Barnett v. H. and J. Packer & Co. [1940] 3 All E.R. 575
Stennett v. Hancock and Peters [1939] 2 All ER 578 (below)

‘with no reasonable possibility of intermediate examination’

Griffiths v. Arch Engineering Co. [1968] 3 All E.R. 217
Grant v. Australian Knitting Mills (above)

Adequate warning and causation

*Kubach v. Hollands [1937] 3 All E.R. 907
*Evans v. Triplex Safety Glass Co. Ltd [1936] 1 All E.R. 283

Design defects
Pearson Commission Report on Civil Liability and Compensation for Personal Injury .
Directive 85/374/EEC
Consumer Protection Act 1987

Consumer Protection Act 1987

Who can be liable under the Act?
• the producer –under sections 1 (2) and 2 (2)(a)
• the ‘own brander’ –under section 2(2)(b)
• the importer of a product into Europe –under section 2(2)(c)
What is a product? Section 1(2)

What is a ‘defective’ product?

Section 3 (1)
Section 3 (2)
*Abouzaid v Mothercare (UK) Ltd [2000]
*A & Ors v National Blood Authority & Ors [2001]
Tesco Stores Ltd v Pollard [2006] EWCA Civ 393

Standards of safety that ‘persons generally’ are entitled to expect

Abouzaid v Mothercare (UK) Ltd [2000] All ER (D) 2346
A & Ors v National Blood Authority & Ors [2001] 3 All ER 289

Who can recover under the Act?

Liability is to a ‘consumer’ and there is no distinction between those using the product and
mere bystanders; this means that anyone who has suffered damage caused wholly or
partly by a defect in a product, or to a dependant or relative of such a person can bring
an action.
Section 5

Defences
Apart from general arguments concerning proof of causation, there are six defences
provided in Section 4 of which the most controversial is the Section 4(1)(e)
development risks defence.Similar to the ‘state of the art’ defence (see Roe v Minister
of Health) in common law negligence and it is one of the most widely criticised aspects
of the Act.

Commission v UK [1997] All ER (EC) 391

A & Ors v National Blood Authority & Ors

Reading
Bermingham and Brennan, Chapter 12

Further reading
Howells & Mildred - ‘Infected blood: defect and discoverability’ (2002) 65 MLR 95
Newdick - ‘Liability for Defective Drugs’ (1985) 101 LQR 405
Nedwick, ‘The development risk defence of Consumer Protection Act 1987’ (1988) 47 CLJ
455
Lecture 16 Nuisance

Introduction

Distinctions between public nuisance and private nuisance

Public nuisance Private nuisance

Is a crime as well as a tort
The claimant does not need an interest in
land to sue
Damages for personal injury are
recoverable
An isolated incident may give rise to a
claim
The claimant must be one of a ‘class of
Her Majesty’s subjects who suffered
damage over and above the rest of the
class affected
Only a tort
Only those with an interest in land can
sue
Damages for personal injury are not
recoverable
An isolated incident will not give rise to a
claim, there must be an ongoing state of
affairs
An individual may sue, not as part of
class

Private Nuisance
Bamford v Turnley (1862) 3 B & S 66, a public nuisance was defined as:
…any continuous activity or state of affairs causing a substantial and unreasonable
interference with a plaintiff’s land or his use or enjoyment of that land.

Damage: proof of damage necessary

St Helen’s Smelting Co v Tipping (1865)
*Hunter v Canary Wharf Ltd and Hunter v London Docklands Development Corp [1997] AC
655

What is an unlawful interference?

Sedleigh-Denfield v O’Callaghan [1940] AC 880

What is unreasonable?

What is abnormal sensitivity?

*Robinson v Kilvert (1889) 41 Ch D 88
*McKinnon Industries v. Walker [1951] 3 D.L.R. 557
Nor-Video Services v. Ontario Hydro (1978) 84 D.L.R. (3rd) 221
*Hunter v. Canary Wharf Ltd and Hunter v. Docklands Development Corporation (above)

The nature of the locality

Sturges v Bridgman (1879) 11 Ch D 852:
*St Helen’s Smelting Co v Tipping (1865) 11 HLC 642
Gillingham Borough Council v Medway (Chatham) Dock Co. Ltd. [1993] QB 343
Wheeler v. J. J. Saunders Ltd [1996] Ch. 19

Time and duration

*Halsey v Esso Petroleum [1961]
*Kennaway v Thompson [1981] QB 88 (
Ongoing state of affairs
*British Celanese v. Hunt Capacitors [1969] 1 WLR 959
Malice: relevance of the defendant’s intention
Christie v. Davie [1893] 1 Ch. 316
Hollywood Silver Fox Farm v Emmett [1936] 2 K.B. 468

Nuisance and fault: reasonableness of the defendant’s conduct

*Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880
Goldman v. Hargrave [1967] 1 A.C. 645
*Leakey v. National Trust [1980] Q.B. 485
*Cambridge Water Co. v Eastern Counties Leather plc 1994 (see Rylands v Fletcher)

The measured duty of care

*Holbeck Hall Hotel v. Scarborough Borough Council [2000] 2 All E.R. 705

Nuisance and the Human Rights Act

*Marcic v. Thames Water Utilities Ltd [2004] 2 A.C. 42
Hatton v United Kingdom [2003]
*Dennis v Ministry of Defence [2003] EWHC 793

Who Can Sue?

Malone v Laskey (1907) KB 141
Khorasandjian v Bush [1993] 3 All E.R. 669
Hunter v Canary Wharf (1997)
Dobson v Thames Water Utilities Ltd [2009] EWCA Civ 28

Who can be Liable?

Southport Corporation v Esso Petroleum [1956] A.C. 218

Occupiers
Goldman v Hargrave
Leakey v National Trust
Sedleigh-Denfield v O’Callaghan

Landlords
*Hussain v. Lancaster City Council [1999] 4 All E.R. 149
*Lippiatt v. South Gloucestershire Council [1999] 4 All E.R. 149

Twenty Years’ Prescription

*Sturges v Bridgman (1879) 11 Ch D 852
*Miller v Jackson [1977] QB 966,

Statutory Authority
Allen v Gulf Oil Refining Ltd [1981] AC 1001
*Wheeler v J J Saunders
Watson v Croft Promo-Sport Ltd [2009] EWCA Civ 15.
Coming to the Nuisance
Bliss v. Hall (1838) 4 Bing. N.C. 183

Social Utility
Adams v. Ursell [1913] 1 Ch. 269
Miller v. Jackson (above)
*Kennaway v Thompson (below).

Remedies for Private Nuisance

Injunction
 Shelfer v City of London Electric Lighting Co. [1895] 1 Ch. 287
*Kennaway v Thompson [1981] Q.B. 88

Damages
Dennis v Ministry of Defence

Abatement
Delaware Mansions Ltd v. Westminster City Council [2001] 3 W.L.R. 1007

Public Nuisance
Attorney-General v. P.Y.A. Quarries Ltd [1957] 2 Q.B. 169,
Wandsworth London Borough Council v. Railtrack plc [2001]
Laws v Florinplace [1981] 1 All ER 659

Who can sue in Public Nuisance?

Tate & Lyle Food and Distribution Ltd v. G.L.C. [1983] 2 A.C. 509

Remedies in Public Nuisance (1) damage to property

Halsey v Esso Petroleum Co. Ltd [1961] 2 All ER 145

Remedies in Public Nuisance (2) personal injury

Castle v St Augustine’s Links (1922) 38 TLR 615

Defences to Public Nuisance

Reading
Bermingham and Brennan, Chapter 13

Further Reading
Gearty C., ‘The Place of Private Nuisance in a Modern Law of Torts’ [1989] CLJ 214, 235-37

Hedley S., Nuisance, dust and the right to good TV reception: Canary Wharf in the
House of Lords, 3 Web JCLI [1997]
Lee M., ‘What is Private Nuisance’ 2003 119 LQR 298
O’Sullivan J., ‘Nuisance, local authorities and neighbours from hell’ [2000] CLJ 421
Wightman J.A., Nuisance – The environmental tort? [1998] 61 MLR 870
Lecture 17 RYLANDS v FLETCHER

Introduction
Rylands v Fletcher (1865) 3 H&C 774; (1868) LR 3 HL 330
Blackburn J:
‘We think that the true rule of law is, that the person who for his own purposes
brings on his lands and collects and keeps there anything likely to do mischief if it
escapes, must keep it in at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape.’

‘…for his own purposes brings onto land and collects and keeps there’

British Celanese v A. H. Hunt [1969] 1 WLR 959

*Mason v Levy Autoparts of England Ltd [1976] 2 QB 530

‘for his own purposes’,

Smeaton v Ilford Corp [1954] 1 Ch. 459
Giles v Walker (1890) 62 LT 933

‘Something likely to do mischief’

Blackburn J described: ‘…something likely to do mischief if it escapes’.

*Crowhurst v Amersham Burial Board [(1878) 4 Ex. D. 5]

Attorney General v Corke [1933] Ch 89
*Lippiatt and Another v South Gloucestershire CC [1999] 4 All ER 149] .

Escape
*Read v J Lyons & Co Ltd [1947] AC 156
Miles v Forest Rock Granite Co (Leicestershire) Ltd (1918) 34 TLR 500

Non-natural use
Rickards v Lothian [1913] A.C. 263
*Read v Lyons [1947] A.C. 156 at 176
*Musgrove v Pandelis [1919] 2 K.B. 43
*Cambridge Water [1994] 2 AC 264 at 309.
*Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1

Parties
Lord Macmillan in Read v Lyons described Rylands v Fletcher as: ‘a principle applicable
between occupiers in respect of their land.’

a. Who may be sued under the rule?

An owner, or occupier of land, including whoever stores or collects the substance in
question. Rainham Chemical Works Ltd v Belvedere Fish Guano Co Ltd,
b. Who may sue under the rule?
Hale v Jennings [1938] 1 All E.R. 579]
Perry v Kendricks [1956] 1 W.L.R. 85
Hunter v Canary Wharf
Foreseeability of harm – remoteness
*Cambridge Water Co v Eastern Counties Leather plc [1994] 2 AC 264.
Defences
Act of an unknown third party.
Perry v Kendricks Transport Ltd. [1956] 1 W.L.R. 85
Rickards v Lothian [1913] AC 263

Default of the claimant or contributory negligence

Dunn v Birmingham Canal Navigation Co (1892) LR 7 QB 244
Law Reform (Contributory Negligence) Act 1945
Eastern S.A. Telegraph Co Ltd v Cape Town Tramways Companies Ltd [1902] A.C. 381

Act of God –Nichols v Marsland (1876) 2 Ex.D 1)

Consent of the claimant

Carstairs v Taylor (1871) LR 6 Exch 217

Statutory authority.
Green v Chelsea Waterworks Co (1874) 70 L.T. 547
*Charing Cross Electricity Co v Hydraulic Power Co. [1914] 3 K.B. 772.

Reform of Rylands v Fletcher ?

Burnie Port Authority v General Jones Pty Ltd (1994) ALR 42
*Transco plc v Stockport Metropolitan Borough Council [2004] 2 AC 1

Reading
Bermingham and Brennan, Chapter 14

Further reading
Bagshaw, R ‘Rylands Confined’ (2004) 120 LQR 388
Newark ‘The Boundaries of Nuisance’ (1949) 65 L.Q.R. 480
Law Comm no. 32 (1970)
A.W.B. Simpson ‘Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v
Fletcher’ (1984) 13 J Legal Studies 209
J. Murphy ‘The Merits of Rylands v Fletcher’ (2004) 24 (4) Oxford Journal of Legal Studies
643
D. Nolan ‘The Distinctiveness of Rylands v Fletcher’ (2005) 121 LQR 421
Lecture 18 Elements of defamation and defences

Introduction
Defamation concerned with protecting against harm caused by words.

New body of law emerging in the area of defamation via the internet and, like other areas of
tort effect of the Human Rights Act is becoming more apparent - European Convention
on Human Rights.

Trial by jury is widely used

Court Act 1981 (s 69)
Pre-action protocol for defamation
A company, as well as a human person, can sue for a defamatory statement
Lewis v Daily Telegraph

Libel and slander

Youssoupoff v Metro-Goldwyn-Mayer Pictures (1934)
Defamation Act 1952
Broadcasting Act 1990, s 166
Theatres Act 1968, s 4(1)

Monson v Tussauds (1894) suggest that ‘permanency’ is an important consideration. The

case involved an in Madame Tussauds displaying a model of the plaintiff and his gun in a
murder scene was capable of being a libel.

Libel: actionable per se.

Commenting on this aspect of the law of defamation, Tony Weir (Casebook on Tort, 10 edn,
p 519) observes that the claimant can:
 . . . get damages (swingeing damages!) for a statement made to others without
showing that the statement was untrue, without showing that the statement did him
the slightest harm, and without showing that the defendant was in any way wrong to
make it.

Slander: generally requires proof of special damage

Elements of defamation
Examining the elements of liability in defamation: (1) what is a defamatory meaning; (2) what
is publication; and (3) what is ‘reference’ to the claimant?

What is a defamatory meaning?

Parmiter v Coupland (1840)
Sim v Stretch (1936)

Who are right-thinking members of society generally?

Byrne v Deane (1937)
Hartt v Newspaper Publishing plc (1989)
Ridicule
Berkoff v Burchill (1996)

The meaning of words: innuendo

Tolley v Fry (1931)

True (or legal) innuendo

Cassidy v Daily Mirror Newspapers Ltd (1929)

False (or popular) innuendo

Lewis v Daily Telegraph (1964).
Charleston v News Group Newspapers (1995)

What is publication?
Byrne v Deane (above) publication took place through omission

No publication between spouses

Theaker v Richardson (1962)
Huth v Huth (1915)

Repetition of a defamatory statement

Slipper v British Broadcasting Corporation (1990)

Innocent dissemination
A distinction is drawn between:
• ‘republication’ – those who produce the libel (author, publisher, etc): Vizetelly v
Mudie’s Select Library (1900) (below); and
• ‘mechanical distributors’ – those who merely disseminate the material (booksellers,
newsagents, etc): Defamation Act 1996.

The Act extends the principle of ‘innocent defamation’ to ‘mechanical distributors’ and the
operators of a communications system by which a defamatory statement is published, such
as an Internet service provider (ISP).

What is ‘reference’ to the claimant?

Morgan v Odhams Press (1971)

Words not intended to refer to the claimant

Hulton & Co v Jones (1910)

Group defamation
Knuppfer v London Express Newspapers Ltd (1944)

Who can sue?

Defamation is the only tort in which the action does not survive the death of either party.
Derbyshire County Council v Times Newspapers (1993

Cyber-defamation
Godfrey v Demon Internet (1999),
Byrne v Deane (1937)
Search engine liability
Metropolitan International Schools Ltd v Designtechnica Corporation, Google UK and
Google Inc [2009] EWHC 1765 (QB)
Cyber-defamation and human rights
Loutchansky v Times Newspapers Ltd (Nos 2–5) (2002)

Defences to Defamation

Unintentional defamation defence ‘offer of amends’

Justification
Rehabilitation of Offenders Act 1974
Alexander v North Eastern Railway Co (1865)
Williams v Reason (1988)

Privilege
Two kinds of privilege: absolute privilege which is very narrow in scope and only applies on
the limited occasions outlined below; and qualified privilege which has a wider scope but
provides a weaker form of protection.

Qualified privilege
The issue of honesty and the effects of ‘malice’ are discussed in Horrocks v Lowe.

Qualified privilege at common law: legal, moral, or social duty

Reynolds v Times Newspapers Ltd (2001)
Qualified privilege and references
Spring v Guardian Assurance plc (1995)

Qualified privilege, the media, and political information

In Reynolds v Times Newspapers Ltd (2001)
Application of Reynolds and responsible journalism
Loutchansky v Times Newspapers Ltd (No 2) (2002
Jameel v Wall Street Journal Europe (2006)

Qualified privilege and the emerging “reportage” defence

Roberts v Gable C A [2008] Q.B. 502

Qualified privilege under statute

The Defamation Act 1996
Fair comment on a matter of public interest
London Artists Ltd v Littler (1969)
Kemsley v Foot (1952)

The Defamation Act 1952, s 6

Malice
Thomas v Bradbury, Agnew & Co Ltd (1906)
Horrocks v Lowe (1975),
Damages: general principles
Damages controlled by the jury

Nominal damages
Grobbelaar v News Group Newspapers Ltd (2002) damages reduced to £1.

Defamation awards and human rights

Tolstoy Miloslavsky v United Kingdom (1995),
Rantzen v MGN Ltd (1993)

Damage awards in relation to ordinary values

John v Mirror Group Newspapers Ltd (1997)
Kiam v MGN (2002)
Note dissenting judgment of Sedley LJ

Reforms
Faulks Committee Report and the Report on Practice and Procedure in Defamation have led
to the improvements in respect of defences and procedures contained in the Defamation Act
1996.
Controlling Costs in Defamation Proceedings Reducing Conditional Fee Agreement Success
Fees
Response to the above consultation: Published 3 March 2010
http://www.justice.gov.uk/about/docs/costs-defamation-proceedings-consultation.pdf

Reading
Bermingham and Brennan, Chapters 15 and 16

Further reading
Ashby, K and Glasser, C, ‘The Legality of Conditional Fee Uplifts’ (2005) 24 CJQ 130
Barendt, E, ‘Libel and Freedom of Speech in English Law’ [1993] PL 449
Faulks Committee, Report of the Committee on Defamation (Cmnd 5909, 1975)
Loveland, I, ‘Defamation of Government: Taking Lessons from America’ (1994) 14 LS 206
Williams, K, ‘Only Flattery is Safe’: Political Speech and the Defamation Act 1996’ (1997) 60
MLR 388
Barendt, E, ‘Libel and Freedom of Speech in English Law’ [1993] PL 449
Faulks Committee, Report of the Committee on Defamation (Cmnd 5909, 1975)
Gibbons, T, ‘Defamation Reconsidered’ (1996) 16 OJLS 587
Kaye, JM, ‘Libel or Sander: Two Torts or One’ (1972) 91 LQR 524
Lecture 19 Privacy and Confidentiality

As we have seen in the previous lecture, the aim of law of defamation is to provide
compensation for those whose reputations are harmed by untrue statements and to enable
those threatened with loss of reputation to obtain an interim injunction to prevent the
publication of a potentially defamatory statement. However, where a statement contains
true facts, no matter how much a person wants to them to remain private, the law of
defamation offers no protection. A general right of privacy has traditionally not been
recognised in English common law but since the enactment of the Human Rights Act 1998,
which incorporates the European Convention on Human Rights (ECHR) into English law,
Privacy is now an emerging area of law.

Therefore, where an individual claims a legal right to the protection of personal or private
information from misuse or unauthorised disclosure, the courts are required to have regard
to the ECHR. However, although Article 8 of the ECHR provides an explicit right to respect
for a private life for the first time in English law, this must be balanced with Article 10 which
protects the right to freedom of expression. One of the difficulties with the law in this area is
that privacy is a difficult concept to clearly define and the concern of the courts is that if
privacy is defined too widely it could lead to an undesirable restriction on the freedom on the
press to report matters of public importance. One definition of privacy was provided by
American Judge Cooley, in 1888 as: ‘the right to be left alone’. The Calcutt Committee,
Report on Privacy and Related Matters (1990) (Cm 1102) reported: ‘nowhere have we found
a wholly acceptable statutory definition of privacy.’ The following working definition of
privacy was adopted by the Report: The right of the individual to be protected against
intrusion into his personal life or affairs, or those of his family, by direct physical means or by
publication of information.

Wainwright v Home Office 2003] UKHL 53

McKennitt v Ash [2006] EWCA Civ 1714

HRH Prince of Wales v Associated Newspapers [2006] EWCA Civ 1776. HRH

Campbell v MGN Ltd [2004] UKHL 22

Douglas v Hello! Ltd [2005] EWCA Civ 595 The publication of a celebrity couple's

Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB)

Lecture 20 Overview of trespass to the person and to land

TRESPASS TO PERSON
Direct and intentional acts
Letang v Cooper (1965)
Negligence statute barred (Limitation Act 1980)
Wilson v Pringle (1987) (below).

ASSAULT BATTERY AND FALSE IMPRISONMENT

Assault
Stephens v Myers (1830)
Tuberville v Savage (1669)
Thomas v National Union of Mineworkers (1986)

Battery
Actual infliction of unlawful force on another person - note trespass is actionable per se (it is
not necessary to prove damage) but in order to succeed in negligence the claimant must
show that damage or harm has been suffered.

What type of contact amounts to ‘force’?

Collins v Wilcock (1984

An ‘act’ and an ‘intention’ to commit the act is required

Nash v Sheen (1953): tone rinse
Livingstone v Ministry of Defence (1984) soldier intended to hit a rioter

A ‘hostile’ touching
Wilson v Pringle (1987

Emotional distress: conduct ‘calculated to cause harm’

Wilkinson v Downton (1897

Situations involving a ‘course of conduct’

Wong v Parkside Health NHS Trust (2003)
Majrowski v Guy’s and St Thomas’s NHS Trust (2006)
Wainwright v Home Office (2003)

False imprisonment
Bird v Jones (1845)
R v Bournewood Community and Mental Health NHS Trust (1998

Reasonable restriction is not false imprisonment

Robinson v Balmain Ferry Co Ltd (1910)
Herd v Weardale Steel, Coal and Coke Co (1915)
Iqbal v Prison Officers Association [2010] 2 WLR 1055

Knowledge of the restraint not necessary

Meering v Grahame-White Aviation Co Ltd (1919
Murray v Ministry of Defence (1988

Relevant intention is intention to detain

R v Governor of Brockhill Prison, ex parte Evans (No 2) (2001)

DEFENCES TO TRESPASS TO PERSON

Police and Criminal Evidence Act 1984
Mental Health Act 1983
Children and Young Persons Act 1933
Hook v Cunard Steamship Co (1953

Consent
Patient requiring an invasive medical procedure normally gives express consent

Implied consent: participants in sporting activities

R v Billinghurst (1978)
Condon v Basi (1985)
Watson v British Boxing Board of Control (2001)

Voluntarily participants in fights

Lane v Holloway (1968)

Consent to medical treatment

Chatterton v Gerson (1981)
Chester v Afshar
F v West Berkshire Health Authority (1990)

Patients in a persistent vegetative state

Airedale National Health Service Trust v Bland (1993)

The right to life does not extend to a right to die

R v Director of Public Prosecutions, ex parte Dianne Pretty (2001)

Refusal of medical treatment

Re S (1992)
Re MB (Medical Treatment) (1997)

Absolute right to refuse medical treatment

St George’s Healthcare Trust v S (1998

Self-defence
Cockroft v Smith (1705)
Criminal Law Act 1967; s 3
Ashley v Chief Constable of Sussex Police [2008] 2 W.L.R. 975
Necessity
Leigh v Gladstone (1909

Reading
Bermingham and Brennan pps 23 - 337

Further reading
Lunney, M, ‘Practical Joking and its Penalty: W ilkinson v D ow nton
in Context’ (2002) 10 Tort LR
168
Marchant, S, ‘The Right to Treatment’ (2004) 154 NLJ 1316

TRESPASS TO LAND

What ‘intention’ is required?

Basely v Clarkson (1682)
League Against Cruel Sports Ltd v Scott (1986)

What is a ‘direct’ interference?

What is ‘land’?
Bernstein v Skyviews (1978)
Kelsen v Imperial Tobacco Co (1957)
Woolerton v Costain (1970)

Defences to trespass to land

Consent
Wood v Leadbitter (1845)
Hurst v Picture Theatres Ltd (1915)

Necessity
Southwark London Borough Council v Williams (1971) - squatters not allowed to rely
on the necessity for shelter as a defence.

Reading
Bermingham and Brennan pp. 38 - 41

Further reading
Lunney, M, ‘Practical Joking and its Penalty: W ilkinson v D ow nton
in Context’ (2002) 10 Tort LR
168
Marchant, S, ‘The Right to Treatment’ (2004) 154 NLJ 1316
Trindade, F, ‘Intentional Torts: Some Thoughts on Assault and Battery’ (1982) 2 OJLS 211
Lunney, M, ‘Practical Joking and its Penalty: W ilkinson v D ow nton
in Context’ (2002) 10 Tort LR
168
Marchant, S, ‘The Right to Treatment’ (2004) 154 NLJ 1316
Trindade, F, ‘Intentional Torts: Some Thoughts on Assault and Battery’ (1982) 2 OJLS 211