HISTORY OF THE TORT OF VICARIOUS LIABILITY

The following paper shall investigate the origins and development of the tort of vicarious liability. In doing
so it shall provide an analysis for the usage of the legal terminology in an effort to produce distinctions.
The law of vicarious liability in its present form shall also be considered utilising case law to discover the
evolution of the principles. The standard of social justice as recognised by the law shall be assessed in
order to establish the soundness of public policy in relation to vicarious liability.

The law of vicarious liability is indeed one which is unique within the justice system. It is the only tort that
looks beyond the primary tortfeasor’s liability and applies liability to an otherwise innocent party, the
defendant tortfeasor in secondary liability. The purpose for what would seem to be a wrong in the law is
undoubtedly attributed to the concepts of fairness and the justness of the legal system as to maintain a
socially accepted public policy.

Holt CJ is an established pioneer in the area of vicarious liability, declared in Herne v Nicholl (1700) that
‘For seeing somebody must be a loser, it is more reason, that he that employs and puts a trust and
confidence…should be a loser rather than a stranger’. This is indicative of the fact that for justice to prevail,
somebody must be held to account and in this case it should be the employer by way of vicarious liability.

Lord Toulson, in Mohamud v W M Morrison (2016), decide that for the employer to be held liable two
tests must be satisfied. The Supreme Court Judge asserts that the field of activities entrusted by the
employer must be addressed broadly and that the sufficient connection between the employment position
and the wrongful conduct is established so as to establish a just result in the interest of society.

The field of activities applied broadly may have varying negative consequences in various vicarious liability
cases. An instance would be the case of Deaton Pty LTD v Flew (1949) where it was found that the
employee’s line of work was not cause for her action, even though the confrontation took place as she was
carrying out her duties. The field of activities vocabulary had been examined before by Lord Diplock in Ikiw
v Samuels (1963) where the language used to describe employment was not limited to specific duties. The
broad application in Wren v Henry (1948), for example, could be afforded new critique. Primarily due to
the fact that it involved a confrontation during the execution of duties and continued on once duties were
concluded with threat of seeking redress from the employer levied by the claimant.

It is for the reasons of these scenarios that the Salmond Test provided a measure of security for those
seeking justice when maltreatment occurs during the ordinary course of interaction with various
enterprises. Salmond introduces the doctrine which holds an employer liable as such (a) a wrongful act
authorised by the master and (b) a wrongful act unauthorised by the master. This is with a direction to
focus towards the connection between the employer and the employee and the claimant. In the principle
of liability for a connection with acts authorised though executed through improper modes of doing them.
This rigidly held all activities of employment with the employee and align them with the employer’s
purpose for employment, resolutely. This was observed in Lloyd v Grace & Smith Co (1912) which
identified that so long as the employee’s tortious activities arise due to their authorised acts, the
unauthorised acts closely connected to the employers business vitiates for a finding of vicarious liability.
The fact that the field of activities can be subjected to authorisations and non-authorisations has given rise
to case laws which challenge the justiciability of these principles of vicarious liability on both sides of the
scale. In Limpus v London General Omnibus () an express prohibition of an act established its non-
authorisation. Yet when the primary tortfeasor committed the unauthorised act, the employer became the
defendant and became vicariously liable. Contrasted with Keppel v Ahmad () when a passenger was
assaulted by the conductor, the employers were found not to be vicariously liable due to the incident not
being an authorised act, though it happen during the course of the employment.

Therefore, Lord Toulson’s second test of sufficient connection may very well offer a solution to the varying
degrees of employer/employee relationships which give rise to cases of vicarious liability. The present test
for close connection has been in operation since Lister v Hall () whereby the woeful crimes committed by
an employee were found to be connected to the employment engaged. The judgement of the House of
Lords seems to have intended to re-establish the principles of Holt CJ in Tuberville v Stamp () when stating
that ‘If my servant doth anything prejudicial to another, it shall bind me, when it is presumed that he acts
by my authority, being about my business’.  Although this may appear to be a harsh way of mitigating
justice in the pursuit of public policy, it would be a gross absurdity to allow such a crime to have no civil
remedy as to dismiss it as a mere ‘folic of one’s own accord’ as underlined in Joel v Morrison (1834).

The delicate application of socially remedial action at court, must provide security for business owners and
other institutions alike. It is not safe for a law observing society to expect an innocent party to be held
responsible for the actions of another, primarily due to the proximity of their relationship to one another.
It is therefore just to isolate the deeds of one and examine their relationship with the employer. It is
necessary to distinctly identify the case whereby an individual is actually acting in the interests of their
own enterprise as outlined in Storey v Ashton (1869) and acknowledge actions taken under instructions for
the benefit of the employer as observed in Mattis v Pollock (2003).

The appeal in Mahmud v Morrison (2016) seemed to seek to address the issue of a close connection test
required to establish vicarious liability. Vicarious liability does not place direct blame on an employer,
rather, it is a consequential liability. This allows for an employer to only be held liable for the tort if it were
committed in a manner so closely connected with the business they employ. The House of Lords decided in
Dubai Aluminium Co Ltd v Salaam (2002) stating that ‘A close connection and direct connection test…
allows for the unlawful conduct to be regarded as having been done during the ordinary conduct of
employment’. This was observed in Gravis v Carroll and Another (2003) whereby a sports club was held
vicariously liable due to the fact that a rugby player did harm an individual, finding that there was a
connection between the punch and the work he was employed to do. Furthermore, in Mattis v Pollock
(2003) the court of appeal stated that ‘vicarious liability for an act of violence is more likely to be found’.
This is a case that closely reflects the calls for a representative capacity test. It, therefore, stands to good
reasoning that the test for vicarious liability is sensitively assessed.

 The common law’s wealth of precedent in the area of tort is supplemented with a substantial amount of
statute law.  Common Law along with Legislation do not only offer protection to the claimants but also
provides security for the defendants. In Majorwski v NHS () the claimant was able to rely on the Protection
form Harassment Act () to bring a case of vicarious liability against an employer. In the interests of a
socially acceptable public policy, the Civil Liability (Contribution) Act allows for an employer to recover
their funds from an employee following a suit of vicarious liability. A legislation that has a prima facie
imposition of vicarious liability is the Partnership Act which governs the activities of law firms in the course
of their business. Furthermore, the case of Lister v Ice & Cold Storage Company, allows for an employer to
sue for indemnity against an employee.

In Conclusion, the interaction between communities and enterprises which provide amenities is one that
requires a balancing of responsibilities. The freedom to provide business activity and the reasonable
foresight of the risks associated with the engagements, must be given proper scope for justiciable scrutiny.
In Rose v Plenty () the business of providing the community with milk did not allow for society to leave the
claimant uncompensated. Yet in Joel v Morrison to hold an employer liable for independently committed
acts was prohibited. The case of Mahmud v W M Morrison (2016) did risk an injustice in the form of
‘Representative Capacity’, the wisdom of the Supreme Court in rejecting this test has confirmed the scope
of the ‘Field of Activities’ and has reaffirmed the validity of the ‘Sufficient (Close) Connection’ test. This is
positively in the favour of finding a balance capable of the commitment to a fair and just legal system, with
regards to public policy and social justice in tort law.

PROVING A BREACH OF REQUIRED STANDARD IN MEDICAL NEGLIGENCE

Proving a Breach of Required Standard in Medical Negligence

Essay Question:

A claimant seeking damages in negligence for a loss sustained in the course of medical treatment has
several high hurdles to surmount. In particular, proving a breach of the required standard and establishing
causation may be highly problematic, often for reasons of public policy as judges attempt to balance
justice for the claimant against the wider impact their decision may have on society as a whole.

With reference to relevant case law and academic commentary, critically analyse the accuracy of this
statement.

Introduction

My attempt in this essay is to articulate the experience of a claimant seeking damages in the course of
medical treatment, identify the hurdles that they have to go through and the establishment of a clear case
they have to present in establishing causation. I will also be examining the role of the judges in this regard
and rational as to why public policy play a crucial role and impact on the decisions. The law of tort has a
number of components to it for the a claim to be established[1] they are;

1. The protection of legal and legitimate interests of individuals

2. Recognition and establishment of normative standards of behavior
3. Provision of those who have been wronged with compensation
4. Acknowledging the wrong or harm, and providing retribution

In tort,’ the standard remedy is damages’[2] the law of tort is mediated by civil proceedings with a wide
range of rights, obligations and remedies. The law of tort can be distinguished from criminal and contract
law. In criminal law, this is wrong against the states statutes, policies and law, while the contract law
focuses on the rights and obligations of parties in a contractual arrangement. However there may be times
when this line is blurred an example can be an assault or grievous bodily harm which may be deemed to be
criminal, but also give rise to civil actions for compensation.

In the law of negligence there are four elements that need to be proven for a successful claim[3];

1. The negligent party owed a duty of care to the victim. The establishment of a duty owed by one
person to the other

2. There was a breach of the duty of care. This in effect means that the person who owes the duty of
care has breached that duty.

3. Causation (the negligent caused the injury/loss). As a result of the breach, this causes a damage or
injury to the affected party or parties.

4. Damage or injury occurred. The damage or the injury occurs and has made the affected person to
suffer a loss.

Lord Hoffman in his lecture at Bar Council Law Reform Lecture said that the concept of the duty of care,
whose moral basis had been the Aristotelian concept of corrective justice, did not fit well upon questions
involving the administration of public bodies. Unlike individuals, such bodies often have no choice as to
whether to provide a service or not; their funds are limited and, in a democratic country, they have choices
about their spending priorities. So the question of whether they have acted reasonably in matters of
administration cannot be equated with whether a plumber or doctor has exercised reasonable care. He
criticised as hopelessly question-begging the well-known quotation from Lord Bingham: “the rule of public
policy which has first claim on the loyalty of the law [is] that wrongs should be remedied.” And then there
was the question of democracy. Was it right for judges to create a duty of care in private law when
Parliament had omitted to do so? Creating such a liability means adding to the financial burdens on the
public body: to defend actions or to pay compensation. Was it not better for Parliament to decide whether
resources should be used in this way? The courts are ill-equipped to assess the effect of the introduction of
new causes of action on the behaviour of public bodies.[4]

In Hill v Chief Constable of West Yorkshire [1989] AC 53, the House of Lords held that, as a matter of public
policy, the police were immune from actions for negligence in the investigation and suppression of crime.
Lord Keith wrote the main opinion. He said rather cautiously that “in some instances the imposition of
liability may lead to the exercise of a function being carried on in a detrimentally defensive frame of mind.
The possibility of this happening in relation to the investigative operations of the police cannot be
excluded”. He also gave other reasons for holding that no duty of care was owed. These included that, if
actions were instituted arising from a police investigation, it would be necessary to examine the manner of
the conduct of the investigation. This would entail scrutinising a variety of decisions on matters of policy
and discretion, for example as to which particular line of inquiry is most advantageously to be pursued,
and what is the most advantageous way to deploy the available resources. A great deal of police time,
trouble and expense might be expected to have to be put into the preparation of the defence to the action
and the attendance of witnesses at the trial. The result would be a significant diversion of police
manpower and attention from their most important function, that of the suppression of crime. A similar
approach to public policy was applied in Calveley v Chief Constable of the Merseyside Police [1989] AC
1228 where it was held that no duty of care was owed by the police in the conduct of disciplinary
proceedings against a police officer.[5]

WHAT ARE THE HURDLES?

For a claim to be successful, a number of hurdles will have to be crossed. These include causation,
relationship, and direct link between the harm and the action of the defendant

 Causation

Causation is at the heart of what needs to be proofed by the claimant that the defendant’s action is
responsible for their misfortune or ham. Factual causation is determined by reference to the “but for” test,
the “scope of liability”. Causation is central to the interpersonal responsibility. The starting point to
developing any test for causation must be an accurate understanding of what purpose the doctrine of
causation has in negligence. It will be argued here that the concept of causation in law is narrower and
more precise than the use made of the term ‘cause’ in everyday language because, as Stapleton has
explained, causation can be understood in a wide range of senses, from involvement, to explanation, to
blame[6]. Negligence law does, however, put its understanding of causation to a specific purpose, namely
establishing a causal link between a particular instance of negligence and a particular harmful outcome.
[7] The understanding of the day to day meaning of the word causation is different from the legal
interpretation of causation. The law requires a standardised approach with accuracy, consistency and
precision.

Wright has shown, however, that in everyday language ‘cause’ is often shorthand for ‘the cause’ rather
than ‘a cause’: The phrase “a cause” usually refers to causation per se – the fact of being one of many
contributing conditions. The phrase “the cause” generally is used to denote which of the many
contributing conditions is legally or morally responsible…“The cause” is merely an elliptical way of saying
“the (most significant for our purposes) cause”[8].

It will be erroneous to rely on the ordinary definition as it relies on making evaluative judgement rather
than the articulation on which the judgement is based. Hart and Honoré, however, identified three issues
and it is important to understand which of these are causal and which are evaluative. These three issues
are: causally relevant condition, causal connection, and remoteness of damage[9]. The first relates to the
historical involvement of negligence in the occurrence of harm. This is refers to as the factual occurrence
whilst the second establishes which of the relevant conditions actually causes harm and the third
distinction relates to whether harm was too remote to cause harm.[10]

In the case of Barnett v Chelsea & Kensington Hospital [1969] QB 428, the need for a factual determination
of whether the defendant caused the alleged action is emphasised. The action in this case was brought by
the victim family. The victim presented at the hospital Casualty department which was provided and run
by the defendant. The victim is one of the 3 watch men that presented themselves. They were seen by a
nurse on duty and presented their symptoms described as vomiting 3 hours after drinking tea. The nurse
contacted the doctor on call and was advised to send the men to go home. About 5 hours after the men
left, one of them died from arsenic poisoning. The family alleged that the hospital was negligent. The issue
to consider is whether the defendant’s negligence causes the death. However, the court decision did not
hold the defendant liable for the death. This decision established the ‘but for’ test. But for the defendant’s
breach of duty result in harm to the plaintiff. The medical evidence shows that the victim would have died
even if the treatment was administered. The actual cause of death was the arsenic poisoning. In this case it
was establish that the plaintiff failed to establish the balance of probabilities that the death was as a result
of the defendant’s negligence.[11] A claimant must prove their case on the balance of probabilities that
harm was caused by the defendant’s breach of duty. This is a major hurdle to go through in court and
makes it difficult for plaintiff to win a case.

 The Reasonable Person

A person is deemed to have become negligent if the person departs from the conduct of a reasonable
person who acts under similar situations or circumstances.

This test provides an objective measurement by which people are judged in law of negligence.

It is very important that the person who brings an action to court cannot argue on the basis of what an
average or a typical person in the community will interpret to be the test of a reasonable person but this is
measure by a composite view of how the community members will view a course of action. 

In order to determine reasonableness, a number of other factors will have to be taking into consideration
including experience, level of knowledge, what the individual is engaged in, physical attributes of the
person and the circumstance within which that individual finds him/her self-including environmental
factors during the event that is in question.

Alongside knowledge is the consideration for special skills. If a person engages in an occupation or activity
like being a doctor or a dentist, the standard of measure will be that of a conduct of a reasonable skilled
person with a level of experience and adjudged competence. However the law does not make adjustment
for juniors or inexperience or a learner.

Physical Characteristics is another attribute that is used as a measure of reasonableness. A measure of

reasonableness must take into account the same physical characteristics. In order to be negligent a person
must have physical characteristics that will enable them to perform the task.

A physically disabled person cannot be expected to save or rescue people from a burning house.

Although physical characteristics are taking into consideration, mental capacity is not taken into account in
the determination of a person’s negligence. Mental capacity is largely ignored. A person who is
temporarily intoxicated cannot claim not to be negligent if driving, under the influence of alcohol.

But in the case of children, whilst they may be found negligent they are not held to the same standard of
test. The reasonable test for a child is evaluated by their age, understanding and level of experience. It is
important however to stress that if a child is engaging in what is regarded as an adult activity, they will be
measured with the same standard as an adult.
Within the reasonable test is the view that acting in an emergency can subject individuals to mistakes and
errors. This will interpreted as level of reasonability under the circumstance but the court will have to take
the view of the level of predictability. Can it be foreseen and acted upon?

The conduct of others is another variable taking into account as to how individuals regulate themselves in
comparison to the conduct of others.

 The Burden of Proof

In negligence cases, the plaintiff must be able to proof that the accused or the defendant deviates from
the reasonable test. Whilst the action brought before the court relies on the plaintiff’s ability to proof the
reasonable person test is put to a considerable examination. Though it is recognised that the plaintiff have
more avenues to proof reasonableness by using the violation of the statutes that has been put in place to
protect members of the society. The plaintiff may also use the experts to present their argument or bring
about information around circumstantial evidence to argue the case. These are not particularly easy
argument to convince the judges or the jury.

In the case of Hotson v East Berkshire Area Health Authority the plaintiff fell from a tree and the treatment
that was administered was adjudged to be wrong which left the plaintiff with permanent hip joint damage.
The plaintiff had been working at a height of 70ft, but the defendant had not provided the safety harness
to secure safety despite the fact that under the law, there is an obligation to provide the plaintiff with the
harness that will ensure safety.[12] Though there was evidence in this case that had this being provided,
the plaintiff may not have worn it. The issue for the court was the question of liability. Could the hospital
be liable for reducing the chance of recovery due to poor treatment? It was upheld that the burden of
proof is not strong enough as causation could not be established. It was found that the argument did not
stand the test of the balance of probabilities and only 25% chance that the poor treatment, affected the
plaintiff chance of recovery. In order to satisfy the law, the balance of probabilities required would be
about 50% chance. The action failed and the under the “all or nothing “approach, the chance of partial
admission of liability is not enough to win a case despite admission by the defendant in admitting
negligence but not liability.

Whilst there has been a debate about the recent move in the case of Fairchild v Glenhaven Funeral
services Ltd [2003] 1 AC 32 to weakening the test for factual causation in this case. The plaintiff developed
a type of cancer called mesothelioma which is caused by exposure to asbestos. The plaintiff had previously
worked for various employers. The defendants joined the action did not include all of the employers, but
the medical opinion did conclude in their evidence, which of the employers has been responsible for the
exposure. The ‘but for test’ was not satisfied. The question for the court was whether the defendants
could be held responsible? Whilst the court of appeal ruled that the medical evidence in this case could
not be relied on to determine causation, but the House of the Lords considered using the approach in
the McGhee v National Coal Board [1973]. This was seen as defendants having employed the plaintiff,
contributed to the exposure from which the cancer was contracted. As the cancer is regarded as an
indivisible condition, it was ruled that the defendants have jointly and severally liable.[13] This judgement
was seen as being in the favour of the plaintiffs who brought action to court.
In the case of Hucks v Cole 1968, the plaintiff who was admitted to a maternity ward was suffering from
septic spots on her skin which had the potential of the organisms which may cause puerperal fever. The
doctor refused to treat the patient with penicillin. In this case, a number of expert doctors were called as
witnesses and came to the conclusion, that their decision would have being the same as the doctor who
refused to treat the patient.

This case has always been criticised as collusion by the medical profession. The court held the defendant
negligent, as the doctor had knowingly avoided risk on which there was no proper basis.

Judge Sachs LJ said: ‘When the evidence shows that a lacuna in professional practice exists by which risks
of grave danger are knowingly taken, then, however small the risk, the court must anxiously examine that
lacuna-particularly if the risk can be easily and inexpensively avoided. If the court finds, on an analysis of
the reasons given for not taking those precautions that, in the light of current professional knowledge,
there is no proper basis for the lacuna, and that it is definitely not reasonable that those risks should have
been taken, its function is to state that fact and where necessary to state that it constitutes negligence. In
such a case the practice will no doubt thereafter be altered to the benefit of patients. On such occasions
the fact that other practitioners would have done the same thing as the defendant practitioner is a very
weighty matter to be put on the scales on his behalf; but it is not, as Mr. Webster readily conceded,
conclusive. The court must be vigilant to see whether the reasons given for putting a patient at risk are
valid in the light of any well-known advance in medical knowledge, or whether they stem from a residual
adherence to out-of-date ideas.’[14][15]

This case brings into focus the fact that a number of doctors said they would have taken the same
decisions; it has not stopped the court coming to a different conclusion.

Imposing a duty of care may cause public officials to respond in an unduly risk averse or “defensive”
manner. This is a recurring theme in some of the cases. For example, in the Bedfordshire case, it was said
that if social workers were made liable for wrong decisions in respect of removing children at risk, they
might hesitate when it came to making such decisions in the future. The delay would prejudice the child
who was actually being abused, as well as other children who would suffer as a result of slower decision-
making by individuals: p 750.[16]

It can be argued that usually, the courts are always cautious about ruling against the medical professionals
for policy reasons.[17]

In The case of Bolitho V City and Hackney Health Authority [1998] AC 232, was another landmark ruling in
medical negligence. The mother of the victim, a two year old child was rushed to the hospital following a
respiratory failure and suffered a brain damage and eventually died. It was alleged that the doctor did not
attend due to a technological failure. It was argued that the child could have been saved had the doctor
attend and provide a specific procedure which would have saved the child’s life. The defendant argued
that the doctor would not have carried out the procedure as the outcome may have been the same. This
argument was supported by a number of medical doctors. [18]

However, the court concluded that the defendant’s action was based on an omission to act and had to
consider that the ‘but for’ test in a hypothetical situation. Lord Browne-Wilkinson said: ‘it will very seldom
be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are
unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge
would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes
clear, it would be wrong to allow such an assessment to deteriorate into seeking to persuade the judge to
prefer one of two views both of which are capable of being logically supported. It is only where a judge can
be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not
provide the bench mark by reference to which the defendant’s conduct falls to be assessed.’[19]

However the implication of ruling against the body of evidence by the medical profession is that this may
create a risk avoidance on the part of the medical profession because of the fear of been sued and may be
more dangerous for patients.

This further creates a major hurdle for the plaintiffs in arguing before the courts as the judges may have a
view on the implication of the ruling on the profession and the discharge of their duty to the society.

 Duty of Care

An area of hurdle for the plaintiff is in the duty of care. There has to be an established relationship that the
defendant owed the plaintiff the duty of care as a defendant is not liable if they do not have a duty of care.
The duty of care is mediated by the neighbourhood test as in the case of Donoghue v Stevenson [1932] AC
562 

 Lord Atkin in his ruling said that

“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? 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.”[20]

In this case Mrs Donoghue attended a café with a friend where they were served with ginger beer and ice
cream. She poured half of the beer onto the ice cream and consumed the part of the rest directly from the
bottle and then poured more onto the ice cream. A decomposed snail flowed from the bottle leaving Mrs
Donoghue to suffer injury. She made a successful application to court. This case became the landmark
ruling and providing the approach which is referred to as a neighbourhood test.[21] The neighbourhood
test that anyone bringing action to court has to argue successfully rest on two requirements. The
reasonable foresight of harm and a relationship of proximity.

Prior to the case, it was sufficient to argue on the basis that the plaintiffs have to establish an existing duty
relationship, but this test broadened the approach and enabled claimants in a wide range of situations. A
number of subsequent cases have sought to narrow its application. In the case of Anns v Merton London
Borough Council [1978] AC 728, Lord Wilberforce came up with a two stage test. The first stage was to
examine whether the loss was reasonably foreseeable and whether a relationship of proximity exists, if
this is proved a duty of care is established and the second test may then be that the defendant can put
forward policy considerations to negate the liability.

The first stage was similar to the case test in Bolitho’s case. But in order to address the implication that this
may result in the courts been inundated by claims, the second stage provided a support for the defendant
to use policy as a defence from the imposition of the duty of care.

Despite the view that the Anns test attempted to use the second test to limit the claimant’s ability to
pursue claims and put more hurdles for the claimant to surmount. The House of Lords in the Caparo case
sought to further narrow the approach and ruled against the Anns. In Caparo Industries Plc v
Dickman [1990] 2 AC 605, Lord Bridge came up with a three stage test. The claimant must be able to
establish that harm was reasonably foreseeable, that there was relationship of proximity and that it is fair,
just and reasonable to impose a duty of care[22] [23].

Whilst in Anns test the liability is established once the claimant is able to argue successfully reasonable
foresight, proximity and demonstrate policy factors for negating liability, under the Caparo test it is the
responsibility of the claimant to put forward policy reasons for imposing liability.[24]

This series of Judges introducing tests can only be seen as increasing the hurdles of the claimants in
seeking redress. Even those who expressed a grudging admiration for what the majority had decided in
Donoghue v Stevenson were keen to make it clear that there had to be limits: ‘The decision in the
Donoghue case was one of good sense and social necessity, but social necessity and good sense require
some limits”.[25]

More recently, discussions about the proper reach of the law of negligence have resulted in Parliamentary
debate and the 21 passing of legislation seeking to influence the standard of care applied by the courts in
certain areas of social activity.[26]

The demonstration of the hurdles that the claimants have to go through can also is seen through the prism
of the access to services as in case of health care where the courts are cautious.

The courts have largely distanced themselves in being critical of these arguments. In  R v Secretary of State
for Social Services, ex p Hincks (1980)[27], Samantha and Samantha 2015 (page 49) summarised that the
Judge in this case ruled that the ‘Secretary of State is not under any obligation to meet every demands for
healthcare and can only do what is achievable with limited resources’.

However in a number of cases the process of decision-making process has been subject of Judges focus,
rather than the decision to question the government to decide on access to medical treatment. In the  R v
North East Devon Health Authority, ex parte Coughlan[28] the application for judicial review was upheld in
the favour of the applicants. However there is a clear distinction made by Lord Woolf MR that the decision
to move the occupants of Mardon House was more to do with the breech of promise as opposed to the
decision to fund care. In R v North Derbyshire Health Authority, ex parte Fisher,[29] the court found that
the Health Authority had acted unlawfully in following the Department of Health guidelines following the
refusal to fund Beta-Interferon except in relation to clinical trials. This decision was asked to be considered
in relation to national policy set by the Department of Health rather than a court decision to compel NHS
to provide treatment. In a 2006 case, R (Ann Marie Rogers) v Swindon Primary Care Trust and Secretary of
State[30], the decision not to fund the use of Herceptin for the condition was overturned due to fairness
of refusing treatment to one individual within an eligible group. Some may have seen this as a land mark
ruling of using the law to successfully gained access to medical treatment; Keith Syrett[31] argued that the
ruling is more about that transparency and honesty about scarce resources by the PCT. This was more
highlighted in the case of R (on the application of Otley) v Barking and Dagenham NHS Primary Care Trust.

In R (Murphy) v Salford Primary Care Trust the Judge sets out legal principles in determine cases of this
nature. It clearly states;

 The NHS is entitled to take into account the financial constraints in making decisions about funding

 The limitation of the Courts in getting involved in the Clinical Commissioning Groups decisions save
for when the adherence to the policy or irrationality in decision making can be proven.

 It is not the Courts role in expressing opinions or to express medical judgement.

 It is lawful for the for an NHS organisation to refuse to pay for treatment unless it is an exceptional
circumstances if that can be predicted.

This case is a clear demonstration that using the law to gain access is limited with the limitations of what
the court can do or not do. 

Conclusion

One of the tenets of Magna Carta is that justice shall be done by the law of the land and must be
determined by the due process of law. The law of tort has developed over hundreds of years in response
to the changing social, economic and political landscape. The perceived notion of the development of
compensation culture has raised concerns and has influenced the changes to the law[32].

The Parliamentary enquiry which reported in the same year concluded that the ‘evidence does not support
the view that increased litigation has created a “compensation culture”.[33]

However this has not stopped the Parliament in passing two legislations that is aimed at curtailing and
reducing claims. The Compensation Act 2006, and Social Action, Responsibility and Heroism Act 2015.

 It is evident from this essay that In order to succeed, claimants have to establish that the injury was as a
matter of law attributable to the fault of someone else. That is what had to be established in
the Bogle case. The law requires fault. It requires a duty of care, breach and causation of loss. These are
not always straightforward matters to establish. The courts have certainly not taken an approach which
has lowered the standard of care, made it easier to establish negligence or introduced a test which allows
claims to succeed in the absence of fault (except, of course, where the law imposes strict liability).[34]

The burden of a judgement on the government and tax payers will continue to be an ongoing interactive
dynamics in the law of negligence for the foreseeable future where judges will continue to balance the
burden on the society and the need for individual fairness and justice.
 List of cases

Anns v Merton London Borough Council [1978] AC 728 

Blyth v Birmingham Waterworks Co (1856)

Bolitho V City and Hackney Health Authority [1998] AC 232

Caparo Industries Plc v Dickman [1990] 2 AC 605

Donoghue v Stevenson [1932] AC 562

Fairchild v Glenhaven Funeral Services Ltd [2002].

Hotson v East Berkshire Area Health Authority [1988] UKHL 1

Hucks v Cole: CA 1968

Hill v Chief Constable of West Yorkshire [1989] AC 53

McGhee v National Coal Board [1973]

Nettleship v Weston [1971]

R v Secretary of State for Social Services, ex p Hincks (1980)

R v North East Devon Health Authority, ex parte Coughlan

R v North Derbyshire Health Authority, ex parte Fisher

R (Ann Marie Rogers) v Swindon Primary Care Trust and Secretary of State

R (on the application of Otley) v Barking and Dagenham NHS Primary Care Trust

R (Murphy) v Salford Primary Care Trust

Wilsher v Essex AHA [1987

PSYCHIATRIC INJURY CLAIMS IN TORT LAW

After witnessing a tragic accident, it is possible to experience an extreme and traumatic response that can
have a long-term impact upon the life of an individual. The psychological illness obtained from such an
incident is commonly called psychiatric injury, or previously known to the courts as ‘nervous shock’.
[1] Nervous shock can appear in the form of depression, PTSD, chronic pain syndrome or panic disorder
etc.[2] However it can also be the physical reaction to the shock as seen in Bourhill v Young (1945).
[3] Psychiatric injury is a newly developed, incremental extension of the law and therefore has to be
addressed separately. Claims prior to the 20 th century held little weight as they lacked proof that an
individual was genuinely suffering from shock. However, due to recent medical developments it is far
easier to assess someone’s mental state.[4] Further issues had arisen in the early development of this area
of law as it allows the opening of the ‘floodgates’. Because of this, it was necessary to put in place a set of
‘guidelines’ that identified who is eligible for compensation and who is not. Applying this information, this
essay is designed to advise the parties affected by the negligence of the track inspection and repair
company and show the strengths and limitations to the tort of nervous shock.

When assessing whether a person is eligible to claim for psychiatric injury, it is crucial to identify whether
they are a primary or a secondary victim. Page v Smith (1995) [5] is used to recognise primary victims.
Here, the plaintiff was involved in a car accident that caused them little physical damage but consequently
led them to relapse from myalgic encephalomyelitis. Lord Keith and Lord Jauncey held that personal harm
was “reasonably foreseeable” [6] in this case, regardless of whether the harm was physical or
psychological. Hedley describes this foreseeability as the “zone of danger”, the extent of which is decided
by the courts.[7] As a result, individuals who are directly involved in an accident and subsequently injured
– be it physically or psychologically – are classed as primary victims and therefore are easily able to claim.

The issue arises when seeking compensation for secondary victims. These types of victims are not directly
involved in the accident but are affected by it.[8] As stated previously, in order to avoid ‘floodgates’,
secondary victims have to meet the criteria set out in the Hillsborough litigation Alcock v Chief Constable
of South Yorkshire (1991)[9] in order to identify whether they were owed a duty of care. Initially, Jones v
Wright (1991)[10] assessed claimants on a two-part basis: “First, the necessary degree of relationship
between the claimant and the person in danger. Second, the question of geographical proximity to the
event.” However, this only included a parent – child relationship, meaning many cases were rejected. It
also failed to include people who witnessed the direct aftermath of the event, deeming only the people
present in or outside the stadium within “geographical proximity.” This was replaced by Alcock where
secondary claimants had to prove reasonable foreseeability, in alignment with Lord Wilberforce’s
statement in McLoughlin v O’Brian (1983)[11], and have a medically evidenced psychiatric injury. They
further had to have sufficient “proximity and time” to the incident[12] and have a ‘close relationship’ to
the injured.[13] All four requirements have to be proven in order to make a claim. This was more effective
in finding justice for the victims as it widened the boundaries. The journal of Personal Injury Litigation in
their commentary on Page v Smith (1996), described such restrictions upon secondary victims being “…
solely as a floodgates mechanism.”[14] However, could be seen as harsh as many people who were
affected by the events of the Hillsborough failed on at least one element of the test.

Catalina is a primary victim as she was directly present at the crash and therefore exposed to the risk of
physical injury. On the grounds of Page v Smith (1996),[15] it is reasonably foreseeable that due to the
negligent maintenance of the track, the train would crash and harm those waiting at the platform. As
Catalina was on the platform at the time of the accident, it would be reasonably foreseeable for her to
protect herself – in this instance in the form of diving for protection, thus showing that she is owed a duty
of care. The action of “diving” shows that Catalina feared for her own safety. In this way, the case of Dulieu
v White (1901)[16] shows us that a person is eligible for damages if they are worried about the impact the
accident may have on them. In White (1901), Justice Kennedy stated that “The shock, where it operates
through the mind, must be a shock which arises from a reasonable fear of immediate personal injury to
oneself.”[17] Applying this to Catalina, the train crashing into the platform would cause fear of ‘immediate
personal injury’ and therefore the depression obtained from such an event would be sufficient enough
injury to claim.
Darnell may be considered a secondary victim and therefore would have to comply with the regulations
set in Alcock in order to be successful in his claim. Comparing Darnell to the claimant in Dooley v Cammell
Laird (1951),[18] Darnell may be successful as he feared for his wife’s safety; similar to the claimant’s fear
for their co-worker’s safety in Cammel Laird (1951). Darnell also has a “close relationship”[19] to the
injured which may be sufficient enough to claim in particularly horrific accidents according to Lords
Ackner, Keith and Oliver.[20]

Despite this, however, Darnell lacks “proximity and time” which is imperative when claiming as a
secondary victim according to the requirements of Alcock. Due to the fact that Darnell merely witnessed
the accident on the television, it is likely that he would fail in a claim as he was not physically present at
the incident, nor did he turn up afterwards and experience the impact. Persons affected by the
Hillsborough disaster but not present at the match were considered “…not in proximity to the events and
would not have suffered shock in the sense of a sudden assault on the nervous system.” [21] Furthermore,
television companies are not allowed to broadcast accidents where individuals can be identified as this
would be classed ‘novus actus interveniens.’[22] Darnell would not have watched his wife directly suffer on
television thus not witnessing the event with his own senses. As a result, Darnell would not able to claim
for damages with respect to psychiatric injury. This may be seen as harsh as Darnell nevertheless feared
for his wife knowing she was on the train at the time of the crash. It could further be argued that Darnell
experienced the accident with his eyes and ears, regardless of whether this was through the television.

Joy might make a claim as it could be argued that she fits the requirements of Alcock with the ‘close
relationship’ of being the mother of a victim. Joy also may have the required proximity and time as,
although she was not at the stadium during the incident, she witnessed her daughter’s corpse only four
hours after. McLoughlin v O’Brian (1983) added another incremental extension to the law whereby one
could still witness an event with their own senses ‘two hours’ afterwards.[23] Unlike Darnell, Joy witnessed
what could be deemed the ‘immediate’ aftermath with her own senses and not through a third party,
meaning she may have grounds to claim. This is similar to Galli-Atkinson v Seghal (2003) where the
immediate aftermath was “…extended from the moment of the accident until the claimant left the
mortuary.” [24] This was because there was a continued chain of events that could be likened to Joy’s
experience as there was little time from when she was told about the accident to when she saw her
daughter’s body. In the case commentary of McLoughlin, M Owen notes that “…the mother’s motivation in
going to the hospital was similar to that of a rescuer.”[25] In this way, it may be reasonably foreseeable
that Joy would have attended the mortuary after the incident and therefore it should be irrelevant how
long it took her to get there.

In contrast, however, it is probable that Joy would fail in her claim as the courts take a firm approach to
the amount of time after an accident that can be classed as the immediate aftermath. According to Lord
Ackner in McLoughlin (1983) and Lord Keith in Alcock (1991), the immediate aftermath only extends to
two hours, anything thereafter is no longer immediate. Taking this into account, arriving four hours after
the event would not be sufficient enough to claim. This is supported by Berisha v Stone Superstore (2014)
[26] where it was not acceptable to appear five hours after an incident. This is another successful strategy
of the courts to avoid the ‘floodgates’ and fraudulent claims. However, this is criticised as Joy fulfils the
requirement of a ‘close relationship’ and experienced the aftermath with her senses, whether this be
immediately after or not.

Randy may be able to claim as a rescuer, which is a secondary victim that experiences shock from assisting
primary victims in an accident. Here, Randy may be seen as ‘rescuing’ by handing out bottles of water and
blankets. The courts take the view that it is within public policy to support such conduct and therefore
rescuers may be more likely to succeed in their claims Elliot & Quinn (n 1) 46. It is also reasonably
foreseeable that someone would attempt to provide aid to people suffering as seen in Chadwick v British
Railways Board (1967) because “danger invites rescue.”[28] However it is argued that volunteering to help
others affected by an accident should not allow for compensation because the rescuer has to objectively
expose themselves to danger and therefore should accept the consequences of this. Randy may also fit the
‘proximity’ requirement set in Alcock as he appeared at the scene only “a few minutes after the crash” and
therefore would have experienced the direct aftermath of the incident, unlike Joy who arrived four hours
after.

Regardless of this, it is likely that Randy would not be able to claim as a rescuer as he only handed out
“bottles of water and blankets.” This was not seen as sufficient enough in McFarlane v Wilkinson (1997)
[29] whereby the claimant suffered nervous shock after handing out blankets to those affected by an
exploded oil rig. The courts found that rescuing requires a more active role and that merely handing out
blankets did not constitute as rescuing. Applying this, as Randy did little to assist the injured, it is likely that
he would not be able to claim. If Randy had pulled people out of the wreck, risking his own safety, then the
courts might have reconsidered. Tilley observes that there should be a distinction between those that are
“actively helpful” and others being “ghoulishly curious.”[30] Randy could have witnessed the commotion
while driving past and been inquisitive, but being dragged to help as a result. This would not make him
eligible to claim.  

Finally, it is likely that Crashback Ltd would not be able to claim for damages of psychiatric injury as no one
was hurt with regards to the café. However, it is reasonably foreseeable that if a train crashes into a
platform, it will hit the café located at said platform. We can glean from the case of Spartan Steel & Alloys
Ltd v Martin & Co Ltd (1973)[31] that the café should be entitled to damages, including payment of staff
during the rebuild and loss of goods, caused by the negligence of ‘The Rocket’.

In conclusion, it is obvious that the law regarding psychiatric injury is very strict and often harsh for
secondary victims. This is seen in the scenario as only Catalina would be eligible to claim as a primary
victim. However, due to the requirements of Alcock, Darnell has the relationship to the victim but was not
present in time and space and Randy’s attempt at rescuing would not be accepted by the courts. Although
the failure of both of these claims seem harsh, Joy’s claim appears particularly unfair as she fulfilled all of
the requirements of Alcock except proximity, which she missed by a mere two hours. However, this is
obviously an effective way of avoiding the opening of the floodgates.

WHAT MUST BE ESTABLISHED TO PROVE A ‘BREACH OF DUTY OF CARE’?

What factors must be established in order to successfully prove a ‘breach of duty of care’ in Tort Law?
Tort law is civil law and are legal wrong doings that have been brought to court by the plaintiff against the
defendant. Civil law’s purpose is not to punish people but to compensate them for the wrong doing of the
defendant. Whereas criminal law’s purpose is to punish the defendant for the crimes committed. The
breach of duty of care comes under the tort of negligence. The tort of negligence came about due to some
type of loss or damage that has occurred because of the wrong doing caused by the defendant. In tort law
there is no contract, so the plaintiff cannot sue the defendant. Before the defendant is found liable for the
wrong doings there are three things that need to be established and these are that duty was owed, duty
was breached and that the breach caused the loss or damage (causation).

This essay will explore the factors that must be established when proving a breach of duty of care in tort
law, looking at different healthcare and non- healthcare cases.

Tort law was founded by the Norman French law and was introduced at the time of the Norman conquest
in 1066. The reason it was brought in was to be able to settle cases where there is no contract between
the two parties and also to protect individuals from negligence of others. There are five things that make
up a contract for it to exist. These are Offer, Acceptance, Payment; of some sort, Consideration, intention
and capacity. If one of these things are missing, then no contract can be established, and it then comes
under tort law. The law says that you must avoid acts which you can reasonably see would cause harm to
others.

In Healthcare the tort of negligence is important because there is no contract in place and there have been
incidents where individuals have come to harm. This would be slightly different for private healthcare
services as there is payment and consideration involved whereas in nation healthcare there isn’t. In order
for negligence in healthcare to be established three things have to be present which are; that the duty Is
owed to the plaintiff, the defendant breached that duty and that the harm caused was directly because of
the breach of that duty owed. Duty owed, and duty breach must be present for a case to go through, but
the harm/causation is judged on the balance of probabilities. So, whether or not the harm was caused by
the breach or If there are other factors that could have contributed or caused the harm itself.

One of the most utilized cases in tort law is the case of Donoghue v Stevenson (1932) where the precedent
was set on the neighbours’ law. In this case Mrs. Donoghue was bought a bottle of ginger beer in a café by
a friend and upon drinking the content, she realised there was a decomposing snail inside. As a result of
this she suffered nervous shock and gastro-enteritis. The problem this case had was that Mrs. Donoghue
did not purchase the ginger beer and therefore held no contract with the café owner; Stevenson. The
friend who purchased the drink didn’t suffer any harm so, neither of them could sue the café through
contract law (Martin 1999, p77).  The only possible way for a case to go through would be through the tort
of negligence. The lower courts found in difficult to establish whether Stevenson could be classed as
neighbour as he was miles away.  An appeal to the house of lords, then decided that one party should be
able to sue another who caused them loss or damage even if there is no contract but, then went on to
develop this by creating a new principle which states that ‘everyone has a duty of care to their neighbour’.
The judge had to clarify who a neighbour was and the proximity between the neighbours’ for them to
establish if duty was owed to Donoghue. In the house of lords two critical principles were added. These are
that; A manufacturer owes a duty of care to the consumer of their product and also that you shouldn’t
injure your neighbour. Your neighbour is anyone who is closely or directly affected by the individual’s
actions. Lord Atkin, stated that “…you must take reasonable care to avoid acts of omissions which you can
reasonably foresee would be likely to injure your neighbour.” (Johnson 1995, pp20/21). Lord Atkin,
decided that there did not need to be directly close to be classed as neighbour but have some form of
contact between them. So, the courts came to the final conclusion that duty was definitely owed by
Stevenson. Another non-health care case which develops the idea on proximity when establishing if duty
was owed is the case of Bournhill v Young (1943)

 In the case of Bourhill v Young, Young was riding motorcycle very carelessly, which caused an accident and
resulted in his death. At the time Mrs bourhill was pregnant and saw the aftermath of the accident which
she said made her feel sick. She later went on to have a stillborn pregnancy and claimed it was a result of
witnessing the accident. The lawyer tried to argue that Young owed her a duty of care with his careless
riding but, the courts eventually decided that there was ‘insufficient proximity’ between them, so they
came to the conclusion that Mr.Young did not owe Mrs. Bourhill a duty of care but owed a duty to other
road users. If the courts finals decision was that duty was owed it would still be difficult to prove a breach
and impossible to prove causation. This is because there are many factors that can add to the stillborn to a
baby and on the balance of probabilities it would not have been easy to weigh up the different causes.

In the National Health Service (NHS) across the United Kingdom tort is very important because there is no
contract between healthcare professionals and their patients. If a case of negligence was to be brought
against a healthcare professional, the NHS will take vicarious liability for their employees as they are liable
for their actions. This is unless there is clear evidence that they did not conduct themselves in a way that
was reasonable and within their job description. An example of this is shown in the case of Bolam v Friern
Management Committee (1957), which is a case between a doctor and his patient.

The Bolam v Friern Management Committee (1957) is a major case that is still used till this day when
looking at negligence cases. Bolam; a psychiatric patient sued his doctor for negligence due to him not
being informed of the outcome of the electro-convulsive therapy (ECT) that he was about to undertake. As
a result, he suffered a broken pelvis after falling off the bed during treatment because of a seizure. The
doctor did strap Bolam to the bed nor give him any drugs during the treatment which to Bolam deemed to
be necessary. The judge asked other skilled professionals if they would have done any different and they
claimed it to be common practice at the time. So, the judge decided that the doctor acted in the best
interest of the psychiatric patient, as telling him the risk could have caused distress to the patient. He also
stated that “a medical professional would only be judged negligent if their behavior fell below that of
ordinary professional’’. This statement by the judge is what led this case to judge made law as a precedent
was then set when looking at the practice of medical professionals. This is now called the ‘Bolam Test’.
Another case which modified the Bolam test slightly is the case of Maynard v West Midlands RHA (1984)

The Maynard v West Midlands RHA (1984) helped the development of establishing the breach of duty.
Maynard’s doctor decided to run a set of tests for Hodgkin’s disease what was seemed potentially lethal at
that time. He done the tests because he did not want to risk waiting for the earlier tests results of
Tuberculosis (TB). The test for Hodgkin’s disease had a risk of damage to the laryngeal nerves. Maynard
sued the doctor claiming that the tests were not needed and caused him to have damage to his laryngeal
nerves, with both tests results coming back negative. The lower courts were in favor of Maynard, but this
decision was over turned with the appeal to the House of lord. The Bolam test was used but this time
there was two sets of skilled professionals with different views, some were for Maynard and some against.
The judge could not say which group was right or wrong as he is not a skilled professional but as one group
agreed they would have completed the test, Maynard lost the case as no breach could be proved.

Sidaway v Bethlem Royal Hospital (1985) Sidaway undertook an operation that he later claimed negligence
against the doctor on the grounds that he was not informed of the outcome of developing paraplegia. This
is a condition that she then suffered from after her spinal operation. During court the judge said that as
long as the possible outcome is less than 1% then the doctor or other healthcare professionals cannot be
liable for a breach of duty because of the percentage of the risk to that patient. This added to the Bolam
test and is known as the 1% test. The judge also stated In healthcare settings duty is always owed to the
patient.  

A negligence case cannot be successful on the breach of duty of care alone. For the case to be 100%
successful the breach has to be a direct cause of the damage, loss or injury of the plaintiff. In some
situations, Res Ipsa Liquitor applies when sometimes needing to establish negligence. It means that ‘the
thing speaks for itself’ so the damage, loss or injury is clearly and obviously a result of the breach of duty. A
case that is a good example of Res Ipsa Liquitor is the case of Cassidy v Ministry of Health (1951)

Cassidy v Ministry of Health (1951) Cassidy undertook an operation for two stiff fingers but when he came
out of surgery he was worse off than he was before. He then sued the doctor for negligence as the doctor
could not explain the reason why he ended up worse off. In this case where Res Ipsa Liquitor claimed and
injury sustained wouldn’t occur expect through negligence. The ministry of Health was found guilty, this
was based on the balance of probabilities.

Bolitho v City of Hackney Authority (1984) Bolitho was a two-year-old who went under surgery to unblock
his arteries, after some time he was back in hospital with breathing difficulties as his condition got worse.
His doctor who was summoned twice failed to show up and overlook the child. Bolitho died later that day
and his parents sued the Health Authority for negligence.  As it is healthcare duty is always owed and
because the doctor failed to attend to the child, he breached his duty of care. The doctors defense in court
was that if he was to attend to the child, he still would not have intubated him because of his age and
previous condition which would have led to the child still dying. The judge them applied the Bolam test
and other health professionals, some said they would, some said they would have not intubated the child.
A precedent was set by the house of lords on appeal that stated that any evidence given by a doctor had to
be responsible, reasonable and respectable. The judge was in favor of the defendant as they
nonattendance of the doctor did not contribute to the death of the child.

The Wilsher v Essex (1998) This case was about a premature baby that was blinded in his incubator
because of oxygen oversaturation by his doctor. At the lower courts the case was found in favor of Wilsher
(baby) but at the house of lords for appeal it was said to be argued that on the balance of probabilities
there were four other alternatives which would explain the blindness.

In the case of Carver v Hammersmith and Queen Charlotte’s Special HA (2000) The doctors had failed to
warn a mother that the down’s syndrome test has a one in three failure rates. The test result was negative
but the result of her child after birth was that he was born with down’s syndrome. The judge was in favor
of carver, using the ‘reasonable, responsible, respectable’ approach, the judge said that the defendant
Cleary breached his duty and did not act in a way that was reasonable for a doctor.

It can see Tort law’s purpose is to compensate those who suffer loss, damage or injury due to the
negligence of another. It looks to deal with wrong doings within healthcare settings where there is no
contract. In many case studies that have been discussed, it is seen that to prove a breach of duty of care,
duty owed must be established. For a breach of duty to be 100% successful in a case, the breach must be a
direct cause on the balance of probabilities for the damage, loss or injury sustained by the plaintiff.  

GLENCAR EXPLORATION P.L.C. V MAYO COUNTY COUNCIL | ANALYSIS

The principle of the duty of care in negligence, as established by Lord Atkins in the case of  Donoghue V
Stevenson[1], was expanded greatly over the twentieth century. This expansion saw a move away from the
incremental approach traditionally preferred in negligence cases, to the establishment of broader
principles of the duty of care. However, the case of Glencar Exploration p.l.c. v Mayo County Council[2] had
a significant impact on the development of the duty of care. This essay aims to show that although the
decision of Glencar succeeded in limiting the expansion of the duty of care, it did not halt it completely.
This will be done in three parts. First, the development of the principles established by Lord Atkins up
until Glencar will be examined in order to understand how the duty of care expanded. Following this the
case of Glencar Exploration p.l.c v Mayo County Council itself will be explored to gain insight into what the
decision meant and how it affected the expansion of the duty of care. Finally, the impact of human rights
law on the expansion post-Glencar will be analysed in order to demonstrate how the duty of care
continues to change today.

The duty of care in negligence established by Lord Atkins in the famous case of Donoghue V Stevenson is
one that has had a great impact on tort law. In this case Donoghue suffered from shock and illness due to
the presence of a decomposing snail in her ginger ale, which had gone unnoticed due to the opaque glass
of the bottle.[3] It was held by the court that the manufacturer owed a duty to the end consumer in cases
where any defects would not be obvious to the consumer[4].This decision introduced the idea that the
categories of negligence in which a duty of care was owed were not closed.[5] It was here that the
‘neighbour principle’ was established, putting forward that proximity did not just apply to those that were
physically close to you. A neighbour was defined as someone “so closely and directly affected by my act
that I ought reasonably to have (him) in contemplation as being so affected when I am directing my mind
to the acts or omissions which are called in question”[6]. Lord Atkins opened the duty of care to expansion
by suggesting that the categories in which a duty of care could traditionally be thought to exist were just
“instances” rather than an exhaustive list of the situations where a duty of care applies.[7]

The principles expressed by Lord Atkin received the support of the judiciary and were subsequently
endorsed in Hedley Byrne V Heller.[8] The duty of care was expanded to allow recovery for negligent
misstatements on a lower standard than before.[9] This was a significant case as it extended the neighbour
principle expressed by Lord Atkins to cover not only goods, but services as well. Following this was Dorset
Yacht Co. Ltd V Home Office [10]. Here it was put forward that the neighbour principle should be applied
“unless there is some justification or valid explanation for its’ exclusion”[11]. This was important as it
emphasised the support of the judiciary for the principles established by Lord Atkins at this time.
Furthermore, the nature of this case itself contributed to the expansion of the duty of care in negligence.
Despite the fact that traditionally there was no duty of care to supervise third parties, this case imposed
such a duty through the principles of reasonable foreseeability and proximity.[12]

Following these cases, the duty of care continued to expand to cover pure economic loss in the case
of Anns V Merton London Borough Council[13]. Lord Wilberforce restated the duty of care, establishing a
two-step test to decide if a duty could be held to exist. The first step involved asking whether “there is
sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the
former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie
duty care arises”[14]. The second step involved considering if there was anything that ‘ought to negative
or to reduce or limit the scope of, the duty”[15]. This was an important advancement in the development
of the duty of care in negligence, because this test prioritised reasonable foreseeability and proximity over
the policy concerns that had previously dominated this area of tort law.

Lord Wilberforce’s two-step test initially received widespread support in the both the English and Irish
judiciary. This test was endorsed by the Irish courts through the influential decision of Ward V
McMaster[16]. Here McCarthy J promoted the principles of proximity and foreseeability of damage over
policy concerns, putting forward that any policy concerns that would effect recovery must be one which is
very powerful “ if it is to be used to deny an injured party his right to redress at the expense of the person
or body that injured him.”[17]

McCarthy J proposed that the general principles established in the two-step test of Anns should be
favoured over previous approaches to establish a duty of care, as it overcame the problem of rights and
recovery being determined “by an accident of birth”[18]. Through his statements, McCarthy J endorsed
the principles that had been established first by Lord Atkins, and expanded by Lord Wilberforce. The
approach taken by McCarthy J was embraced by the Irish judiciary, and remained popular until the case
of Glencar Exploration p.l.c V Mayo County Council[19]

Although the two-step test was at first popular, over time opinions began to change and this test became
increasingly criticised. There were several reasons for the growing discontent, including the belief that this
test had been too widely expressed to begin with.[20] To add to this, there was also a general feeling that
the decision in the case of Junior Books[21] had brought the expansion of the duty of care too far. The
Judicial Committee in Yuen Kun-yeu v AG of Hong Kong[22] was of the view that the two-step test had
“been elevated to a degree of importance greater than its’ merits, and greater perhaps that is author
intended”[23]. Although this was damaging to the support of Lord Wilberforce’s test, the true end of the
two-step test came in the form of two cases: Caparo Industries plc V Dickman[24] and Murphy V
Brentwood District Council.[25] These two cases signified an end to the broad expansion of the duty of
care in negligence, and a return to the incremental approach previously favoured by the courts.
Both Caparo and Murphy can be said to have had a significant impact on Irish law, as it was the
disenchantment with the two-step test [26]expressed through the decision in these cases that triggered
the change in Irish law with the case of Glencar Exploration p.l.c V Mayo County Council.

It may be said that the decision held by the Supreme Court in the case of Glencar Exploration p.l.c v Mayo
County Council had a significant impact on limiting the expansion of the duty of care in negligence under
Irish law. This was a case involving two companies that had received mining licenses to mine for gold in Co.
Mayo. The county council had adopted a mining ban in their development plan that was later found to be
ultra vires by the High Court.[27] Thus it was put forward by the applicants that by adopting such a ban,
the county council had been negligent in their duties, and were therefore liable for the economic loss of
the companies, amounting to £1,938, 264.[28] However it was held by the Supreme Court that the county
council had owed no duty of care to the applicants and thus they were not liable for any economic losses
that had been sustained.

The most important aspect of this case was that it replaced the two-step test that had been established by
Lord Wilberforce that had, until this point, remained popular in Irish law. Keane CJ proposed that “that no
injustice would be done if, in such circumstances, a court was required to take the further step of
considering whether, in all the circumstances, it was just and reasonable that the law should impose a duty
of care on the defendant for the benefit of the plaintiff.”[29] The result of this was a new test was created
to establish whether or not a duty of care in negligence cases existed. The steps of Keane CJ’s test were as
follows: ‘reasonable foreseeability, proximity of relationship, countervailing public policy considerations
and the justice and reasonableness of imposing a duty of care’[30].

This new approach can be seen to focus on the distinction between morality and the law of negligence, as
well as prioritising questions of policy over proximity.[31] Policy was considered to be an especially
important concern in cases which involved public bodies. This was due to the perceived need to protect
public bodies and ensure that they were able to not only dedicate their full time and resources to their
original function, but also to ensure they would be able to continue to do their job without hesitation and
fear of a negligence suit.[32]The effect of a policy centred approach such as this is that in many cases,
especially those of pure economic loss, the courts can be seen to adopt a more conservative stance in
awarding damages in situations of negligence. [33]

Such consequences can thus be seen in subsequent case law, such as that of Fletcher V. Commissioner of
Public Works.[34] Here the Supreme Court chose to limit the scope of recovery for psychiatric injury by
focusing on policy issues. Geoghegan J identified a key issue of policy in regards to distributive justice [35],
putting forward the need for ‘pragmatic control mechanisms’[36] when deciding the scope for liability in
cases such as this. Another key policy area that was discussed by Geoghegan J as reason for denying
recovery was the concern that by imposing liability in this case, there would be an increase in the number
of fraudulent claims brought before the court.[37] This is a common argument in terms of the duty of care
in negligence, as the fear of opening up the ‘floodgates’ for cases against public bodies has often been
cited as one of the main policy concerns for denying recovery.[38]

The decision of Glencar although limiting the expansion of the duty of care, did not stop the expansion
completely. Due to the influence of the European Convention on Human Rights [ECHR] on domestic law,
the duty of care in negligence has continued to change, although expansion in this area has been slow .
The impact of human rights law is becoming increasingly important in areas where traditionally the courts
have held there to be immunity. Osman v United Kingdom[39] is an important case in this area, as it was
concerned with granting the police immunity from negligence cases for policy reasons. Originally this case
had been dismissed by the High Court on the basis of an earlier case Hill V CC West Yorkshire
Police[40]. However, this decision was appealed. The Strasbourg court held that if the authorities failed to
take necessary measures within their powers, despite being aware of a serious risk of injury or death, then
a breach of article 2 of the convention could be established[41] [However, in the case of Osman, no such
breach was considered to have existed].[42] Furthermore, it was held that a breach of article 6 of the
convention occurred when denial of an action amounted to widespread immunity for a public authority
such as the police. This was quite a controversial decision as it went against policy arguments that had
previously been approved of for granting police immunity.

Although a slight retreat from this stance could be seen in the later case of Z v United Kingdom[43], the
test for establishing liability in Osman [knowledge of a real and immediate risk to life] remains useful for
the courts in establishing a duty of care and thus liability.[44] The categories under which a duty of care
may be established are not fixed, and it has been put forward that judges may be more likely to support
the expansion of the duty of care when a human right is at risk. [45]. Furthermore, the principle of ‘Hill
immunity’ is one that continues to be challenged today, thus demonstrating the influence that human
rights law has had on the ability to establish a duty of care in negligence/

The recent case LM v The Commissioner of An Garda Síochána[46], shows that human rights law continues
to shape the duty of care in negligence in Irish law. It was alleged in this case that because of Garda
negligence LM had suffered from PTSD, as her father who had been convicted of her rape was successful
on appeal due to ‘blameworthy prosecutorial delay’.[47] It was argued by the respondent that the action
should be struck out on the basis of the earlier Hill case[48] which, as stated above, gave the police
immunity from negligence. However, in this instance it was held by O’Donell J that “it was important that
these cases were properly and fairly determined, which meant that the plaintiffs should be allowed to
bring their case to trial.[49] This is an important case in Irish law as it demonstrates the impact that human
rights law has on traditional principles, and how the ECHR emphasises the idea that such cases should be
heard.

In conclusion, the case of Glencar Exploration p.l.c V Mayo County Council significantly impact the
development of the principle of the duty of care in negligence, established by Lord Atkins. The main effect
of this decision was that it slowed down the development of [though did not stop] new categories in which
a duty of care could be established. Human rights law [such as the ECHR] has an important role to play in
future developments in the duty of care in negligence cases. However, as human rights law is still evolving,
it will take time to see the full impact that it may have in this area.

Bibliography

Anns V Merton London Borough Council [1978] AC 728

Arden, “Human rights and civil wrongs: tort law under the spotlight“ (2010), Vol 1 Public Law at 140

Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury Professional
2013)

Caparo Industries plc V Dickman. [1990] 2 AC 605

CHIEF CONSTABLE OF HERTFORDSHIRE POLICE V VAN COLLE [2007] 3 All ER 122

Donoghue V Stevenson [1931] AC 562

Dorset Yacht Co. Ltd V Home Office [1970] AC 1004

Fletcher V. Commissioner of Public Works [2003] 1 IR 465

Glencar Exploration p.l.c  v Mayo County Council [2002] 1 IR 84

Hedley Byrne V Heller [1964] AC 465

Heuston, ‘Donoghue V Stevenson In Retrospect’, (1957) Vol 20(1) The Modern Law Review 7

Hill V CC OF WEST YORKSHIRE POLICE [1988] 2 WLR 1049

Junior Books Ltd. V Veithchi Co. Ltd. [1983] 1 AC 520        

Morgan, ‘Policy Reasoning in Tort Law: the courts, the Law Commission and the critic’, (2009) Vol 125 Law
quarterly review 215 at 217

Mullender, ‘Negligence, human rights and public bodies’, (2009) Vol 125 Law quarterly review 384

Murphy V Brentwood District Council [1991] 1 AC 398

LM v Gard Siochana [2015] IESC 81

McIvor, ‘GETTING DEFENSIVE ABOUT POLICE NEGLIGENCE: THE HILL PRINCIPLE, THE HUMAN RIGHTS ACT
1998 AND THE HOUSE OF LORDS’, (2010) Vol 69(1) The Cambridge Law Joural 133 at 135

Osman V United Kingdom (2000) 29 E.H.R.R. 245

Victorian Railways Commissioners v. Coultas  (1888)13 App. Cas. 222;

Ward V McMaster [1988] IR 337

Yuen Kun-yeu v AG of Hong Kong [1987] 2 All ER 705

Z V United Kingdom (2002) 34 EHRR 3

[1] [1931] AC 562

[2] [2002] 1 IR 84

[3] Donoghue V Stevenson [1932] AC 562

[4] Ibid at 564

[5] Heuston, ‘Donoghue V Stevenson In Retrospect’, (1957) Vol 20(1) The Modern Law Review 7 at 7

[6] Donoghue V Stevenson [1932] AC 562 at 580

[7] Ibid at 580

[8] [1964] AC 465

[9] Ibid

[10] [1970] AC 1004

[11] Dorset Yacht Co. Ltd V Home Office [1970] AC 1004 at 1027

[12] Ibid at 1025

[13] [1978] AC 728

[14] Ibid at 752

[15] Ibid at 752

[16] [1988] IR 337

[17] Ibid at 349

[18] Ibid at 347

[19] [2002] 1 IR 84

[20] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury
Professional 2013)

[21] Junior Books Ltd. V Veithchi Co. Ltd. [1983] 1 AC 520

[22] [1987] 2 All ER 705

[23] Ibid at 710

[24] [1990] 2 AC 605

[25] [1991] 1 AC 398

[26] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury
Professional 2013)

[27] Glencar Exploration p.l.c  v Mayo County Council [2002] 1 IR 84

[28] Ibid AT 84

[29] Ibid at 85

[30] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury
Professional 2013) at 191
[31] Bryan McMahon and William Binchy, The Law of Torts, 4th edn. (West Sussex: Bloomsbury
Professional 2013) at 191

[32] McIvor, ‘GETTING DEFENSIVE ABOUT POLICE NEGLIGENCE: THE HILL PRINCIPLE, THE HUMAN RIGHTS
ACT 1998 AND THE HOUSE OF LORDS’, (2010) Vol 69(1) The Cambridge Law Journal 133 at 135

[33] Morgan, ‘Policy Reasoning in Tort Law: the courts, the Law Commission and the critic’, (2009) Vol 125
Law quarterly review 215 at 217

[34] [2003] 1 IR 465

[35] Ibid at 511

[36] Ibid at 511

[37] Ibid at 515

[38] See cases Victorian Railways Commissioners v. Coultas  (1888)13 App. Cas. 222; Hill V CC OF WEST

YORKSHIRE POLICE [1988] 2 WLR 1049; Caparo Industries p.lc V Dickman [1990] 2 AC 605

[39] Osman V United Kingdom (2000) 29 E.H.R.R. 245

[40] [1988] 2 WLR 1049

[41] Mary Arden, Human rights and civil wrongs: tort law under the spotlight  (2010), Vol 1 Public Law at
140

[42] Osman V United Kingdom (2000) 29 E.H.R.R. 245

[43] (2002) 34 EHRR 3

[44] As seen in CHIEF CONSTABLE OF HERTFORDSHIRE POLICE V VAN COLLE [2007] 3 All ER 122

[45] Negligence, human rights, and public bodies

[46] [2015] IESC 81

[47] Ibid

[48]Hill V CC OF WEST YORKSHIRE POLICE [1988] 2 WLR 1049

[49] [2015] IESC 81

DOES THE LAW OF DEFAMATION PROTECT THE MEDIA’S ROLE AS A PUBLIC WATCHDOG?

An exploration, critical analysis and evaluation of the “Reynolds” defence established in Reynolds v Times
Newspapers Ltd

1.0 INTRODUCTION
Defamation is defined as, ‘… the publication of a statement which tends to lower a person in the
estimation of right-thinking members of society generally, or which tends to make them shun or avoid that
person’.[1] In light of the recent increase in usage of social media, claims of defamation have never been
more prevalent in society.[2] Claimants are challenging the law and turning to alternative causes of action,
such as misuse of private information, breach of data protection or harassment.[3] Due to the tremendous
amount of claims over the years and as the law developed it was stated under the Defamation Act 2013,
that claimants will have to show they suffered “serious harm” before suing.[4]

This study will critically analyse and evaluate the types of defamation and then move on to explain the
elements involved in defamation. The defences in defamation will be address, in particular the Reynolds
defence which came about after the key case known as Reynolds v The Times Newspaper[5].
Furthermore, it will also aim to show post-Reynolds test as affirmed in Jameel v Wall Street Journal
Europe.[6] This then brings upon a change with the introduction of the Defamation Act 2013. This study
will then analyse upon how to strike a balance between the need to protect reputation and the general
right to freedom of speech. Finally, the law of defamation in the United States (US) will be compared to
the law of defamation in United Kingdom (UK).

2.0 TYPES OF DEFAMATION

The history of defamation brings us to the early 1300s whereby the actions for defamation were purely
within the jurisdiction of the Church courts. It was stated that the common law action for defamation
came about in 1500s.[7] It was not until 1660 that the common law drew a distinction between the two
types of defamation, libel and slander.[8] The permanent and often written statement is known as libel
where else the impermanent and often spoken about is known as slander.[9] In 1975, the Faulkes
Committee recommended that they should abolish the distinction between libel and slander in English
law  but the distinction still remains the same despite the Defamation Act 1996.[10] Although the
distinction between libel and slander are based on oral and written statements, the development of
modern methods of communication further complicated the matter.[11]

One test for distinguishing between the two turns upon permanence versus transience.[12] In Monson v
Tussauds Ltd[13], Lopes LJ states that ‘Libels are generally in writing or printing, but this is not necessary;
the defamatory matter may be conveyed in some other permanent form.[14] For instance, a statute, a
caricature, an effigy, chalk marks on a wall, signs or pictures may constitute a libel.[15] Defamatory words,
pictures, visual images and gestures on radio or television or any other ‘programme service’ are to be
treated as libels[16].[17] Furthermore, ‘the publication of defamatory words in the course of a
performance of a play’ is also treated as libel[18].[19]

A later case, Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd[20] suggests a modified version of this test,

by which it is necessary to show not only that the communication is permanent but also that it is visible.
[21] Slesser LJ held in this case that the film pictures being ‘a permanent matter to be seen by the eye’
could be deemed as libels.[22]

A libellous statement retains its status as a libel even when it is read aloud.[23] This was decided in the
case of Forrester v Tyrrell[24], whereby a person reading aloud from a defamatory letter was held to be
liable in libel rather than slander; it was immaterial whether or not he had handed the letter around.
[25] Libel statements are said to be actionable per se, however slander generally required proof of actual
injury.[26] This means the claimant has to show some loss of harm of monetary value or damage
assessable in monetary terms.[27]

3.0 ELEMENTS OF DEFAMATION

There are a few essential elements of the cause of action that has to be satisfied before it can be said to be
a defamatory statement. In all cases, it is the duty of the claimant to prove that the statement is
defamatory.  In the case of Cassell & Co Ltd v Broome[28], Lord Reid said that it was not in the judge’s
position to ‘frame definitions or to lay down hard and fast rules.  It is their function to enunciate principles
and much that they say is intended to be illustrative or explanatory and not to be definitive.’ [29] In Sim v
Stretch[30], Lord Atkin suggested that the test should be whether ‘would the words tend to lower the
claimant in the estimation of right-thinking members of society generally?’ This in turn raises the question
of who are ‘right-thinking members of society’.[31] In some circles of society behaviour is admired which
in other circles would be condemned.[32]

In Berkoff v Burchill[33], the claimant was an actor that was described by the defendant as ‘hideously
ugly’.[34] He alleged that this comment held him up to ridicule or meant that other people would shun or
avoid him. The majority in the Court of Appeal held that the words were capable of being defamatory.
However, Lord Millett dissenting said that it was merely a joke and was not capable of being defamatory.
[35] The difference in the view of the judges in this case of Berkoff v Burchill only come to show how
difficult it is to decide how words may be seen by ordinary people.[36] In conclusion, the only certainty
appears to be that the decision as to whether or not words are capable of being defamatory depends on
what the judges in the particular case believe would be the reaction of those they believe to be ordinary
citizens.[37]

The second element of defamation is that the statement made must refer to the claimant.[38]

In the case of Knuppfer v London Express[39], Viscount Simon LC stated that ‘it is an essential element of
the cause of action in defamation that the words complained of should be published “of the plaintiff”.
[40] The forthright way would be to name and provide other information so that the identity of the person
referred to is clear.[41]  However, it is not always clear as problems will arise where the defendant either
did not know of the claimant’s existence.[42] Lord Shaw quotes a passage from Bourke v Warren[43] for
the judgement of E Hulton & Co v Jones[44] which states ‘it is not necessary that all the world should
understand the libel; it is sufficient if those who knew the claimant can make out that he is the person
meant’.[45] In Newstead v London Express Newspaper Ltd[46], the claimant shared the same name as the
person mentioned in the statement.[47] The matter then went to the Court of Appeal, Sir Wilfred Greene
MR dismissed the appeal by saying that ‘if there is a risk of coincidence, it ought I think, in reason to be
borne, not by the innocent party to whom the words are held to refer, but by the party who puts them
into circulation’.[48]

The third element is that the statement made must be published.[49] ‘Publication’ here means no more
than ‘communication’ even to a single person, and a publisher is any person who communicates a
defamatory meaning to a third party.[50]  At least one other person must hear or read the statement and
understand it for it to be considered a defamatory statement.[51] Newspapers and books are published so
that any defamatory material they contain is published to the readers.[52] In the case of Huth v
Huth[53], Lord Reading CJ stated that ‘it is no part of a butler’s duty to open letters that come to the
house of his master or mistress… no one can help a man’s curiosity being excited, but it does not justify
him in opening a letter, and it could not make the defendant liable for the publication to the butler of the
contents of the envelope…’.[54] An exception however is made to the rule concerning publications
between spouses, a husband cannot make a publication to his wife or a wife to her husband as per the
case of Wennhak v Morgan[55] because this would otherwise lead to a disastrous results of social life.[56]

Once defamatory material has been put into circulation by the original publisher, there can be liability for
repeated publications by others unless the repetition is unauthorised and/ or is not a natural and probable
consequence which can reasonably be foreseen.[57] In Slipper v BBC[58], the claimant claimed that the
film was defamatory and alleged that BBC knew and would foresee that the preview tapes were likely to
be reviewed in the national press; alternatively, that it was the natural and probable consequence that
such reviews would be published.[59]

4.0 DEFENCES

Moving on, due to the increase in the number of claims of defamation, a defendant now would have
numerous opportunities to assert an affirmative defence against such claims.[60]

There are general defences for liability in tort applied in relation to actions in defamation such as the
defence of consent which was seen in the case of Monson v Tussauds Ltd[61]. The focus, however, is upon
those defences which are distinctive to a particular cause of action.  Amongst the many defences a few of
them are; the defence of truth, honest opinion, publication on matter of public interest and privilege
which comes in the form of absolute privilege and qualified privilege. 

The first defence is the defence of truth. Traditionally, these principles were represented by the common
law defence of ‘justification’ but this was replaced in 2013 by a new statutory defence of ‘truth’.[62] Under
the current law, a defendant has a defence of ‘justification’ where he or she can prove that the imputation
in respect of which he is being sued is substantially true.[63] Even though, the fact that any rumour may be
true, the defendant will still have to prove that the facts alleged in the rumour are true as per the case
of Shah v Standard Chartered Bank[64]. In contrast, it is possible for a defendant to succeed where the
statement makes it clear that the defamatory accusation is in fact false.

The next defence is the defence of honest opinion. This provides a defence, in certain circumstances for
statements of opinion as opposed to facts.[65] In Spiller v Joseph[66], Lord Philips of Worth
Matravers suggested that there should be a review of the law and stated that the common law defence of
‘fair comment’ should in future be known as ‘honest comment’.[67] According Scott LJ in Lyon v Daily
Telegraph[68], ‘the right of “fair comment”… is one of the fundamental rights of free speech and writing
which are so dear to the British nation.[69]

Additionally, the defence of publication on a matter of public interest[70] and builds on a previous

defence, which was called the Reynolds defence after the case of Reynolds v Times Newspaper. It has the
same purpose as the Reynolds defence, which is to protect the media when they report matters of public
interest in a responsible manner. In Flood v Times Newspaper Ltd[71], Lord Phillips, with whom Lord
Mance agreed, expressed support for Lady Hale’s formulation in Jameel’s case that the Reynolds defence
sprang from ‘the general obligation of the press, media and other publishers to communicate important
information on matters of public interest and the general right of the public to receive such
information.’[72]

Moving on to the defence of privilege which are available in two forms; absolute privilege and qualified
privilege.[73] It essentially allows people to speak without fear of defamation proceedings in
circumstances whereby freedom of speech is utmost important.[74] An absolute privilege is a privilege
that cannot be lost because of the bad motives of the party asserting the privilege.[75] In other words, an
absolute privilege is effective no matter what the defendant’s motive is.[76] In Hamilton v Al Fayed[77], it
was held that absolute privilege is a stronger form of privilege because it provides the defendant with an
absolute defence where freedom of speech is of the essence, such as is the case of the parliament.
[78] Section 13 of the Defamation Act 1996 also provides absolute privilege for reports and papers
ordered to be published by either house of Parliament, judicial proceedings, fair and accurate
contemporaneous reports of United Kingdom court proceedings[79] and also for communication between
the higher officials of the state as per the case of Chatterton v Secretary of State for India[80].[81] A
qualified privilege on the other hand arises where the need for such freedom is not quite so great but
nevertheless warrants some protection from the threat of litigation that is not allowed on non-privileged
occasions.[82] It is a weaker form of privilege because it is only available as a defence where it is felt that
freedom of expression should be protected but not where the writer is incited by malice. Horrocks v
Lowe[83] provides an illustration of the approach to honesty and the effects of ‘malice’.[84]

5.0 REYNOLDS DEFENCE 

The law regarding qualified privilege made a quantum leap with the decision in Reynolds v Times
Newspaper. The case involved allegedly defamatory statements contained in an article published in Britain
regarding the resignation of the Irish Prime Minister, Albert Reynolds, following a political scandal.[85]

The claimant was the Prime Minister of Ireland and a few days after he resigned the Sunday Times
published an article with the headline ‘Goodbye gombeen man’ with the sub-heading ‘Why a fib too far
proved fatal for the political career of Ireland’s peacemaker and Mr Fixit’.[86] It was held that the existing
protection provided by the defences of privilege and honest comment was adequate when dealing with
matters of public interest and it would be wrong to single out political debate from other matters of public
importance.[87] The main issue in this case was whether or not the courts should recognise a generic
qualified privilege encompassing the publication by a newspaper of political matters affecting the people
of the United Kingdom.[88]

Lord Nicholls, upheld Lord Bingham’s judgement in the Court of Appeal(COA), adding to it a list of ten
criteria’s which indicates how the defence of qualified privilege should be judged upon.[89]

1. The seriousness of the allegation; the more serious the charge, the more the public is misinformed
and the individual is harmed, if the allegation is not true.[90]
 2. Nature of the information and the extent to which the subject-matter is a matter of public concern.
[91]

3. The source of information; as some informants have no direct knowledge of the events and some
have their own axes to grind, or are being paid for their stories.[92]

4. The steps taken to verify the information.[93]

5. The status of the information; the allegation may have already been the subject of an investigation
which commands respect.[94]

6. The urgency of the matter; news is often a perishable commodity.[95]

7. Whether comment was sought from the claimant, he may have information others do not possess
or have not disclosed. However, an approach to the claimant will not always be necessary. [96]

8. Whether the article contained the gist of the plaintiff’s side of the story.[97]

9. The tone of the article is equally important. A newspaper can raise queries or call for an
investigation. It need not adopt allegations as statements of fact.[98]

10. The circumstance of the publication which also includes the timing.

This list is non exhaustive and may vary from case to case.[99] In general, a newspaper’s unwillingness to
disclose the identity of its sources should not weigh against it.[100] Above all, court should have particular
regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound
as well as a watchdog.[101]

This test established by Lord Nicholls then became the ‘Reynolds test’. This test balances the public
interest on the freedom of speech against the public’s interest in not being misinformed by the media on
important factual issues. This test effectively directs the court to focus on whether, in all circumstances,
the publication of the defamatory material was ‘responsible’, rather than simply whether the factual
assertion was accurate.

The importance of the availability of the Reynolds privilege defence is of course that the publication by a
journalist of a statement that is false or turns out to be false is nevertheless protected so long as he acted
responsibly.[102]  

However, while the Reynolds defence intended to give greater protection to freedom of  speech, it has
been construed strictly, thus leading to criticism that in effect it was nothing more than a series of high
difficulties over which the media must clamber towards the distant defence of privilege.[103] It was
criticised by Clayton and Tomlinson in ‘The Law of Human Rights’ on two grounds; firstly, it was said to
have not provided a full recognition of the species of ‘qualified privilege’, developed by the Convention
jurisprudence described as a ‘safeguard to journalists’ when ‘matters of legitimate public concern’ are
being discussed by the press.[104] Secondly, they argued that it had left the law of defamation in a state of
uncertainty in relation to media discussion of matters of public interest.[105]
6.0 POST-REYNOLDS

 In addition, Reynolds v Times Newspaper caused quite a stir when it was handed down. In 2001, the case
of Loutchansky v Times Newspaper Ltd[106] the COA described the defence as a new legal doctrine,
which was wholly different from traditional qualified privilege based on the duty test.[107] Lord
Hoffmann in this case concluded that it might more appropriately be called the Reynolds public interest
defence rather than privilege, and consequently that the traditional duty test would not have to be
rigorously satisfied in order for the Reynolds defence to apply.[108]

Moving on to the case of Jameel v Wall Street Journal Europe[109], where the Reynolds defence failed, it
was which alleged that the United States were monitoring the bank accounts of a Saudi Arabian
businessman to ensure he was not funding terrorists.[110] Lord Hoffmann in this casestated that Reynolds
privilege was a beneficial defence; that it should not be applied strictly; and that the indicia of “responsible
journalism” were not mandatory obstacles to be overcome.[111]  In this particular case the House of Lords
(HOL) sent a strong signal that the direction of travel post-Reynolds had not been sufficiently in favour of
press freedom.[112]  Lord Hoffmann and Baroness Hale were ready to drop the reference to a ‘privilege’
and admit that Reynolds really created a new public interest defence, they were also critical of the way the
lower courts failed to recognize the revolutionary spirit of Reynolds.[113] Charman v Orion[114] is a useful
indication that the Reynolds defence does not only extend to newspapers and similar highbrow
publications.[115]

Reynolds defence was also considered in Flood v Times Newspaper Ltd[116] in respect of an article
headed: ‘Detective accused of taking bribes from Russian exiles’ which named Detective Sergeant Flood as 
a senior officer whom police were investigating for accepting bribes in exchanged for confidential police
information.[117] When Flood sued for libel, the high court found that the publication of the article in
Times and on its website was under Reynolds qualified privilege.[118] However, the COA were of the view
that because the steps taken to verify were inadequate, the defendant had not acted responsibly and was
not therefore protected by Reynolds privilege.[119] In the context of human rights, Lord Neuberger
MR said that the fair balancing of Article 8 and Article 10[120] would normally require that such allegations
should only be freely publishable if to do so in the public interest and the journalist has taken reasonable
steps to check their accuracy.[121] This indicates a step forward to protect the media.

7.0 DEFAMATION ACT 2013

In 2014, the Defamation Act 2013 came into force whereby it seeks to rebalance the law of
defamation[122] by ensuring effective protection from freedom of speech, whilst preserving the defamed
individual’s right to protect his or her reputation.[123] In addition, this Act also seeks to curb London being
seen as the preferred destination for libel tourism.[124]

The introduction of this new Act brought about several changes to the way the law of defamation is
handled in the UK. Initially, it was observed that the burden of proof for defamation was to show that the
public’s estimation of the claimant would be lowered as a result of the statement.[125] Section 1 of the
Act attempts to discourage trivial claims by introducing a new threshold test[126] which provides that
claimants will have to show that they have suffered “serious harm” to their reputation before suing.
[127] In case of a corporation, the corporation entities wishing to sue will need to prove that the
statement has caused, or is likely to cause, ‘serious financial loss’.[128]

A major development in the defamation law in the UK has been the change in defences available to those
who are claimed against. Section 2[129] creates a new defence of “truth”, which replaces the defence of
“justification”.[130] This clause is intended broadly to reflect the current law while simplifying and
clarifying certain elements.[131] This reflects the current law as established in the case of Chase v News
Group Newspapers Ltd[132], where the COA indicated that in order for the defence of justification to be
available the defendant does not have to prove that every word he or she published was true; he or she
has to establish the ‘essential’ or ‘substantial’ truth of the sing of libel’.[133]

In addition, section 3[134] introduces the defence of honest opinion, which replaces the fair comment
defence.[135] A defendant will have to satisfy the following three conditions in order to rely on the
defence of honest opinion;  first is that the statement must be an expression of opinion and not an
assertion of fact.[136] This is aimed to reflect the law as established in Cheng v Tse Wai Chun
Paul[137] that the statement must be recognisable as comment is distinct from an imputation of fact.
[138] The statement must indicate the basis of the opinion.[139] This reflects the test approved in Joseph
v Spiller[140] that “the comment must explicitly or implicitly indicate at least in general terms the facts on
which it is based”.[141] and that the opinion must be one that an honest person could have held on the
basis of a fact which existed at the time the statement was published or before the a privileged statement
published before the statement in question.[142] Section 4[143] brings about a new defence in particular
for publishers who reasonably believe that it is in the public interest.[144]

ave regard  liges the court ‘o  of speech, which in turn obliges the corut to ‘. s of a fact which existed at the
time the stat This defence brings about a major change replacing the existing Reynolds defence.[145] It
also seeks to strengthen freedom of speech, which in turn obliges the court to “have regard to all the
circumstances of the case” and to “make such allowance for editorial judgement as it considers
appropriate” in deciding whether or not a publication was made in the public interest.[146]

Besides, section 5[147] creates a new defence whereby an action for defamation is brought against the
operator of a website in respect of a statement posted on the website.[148]  However, under section 5(3)
[149], the defence will be defeated if it was not possible for the claimant to identify the poster of the
statement, the claimant gave the operator notice of their complaint in relation to the statement, and the
operator failed to respond to the notice in accordance with any provision contained in regulations.
Besides, the defence will also be defeated if the operator of the website had acted with malice in relation
to the posting of the statement concerned.[150] Section 6[151] creates another new defence to protect
scientists and academics publishing in peer-reviewed journals and the publication of a statement in such a
journal is privileged, as long as certain conditions are met.[152] Simon Singh v British Chiropractic
Association[153] brought to light the problems that arise when lone scientist contribute to public interest
debates.[154]

Section 7[155] essentially extends the circumstances in which the existing defences of absolute and
qualified privilege can be used.[156] A press conference was protected as it was considered under the
common law as a public meeting pursuant to the existing law set down in McCartan Turkington Breen v
Times Newspapers Ltd[157].[158] Section 8[159] introduces a single publication rule, this is aimed to
reduce the number of libel actions brought in respect of historic publications.[160] This new Act
establishes a rule preventing claimants from bringing an action in relation to publication of the same
material by the same publisher after the expiry of the one-year limitation period, unless the manner of the
publication is materially different.[161]

Libel tourism is address in section 9[162].[163] There is a new test for acceptance of jurisdiction in
defamation and it only applies when a defamation action is brought against a person who is not domiciled
in the UK, and EU member state or a state which is a party to Lugano Convention.[164] This Act states that
a court does not have jurisdiction to hear and determine and action unless the court is satisfied that of all
the places in which the statement complained of has been published, England and Wales is clearly the
most appropriate place in which to bring an action in respect of the statement.[165]

It is submitted that the enactment of this Act is a step forward towards achieving a nation with the ability
to have freedom of speech. The positive impact to it is having claimants prove that they have suffered
serious harm as a result of the comment, this will inevitably lead to fewer cases being brought to courts as
it would be more difficult to prove.[166] Moreover, the new law regarding operators of websites is shows
good progression of the law as it updates the current state of the internet. This in turn allows for increased
protection of the website operator if they did not make a certain comment in regard to the case. [167] The
defence of ‘matters of public interest’ is somewhat easier to use for publishers as they only need to prove
that they thought it was reasonable to publish the comments in the matter of public interest and thus no
additional burden of proof is required unlike in the previous Reynolds defence.[168] It was held that there
was lack of certainty in the application of the Reynolds defence outside the context of mainstream
journalism thus creating a chilling effect on the freedom of expression and reporting.[169] Hence, the
Defamation Act 2013 is said to be a very useful to create a fair balance between freedom of expression
and the right to a good reputation.[170]

Nonetheless, Timothy Pinto criticised the Act by stating that companies are likely to find it difficult to
succeed if they have been defamed. Moreover, he wrote that the act is ‘a boost for free speech’ because
of the new requirement of proving harm and the numerous statutory defences.[171] These changes, in his
view, will work against the claimant and against the right to a good reputation.[172] However, it is safe to
say that the Defamation Act 2013 has modernised the law by imposing statutory solutions but also by
leaving the text open to interpretation. The 2013 Act recognises the importance of the judiciary’s
discretion in the implementation of the law on a case-by-case basis. To summarise, the Defamation Act
2013 is an important piece of legislation which fills the gaps of the old law and provides a modern basis for
further developments. Whether the Act will work in favour of freedom of expression, or in favour of a fair
balance is yet to be seen within the case law.[173]

8.0 BALANCE BETWEEN FREEDOM OF SPEECH AND PROTECTION OF REPUTATION

For decades, it has been argued that the courts have failed to strike a balance between the human right to
freedom of speech and the right to protect one’s reputation. It is known that reputation itself is not
protected under the Convention, but is certainly protected under English law[174] and freedom of speech
is a fundamental right[175].[176] The Universal Declaration of Human Rights (UDHR) described freedom of
speech as ‘the highest aspiration of the common people’.[177]  Finkelstein in Report of the Independent
Inquiry into the Media and Media Regulation said that free speech protects the right of all persons to
participate in the democratic process.[178] It is submitted that freedom of speech is more if not just as
equivalent as it is to protect one’s reputation.

Consequently, the Human Rights Act (HRA) 1998 gives British citizens the right to freedom of speech as set
out in Article 10 of the European Convention on Human Rights (ECHR) which states that everyone has the
right to freedom of expression[179].[180] It is generally believed that the courts tend to protect freedom
of expression to a greater degree than a person’s reputation.[181] For example, in the case of O’Shea v
Mirror Group Newspapers Ltd[182] , Morland J held that the conclusion could not stand in the face of
Article 10 ECHR as it would impose an impossible burden on a publisher if he were required to check if the
true picture resembled someone else who because of the content of the picture was defamed.
[183] Amongst other articles that protect freedom of speech are contained in Article 19 of the UDHR which
states that everyone has the right to freedom of opinion and expression[184].[185]

The UN Human Rights Committee heavily criticised English libel law because it discourages “critical media
reporting on matters of serious public interest, adversely affecting the ability of scholars and journalists to
publish their work”.[186] It is vital that a free and independent press performs the role of a “watchdog of
society which reports on issues of public interest and ensures accountability of the state. Furthermore, the
International Covenant on Civil and Political Rights (ICCPR) elaborates on many rights included in the UDHR
especially on freedom of expression.[187] Article 19 of the ICCPR guarantees the right to freedom of
expression in terms which are very similar to those found in Article 19 of the UDHR. [188] Over the years,
concerns have been expressed that the English law of defamation is too harsh in its operation and that it
costs too much to defend a claim even when a good defence is available.[189] As the result, it unduly
interferes with the reporting of the news by the media and act as a shield.[190] Nevertheless, with the
HRA 1998 which requires the courts in appropriate cases regard the right to free speech in the ECHR serve
to redress the balance as may the specific reforms effected by the Defamation Act 2013.[191]

9.0 COMPARISON BETWEEN USA AND UK LIBEL LAWS

According to Robert Balin, libel laws in the US and England constitute a mirror image of each other with
the burden of proof placed on the claimant in the US but on the media defendant in the UK.
[192] However, their different approaches stem from the basis of how they balance the right of freedom of
speech against the right to protection of reputation. America favours protecting free speech whilst
England favour protecting reputation.[193] The American approach is basically governed by the First
Amendment of the United States which dictates that ‘Congress shall make no law…. abridging the freedom
of speech or of the press’.[194] Nonetheless, the American approach to libel went through a change with
the decision in the landmark case of New York Times v Sullivan[195] which Justice Brennan determined
that ‘libel can claim no talismanic immunity from constitutional limitations’.[196]

American libel law by placing the burden of proof on the claimant, rather than presuming defamation, like
the English system does, means that free speech will not be overly ‘chilled’. Moreover, the single
publication rule the American Courts have imposed upon internet libel is much fairer than the English
multiple publication rule, as it is unreasonable to make someone account for every so-called publication of
their article on the internet, when the propagation of information via this medium is virtually impossible to
control. This difficulty in controlling information on the internet is also one reason it is best to again follow
the American approach. This higher threshold demanded in American libel actions may seem excessively
protective of free speech at the expense of reputations, but really it has struck the best balance possible,
and in so doing avoided the ridiculous situation of libel tourism, which England is now confronted with.
Although the common law elements of defamation claims are very similar in both countries, but the
Constitutional protection of speech in the US has allowed defendants in American courts to be much more
successful in defending defamation claims.[197]

10.0 CONCLUSION

The Defamation Act 2013 serves to give out a strong message to loosen the ends of freedom of speech for
the media to publish statements which they think is relevant or significant. This Act does not completely
sacrifice the right to reputation but it strengthens the right to freedom of speech for individuals and the
press in UK. This inevitably protects the role of the media.

David S Ardia in Reputation in a Networked World: Revisiting the Social Foundations of Defamation

Law stated “…Given that defamation law serves so many important functions, one would expect that it has
evolved along with our networked society. But, alas, defamation law looks today much as it did in 1964,
when the Supreme Court issued its landmark decision in New York Times v Sullivan, or even 1764, when
colonial Americans began to tinker with the common law’s English roots.[198] Defamation law remains
perplexed with minute and barren distinctions, filled with technicalities and traps for the unwary and
riddled with anomalies and absurdities.”[199]

It is to be noted that British defamation law causes a severe chilling effect on speech in America. The fear
of violating British law may cause media outlets in America to edit the content of their stories. A solution
therefore must be found in such a way that it would involve a balance between the freedom of speech in
America and the right to protect themselves from defamatory statements. In a dispute between two
nations that value basic freedoms, any solution should stumble on the side of protection of freedom of
speech, the most important fundamental right that any nation celebrates.

In addition, the introduction of the serious harm makes it more difficult for an individual to bring a claim in
defamation, therefore giving individuals more flexibility to exercise their right to free speech. However, the
Act will not go as far as to implement non-liability approach to defamation as it is important to attach a
reasonable restraint when it comes to the exercise of free speech as it is also important to protect the
reputations of members of society as well as corporate bodies. It is difficult to predict the future of
defamation law however it is safe to assume that the media will continue to lobby for a relaxation of the
libel laws, particularly in the area of qualified privilege.[200] In conclusion, the right to free speech is not
extensively limited or crippled by defamation laws in the UK but rather an acceptable balance has been
reached or is being reached between the right to free speech and the need to protect the right to
reputation.

BIBLOGRAPHY

Cases
Reynolds v The Times Newspaper [2001] 2 AC 127; [1999] 3 WLR 1010; [2000] EMLR 1; [1999] 4 All ER 609 

Jameel v Wall Street Journal Europe [2005] EWCA Civ 74; [2005] QB 904; [2005] 2 WLR 1577; [2005] EMLR
377; [2005] 4 All ER 356

Monson v Tussauds Ltd [1894] 1 QB 671

Youssopoff v Metro-Goldwyn-Mayer Pictures Ltd [1934] 50 TLR 581

Forrester v Tyrrell [1893] 9 TLR 257

Cassell & Co Ltd v Broome [1972] 2 WLR 645

Sim v Stretch [1936] 52 TLR 669

Berkoff v Burchill [1996] 4 All ER 1008

Knuppfer v London Express [1994] AC 116,122

Bourke v Warren [1826] 2 C P 307

E Hulton & Co v Jones [1910] AC 20

Newstead v London Express Newspaper Ltd [1940] 1 KB 377

Huth v Huth [1915] 3 KB 32

Wennhak v Morgan [1888] 20 QBD 635

Slipper v BBC [1991] 1 QB 671

Shah v Standard Chartered Bank [1998] 4 All ER 155

Spiller v Joseph [2010] UKSC 53

Lyon v Daily Telegraph [2001] 2 AC 127; [1999] 3 WLR 1010; [2000] EMLR 1; [1999] 4 All ER 609

Flood v Times Newspaper Ltd [2012] UKSC 11

Hamilton v Al Fayed [2006] UKHL 44; [2007] 1 AC 359; [2006] 3 WLR 642; [2006] 4 All ER 1279; [2007]
EMLR 14

Chatterton v Secretary of State for India [1895] 2 QB 189

Horrocks v Lowe [1975] AC 135, [1974] 1 All ER 662

Loutchansky v Times Newspaper Ltd [2001] EWCA Civ 1805; [2002] QB 783; [2002] 2 WLR 640; [2002] 1 All
ER 652; [2002] EMLR 241

Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44

Charman v Orion [2007] EWCA Civ 972

Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR

Joseph v Spiller [2010] UKSC 53

Simon Singh v British Chiropractic Association [2010] EWCA Civ 350

McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277

O’Shea v Mirror Group Newspapers Ltd [2001] EMLR 943

Other Jurisdiction

Cheng v Tse Wai Chun Paul [2001] EMLR 31 CFA 

New York Times v Sullivan 376 U.S. 254 [1964]

JAMEEL V WALL STREET JOURNAL EUROPE (2006)

Can it now be suggested that following the decision in Jameel v Wall Street Journal Europe [2006}, Anglo-
Welsh law freed journalism from the shackles of defamation law? Critically discuss this view and particular,
what should a journalist learn from this case?

There is little question that Jameel v Wall Street Journal Europe[1] represents an exclamation point in the
transformation of UK defamation law from a regime of press restrictions into the modern era of greater
press freedoms. It is submitted that a critical analysis of the various opinions delivered by the House of
Lords in Jameel does not reveal an unshackling of the existing defamation laws so much as the decision
articulates a system of conditional release in contrast to the former legal test.

The relaxation of newspaper libel law rules that can be traced to the 1975 Horrocks[2] decision found its
clearest voice in Reynolds v Times Newspapers Ltd[3]. However, the reasons of the House of Lords in
both Reynolds and Jameel cannot be taken as a blanket journalistic protection against defamation actions.
Particular areas of limitation that remain as ones of potential vulnerability for the unwary editor or
journalist are the limits that a court will place upon inter-related concepts of public interest and the
emerging defence of responsible journalism.

The House of Lords devoted considerable judicial energy in Jameel to the separate question of whether a
trading company is required to establish a special damages claim as a precondition to its entitlement to
general damages in a libel action. It is of interest that Article 10 of the European Convention on Human
Rights was specifically disavowed in Jameel as applicable to the UK law on this point, both on its own
terms and as a basis for the House of Lords to re-visit UK domestic law. [4] The resolution of this issue is
distinct from those be considered in the present question regarding the relaxation of the rules applicable
in substantive UK libel law; the analysis below excludes these considerations discussed in Jameel for this
reason.

The history of UK defamation law generally, and the law of libel in particular, has been witness to an
ongoing legal tension between the recognition of a duty to ensure a proper redress for injuries caused to
personal reputations by defamatory words, and a corresponding duty to preserve the societal need for
freedom of speech.[5] The dynamics of this contest have been the subject of numerous commentaries from
learned authors and jurists; as early as 1781 Samuel Johnson stated the central issue of English libel law as
…‘All injury is either of the person, the fortune or the fame…it is a certain thing…that a jest breaks no
bones’.[6] ‘Jests” or similar defences were traditionally ones of limited application in the UK.

Since Johnson’s time UK law has recognised various circumstances that contribute to the broad concept of
qualified privilege. As a general rule, a qualified privilege may be claimed only by the maker of an
otherwise defamatory statement. The privilege reflects what is referenced in both the Court of Appeal and
House of Lords decisions in Jameel as the duty / interest approach, stated by Lord Bingham as the
requirement of a reciprocal duty and interest between the publisher and the recipient of the statement in
question or, …“in a simpler and more direct way, whether the public was entitled to know the particular
information.”[7]

The defence of qualified privilege was one of limited application in the UK courts well into the twentieth
century as judges and juries clearly favoured reputation over journalistic expression. It is significant that
the Lords did not see the present case as a change in the law; Reynolds was characterised as the
groundbreaking precedent, and Jameel is a subsequent application of its principles.[8]

Jameel confirms the first limitation on the availability of a Reynolds privilege to cases where the impugned
statement is admitted to be defamatory. The House of Lords use this philosophical position as their point
of departure in considering the foundation to the Reynolds approach – the inherent value of informed
public opinion regarding significant public issues.

While the ten part qualified privilege test enunciated in Reynolds[9] is cited in Jameel as a non-exhaustive
guideline rather than a rule, it is difficult to imagine a newspaper that substantially complied with
the Reynolds test ever being the target of a successful libel action. The bedrock components of
the Reynolds test are public interest and the concept of responsible journalism; these are the most
important issues considered by the House of Lords in Jameel.

Lord Bingham and Lord Hoffman expressed different resolutions to the same questions in this regard. Lord
Bingham re-stated the traditional foundation for qualified privilege, the duty / interest test: is the public
entitled to know the particular information giving rise to the claim? [10] The Lords (as did the Court of
Appeal), made a clear distinction between an important public interest and matters that the public might
find interesting, the ‘…most vapid tittle-tattle about the activities of footballers’ wives’ a pithy example. [11]

On this point, it is submitted that Jameel is a virtual sanction for newspaper publishers ‘bootstrapping’
themselves into an unassailable position by manufacturing a public interest where one may never have
existed previously; the following schematic is an illustration:

1. Newspapers exist to sell information

2. The more ‘interesting’ a newspaper makes itself to its potential readership, the more papers it is
likely to sell

3. The greater the newspaper circulation, the more influential the newspaper with respect to its
ability to reflect public opinion
 4. The greater the influence of the paper, the more authoritative its internal decisions regarding
publishing material that it deems important to the ‘public interest’

The 2003 House of Lords decision in Bonnick v Morris[12] applied Reynolds to formulate this test to
determine what constitutes ‘responsible journalism’: there is no duty to publish and the public have no
duty to read material which the publisher has not taken reasonable steps to verify. [13] Further, weight
should be given to the efforts of the professional opinions of editors and journalists in this regard. [14]

This definition of responsible journalism in Jameel is important for two distinct reasons:

1. The House of Lords have elevated journalism to the level of an essential public service, whose
practitioners will be afforded great latitude where honest although far reaching errors are
committed

2. Lords Bingham and Hoffman place repeated emphasis upon the reputation Wall Street Journal
(WSJ) as a quality publication in assessing its potential culpability; editorial reputation is used to
assess the conduct of both reporter and editors[15]

This approach by the Lords invites the rhetorical question – will an egregious defamatory statement be
more readily excused if the publisher is the London Sun or the Wall Street Journal?

Lord Hoffman articulated the responsible journalism / qualified privilege defence as a three headed
proposition: verification of the story; an opportunity provided to the claimant to respond; the propriety of
publication of the subject story in light of United States diplomatic policy at the time.

One may again readily conclude in terms of the verification issue that the Lords were prepared to accept
without apparent reservation the self serving evidence of the defence regarding its internal efforts to
verify the published story. The Lords made this finding where the Court of Appeal had expressed some
reluctance concerning the state of the pleadings at trial that gave rise to the appeal. [16]

On the opportunity to respond question, it seems patent that the claimant’s representative’s request for a
further 24 hours to respond to the WSJ when first approached by the WSJ reporter carries a ring of
reasonableness with it. It is respectfully suggested that the desire of the Lords to sidestep this failure by
the WSJ reporter as one not fatal to the responsible journalism defence is one of the significant areas of
potential distinction when Jameel is considered in future libel proceedings. Reasonable people will struggle
with the concept that the claimant’s request 24 hours to respond, given the seriousness of the WSJ
allegation, was a bar to professional journalism, especially given the high level WSJ United States
government contacts that WSJ described at trial.

The third arm of the responsible journalism concept as Lord Hoffman describes it relates to the
overwhelming public importance of the post 9 / 11 tragedy and the United States investigative efforts.
Although obiter to the main judgements of Lord Hoffman and Lord Bingham, the words of Lord Scott in
characterising the Kingdom of Saudi Arabia as undemocratic [17] are perhaps a further hint as to why the
Lords were prepared to permit WSJ its journalistic liberties.
There is no question that Jameel elevates Reynolds from an example of authoritative jurisprudence to that
of a ‘different jurisprudential creature’ [18]. As the court states, the status of Reynolds entitled it to be
christened as the Reynolds ‘public interest defence’. As noted above, Reynolds is the operative
law; Jameel is an example of how Reynolds may be applied.

A comprehensive study conducted at Vanderbilt University regarding the impact of Reynolds upon UK libel
law, both in practice and procedure, is instructive in a number of respects. [19]

Since Reynolds was decided in 2001, researchers determined that the threats of legal action advanced to
UK newspapers and other media outlets generally declined. In addition, a number of related but non-
juridical developments are likely to have contributed to this decline, a number of which are outlined
below.

There is little question that the time honoured balancing act between reputation and freedom of the UK
press is now tilted towards a process where so long as the publisher can place their actions, both reporting
and editorial, within the broad and flexible public interest standard as distilled from the cumulative effect
of Reynolds, Bonnick, and Jameel, the Reynolds pubic interest defence will carry the day. Only the most
cavalier and perhaps prurient reportage could fail to fall under this umbrella.

Further, other developments in UK civil litigation have made a prospective libel action even more
problematic. Those factors include:

 Judicial discretion concerning limits on available damages awards

 Cost of libel litigation generally (where counsel fees regularly exceed £400 per hour)

 Civil Procedure Rules that stress early settlements and offers of amends

 Press Complaint Commission – Code of Practice; this non – litigation remedy pre-dates Reynolds,
but it must be considered as a public body with the authority to review complaints of potentially
defamatory statements

The most intriguing of the long term impacts of Reynolds has been the increased reliance by large media
corporations upon the skills of the media lawyer actively engaged in the day to day editorial activities of
many of the UK’s larger newspapers.[20]

What can a journalist learn from Jameel?

There is no question that as Jameel is a natural extension of Reynolds, the defence of public interest will be
made out where the following circumstances exist in combination:

1. The newspaper believes that the issue upon which the erroneous or false statement was made was
one of public importance

2. The stronger the newspaper’s prior reputation for quality reporting, the broader the ambit for
error a court is likely to provide
 3. The journalist makes reasonable, but not exhaustive efforts to work within the Reynolds
responsible journalism defence, particularly with respect to verification and offering the subject an
opportunity to respond to the story as proffered; the reasonableness of which may be closely
connected to (2) above

As noted, however, Jameel cannot be taken as an endorsement of slipshod or superficial research and

reporting practices. Baroness Hale was the most apt of the Lords commentators on this point, in stating
that a Reynolds – styled defence is not a sanction for a journalistic free for all, ‘…to publish without being
damned.’[21] Given the emphasis placed upon the reputation of the WSJ and the post- 9/11 environment in
which the subject story was published, the ability to factually distinguish Jameel cannot be discounted.

Bibliography

Financial Times, “Government Rejects call for UK Press regulation” (October 13,
2003) http://www.freepress.net/news/1440 (Accessed January 28, 2007)

Megarry, Robert “A Second Miscellany-at-law” (London: Stevens and Sons, 1973)

Press Complaints Commission (UK) http://www.pcc.org.uk/index2.html (Accessed January 28, 2007)

Weaver, Russell L. et al, “Defamation Law and Free Speech: Reynolds v Times Newspapers and the English
Media,” (2004) Vanderbilt Journal of Transnational Law No. 5, 37

Table of Cases

Bonnick v Morris [2003] 1 AC 300

Horrocks v Lowe [1975] AC 135

Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellants) [2006] UKHL 44

Jameel and others v Wall Street Journal Europe Sprl (No.2) [2005] EWCA 74

Lewis v Daily Telegraph Ltd [1964] AC 234

Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 (C.A)

Steel and Morris v United Kingdom (2005) 41 EHRR 403

Footnotes
[1]
 [2006] UKHL 44
[2]
 Horrocks v Lowe [1975] AC 135

3[2001] 2 AC 127

4 Jameel, (HL) para 19; procedural standards in libel actions are equally applicable to all legal entities
[3]

[4]

[5]
 Weaver, Russell L. et al, “Defamation Law and Free Speech: Reynolds v Times Newspapers and the
English Media,” (2004) Vanderbilt Journal of Transnational Law No. 5, 37
[6]
 Johnson’s comment upon Solicitors at law v Robinson (1781) 2 Hailes dec.8821 In: Megarry, Robert “A
Second Miscellany-at-law” (London: Stevens and Sons, 1973), 340
[7]
 Jameel (HL), para 30
[8]
 Ibid, Lord Bingham, para 32
[9]
 Reynolds, 206
[11]
 Baroness Hale, para 125
[12]
 [2003] 1 AC 300
[13]
 Jameel (HL)Para 58 -65
[15]
 Ibid; Lord Bingham, para 4,5, 35, 36 “respected and influential’; Lord Hoffman, para 41
[16]
 Jameel (CA), (Phillips, MR) para 4 -8
[17]
 Jameel (HL), para 115
[18]
 Ibid, para 46
[19]
 Weaver, 37, 40
[21]
 Jameel, (HL), para 146

TORT LAW CIVIL WRONGDOINGS

Tort law and civil wrongs

Introduction

Tort law is a body of law that addresses, and provides remedies for, civil wrongs not arising out of
contractual obligations (White, 2003,p3) . A person who suffers legal damages may be able to use tort law
to receive compensation from someone who is legally responsible, or liable, for those injuries. Generally
speaking, tort law defines what constitutes a legal injury and establishes the circumstances under which
one person may be held liable for another’s injury. Torts cover intentional acts and negligent acts, which is
often said by accidents. While in criminal law, the offense is against the State and the State is the plaintiff;
in tort law, on the contrast, the offense is against a person and that person is the plaintiff (Arthur and
Barnes, 2003).

In much of the western world including Australia, the touchstone of tort liability is negligence. If the
injured party cannot prove that the person believed to have caused the injury acted with negligence, at
the very least, tort law will not compensate them (Arthur and Barnes, 2003). Tort law also recognizes
intentional torts and strict liability, which apply to defendants who engage in certain actions (Calnan,
2003). Since negligence is the most important areas of the law of tort, there are three widely accepted
essentials in negligence, which are called the “tortious triumvirate.”�? The first one is that the defendant
owed the plaintiff a “duty of care”�?. Secondly, the defendant failed to conform to the required
“standard of care”�?; and thirdly, there was a “sufficient connection in law”�? between the defendant’s
conduct and the damage, whether loss or injury, suffered by the plaintiff.

In contemporary time, some might argue that among the three elements that establish the action in
negligence, which are the duty of care, the standard of care and the sufficient connection in law, the first
one is the least difficult one, and should not be given the same importance. However, it is not always the
case in the real world situations. In this essay, the three important and essential elements would be
analyzed and discussed in detail. Further, the importance of the principle of duty of care would also be
evaluated and with comparison to the other two elements.

Background

As widely known, the law of torts is a body of rights, obligations, and remedies that is applied by courts in
civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others
(Shapo, 2003). The person who sustains injury or suffers pecuniary damage as the result of tortious
conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs
liability for the damage is known as the defendant (Arthur and Barnes, 2003).

The law of torts is derived from a combination of common-law principles and legislative enactments.
Unlike actions for breach of contract, tort actions are not dependent upon an agreement between the
parties to a lawsuit (Arthur and Barnes, 2003). Unlike criminal prosecutions, which are brought by the
government, tort actions are brought by private citizens. Remedies for tortious acts include money
damages and injunctions and the defendants are subject to neither fine nor incarceration in civil court
(Arthur and Barnes, 2003).

The law of torts serves four objectives. First, it seeks to compensate victims for injuries suffered by the
culpable action or inaction of others. Second, it seeks to shift the cost of such injuries to the person or
persons who are legally responsible for inflicting them. Third, it seeks to discourage injurious, careless, and
risky behavior in the future. Fourth, it seeks to vindicate legal rights and interests that have been
compromised, diminished, or emasculated. In theory these objectives are served when tort liability is
imposed on defendants for intentional wrongdoing, Negligence, and hazardous activities (Shapo, 2003).
As one of the most important areas of the law of tort, negligence is relevant with people in community and
business in a lot of areas. Since established in the case Donoghue v. Stevenson [1932] in Australia, there
was not a standardized definition of the action in negligence, sometimes the appliance of negligence in
one case can vary greatly from one to another (Gibson et al 2008). It is under that circumstance that the
three essential elements have developed to determine if negligence exists or not. The three elements
must be established in every tort action. First, the plaintiff must establish that the defendant was under a
legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant
breached this duty by failing to conform his or her behavior accordingly. Third, the plaintiff must prove
that he suffered injury or loss as a direct result of the defendant’s breach (Gibson et al 2008).

At any rate, the three elements, that is duty of care, breach of care and damage, are most essential and
important elements in any case of negligence. The understanding, interpretation and application of these
elements are most important in establishing actions in negligence. The following part of this essay is going
to examine them in detail.

Duty of Care

As the first step in establishing actions in negligence, the defendant must owe a duty of care to the
plaintiff. In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere
to a standard of reasonable care while performing any acts that could foreseeably harm others (Blay et al,
2005). It is the first element that must be established to proceed with an action in negligence. The plaintiff
must be able to articulate a duty of care imposed by law which the defendant has breached. In turn,
breaching a duty may subject an individual to liability in tort (Mark Garwin, 1998, p101). The examination
of duty of care below will follow the development of the principles and provide the historical approach as
well as the contemporary approach.

Historical approach

At common law, duties were formerly limited to those with whom one was in privity one way or another,
as exemplified by cases like Winterbottom v. Wright [1842]. Such kind of duty of care is the first essential
the plaintiff has to be established if he wants to proceed with an action in the name of negligence. The
plaintiff must be able to describe and prove the existence of duty of care imposed by law and the
defendant has breached the duty of care. Duty of care may be considered a formalization of the social
contract, the implicit responsibilities held by individuals towards others within society (Gibson et al, 2008).
It is not a requirement that a duty of care be defined by law, though it will often develop through the
jurisprudence of common law. This is often seen as the “privity principle.”�?

In the early 20th century, judges began to recognize that enforcing the privity requirement against hapless
consumers had harsh results in many product liability cases. The idea of a general duty of care began to
apply to all who could be foreseeably affected by one’s conduct. This idea also accompanied by the
demolishing of the privity barrier. It first appeared in the landmark U.S. case of MacPherson v. Buick Motor
Co. [1916] and was imported into UK law by another landmark case, Donoghue v Stevenson [1932]. It
established the classic formulation as the test of duty of care (Gibson et al, 2008). In the case, the Lord
Atkin stated that “you must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor”�?. This is referred to as “neighbor principle”�?, which is
regarded as mere a simple test of foreseeability of harm.

Contemporary approach

The contemporary approach has been devised through the case decisions and the legislation. In the case
Caparo Industries Plc. v Dickman [1990], the House of Lords set out the following three-stage test: first, the
harm must be a “reasonably foreseeable”�? result of the defendant’s conduct; second, there must be a
relationship of “proximity”�? between the defendant and the plaintiff; and third, it must be “fair, just and
reasonable”�? to impose liability (Gibson et al, 2008).

Foreseeability and proximity involve an evaluation of the factual circumstances of the parties before the
court while policy considerations (referring to fairness) usually involve a consideration of the
consequences of different legal rules for non-parties about whom knowledge will be limited (Witting,
2005). However, this principle was rejected by the High Court in a unanimous judgment in Sulllivan v.
Moody [2001] later. Finally, the decision made by the High Court in Tame v. New South Wales [2002]
established the “reasonable foreseeability”�? as the touchstone of liability (Blay et al 2008) and added
new elements in negligence as well. From those developments in the history, the contemporary
perception is more concerned with a reasonable objective test of the duty of care, and the control
mechanism as to limit the scope of duty of care owed by the defendant to the plaintiff.

Standard of Care

The second one of the main elements of the substance of negligence is determining the standard of care”?
a legal phrase that means distinguishing between when conduct is or is not tortuous (Angela Forster,
2001,p83). Put another way, the big issue is whether a person suffers the loss from his own injury, or
whether it gets transferred to someone else. The following discuss will focus on the two important topic
about the reasonable person and the guidelines of establishing breach.

The Reasonable Person

As an important element of the standard of care, the reasonable person means that one person has to act
as a reasonable people would have in the specific circumstances, which means generally the defendant
should hold the presumed average intelligence (Blay et al, 2008). In Blyth v. Birmingham Waterworks Co
[1856], the judge Alderson B stated that “negligence”¦which a reasonable man”¦or”¦a prudent and
reasonable man would not do”�?. In other words, only reasonable person would be able to breach the
duty of care. Generally, a reasonable is described as someone of average intelligence and perception of
the surrounding circumstances and knowledge of matters other reasonable persons would not do (Blay et
al, 2008).

Generally, the expected standard of care is that the reasonable person is equipped with the same skills and
expertise as others in similar situation, which in essence is indifferent to each situation (Blay et al 2008).
The decision in case Cook v. Cook [1986] showed a different standard of care applied in an inexperienced
person. Further, the standard of care gives way to standard of children of the relevant age and experience,
which has been shown in the case Waverley Council v. Ferreira [1966] that the standard of care was that of
a 12-year-old child.

Guidelines establishing Breach

The standard of care is the degree of prudence and caution required of an individual who is under a duty
of care. A breach of the standard is necessary for a successful action in negligence. The requirements of
the standard are closely dependent on circumstances. Whether the standard of care has been breached is
determined by the trier of fact, there are some guidelines to follow.

In determining the breach of duty of care, the court takes 3 steps into account (Gibson et al 2008). The first
step, as discussed early, is whether the risk is foreseeable by a reasonable person. The principle has been
applied in the case Bolton v. Stone [1931]. Secondly, it involved with whether the risk is significant. This
has been applied in the case Paris v. Stepney Borough Council [1951]. Finally, the court would evaluate
whether a reasonable in the plaintiff’s position would have taken the precaution.

Sufficient Connection in Law

The third essential for negligence is that there must be sufficient connection in law between the damages
suffered as a result of defendant’s breach of duty and the defendant’s conduct. It is always judged from
two perspectives of causation and remoteness.

Causation

The responsibility of proving the damage suffered was caused by the defendant’s breach is on plaintiff. The
principle at common law is the “but for”�? test which is whether “the harm would not have occurred to
the plaintiff but for the defendant’s actions”�? (Gibson et al 2008). This principle was approved of by the
decision of High Court in case Barnett v Chelsea & Kensington Hospital [1968]. However, other tests may
also be applied; the most common one is the “proof of causation”�?. As it sounds from the words, when
there are two or more acts or events which would each be sufficient to bring about the plaintiffs injury,
responsibility and damages are apportioned. This principle was applied to the case Pickford v Imperial
Chemical Industries [1998].

Remoteness

The remoteness principle requires that the loss or injury suffered by the plaintiff should not be too remote,
which is designed as a further approach to limit cause of action to ensure that certain liability will be fairly
placed on the defendant (Gibson et al, 2008). The case of R. v. Goldhart [1996] ruled that the defendant is
liable only for the types or kinds of damage that were reasonably foreseeable, which is that once the risk
can be accepted as “real”�? and “not far-fetched”�?, the damage that flows is to be regarded as
reasonably foreseeable. In other words, if the damage is considered to be too remote from the
defendant’s careless conduct, then the negligence would not be established.

Analysis
From the above discussion, the importance of those three essentials lies in determining the action of
negligence. Clearly, all of the three essentials have vague definitions and the actually results of different
cases may vary from judge to judge and from one judgment to another. Sometimes, there are objective
tests and clear logics for the principle in establishing standard of care and sufficient connections in law
(Arthur and Barnes, 2003). While for duty of care, it is not necessarily the least difficult one. Several
reasons will be discussed as follows.

Importance of Duty of Care

The duty of care concept has at least two purposes. The first is to provide an overall framework for the
huge variety of situations in which liability may arise. For centuries the law has recognized relationships in
which one person owes a duty to another (Blay et al, 2005). What was lacking was a general principle of
which the various cases were illustrations. The second purpose is one of limitation, setting the boundaries
within which one person could be liable to another for the consequences of careless behavior. Whether
neighbor principle, foresight, proximity or fairness, as its principles evolved, the duty of care always plays
an important role in determining tort of negligence (Angela Foster,2001). It helps to set the basic
characteristic and fundamental logic for the other two, especially the standard of care and the breaching
of duty.

Functions of the Duty Concept

Traditionally the duty concept has been seen as serving two separate functions: first, is there a duty at the
abstract level, whether the notional duty or duty in law (Calnan, 2003)? For instance, does a motorist owe
a duty of care to other road users? Or do barristers owe a duty of care to their clients? Second, is the
particular plaintiff within the scope of the duty of care, whether duty in fact or the problem of the
unforeseeable plaintiff (Calnan, 2003)? For the same instance, was this particular road user owed a duty by
this particular motorist?

Notice that the duty in fact is either as a matter of breach of duty or as a matter of remoteness of damage
(Witting, 2005). Some cases then are clear. Users of machinery on the roads, on building sites, in
workplaces owe a duty of care to those likely to be affected. So do doctors, nurses, dentists, hairdressers
and others providing services to the public. As mentioned earlier, there are still situations where there has
been doubt of the application of the concept of duty of care. For example, Should a host at a party owe a
duty of care to prevent a guest driving home drunk and injuring a pedestrian?

Scope of the Duty of Care

There is no liability in negligence unless there is a duty to take care. This establishes the necessary link
between the plaintiff and the defendant. Such duties are widely recognized. In cases of doubt the modern
test is whether there was foreseeability and proximity and it was fair, just and reasonable to impose the
duty (Witting, 2005).

As mentioned above, duty of care plays an important role in determining tort of negligence. From the
perspective of historical development, it has evolved from the original simple test of foreseeability
–“neighbor principle”�?, to “proximity principle”�? and finally to “reasonable foreseeability test”�? in
at common law (Gibson et al, 2008). In addition, the development of statutory law with respect to duty of
care also has contributed to the extension and limitation of scope of a duty of care owed by a defendant to
a plaintiff.

Conclusion

Duty is about relationships, and it must be shown that the particular defendant stood in the required
relationship to the plaintiff such that he came under an obligation to use care towards him. This
relationship is sometimes referred to as “proximity”�?. In cases of personal injury or damage to property
the necessary relationship is established if the defendant ought to have foreseen damage to the plaintiff
whereas in other cases a closer relationship may be required (Garwin, Mark,1998). Thus, duty means
“proximity”�? in the legal sense, and proximity means the level of closeness of relationship required for
the particular kind of damage. Foresight of damage is a necessary ingredient in all cases of negligence and
finally there is a policy element which is expressed by the view that it must be just and reasonable to
impose a duty in that class of case.

Accordingly, in order to establish a duty of care it must be shown that: (1) some damage was foreseeable
to a foreseeable plaintiff; (2) there is a sufficiently close relationship between the parties to establish a
duty in that class of case (proximity); and (3) that it is just and reasonable to impose a duty (Witting, 2005).

In sum, duty of care is but one element in the tort of negligence, for it must be shown that not only was
the defendant under a duty towards the plaintiff to be careful, but also that he failed to achieve the
required standard of care and that that failure caused the damage, and finally that the damage was not
too remote a consequence of the act.

End References

Angela Foster,(2001),The duty to care and the need to split, Journal of Social Work Practice, vol. 15 No
1:81-90

Arthur, B. and Barnes, D. W. (2003), Basic Tort Law: Cases, Statutes, and Problems. New York: Aspen.

Blay, S., Gibson, A. and Richards, B. (2005), Torts Law in Principle, Law Book Co., Sydney 4th ed.

Blay, S et al, (2008), Business Law: Reading Materials for Legal Environment and Commercial Laws,
Thomson Lawbook Co., 4th ed.

Calnan, Alan. (2003), A Revisionist History of Tort Law. Durham, N.C.: Carolina Academic Press.

Gibson, A. and Ase, D. F, (2008), Business Law, Pearson Education Australia, Prentice Hall 3rd Ed.

Garwin, Mark,(1998),The duty to care”?The right to refuse, Journal of Legal Medicine,19:1,99 “? 125

White, G. E. (2003), Tort Law in America: An Intellectual History, p. xxiii.

Witting, C. (2005), Duty of Care: An Analytical Approach Oxford Journal of Legal Studies, Vol. 25, Issue
1:33-63.
Shapo, Marshall S. (2003), Principles of Tort Law. 2d ed. St. Paul, Minn.: West.

Table of Cases

1. Donoghue v. Stevenson [1932] AC 562

2. Winterbottom v. Wright [1842] WL 5519

3. MacPherson v. Buick Motor Co. [1916] 217 NY 382, 111 NE 1050

4. Caparo Industries Plc. v Dickman [1990] 2 AC 605

5. Sullivan v. Moody [2001] HCA 59

6. Tame v. New South Wales [2002] 76 ALJR 1348

7. Blyth v. Birmingham Waterworks Co [1856] 11 Exch. 781

8. Cook v. Cook [1986] 115 CLR 199

9. Waverley Council v. Ferreira [1966] NSWCA 418

10. Bolton v. Stone [1951] AC 850

11. Paris v. Stepney Borough Council [1951] AC 367

12. Barnett v Chelsea & Kensington Hospital [1968] 1 All ER 1068

13. Pickford v Imperial Chemical Industries [1998] 3 All ER 462

14. R. v. Goldhart [1996] 2 SCR 463

TORTUOUS NEGLIGENCE LIABILITY

Law of Tort Assignment Question

In order to advise the claimants whether they should successfully pursue a claim for negligence following
recent events, the subsequent issues need to be considered. What is tort? What is negligence? And last of
all what is nervous shock?

Winfield’s definition of tort is:

“Tortuous 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.”

In laymen’s terms, tort is a civil wrong or breach of a duty to another person on which courts, based on
fault, impose liability and it is mainly concerned with providing compensation for personal injury and
property damage caused by negligence.

Negligence is defined as “failure to do or recognize something that a reasonable person would do or

recognize, or do something that a reasonable person would not do”. Negligence protects an individual
against economic loss, property and personal injury. However, the claimant must prove the defendant’s
negligence with a preponderance of evidence.

Nervous shock is a term used to denote a psychiatric illness or injury caused to a person by events, caused
by the negligence of another person. For a claim of nervous shock the illness must be recognized as a
psychiatric disorder. However, as seen in Hinz v Berry, a person who suffers from extreme grief and
sorrow, but which falls short of a recognised psychiatric illness are not able to recover damages, as we are
expected to be able to cope with grief. To succeed in a tort of negligence action, the claimant must prove
three factors. Firstly, the defendant owed them a duty of care. Secondly, the defendant was in breach of
that duty. Thirdly, the claimant suffered damage caused by the breach.

The first element in the claimant’s case is whether the defendant owed them a duty of care. This was first
established by the speech of Lord Atkin in Donahue v Stevenson. Lord Atkins stated that:

“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? 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”.

The neighbour principle remains the backbone of duty of care, but in the ensuing years the courts have
developed more complex tests. In Anns v Merton, Lord Wilberforce proposed a two-stage test. The first
stage was to establish whether there was sufficient relationship of neighbourhood or proximity between
the defendant and the claimant. If there is, then the second test is whether any policy considerations
would prevent a duty of care being imposed. However, Murphy V Brentwood has generally killed off the
Anns two-part test.

Fears that the Anns test would fail to develop the duty of care, led the courts to favour an alternative test.
The decisive case in the ‘counter-revolution’ was probably the decision of the Privy Council in Yuen Kun
Yeu v Attorney General, in which Anns was subjected to re-interpretation. The statements of Lord Bridge
in Carparo Industries plc v Dickman are now generally taken to represent the law and a new three-part
test was established which is still used today.

The courts must first consider whether the consequences of the defendant’s acts were reasonably
foreseeable. For example, damage or harm were reasonable foreseeable in Kent v Griffiths but not
in Bourhill v Young.

Secondly, whether there is a relation of proximity between the parties. For example, was there a legal
relationship or physical closeness? There was proximity in Home Office v Dorset Yacht Club, but not
in Caparo.

Thirdly, whether in all circumstances it would be fair, just and reasonable for the law to impose such a duty
of care. It was held not to be fair, just and reasonable to impose a duty on the police in Hill v Chief
Constable of West Yorkshire. However, a duty was imposed on the fire brigade in Capital and Counties plc
v Hampshire County Council.
The second factor the courts will take into account to establish negligence is breach of duty. This is
commonly known as the ‘reasonable man’ test, and simply asks whether the defendant has done
something a reasonable person would not have done, or failed to do something that a reasonable person
would not have. Baron Alderson in Blyth v Birmingham Waterworks Co said:

“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 do something, which a prudent and
reasonable man would not do”.

When deciding whether there has been a breach the courts take into account appropriate factors. These
include the probability of harm and any special skill of the defendant. For example, children cannot plead
infancy as a defence to a tort. However, children and young people will usually be judged by the objective
standard of the ordinarily prudent and reasonable child of the same age, as in Mullins v Richards. However,
if a young person deliberately commits an action with an obvious risk of harm, they may be judged by the
standards of an adult as in Williams v Humphrey. Here the boy had deliberately exposed a man to the risk
of injury, so the court judged him as an adult. A person who claims to have a special skill is judged by the
standards of a reasonable person possessing the skill, which he claims to possess as seen in Bolam vFriern
Barnet Hospital. However, in Wells v Cooper, the defendant was found not liable as hewas merely classed
as an apprentice carpenter or underskilled. However, motorists owe a duty of care even if they are a
learner or inexperienced driver, which could be seen as being underskilled, as seen in Nettleship v Weston.

In deciding whether a duty has been breached the courts will take into account a number of factors to
determine whether or not reasonable care has been taken. Firstly they will look at the degree of risk
involved. In the case of Haley v London Electricity Board a risk was shown to be involved and it was held
that a body conducting operations on a city highway should foresee that blind persons would walk along
the pavement. But in Bolton v Stone there was no risk or a low risk as the cricket club had done everything
reasonable of them to prevent the accident happening. Plus, cricket balls had only been struck out of the
ground six or seven times in twenty years. So the risk of injury was certainly foreseeable, but not high
enough to merit special attention from the defendants.

Secondly, the courts will look at the practicability of taking precautions, as the courts expect people to take
only reasonable precautions in guarding against harm to others. An example of this is in the case Latimer v
AEC Ltd.

Thirdly, the courts will consider the seriousness of harm as sometimes, the risk of harm may be low but
this will be counter-balanced by the gravity of harm to a particularly vulnerable claimant. See, for example,
Paris v Stepney Borough Council

Lastly, the courts will consider the social importance of risky activity. If the defendant’s actions served a
socially useful purpose then he may have been justified in taking greater risks as seen in  Watt v
Hertfordshire County Council.

Finally, in order to succeed generally in an action for negligence the claimant must satisfy the rules on
causation. Causation in fact is concerned with whether, as a matter of fact, the breach caused the damage
complained of. This is usually referred to as the ‘but for’ test. To establish the following three elements
need to be satisfied.

The first element deals with the question of whether the damage was caused by the breach of duty. This
test is best established in Barnett v Chelsea Hospital Management Committee.

Secondly, multiple cases must be satisfied, as where there are a number of possible causes of injury, the
claimant must prove the defendants breach of duty caused the harm or was a material contribution, as
established in Wilsher v Essex Area Health Authority.

Finally, remoteness of damage must be satisfied. The opinion of the Privy Council is that a person is only
responsible for the consequences that could reasonably have been anticipated. The Privy Council changed
this test in 1961 with the following case of Overseas Tankship Ltd v Morts Dock & Enginerring Co.

The final thing to clarify concerns instances where harm has been suffered as of an emotional or mental
nature. In a case of ‘nervous shock’ or most recently referred to by the courts as ‘psychiatric damage’, the
claimant will have to demonstrate on the basis of medical evidence, that they have a recognizable
psychiatric condition.

At first, it was thought that a claimant could only succeed in a claim if they were within the range of
physical impact as in Dulieu v White. In other , only the ‘primary’ victim could sue; as that was the person
who would foreseeable suffer physical damage. However, this was later extended to include people who
saw or heard the accident, which caused the shock as established in Hambrook v Stokes. In the case
of Mclaughlin v O’Brian the law moved in the direction of a test of ‘reasonable foreseeability’, which
included immediate aftermath of the accident, but was not directly present at the scene.

Alcock v Chief Constable of the South Yorkshire Police, first established categories of claimants. Lord Oliver
classed a primary victim as a person directly involved in an accident as a participant and who was actually
exposed to the risk of physical injury, whilst a secondary victim would simply witness the accident. The
significance of this distinction became clear in Page v Smith.

As regards to Bill, he will have to prove the accident put him at risk, which it looks like it did. Bill could be
classed as a primary victim, as he was involved either immediately or immediately as a participant in the
events. Even though Bill did not suffer any physical injury in the accident, he did suffer post-traumatic
stress disorder, which is recognized as a psychiatric disorder. If this were the case, the defendant would be
liable for psychiatric injury sustained to Bill as a result of his negligence, as seen in  Page v Smith. Therefore
I advise Bill, that you have a claim under nervous shock and therefore can sue Ian. The remedy you will
receive is damages.

As regards to Minty, he did not see the crash, but heard it, and on approaching the scene witness’s Phil’s
car, which in turn triggered a previous psychological condition. The House of Lords held in Bourhill v
Young that a motorist has a right to expect that bystanders are people of reasonable fortitude, and will be
able to cope with the ordinary day-to-day horrors of the road. However if Minty can prove he had some
close ties with Phil, he might be able to claim, otherwise mere bystanders probably could not sue. A mere
bystander, who was not a rescuer and to whom no duty such as that arising from the master and servant
relationship was owed by the tortfeasor, would not generally recover as in McFarlane v E. E. Caledonia Ltd,
and would only be able to do so if he was linked by ties of love and affection to a primary victim as in
Alcock. Therefore Minty will have too prove there was a close a close relationship with Phil for his claim to
be successful otherwise there is no prospect of a successful action.

As regards to the emergency services, some members suffered a recognisable psychiatric illness after
witnessing the scene. Sometimes rescuers can be classed as ‘primary victims’ if they are, or believe
themselves to be, exposed to physical danger, which could be seen as being possible, since the carrier was
carrying flammable substances, which could have exploded. An example of this is in the case Chadwick v
British Railways Board. However, in White v Chief Constable of South Yorkshire, the House of Lords
considered claims by police officers that had suffered psychiatric injury after tending the victims of the
Hillsborough tragedy. It was held that an employer has a duty to protect his employees from physical but
not psychiatric harm. A rescuer, not himself exposed to physical risk by being involved in a rescue was a
secondary victim, and as such not entitled to claim. Therefore if the emergency services cannot prove that
they were exposed to physical danger, then I consider there is no prospect of a successful action. However
if their lives were put in physical danger they could be classed as primary victims. Therefore if this was the
case, I advise you, that you could have a claim under nervous shock. The remedy you will receive is
damages.

Regarding Stella, she is diagnosed with post-traumatic stress disorder after identifying Phil’s body at the
scene of the accident. However Stella and Phil have separated, and have not seen each other for six
months. However, in McLaughlin v O’Brian, members of the claimants family were badly injured and
although the claimant was not present at the accident, and therefore not in any physical danger, she
suffered a psychiatric illness as a result. The House of Lords held that, where it was reasonably foreseeable
that a psychiatric injury would arise from an event, the person who caused the event, had a duty of care in
respect of a psychiatric injury. Therefore, if it can be shown that Stella still has a close tie of love and
affection with Phil she will be able to seek damages. However if this cannot be proved there is no prospect
of a successful action.

Finally, regarding Peggy, who is made aware of the accident by a phone call from Stella, whilst on holiday.
Peggy suffers post-traumatic stress disorder after seeing the body of her dead son and ill grandchildren,
whilst at the hospital and ten hours after the accident. However, as Peggy only witnessed the body of her
son and ill grand children ten hours after the accident, this could not be regarded as the ‘immediate
aftermath’ of the accident as in Alcock, it was stated that the psychiatric harm must come through the
claimant’s own sight or hearing of the event or its immediate aftermath. I therefore advise Peggy that is
unlikely to succeed in a claim of negligence, as your post-traumatic stress disorder could not be classed as
in the immediate aftermath.

Bibliography

 Cooke, J., (2005), Law of Tort, 7th Edition. Pearson: Essex.

 Kidner, R., (2006), Casebook on Torts, 9th Edition. Oxford University Press: Oxford.

 Oxford – Dictionary of Law (2006), 6th Edition. Oxford University Press: Oxford.

  Rogers, W.V.H., (2006), Winfield and Jolowicz on Tort, 17thEdition. Sweet & Maxwell: London.

 Asif Tufel.Tort flowchart. Available from:https://www.lawteacher.net/PDF/Flowchart.pdf (Accessed

on 23/01/08)

SERVING AS A SOLDIER IN THE EMPLOYMENT

Introduction

Higgins, a serving solider in the employment of the Ministry of Defence (“MOD”), was on active duty in
Afghanistan in 2009. One day, he was on patrol in a residential area and was hit in the chest by a bullet and
suffered extensive injuries. Higgins claims that the MOD was negligent in that he had not been supplied by
them with enhanced combat body armour (‘the armour”) due to shortages of such equipment. Thus, there
was none had been available for him to wear when on the patrol. Higgins alleged that he was owed a duty
of care in the tort of negligence by the MOD. The MOD admitted that, if Higgins had been supplied with
the armour, he would have escaped without injury. Nevertheless, the MOD has denied that they owe a
duty of care in tort of negligence to Higgins as his injuries were sustained in the course of active combat.

Before 15th August 1987 [1] , it was almost impossible to sue the Crown as “the King can do no wrong” per
Niell LJ [2] , and the Crown enjoyed “combat immunity” under S.10 of The Crown Proceedings Act 1947.
S.10 of The 1947 Act was repealed by The Crown Proceeding (Armed Forces) Act 1987 (“The 1987 Act”)
which removed the “combat immunity” and armed forces who suffered a personal injury as a result of
their service now has a right to sue the Crown. Theoretically the Crown could be vicariously liable [3] for
injuries sustained by its armed forces as a result of the negligence of another “in peacetime”  [4] under The
1987 Act. Higgins can rely on S.1 of The 1987 Act to bring proceeding against the MOD for his personal
injury claim during his employment service abroad in Afghanistan.

To succeed the allegation, Higgins must prove three matters: (1) the MOD owed him a duty of care in
fact [5] and in law [6] as recognized by the court, (2) that the MOD was in breach of that duty of care and
(3) that damage was caused by that breach of duty which can be fairly attributed to that breach [7] to
Higgins.

In Higgins’s case, since there is “no direct English authority” to decide whether the MOD owe a duty of
care in law to Higgins. In such a novel situation, to determine whether the MOD is vicariously liable as
common employment in tort of negligence by failing to provide the armour to Higgins resulting of his
injuries. Higgins must satisfy the “3 stage test” namely, “foreseeability”, “proximity” and it is “fair, just and
reasonable” to impose a duty of care to the MOD, which the law recognizes and capable of give rise to
liability in negligence to the MOD in such novel situation before any claims. (Caparo v Dickman [8] )

(1) “Foreseeability”. In Higgins’s case, the MOD admitted that if Higgins had been supplied with the armour
on patrol, he would have escaped without injury. This implied that the armour is sufficiently enough to
protect Higgins of any injury of the hit of the bullet to his chest during patrol.

Even if the MOD did not admit the shortage of supply the amour leads to Higgins’s serious injury, it
remains the fact that the MOD didn’t provide a “safety system” [9] to Higgins when he was on patrol. It is
reasonably foresee that Higgins has a high potential to be injured or caused death by the bullet hit in his
chest. As a result, he suffered extensive injuries without the protection of the armour. The “negligence act
or omission” of the MOD was amounted to a “real and immediate risk to life” towards Higgins. (Bourhill v
Young [10] )

A normal reasonable man would reasonably foresee that in the condition as Higgins, he was too vulnerable
to protect himself against the hit of the bullet. The likelihood of risk of injury [11] to Higgins ought to have
reasonably foreseen that the MOD not supplying the armour to Higgins resulted his injury was a
reasonably foreseeable consequence. Thus, “foreseeability” is established in Higgins’s case.

2) “proximity”. Higgins was a serving solider, under the employment of the MOD, on active duty in
Afghanistan where he received his injury. Higgins, like the other public service personnel employed by the
Crown who perform their duty in the United Kingdom, he was performing his public duty in Afghanistan.
There was a “contractual relationship” between Higgins and the MOD where Higgins was an “employee”
and the MOD was an “employer”, which the MOD has legal duty to take reasonable care to its
“neighbour” [12] – Higgins and the courts would likely to attribute a duty of care to the MOD.

The MOD has a legal duty, like any other UK employers, to protect all its “employees” – the armed forces
wherever he was stationed in the world during his tenure. The MOD is also vicariously liable for any
negligence acts or omissions of its employees to another employee(s) committed in the course of
employment imposed by the common law [13] .

If Higgins was not employed by the MOD and deployed to Afghanistan under military discipline, he would
not present in the place where he suffered serious injuries. As armed forces, Higgins could not disobey any
military order and had to patrol even though there was none of such equipment had been available for
him to wear. The failure of the MOD in providing the armour to Higgins led to his serious injury. There is no
information indicated there was other intervention caused Higgins injury.

By fact, there was a sufficient causation of the MOD in failure to supply sufficient armour to Higgins, which
was below normal standard of care to its service employees, caused Higgins suffered serious injury. Thus,
there is a sufficient “proximity” between Higgins and the MOD in fact and in law.

3) policy considerations: “fair, just and reasonable”

In considering whether the MOD owe a duty of care and vicariously liable to Higgins, Higgins must satisfy
the “public policy consideration” test [14] . That is, it must be “fair, just and reasonable” for the English
court to impose a duty to the MOD at the place where Higgins received his injury [15] .

Higgins, by facts, without the protection of the amour, he was “exposed to attack or the threat of attack”
by the bullet hit into his chest when he was on patrol at the residential area in Afghanistan. The legal
definition of “combat” [16] is “… all active operations against the enemy in which service personnel are
exposed to attack or the threat of attack. It covers attack and resistance, advance and retreat, pursuit and
avoidance, reconnaissance and engagement.” Hence, “soldier does not owe a fellow soldier a duty of care
…. engaged with an enemy in the course of combat,” and “the MOD is not under a duty to maintain a safe
system of work for service personnel engaged with an enemy in the course of combat.” Higgins at the
moment he received his injury, did fell within the legal definition of “combat” situation that he was in the
course of combat activities.

Though the MOD shall vicariously liable to not providing “safe system” or failure to warn Higgins had
resulted in his injuries in non-combat situation or during a military training exercise [17] but not applied in
the course of combat activities as discussed above. At common law, no duty of care arises “in a service
setting when related to immediate operational decisions and actions within a theatre of war or analogous
situation” against enemy [18] . This is known as “combat immunity” and English courts are reluctant to
impose a duty of care arise in connection with combat operations against the enemy. Technically, the
MOD did not in breach of its duty of care by failing to provide a “safe system” to Higgins.

For policy considerations, the court will take into account if an extension of current scope of duty to the
MOD in the course of combat serving abroad in Afghanistan; it might lead to a flood of litigation or attract
any fraudulent claims than they are today once granted Higgins to succeed his litigation.

Secondly, it may diverse the MOD’s resources to finance local and/or overseas military operations if
extend the current MOD’s scope of duty of care to its armed forces during combat operations. The
increased combat operation litigations may increase financial burden towards the MOD as the MOD has to
reserve “funds” to compensate any failure litigation alleged by its armed forces. It may lead to insufficient
funds for the MOD to finance enhanced protective equipment for military operations. Subsequently,
increases the injuries and/or the death of its armed forces during active combat operations with light
protection. As a result, it extends the breach of MOD’s duty to take reasonable care to its armed forces.

Thirdly, during active combat operations, many immediate decisions have to be taken by soldiers in the
battle field and the MOD is accountable for their decisions made. It is difficult for the MOD to maintain the
same standards in relation to health and safety to its service personnel. It will fetter its armed forces to
perform their public duty [19] if the MOD is liable for any negligent acts by its armed forces in active
combat situation.

Finally, has there an alternative means of redress e.g. deployment of the armour to Higgins when sent him
on patrol? There is insufficient information provided by the case. It is unreasonable to impose a duty of
care owed by the MOD to its service personnel in the combat situation.

It seems that Higgins could not satisfy the requirements of policy considerations as the MOD is covered by
the “combat immunity”. Subsequently, the MOD did not in breach of its duty and Higgins claim is unlikely
to be success.

The “combat immunity” seems to be a bar to armed forces to access the courts. Higgins could not disobey
any military order, thus on patrol without the armour. It seemed unfair to Higgins by “combat immunity”
for the MOD to escape its liability to Higgins. Suggested Higgins can allege that the MOD violated the
Article 2 of Human Rights Act 1998 (“The 1998 Act”) as the MOD failed to provide the “safe system” to
Higgins which deprived his “right to life” even in the course of combat.

The MOD could defend that only the ECHR applied in combat operations abroad – Afghanistan [20] but not
the 1998 Act. But Higgins could apply R (Smith) v Secretary of State for Defence [21] which held that “…
British soldiers service abroad … without territorial limit … was protected by the Convention and the 1998
Act”. Higgins now can rely on The 1998 Act to claim that the MOD was in breach of the “substantive duty
to protect life imposed by Article 2″ that the MOD put him in a “real and immediate risk to life”  [22] when
he was on patrol. There is not too “remote” to reasonably foresee the aforesaid injury caused to Higgins.
Higgins may likely to succeed his claims in his allegation.

Conclusion

There was a sufficient link between Higgins and the MOD as satisfied by “foreseeability” and “proximity”
tests, and the MOD has reasonably foresee that had not provide the armour to Higgins subsequent to his
injury. However, it seems that Higgins cannot satisfy the “policy considerations” test as he was in the
course of “combat” in which he was “exposed to attack or the threat of attack”. By “combat immunity”,
the MOD does not owe duty of care to Higgins, and the MOD was not in breach of duty to Higgins, thus,
the MOD no vicarious liability to Higgins.

However, followed by R. (Smith) v Secretary of State for Defence, Higgins can rely on The 1998 Act that the
MOD in breach of its duty to protect his life imposed by Article 2 when he was performing public service
abroad. If so, the MOD did owe Higgins a duty of care and Higgins might success his claims in his litigation.

LAW OF TORTS

“Torts are civil wrongs for which the injured party may seek legal redressal for.” The injured party in case
of torts is entitled to claim ‘unliquidated damages’, the judgment of which is given by the judge of a court
based on the facts, circumstances and the amount of injury suffered which is actually suffered by the
injured party. Tort law is largely based on common sense and the understanding prevalent between
people in their everyday interactions with each other. The purpose of tort law is to ensure that people
reasonably coexist with each other. In case of a tort case there are two parties involved in it i.e. plaintiff
and defendant. Plaintiff is the person whose rights have been violated, the one who has been injured. He is
the one who is the complainant, who comes to the court seeking remedy. On the other hand defendant is
a person who has violated the rights of the other person and has injured the other person.

For the society to peacefully coexist, each member of the society has to fulfill some duties towards the
other people of the society. Duties to respect people’s private spaces, not to do things that unfairly disturb
others, be careful and diligent when we deal with fellow beings, etc. just as we have such duties, others
have the right to expect us to do these duties. Similarly, others also have duties towards us, and we have
the right to expect them o fulfill these duties. Thus all people are interlinked to each other for these rights
and duties towards each other, creating a world of rights and duties. We have the right to things like
private spaces, the right not to be unfairly disturbed etc. we have the duty of respecting the above rights
of others. The law of torts deals with the violation of these rights by the people. These rights are not
mentioned in the written laws generally, but these have become the part of the legal system by common
law and by the acceptance of the masses.

For explaining this I would like to demonstrate an example, a man was walking in a garden on a bright
sunny day and started swinging the umbrella while walking in the park. Unfortunately, the umbrella ended
up smashing the other pedestrian on his nose. The person injured was very upset with this act. So when
the injured man took up this issue with the first man, first man replied that he has the right to walk in a
public place in the manner which suits him. The second man replied to the first man saying that the first
man’s rights end where the rights of the second man begin.

Few examples of the torts or civil wrongs are: nuisance, negligence, trespass, defamation, etc. Now in the
next section I would discuss some definitions which are used very commonly in the law of torts.

Civil wrongs mean those wrong actions that are not recognized by the state as being criminal wrongs.
Criminal wrongs are more serious and are harmful for the whole society. On the other hand the civil
wrongs are against private parties. Suppose a person walks in to the private property of other person then
he commits a trespass. This act concerns only one person and does not concern the public so it is a case of
tort. On the other hand, if a person murders someone, then such a person is danger to the whole society,
because the whole society is concerned with the lives of community members. In this case the wrong is a
criminal wrong as opposed to a civil wrong. Therefore, civil wrongs are usually defined in distinction to
criminal wrongs and deal with private rights that arise by the virtue of being a member of a community,
rather than dealing with public rights that the public has as a whole against every individual.

Damages are compensation payable to the injured party for injuries sustained because of the wrong
committed by the wrongdoer. It is usually the most common remedy of torts. This is so because in torts it
is very rare, and almost impossible, to undo the damage done and restitute a person as they were before
suffering the damage. The only way of soothing the injury is by awarding damages, which, though
monetary in nature, are compensation, nevertheless. By this I mean that it is the most common remedy in
torts.

Unliquidated damages are those damages, the amount or extent of which has not been predetermined or
decided before the wrong has committed. In civil wrongs such as torts there are no agreements as the
parties are mostly unlikely aware of the fact that something like this will happen, for example when a
person trespasses into land of another by unknowingly or in case a person plays loud music which causes
harm to someone else, so the damages are not predetermined and are therefore unliquidated.

Law Of Torts In India

India has inherited the law of torts from the English legal system. Barring a few civil laws, there are no
written laws that specifically and comprehensively deal with the law of torts. It is up to the Indian courts to
apply an English tort principle if justice demands it in a certain situation, either entirely, or with
appropriate modifications, as is the demand of the case or the facts. But it is of great importance to
remember that it is upon the court to decide that such principals are applicable or not. Very few tort claim
cases comes to the courts, primarily people are not because people are not aware of their rights, and also
because fighting a court case, in Indian scenario, is often not worth the time and effort. This is completely
different from countries like America and United Kingdom where the tort claims are frequent as the
people are aware of their rights.

Quasi-contract: “When a person receives some benefit that was to be given to other, than the law says
that the person is contractually bound to correct recipient to compensate him for misplaced benefit.”
There is no actual contract between wrong recipient and the right recipient, but law implies contract under
which the wrong recipient has to pay back the compensation to the right person. This assumed contract is
known as quasi-contract.

Difference Between A Tort And Quasi-Contract

In case of tort duty is owed to all members of the public (though only one may be affected) whereas in a
quasi-contract, a duty is implied as being owed to a specific person i.e., the rightful recipient. In tort the
duty is present at all the times, whereas in case of a quasi-contract is formed because of a particular
situation i.e., the wrongful recipient of the benefit etc. also in case of tort the damages are unliquidated,
but in case of a quasi-contract the damages may be liquidated damages. Conditions which are necessary
for a tort are:

1. There must be an act or an omission on the part of the defendant or the alleged wrongdoer. In
order to be liable for a tort, a person must have done some act which he was not supposed to do.

2. The act or omission should result in a legal damage, which means that the act or omission must
result in the violation of a legal right of the plaintiff or the complainant. The legal damage is called
injuria which means ‘legal injury’. One can be injured but he has to be legally injured.

Also there is no general rule in tort law that one must have intended to the wrongful act in order to be
held liable. In some torts, such as assault, deceit and conspiracy, the mental condition is relevant, while in
most of the other torts the mental condition of the wrongdoer is irrelevant. The reason for this is that tort
law requires not just that people not attempt to hurt others, but also that people do their best not to allow
their actions to accidently hurt others. So basically tort law primarily wants to catch careless people in
order to avoid future misfortunes.

There are two terms which are used to determine whether a party has a valid claim in tort law, i.e.
whether the other person could be held liable in a court of law or not. They are:

Injuria sine damno: this means the violation of the legal right without the cause of actual damage. This is a
valid claim in a court of law. For example, if someone trespasses upon the property, he can be held
responsible, even if the trespass did not cause any actual damage to the person. The person has a right to
non-violation of the bounds of his property and it is this right which has given rise to a tort claim.

Damnum sine injuria: this means causing of death without the violation of legal right. Such a case will not
be valid in the court of law. For example, the fact that a man is injured by another man’s act is not
sufficient cause; this might be even if the injury-causing act is intentional or deliberate. A violation of legal
right is necessary in order for a valid cause of legal action to exist. Now I would like to clear the meaning of
three words, these are:

Damage: actual harm suffered by the plaintiff

Injury: the violation of a legally-recognized and protected right

Damages: it means the compensation payable to the plaintiff for the harm caused

General Defenses To Tort Claims

If someone sues one person claiming that the other person has violated the rights of his and has
committed a tort, then certain defenses could be taken. The extent to which they apply against different
torts, may, however, differ. Some of the defenses which can be used in torts are:

1. Volenti Non Fit Injuria: this means ‘voluntary taking of a risk’. It’s when a person chooses to be in
the situation that causes the injury. For example, suppose you are a spectator at a cricket match ,
the batsman hits a six, and the ball lands on your head, then you cannot claim for compensation
either from the stadium authorities or the batsman because when you took a seat in the stadium,
you accepted the risks while sitting in the stadium. Therefore if the defendant can prove that the
plaintiff voluntarily put himself in that situation, he can escape liability. The most important thing
to remember is that the action must be voluntary i.e. with the informed consent of the relevant
person. There must not be any cheating or use of any type of force and so the person must put
himself in the situation by his own choice. There are two things which should be established in
order to use this defense. (a) That the plaintiff knew or could have expected the risks involved in
such a situation. (b) That the person agreed by a statement or conduct, to suffer the consequence
of the risk without force or compulsion or threat.

By this I want to say that it is not enough to defend by saying that the plaintiff knew the risk; it is also
necessary to show that the plaintiff voluntarily agreed to suffer the harm which might be possible in the
risky situation. But in case of a master servant relation there might be some sought of pressure on the
servant. I would like to give an example, a master orders his servant to go and work in a mine, if one shaft
is not in a proper condition, this cannot be assumed that the servant and so in case if there is an accident
than the master cannot claim that the servant knew and went voluntarily as there is pressure from the
master.

2. Plaintiff is the wrongdoer: the most important thing in this case would be that the plaintiff did
something wrong which caused him the injury. Since he plaintiff did something wrong so he cannot
claim damages from someone else for the injury caused to him. For example, if a person walks into
someone’s house and if it is written on the gate that ‘beware of dog’, the dog bites him then the
plaintiff entered the house after knowing the risk, as a result he cannot ask for compensation, also
he was the wrongdoer.

3. Inevitable accident: When an injury is caused to a person by an event that could not be foreseen
and avoided despite reasonable care on the part of the defendant, the defense of inevitable
accident can be used. For instance, by ‘inevitable’ it is not meant that the accident was bound to
happen, but rather, that the accident could not have been avoided despite reasonable care. After
all, how can a person be blamed for something that he had no control whatsoever over or could
not prevent? For example, a situation where the defense could not be used is that of a person who,
while trying to separate two people fighting, hits another person accidentally. Here the injury is
negligence and no negligence is involved.

4. Act of God: This defense is similar to the defense of inevitable accident according to me. The only
difference is that in the defense of Act of God the accident happens to occur because of unforeseen
natural event. The requirements which are to be satisfied are (a) the injury most be caused by the
 effect of natural forces, (b) the natural forces must be unforeseen, or the effects must be
unavoidable. So even if a natural event like a storm is taking place, if one can take precautions and
avoid the damage, the defense cannot be used.

5. Private defense: If one injures someone, or something that belongs to someone else, while
defending self or own property, then one can be excused if the force used to protect self was
reasonable. For instance, if someone punches you on stomach and you shoot him that would be an
excessive use of force which is not necessary for defending yourself. The following must be
satisfied in order t claim this defense: (a) the defendant must be under threat or under attack, (b)
the defense must be for self-defense and not for revenge, (c) the response must be proportional to
the attack or threat. The principle for this is that the law will not hold you responsible for an action
that you performed in order to save or protect yourself. If, however, it was not necessary to use
force for protection, the law will not protect, and you can’t use this defense.

6. Mistake: Mistake is not usually a defense in tort law. It’s not good enough to say that you didn’t
know you were doing something wrong. This defense can be used in case of malicious prosecution.
In malicious prosecution it must be shown that the prosecution was acting with malice.

7. Necessity: In necessity, you have to show that the act you did was necessary in the circumstances.
For instance, if one enters someone’s private land in order to collect water from his well to put out
a fire in his house, that the person was prompted by necessity and the defense could be used in
tort claim and it could be used against trespass of property. The level of necessity should be very
high. Basically the wrong done should be smaller while comparing it to the importance of right
done.

8. Act under Statutory Authority: If the act done was under the authority of some statute that is a
valid defense. For example, if there is a railway line near your house and the noises of the train
passing disturbs then you have no remedy because the construction and the use of the railway is
authorized under a statute. However, this does not give the authorities the license to do what they
want unnecessarily; they must act in a reasonable manner. I have an example for this from my own
life, there was a telephone exchange in my locality and the generators which were used were of
very high frequency which was permitted in a residential area, the court asked the exchange to be
removed from that place.

Every person has a right to sue another person and every person can be sued by another person. In India a
minor can sue just like an adult, the only difference is that the tort action will have to be put forth and
proceeded with, in court, by an adult acting on behalf of a minor. In case a minor is sued than, his parents
or guardian will have to pay damages to the plaintiff, also the minor could be held liable. Also companies
can be sued for the actions of its employees committed when acting as employees of the company i.e. on
duty. The judicial authority cannot be sued if they are acting with their capacity. Also the government
cannot be sued for any tort claim arising while it is acting within its governmental or sovereign capacity.

Vicarious liability: This deals where a person is liable for the acts of others. This happens where the person
who committed the act did it on behalf of someone else. In this case of vicarious liability, both, the person
at whose behest the act is done as well as the person who does the act is liable. Vicarious liability can arise
from the following relationships:

1. Master- Servant Relationship

If a servant does a wrongful act in the course of his employment, than both the servant and the master can
be held liable for such an act. Since the servant acts under the authority of the master, the latter should
also be held liable. An act is considered to be in the course of employment if the act has been directly
authorized by the master or even if the act comes within the group of acts that the master impliedly
requires the servant to perform. But a master cannot be held liable for a contract.

2. Principal-Agent Relationship

An agent is someone who is authorized to do an act by another person (principal) also the acts on his
behalf. Both the principal and the servant are held liable. The difference between the master servant
relation and principal agent relation is that in case of the latter the agent does not pass the direction and
control test.

3. Partners

In a partnership, the partners are responsible for each other’s during the course of employment i.e. during
the conduct of the business. The partners can be held responsible jointly and severally for each other’s
actions. By the term jointly I mean ‘together’ and by the term severally I mean ‘separately’. This means
that the partners can be separately or all together for the actions of one partner.

Nuisance

“In tort law, causing ‘nuisance’ means ‘unreasonably interfering’ with a person’s right over, and in
connection, with his property or his land.” Nuisance may be caused in various ways, such as the causing of
unnecessary noise, heat, smoke, smell and other such disturbing activities. For example, your neighbor
unnecessary is in the habit of setting on fire the morning piles of the dead leaves. He burns these in his
garden, but the smoke from this fire blows into your house, and this is a type of general disturbance for
you. Such behavior would constitute nuisance and since you are denied the right to live in your property
and enjoy their safely, so you could complain about this nuisance, even a tenant could complain in a fixed
time frame. There are two types of nuisances, public nuisance and private nuisance.

1. Public Nuisance: This type of nuisance occurs when the right of the general public is interfered
with. For instance, if a person deliberately blocks a road with his vehicle, then he interferes with
the right of the public in general, and that would be a public nuisance. This is because the road is a
public property, and by blocking it, the person interferes with the public exercise or enjoyment of
that property.

Public nuisance is a sort of crime and it is not merely a civil wrong committed against the rights of a
person, and commission of a public nuisance results in punishment by the state, which may impose a fine
or even put behind bars i.e. punishment. The damages cannot be sought through a civil suit.
 2. Private Nuisance: This is the kind of nuisance that is ground for a tort action for nuisance by a
private party. The damages could be sought through a civil suit. There are certain requirements
which need to be met for this, these include unreasonable interference by the defendant, also the
interference must be with the use or enjoyment of the plaintiff’s property, the plaintiff should have
suffered some damage as a result.

Negligence

It is one of the most important in case of torts. This is because it is frequently committed and also there is
some type of negligence in most of the tort cases according to me. Tort is negligently committed, i.e.
negligently causing nuisance, negligently trespassing on someone’s land, etc. in order to establish the tort
of negligence, it must be proved that:

1. The defendant owed a duty of care to the plaintiff

2. The defendant breached that duty, either totally or partially.

3. The plaintiff suffered damage as a result of this breach of duty.

Duty of care: for showing an act of negligence, the plaintiff must show that the defendant owed the
plaintiff a legal duty of care. A legal duty is different from moral, social or religious duty. In case
of Donoghue vs. Stevenson, the plaintiff filled an action for negligence against the manufacturer claiming
that she had been seriously injured by the contents of the drink. The defendant claimed in his defense that
he had no duty as she did not buy the bottle. But the court held that the manufacture owed a duty of care
to the plaintiff and to all its consumers. The court also held that the manufacturer had breached the duty
and caused damage, and was therefore negligent. I would like to also state that the duty is only there
where the injury is foreseeable.

Breach of duty: After having established that the defendant owes the plaintiff a duty of care it must then
be proven that the duty was breached. For seeing whether due care was taken, one must what was the
standard of care required in that situation. If the care taken is less than standard care than there is a
breach of duty.

Damage as a result of Breach of Duty: in order to succeed in a legal action based on negligence, it is
necessary to show that the plaintiff suffered some damage. The plaintiff has to show the incident
happened and it caused injury to him. Also the defendant was in control of or responsible for whatever
caused the incident.

The Tort Of Trespass

Trespass means illegally entering in someone else’s property. There are two kinds of trespass, Trespass to
a person and Trespass to land.

Trespass to person: This category of torts deals with the threat of, or actual use of unlawful force against a
person. There are three types of torts in this category: Battery, Assault, False Imprisonment.
 1. Battery: It basically deals with actual use of unlawful force against a person. In order or a person to
prove a tort of battery, one needs to show the following things: one needs to show that there was
a use of force. The force need not have to be great. For example throwing water or spitting on a
person is a battery. Also it must be proven that the use of force was without any legal justification
and the use of force was intentional. By this I mean that an accident will not constitute battery as
long as there was no negligence involved.

2. Assault: the tort of assault occurs when the defendant does something that causes a reasonable
fear of battery in the mind of the plaintiff. By this I mean that assault occurs when something
scares the plaintiff that he is going to be subjected to use of force. Also the defendant should have
the ability to harm the plaintiff. . for example if a person in a hospital having fractures in his body
and is plastered and he says you ‘I will bash you’, it is not an assault. Also assault comes before
battery takes place.

3. False Imprisonment: This is tort that constitutes trespass against a person. This takes place when a
person is deprived his liberty or he totally restrained from it. False imprisonment occurs when a
person is locked in a lock up i.e. n a jail or even in a room. The restraint must be imposed without
any lawful justification, then only he can be said to be falsely imprisoned.

Trespass To Land

There are different signboards which could be seen at different places stating “NO TRESSPASSING”. In law
of torts, trespass to land means to interfere with someone’s possession of land without any lawful
justification. Trespass can be committed by the trespasser himself entering the land, or by the trespasser
doing it by using some object. An example of this would be a person throwing stones in the property of
another person while remaining physically out of the property. Trespass can be committed intentionally,
negligently or even accidently. Tort of trespass does not require any actual damage.

Strict Liability

The rule was laid down in the famous Ryland vs. Fletcher (1868) case. In this case, the defendant
constructed a reservoir on his land to provide water to his mill. The defendant did not know that there
were some disused mineshafts just next to his reservoir. The water burst through the reservoir into the
disused mineshafts, and flooded coal mines in the adjoining land. The defendant did not know of the
shafts, and there was no negligence on his part though there was negligence on the part of the contractors
he had hired to build the reservoir. Yet the court held him liable. The court said the principal governing
such a situation is one of “strict liability”, because if a person brings a potentially dangerous thing on his
land and if such a thing escapes and does damage, then such person should be held responsible, even if he
were not negligent. Here the reservoir was said to be the potentially dangerous thing. The criterion for
strict liability is that, a dangerous thing must have been brought by the person on his land; such a thing
must have escaped the land. Also the thing must have been intended to be used for some non-natural
purpose.

The defenses for escaping strict liability are: if the plaintiff himself did something which resulted in damage
to him by the defendant’s property, then that is a defense. If there is an act of god than it is also defense.
Also in case if there is an act of third party i.e. some stranger, than that is a defense. Also in case a
government keeps dangerous thing under a statute, then there is no question of strict liability.

Absolute Liability

This is similar to strict liability, except for the fact that there is no defense to it. In effect, there are no
excuses for the harm caused. The rule of absolute liability evolved in the famous Indian case M.C. Mehta
vs. Union of India (1987). In this case the court said that there are no defenses as were there in the case of
Ryland vs. Fletcher. The court came out with a logic that a person a person who carries on a dangerous
activity for profit is responsible for any harm that may flow from such activity. The rule of absolute liability
was followed in Bhopal Gas Leak case and is also used in environmental pollution cases.

Conclusion

After reading articles on the law of torts and discussing this topic with my friends I feel that the law of torts
is not much developed in India. But the tort law has provided physical security to the people. “Tort law
evolved through the common law. Historically, basic common law principles were applied to solve legal
problems. In the nineteenth century, there was a movement towards systematizing tort law.”

Bibliography

I have done this assignment with the help of Professor Abhay Raj Naik who is my torts professor. I have
taken help from Ratanlal and Dherajlal book ‘the law of torts’. Also I have taken help from my lecture
notes and my coaching notes. I am thankful to my professor for helping me to write this.

THE TORT OF NEGLIGENCE

The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to
take proper care to avoid what a reasonable person would regard as a foreseeable risk. In many cases
there will be a contractual relationship (express or implied) between the parties involved, such as that of
doctor and patient, employer and employee, bank and customer, and until relatively recently it was
necessary for such a contractual relationship to exist in order for a claim for negligence to succeed.

But the civil law relating to negligence has evolved and grown to deal with situations that arise between
two or more parties even where no contract, written or implied, exists between them

It follows that from a practical and financial point of view every enterprise needs to ensure that
management planning continually takes full account of the responsibilities imposed and the potential
liabilities that may be incurred under what is a continually evolving part of the law.

The case often quoted as the foundation for the current law is that of Donoghue v Stevenson (1932) AC
562. It was held that, despite no contract, express or implied, an action for negligence could succeed. The
claimant successfully argued that she was entitled to a duty of care even though the deficient goods (a
bottle of ginger beer with a snail in it) were bought, not by herself, but by a friend, so that no contract
existed between the manufacturer and the person suffering the damage
From this case has evolved the principle that we each have a duty of care to our neighbour, or someone
we could reasonably expect to be affected by our acts or omissions. This Duty of Care is the first element
which must be established if a claim is to succeed. It will be appreciated that such a duty of care could be
held to apply very widely and so case law has made it more difficult to establish that such a duty exists.

In Anns v Merton London Borough Council (1978) AC 728 a two stage test was used to establish if there
was a sufficient relationship of proximity based upon foreseeability and, if there was, were there reasons
why there should not be a duty of care. Later, in Caparo Industries plc v Dickman (1990), 2 AC 605, a three
fold test was used to determine if a duty of care existed.

The test required that

1. Harm must be a reasonably foreseeable result of the defendant’s conduct

2. A relationship of proximity must exist

3. It must be fair just and reasonable to impose liability

The second element required is to establish that there has actually been a breach of the duty of care. In
any action, the court will consider the standard of care that a reasonable person would have taken. If the
defendant failed to meet that standard the court will then consider if, in the actual circumstances of the
case, the standard needs to be adjusted for any reason

Reasons for adjustment include:-

Professional standards which a reasonable professional may be expected to follow, in which case those
standards may be used

Common practice or industry guidelines, in which case those standards may be used unless it is considered
that the common practice itself is considered negligent

If it was reasonable to expect more than usual care because of a disability or frailty of the plaintiff
compared to a fit or healthy person

If there was a high degree of risk in the defendant’s action then the court would expect that extra
precautions were taken

If, for practical reasons, reasonable precautions could not be taken, or they would have been too
expensive, the court may decide the defendant had still met the duty of care

If there was a social benefit to the defendant’s action the court may decide they had not breached their
duty of care

Element three that must be established is to show that the plaintiff has suffered loss or damage as a direct
consequence of the defendant’s breach of his duty of care. In essence, all he has to prove is that if it had
not been for the actions of the defendant, he would not have suffered loss or damage
However, in many cases it will be found that more than one cause is involved in the events leading up to
the loss or damage. Was the chain of events between the defendant’s negligence and the plaintiff’s loss
too long and involved to enable one to decide that the defendant’s action was the most probable cause?
Equally, was it reasonable for the defendant to have foreseen that their actions would cause damage or
loss?

Here’s a true case that demonstrates how difficult it can be to decide who is really responsible for the
chain of events that has caused loss to more than one person. I can’t offer an answer because this has just
happened. But I suggest it may well end up in court sometime soon

A manufacturer makes a mega bit of machinery that needs transporting to the site where the purchaser
will use it. He signs a contract with a transporter who undertakes to move the machinery by road. That
company needs to ask local councils to designate an approved route that will accommodate the load and
ask local police to supervise movement of the load because it is over normal size and weight limits

The transporter arrives at the factory, loads the equipment and, when the police escort arrives, sets off
along the route. Half way to the destination, the vehicle passes under a footbridge which, unfortunately, is
not high enough and the inevitable happens. Oops!

The council said “The route chosen was the responsibility of the haulier, but the council would “check and
advise” it (The haulier said he followed the normal requirement of the council to suggest a suitable route
for the load)

The police said it was their responsibility to “watch roads, rather than loads”

A spokesman for the police authority said it was the haulier, contractor and council’s responsibility to
check the route and whether it was suitable for the load. He added that it was the police’s responsibility to
check the roads were safe for other motorists

The road will be closed for several days while the footbridge is removed

Who is the blame guy here? No one knows, because this incident happened on Tuesday 16th March 2010

How many claims will be “proximate”? That is for the courts to decide, but it shows how essential it is for
the haulage firm and the manufacturer to be aware of the importance of providing accurate information to
the council and the police about the overall dimensions of the load. What about folk distressed by seeing
the incident, delayed from catching flights, picking up children, going for an operation, arriving to wed the
bride? Do they have a claim? What about the council? Can it claim against itself for the cost of the
demolition of the bridge and it’s replacement?

(BBC News Tyne Wed 17/3/2010 “Police-escorted lorry hits bridge)

Cases from occurrences such as this arrive in court every day, and show how important it is to ensure that
management is up to speed to ensure all possible precautions are taken to avoid negligence claims, and
that proper insurance is in force to protect the enterprise against a claim that could, in effect, ensure its
demise
It is also necessary to ensure that contracts entered into with suppliers contain proper warranties to
protect against claims about defective goods that the enterprise has purchased. For example, the standard
invoice provided to purchasers by a food supplier will contain clauses warranting that the product meets
all food and hygiene standards at the time of sale. Similar warranties occur throughout industry so that,
where a deficiency or malfunction occurs, it can be passed back to the author of the problem. Enterprises
purchasing without such warranties lay themselves open to picking up the failings of their suppliers

There are two defences a defendant can use if they are found liable

The first is that the claimant accepted there was a risk of injury or loss, in which case the defendant will
not be liable. Medical practitioners and hospitals, for example, often use the “consent form” that patients
are required to sign before a procedure or operation. Other industries use contracts describing that the
procedure is not guaranteed to produce the required result, but is the best that can be offered. If a
purchaser signs such a document he is unlikely to succeed in a claim

The second defence is contributory negligence. If the claimant can be shown to have been aware of the
risk but declined to take appropriate precautions, then any award may be reduced. For example, a
passenger in a car stolen by a “joyrider”, while succeeding in a claim against the driver, may have his
award reduced by a percentage, if he was not wearing a seatbelt

The practical application of negligence law in a business is proper and careful management attention to
actions that may cause damage to third parties and, secondly, proper and full insurance against a failing
that may result in a claim

TORT LAW MUST BE ESTABLISHED

Introduction

For damages to be claimable in tort law it must be established that the Defendant owed the claimant a
duty of care, that the duty was breached and that this breach of duty caused the claimant some harm.
Thus in this case Tom must show that Ken owed him a duty of care, that the duty was breached and that
Ken’s breach of duty caused the harm suffered, which can be identified in this case as the need to pay
£20,000 for repairs. Similarly for Leo to claim against Tom he must show that Tom owed him a duty of
care, that Tom breached that duty and that this breach caused the harm to his business and the losses that
resulted.

Initial Negligently Conducted Survey

Tom could attempt to claim against Ken’s initial survey that he relied upon in buying the yacht. Ken was
contracted to the bank and therefore may argue that he only owed a duty of care to the bank and not to
Tom. In an attempt to rebut this Tom may rely on the binding precedent set in the case of Smith v Eric S
Bush where the House of Lords found that despite the fact the surveyors contract was not directly with the
Claimant they still owe the claimant a duty of care when conducting the survey as it is clear the claimant
would rely on the survey when deciding whether r of not to purchase a property.
It is clear that Ken breached his duty of care by not conducting the survey to the standard that would
reasonably be expected of the ‘ordinary skilled man professing to exercise that skill’.

There are two parts to causation, Factual causation and legal causation- also referred to as scope of
liability. Causation can be established using the ‘But For’ test, illustrated in the case of Barnett v Chelsea
which asks ‘but for the defendants actions would the claimant have been harmed?’ In this case it is clear
that ‘but for’ Kens report that the yacht was in good condition Tom would not have bought it and
therefore would not be in the position of having to pay for the repairs. Scope of liability can be established
using principles laid down in ‘The Wagon Mound No 1′ that defendants would be liable for any foreseeable
consequences of their breach of duty. It is foreseeable that Tom would incur repair costs for the flaws in
the yacht as a result of Ken’s breach of duty to survey the yacht satisfactorily therefore Ken would be
legally the cause of putting Tom in his current position.

The harm suffered in relation to Ken’s negligence could be viewed as pure economic loss. There is a prima
facie understanding, supported by the case of Spartan Steel v Martin& Co, that recovery for pure economic
loss is not generally allowed. However there are exceptions to this rule; The House of Lords laid down four
conditions in the case of Hedley Bryne v Heller that if met may make a claim for pure economic loss
possible under the new tort of negligent misstatements. The conditions are as follows: firstly that there is a
special (or fiduciary) relationship of trust and confidence between the parties; Secondly that the party
preparing the advice/information has voluntarily assumed the risk (express or implied); Thirdly that there
has been reliance on the advice/information by the other party; Fourthly that such reliance was
reasonable in the circumstances. It is clear that in this case these conditions are all satisfied so a claim
under the tort of negligent misstatements may be possible. Further the case of Hamlin v Edwin Evans
implies that claims against surveyors (for negligent reports where economic loss is suffered in the form of
paying for repairs for defects that should have been identified in their report) are possible given that they
are brought within the relevant time constraints.

Under the Law Reform Act 1945 Ken may be able to reduce the amount of damages Tom can claim due to
his contributory negligent act of steering the yacht into the harbour wall as this would have caused some
of the damage to the yacht therefore contributes to the £20,000 worth of repairs. The Act allows for
damages to be reduced but not defeated. The requirements for this defence are that the claimant failed to
take reasonable care that this failure contributed directly to the damage suffered, the court will then
address the question of what percentage the damages should be reduced by. It is clear in this case that
Tom failed to take reasonable care when sailing his yacht causing it to crash into the harbour wall. We can
presume that this hitting the harbour wall would have caused some damage to the yacht. When deciding
what percentage the damages should be reduced by the court can rely on the guideline set out in the case
of Froom v Butcher that without the claimant’s negligence the harm would have been completely
prevented damages would be reduced by 25 per cent. If the harm would have only been less severe,
damages would be reduced by 15 per cent. If the claimant’s negligence made no difference to the harm
then there would be no reduction in damages. It is clear that without Tom’s negligence the harm would
only be less severe so the courts may reduce damages by up to 15 per cent.

Negligence Affecting Leo’s Business

Leo must show that Tom owed him a duty of care before he can consider claiming against Tom. According
to the case of Spartan Steel v Martin & Co Tom may owe Leo a duty of care. In this case the defendant’s
negligently cut off the power supply to the claimant’s factory in much the same way that Tom’s act cut off
the salt water supply to Leo’s factory disrupting production. The courts found that it was possible for a
claim to be brought.

Leo must then show that Tom breached this duty. Leo can do this by using the doctrine of Res ipsa
Loquitur meaning ‘the thing or accident speaks for itself’. This doctrine arises from the Earle CJ in Scott v
London Docks Co. It is clear that in the normal scheme of things yachts do not crash into harbour walls, it is
therefore possible to say this accident speaks for itself in that without some breach of duty to take
reasonable care, on Tom’s part he would not have crashed into the harbour wall and Leo’s factory would
not have suffered any harm. Breach is therefore established.

It is now necessary for Leo to prove that Tom caused the harm. Using the ‘but for’ test from Barnett v
Chelsea we can establish factual causation as ‘but for’ Tom’s negligence the pipe would not have ruptured
and Leo would not have suffered any loss. To establish legal causation one can apply the principles laid
down in ‘The Wagon Mound No 1′ that if it is reasonably foreseeable that defendant’s actions would cause
the claimant harm then the action can be viewed as a cause in law of the harm. It is reasonably
foreseeable that negligently steering into a harbour wall and rupturing a pipe will cause harm to the
person relying on that pipe so Legal causation can be established here.

Damages claimable for Leo depend on the way the harm suffered by him is classified. The law distinguishes
between Pure Economic loss, where the harm suffered is only financial, and Consequential Economic loss,
where the harm suffered is a direct consequence to the defendant’s actions. The losses Leo made can be
divided into these two categories. The lobsters that perished and the loss of profit due to this can be
classed as consequential economic loss as it is clear that these losses were a direct consequence of Tom’s
action. Whereas the inability to store more lobsters during the two subsequent days and the projected loss
of £1500 profit can be classified as pure economic loss as this profit is only a projected figure. This is
applying the reasoning used in the Spartan Steel v Martin & Co case where damage caused to the steel
being processed at the time of the negligence and the profit lost on this batch was classed as
consequential economic loss and the projected lost profit due to the delay in repairing the power line was
classed as pure economic loss. According to the Spartan Steel case recovery for pure economic loss is not
possible but damages may be recoverable for consequential economic loss. However the case of
Eletrochrome v Welsh Plastics damages were not recoverable even for consequential economic loss as
there was no actual physical damage, so it is possible that recovery will be denied as there is no mention of
any actual physical damage.

Conclusion

It is likely that Tom will be able to recover a large amount of damages, covering the majority of the repair
costs although he will probably not be able to recover the full amount due to his contributory negligent act
of steering into the harbour wall.
As for Leo recovering damages from Tom it is likely that he will be able to recover for the consequential
economic loss of the dead lobsters and lost profit on that batch of £ 5000. However it is likely that
recovery for the pure economic loss due to the delay in repairing the pipe, of £1500 will be denied.

Bibliography

Primary sources:

Law Reform (Contributory Negligence) Act 1945, S1(1)

Barnett v Chelsesa and Kensington Hospital Management Committee [1969] 1 QB 428

Bolam v Friern Hospital Management Committee (1957) 1 ALL ER 118, QBD,

Eletrochrome v Welsh Plastics [1968]

Froom v Butcher [1976] QB 286

Hamlin v Edwin Evans [1997] 29 HL 141

Hedley Bryne & Co Ltd v Heller and Parnters [1963] 2 ALL ER 575

Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) (No 1) [1961] AC 388

Scott v London and St Katherine Docks Co [1895] All ER Rep 248

Smith v Eric S Bush [1990] AC 831

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QBD 27

Secondary sources:

K.Horsey and E.Rackley, Tort Law, Oxford University Press, (2009) 69, 170-250

R. Kidner, Casebook on Torts, Oxford University Press, (2008) 143

R. Bagshaw, Case Notes Negligence- public authority- pure economic loss, Student Law Review 57. 2009,
59

O. Catchpole, Surveyor’s reports 1 cherry, 1 bite, 150 New Law Journal 2000 197

Stapleton, Duty of Care and Pure Economic loss: A wider agenda. 107 Law Quarterly Review 1991, 249

THE LAW OF NEGLIGENCE TO DEAL

With The Aid Of Case Law, Discuss And Apply The Law Of Negligence To Deal With Miss Fortune’s Claim For
Compensation For Her Injuries.
The issue to discuss in this particular question is whether Miss Fortune may succeed in her claim for
compensation for her injuries as a result of the negligence of Fast Renovations Ltd (hereafter referred to as
FR Ltd) as well as MSc Constructions Ltd (hereafter MSc Ltd) who engaged FR Ltd to perform the work.

Under the law of negligence, three elements must be proven for a claim to succeed. The first element is
that there must be a duty of care between the tortfeasor and the victim. Secondly, there must be a breach
of such duty. Finally, the breach of such duty must have caused a proximate damage.

The first element which must be considered is whether there exist a duty of care between the tortfeasor
and the victim. In this case, the victim is Miss Fortune, a member of the public who was walking past the
building. The tortfeasor meanwhile is FR employees who built the scaffolding platform which collapsed
together with an employee, resulting in a hammer hitting Miss Fortune.

Under the case of Donoghue v Stevenson [1932] All ER Rep 1; [1932] AC 562 to establish a duty of care
relationship, the claimant must have been within a member of a group which can be reasonably foreseen
to suffer harm as a result of defendant’s acts or omissions. An illustration can be seen in the case of
Margereson v JW Roberts Ltd [1996] PIQR 154 where the court held a duty of care relationship arise
between an owner of an asbestos factory and children playing around the factory, as it can be reasonably
foreseen that the owner of the factory must take steps to prevent any short-term or long-term risks to
their health from dust contamination.

Applying this to the particular instance, we may argue that FR Ltd, in undertaking repair works, has a duty
to ensure sufficient safety measures are taken to prevent injury caused towards any member of the public,
especially considering that such work are undertaken at the apartments, which is undoubtedly a
residential area.

In establishing the duty of care, it is also necessary to consider whether FR Ltd can be made liable for the
negligence of its employees, and similarly, whether MSc Ltd can be made liable for the negligence of FR
Ltd, who they have hired to engaged in the renovation works.

This belongs under the area of vicarious liability under the law of tort. Under the principle of vicarious
liability, employers can be made to be vicariously liable for any tort committed by their employees in so far
as it occurs during the course of the employment.

Let us first consider FR Ltd’s liability for the negligence of its employees. Under the authority of the case of
Lister v Hesley Hall Ltd [2001] UKHL 22, Lord Clyde in the House of Lords commented that to establish
liability, two questions may be asked, that is, whether the person committing the tort was an employee,
and secondly, whether the employee was acting within the course of employment.

In this scenario, it is safe to assume that the employee who commits the tort is an employee of FR Ltd
based on the wordings of the question, without getting into rules and principles of what is effectively an
employer. It is sufficient to note that people with a contract of services, that is, an employment contract
will be considered as an employee, as held in the case of Ready Mixed Concrete (South East) v Minister of
Pensions and National Insurance [1968] 2 QB 497.
Hence, what needs to be settled is simply whether the failure to erect the scaffolding properly can be said
to be made within the course of employment. This is also a pretty straightforward discussion. As erection
of scaffoldings is made simply for the purpose of efficient renovation works, which is the main purpose of
the contract of employment of the employee, it would be said to be within the course of employment.

It must be noted however, that wrongful modes of doing an authorised act can also put the employer
under a vicarious liability. In the case of Rose v Plenty [1976] 1 WLR 141, it was held that so long as the
person injured was performing some act which provides some benefit to the employer, there will be
vicarious liability.

Here, it is clear that both erection of the scaffoldings as well as the accident where the employee fell, are
both actions which occurred during the performance of duties benefiting the employer, FR Ltd. As of such,
it would seem that vicarious liability is clearly established.

On whether MSc Ltd can be made to be liable for the negligence of FR Ltd, the issue is less straightforward.
Using the two-question approach as enunciated in Lister v Hester Hall would provoke some interesting
questions, such as could FR Ltd be considered an employee of MSc Ltd?

Under the first question, only those considered as an employer can be made vicariously liable for the
negligence of its employees. A contract of services can be distinguished in this area with a contract for
services, where a contract for services will not result in an employer-employee relationship. Contract for
services will only cause such persons to be held as independent contractors.

Here, it is sufficient to incorporate a control test to find out whether it is a contract of services or a
contract for services. It is well-established in common law that where an employer is able to tell the
person who he contracted with the methods and manner of the execution of work, and where the
relationship is closer to a master-servant relationship, such relationships will be considered an employer-
employee relationship.

An example to determine this is if the person contracted with is provided with a regular salary or partake
in the company’s pension schemes.

Based on the scenario, it is submitted that the contract between FR Ltd and MSc Ltd is most likely a
contract for services and hence MSc Ltd could not be made vicariously liable for the negligence of FR Ltd. It
is clear that MSc Ltd had chosen to engage in a company independent from itself to provide a service of
renovation and repair works, and that none of the employees which FR Ltd chose for the project is also
chosen by MSc Ltd. In essence, it can be argued that there is no proof that MSc Ltd took any part in
controlling the methods used in the renovation works.

As of such, in conclusion, it is humbly submitted that only FR Ltd will be made liable for the negligence of
their employees, and not MSc Ltd.

The second element which we shall consider is whether there has been a breach of such a duty of care. We
have previously deduced from analysis that such a duty of care does in fact exist on the side of FR Ltd, but
not on the side of MSc Ltd.
Under the principles of breach of duty of care, a breach of duty of care will be assessed on the basis of the
test of “reasonableness”. In the case of Glasgow Corporation v Muir [1943] SC (HL) 3, the court explained
the standard of foresight of the reasonable man. In the case, Lord MacMillan explained that “the standard
of foresight of the reasonable man eliminates the personal equation and is independent of the
idiosyncrasies of the particular person whose conduct is in question.”

Hence, assessment of reasonableness does not require us to look at the particular characteristics of the
employee in question, but rather, a general assessment of the reasonable duty of such a person with
regards to a contract requiring him to do renovation works.

In this case, it is particularly useful to take a look at regulations of the Health and Safety Executive, which
provides the standards and duty of care in relation to health and safety practices at work.

In particular, under the Work at Height Regulations, Regulation 6(3) as well as Regulation 4(1) provides
that every person undertaking renovation works have a duty to properly plan out such works and take
reasonable steps to prevent an accident.

Hence, what must be considered is whether such reasonable steps had been made to prevent an accident.
This would seem to be answered in the negative, considering the fact that the deceased worker was not
given the company’s health and safety policy nor did he receive a health and safety induction prior to
undertaking work.

It is not a defence that the deceased had only started work in 3 weeks. It is the duty of FR Ltd to ensure
that prior to undertaking work such inductions had in fact been carried out. Three weeks are also sufficient
time for a health and safety policy to be given to him, as well as a health and safety induction.

Another breach of safety occurs due to the fact that there is no risk assessment for the work, and that
further, the scaffolders were not trained to undertake such type of work, and as such are not competent
to carry out renovation works with regards to erecting scaffoldings.

It is therefore humbly submitted that in failing to undertake such measures, FR Ltd is in breach of both
their common law duties as well as statutory duties under the Works at Height Regulations.

The final element which must be established is whether the breach had caused any proximate damage to
Miss Fortune. What must be proven here are causation as well as proximity. In this instance, it is also
necessary to consider whether FR Ltd and MSc Ltd can be made to compensate for the fact that Miss
Fortune can no longer perform her job as a pianist due to the injuries sustained.

In this scenario, the injuries occurred as follows. Miss Fortune who was walking past the building as a
member of the public was hit by a large hammer which fell as a result of the collapse of the scaffolding
platform. As a consequence of the accident, Miss Fortune suffered from a broken arm.

It is also necessary to note that while FR Ltd’s employee also sustained injuries which later cause his death,
it is not necessary to consider him in this particular question, which focuses entirely on Miss Fortune’s
claim for negligence against FR Ltd and MSc Ltd.
To establish damage, two elements must be shown. Firstly, causation between the breach of duty and the
damage must be shown, and secondly, the damage must not be considered as too remote. These are
referred to causation in fact and causation in law respectively.

Under causation in fact, it is necessary to show that the negligent act of the defendant caused or
materially contributed to the damage which is complained of. A test which the courts have made use of is
the But For test. In such a test, the court will direct the question as to whether such injuries would not
have been sustained but for the breach of the defendant.

It would seem that in utilizing the But For test, an answer would have to be given in the affirmative. Miss
Fortune would have safely walked through the area without sustaining the injury if not for the breach of
duty of FR Ltd. There are also no intervening acts occurring between the point of the breach and the point
of injury, and as of such, we can clearly establish causation in fact in this particular instance.

In establishing causation in law, we must consider whether FR Ltd can reasonably foresee the occurrences
of such damage. In this instance, the question to bear in mind is whether the injuries sustained, that is, the
broken arms by a member of the public can be reasonably foreseen by FR Ltd.

For instance, in the case of Re Polemis and Furness, Withey & Co [1921] 3 KB 560, the court had to
consider an instance where a stevedore negligently dropped a plank of wood from a great height into the
hold of a ship. Unknown to them, benzene had leaked into the hold, and the movement of the plank
dropped caused vapours to ignite, resulting in the eventual destruction of the entire ship despite efforts to
salvage it. The court held that despite the fact that total destruction was not foreseeable, it was a direct
consequence of the negligence and hence the stevedore firm was held liable for the destruction of the
ship.

The reasons for this harsh application is due to the fact that the courts take into account that in large
companies, it is usual for companies to pay damages as they are properly insured, and in such instances, it
does not matter whether the rule is fair as long as the liability established by the rule is.

This can be contrasted with the case of Doughty v Turner Manufacturing [1964] 1 All ER 98, where
although claimants were injured in a work accident, they were able to recover absolutely nothing as the
accident which occurred was completely unforeseeable.

Considering this two opposite cases, we can then analyse our present predicament. In this particular
scenario, it is reasonably foreseeable and undoubted that failure to erect the scaffoldings properly would
result in not just a potential collapse, but a likely collapse of the scaffolding to the detriment of those who
are utilizing the way, which does not only include residents of the area but also members of the public. It is
reasonable to expect serious injuries and even death as a result of such a collapse, and so the broken arm
suffered by Miss Fortune is entirely foreseeable. It is hence submitted that the damage is not too remote.

Having established both causation in fact and causation in law, the third element for a claim in negligence
to arise is sufficiently established. Thus, considering these three elements, it is submitted that FR Ltd can
made to be liable for the tortuous act committed by their employee which resulted in the injuries
sustained by Miss Fortune.
What we can now consider is whether FR Ltd can claim a defence through their notice which excludes
liability. What should also be considered is whether the notice excluding liability may apply to prevent a
claim of negligence against FR Ltd and MSc Ltd with regards to injuries sustained by Miss Fortune. It should
be noted that the exemption clause completely excludes liability for any “any loss of or damage to
property, death or injury to any persons howsoever caused”. This exemption however, appears nowhere
in the contract between FR Ltd.

In this instance, since we have already established that liability only exist on the part of FR Ltd and not MSc
Ltd, it is only necessary to consider whether the notice may act so as to exclude FR Ltd’s liability for
negligence towards Miss Fortune. We shall not bother to entertain whether the exclusion of the
exemption clause in the contract between FR Ltd and MSc Ltd has any effect on MSc’s liabilities, as at our
present predicament, it has no bearing with regards to Miss Fortune’s claim.

The rule governing this issue is the Unfair Contract Terms Act of 1977, which provides that an exclusion
clause may not operate in certain conditions. Under section 2(1) of the UCTA 1977, any attempt to exclude
liability for death or personal injury which is a result of negligence will be held as void.

Thus, in this case, it would seem that the attempt to exclude liability for personal injury as a result of
negligence by FR Ltd is void. It should be taken into account that the UCTA 1977 provides that liability as a
result of property damage is subject to reasonableness test, and as of such, the exclusion clause is not
completely void. However, in consideration of the fact that Miss Fortune did not sustain any property
damage, we shall not bring ourselves to discuss this issue.

Under section 2(4)(b) of the Occupier’s Liability Act, it should be noted that liability is also provided
towards the occupier of a place if an independent contractor is negligent, Under the provision,

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 to the danger if in all the circumstances he acted reasonably in
entrusting the work to an independent contractor and had taken such steps (if any as he reasonably ought
to in order to satisfy himself that the contractor was competent and that the work had been properly
done.

It is submitted that in this case MSc Ltd had sufficiently taken steps to ensure the contractor was
competent. They are not under a duty to ensure that every manner of the work was properly executed.

In the case of Haseldine v Daw, the occupiers employed a competent firm of lift engineers to maintain the
lift on their premises, but the claimant was killed when the lift suddenly fell from the top to the bottom of
the lift shaft. The occupiers cannot be held liable since they had appointed what was apparently a firm of
competent engineers to do the work. It is not within the scope of their duty, nor was it reasonable to
expect them to check tediously on whether all aspects of the work had been done in a satisfactory way, as
it involves technical skills which the occupier lacks.
Applying this principle, it can then be conclusively argued that MSc Ltd has no liability with regards to Miss
Fortune. To conclude, Miss Fortune can claim against FR Ltd for her injuries sustained as a result of the
negligence of FR Ltd. FR Ltd are unable to rely on the exclusion clause to escape from this liability.

With Reference To Legislation And Case Law, Discuss The Potential Breaches Of Health And Safety Law
Arising Out Of The Above Scenario.

The issue to discuss here is whether there exist any breach of health and safety law in this particular
scenario between Miss Fortune, FR Ltd and MSc Ltd.

There are plenty of regulations in the United Kingdom which regulates the use of scaffoldings. According to
the National Access and Scaffolding Confederation (NASC), the Work at Height Regulations is essentially,
criminal law. The regulations are governed by the Health and Safety Executive, and ensure the adherence
of European as well as the British standards for scaffolding.

One of the duties of a contractor is to make weekly inspections to ensure that scaffolding has not been
interfered with or deteriorated. According to Regulation 6(3) as well as Regulation 4(1) of the Work at
Height Regulations 2005, there is a duty to properly plan renovation works as well as a duty to take
reasonable steps to prevent an accident.

In the case of Nixon v Chanceoption Developments Ltd [2002], an employer was held to be in breach of
health and safety regulations and hence liable for negligence in its failure to provide adequate safety
measures, which results in an employee falling from a scaffolding which was insecure and was not
equipped with guardrails.

Another duty also exist with regards to providing adequate training, which is relevant in this particular
instance since FR Ltd has failed to ensure that scaffolders were experienced in undertaking such work.
Under the Provision and Use of Work Equipment Regulations of 1992, employers are required to train
employees in the safe use of equipments as well as in other safety measures. In the case of Koonjul v
Thameslink NHS Trust [2002], employees were held to be responsible to undertake a precise evaluation of
the level of risk involved in manual handling operations as well as to issue instructions to employees in the
event that any precautions are impracticable.

Sam Smart, A Quantity Surveyor, Was On The Above Site And Witnessed The Incident. He Also Noted
Earlier That Week That The Workers Were Not Erecting The Scaffolding Correctly. He Has A Good
Relationship With The Contractor And Has The Following Concerns:

Should He Come Forward And Report What He Knows To The Health And Safety Executive.

Should He Support The Contractor If He Is Interviewed About The Incident.

The issue in this particular question is whether Sam Smart as a Quantity Surveyor has a duty to report what
he knows towards the Health and Safety Executive, or whether if he is interviewed, he may choose to
defend the contractor instead, despite his knowledge that the worker were not erecting the scaffolding
properly.
A typical contractual duty of a quantity surveyor is to ensure that employees and workers are aware of site
hazards and to take the necessary precautions. In general, any defects in the plant, equipment, scaffolding,
or excavations must be reported to the site manager together with any details of dangerous practices
observed.

Although a quantity surveyor is employed by the company, it is the duty of a quantity surveyor to ensure
his independence by producing such a report. As of such, if he has knowledge of any defects or lack of
precautions taken, he has a duty to inform the site managers, and at to later disclose his knowledge to the
Health and Safety Executive should he be required to provide such information.

This is also in line with the RIDDOR Regulations of 1995, or the Reporting of Injuries, Diseases and
Dangerous Occurrences Regulations of 1995. Under the RIDDOR regulations which take effect on the 1st
April 1996, there is a duty by all employer to report and make records of any work-related accidents or
occurrences, and to ensure the compliance of such a duty and for employers to take the necessary steps to
prevent further breaches of safety.

Health and Safety Executive Inspectors are entrusted to enforce the Health and Safety at Work
Regulations, and as such, have the right to visit employers as well as employees in order to determine that
risks are properly managed, as well as to settle complaints which may affect the health and safety of
employees.

As of such, on request to interview Sam Smart, as a quantity surveyor, he has a duty to report all that he
knows to the Health and Safety Executive in as far as it relates to matters pertaining breach of health and
safety at work for employees.

With The Aid Of Case Law, Discuss The Occupier’s Liability Acts 1957 And 1984.

The Occupiers’ Liability Acts 1957 and 1984 both deals with the duties of an occupier towards those who
came onto the property, and includes liability with regards to injuries sustained.

Under section 2(1) of the Occupiers’ Liability Act 1957, “an occupier of premises owes the same duty, the
common duty of care to all his visitors except insofar as he is free to and does extend, restrict, modify or
exclude his duty to any visitor or visitor by agreement or otherwise.”

The definition of an occupier is defined in the case of Wheat v E Lacon & Co Ltd as that of a person which
exerts control over the premises.

While at first the Occupiers’ Liability Act 1957 only concerns itself to visitors, the Occupiers’ Liability Act
1984 has extended the liability of such persons to include the duty towards persons “other than his
visitors”.

Under the Occupiers’ Liability Act 1957, an occupier owes a “common duty of care” towards all his lawful
visitors. A visitor may in the first instance be considered a visitor but later exceeds his rights and in such
cases, will fall outside the realm of visitors under the purpose of Occupiers’ Liability Act 1957.
In such instances, he will be considered a trespasser, or an unlawful visitor, and can only claim liability
under the Occupiers’ Liability Act 1984, which although protects such entrants, accords a much lower
standard of protection and duty of care towards these entrants.

The common duty of care which is afforded by the Occupier’s Liability Act 1957 is defined under section
2(2) of the Occupier’s Liability Act 1957, which states that the common duty of care is “the 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 purpose for which he is invited or permitted by the occupier to be there”.

An instance of a breach of the common duty of care can be seen in the Glenie v Slack & Others, where the
owner and occupier of an unsafe track built for motorcycle side-car races were held to be in breach of such
a duty, where the track and fencing were inadequate and unsafe, resulting in the death of the passenger in
a side car.

Hence, the duty is for the occupier to ensure that the visitor is made safe. Note that there is no duty to
actually keep the premise safe, and as such, instead of taking precautions to ensure the premise is safe, an
occupier may choose to instead put warning signs in order to make visitors safe.

With The Aid Of Case Law, Discuss And Evaluate The Current Legal Ingredients Of A Contract. To Answer
This Question You Should Examine The Concepts Of: Invitation To Treat, Offer, Acceptance And
Consideration.

For a contract to form, 5 elements must be satisfied. The first element is that there must be a formation of
the contract. Secondly, such contract must come with considerations from both parties to the contract.
Thirdly, there must be an intention to create legal relations. Fourthly, both parties must have the capacity
to contract. Finally, there must be certainty in the terms of the contract, in the sense that such contracts
must be possible to be carried out.

For the first element, the formation of a contract is inferred from the existence of an offer and acceptance.
The requirements of offer an acceptance depend on whether an offer is a unilateral offer or a bilateral
offer. For instance, in unilateral contracts, an obligation is made by one party, acceptable by anyone who
wishes to take up such an offer. In the case of Great Northern Railway Company v Witham (1873) Court of
Common Pleas LR 9 CP 16, the unilateral contract offer to pay someone £100 if they can walk between
London to York. The difference between unilateral contracts is that the person accepting is not bound to
complete the task upon acceptance. The only obligation which arises is on the part of the offeror, who is
bound to complete his promise upon the successful completion of consideration by the offeree. Unilateral
offers may also be made to the public at large, as from the case of Carlill v Carbolic Smoke Balls Co (1893)
[1893] 1 QB 256 where advertisement stated that anyone who uses their smokeball and still caught flu
would be paid £100.

An offer must be differentiated from an invitation to treat. In general, advertisements for bilateral
contracts are simply invitation to treat, which invites people to make an offer, and not an offer by itself. In
the case of Grainger & Sons v Gough [1896] AC 325, 334, the court held that circulation of a price-list by a
wine merchant is not an offer for sale but merely an invitation to treat.
Acceptance of an offer must be unconditional, otherwise it would be deemed as a counter offer. This can
be seen in the case of Tinn v Hoffman (1873) 29 LT 271, where the court held that if one party offered to
sell 1, 200 tonnes of iron, the party accepting cannot choose to only order 800 tonnes. Acceptance must
also be communicated for an offer to take effect. This is on the authority of the case of Entores Ltd v Miles
Far East Corporation [1955] 2 QB 327. In the case, Lord Denning expressed that if A shouts and offer to B,
and B attempts to yell back an acceptance which is muffled by the sound of a noisy aircraft, there will be
no conclusion of the contract.

Contracts must be supplemented by considerations, that is, parties must take up obligations in
consideration of a benefit which they would obtain under the contract. These considerations must be
sufficient, and must be of economical value, though it may not need to be adequate. This can be seen in
the case of Chappell v Nestlé Co. Ltd [1960] AC 87, where the court held that a contract was concluded
where customers could get a copy of a song record by sending in 1s 6d as well as three wrappers from
Nestlé’s bars of chocolate. The court held that such consideration is sufficient. It need not be adequate
compensation compared to the obligation undertaken.

In general, contracts must be intended to create legal relations. As of such, there is a rebuttable
presumption that commercial agreements intend itself to be bound, except in cases involving honour
clauses such a contract of lottery or pools company. There is also a rebuttable presumption that there is no
intention to be bound with regards to social as well as domestic agreements. An example is the case of
Balfour v Balfour [1919] 2 KB 571, where the court held that there was no intention to create a binding
contract between a husband and wife. This presumption is again rebuttable, for instance in the case of
Peck v Lateu [1973] Vol. 117 Sol. Jo. 1857, where the court found an intention to be legally bound in a
social agreement where two women agreed to share profits won by bingo between themselves.

Contracts must also be capable of being contracted. Minors are not bound to any obligations under a
contract, except with regards to the supply of necessary goods and services. This is under the Minors’
Contract Act of 1987. Similarly, mentally incapacitated persons are not bound to a contract, nor will a
contract be bound when it is formed where one of the party is of unsound mind, for instance when one of
the parties is drunken.

With The Aid Of Case Law, Discuss The Key Differences The Law In Respect Of Public And Private Nuisance
Law.

According to Romer LJ in the case of Attorney General v PYA Quarries Ltd. (1957) 2 QB 169, public nuisance
are an act which “materially affects the reasonable comfort and convenience of life of a class of Her
Majesty’s subjects”.

Private nuisance meanwhile, protects against the physical interference of the use and enjoymentof a land.
It complements the tortof trespass, as well as offering options for action where a claimant would
otherwise be unable to succeed in an action for trespass. An example of a tort of private nuisance can be
seen in the case of Khorasandjian v Bush [1993] QB 727; [1993] 3 All ER 669, where the Court of Appeal
held that the courts have the power to grant injunctions in order to restrain defendants from pestering
claimants by making nuisance telephone calls.
It should be noted that another key difference is that, while public nuisance are both a tort and a crime,
private nuisance are only actionable as a tort. This is because a tort of public nuisance affects the subjects
of a country, as opposed to private nuisance, which focuses on the private interference of a personal
property, such as land or crops.

For public nuisance, what a claimant must prove is special damage over and above the public. On the
otherhand, for a private nuisance action to succeed, the claimant does not need to prove any special
damage, so long as some form of damage, tangible or not, are experienced.

It should be noted that exemplary damage does not avail a public nuisance. Prescription is also a defence
which is available only with regards to private nuisance, and not for public nuisance. However, many
defences avail both public nuisance as well as private nuisance, such a defence of statutory authority.

With regards to prescription, a defendant may escape a liability in private nuisance through pleading a
prescriptive right to commit the nuisance if the nuisance have continued on for 20 years without
interruption. This is in contrast with public nuisance, where a defendant may nevertheless be held liable
despite the absence of objections.

An example of this defence of prescription can be seen in the case of Sturges v Bridgman (1879) LR 11 Ch D
852, where the defendant had operated a confectionary manufacturing business for more than 20 years
when the claimant built a new set of consulting rooms in his garden immediately adjacent to the building
which housed sweetmaking machinery. The court held that although the defence was available, it needs to
run 20 years from the date at which the nuisance began, and not which the reason for the nuisance began.
In this case, the date ran from the use of the rooms as a consulting rooms and not from the date of
operation of confection

Pure Economic Loss

“How And Why Does English Law At Present Make It Relatively Difficult To Claim Damages In Negligence For What It
Calls ‘Pure Economic Loss?”

‘Pure economic loss’ has been defined as a “worth incurred without any physical injury to any asset of the plaintiff.”

What Is “Pure Economic Loss?”

Pure economic loss is financial damage suffered as the result of the negligent act of another party which is not
accompanied by any physical damage to a person or property. Varying texts attempt to define pure economic loss
but it arises from negligence and furthermore, for losses which are “purely economic” are represented under the
Fatal Accidents Act 1976. For negligent misstatements, the classic authority for the recovery of economic loss in tort
is Hedley Byrne v Heller.

From reading several cases, the term ‘pure’ suggests that a loss must be untainted and self-representative, standing
apart from other losses such as personal injury. This is a form of loss suffered by a claimant that is not consequential
due to a result of physical damage to a person or property. Common categories of pure economic loss are
expenditure, loss of profit, profitability or loss of some other form of financial gain. It is therefore important to
determine whether a claim is in fact consequential or pure economic loss, as the latter is usually not recoverable in
law as damages. In a claim for personal injury following negligence of the defendant, the claimant may be unable to
resume work suffering a loss of earnings which is a usual head of damage. We can see that this is clearly a product of
personal injury thus representing consequential loss not pure economic loss. From previous readings, economic loss
is recoverable using the law of contract, and unless contractual terms or agreements have been breached, there
cannot be a claim for loss. Even so, there are other categories of torts known as ‘economic torts’ that act as a vehicle
of recovery for economic interests.

What Is Involved?

Negligence is an element of common law applied predominantly in tort cases to achieve compensation in monetary
forms for the harm done under the term “damages” for injuries incurred both physically and mentally. If a claimant
is able to prove that the defendant acted negligently to cause injury, then a claim for damages can be made to
compensate them for harm to their body, property, mental well-being, financial status, or intimate relationships.
The ‘pleural plaques’ case in the House of Lords: Johnston V NEI defines damages as it illustrates whether being
diagnosed with ‘pleural plaques’ was a true claim against Johnston’s previous employers in negligence. Lord Scott
refuted the claim stating that Johnston may develop a more serious asbestos-related condition and this cannot, by
itself, form the basis of a claim in negligence. It is clear therefore that in the absence of injury there is no warrant for
claim. However, since this judgement, the “aggregation theory” enabled claimants to recover final awards of
between £12,500 and £20,000, or provisional damages (leaving open the possibility of a further claims if claimants
developed an asbestos-related disease) of between £5,000 and £7,000. It is evident by looking at Lord Denning’s
case; Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd, that English law has had problems dealing with
cases of pure economic loss as restrictions imposed, particularly within tort and common law, suggest they are in
place for the fear unquantifiable claims.

There are four basic elements which make up the vehicle of negligence in Tort, these are, a duty of care owed by a
defendant, the breach of that duty, the causal relationship between the breach of duty and the damage suffered
and finally, damage to the claimant. It is important to note that not all issues will breach duty of care as English law
recognises certain categories where there is a direct obligation to adhere to this. English law does not accept a duty
of care for everyone, for all circumstances and for all forms of harm as this is too broad and I believe this would
expose the law to opportunists. In the leading case from 1932; Donoghue v Stevenson, the speech given by Lord
Atkin’s illustrates the “neighbour” principle, which was derived from the Christian principle of “loving your
neighbour” in Luke 10 where Lord Atkin’s states;

“. . . 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 that are called in question .
. .”

Lords Buckmaster and Tomlin opposed this theory of determining a duty of care as they believed it would welcome
an unprecedented amount of claims and further had concerns of how trade could operate efficiently if this was in
place. Considering both Lord Atkin and Buckmasters viewpoints, principally, I agree with Lord Atkin as his theory,
albeit in an idyllic world, would determine the parameters for a duty of care. However, in my opinion, with such
liability unevenly balanced, also supported by what I would call an evolving global “blame/claim culture”, it is not
unreasonable, supported by areas previously discussed, to conclude that this theory would encourage an
unquantifiable number of claims. Lord Buckmaster’s reference to the Versailles train crash in 1842 further supports
my statement that all those injured could file for claim from the manufacturer which in essence is absurd. It is
evident that there has to be limited liability, or ‘ring fenced’ liability in order to maintain control. This further
highlights the courts’ fear that a situation could become uncontrollable.
With this in mind, there was a clear need for a process to establish a duty of care and the 70’s saw the ‘Anns test’, a
simplified process illustrated by Lord Wilberforce in his case; Anns V Mertin LBC which suggested;

“. . If there is reasonable forseeability of harm to the plaintiff, there will be liability, unless there is some good
reason, grounded in policy, there should not be liability. . “

In my opinion, the principles of Anns test are too general, as defining the terms ‘reasonable’ and ‘there is some good
reason’ is subject to an individual’s appraisal. I believe that this would lead to inconsistencies and potentially
significant differences in judgement as the vague phrasing is dependent on its perception. The 80’s saw a
categorised reasoning system therefore Murphy v Brentwood DC overruled and superseded the decision Anns v
Merton London Borough Council.

The courts wanted to categorise different situations to reflect the appropriate duty of care to resolve ambiguities
which meant a defined relationship between the kind of harm and the degree of duty of care required which would
narrow Anns generalist approach. Various categories meant that the two requirements Lord Atkin suggested (the
forseeabilty of harm and the neighbourhood relationship, also referred to as proximity) held different weights of
duty of care which was favoured in one of the leading cases by Lord Bridge in Caparo Industries Plc V Dickman which
established the “three-fold test”. These principles required all three elements of the three stage test to be
considered in deciding whether a duty is owed or not. Even so, the focus will be on proximity with justice and
reasonableness as potential limiting factors. For cases involving negligent advice, the proximity test involves
considering knowledge of reliance and reasonableness of reliance.

Until the 60’s, economic loss was considered a separate entity outside of negligence which was illustrated by Lord
Denning’s dissent in Candler -v- Crane Christmas & Co. These principles were then followed by opposition from the
House of Lords as illustrated in Hedley Byrne & Co Ltd v Heller & Partners Ltd where it was held that pure economic
loss resulting from negligent misstatement was recoverable in theory but dependant on “special relationships
between parties”. With particular reference to Hedley Byrne & Co Ltd v Heller & Partners Ltd it is evident that the
courts could refine what is deemed recoverable for pure economic loss but their approach in my opinion resembles
a reluctance to implement their theories for the fear of a reprisal

Conclusion

I believe that the courts have not established and refined the parameters to claim for pure economic loss due to the
courts’ fear that if pure economic loss were actionable, there would be no reasonable limit to a defendant’s liability
and the courts would become overwhelmed with claims. The courts often describe this policy, as U.S. judge
Benjamin N. Cardozo famously described it as “a fear of an indeterminate number of claims by an indeterminate
number of parties in indeterminate amounts of money for an indeterminate amount of time”.

Unsurprisingly therefore, the courts may refer to this as the problem of ambiguity. I feel the key question that is
fuelling the courts’ fear is how far can tort liability expand without imposing excessive burdens upon individual
activity? The answer to this mirrors the concerns of Lords Buckmaster and Tomlin on the neighbour principle, and
until we define the parameters in which pure economic loss can be recovered, this is also indefinable. It is therefore
clear to me, that only time will tell, it would also seem that this decision brings a greater degree of certainty and
cohesion to an otherwise confused area of the law.

Bibliography

Articles / Books
Elliott, Catherine; Quinn, Frances (2007). Tort Law. Longman

Deakin, Simon; Angus Johnston; Basil Markesinis (2003). Markesinis and Deakin’s Tort Law. Oxford University Press

Lunney, M. & Oliphant, K. (2003). Tort Law: Text and Materials (2nd ed.). Oxford: Oxford University Press. p 341

Barber, J. (2009) “Tort in England & Wales”

Case Law Referenced

Attorney General (Ontario) v. Fatehi, [1984] 2 S.C.R. 536.

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465

Johnston v NEI International Combustion Ltd [2007] UKHL 39, [2008] AC 281

Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27

Donoghue v Stevenson [1932] AC 562

Anns v Merton London Borough Council [1978] AC 728 (HL).

Murphy v Brentwood DC [1991] 1 AC 398 (HL).

Caparo Industries plc v Dickman [1990] 2 AC 605

Candler -v- Crane Christmas & Co [1951] 2 KB 164; [1951]

ANALYSIS OF THE ‘RULE’ IN RYLANDS V FLETCHER (1868)

The case of Transco v Stockport 2003 is very important as it represents the most recent and arguably, only attempt,
to analyse the rule (“the Rule”) in Rylands v Fletcher (1868) LR 1 Exch 265 and consider its relevance to the modern
world. Indeed their Lordships considered whether the rule has any applicability in today’s world against the
backdrop of a decision by an Australian court to abolish the rule.

The House of Lords did bring the rule up to date by setting out some parameters so far as it could and being
contemplative in other respects. The problems arise when their Lordships espouse their reasonings and make some
obiter comments, as there is some confusion and disharmony in their respective judgments. It is important to note
that in this case, their Lordships, undertook a synopsis of the development and evolution of the Rule allowing them
to modernise and clarify its application. The Rule and its application have evolved in tandem with the changing
society.

Probably the basis of the Rule is that formulated by Blackburn J in Rylands v Fletcher when he said that “a person
who for his own purposes brings onto 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. …answerable for all damage which is the natural
consequence of its escape. The use of the land must amount to a non-natural use”. This original definition is very
wide and could open the floodgates but in the Transco case Lord Bingham said that the rule in Rylands v Fletcher is
engaged only where the defendant’s use is shown to be extraordinary and unusual. This reiterated Lord Moulton’s
view in Rickards v Lothian 1913 AC 820, ”It must be some special use bringing with it increased danger to others and
must not merely be the ordinary use of the land or such a use as is proper for the benefit of the community”. Lord
Bingham did disagree with Lord Moulton in one respect namely that “little help is gained (and unnecessary
confusion perhaps caused) by considering whether the use is proper for the general benefit of the community”. Lord
Walker and Lord Scott agreed with Lord Bingham’s observations in this respect. In addition to requiring a non-
natural use of land, Lord Bingham also requires that the thing, which was accumulated and escaped, was a
“dangerous or mischievous thing”. This additional criterion is then defined in terms of giving rise to an “exceptionally
high risk” of danger or mischief. Lord Bingham admits that the “dangerous or mischievous thing” cannot be viewed
in isolation from the “non-natural user”, but Lord Hoffman compresses the “exceptional risk element” into the
definition of “non-natural user”, and Lord Walker stated that “non-natural user” and “ dangerous substance” are
best understood if taken together. It does seem more sensible if these conditions are taken together as it assists in
separating the “ordinary” and “extraordinary” in terms of the risk factor posed to neighbours if the substance is not
contained.

Their lordships acknowledged that the question of what is a natural use of land or (the converse) a use creating an
increased risk must be judged by contemporary standards. It is thus not possible to create an exhaustive list of non-
natural users as this depends on the values accepted by society at any given time so this does not lead to any great
certainty as to whether the Rule might apply. As Lord Bingham said “has the defendant done something which he
recognises, or ought to recognise, as being quite out of the ordinary in the place and at the time when he does it”.
Lord Hoffman went on to say that liability can be imposed even if the defendant “could not reasonably have
foreseen there would be an escape”.

Lord Hoffman then extends his view to say that whether the claimant could reasonably be expected to have insured
against the damage was a determining factor in deciding whether the defendant’s use of the land was “non-
natural”. His opinion is beyond the pale and was lambasted as “unsound” by Lord Hobhouse. Every potential
claimant could not be expected to make an assessment as to potential neighbouring dangers that might escape onto
his land and damage his property and take out appropriate insurance cover. Where is the justice involved in
potential claimants paying the insurance premiums?

In Rylands v Fletcher, there is no indication whether the claimant needs to have a proprietary interest in the land
affected by the escape. The Transco decision confirmed that the remedy is for damage to land or interests in land
and the claimant must have a sufficient “property interest” in land (per Lord Bingham) which has been adversely
affected by an escape of a dangerous thing.

Shortly after Rylands v Fletcher, Blackburn J said that in the absence of negligence, damage caused by operations
authorised by statute is not compensatable unless the statute expressly so provides. In Geddis v Proprietors of Bann
Reservoir (1878) 3 App Cas 430 Blackburn J said “It is now thoroughly well established that no action will lie for
doing that which the legislature has authorised, if it be done without negligence, although it does occasion damage
to anyone”. It was acknowledged that the application of the rule in Rylands v Fletcher did not apply to works
constructed or conducted under statutory authority. In Transco it was confirmed that the Rule does not apply to
works or enterprises authorised by statute. They concluded that the Rule would have no application to very high-risk
activities since most hazardous activities (particularly those controlling the environment) are regulated by statute
which lays down the incidences and scope of liability thus making it imperative for insurance to be taken out to
cover the loss or damage.

When first laid down, it was said that the Rule imposed strict liability, but in fact the rule is not particularly strict
because it excludes liability when the escape is for the most common of reasons, namely vandalism (third party), or
unusual natural events (acts of God). However perhaps this is a reflection of our times that there is a greater
preponderance of acts of vandalism. In Transco, Lord Hobhouse attempted to state the position, “It is…the creation
of a recognisable risk to other landowners…. But once such a risk has been established, the liability for the
foreseeable consequences or failure to control and confine is strict”. This has not clarified the issue of “fault”
although Lord Hobhouse’s statement does seem to imply that the occupier should be aware of the consequences of
the failure to contain the “risk” and this may encourage him to cover the risk through insurance. It is clear that
defendant will only be liable for the foreseeable consequences and this is similar to the remedy in the tort of
nuisance in which the Rule has its roots although their lordships agreed that the Rule is a form of tort liability and
does not depend an any duty involved by one person to another.

In Transco the judges decided unanimously that the supply of water for domestic purposes in large pipes, which
were not maintained at high pressure, was outside the scope of the Rule, as this did not amount to a non-natural
use of land.

It could be argued that the Rule is being preserved for nostalgic rather than any practical reasons. However, it is not
the case that the Rule should be deemed obsolete because it has been rarely used in recent times, but rather there
should be an acknowledgement that it is not as relevant to modern society as it was in the nineteenth century. It is
difficult to create a new list of events or circumstances in which Rylands v Fletcher will be invoked, but it is likely that
the circumstances when it could be invoked are dwindling. The tendency for modern society is to regulate the way
in which people undertake activities and EU legislation is also prevalent in setting down strict statutory regulations,
which of course oust the Rule in Rylands v Fletcher. In addition, there is a greater tendency for people to take out
insurance against unlikely but foreseeable events and this of course renders the Rule almost impotent, as any claim
will be dealt with by the respective parties’ insurers. However just because the Rule has only been relied upon once
since the second world war, does not mean that it should be consigned to the history books. Domestic and EU
legislation cannot be held to encapsulate every possible scenario under which the Rule might be invoked.

In the Transco case, Lord Bingham commented obiter “…that the claim cannot include a claim for death or personal
injury, since such claim does not relate to any right in or enjoyment of land”. As the Rule is limited to damage to
physical property, then any case involving damage to personal property or personal injury or death will still have to
rely on the law of negligence unless any statute sets out the remedies and of course the Rule is not applicable. The
implicit assertion by a number of their lordships that when contemplating overruling a rule of law we should ask
whether the Rule imposes liability in cases where it would not otherwise exist” seems misguided. Their concern that
the Rule might allow for more compensation than provided for elsewhere is not a consideration when creating a
rule of law so it does not seem a credible argument for abandoning a rule. However, sentimentality apart, the Rule
probably is worth preserving for those isolated, local or individual cases that are not regulated by statute. Its
applicability may be curtailed but it remains a useful concept in common law which could still have some relevance
for albeit rare cases where statute does not have a regulatory part to play in issues of environmental protection.

THEORETICALLY CONSENT IS AVAILABLE TO MURDER

Theoretically consent is available to murder and all non-fatal offences against the person. However in actuality,
consent could not be used for anything more than assault and battery. Essential questions of morality and ethics are
raised by the degree to which the state be supposed to employ criminal sanctions to restrict a sane adult in his/her
consent to the infliction of harm on his/her person. On the basis of public policy, English Law confines the legitimacy
of consent by reference to the level of harm and the circumstances in which it is inflicted.  [1] It is in respect of the
deliberate infliction of physical harm that the law has encountered difficulties in determining where the line should
be drawn to mark the limits of personal autonomy. The matter is complicated further by questions as to what
constitutes informed consent, and whether the law does and should distinguish between consent to inevitable
physical harm and consent to the risk of harm. [2] The law strives to achieve a balance between personal autonomy;
i.e. the right of individuals to control what happens to them, and prevention of harm (to individuals and to
society). [3] Factual consent to actual bodily harm or more serious levels of harm; i.e. wounding, serious harm,
death, is not lawfully accepted unless the activity concerned is one which the courts or Parliament have recognised
to be in the public interest. [4] The Law Commission propose raising the level of harm to which a person is entitled
to consent in general circumstances to harm falling below a new concept of ‘serious disabling injury’.

The Court of Appeal stated in the case of Attorney-General’s Reference (No. 6 of 1980) [5] , that ‘It is not in the
public interest that people should try to cause or should cause each other actual bodily harm for no good reason.
Minor struggles are another matter. So…it is immaterial whether the act occurs in private or in public; it is an assault
if actual bodily harm is intended and/or caused. This means that most fights will be unlawful regardless of consent.’
The question raised is not just whether the victim consented but also whether there was nothing contrary to the
public interest in what the defendant did. The expression ‘no good reason’ can be said to be vague and unhelpful.
Reasonable people may differ in their opinion as to whether one type of behaviour, for example tattooing, can be
seen as good or not. In the case of R v Brown [6] , It can be assumed that the majority apparently started from the
proposition that all harm was criminal unless there was a good reason, whereas the minority preceded from the
basis that harm to which the victim consented was lawful unless there was a good reason from punishing the
accused. [7]

Even though the language utilized in the cases mentioned above cases mirrors this restrictive approach, the general
pattern of immunity reflects a more libertarian emphasis. Harmful activities as difficult to justify as tattooing,
circumcision, boxing and dangerous horseplay are all considered lawful, while it would be an unusual claim to persist
that such activities were needed ‘in the public interest’. It is probably more accurate to say that positive public policy
reasons in favour of the activity are necessary only in the case of intentional harms. [8]

The law does not prohibit all force on the person, but only the unlawful use of force. For example parents may
punish their children moderately. The law is bases on reasonableness, yet it may well not reflect public opinion. In
the Case of R v Donovan [9] , Swift J stated that with some exceptions: ‘It is an unlawful act to beat another person
with such a degree of force that the infliction of bodily harm is a probable consequence and when such an act is
proved, consent is immaterial.’ In this case the defendants canning of the victim with her consent for their mutual
sexual enjoyment rendered him liable under section 47 of the Offences Against the Person Act 1861. [10]

The basic rule stated by Lord Lane CJ in Attorney-General’s Reference (No. 6 of 1980) [11] , where the victim
suffered actual bodily harm in the form of a bloody nose: the accused is guilty of a crime even though the victim has
consented ‘if actual bodily harm is intended and/or caused’. This principle was approved by the House of Lords in
the Landmark case of R v Brown [12] . It should be noted that Lord Lane CJ’s proposition covered a situation where
the accused does not intend and is not reckless as to occasioning actual bodily harm. It is sufficient that such harm
occurs. The use of ‘and/or’ is a strange one. It correct, it means that an accused will not be able to rely on the
victim’s consent if he intends actual bodily harm but such injury does not happen. Therefore, it can be stated that in
principle, consent is a defence to assault and battery, as indeed the House of Lords held in R v Brown [13] and,
therefore, if no actual bodily harm is occasioned, the accused should not be guilty of assault occasioning actual
bodily harm. Intending an offence is not the same as committing an offence. [14]

If the accused lacked the mens rea for the offence, he is not guilty even though the victim has consented in fact to
behaviour she could not in law consent to. This can be seen through the case of R v Slingsby  [15] , where the
accused was not guilty of constructive manslaughter because he gave no thought to any risk of injury when he
penetrated the victim’s anus and vagina with his and his ring cut her. He had no mens rea for the offence of
wounding on which the charge was based. Therefore, he was not guilty of manslaughter. In this case the issue of
consent was irrelevant. [16] Therefore, a fair assumption would be that if there was not mens rea present then
consent would be irrelevant as a defence.

In the case of Attorney-General’s Reference (No. 6 of 1980) [17] , Lord Lane CJ proposed that the exceptional
categories where bodily harm could be consented to were all categories where the activity concerned was of social
benefit and consequently advantageous to the public interest. [18]

Harmful activities as difficult to justify as tattooing, circumcision, boxing and dangerous horseplay are all deemed
lawful although it would be an unusual claim to insist that such activities were needed ‘in the public interest’. It is
probably more accurate to say that positive public policy reasons in favour or the activity are necessary only in the
case of intentional harms.

The law commission proposed that if a seriously disabling injury resulted, consent should be invalid on the ground
that the victim had not truly consented to it because such harm is contrary to his interests. A major criticism of this
proposal is that the level of harm to which the ‘victim’ can consent is high. A seriously disabling injury is not minor
harm. No account is to be taken of whether the injury was remediable by surgery or not. Consent to lesser injuries
would be allowed provided that it was valid and was consent to the type of injury caused. [19]

The Mode Penal Code view is that consent of the victim negates the crime if the consent “precludes the infliction of
the harm or evil sought to be prevented by the law defining the offense.”(M.P.C & 2.11(1)). More particularly, the
Code provides that where a crime involves threatened or actual bodily harm, consent is a defence it the bodily harm
is not serious or part of a lawful athletic contest or competitive sport. [20]

In Brown, sadomasochists who had engaged in consensual beatings and genital torture which had not resulted in
any participant receiving medical attention were convicted of offences of assault occasioning actual bodily harm. The
House of Lords, by a majority of 3 to 2 upheld the convictions. By doing so the House of Lords recognised certain
categories of activity in which the law would recognise effective factual consent to injury as valid in law.  [21] These
include surgery, sports, horseplay, body modification, religious flagellation and the risk of sexually transmitted
diseases.

The case of Brown was considered by the European Court of Human Rights in Laskey v United Kingdom, [22] with
the Court unanimously holding that the prosecution, conviction and sentence did not contravene Article 8 of the
Convention. The Court doubted whether the activities even fell within the protection of Article 8. On the assumption
that they did, the Court concluded that the prosecution was necessary and proportionate to the legitimate aim of
the protection of health and possibly also the protection of morals. The Court recognised that the margin of
appreciation provided national courts the scope to prescribe the level of physical harm to which the law should
permit an adult to consent. [23]

DEFAMATION IS THE PUBLICATION OF A STATEMENT

Defamation also called calumny, vilification, slander and libel is the communication of a statement that makes a
claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government,
or nation a negative image.
Defamation is the publication of a statement which refers on a person’s reputation and tends to lower him in the
estimation of right-thinking members of society generally or tends to make then shun or avoid him. [1]

The tort of defamation protects a person’s interest in his reputation. If the defendant had made an untrue
statement, or what amounts to a statement, which is defamatory of the plaintiff, the plaintiff has a right of action
against him unless the defendant can establish one of the special defenses available to an action for defamation.
Since the tort of defamation protects the plaintiff’s reputation, and since reputation depends on what other people
think of the plaintiff, the publication of the statement by the defendant to persons other than the plaintiff himself is
an essential part of the tort –the purpose of the tort is not to protect the injured the feelings of the plaintiff. The tort
goes beyond protecting their mere personal reputation of the plaintiff and extends to the protection of the
reputation of his commercial and business undertakings.

The rules of the tort represent an attempt to strike a balance between two important and often competing interests,
the public interest in freedom of speech and the private interest in marinating one’s reputation. The difficulty of
achieving this balance is perhaps indicated by the fact that, though liability for a defamatory statement is strict and
substantial damages might be recovered from the one making the defamatory statement, a large variety of defenses
exist for the one who makes such a statement.

Regardless of whether a defamation action is framed in libel or slander, the claimant must always prove that the
words, pictures, gestures, etc are defamatory. Secondly, the claimant must show that they refer to him and finally,
that they were maliciously published. These are the three essentials elements in a defamation action.

There are 2 types of defamation: libel which is generally in a written format and Slander which is in an Oral format.
Different rules are applicable to each. There is no tort unless there has been a communication of the defamatory
matter to a third party

Slander

“… slander … may be divided into five classes, as follows:

(1.) Words falsely spoken of a person which impute to the party the commission of some criminal offence involving
moral turpitude, for which the party, if the charge is true, may be indicted and punished.

(2.) Words falsely spoken of a person which impute that the party is infected with some contagious disease, where,
if the charge is true, it would exclude the party from society;

(3.) Defamatory words falsely spoken of a person, which impute to the party unfitness to perform the duties of an
office or employment of profit, or the want of integrity in the discharge of the duties of such an office or
employment.

(4.) Defamatory words falsely spoken of a party which prejudice such party in his or her profession or trade.

(5.) Defamatory words falsely spoken of a person, which, though not in themselves actionable, occasion the party
special damage.

“Certain words, all admit, are in themselves actionable, because the natural consequence of what they impute to
the party is damage, as if they import a charge that the party has been guilty of a criminal offence involving moral
turpitude, or that the party is infected with a contagious distemper, or if they are prejudicial in a pecuniary sense to
a person in office or to a person engaged as a livelihood in a profession or trade; but in all other cases the party who
brings an action for words must show the damage he or she has suffered by the false speaking of the other
party.” [2]

The classic definition of defamation is ‘which is calculated to injure the reputation of another, by exposing him to
hatred, contempt or ridicule’ [3]

Libel

In order to found an action for libel, it must b proved that the statement complained of is

False

In writing

Defamatory

Published

Falsity of the statement

The falsity of the charge must be presumed in the plaintiff’s favor [4] .the burden of proof that the words are false
doesn’t lie on the plaintiff. Defamation of a person is held False until it is proved to b true. And if a person has stated
that which is false and defamatory, malice is also assumed. But however, the plaintiff alleges in his plaint that the
statements made are false and malicious, the motive of the defendant is not material in determining the damages.
The motive of the defendant is totally irrelevant.

Nature of Libel

Defamatory statements maybe in written, printed or in the form of a caricature.

eg. a scandalous picture [5]

Princess Irina of Russia, the wife of prince Youssoupoff , claimed damages for libel in a feature film entitles “Rasputin
the mad monk”, alleging that the MGM [6] , had published pictures and words in the film which were understood to
mean that she there in called “Princess Natasha” had been raped and/or seduced by Rasputin. The jury ruled in
favor of the princess and awarded her £25,000 damages. The trial court rendered this judgment and this was
confirmed by the Court of appeal.

Under the defamation act of 1952, the broadcasting of any words by means of wireless telegraphy i.e. radio and
television is treated as publication in permanent form. Similarly,

The Theatre’s act of 1968(UK), theatrical performances are treated as publication in permanent form i.e. libel.

When is it considered as defamatory?

Any word will be deemed defamatory which

Exposes the plaintiff to hatred, contempt or ridicule;

Tends to injure him in his profession or trade

Causes him to be shunned or avoided by people

Publishing of the material

The test is whether the words would “tend to lower the plaintiff in the estimation of the right thinking members of
the society” [7] . In applying this test, the statement complained of has to be read as a whole and the words used in
it are to be given their natural and usual meanings which maybe understood by common men [8] . The ordinary man
must not try to read it again and again to derive its meaning. The lawyer’s rule states that “in an implication much
more freely and unfortunately, as the law of defamation has to take into account, is especially prone to do so when
it is derogatory” [9]

If the defamatory statement consists of an article with a headline and photograph, the whole article including the
photograph must be taken together and considered whether in its natural and ordinary meaning which may be
ascribed to it by ordinary men it is defamatory of the plaintiff. [10]

Distinction Between libel and Slander

The fundamental distinction was between written words, which were libel and spoken words, which were slander.
Nowadays the general test for libel is whether the publication is in a PERMENANT form, other cases being slander.

In common law, libel is a criminal offence as well as a civil wrong, but a slander is a civil wrong only. But, as per
Indian law, both libel and slander are criminal offences [11]

A libel is of itself an infringement of a right and no actual damage needs to be proved in order to sustain such an
action. In common law, slander is actionable only when special damages can be proved to have been its natural
consequence, or when it conveys certain imputations. An action maybe maintained for defamatory words reduced
to writing, which would not have been actionable if merely spoken [12]

Defamatory statements

In an action for defamation, the plaintiff must show that the defamatory statement refers to him. It is not necessary
for this purpose the plaintiff should have been described by his own name. It is sufficient if the has described him by
his initials or even by a fictitious name, provided he can satisfy the court that he was the person referred to.  [13] It is
immaterial whether the defendant intended the defamatory statement made to apply to the plaintiff or knew of the
plaintiff’s existence, if the statement might be understood by anyone who knew the plaintiff.

“a person charged with libel can not defend himself by showing that his intentions were not to defame or insult the
plaintiff, in fact when he did both “ [14]

In E.Hulton & co. v. Jones [15] an article was published by the defendants in their newspaper the Sunday chronicle
by their Paris correspondents describing a motor festival at Dieppe in which a reference was made to a church
warden Artemus Jones. It was stated that he was having a happy time with a woman who was not his wife. The
plaintiff who was a barrister was baptized as Thomas Jones but did not live at peckham and had not been to the
Dieppe festival. The plaintiff accepted that the writer of the article and the editor of the paper knew nothing of him
and did not intend the article to refer to him.

The court/jury still awarded the plaintiff damages as the court stated that “it is not even necessary that the plaintiff
should have been named at all nor should the statement have a pointer which states that it refers to the plaintiff”

Although a statement is not explicitly defamatory, the next statement can not be use to show the former as
defamatory, but if the first statement is defamatory, the second statement maybe used to strengthen the case.
When the statement doesn’t expressly relate to the plaintiff, extrinsic evidence can be used to show that the
persons knowing the plaintiff understood the statement to relate to him [16]

Defamation of deceased persons

It is not a tort to defame deceased persons. The law implicitly states that the plaintiff himself must prove that the
statements made were referred to him. Moreover, the action doesn’t survive for the plaintiff’s estate on his death.
But if the defamatory statement affects the family of the deceased also, the family can sue on behalf of the
deceased. The person defaming the deceased maybe be criminally prosecuted if the statements he made injured the
reputation of the person If living or his family or his close relatives. [17]

Defamation of a Class of People

It may amount to defamation to make an imputation concerning the members of a definite body of persons e.g. a
team of players. If a defamatory statement is made against a class of people, one of them could bring about the suit
provided he can prove that the defamation was aimed against him.

E.g. if a person makes a statement”all students are frauds”. No particular student can sue unless there is something
pointing to that particular student.

As stated by Lord Atkin, : “the only rule is that in order to be actionable, the defamatory words must be published
and concerning the plaintiff. It is irrelevant if the publication is about two or more people if it is proved to be
published of him”

Defenses for defamation under common law

Justification by truth

The truth of defamatory words is a complete defense to an action of libel or slander though it is not so in a criminal
trial [18] . Truth is the answer to the suit filed against him but its over rules possibilities of malice in the statement
and it doesn’t entitle the plaintiff to get damages. For the law does not permit a man to get damages for an injury to
character which he does not possess. It wouldn’t make a difference to the law if the defamatory statement was
made without the knowledge of it being true, then later its was found to b true, it would still be an absolute
defense, if the matter was true, the purpose or method of publication holds no value in front of the law.

It is not necessary to prove the truth in every bit of the statement made. The gist of the statement must contain the
truth. Thus, the statement might not be fully accurate but substantially true. But if there is a gross exaggeration, the
defense of Justification by truth will fail .and also if the statement made was false, the justification of the defendant
that he honestly and on reasonable grounds believed it to b true will not qualify to use this defense.

Fair and Bona fide comment

A Fair and Bona fide comment for public interest is not considered as a libel.  [19] Thus, valid criticisms are not
defamatory statements. If the plaintiff suffers a loss, it would come under Damnum sine injuria. This involves all
matters of public interest.

Some examples of public interest are

1. Administration of justice

2. Public institutions
3. Local authorities

4. Acts of ministers

5. Affairs of the state

Etc……

For the defense of a fair comment on the matter of public interest, the matter must be

in which the general public have a legitimate interest

matters which are related to public broadcast

Privilege

Privilege means that “the person stands in such relation to the facts of a case that he is justified in saying or writing
what would be slanderous or libelous in any one else” [20]

Privilage is of 2 kinds

Absolute Privilege

Qualified Privilege

Absolute privilege

A statement is said to be absolutely privileged when no action lies even if the statement is made by malice or is false
and defamatory.

There are 4 main categories for absolute privileges

Parliamentary proceedings

Judicial proceedings

Military and naval proceedings

State proceedings

Parliamentary proceedings

The statements made by the house or its members might be untrue to their knowledge couldn’t be made the
foundation of a civil or criminal proceedings, however injurious they might b to the third party. This privilege doesn’t
extend to anything outside the walls of the house or to speeches or materials circulated outside the walls of the
house.

Judicial proceedings

No action of libel or slander lies whether the judges, counsel, witness, or parties, for word written or spoken In the
course of proceedings, before any court recognized by the law. This includes words written or spoken, maliciously or
with a wicked mind.

Judges-whatever act is done by a judge while acting in his judicial powers is absolutely protected.
Coroner- A coroner deposing in front of a jury is not liable to the words falsely or maliciously spoken during his
address to the jury

Advocate-no action lies against an advocate for defamatory words used during the course of an enquiry in front of a
judicial tribunal

Counsel- the counsel’s words are absolutely privileged

The madras High court has laid down that an advocate cannot be proceeded against civilly or criminally for words
uttered as an advocate in his office [21]

Solicitors/ parties/ witnesses/ investigators/ judge/ jurors are also completely free form any defamatory charges
against any statement made by them (even maliciously) during the course of their employment.

Military and naval proceedings

Proceedings of a military or naval tribunal are absolutely privileged. Statements made in front of a military court of
enquiry by a military man is protected and classified.

State proceedings

For reasons of public policy, absolute protection is given to every state related communication. Be it between
ministers or the officers of the state.

Other defenses

Consent

It is a defense that the plaintiff has expressly or impliedly consented to the publication confirmed of where. [22]

Apology

Where there is an apology, and an acceptance of thereof, the defendant can resist the plaintiff’s suit for damages for
defamation.

Qualified Privilege:

A statement is said to have a qualified privilege when no action lies for it even though it is false and defamatory,
unless the plaintiff proves express malice..

Remedies for Defamation

As to the remedies for defamation a suit for damages maybe brought. The publication of defamatory material may
be restrained by injunction either under S.38 or 39 of the specific Relief Act 1963

Damages for defamation

Damages recoverable for a suit against libel and slander will depend of the nature and gravity of the defamation that
has been caused to the plaintiff. It also depends on the extent of circulation of the defamatory material, the position
in life of the parties and the nature/ situations of the case

Mitigation of damages
It is permissible for a defendant to seek to mitigate damages by providing any of the following defenses.

Evidence falling short of justification

Absence of malice

Apology at the earliest opportunity

Provocation by the plaintiff

Bad reputation of the plaintiff

Injunction

An injunction can be issued by the court ad it as the jurisdiction to interfere to restrain the publication of the libel
the jurisdictional authority will not be used by the court unless it is proved that the statements complained about is
totally untrue.

Joint action

A joint action for slander cannot be brought about jointly against several defendants; separate action needs to b
taken against all of them. In the case of verbal slander, each person will be liable only for what he/she said. But an
action for slander maybe bought jointly against many defendants where the words spoken aren’t actionable per se.