ASSAULT

Assault is a voluntary and intentional act (Letang v. Cooper, 1965) that causes someone
reasonable apprehension (Allen v. Hannaford, 1926) of infliction of imminent physical bodily
contact.
Assault may also be committed simply by words, devoid of gestures, inasmuch as “A thing
said is also a thing done” (R v. Ireland, 1997).
Threatening words in P’s presence or on telephone: Barton v. Armstrong, 1969
Conditional threat: A conditional threat can be deemed an assault if it puts a person under
reasonable apprehension that immediate force may be used (Tuberville v. Savage, 1669).
Furthermore, there is no legal basis for the defendant to have threatened the plaintiff with the
conditions (Rosza v. Samuel, 1969).

Letang v Cooper, 1965

Stubbings v Webb (1993)
Actionable per se; Stephen v Myers, (1830)
D’s interference was direct; Scott v Shepherd (1773) (the lighted squib case)
Using foul language could constitute assault • Barton v Armstrong [1964] Plaintiff was
coerced into executing (signing) a deed (contract); to telephone a person in early hours of the
morning• R v Ireland (1997)
Assault – Conditional Threat; Police v Greaves (1964) “If you don’t leave I will kill you”
Tuberville v Savage [1669]; “If it were not assize-time, I would not take such language from
you”. Not an assault as it was assize time.
Intention to actually carry out the threat is not necessary, only the intention to 'make' the
threat. Rixon v Star City Casino (2001)
Allen v Hannaford ( 1926) Held that it constitutes an assault to point a pistol at another
threatening to shoot, even though such person may not know whether it is loaded or not.
Beach v. Hancock, 27 N. H. 223
Birbal Khalifa vs. Emperor (1902)
BATTERY
The tort of battery consists of a positive (Innes v. Wylie, 1844) and intentional (Letang v.
Cooper, 1965) act involving application of force on a person without any lawful justification
(Collins v. Wilcock, 1984) or consent.
In battery, mistake of fact occurs when the defendant intending to strike plaintiff, hits a third
party by mistake. Such an infliction of force refers to transferred intent (Livingstone v.
Ministry of Defence, 1984)

Wilson v Pringle (1987) held that if there were no hostility, there would be no battery (mere
horseplay)
Collins v Wilcock (1984) shows that it is not necessary to prove hostility (no lawful
justification for physical contact would be battery).
Positive Act of the Defendant Consciously voluntarily brought physical contact.
Innes v. Wylie (1884)
Fagan v. Metropolitan Police Commissioner (1969)
Direct Contact; Scott v Shepherd
Battery and consent; Medical Procedures and battery: • Murray v McMurchy (1949) •
Marion’s Case (1992) 14 year old girl, severe intellectual handicap, family applied to court
for order to sterilize her.
Battery: mistake of fact; where A intending to strike B hits C by mistake, A is still liable to
C on the fiction of transferred intent: • Livingstone v Ministry of Defence (1984)
Defences to Assault and Battery:
Consent; it must be an informed consent; • the person must give it voluntarily; • consent
must be genuine
• Superior lawful authority; Police officers • Citizens • Parents? • Teachers?
• Self-defence; It must be necessary to use defensive force. • The force used by the defendant
must be proportionate to the threat that he/she faced.
• Necessity; Actual situation of imminent danger OR what seems to be so to a reasonable
person AND 2. The action taken must be reasonably necessary
• Involuntariness and duress;
• Mistake (under some circumstances);
• The use of force or threats to recover property.
Is Infancy a Defence; Smith v Leurs [1944] • McHale v Watson (1964)
False Imprisonment
The defendant commits false imprisonment where he directly (Dickinson v. Waters
Ltd.,1931), intentionally (Letang v. Cooper,1965) and voluntarily causes total restraint of the
plaintiff’s liberty or movement, however short the time period be (Mee v. Cruishank, 1902),
without any lawful justification (Bird v. Jones).
It is actionable without knowledge (Meering v. Grahame White Aviation Co., 1919).

False Imprisonment and ‘directness’;

Dickenson v Waters Ltd (1931)
Garikipati v. Araza Biksham, 1978.
Causing false imprisonment by actions or words; Harnett v Bond
The restraint must be ‘total’; Bird v Jones (1845)
Reasonable means of escape • Plaintiff cannot be said to be totally restrained if there exists
reasonable means of escape exist for Plaintiff: • Robinson v Balmain New Ferry Co Ltd
(1910).
D can hold P to contractual conditions and refuse to assist him in breach of his contractual
obligations and escape if it is reasonable to do so in the circumstances • Sometimes it may be
reasonable to hold Plaintiff to the conditions he has accepted:
Herd v Weardale Steel, Coal and Coke Co Ltd (1915);
Robinson v Balmain New Ferry Co Ltd (1910).
Use of force & knowledge of imprisonment; neither the use of force nor any direct physical
contact is necessary to make Defendant liable;
Meering v Grahame-White Aviation Co (1999)
Murry v Ministry of Defence.
Justification as a defence; Justification is a defence to an action in trespass to the person,
including false imprisonment.
R v Governor of Brockhill Prison, ex parte Evans (No 2) (2000)
• John Lewis & Co. v Tims.
Damages; high-handed aggressive and oppressive conduct
William Alan Terrence Crawley v Attorney General
Intentional Infliction of Emotional Harm
An intentional (Bunyon v. Jordan, 1937) act or statement of the defendant, which indirectly
causes physical harm, nervous shock (Wilkinson v. Downtown, 1897) or any other
recognised psychiatric injury to plaintiff, covers the tort of infliction of emotional distress.

This tort was created by the case of Wilkinson v Downton (1897). A false statement by
Defendant to Plaintiff that her husband had been seriously injured had a dramatic effect on
Plaintiff. • Plaintiff’s hair turned white and she became so ill that for some time her life was
in danger. • The court awarded her £ 100 for nervous shock.
• Like trespass to the person it is also an intentional tort.
Janvier v Sweeney (1919) • Defendant falsely accusing Plaintiff of being a spy resulting in
severe illness of Plaintiff.
Bunyon v Jordan (1937) Plaintiff was aware that Defendant kept a gun in his office. • Shortly
after, Defendant fired the gun, which Plaintiff heard. • Plaintiff suffered psychological illness
due to shock.
Aggressive behaviour and conduct; Wong Kwai Fun v Li Fung (1994) • Aggressive
behaviour and conduct by Defendant, driving Plaintiff to attempt to commit suicide twice.
Defendant is also liable where the offending statement comes to Plaintiff’s knowledge from
another source, provided Plaintiff proves that Defendant intended and knew that the
information would be passed to Plaintiff.
Does the statement need to be false; the test is not whether the statement is true or false but
whether Defendant’s statement was calculated to cause injury to Plaintiff.
Trespass to Chattels, Bailment, Conversion & Detinue
TRESPASS TO CHATTELS:
Trespass to chattel refers to the direct (Hutchins v. Maugham, 1947) and voluntary
intentional interference with the chattel including personal, in the actual possession (Johnson
v. Deprose, 1893) of the plaintiff (The Hongkong and Shanghai Banking Corp. v. Chan Yiu
Wan & Anor, 1988 [Check]) without lawful justification.
Actionable per se: Kirk v. Gregory, 1876

Requirements to bring action in trespass to chattels: (1) Direct; and (2) intentional
interference.
The term includes: • industrial growing crops, and things attached to or forming part of the
land which are agreed to be severed before sale or under the contract of sale; • automobiles,
animals, clothes, jewellery, websites (in US seen as chattel, as they are product of ones labour
and hard- work, propriety rights).
Plaintiff’s actual possession must be directly interfered with.
Rare coins and coins of antiquity, rare notes The Hong Kong and Shanghai Banking Corp
v Chan Yiu Wah & Anor (1988).
Human body parts and tissues:
Moore v Regents of the University of California (1990); Yearworth v North Bristol NHS
Trust [2009]
Corpse, which has undergone a process or application of human skill
R v Kelly (1999); Doodeward v Spence (1908).
P must have effective control of the chattel but it is not necessary that he should have
immediate physical control. • Possession needs both the power and intention to exercise
physical control. The bailor, principal or employer will have constructive possession of
goods held by their Bailee-at-will, agent or employee.
Possession of the Chattel • Whether P is the owner of the goods may not be relevant – we
are concerned about possession in trespass to chattels. Johnson v Diprose [1983]).

Bailment
An act of delivering goods to a Bailee for a particular purpose, without transfer of ownership.
The giver is the bailor, the keeper is Bailee, and the relationship is one of bailment. (Manders
v Williams (1849)
Direct Interference; Hutchins v Maughan [1947]
Actionable Per Se; Kirk v Gregory (1876)
Defendant’s Conduct Intentional; Wilson v Lombank Ltd [1963], National Coal Board v JE
Evan [1951]
Trespass vs. Conversion; Trespass consists in damaging or meddling with the chattel of
another without intending to exercise adverse possession over it. Conversion is a breach,
made adversely, in the continuity of the owner’s dominion over the chattel, though it may not
hurt it. • In trespass, the gist of the action is the force and direct injury inflicted, in conversion
it is the deprivation of use.
Fouldes v Willoughby (1841) P embarked on Defendant’s ferryboat with two horses and
paid for their passage. Defendant’s act in taking the horses was wrongful and actionable as a
trespass, but in the absence of evidence of any intention on the part of Defendant to assert any
right or dominion over Plaintiff’s property, there was no conversion.

Conversion
Conversion is the intentional and voluntary act of dealing with goods in a repugnant manner,
which are inconsistent with the right to immediate possession of another person (Penfolds v.
Wines, 1946).
Conversion does not require knowledge and an innocent mistake cannot be pleaded as a
defense (Poggi v. Scott, 1914).

Poggi v. Scott (1914) • Conversion does not require knowledge. • Innocent mistake is not a
defense.
Penfolds Wines v Elliot (1946)

When an act of conversion may be committed

1. When property is wrongfully taken; Hilbery v Hatton (1864)
2. When it is wrongfully parted with. If someone hands over goods to another so as to give
him some right over the property it amounts to conversion. • For example: • Mis-delivery by
a carrier will amount to conversion.
3. When it is wrongfully sold. If sold (and not delivered in market overt) the property passes
to the purchaser by sale. This is equivalent to physical destruction as the owner is deprived of
its use.
Consolidated Co v Curtis & Son (1892)
Parker v British Airways Board [1982]
4. When it is wrongfully retained. ; Plaintiff must prove that: • Defendant has the goods in
his possession; and • Defendant refused to return those goods when Plaintiff demanded.
Armory v Delamirie [1722]
M.S. Chokkaligam v. State of Karnataka (1991)
5. When it is wrongfully destroyed. Every wilful and wrongful destruction or damage of a
chattel that deprives its owner of its use in its original state will amount to a conversion. • For
example: • Taking wine from a cask and filling it with water.
• Richardson v Atkinson (1723)
6. When there is a denial of the lawful owner’s right.
Motor Dealers Credit Corp v Overland Ltd (1931).

Detinue
The unjustified detention of a chattel that defies a person to his right to immediate possession
refers to detinue. In conversion, Defendant wrongfully disposes Plaintiff’s chattels whereas in
detinue there is simply the detention of a chattel.

The unjustifiable detention of a chattel in defiance of P is right to immediate possession.

Detinue enables Plaintiff to demand a proprietary remedy, i.e. to demand a specific restitution
of the chattel itself.
Advantages of suing in detinue; Plaintiff can get his chattel back (specific restitution /
injunction to return the chattel) • When value of chattel has appreciated since date of the
wrong e.g., where Defendant has done some work on the chattel.
Trespass to Land
An intentional (Gregor v. Piper, 1829) or negligent act directly causing interference (Jones v.
Llanwrst, 1911) with the land of another be it ever so minute (Entick v. Carrington, 1765), is
trespass to land.
If a person goes beyond the purpose of entry moving outside the circumscribed premises
(Perera v. Vandiyar, 1953) or crossing the boundary where he has the authority to go,
amounts to trespass.
Justification to enter premise: Madhav Vithal Kudwa v. Madhavdas Vallabhdas, 1979
Trespass Ab Initio: Refers to a continuing offence after a person enters a certain premise
under the authority of some law and subsequently abuses that authority by committing some
wrongful act, he or she will be considered trespass ab initio to that property.
However, where a person enters a certain premise with authority or license for that property,
alone non-feasance, that is, omission is not sufficient for trespass ab initio. There is a
deliberate need for the presence of misfeasance, that is, a wrongful act (Six Carpenters Case,
1610)

Entick v. Carrington (1765)

The action for trespass is available whenever there has been a direct interference with land.
Going beyond the purpose for which a person has entered a premises or crossing the
boundary where he/she has the authority to go may also amount to trespass.
Trespass ab initio ; Six Carpenters’ Case (1610)When a person enters certain premises
under the authority of some law and after having entered there, abuses that authority by
committing some wrongful act there, he will be considered to be a trespasser ab initio to the
property.
Distinguish between nonfeasance (omission) and misfeasance (act).
Direct interference ; Esso Petroleum v. Southport Corporation [1956] action of the wind and
wave, with no certainty, so far as appears, how, when or under what conditions it might come
to shore”. Jones v. Llanrwst UDC [1911]
Mistaken or negligent entry; Trespass to land is an intentional tort. • However, intention for
the act is required, not an intention to trespass. • Consequently, deliberate entry is required
and lack of knowledge as to trespass will not be a defence.
Mistaken entry • Basely v Clarkson (1681)
Involuntary entry • An involuntary trespass is not actionable • Smith v Stone (1647)
Negligent entry • League Against Cruel Sports v Scott.
Intention Gregory v Piper (1829) • Plaintiff owned the wall which separated his yard from
that of Defendant. The rubbish was loose and as it dried out some of it rolled or settled
against the wall. Plaintiff sued Defendant for trespass. • The court held that Defendant was
liable as therefore probable that some of it naturally might run against the wall.
Will the space above your property be considered land?
• Berstein v Skyviews Ltd [1978]
• Kelsen v Imperial Tobacco Co [1957]
• In Bulli Coal Mining Co v Osborne [1899], the Defendant is mined from their land through
to the Plaintiff's land. This was held to be trespass to the subsoil.
Does trespass have to be directly visible?
Martin v. Reynolds Metal Co. (1959) • Plaintiff (landowners) argued that fluoride particles’
intrusion from Defendant’s plant to Plaintiff’s land constituted trespass. Defendant contended
that because the fluoride particles were invisible, there could be no direct invasion. • The
court held that the intrusion of the invisible fluoride particles constituted trespass.
Continuing Trespass is a failure to remove an object (or the defendant in person) unlawfully
placed on land. It will lead to a fresh cause of action each day for as long as the trespass
continues. • Holmes v Wilson and Others (1839)
Defences
Licence • A licence is a permission to enter land and may be express, implied or contractual.
• A license does not amount to the creation of interest in the property itself. Bare licence vs a
license coupled with a grant
Revocable vs irrevocable licenses • Wood v Leadbitter (1845) • Hurst v Picture Theatres
Ltd (1915). Justification by law • Entry by law officers • Entry by private persons in the
furtherance of the law.
Remedies
• Damages (which will be nominal if there is no, or only slight, harm to land). • An
injunction to prevent further acts of trespass (at the discretion of the court). • An action
for the recovery of land if a person has been deprived of lawful possession of the land
(formerly known as ejectment). • An action for mense profits, to recover damages for loss
during a period of dispossession. • Right of entry, i.e. the right of resuming possession of land
by entering.
Negligence (Duty of Care)
The tort of negligence occurs when the defendant owes a duty of care (Donoghue v.
Stevenson, 1932) to the Plaintiff that he or she then subsequently breaches (Blyth v.
Birmingham Waterworks, 1856) by means of a misfeasance or nonfeasance, – inconsistent
with what is expected of a reasonable person (Glasgow Corp. v Muir) causing material
damage to him or her (Overseas Tank (UK) Ltd v Morts Dock and Engineering Co Ltd,
1961).
The Caparo Threefold Test is a legitimate metric for determining duty of care (Caparo
Industries Plc v. Dickman, 1990). According to this test, the defendant owes a duty of care to
the plaintiff if the conduct or act of the defendant fulfils the criteria of foreseeability (Bourhill
v. Young,1943), proximity (Alcock v. Chief Constable of South Yorkshire Police,1991) and
fair, just and reasonableness (White v. Jones,1995).

Privity of Contract Fallacy: If A undertook some contractual obligation towards B and then
subsequently breached such an obligation which resulted in damage to C, then C would not
sue A because then is no contractual obligation between A and C (Winterbottom v. Wright,
1842).
Neighbour Principle states that one owes a duty of care to someone who is “directly and
closely” affected by his acts in a foreseeable manner (Donoghue v. Stevenson).

A breach of a duty caused by an omission to do something which a reasonable person would

do OR an act that a reasonable person would not do. The law is only concerned with
carelessness where there is a duty to take care and where failure in that duty has caused
damage.
Jacob Mathew v State of Punjab, AIR 2005 SC 3180; Doctor’s negligence case
Duty: That the defendant owed the plaintiff a duty to take care in the circumstances; •
Breach: That the defendant’s act of omission failed to reach the standard of carefulness
required by the circumstances and so there is a breach of the duty to take care; • Causation:
That the defendant’s breach of duty has caused damage to the plaintiff; AND • Damage: That
the damage suffered by the plaintiff is legally recognisable and not too remote from the
breach of duty.
Existence of a duty of care; Donoghue v Stevenson [1932] Established the new category of
duty owed by manufacturer to consumer. Plaintiff’s friend bought a bottle of ginger beer
manufactured by Defendant from a shop. Remains of a dead snail flowed out of the bottle.
Plaintiff suffered shock and became severely ill as a result.
“Neighbour Principle”: • One must take reasonable care to avoid acts or omissions that
could reasonably be foreseen as likely to injure one's neighbour. • The principle is used as a
test to determine the existence of a duty of care.
Who is a neighbour? Persons who are so closely and directly affected by my act (or
omission) that I ought reasonably to have them in contemplation as being so affected when I
am directing my mind to the acts.
Grant v Australian Knitting Mills Ltd [1936] woollen underwear, acute dermatitis,
irritating chemical, free sulphite, which the manufacturer omitted to remove during the
manufacture process. The manufacturer owed a duty of care to Plaintiff, which it had
breached and was therefore liable for Plaintiff’s loss in tort. The retailer was also liable to
Plaintiff for breach of the implied term of the contract as the underwear was not of
merchantable quality.

Volenti non fit injuria: • “The principle of Donoghue’s case can only be applied where the
defect is hidden and unknown to the consumer, otherwise the directness of cause and effect
is absent: the man who consumes or uses a thing which he knows to be noxious cannot
complain in respect of whatever mischief follows, because it follows from his own conscious
volition in choosing to incur the risk or certainty of mischance.”
A wider basis of liability ; Anns v Merton London Borough Council (1978) laid down a
general principle of liability which did not require taking into account existing categories and
provided a two-stage test for determining the existence of duty of care.
Lord Wiberforce’s two-stage test: 1. There must have been sufficient relationship of
proximity or neighbourhood; foreseeability was not enough; 2. If the answer to the above is
in the affirmative, then the courts should take into account considerations which ought to
negative, or to reduce or limit the scope of liability to determine the existence and scope of
the duty.
A retreat from the principle in Anns; In Leigh & Sullivan v Aliakmon Shipping Co (1985),
the House of Lords held that the test in Anns should not apply to a case of pure economic loss
caused by a negligent act because in the past the courts had refused to impose liability in such
situations.
• In Sutherland Shire Council v Heyman (1985) (the case of negligent certification of a
building).
The modern approach for determining the existence of duty of care;
The Caparo three- fold test: 1. Foreseeability; 2. Proximity; and 3. Fairness, justice and
reasonableness.
Caparo Industries Plc v Dickman [1990]; the auditors of a company were negligent in
preparing accounts which were relied upon by a potential investor who bought large numbers
of shares based on those accounts. • The company became insolvent and the investor sued the
auditor. • Held: no duty exists where the defendant has no specific knowledge.
Foreseeability: • Defendant must foresee Plaintiff or the class of persons to which Plaintiff
belongs as being likely to be affected by his act or omission. • It is not a duty to take care in
the abstract but a duty to avoid causing to the particular Plaintiff damage of the particular
kind, which he has in fact sustained. • Defendant is liable for injuries arising in the ordinary
course of things.
Palsgraf v Long Island Railway Co (1928) • Nova Mink v Trans Canada Airlines [1951].
Bourhill v Young [1943] • to find that a duty exists, P must be foreseeable, or proximate to
the scene of the accident.
Proximity • Proximity may be judged by physical closeness as in the case of nervous shock
or cause and effect as in the case of injury caused by a defective product. Yuen Kun Yeu &
Ors v Attorney General - there was proximity between a depositor and his deposit-taking
company or bank but none between him and the Commissioner of Deposit taking companies.
No proximity because the Commissioner does not have power to control the day-to-day
management of the company. Hill v Van Erp (1997)
Fairness, justice & reasonableness; White v Jones •Defendant instructed by Plaintiff’s
father to draw up a will giving P’s £9,000 each. • Defendant’s delayed in carrying out the
father’s instruction. Defendants should be liable. Mcfarlane v Tayside Health Board
(negligence in carrying out a vasectomy operation resulting in P’s pregnancy. Rees v
Darlington Memorial Hospital NHS Trust [2004], a healthy child was born to a blind mother.

Public Policy Reasons; The Police: • Hill v Chief Constable West Yorkshire [1989] • The
Legal Profession • Military • Mulcahy v Ministry of Defence [1996] • Shaw Savill v The
Commonwealth (1940).
Hill v Chief Constable West Yorkshire [1989] the police should be immune from an action of
this kind. • Imposition of a duty of care on the police could lead to their “function being
carried on in a detrimentally defensive frame of mind”.
To whom a duty of care is owed?
Consumers • Donoghue v Stevenson [1932] • Grant v Australian Knitting Mills Ltd [1936]
• Road Users • Bourhill v Young [1943]
• Users and Purchasers of Premises • Australian Safeway Stores v Zaluzna (1987)
• School Children • Geyer v Downs (1977) • Mullin v Richards [1998]
• Minor; Muthulakshmi v Government of TN, AIR 2012 Mad 189
• The unborn child • Watt v Rama [1972]
• Rescuers • Chapman v Hearse (1961).
Negligence (Breach of duty)
As long as the risk is foreseeable (Overseas Tankship (UK) Ltd v. The Millar Steamship Co,
1966) and the calculus of negligence determines the significance of the risk based on
likelihood (Bolton v. Stone, 1951), seriousness (Paris v. Stepeney Borough Council, 1951),
utility of conduct (Daborn v. Bath Tramways) and practical alternatives (Bolton v. Stone,
1951), there will exist standard of care (McHale v. Watson, 1966) and hence the conditions
for breach of duty is satisfied.
A ‘reasonable person’ is an average person devoid of idiosyncrasies or special traits, capable
of ordinary rational thinking (Glasgow Corp. v. Muir, 1943).

In order to successfully show that Defendant is liable for negligence, Plaintiff must first
show that a duty of care exists between Plaintiff and Defendant. Plaintiff must prove that
Defendant has fallen below the standard of care required of a reasonable person.
There are two criteria, which determine the standard of care, and whether it has been
breached:
1. Foreseeability: If harm to Plaintiff is foreseeable, Defendant must take precautions against
the risk.
2. The “calculus of negligence” determines the significance of the risk.
Foreseeability; the foreseeability of risk of injury to Plaintiff is a crucial issue to be
determined prior to the issue of breach of duty. It is a matter of the ‘foreseeable likelihood’
not a matter of statistical probability. • So how is foreseeability judged in?
Standard of Care cases. Wagon Mound No 2 [1966]

Calculus of Negligence – Balancing Considerations; Four factors that need to be balanced:

1. Likelihood of injury or damage
2. Seriousness of injury or damage
3. Utility of conduct
4. Practical alternatives.
Calculus of Negligence - Likelihood • If a risk is foreseeable but highly unlikely, should
Defendant be responsible for taking the risk?
Bolton v Stone [1951]
Miller v Jackson [1977]
Wagon Mound No 2 [1966]
Haley v London Electricity Board [1965].
Calculus of Negligence – Seriousness; The more serious the potential injury, the greater the
standard of care required. • Similarly, if the defendant is aware that a particular individual is
at an enhanced risk of serious injury, this too increases the obligation to take care.
• Paris v Stepney Borough Council [1951].
Calculus of Negligence - Utility of Conduct; How beneficial is the task undertaken has
proved to be.
Watt v Hertfordshire County Council [1954]
Daborn v Bath Tramways [1946].
Calculus of Negligence – Practical Alternatives; the courts will consider the cost and
practicality of measures D could have adopted in order to prevent the injury or damage. The
greater the risk of injury, the greater the requirement to take precautions.
Latimer v AEC Ltd [1953]
Mercer v Comm for Road Transport (1936).
Sport • A participant in sport owes a duty of care to other participants and to spectators. •
Condon v Basi [1985]
Caldwell v Maguire and Fitzgerald; CA 27 Jun 2001.

Current State of Knowledge • Roe v Minister for Health [1954]

Reasonable person; D is required to take as much care as a reasonable person in his position.
• Glasgow Corp v Muir [1943]
Standard of care - Children • Child defendants will be expected to show such care as can
reasonably be expected of an ordinary child of the same age.
Gorely v Codd [1967].
McHale v Watson (1966)
Standard of care
Physical and Intellectual Disability • Adamson v Motor Vehicle Insurance Trust (1956)
Defendant’s Competence, Skill or Disability • Cook v Cook (1986)
Skilled Defendant • A skilled defendant will be required to carry out a task to the standard of
a reasonable skilled person.
• Bolam v Friern Hospital Management Committee [1957] acted in accordance with a
practice accepted as proper by a responsible body of medical men skilled in that particular
art.
Generally, inexperience does not lower the required standard of care. • Wilsher v Essex Area
Health Authority [1987] • Policy reasons may exist for not taking into account the defendant's
inexperience. • Nettleship v Weston [1971].
Negligence (Causation & Remoteness)
According to the ‘but-for test’ (Robinson v. Post Office, 1974), but for defendant’s act or
omission the injury or damage to plaintiff would not have occurred, the casual link between
plaintiff’s injury and defendant’s negligence is established.
If a third party intervenes in the chain of causation, there will be more than one cause of
complaint to the claimant (Wilsher v. Essex AHA, 1988).

When the intervention occurs concurrently, that is, where two independent causes combine to
cause loss, both the tortfeasors will contribute to the plaintiff’s loss (Roberts v. JW Ward &
Sons, 1981).
When intervention occurs successively, liability of the second defendant is limited to the
extent of damage caused after the first damage already having been caused (Baker v.
Willoughby, 1968)
The plaintiff might lose a chance of an opportunity due to the defendant that might prove
beneficial for the him or her otherwise. The plaintiff might suffer a ‘loss of chance’ (Hotson
v. East Berkshire Area Health Authority, 1987).
Novus Actus Interveniens: 3rd party intervention- break in chain of causation.
The defendant may be liable only for the consequences of the injury that could be anticipated
from his part of the harm (Overseas Tank (UK) Ltd v Morts Dock and Engineering Co Ltd,
1961).
Eggshell Skull Rule: The defendant must take the plaintiff as in the same condition as he
finds him even if plaintiff is in a state or predisposition to a particular injury or illness (Watts
v. Rake, 1960).

Plaintiff’s injury must have resulted from Defendant’s breach of duty - cause and effect
relationship must be established. • Causation in fact: • Defendant’s negligence actually
caused the injuries. • Causation in law: • Defendant is only liable for damage that is
reasonably foreseeable and not too remote.
The ‘but for’ test;
According to this test, but for Defendant’s act or omission the injury or damage to Plaintiff
would not have occurred. Barnett v Chelsea & Kensington Hospital [1968]: • Plaintiff’s
husband would have died anyway, with or without Defendant’s negligent treatment.
• Robinson v Post Office [1974]
It may on some occasions be clear that Defendant’s breach of duty did not actually cause the
harm suffered by Plaintiff. • The Empire Jamaica [1955]
• The question of causation may arise where there is a dispute about what Defendant would
have done in a particular situation. • Bolitho v City & Hackney HA [1997]
• Sometimes, we might speculate as to the actions of the Plaintiff ‘but for’ the negligent act. •
Cummings (or McWilliams) v Sir William Arrol & Co [1962].

Multiple Causes; Multiple causes include simultaneous causes and consecutive events.
Plaintiff need not prove that Defendant’s breach of duty was the main cause of the damage if
it materially contributed to the damage.
• Bonnington Castings Ltd v Wardlaw [1956]
• D’s breach made the injury more probable. • McGhee v National Coal Board [1972]
Plaintiff must prove Defendant’s breach of duty caused the harm or had a material
contribution in causing the harm to Plaintiff (especially if there are a number of possible
causes).
• Wilsher v Essex AHA [1988] • Five discrete causes could have led to Plaintiff’s illness or
death. • Defendant’s negligence was one of them. • It could not be proved on the balance of
probably that Defendant caused the harm to Plaintiff. • Defendant not liable.
• As a matter of policy, where each Defendant’s wrongdoing has contributed to Plaintiff’s
injury, courts would hold each Defendant liable: • Fairchild v Glenhaven Funeral Services
Ltd (2002).
Concurrent Events • Where two separate independent causes combine to cause loss, both
Defendant’s will be liable as concurrent wrongdoers / tortfeasers as both have contributed to
P’s loss.
• Hale v Hants & Dorset Motor Services Ltd & Anor (1947) • Plaintiff’s injury caused by a
negligent driver and a landowner. • Both are liable.
Successive Events • Where two separate independent causes operate at 2 different times to
bring about the totality of the loss (e.g., a subsequent injury), the position is more complex:
• Limitations of the ‘but-for’ test • Where there are two successive causes of harm, the first
event will generally be considered as the cause of harm.
Performance Cars v Abraham [1961]
Baker v Willoughby [1968].
Loss of Chance • Loss of chance is actionable in contract but its extent in tort is unclear. •
Kitchen v RAF Association and others [1958]
Hotson v East Berkshire Area Health Authority [1987].
Intervening causes Novus Actus interveniens
• Defendant negligent towards Plaintiff but a new intervening event occurs which breaks the
chain of causation. • Intervening event here refers to intervention by Plaintiff or a 3rd party
not by natural forces. • Note that if Plaintiff’s act is a natural consequence of the position in
which he was placed as a direct consequence of Defendant’s negligence it will not break the
chain of causation. • The Oropesa [1943]
Intervening causes: Acts of a third party • Defendant may be responsible for harm caused
by a third party as a direct result of his negligence, provided it was a highly likely
consequence (if there is no break in the chain of causation).
Stansbie v Troman [1948]
• Home Office v Dorset Yacht Co [1970]
• Lamb v Camden LBC [1981]

Intervening causes: Acts of the Plaintiff • If Plaintiff suffers further injury as a result of his
own actions, there will be a break in the chain of causation only if Plaintiff acted
unreasonably.
• Wieland v Cyril Lord Carpets [1969]
• McKew v Holland, Hannen & Cubitts & Co [1969]
Remoteness of damage; Defendant is responsible only for consequences that could
reasonably have been anticipated. • The Wagon Mound (No. 1);
Manner of occurrence • If harm is foreseeable but occurs in an unforeseeable way there may
still be liability.
Jolley v Sutton LBC [2000]
Hughes v Lord Advocate (1963)
However, contrast these cases with • Tremain v Pike [1969]
• Doughty v Turner Manufacturing [1964].
Type of harm • One must distinguish the manner in which the damage that has occurred with
the type of damage. • In order for the damage not to be considered too remote, the damage
must be of the same type or kind as the harm that could have been foreseen.
Bradford v Robinson [1967] • Tremain v Pike [1969]
Extent of harm • If the type of harm and its manner was reasonably foreseeable, the
Defendant will be liable (even if the extent of the harm was not foreseeable).
• Vacwell Engineering v BDH Chemicals [1970]
Eggshell skull rule • Eggshell skull rule:
• “The tortfeasor must take his victim as he finds him”. • Defendant will be responsible for
the harm caused to Plaintiff with a weakness or predisposition to a particular injury or illness.
Smith v Leech Brain [1961]
Robinson v Post Office [1974]
P’s impecuniosity • Impecuniosity = the state of lacking sufficient money or material
possessions. • P’s impecuniosity is no excuse for not mitigating damages. • Liesbosch
Dredger v SS Edison [1933] •Lagden v O’Connor [2004].
Negligence (Psychiatric Harm)
A psychiatric illness is a form of “personal injury” which includes mental as well as physical
impairment that suffered by a claimant in response to a traumatic incident (Mt Isa Mines v
Pusey, 1970) or to the Defendant’s conduct (McLoughlin v. O’Brian, 1983).
Simple emotional distress, anguish or recurrent nightmares do not constitute a cause of
complaint. It must be a recognised psychiatric illness (Leach v. Chief Constable of
Gloucestershire Constabulary, 1999).
Primary victims are those who are in the area of potential danger and suffer physical or
psychiatric injury or both because of their own imperilment.
Secondary victims are those who are not physically present but bear witness to the events
(Alcock v. Chief Constable of the South Yorkshire Police, 1991).

Now damages are awarded for psychiatric illness provided that:

1. Plaintiff’s injury is recognised as a psychiatric illness
2. Plaintiff was a primary or a secondary victim.
Recognised psychiatric illness • A legally recognised psychiatric illness has no exhaustive
definition. • Most cases of psychiatric illness are said to fall in the category of post-traumatic
stress disorders (PTSD) but there are other forms of psychiatric illness that are also legally
recognised.
For psychiatric illness to be compensable under negligence, it must be a legally recognisable
illness:
• Mt Isa Mines v Pusey (1970
• McLoughlin v O’Brian [1983]
Primary Victims • P can recover as a primary victim when he is in the area of potential
danger and suffers physical and psychiatric injury or just psychiatric injury because of his
own imperilment.
• That is, where Plaintiff suffers shock from a reasonable fear of his own safety caused by
Defendant’s negligence (the “near miss” examples).
• Dulieu v White & Sons (1901).
Secondary Victims • Plaintiff may be able to recover damages as a secondary victim where
Plaintiff is not imperilled himself, but witnesses an accident caused by Defendant’s
negligence where another person has been injured or died, and Plaintiff suffers from a
recognised psychiatric illness. • However, the law has set out some control mechanisms to
deal with secondary victims.
Psychiatric injury must be foreseeable
• Hambrook v Stokes Bros (1925) - Plaintiff suffered shock fearing for her childrens’ safety
(although not hers).
• Bourhill v Young (1943) - Plaintiff suffered shock resulting from hearing the sound of a
collision 50 feet away.
Conditions that had to be fulfilled to be a secondary victim;
1. This requires close physical proximity to the event.
2. The shock must be a "sudden" and not a "gradual" assault on the claimant's nervous
system.
3.If the nervous shock is caused by witnessing the death or injury of another person the
claimant must show a "sufficiently proximate" relationship to that person, usually
described as a "close tie of love and affection".( Alcock v Chief Constable of the South
Yorkshire Police)
Frost (White) v Chief Constable of South Yorkshire Police • Arose from the same facts as
Alcock. • Police officers claimed against their employer (D) as rescuers for psychiatric injury
suffered because of carrying the dead and the injured at the stadium. • Held: Defendant not
liable as Plaintiff’s were only secondary victims and did not have a close relationship with
the victims.
Defences for negligence
Once Plaintiff has established the elements necessary to establish the tort of negligence,
Plaintiff may still fail either totally or partially if Defendant successfully pleads one of the
following defences.
1. Contributory negligence by Plaintiff;
2. Voluntary assumption of risk by Plaintiff (volenti non fit injuria);
3. Exclusion or limitation of liability by Defendant;
4. Illegality;
5. Plaintiff bringing his action after the expiry of limitation period.
1…..Contributory negligence • Contributory negligence refers to Plaintiff’s own want or
care which directly and materially contributed to his injury. • Plaintiff was the co-author of
his own misfortune. • Defendant has to prove that Plaintiff has failed to take reasonable care
of his own safety and that was a contributing factor to harm ultimately suffered by Plaintiff.
• Froom v Butcher (1976)
Municipal Corporation of Greater Bombay v. Laxman Iyer (2003); whether either party could
by exercise of reasonable care, have avoided the consequence of other’s negligence.
When contributory negligence may arise;
While there are no strict categories of contributory negligence, instances where a Plaintiff
has contributed to his own harm may typically fall into three categories:
1. Where Plaintiff’s act/omission directly effects (and/or contributes to the cause of) the
injury: March v Stramare (1991)
2. Plaintiff’s act/omission contributes to the extent of damage • e.g., not wearing a seatbelt:
Froom v Butcher [1976]
3. Plaintiff’s act/omission causes exposure to a risk • E.g., being a passenger with a drunk
driver. • E.g., Yoginder Paul Chowdhury v. Durgadas (1972)
Contributory negligence and causation • For Plaintiff to be liable in contributory
negligence, his/her conduct must have a causative effect on his/her injury.
• Stapley v Gypsum Mines Ltd (1953) • P’s damages were reduced by 80% taking into
consideration the deceased’s contributory negligence to the accident.
• Jones v Livox Quarries (1952)

Professionals • Wheeler v Copas [1981]: A bricklayer carrying heavy equipment & falling
from a ladder: damages reduced by 50% because a professional bricklayer ought to have
known & taken reasonable precautions.
• Chan King Wan & Another v Honest Scaffold General Contractor Co Ltd & Another
(No. 2) [2000]: Two experienced scaffolders held contributorily negligent for their injuries.
They were responsible for the way the building work was to be carried out.
• Ma Kam Yeung v Fu Hay Kin & Others [1998]: An experienced worker injured by a
bench mounted circular saw which was not fitted with a guard and was larger than necessary
for the work he was doing. Held he contributed to his injury.
Children • “A very young child cannot be guilty of contributory negligence. An older child
may be; but it depends on the circumstances. A judge should only find a child guilty of
contributory negligence if he or she is of such an age as reasonably to be expected to take
precautions for his or her own safety”.
Minter v D & H Contractors.
Employees • an employee undertaking an activity in the course of his employment owes a
duty of care to himself and will be liable to a reduction of any award if found in breach.
Jones v Livox Quarries (1952)
Some of the factors taken into consideration include: 1. the level of skills and experience
of the employee; 2. the degree of pressure imposed upon an employee by his employer to
maintain or increase output at the expense of caution; and 3. the degree of familiarity the
employee has with the activity that caused the injury.
The doctrine of alternative danger
• Where Plaintiff is suddenly put in a position of imminent personal danger by the wrongful
act of Defendant and he takes a reasonable decision to avoid the danger, acts accordingly, and
suffers injuries consequently, Defendant is liable (contributory negligence not applicable if
action was reasonable).
• Jones vs Boyce (1816).
2. Volenti non-fit injuria
• Importance of the doctrine: • The defence of volenti non-fit injuria is based on
establishing that the consent to the risk was given voluntarily. • The doctrine of volenti non
fit injuria is a complete defence to an action in negligence but the tendency of the courts is to
deny Defendant this defence and allow the defence of contributory negligence.
• Morris v Murray [1990] • It will not be any consent by Plaintiff where Plaintiff continues to
work under circumstances which gives him no choice (Smith v Baker & Sons, 1891).
Knowledge and consent • Plaintiff should have agreed to run the risk expressly or impliedly.
• Morris v Murray [1990]
3. Agreement to run the risk • for consent to have any effect in law, it must be consent
given prior to the negligence of Defendant; and • the consent must be to run the risk of injury,
which has in fact been caused: Nettleship v Weston (1971).
4. Illegality (ex turpi causa) • Where Plaintiff commits an illegal act, illegality may afford
the defendant a complete defence. • Marles v Philip Trant & Son (1954).
Factors that determine that D can use the defence of ex turpi causa:
1. Whether the public conscience is affronted; Kirkham v Chief Constable of Greater
Manchester (1990)
2. Whether reliance on the illegality is necessary for Plaintiff’s claim; Tinsley v Milligan
(1994)
3. whether Plaintiff’s conduct is causally related to the tort; Chung Man Yau & Anor v Sihon
Co Ltd (1997) • Defendant’s defence of ex turpi causa failed as the court found that
Plaintiff’s injuries had no causal connection with the illegal element of his occupation
4. The possibility of determining the standard of care. Vellino v Chief Constable of the
Greater Manchester Police (2002)
5. Reluctance of the courts to set the standard of care • Pitts v Hunt (1991).
Product Liability
Product must reach Plaintiff with the same defect as it had at the time it left the manufacturer;
Grant v Australian Knitting Mills. Where, however, the article in question is used for a
different purpose from that for which it was designed and Plaintiff’s injury is caused by such
unintended use, Plaintiff may have no cause of action against the manufacturer.
No probability of intermediate examination;
Kubach v Hollands: If sufficient warning about defects in a product was given by, the
manufacturer but the distributor failed to warn Plaintiff. It was the distributor and not the
manufacturer who would be liable.
If P knows about the defects in the product but uses it and suffers injury, Plaintiff cannot
complain (Farr v Butters Bros & Co [1932]) unless Plaintiff is compelled to use the product
(Denny v Supplies & Transport Co).
Objects of the Consumer protection act (Section 5 read with section 2(9)) the objects of
the Council shall be to promote and protect the rights of the consumers such as:
(a) The right to be protected against the marketing of goods and services, which are
hazardous to life and property;
(b) The right to be informed about the quality, quantity, potency, purity, standard and price of
goods or services, as the case may be to protect the consumer against unfair trade practices;
(c) The right to be assured, wherever possible, access to a variety of goods and services at
competitive prices;
(d) The right to be heard and to be assured that consumer's interests will receive due
consideration at appropriate forums;
(e) The right to seek redressal against unfair trade practices or restrictive trade practices or
unscrupulous exploitation of consumers; and
(f) The right to consumer education.
Who is a Consumer; Section 2(7). Explanation (b) has included online consumers within the
ambit of consumers.
A ‘consumer’ does not include a person who purchase goods for reselling them of for any
‘commercial purpose’. E.g. A photocopier machine for the purpose of business.
A person who buys a good for the purposes of self-employment (e.g., a car for a taxi that he
will drive to make money for a living) will be considered a consumer under the CPA.
Circumstances under which complaint can be filed? Section 2(6).
Defect: Section 2(10) "defect" means any fault, imperfection or shortcoming in the quality,
quantity, potency, purity or standard which is required to be maintained by or under any law
for the time being in force under any contract, express or implied or as is claimed by the
trader in any manner whatsoever in relation to any goods.
Deficiency: Section 2(11) “deficiency” means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has been undertaken to be
performed by a person in pursuance of a contract or otherwise in relation to any service.
What are Goods? Section 2(21) ; Section 2(7) of SOGA: “goods” means every kind of
movable property other than actionable claims and money; and includes stock and shares,
growing crops, grass, and things attached to or forming part of the land which are agreed to
be severed before sale or under the contract of sale.
What is a service? Section 2(42); any description, which is made available to potential users
and includes • banking, • financing insurance, • transport, • processing, • supply of electrical
or other energy.
‘Contract of service’ is different from ‘Contract for service’ - Former Implies relationship
of master and servant - While latter implies a contract where there is no master servant
relationship.
Cosmopolitan Hospital and Anr. V. Vasantha P. Nair (1991) Patient is a ‘consumer’, the
medical assistance was a ‘service’, and therefore in the event of any deficiency in the
performance of medical service, consumer courts can have jurisdiction.
Indian Medical Association v V.P. Shantha and others (AIR 1996 SC 550)
Foreign matter left in a patient’s body:
• Nihal Kaur v. Director, P.G.I., Chandigarh III (1996) CPJ 112
• Mrs. Aparna Dutta v. Apollo Hospital, Madras AIR 2000 Mad. 340
District Consumer Disputes Redressal Forum; for claims up to Rs. 1Crore 2. State
Consumer Disputes Redressal Commission • for claims above Rs.1 crore and below Rs. 10
crore 1. The National Consumer Disputes Redressal Commission; for claims above Rs. 10
crore.
Remedies
1. Order removal of defects from goods (s 14(a) and (e))
2. Order replacement of goods (s 14 (b))
3. Order refund for the full value of the goods (s 14 (c))
4. For services: order for the removal of the deficiency (s 14(e)) or for the return of charges
paid by the consumer (s 14 (c)).
5. To pay such amount as may be awarded by it as compensation to the consumer for any loss
or injury suffered by the consumer due to the negligence of the opposite party. (S 14 (d)).
Limitation Period Section 69 ; within two years from the date on which the cause of action
has arisen. Establishment of a new regulator called the Central Consumer Protection
Authority - Chapter IV of the Act; Product Liability - Section 2(35)
Unfair contracts - Section 2(46); Mediation - Chapter V (sections 74-81)
Strict Liability and Absolute Liability
STRICT LIABILITY
The accumulation of an inherently hazardous activity or thing which is likely to do mischief
if it escapes will cause damage causing non-natural use of land (Mukesh Textiles Mills v.
Subramanya Shastri,1987) is known as Strict Liability. (Rylands v. Fletcher, 1868)
A dangerous thing is a thing, which is likely to do mischief if it escapes (Read v. Lyon, 1947)
from the defendant’s property.

Strict Liability; Strict liability ensures that people are responsible for damages for their
actions/products, regardless of any “fault” on their part.
Elements of Strict Liability
1. Accumulation on the defendant's land
2. A thing likely to do mischief if it escapes
3. Escape
4. Non-natural use of land
5. The damage must not be too remote.
Rylands v. Fletcher sets out the principle of strict liability.
D would be liable only when there is escape of the object from land of which he is in
occupation or control.
• Read v Lyons (1947)
Dangerous thing
The rule has been applied in the following cases:
• Electricity: National Telephone Co. v. Baker, (1893)
• Water: Charing Cross Electricity Supply Co. v. Hydraulic Power Co [1914]
• Fire: Jones v. Festiniog Railway (1868)
• A motor vehicle: Musgrove v. Pandelis [1919]
• Gas: Goodbody v. Poplar BC [1915]
• Poison: West v. Bristol Tramways Co [1908]
• Sewage: Tenant v. Goldwin, (1704)
• Explosives: Read v. Lyons, (1947)
• Noxious fumes: West v. Bristol Tramways Co. (1908)
• Rusty wire: Firth v. Bowling Iron Co., (1878)

The rule has been held not to apply in the following cases:
• An aeroplane: Fosbroke-‐Hobbes v. Airwork Ltd (1937)
• An oilcan; Wray v. Essex CC (1936)
• A boiler without a safety valve; Ball v. LCC (1949)
• Water piped to a block of flats; Transco plc v. Stockport MBC (2004)

Natural Use of the Land

Rickards v. Lothian (1913)
T. C. Balkrishna Menon v. T.R. Subramanian (1968) • Held that the use of explosives in an
open field on a festival is a “non-natural” user of land.
State of Punjab v. Modern Cultivators (1965) • Due to overflow of water from a canal,
damage was done to plaintiff’s property. Held that use of land for construction of a canal
system is a normal ordinary use.
Mukesh Textile Mills v. Subramanya Sastry (1987) • A was owner of a sugar factory. B
owned land adjacent to A’s sugar factory. A stored quantity of molasses and it escaped to B’s
land and damaged his crop. B sued A. • Collecting molasses in large quantities was held to be
non-natural use of land and if a person collected such things on his land and escaped to
neighbours land, he was liable.

Exceptions to the rule • in the following circumstances, the rule of strict liability is not
applicable.
1. Plaintiff’s consent; Balakh Glass Emporium v. United India Insurance Company Ltd.,
(1993) • Carstairs v. Taylor (1871)
2. Plaintiff’s own default; Ponting v Noakes (1849)
3. Act of third party; Rickards v Lothian (1913)
4. Act of God/Vis Major; State of Mysore v. Ramchandra (1972)
5. Statutory Authority. Green v. Chelsea Waterworks (1894)
Limitations of Strict Liability
Pearson v North Western Gas Board (1968). Plaintiff was seriously injured in an explosion of
gas, which also destroyed her home, killed her husband. Her action in Court failed, in view of
the decision in Dunne vs. North Western Gas Board (1964), applying the defences to strict
liability.
 Dunne vs. North Western Gas Board (1964) • Plaintiff, a 16-year-old girl, along with other
members was injured when an explosion blew her off her bicycle. The explosions, which
caused these accidents, arose from a gas main and travelled along a sewer becoming mixed
with air and so becoming highly flammable and explosive. The Court while holding the Gas
Board not liable.
Strict Liability recently in India • Vohra Sadikabhai v. State of Gujarat (2016) • Supreme
Court applied the rule in Rylands v Fletcher to find respondent liable for damage caused to
the property of the appellants by releasing water from the dam maintained by it when the
water level became very high due to heavy rains.

Absolute Liability
ABSOLUTE LIABILITY
Absolute liability arises when an enterprise is engaged in hazardous or inherently dangerous
activities owing an absolute and non-delegable duty, poses a potential threat to the safety of
the persons working in the factory and residing in the surrounding areas (M. C. Mehta v.
Union of India, 1987).

MC Mehta v. Union of India (1987) M.C. Mehta v. Union of India originated in the aftermath
of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak
occurred soon after the infamous Bhopal gas leak and created a lot of panic in Delhi. One
person died in the incident and few were hospitalized.
Union Carbide Corporation v. Union of India, 1992 • In December 1984, toxic gases leaked
from the Union Carbide Corporation India Ltd at Bhopal. About 2,660 people died, several
thousand suffered serious injuries and numerous cases were transferred to their next
generation.
The Public Liability Insurance Act, 1991 • Act was enacted for the purpose of providing
immediate relief to persons affected by an accident occurring while handling any hazardous
substance or matters connected with or incidental to. The Act provides for mandatory public
liability insurance.
Defamation
Defamation refers to a statement which may be written or spoken, that causes injury to one’s
reputation thereby lowering his or her reputation in the eyes of the right-thinking members of
the society.
A man’s reputation is his property and if possible, more valuable, than other property (Dixon
v. Holden, 1869).
Libel, is that kind of defamation, which occurs when the defendants statement is in
permanent form (Theatre v. Richardson, 1962).
Slander occurs when the defamatory statement is in a transient form that is in the verbal form.
Balancing competing interests: • an individual’s freedom of expression • an individuals’
right to protect his or her reputation.
Subramanian Swamy vs Union of India, May 2016 (Supreme Court of India).
Elements of defamation; 1. Defendant’s statement referred to Plaintiff; 2. Defendant’s
statement about Plaintiff was defamatory; and 3. Defendant’s statement was published.
The statement need not refer to the Plaintiff by name if the defamatory statement tends to
connect Plaintiff with the statement. • Hulton Co. v Jones (1910).
Where two real persons are in existence and Defendant’s story does not intend to refer to
Plaintiff but the readers think that it does, Defendant could be liable:
• Newstead v London Express Newspaper Ltd (1939)
• Where Defendant does not refer Plaintiff by name but the defamatory statement tends to
connect Plaintiff with the statement, Defendant could be liable:
• Morgan v Odhams Press Ltd (1971).
An objective test - how the right-thinking people in society understand Defendant’s
statement.
DEFAMATORY STATEMENTS ARE THOSE THAT
1. Attack Plaintiff’s moral character without any foundation;
2. Ridicule Plaintiff without any justification;
3. Falsely allege incompetence or lack of ability on Plaintiff’s part; and/or
4. Falsely allege production of inferior quality goods or works by Plaintiff,
Cheung Ng Sheong Steven v EastweekPublishers Ltd & Anor (1995).
Mere vulgar abuse Rambo v Cohen (1992)

Libel - occurs when the defamatory statement is made in permanent form. • In writing or
printing (book or magazine) • Pictures
• Film (Li Yau-Wai, Eric v Genesis Films Ltd (1987);
Youssoupoff v MGM (1934))
• Statue
• Waxworks (Monson v Tussauds (1894)
• Effigies • Libel is actionable per se.
Slander however is actionable per se, where:
• Defendant falsely accuses Plaintiff of having committed a crime; or
• Defendant falsely accuses Plaintiff of suffering from an infectious disease, such as leprosy,
venereal disease, AIDS or SARS; or
• Defendant falsely disparages Plaintiff “in any office, profession, calling, trade or business”
which affects Plaintiff’s official, professional or business reputation, e.g. falsely accusing
Plaintiff, an employer, of having an affair with an employee or of impropriety with his
employee.
• Defendant falsely accuses Plaintiff, a woman, of unchastity or adultery.
Publication even to one person or P’s wife is sufficient: Theaker v Richardson (1962)
Publication on the internet • the transmission of a defamatory posting from the storage of a
news server constitutes a publication of that posting to any subscriber who accesses the
newsgroup containing that posting.
• Dow Jones v Gutnick (2002) • Demon v Godfrey

Defences of defamation
1. Truth or Justification;
2. Fair comment;
3. Privilege (absolute or qualified); and
4. Consent.
1. Truth (Justification) Defendant is not required to prove the accuracy of each allegation.
He is only required to justify the sting of the charge.
• The “repetition rule”: Defendant must prove that the content of the statement was true, not
merely that it was made in a previous publication.
Shah v Standard Bank [1999]
2. Fair Comment
• There are five essential elements to be satisfied before a comment can be regarded as fair.
These are:
1. The comment was on a matter of public interest;
2. The comment was in fact a comment, as distinct from imputation of facts;
3. The comment was based on facts, which are true or protected by privilege;
4. The comment explicitly or implicitly indicated what were the facts on which the comment
was made; and
5. The comment was one which could have been made by an honest person, however
prejudiced he might be, and however exaggerated or obstinate his views might be.
Plaintiff can defeat the defence of fair comment by proving that the comments were
actuated by malice and that Defendant did not genuinely believe the opinions he/she
expressed.
Cheng & Anor v Tse Wai Chun (2000)
Reynolds v Times Newspapers Ltd (2001)
3. Privilege
• A person making a defamatory statement on a privileged occasion may have absolute or
qualified immunity from liability.
• There are two kinds of privilege:
1. Absolute privilege; and 2. Qualified privilege.
Absolute Privilege: No legal consequences attach to a defamatory statement, howsoever
untrue, malicious or imaginary if made on an occasion of absolute privilege.Eg a
statement made in Parliament, in judicial proceedings.
Toogood v Sprying (1834):
Qualified Privilege: Qualified privilege also protects the maker of an untrue defamatory
statement from liability. • However, such protection is subject to the condition that the
maker of the statement must not have used the occasion for some purpose other than that
for which the occasion was privileged.
Publication under a Legal, Social or Moral Duty
• Stuart v Bell, (1891) • A chief constable of police told Defendant that Plaintiff was
suspected of having committed a theft. • Defendant passed on this information to Plaintiff’s
employer. • Held: the communication between Defendant and Plaintiff’s employer was
privileged and that Defendant had a social and moral duty to report.
Libel in a newspaper
There are three requirements for the success of this defence:
• The libel is inserted in the newspaper without actual malice;
• The libel is inserted in the newspaper without gross negligence; and
• There is an apology before the commencement of the action or at the earliest opportunity
afterwards.
Consent
• There is no defamation where Plaintiff has himself consented to the publication of a
defamatory matter concerning himself:
Chapman v Lord Ellesmere (1932).

Remedies: Damages and Injunction

Where P has an eggshell personality and therefore suffers more both physically and mentally
because of a defamatory statement, P can claim all the damage that P has suffered: Chu Siu
Kuk Yuen v Apple Daily Ltd & Ord (2002).
Aggravated compensatory damages;
Siu Cho Chin v Tin Tin Publication Development Ltd & Anor (2002);
Sutcliffe v Pressdram Ltd (1990).
Exemplary and Punitive Damages
Injunctions • the court may grant an injunction where damages are not an adequate remedy
and where: • Plaintiff has been clearly identified in the defamatory statement; • there is no
ground for concluding that the statement is true; and • there is no defence which might
succeed.
Vicarious Liability
Vicarious liability is a form of a strict, secondary liability that arises under the common law
doctrine of agency, respondent superior, and the responsibility of the superior for the acts of
their subordinate.
Employer’s liability
• An employer may not be a party to the tort but is liable for the tort of his employee, if two
conditions are satisfied:
a) The person who committed the tort was an employee; and
b) The person committed the tort in the course of his or her employment

At common law, three tests are used to determine whether a person was an employee at the
time the harm was caused by him to Plaintiff.
1. The Control test;
2. The Integration and Organisation test; or
3. Mutuality of obligations test.
1. The Control test

• A contract of service (not a contract for services)

• A person is an employee if he works under a contract of service, and the employer retains
control of the actual performance of the work.
2. The Integration and Organisation test
• “Under a contract of service, a man is employed as part of the business, and his work is
done as an integral part of the business; whereas, under a contract for services, his work,
although done for the business, is not integrated into it but is only accessory to it”.
• For example, a car driver or a lorry driver employed to drive cars and paid a salary is an
employee of the person who employs him.
Market Investments Ltd v Minister of Social Security

Factors, which may be of importance, are:

1. Whether the person performing the services provides his/her own equipment,
2. Whether the person hires his/her own helpers,
3. What degree of financial risk he/she takes,
4. What degree of responsibility for investment and management he/she has,
5. Whether and how far he/she has an opportunity of profiting from sound management in the
performance of his/her task.

3. Mutuality of obligations test

• There must exist an essential degree of mutuality to make the relationship between two
persons as that of employer and employee.
• Where the arrangement between Plaintiff & Defendant goes no further than a licence by
Defendant to Plaintiff to offer himself as a caddie for individual golfers and there were no
mutuality of obligations between Plaintiff and Defendant, Plaintiff is not an employee.
Course of Employment • Once it is established that the tortfeasor is an employee, the
employer will only be liable if Plaintiff can prove that the tortfeasor had committed the tort in
the course of his employment.
Prohibited Conduct
• The doing of an act prohibited by the employer does not necessarily make the employee’s
act as falling outside the course of employment.
• However, where a prohibition limits the sphere of employment, the employer may not be
liable.
• Limpus v London General Omnibus Co (1862)
• Rose v Plenty [1976]
Frolics and detours • Where an employee does something much unconnected with his job,
he/she is said to be on a frolic of his/her own and the employer is not liable. • However, some
deviation from the assigned work may still be within the course of employment.
Liability for trespass to persons
• In Lister v Hesley Hall Ltd, the central issue was whether the employers of the warden of a
school boarding house, who sexually abused boys in his care, should be vicariously liable for
his torts. The House of Lords held that what the warden did and what he was authorised to do
were so closely linked that the employers could not escape liability.

Employer’s Liability for Independent Contractors

• An employer, except in certain special circumstances, is not vicariously liable for any act or
omission of an independent contractor.
• Those special circumstances include:
1. Delegation of Non-delegable Duties
2. Liability imposed by Legislation.
1. Delegation of Non-delegable Duties • Where the law imposes a strict or absolute duty or a
non-delegable duty upon a person, he cannot discharge that duty by delegating the
performance of work to an independent contractor, e.g. hospitals cannot delegate their duty of
care to their patients.
2. Liability imposed by Legislation • Sometimes legislation imposes strict liability and an
employer is personally liable, although Plaintiff’s injury was in fact caused by the negligence
of an independent contractor employed by him.
Employer’s Liability for negligence of employees towards one another • an employer is
not only liable for torts committed against a third party; he is also liable for torts committed
by employees against one another.