Tort Law - Introduction

Tort liability can be imposed in many instances that include negligent behaviour
towards a person or land, negatively affecting a person’s reputation or limiting
freedom of movement. This module will aim to explain and take you through how
and why liability can be imposed on a defendant, giving you an in-depth
understanding of the nature of tortious liability.

There are many torts that will be discussed in this module. They include, for
example, libel, slander, nuisance, negligence, trespass, assault and battery. Thus,
it is not possible to provide one definition that encompasses all torts, considering
how each tort has its own specific characteristics. It is, therefore, best to think of
the law of tort as the law of behaviour that is legally ‘wrong’ or ’tortious’, giving
rise to an entitlement to a remedy for the claimant.

Principles of Tort
Whilst it may not be possible to precisely define what tort is, various principles
can be identified that help establish when a tortious liability arises. It has to be
noted, however, that there is no predominance of any one principle. The
principles that can be turned to are:

 Compensation
 Fault
 Retributive justice (punishment)
 Deterrence
 Economic efficiency
 Loss distribution
 Protected Interests
Tort law also aims to protect individual interests from a harm that is actual or
threatened. However, not all interests are protected and some benefit from
better protection than others. This is as a result of the importance of an interest
reflected by society through the years. The interests protected include:

 Personal harm
 Harm to property
 Harm to reputation
 Harm to financial interests
 Harm to the due process of law

Negligence
Duty of Care
What is a ‘Duty of Care’?
Duty of care constitutes the first of the three primary elements of tort (duty of
care, breach and causation). Whilst there are many situations in which an
individual might have acted carelessly, unless they have a duty of care to the
person harmed by their carelessness, then no claim will arise. This is a key point -
whilst a case (or problem question) might present the clearest existence of breach
and causation possible, it will fail if duty of care is not present at the time of the
breach.
Although the term ‘duty of care’ can seem a little alien at first, it can roughly be
thought of a responsibility of an individual to not harm others through
carelessness. For example, a driver on the road has a responsibility to other road
users to not cause an accident through driving carelessly. In other words: they
have a duty of care to other road users.
Because of its ability to make or break a given case, duty of care is often thought
of as a ‘control mechanism’ within the law - essentially, a way for the courts to
make a distinction between cases which are legally significant, and therefore
worth pursuing, and those cases which do not merit legal attention.

The Development of the Duty of Care

The legal basis for finding a duty of care has its roots in Donoghue v Stevenson
[1932] AC 562. Although, as will be noted below, there exists a more modern test
to establish a duty of care, Donoghue v Stevenson provides the theoretical basis
for the duty of care, and thus modern negligence, and so it is necessary to be
familiar with the case.
Before Donoghue v Stevenson, the concept of duty of care did not exist in any
particularly notable form within the English law. This meant that unless a plaintiff
had a contract with a defendant, they had no means of bringing a case in
negligence. This led to a considerable number of injustices when individuals were
injured by clear instances of negligence. An example of this phenomenon can be
seen in Winterbottom v Wright (1842) 10 M&W 109. In the case, the defendant
(Wright) was contracted by the UK’s Postmaster-General to maintain a horse-
drawn mail coach in a safe state. The plaintiff (Winterbottom) was also contracted
by the Postmaster-General to drive the coach between destinations but was
injured when the coach collapsed due to disrepair. Although it was clear that
Wright had acted negligently, the courts held that Winterbottom could not sue
Wright, because a contract did not exist between the two. In essence, the
contract concept of privity prevented legal action.
It does not take a huge amount of insight to see the problems that might have
arisen as a result of the above decision. For example, a consumer injured by a
bottle mistakenly filled with acid rather than soda would have no legal recourse if
somebody else purchased the soda for them. Similarly, since road users do not
have contracts with each other, none could be said to owe each other a duty of
care, no matter how dangerously they were driving. This is clearly problematic -
we want our soda producers to ensure their products are safe, and we want
drivers on the road to be careful, and the threat of being sued is a useful
deterrent to unsafe behaviour.
It is, therefore, fortunate that the courts established the generally applicable
concept of duty of care in Donoghuev Stevenson. It should be noted that the
concept of a duty of care was not created specifically in Donoghue; instead, it was
restricted to a few, highly specific situations. Thus, statements that the courts
‘invented’ or ‘created’ the duty of care concept in Donoghue are false, and should
be avoided. Instead the courts can be thought of as greatly widening the remit of
the concept.

Case in Focus: Donoghue v Stevenson [1932] AC 562

The case itself involved a relatively simple (and now famous) set of facts. The
plaintiff (Mrs Donoghue) visited a café in August of 1928 with a friend. The friend
purchased an opaque bottle of ginger beer for Mrs Donoghue and decanted most
of it into a glass tumbler for her to drink. After Mrs Donoghue had consumed the
glass of ginger beer, her friend poured the remainder of the bottle into the glass,
which to both Mrs Donoghue and her friend’s surprise, contained a partially
decomposed snail. As a consequence, the plaintiff suffered from ‘shock and
illness’, and subsequently brought a case against the manufacturer of the ginger
beer (Stevenson) for £500, asserting that it had failed in its duty to prevent
foreign objects from making their way into its products. Following Winterbottom,
the case was rejected in both of the lower courts, before being appealed to the
House of Lords where it was successful, and Donoghue was awarded damages.
Key to the decision is the reasoning of Lord Atkin (who led the majority of the
court). Atkin held that a general duty of care could be said to exist between two
parties under the ‘neighbour principle’, described in this key quote:
"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 into question."

- Lord Atkin, Donoghue v Stevenson, at 44.

Thus, Stevenson should have taken reasonable care to avoid snails or similar from
getting into its products, because it is foreseeable that they might harm someone
who consumed them. Notably, Atkin also posits (at 57) that to reject the
neighbour principle (and thus the wider application of the duty of care concept)
would be unjust, as it would allow manufacturers to knowingly send faulty
products out into the world to injure consumers.
However, Lord Atkin’s description of the neighbour principle is relatively broad in
scope, and is thus inclusive of a wide range of situations. As a result of this, a
number of cases subsequently sought to limit the application of the neighbour
principle, such as limiting it to cases involving physical harm or damage to
property (Old Gate Estates Ltd v Toplis & Harding & Russell [1939] 3 All ER 209).
Following these restrictions, the law once again returned towards the application
of a universal principle, with Anns v Merton London Borough [1978] AC 728
establishing a two-part test similar to the one employed in Donoghue. The first
part of the Anns test essentially recreates the neighbour principle - a duty can be
said to exist where it is foreseeable that someone will be harmed as a result of
negligence. The second part, however, includes the caveat that the defence can
argue against the existence of a duty with reasons of policy. It should be noted
that whilst Anns has been rejected by the UK, it is still in use in a number of other
commonwealth jurisdictions.
The Anns approach was rejected once again in favour of the test laid down in
Caparo Industries v Dickman [1990] 2 AC 605 test, which is the currently
applicable test for establishing a duty of care. This is discussed in the next section.

Examination Consideration:
Essay questions will often focus on the development of the duty of care. The law
can be seen to yo-yo between applying a universal test to establish a duty of care
(such as the neighbour principle) and an incremental approach (in other words, a
duty is only imposed in certain specified situations, with the courts adding new
situations over time.) We are currently in an incrementalist era - the courts will
first ask if a duty already exists (such as between road users or doctors and
patients), and if not, will apply the Caparo test. Universalist approaches are
criticised because they are very broad, somewhat vague, and can lead to
floodgate effects. Incrementalist approaches are criticised because they often
make arbitrary distinctions between situations where a duty exists and situations
where it does not.
The Current Law: The Caparo Test
Caparo constitutes the currently applicable test for establishing a duty of care,
and thus it is important that you have an in-depth knowledge of the how the test
is applied. It is worth noting, however, that the test should only be applied in full
in situations which do not involve a pre-defined duty of care. Such situations
include doctor-patient, solicitor-client, manufacturer-consumer and employer-
employee relationships, as well as situations involving one road user and another.
It will be sufficient to simply state that the duty of care in such a situation has long
been established (thus, allowing the use of exam time or essay word counts on
more important matters.) Indeed, this is the process undertaken by the courts -
they will first look to see if there is an established legal position on the
relationship between the two parties before applying Caparo and examining
whether a new duty of care should be created.

Case in Focus: Caparo Industries v Dickman [1990] 2 AC 605

The facts of Caparo are relatively straight-forward. A group of investors (Caparo
Industries) was looking to invest in a third-party company - Fidelity. Caparo
Industries examined the accounts of Fidelity, which had been prepared by the
defendant (Dickman). The accounts appeared to reveal that Fiedlity had made a
significant profit, and Caparo purchased a third of the company’s shares. It was
later revealed that the accounts were wrong, and that Fidelity was in fact
operating at a loss. Caparo then sued Dickman for their losses. The courts held
that there was not sufficient proximity between the accountant and Caparo
Industries - Dickman was not even aware of the existence of Caparo, and was not
aware that the accounts were used by Caparo to judge their investment
opportunities. The claim therefore failed.
The Caparo test is made up of three stages: foreseeability, proximity and fairness.
This first stage revolves around whether it is foreseeable that the defendant’s
carelessness could cause damage to the claimant. A prime example of
foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad
Co [1928] 248 N.Y. 339. In the case, the defendant dropped a box of fireworks,
which caused an explosion, which in turn caused a set of heavy metal scales to fall
onto the claimant, injuring her. Although it was possible to trace the claimant’s
injuries to the defendant’s negligence, the court denied the claim - in applying a
test of foreseeability, the courts found that it was not foreseeable that the
claimant would be injured. In contrast, consider what would have happened had
the claimant been injured by the explosion itself - it would be quite foreseeable
that dropping fireworks (of the variety found in 1928) would cause an explosion,
and that that explosion might injure someone standing close enough. If this had
been the case, then the courts would have likely found the harm to be
foreseeable.
The second stage is based on whether there is a relationship of proximity
between the defendant and the claimant. This does not dictate that there must
be physical proximity between claimant and defendant, rather that there must be
a connection between the two. An example of proximity (or, rather, a lack of
proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police
[1991] UKHL 5 - members of the general public coming across the aftermath of
the Hillsborough disaster and suffering nervous shock as a result were held to not
be owed a duty of care by the defendants, because the link between the
defendants and claimants was held to be too distant.
The third and final stage of Caparo involves establishing whether it would be fair,
just and reasonable for the courts to find that the defendant owed a duty of care
to the claimant. Owing to the vague nature of this criteria, this stage can be
thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases
where public policy might dictate that it would be unreasonable for a duty of care
to be held to exist. Examples of the use of this criteria can be seen in cases like
Marc Rich & Co v Bishop Rock Marine Co Ltd [1995] UKHL: a ship surveyor
negligently carried out a safety survey on a ship which later sunk. The courts
found that it would not be just for a duty of care to be found between the
surveyor and the owner of cargo on board the surveyed ship. Although finding
both foreseeability and proximity, the courts noted (at p.22 onwards) that it was
an industry-standard for such claims to be settled between the cargo owner and
the ship owner - both of whom bore insurance to that end. It was, thus, decided
that it would be unjust to place liability onto the safety surveyors. Despite the
apparent wide-range of cases in which this stage can be used to defeat a claim, it
is worth noting as per X (Minors) v Bedfordshire County Council [1995] 2 AC 633
(at 749), that the presumption will usually be that this stage will be passed, unless
convincing precedent exists.
So, if all three of these stages are passed, the case can be said to have satisfied
the Caparo test, and thus a duty of care can be said to exist

Examination Consideration

Now that you have a grasp of both the theoretical and legal basis for the duty of
care, you will be equipped to deal with any basic questions of duty which might
arise. Remember: Donoghue is relevant when discussing the theory of duty of
care, and thus is most relevant for essay questions. When applying the law in
problem questions, the Caparo test should be used, although remember, it is
largely a waste of time (or word count) to discuss Caparo in great depth when it is
obvious that a duty of care exists. Problem questions will usually signpost this, by
referring to situations involving established duties, such as doctor-patient or road
traffic situations.

Exceptions and Special Situations

There exists a significant variety of situations in which establishing a duty of care
becomes more complicated than simply applying the Caparo test. These
situations will often feature in problem questions as a way of testing the
completeness of your knowledge, and so it is important to be aware of them.

Liability for Omissions

Whilst a duty of care dictates that a person should not act in a way which causes
harm, in general they do not force people to take an act to prevent harm from
occurring. Thus, whilst a driver has a duty to not cause an accident through
carelessness, they do not have a duty to help those involved in an accident they
happen to come across. The principle of non-liability for omissions can be seen at
work in Stovin v Wise [1996] UKHL 15. The claimant (Stovin) was injured when
was knocked off of his motorcycle by Wise at a junction. Visibility was impaired at
the junction by a large bank of earth on the corner. Stovin claimed that the
council had a duty to make the junction safe by removing the bank of earth, and
that therefore the council was partially responsible for the accident (along with
Wise.) The claim failed on the basis that the council had not actively put the bank
of earth there, they had simply failed to remove it. This non-liability also extends
to warning - there is no general duty to warn someone of a harm.
This principle is reflected in the wider law - outside of specific circumstances
(which will be detailed below), there is no duty of care for an individual act to
prevent a foreseeable harm. For example, as morally distasteful as it might be,
there is no requirement for an individual to save a drowning child from a shallow
pond. It is worth taking into account that this is not universally accepted; other
jurisdictions (such as France) do include ‘saviour’ or ‘good Samaritan’ laws,
dictating that civil, and even criminal liability can exist for failing to act to prevent
a harm where it is feasible to do so. There are some exceptions to the rule that an
omission to act cannot give rise to claim. The law provides three general groups of
scenarios where an individual has a duty to act - where the defendant has control
of a situation, where the defendant has assumed responsibility, and where the
defendant has created or adopted a risk.
Control situations arise where a defendant has a high degree of control over an
individual (and thus is held as owing a duty to exercise that control responsibly.
For example, in Reeves v Commisioner of Police for the Metropolis [2000] 1 AC
360 the police were held responsible after an inmate on suicide-watch was able to
kill himself, after the custody officer left the hatch open on his cell, allowing the
inmate to attach his shirt and use it as a noose. This involved an omission (to close
the hatch), but because the police had control over the cells, they had a duty to
act.
Control situations also include various relationships of responsibility. Employers
have a duty to act to prevent foreseeable dangers from occurring. Thus, in
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 an employer was found to
be negligent because it had omitted to fire (or otherwise reign-in) an employee
who was known to play dangerous practical jokes on other employees. Because
the employer had control of the situation, knew of the danger, and had failed to
do anything, it was held liable.
They also include situations involving a carer (such as a parent or teacher) and
child. In Carmarthenshire County Council v Lewis [1955] AC 549 a 4-year-old
schoolchild was left unsupervised for 10 minutes by a teacher, and consequently
left the classroom and walked onto a busy road. A truck driver swerved to avoid
the child, hit a telephone pole and was killed. The courts held that the teacher
had a duty to act (in this case, to supervise the child). Again, the teacher was in
control of the situation and the harm was foreseeable.
In essence, you can ask ‘who is in charge?’ when looking for a control situation. If
the answer to that question is ‘the defendant’, then this will be a control
situation. Contrast the situation in which a passer-by fails to help a drowning
child, and one in which the observer is the person in charge of caring for the child.
The public policy reasons for this distinction are relatively intuitive - we want
those who take control of a given situation to take responsibility and act
competently.
Assumption of Responsibility situations involve, as might be expected, scenarios
where one individual implicitly takes on a duty of care by merit of a contract or
employment. For example, in Costello v Chief Constable of Northumbria Police
[1998] EWCA Civ 1898 a police inspector failed to come to the aid of a police
constable who had been attacked by a prisoner in a cell. It was held that by merit
of their joint employment, one had a duty of care to the other to act to prevent
foreseeable harm from occurring.
It is also possible for a duty of care to arise through a defendant’s actions towards
a claimant - as in Barrett v Ministry of Defence [1995] 1 WLR 1217, where a naval
officer was held to have assumed responsibility for an extremely drunk pilot after
ordering him to be taken to his bed. The pilot was not monitored, and
subsequently choked on his own vomit. Again, the naval officer assumed
responsibility and then omitted to prevent a foreseeable harm.
There is some overlap between this category and control situations - although the
two can usually be distinguished by asking whether the claimant has any say in
whether they are controlled (e.g. neither inmates nor children do.) The reasoning
behind this category is similarly simple. We want those who take responsibility for
a situation to act accordingly, and not to omit their duties.
Creation or Adoption of a Risk situations arise where a defendant creates a
dangerous situation (including accidentally.) For example, in Capital & Counties
plc v Hampshire County Council [1997] 3 WLR 331 a fire chief decided to turn off a
sprinkler on the claimant’s land, worsening a fire. Ordinarily a duty of care would
not arise for the fire service to extinguish a fire, but in worsening the situation the
service was held to have created an additional risk to the claimant’s property, and
thus a duty of care arose to deal with the risk.
Again, this can be seen as quite sensible. We want those who create risks to take
responsibility for acting to prevent those risks from occurring. Thus, whilst there is
no duty for a passer-by to report a building on fire, there is a duty for someone
who sets a building on fire to act to prevent harm.
So, if a problem question asks you to deal with an omission, you should first ask
whether it fits into one of these categories. It is important to remember that the
Caparo-test still needs to be passed - so defendants do not have a duty to act to
prevent unforeseeable harm, there must be a relationship of proximity between
the parties, and it must still be fair to impose a duty.
Examination Consideration
Remember, although situations arise in which a duty of care is obvious (e.g. driver
to driver), this duty of care will only extend to acts, not omissions. Therefore,
when dealing with a negligent omission, you should examine the situation closely
and discuss the relevant law, even if it involves parties between which a duty of
care would usually arise.
Duty of Care and Third-Party Actors
For the vast majority of cases, the actions of third parties will not impart liability
on claimants, and will usually be held as a novus actus interveniens, as per Home
Office v Dorset Yacht Co Ltd [1970]. Thus, the general rule is that there is no duty
of care to prevent a third party’s actions. However, there are exceptions to this
rule, laid down in Smith v Littlewoods [1987] UKHL 18. These exceptions include
where there is a special relationship between claimant and defendant, where
there is a special relationship between defendant and third party, where the
defendant creates a source of danger and where the defendant fails to take steps
to deal with a known danger created by a third party.
The first exception involves situations in which there is a special relationship
between the claimant and defendant before the tort is committed. The prime
example here is Stansbie v Troman [1948] 2 KB 48 - the defendant was instructed
to lock up the claimant’s premises after finishing work, and failed to do so.
Although it was a third-party who had burgled the premises, there was a pre-
existing relationship between the claimant and defendant, and thus the
defendant had a duty to lock up the premises as instructed.
The second exception involves another special relationship, but between the
claimant and the third party themselves. For example, where a defendant has
control over the third party - as in Home Office v Dorset Yacht Co Ltd [1970] UKHL
2, where the defendant (the supervisor of some young offenders) was held
responsible for the actions of those offenders after they escaped on his watch. If
the defendant had not failed in his role controlling the young offenders, the
damage would not have occurred. The supervisor was held to have a duty of care
to prevent those in his control from causing damage.
The third exception is situations involving a third party exacerbating a dangerous
situation created by the defendant. Consider Haynes v Harwood [1936] 1 KB 146,
where the defendant left some horses untethered and unattended. He was held
responsible for the damage caused by the horses when a third-party (some
children), caused them to bolt. Thus, the defendant had a duty of care to avoid
creating a situation which could easily be exacerbated by a third party.
The fourth and final exception is situations where there is a failure by the
defendant to abate a dangerous situation created by a third party. If a third party
creates a situation which the defendant knows about, and knows that they should
do something about, then a duty arises for the defendant to act to negate that
dangerous situation. See Clark Fixing Ltd v Dudley Metropolitan Borough Council
[2001] EWCA Civ 1898 - where the defendant was aware that a third-party
(trespassers) would periodically start fires on their abandoned, unsecured
property. They were held responsible when one of these fires spread to a
neighbouring property, causing damage. Their duty of care was, thus, based
around not dealing with a danger created by others, which could foreseeably do
harm.
Duty of Care and Public Service Immunity
Finally, there exists a significant exception to the duty of care principle, when it
comes to various public services.
Overall, the stance of the courts is that public services do not have a duty of care
towards individuals. This can be thought of in terms of the ‘fair, just and
reasonable’ part of Caparo - essentially the courts are remiss to find that public
services (e.g. police) have a duty to do a particular thing because this would have
a negative effect on those services overall. This includes the problem of making
public services more risk averse, for example, a police force which is sued for
failing to stop a murderer will be encouraged to put all of its resources into its
homicide division, at the cost of other policing services. Furthermore, allowing
public services to be sued would cause significant resources to be put into
defending the case, reducing the ability of that service to serve the general public.
Compensation would be paid out of public service coffers, essentially allowing
individual claimants to acquire tax payers’ money.
Police
Whilst the police hold a duty to the public at large, they do not hold a duty to any
given individual to detect a crime or a particular criminal. This can be seen in Hill v
Chief Constable of West Yorkshire [1988] 2 WLR 1049, in which the courts ruled
that the West Yorkshire police did not have an actionable duty to detect and
detain serial killer Peter Sutcliffe. Lord Keith’s statements at page 5 provide a
good run down of the reasons for not imparting a duty of care when public
services are involved. It should also be noted that this extends to situations in
which the police are aware of an explicit threat. This can be seen in Osman v
Ferguson [1993] 4 All ER 344: a teacher became infatuated with one of his pupils,
eventually stalking and even changing his name to match that of the pupil. He
contacted the police on several occasions, warning them that he would do
something dangerous. He eventually shot both the pupil and his father - the pupil
survived, the father did not. Despite this, it was held that Hill provided blanket
immunity for the police.
Furthermore, the police have no general duty to prevent harm from occurring to
individuals. Thus, in Ancell v McDermott [1993] 4 All ER 355 the courts held that in
spite of the police knowing about a diesel spill which caused a fatal road traffic
accident, there was no duty actionable to make the road safe. The police also
have no duty towards any witnesses or victims of crime. Therefore, in Brooks v
Commissioner of Police for the Metropolis [2005] 1 WLR 1495 the Metropolitan
police were held to have no duty to protect, support or assist a witness of the
murder of Stephen Lawrence.
However, a duty is imposed in certain specific situations. The police have a duty to
ensure firearms access is only given to suitable people, as per Attorney General v
Hartwell (British Virgin Islands) [2004] 1 WLR 1273. The police also have a duty to
treat confidential information diligently. Thus, a claim was allowed when
negligence caused an informant’s identity to be revealed, resulting in threats to
the informant.
Local Authorities
The courts also tend to avoid imposing liability on local authorities regarding their
decision making. This can be seen in Stovin v Wise (discussed above) on page 8,
when Lord Nicholls notes that the courts dictating the actions of a local authority
would essentially involve placing tort (and the courts) above the supremacy of
Parliament (which ultimately decides what local authorities should and should not
do).
Emergency Services
Whilst the presumption will be that there is no duty, the courts have found a duty
to arise when ambulance services are promised, but do not arrive in a reasonable
time (and have no decent excuse.) In Kent v Griffiths [2000] 2 WLR 1158 an
ambulance was promised to someone in respiratory distress, but did not arrive.
As a result, the patient went into respiratory arrest whilst waiting. It was noted by
Lord Woolf (at 47) that this was an unequivocal failure - an ambulance was freely
available, just not promptly dispatched.
As noted above, the emergency services can have a duty imposed if they attend
and make a situation worse. This can be seen in Capital & Counties plc v
Hampshire County Council (discussed above, in the section on omissions).
Administrators of Justice
Judges and arbitrators cannot be sued for negligent acts committed as part of
their work, as per Sirros v Moore [1975] AC 118. It should be noted that whilst
this same immunity once extended to barristers and solicitors, this was abolished
in Arthur JS Hall v Simons [2000] 3 WLR 543.
Regulatory Bodies
The law regarding regulatory bodies is not especially concrete. If a regulatory
body is public, then it is unlikely that the courts will impose a duty. Thus, in Harris
v Evans [1998] 1 WLR 1285it was held that a health and safety inspector had no
duty towards its clients when it mistakenly told a local authority that a crane used
for bungee jumping was unsafe.
The same can be said of private regulatory bodies, if they are acting as if they
were a public body. Thus, in Marc Rich & Co AG v Bishop’s Rock Marine Co Ltd,
The Nicholas H [1996] AC 211 a shipping classification society misadvised the
claimant that a ship was seaworthy. It was not, and the claimant lost their cargo.
Nonetheless, the courts refused to impose a duty - the society was essentially
fulfilling a state role; without it, the Government would have to create its own
regulatory body to evaluate ships, and so the courts provided the society with
public body immunity.
However, this rule appears to not apply when physical harm is involved. In Perrett
v Collins [1998] 2 Lloyd’s Rep 255 a private association misevaluated the safety of
a light aircraft, which subsequently crashed, injuring the claimant.
Thus, the first question which should be asked is whether a body is public - if so,
then it will likely be given duty immunity. If it is private, but acting in a quasi-
public capacity, then this immunity will also likely be applied, unless physical harm
is involved.
Armed Forces
Finally, the armed forces enjoy immunity from the imposition of duties of care,
but only in situations involving negligence in battle conditions, as per Mulcahy v
Ministry of Defence [1996] QB 732. The reasoning here is relatively obvious: we
want the military to operate with relative freedom, rather than worrying about
tortious liability.
Special Claimants
Finally, there are certain set situations in which a duty of care will be imposed,
even if it would traditionally be legally unfeasible.
Pre-natal Injuries
Ordinarily, a foetus’s lack of legal personhood would prevent a duty of care from
arising between a tortfeasor and the foetus. However, negligent acts can and do
affect foetuses, who are negatively affected once born. As per Burton v Islington
Health Authority [1993] QB 204, the duty of care can be thought of as existing in
limbo, until the time of the child’s birth, at which point it comes into proper
existence. Note: because it depends on birth, there is no duty of care between a
tortfeasor and a foetus which never comes to term, as per the Congenital
Disabilities (Civil Liability) Act 1976.
Rescuers
Rescuers also have special protection under the law. Ordinarily, those who come
to the scene of a negligent accident would not be owed a duty of care from the
tortfeasor by reason of proximity. Instead, the courts regard there to be sufficient
proximity between the two - indeed, there is a policy argument to be made for
protecting those who altruistically come to the aid of those in need. This extends
to those rescuing in a professional capacity, and thus in Ogwo v Taylor [1988] AC
431 the defendant was held liable for the injuries of a fireman who was
attempting to fight a negligently started fire. It should, however, be noted that
foreseeability of injury still applies - thus, in Crossley v Rawlinson[1982] 1 WLR
369 it was held that no duty existed between a defendant and a rescuer who
tripped and fell with a fire extinguisher when attempting to tackle a blaze.
Examination Consideration
You should now have a broad understanding of the duty of care concept,
including its origins, and the various exceptions which apply. In answering a
question, you should first identify whether the parties fall into any of the special
categories above and apply the particular rules, before continuing onto the
Caparo test. Remember: the Caparo test should still be applied, even if the parties
fit into a special category - just because a duty of care can exist does not
necessarily mean that it does - the criteria of foreseeability, proximity and policy
still apply.
Although it is easy and safe for Robert to act, he refuses to. This makes the duty a
matter of omission. Under Stovin v Wise no duty will arise from an omission, and
so Robert is not required to act to avoid liability.
The Current Law: The Caparo Test
Caparo constitutes the currently applicable test for establishing a duty of care,
and thus it is important that you have an in-depth knowledge of the how the test
is applied. It is worth noting, however, that the test should only be applied in full
in situations which do not involve a pre-defined duty of care. Such situations
include doctor-patient, solicitor-client, manufacturer-consumer and employer-
employee relationships, as well as situations involving one road user and another.
It will be sufficient to simply state that the duty of care in such a situation has long
been established (thus, allowing the use of exam time or essay word counts on
more important matters.) Indeed, this is the process undertaken by the courts -
they will first look to see if there is an established legal position on the
relationship between the two parties before applying Caparo and examining
whether a new duty of care should be created.
Case in Focus: Caparo Industries v Dickman [1990] 2 AC 605
The facts of Caparo are relatively straight-forward. A group of investors (Caparo
Industries) was looking to invest in a third-party company - Fidelity. Caparo
Industries examined the accounts of Fidelity, which had been prepared by the
defendant (Dickman). The accounts appeared to reveal that Fiedlity had made a
significant profit, and Caparo purchased a third of the company’s shares. It was
later revealed that the accounts were wrong, and that Fidelity was in fact
operating at a loss. Caparo then sued Dickman for their losses. The courts held
that there was not sufficient proximity between the accountant and Caparo
Industries - Dickman was not even aware of the existence of Caparo, and was not
aware that the accounts were used by Caparo to judge their investment
opportunities. The claim therefore failed.
The Caparo test is made up of three stages: foreseeability, proximity and fairness.
This first stage revolves around whether it is foreseeable that the defendant’s
carelessness could cause damage to the claimant. A prime example of
foreseeability can be seen in the US-based case of Palsgraf v Long Island Railroad
Co [1928] 248 N.Y. 339. In the case, the defendant dropped a box of fireworks,
which caused an explosion, which in turn caused a set of heavy metal scales to fall
onto the claimant, injuring her. Although it was possible to trace the claimant’s
injuries to the defendant’s negligence, the court denied the claim - in applying a
test of foreseeability, the courts found that it was not foreseeable that the
claimant would be injured. In contrast, consider what would have happened had
the claimant been injured by the explosion itself - it would be quite foreseeable
that dropping fireworks (of the variety found in 1928) would cause an explosion,
and that that explosion might injure someone standing close enough. If this had
been the case, then the courts would have likely found the harm to be
foreseeable.

The second stage is based on whether there is a relationship of proximity

between the defendant and the claimant. This does not dictate that there must
be physical proximity between claimant and defendant, rather that there must be
a connection between the two. An example of proximity (or, rather, a lack of
proximity) can be seen in Alcock v Chief Constable of South Yorkshire Police
[1991] UKHL 5 - members of the general public coming across the aftermath of
the Hillsborough disaster and suffering nervous shock as a result were held to not
be owed a duty of care by the defendants, because the link between the
defendants and claimants was held to be too distant.
The third and final stage of Caparo involves establishing whether it would be fair,
just and reasonable for the courts to find that the defendant owed a duty of care
to the claimant. Owing to the vague nature of this criteria, this stage can be
thought of as somewhat of a ‘safety valve’, allowing judicial discretion in cases
where public policy might dictate that it would be unreasonable for a duty of care
to be held to exist. Examples of the use of this criteria can be seen in cases like
Marc Rich & Co v Bishop Rock Marine Co Ltd [1995] UKHL: a ship surveyor
negligently carried out a safety survey on a ship which later sunk. The courts
found that it would not be just for a duty of care to be found between the
surveyor and the owner of cargo on board the surveyed ship. Although finding
both foreseeability and proximity, the courts noted (at p.22 onwards) that it was
an industry-standard for such claims to be settled between the cargo owner and
the ship owner - both of whom bore insurance to that end. It was, thus, decided
that it would be unjust to place liability onto the safety surveyors. Despite the
apparent wide-range of cases in which this stage can be used to defeat a claim, it
is worth noting as per X (Minors) v Bedfordshire County Council [1995] 2 AC 633
(at 749), that the presumption will usually be that this stage will be passed, unless
convincing precedent exists.
So, if all three of these stages are passed, the case can be said to have satisfied
the Caparo test, and thus a duty of care can be said to exist.
Examination Consideration
Now that you have a grasp of both the theoretical and legal basis for the duty of
care, you will be equipped to deal with any basic questions of duty which might
arise. Remember: Donoghue is relevant when discussing the theory of duty of
care, and thus is most relevant for essay questions. When applying the law in
problem questions, the Caparo test should be used, although remember, it is
largely a waste of time (or word count) to discuss Caparo in great depth when it is
obvious that a duty of care exists. Problem questions will usually signpost this, by
referring to situations involving established duties, such as doctor-patient or road
traffic situations.
Exceptions and Special Situations
There exists a significant variety of situations in which establishing a duty of care
becomes more complicated than simply applying the Caparo test. These
situations will often feature in problem questions as a way of testing the
completeness of your knowledge, and so it is important to be aware of them.
Liability for Omissions
Whilst a duty of care dictates that a person should not act in a way which causes
harm, in general they do not force people to take an act to prevent harm from
occurring. Thus, whilst a driver has a duty to not cause an accident through
carelessness, they do not have a duty to help those involved in an accident they
happen to come across. The principle of non-liability for omissions can be seen at
work in Stovin v Wise [1996] UKHL 15. The claimant (Stovin) was injured when
was knocked off of his motorcycle by Wise at a junction. Visibility was impaired at
the junction by a large bank of earth on the corner. Stovin claimed that the
council had a duty to make the junction safe by removing the bank of earth, and
that therefore the council was partially responsible for the accident (along with
Wise.) The claim failed on the basis that the council had not actively put the bank
of earth there, they had simply failed to remove it. This non-liability also extends
to warning - there is no general duty to warn someone of a harm.
This principle is reflected in the wider law - outside of specific circumstances
(which will be detailed below), there is no duty of care for an individual act to
prevent a foreseeable harm. For example, as morally distasteful as it might be,
there is no requirement for an individual to save a drowning child from a shallow
pond. It is worth taking into account that this is not universally accepted; other
jurisdictions (such as France) do include ‘saviour’ or ‘good Samaritan’ laws,
dictating that civil, and even criminal liability can exist for failing to act to prevent
a harm where it is feasible to do so. There are some exceptions to the rule that an
omission to act cannot give rise to claim. The law provides three general groups of
scenarios where an individual has a duty to act - where the defendant has control
of a situation, where the defendant has assumed responsibility, and where the
defendant has created or adopted a risk.
Control situations arise where a defendant has a high degree of control over an
individual (and thus is held as owing a duty to exercise that control responsibly.
For example, in Reeves v Commisioner of Police for the Metropolis [2000] 1 AC
360 the police were held responsible after an inmate on suicide-watch was able to
kill himself, after the custody officer left the hatch open on his cell, allowing the
inmate to attach his shirt and use it as a noose. This involved an omission (to close
the hatch), but because the police had control over the cells, they had a duty to
act.
Control situations also include various relationships of responsibility. Employers
have a duty to act to prevent foreseeable dangers from occurring. Thus, in
Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 an employer was found to
be negligent because it had omitted to fire (or otherwise reign-in) an employee
who was known to play dangerous practical jokes on other employees. Because
the employer had control of the situation, knew of the danger, and had failed to
do anything, it was held liable.
They also include situations involving a carer (such as a parent or teacher) and
child. In Carmarthenshire County Council v Lewis [1955] AC 549 a 4-year-old
schoolchild was left unsupervised for 10 minutes by a teacher, and consequently
left the classroom and walked onto a busy road. A truck driver swerved to avoid
the child, hit a telephone pole and was killed. The courts held that the teacher
had a duty to act (in this case, to supervise the child). Again, the teacher was in
control of the situation and the harm was foreseeable.
In essence, you can ask ‘who is in charge?’ when looking for a control situation. If
the answer to that question is ‘the defendant’, then this will be a control
situation. Contrast the situation in which a passer-by fails to help a drowning
child, and one in which the observer is the person in charge of caring for the child.
The public policy reasons for this distinction are relatively intuitive - we want
those who take control of a given situation to take responsibility and act
competently.

Assumption of Responsibility situations involve, as might be expected, scenarios

where one individual implicitly takes on a duty of care by merit of a contract or
employment. For example, in Costello v Chief Constable of Northumbria Police
[1998] EWCA Civ 1898 a police inspector failed to come to the aid of a police
constable who had been attacked by a prisoner in a cell. It was held that by merit
of their joint employment, one had a duty of care to the other to act to prevent
foreseeable harm from occurring.
It is also possible for a duty of care to arise through a defendant’s actions towards
a claimant - as in Barrett v Ministry of Defence [1995] 1 WLR 1217, where a naval
officer was held to have assumed responsibility for an extremely drunk pilot after
ordering him to be taken to his bed. The pilot was not monitored, and
subsequently choked on his own vomit. Again, the naval officer assumed
responsibility and then omitted to prevent a foreseeable harm.
There is some overlap between this category and control situations - although the
two can usually be distinguished by asking whether the claimant has any say in
whether they are controlled (e.g. neither inmates nor children do.) The reasoning
behind this category is similarly simple. We want those who take responsibility for
a situation to act accordingly, and not to omit their duties.
Creation or Adoption of a Risk situations arise where a defendant creates a
dangerous situation (including accidentally.) For example, in Capital & Counties
plc v Hampshire County Council [1997] 3 WLR 331 a fire chief decided to turn off a
sprinkler on the claimant’s land, worsening a fire. Ordinarily a duty of care would
not arise for the fire service to extinguish a fire, but in worsening the situation the
service was held to have created an additional risk to the claimant’s property, and
thus a duty of care arose to deal with the risk.
Again, this can be seen as quite sensible. We want those who create risks to take
responsibility for acting to prevent those risks from occurring. Thus, whilst there is
no duty for a passer-by to report a building on fire, there is a duty for someone
who sets a building on fire to act to prevent harm.
So, if a problem question asks you to deal with an omission, you should first ask
whether it fits into one of these categories. It is important to remember that the
Caparo-test still needs to be passed - so defendants do not have a duty to act to
prevent unforeseeable harm, there must be a relationship of proximity between
the parties, and it must still be fair to impose a duty.
Examination Consideration
Remember, although situations arise in which a duty of care is obvious (e.g. driver
to driver), this duty of care will only extend to acts, not omissions. Therefore,
when dealing with a negligent omission, you should examine the situation closely
and discuss the relevant law, even if it involves parties between which a duty of
care would usually arise.
Duty of Care and Third-Party Actors
For the vast majority of cases, the actions of third parties will not impart liability
on claimants, and will usually be held as a novus actus interveniens, as per Home
Office v Dorset Yacht Co Ltd [1970]. Thus, the general rule is that there is no duty
of care to prevent a third party’s actions. However, there are exceptions to this
rule, laid down in Smith v Littlewoods [1987] UKHL 18. These exceptions include
where there is a special relationship between claimant and defendant, where
there is a special relationship between defendant and third party, where the
defendant creates a source of danger and where the defendant fails to take steps
to deal with a known danger created by a third party.
The first exception involves situations in which there is a special relationship
between the claimant and defendant before the tort is committed. The prime
example here is Stansbie v Troman [1948] 2 KB 48 - the defendant was instructed
to lock up the claimant’s premises after finishing work, and failed to do so.
Although it was a third-party who had burgled the premises, there was a pre-
existing relationship between the claimant and defendant, and thus the
defendant had a duty to lock up the premises as instructed.
The second exception involves another special relationship, but between the
claimant and the third party themselves. For example, where a defendant has
control over the third party - as in Home Office v Dorset Yacht Co Ltd [1970] UKHL
2, where the defendant (the supervisor of some young offenders) was held
responsible for the actions of those offenders after they escaped on his watch. If
the defendant had not failed in his role controlling the young offenders, the
damage would not have occurred. The supervisor was held to have a duty of care
to prevent those in his control from causing damage.
The third exception is situations involving a third party exacerbating a dangerous
situation created by the defendant. Consider Haynes v Harwood [1936] 1 KB 146,
where the defendant left some horses untethered and unattended. He was held
responsible for the damage caused by the horses when a third-party (some
children), caused them to bolt. Thus, the defendant had a duty of care to avoid
creating a situation which could easily be exacerbated by a third party
The fourth and final exception is situations where there is a failure by the
defendant to abate a dangerous situation created by a third party. If a third party
creates a situation which the defendant knows about, and knows that they should
do something about, then a duty arises for the defendant to act to negate that
dangerous situation. See Clark Fixing Ltd v Dudley Metropolitan Borough Council
[2001] EWCA Civ 1898 - where the defendant was aware that a third-party
(trespassers) would periodically start fires on their abandoned, unsecured
property. They were held responsible when one of these fires spread to a
neighbouring property, causing damage. Their duty of care was, thus, based
around not dealing with a danger created by others, which could foreseeably do
harm.
Duty of Care and Public Service Immunity
Finally, there exists a significant exception to the duty of care principle, when it
comes to various public services.
Overall, the stance of the courts is that public services do not have a duty of care
towards individuals. This can be thought of in terms of the ‘fair, just and
reasonable’ part of Caparo - essentially the courts are remiss to find that public
services (e.g. police) have a duty to do a particular thing because this would have
a negative effect on those services overall. This includes the problem of making
public services more risk averse, for example, a police force which is sued for
failing to stop a murderer will be encouraged to put all of its resources into its
homicide division, at the cost of other policing services. Furthermore, allowing
public services to be sued would cause significant resources to be put into
defending the case, reducing the ability of that service to serve the general public.
Compensation would be paid out of public service coffers, essentially allowing
individual claimants to acquire tax payers’ money.

Police
Whilst the police hold a duty to the public at large, they do not hold a duty to any
given individual to detect a crime or a particular criminal. This can be seen in Hill v
Chief Constable of West Yorkshire [1988] 2 WLR 1049, in which the courts ruled
that the West Yorkshire police did not have an actionable duty to detect and
detain serial killer Peter Sutcliffe. Lord Keith’s statements at page 5 provide a
good run down of the reasons for not imparting a duty of care when public
services are involved. It should also be noted that this extends to situations in
which the police are aware of an explicit threat. This can be seen in Osman v
Ferguson [1993] 4 All ER 344: a teacher became infatuated with one of his pupils,
eventually stalking and even changing his name to match that of the pupil. He
contacted the police on several occasions, warning them that he would do
something dangerous. He eventually shot both the pupil and his father - the pupil
survived, the father did not. Despite this, it was held that Hill provided blanket
immunity for the police.
Furthermore, the police have no general duty to prevent harm from occurring to
individuals. Thus, in Ancell v McDermott [1993] 4 All ER 355 the courts held that in
spite of the police knowing about a diesel spill which caused a fatal road traffic
accident, there was no duty actionable to make the road safe. The police also
have no duty towards any witnesses or victims of crime. Therefore, in Brooks v
Commissioner of Police for the Metropolis [2005] 1 WLR 1495 the Metropolitan
police were held to have no duty to protect, support or assist a witness of the
murder of Stephen Lawrence.
However, a duty is imposed in certain specific situations. The police have a duty to
ensure firearms access is only given to suitable people, as per Attorney General v
Hartwell (British Virgin Islands) [2004] 1 WLR 1273. The police also have a duty to
treat confidential information diligently. Thus, a claim was allowed when
negligence caused an informant’s identity to be revealed, resulting in threats to
the informant

Local Authorities
The courts also tend to avoid imposing liability on local authorities regarding their
decision making. This can be seen in Stovin v Wise (discussed above) on page 8,
when Lord Nicholls notes that the courts dictating the actions of a local authority
would essentially involve placing tort (and the courts) above the supremacy of
Parliament (which ultimately decides what local authorities should and should not
do).
Emergency Services
Whilst the presumption will be that there is no duty, the courts have found a duty
to arise when ambulance services are promised, but do not arrive in a reasonable
time (and have no decent excuse.) In Kent v Griffiths [2000] 2 WLR 1158 an
ambulance was promised to someone in respiratory distress, but did not arrive.
As a result, the patient went into respiratory arrest whilst waiting. It was noted by
Lord Woolf (at 47) that this was an unequivocal failure - an ambulance was freely
available, just not promptly dispatched.
As noted above, the emergency services can have a duty imposed if they attend
and make a situation worse. This can be seen in Capital & Counties plc v
Hampshire County Council (discussed above, in the section on omissions).
Administrators of Justice
Judges and arbitrators cannot be sued for negligent acts committed as part of
their work, as per Sirros v Moore [1975] AC 118. It should be noted that whilst
this same immunity once extended to barristers and solicitors, this was abolished
in Arthur JS Hall v Simons [2000] 3 WLR 543.
Regulatory Bodies
The law regarding regulatory bodies is not especially concrete. If a regulatory
body is public, then it is unlikely that the courts will impose a duty. Thus, in Harris
v Evans [1998] 1 WLR 1285it was held that a health and safety inspector had no
duty towards its clients when it mistakenly told a local authority that a crane used
for bungee jumping was unsafe.

The same can be said of private regulatory bodies, if they are acting as if they
were a public body. Thus, in Marc Rich & Co AG v Bishop’s Rock Marine Co Ltd,
The Nicholas H [1996] AC 211 a shipping classification society misadvised the
claimant that a ship was seaworthy. It was not, and the claimant lost their cargo.
Nonetheless, the courts refused to impose a duty - the society was essentially
fulfilling a state role; without it, the Government would have to create its own
regulatory body to evaluate ships, and so the courts provided the society with
public body immunity.
However, this rule appears to not apply when physical harm is involved. In Perrett
v Collins [1998] 2 Lloyd’s Rep 255 a private association misevaluated the safety of
a light aircraft, which subsequently crashed, injuring the claimant.
Thus, the first question which should be asked is whether a body is public - if so,
then it will likely be given duty immunity. If it is private, but acting in a quasi-
public capacity, then this immunity will also likely be applied, unless physical harm
is involved.
Armed Forces
Finally, the armed forces enjoy immunity from the imposition of duties of care,
but only in situations involving negligence in battle conditions, as per Mulcahy v
Ministry of Defence [1996] QB 732. The reasoning here is relatively obvious: we
want the military to operate with relative freedom, rather than worrying about
tortious liability.
Special Claimants
Finally, there are certain set situations in which a duty of care will be imposed,
even if it would traditionally be legally unfeasible.
Pre-natal Injuries
Ordinarily, a foetus’s lack of legal personhood would prevent a duty of care from
arising between a tortfeasor and the foetus. However, negligent acts can and do
affect foetuses, who are negatively affected once born. As per Burton v Islington
Health Authority [1993] QB 204, the duty of care can be thought of as existing in
limbo, until the time of the child’s birth, at which point it comes into proper
existence. Note: because it depends on birth, there is no duty of care between a
tortfeasor and a foetus which never comes to term, as per the Congenital
Disabilities (Civil Liability) Act 1976.
Rescuers
Rescuers also have special protection under the law. Ordinarily, those who come
to the scene of a negligent accident would not be owed a duty of care from the
tortfeasor by reason of proximity. Instead, the courts regard there to be sufficient
proximity between the two - indeed, there is a policy argument to be made for
protecting those who altruistically come to the aid of those in need. This extends
to those rescuing in a professional capacity, and thus in Ogwo v Taylor [1988] AC
431 the defendant was held liable for the injuries of a fireman who was
attempting to fight a negligently started fire. It should, however, be noted that
foreseeability of injury still applies - thus, in Crossley v Rawlinson[1982] 1 WLR
369 it was held that no duty existed between a defendant and a rescuer who
tripped and fell with a fire extinguisher when attempting to tackle a blaze.
Exmination Consideration
You should now have a broad understanding of the duty of care concept,
including its origins, and the various exceptions which apply. In answering a
question, you should first identify whether the parties fall into any of the special
categories above and apply the particular rules, before continuing onto the
Caparo test. Remember: the Caparo test should still be applied, even if the parties
fit into a special category - just because a duty of care can exist does not
necessarily mean that it does - the criteria of foreseeability, proximity and policy
still apply.
Although it is easy and safe for Robert to act, he refuses to. This makes the duty a
matter of omission. Under Stovin v Wise no duty will arise from an omission, and
so Robert is not required to act to avoid liability.

Economic Loss
What is a ‘Pure’ Economic Loss?
Not all foreseeable losses stemming from negligence are recoverable. Economic
losses are treated in a significantly different manner than damages for injury or
property damage. This is largely because of the self-limiting manner of injury and
property damage. For example, a negligent driver who creates an accident will
only cause so much physical harm - eventually the cars involved will come to a
stop, no further harm will stem from the driver’s negligence.
Economic damage however, is far less easy to quantify, can grow out of
proportion very quickly. Consider a situation in which a driver takes out an
electricity pylon supplying a small village. If economic harm was recoverable, then
the driver could be liable for the loss of business of every shop and business run
from that village. Perhaps one of those businesses failed to make a sale, which in
turn would have given it the ability to invest in a stock which consequently took
off, meaning that even a relatively small economic loss could be linked to a huge
loss in potential profits. In combination with various economic phenomena like
compound interest, our negligent driver has the potential for almost infinite
liability. Whilst this might satisfy a desire for absolute justice (indeed, those
business owners affected by the power outage are not at fault), this is clearly an
untenable situation. No insurer would be able to cover such a loss, and it would
consequently become impossible to purchase effective insurance to cover this
liability. As such the law places significant limits on the recovery of pure economic
losses.
The presiding rule is therefore that pure economic loss is not recoverable - that is,
economic losses which cannot be directly traced back to harm to a person or
property. However, there exists three primary exceptions to this rule: where the
loss is based on physical damage to the claimant’s property, where the negligence
act causes a claimant to acquire defective goods or property, or when economic
loss stems from negligent misstatement. It should be noted that the ‘usual’ rules
of negligence still apply here, so there must still be a duty of care in line with
Caparo, a breach of duty, and that breach must have caused the loss.
Economic Loss Due to Physical Damage
Where an economic loss stems from physical damage to a product or equipment,
then it is recoverable. This principle is best understood by looking at the leading
precedent of Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1
QB 27.
Case in Focus: Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1
QB 27
The claimant ran a smelting business from its factory, taking scrap metal, and
melting it down in order to purify it. It should be noted that this process took
some time, and that if interrupted half-way through, the metal would re-solidify,
leaving a sub-par product as well as damaging the involved furnaces. The
defendants were digging with an excavator nearby when they damaged a cable
supplying electricity to the claimant’s factory. This cable was not owned by the
claimants. The claimant’s factory consequently had to shut down for 15 hours. As
a result, Spartan suffered three harms (and attempted to claim for all three).
1) During the power outage, the factory’s furnaces shutdown mid-melt, causing
half-processed steel to solidify. This meant that the furnaces were damaged and
the steel was unusable. The first harm was therefore the harm caused to the
furnace and the damage to the steel.
2) Spartan intended to sell the steel which was damaged by the power outage at a
profit. The second harm was therefore the loss of profit because Spartan could
not sell it at full price.
3) Spartan claimed that it was unable to process steel during the power outage.
Had the power supply been uninterrupted, it would have started another steel
melt, which would have brought the factory more profit. The third harm was
therefore the loss of profit due to the factory’s non-operation.
The first harm was unproblematic - the contractors were held to have a duty of
care to the factory owners which was breached. This resulted in physical harm to
the furnaces and the steel, and was thus recoverable. This should not be
surprising - if a driver negligently drives through a shop window, then they will be
held liable for the cost of replacing the shop window and any stock they
damaged, and the same principle applies here.
The second harm was also held to be recoverable - although lost profits are an
economic harm, it was held that the lost profits were a direct result of damaging
the steel. Thus in our above example, the driver would not only be liable for the
cost of replacing the damage stock, but also for the loss of profits on that stock.
So, if the stock cost £500 to buy, but would have been sold for £1000, then the
driver would be liable for the full amount - £500 costs plus £500 profit.

The third harm was not held to be recoverable. It was purely economic in nature -
nothing had directly affected the steel which would be melted in the future, and
so this was an attempt to claim a purely economic loss. This would be the
equivalent of the shopkeeper claiming for the profits which were lost during time
spent repairing the shop and is not recoverable.
Exam Consideration: The distinction made between the different harms in Spartan
is important - the rule is that economic loss stemming directly from physical harm
is recoverable. You should ask what has been damaged in a given situation, and
limit recoverable economic harm to the cost of replacement (or repair) plus lost
profits, but only from the damaged property. It should also be noted as a general
exception that where a case involves physical harm to a claimant, then lost
earnings are recoverable; but this should be considered to be a symptom of tort
law’s habit of proactively compensating claimants for personal physical harm,
rather than as a part of the law regarding pure economic loss.
Economic Loss Due to Negligence Causing a Claimant to Acquire Defective Goods
or Property
As a general rule, tort will not compensate for the economic loss of receiving a
defective product. There have been some cases which appear to ignore this rule,
however. These should be treated cautiously as an eccentricity, rather than as
evidence of any ongoing rule or legal principle, particularly since they have since
been overturned. Nonetheless, they represent an important, if temporary,
exception to the rule on pure economic loss.
Before describing the law in this area, it is worth noting the position of tort law on
defective products. As a rule, it is not possible to recover damages in tort for a
defective product. So, if someone sells you a new car which you expect to have a
fuel consumption of 40 miles per gallon, but due to a fault it only gets 20 miles
per gallon, that is not recoverable in tort. A helpful distinction between property
damage and property defect can be that damage involves hurting the quality of a
product, whereas defect involves a product being created in a damaged form. For
example, if someone damages your new car in an accident, the quality can be
described as going from 10/10 to 8/10. However, if someone sells you a new car
and it is defective, you receive an 8/10 car in the first place. There’s no direct
damage by the seller, the car doesn’t ‘lose’ anything: it has just always been of a
sub-par quality. Its resale value will be harmed however, meaning you lose money
down the line - an economic loss. Tort is prepared to deal with damage and harm,
but leaves it to contract law to deal with defective products. However, contract
law will often fail to cover all eventualities. In particular, it is not always the
parties to a contract who will be harmed by a breach, and so the rule of privity of
contract will prevent the injured party from bringing a claim in contract law. This
somewhat explains law’s position on defective property - the desire to fill in a gap
left by contract law.
The primary case in this area is Anns v Merton London Borough Council [1978] AC
728.
Case in Focus: Anns v Merton London Borough Council [1978] AC 728
The defendant (a local council) negligently approved plans for a block of flats
which contained foundations which were too shallow (furthermore, the
defendant failed to inspect the foundations during construction.) As a result
several defects emerged in the properties built on the foundations, such as cracks
in the walls and the sloping of floors. This meant that the claimants had to spend
money correcting the fault. No physical harm to person or property was caused
by the negligence, meaning that the damage was purely economic. Nonetheless,
the courts ruled that negligence had occurred, causing the claimants to acquire
faulty property - the economic loss here can be thought of as the difference in
value between a flat in a safe condition, and one which has poorly designed
foundations and is therefore unsafe.The courts ruled that a duty of care existed
between the defendants and the claimants to exercise appropriate skill when
inspecting the plans. The loss was held to be recoverable as a result:
"what is recoverable is the amount of expenditure necessary to restore the
dwelling to a condition in which it is no longer a danger to the health or safety of
persons occupying and possibly (depending on the circumstances) expense arising
from the necessary displacement"
- Lord Wilberforce, at 759.
This principle was applied similarly in Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC
520. The defendants negligently laid the flooring of a newly constructed factory.
This meant that the floor had to be replaced before it could be used. The
claimants therefore sued for the cost of replacing the floor, and the profits lost
whilst the floor was re-laid. The claimants were successful, and recovered for lost
profits.
The basis for these exceptions can be thought of as a type of ‘preventative
compensation’ - rather than waiting for someone to be injured by a faulty building
and then suing, the courts appear to have decided to make the cost of repair
recoverable, before injury or damage has occurred.
However, Anns was overruled in Murphy v Brentwood District Council [1991] 1 AC
398 - making Murphy the leading case. Again, a council approved faulty plans for
some buildings. The resulting properties developed cracks, causing a loss of value
in the buildings. The courts ruled that this was not recoverable - it was purely an
economic loss, nothing was damaged and nobody was hurt, and so the only harm
was receiving a building with a lesser value.
Usefully, in Murphy, Lord Bridge points out the reasoning behind ‘preventative
compensation’ of the type seen in Anns and Junior:
"If a building stands so close to the boundary of the building owner’s land that
after discovery of the dangerous defect it remains a potential source of injury to
persons or property on neighbouring land or on the highway, the building owner
ought, in principle, to be entitled to recover in tort from the negligent building the
cost of obviating the danger, whether by repair or demolition, so far as that cost is
necessarily incurred in order to protect himself from potential liability to third
parties."
- Lord Bridge, at 926
In essence, Lord Bridge is pointing out the odd nature of having a legal principle
which dictates that someone must be injured by a negligently constructed
building before the builder might be sued in tort, rather than one which states
that tort should act proactively to prevent the damage from occurring in the first
place.
Exam Consideration: Although overruled or otherwise ignored by the English law
currently, Anns and Junior represent a distinct departure from the status quo. It is
important to be aware of it when discussing the theory of economic loss.
Furthermore, the position in Anns remains influential in number of
commonwealth jurisdictions where it has not been overturned.
In practical situations (i.e. problem questions) it will largely be sufficient to note
that whilst the Anns and Junior exception exists, Murphy takes precedence, and
so it is unlikely that recovery for the acquisition of a defective product will be
possible. This should not be regarded as a complete oversight - never forget that
contract law exists to deal with products and transactions! At the same time,
privity of contract prevents a certain proportion of claimants with no legal
recourse, demonstrating the reasoning behind the law’s deviation in this area.
Economic Loss Due to Negligent Misstatement
Finally, there exist a category of cases involving economic loss due to negligent
misstatement.
Case in Focus: Hedley Byrne & Co Ltd v Heller and Partners Ltd [1964] AC 265
The claimant was a marketing company which was approached by a third-party
with an offer of work. The claimant then went to the third-party’s bank for a
reference to ensure that it would be able to pay them for the work. The
reference was prepared without examining the company’s current financial
status. Relying on the reference, the claimants contracted with the company. In
actual fact, the company’s financial status was poor, and it went into liquidation
before it paid the marketing agency - causing a purely economic loss. The
claimant then sued the defendant (the bank). The courts ruled that the loss was
of a recoverable nature. It should be noted, however, that the bank had attached
a disclaimer to its advice, and so the courts rejected the claim, (although the case
still stands as precedent).
Four conditions must be met before it is possible to recover economic losses due
to negligent misstatement.
A special relationship must exist between the parties. This will usually involve one
party acting as an expert advisor. Thus, in Cornish v Midland Bank plc [1985] 3 All
ER a mortgage advisor failed to explain to a client that she would be responsible
for all of her husband’s debt. As a result, she lost a lot of money when the house
was sold following their divorce. This relationship needn’t be particularly
professional. In Chaudry v Prabhakar [1989] 1 WLR 29, the defendant was advised
by a friend (who had a self-proclaimed knowledge of cars) that a car she was
looking to buy had not been in any accidents. The opposite was true, and the car
was in fact not road-worthy. Thus, relationship of trust does not need to be
professional-to-client, it simply needs to be expert-to-non-expert.
The advising party (or expert) needs to have voluntarily assumed the risk of
misadvising. In Cornish Bank for example, the defendant might have chosen to
not sell the mortgage to the claimant. As seen in Hedley Byrne, it is also possible
to use a disclaimer to avoid liability. In other words, someone who says ‘here is
my advice but you should not rely on it’ is effectively saying ‘I do not assume the
risk of misadvising’.
There must be reliance on the advice by the defendant. So, in the Hedley Byrne
scenario, if it could be shown that the claimant would have contracted with the
third-party regardless of the bank’s advice, it would have no claim - there was no
reliance on the advice given.
Notably, just because both parties are ‘experts’ does not mean that reliance does
not exist. Whilst it used to be the case that those negotiating a contract could not
be held to be in reliance on one another with regards to expert advice, this has
since been overturned. Thus, in Esso Petroleum v Mardon[1976] QB 801, the
defendant (Esso) was liable for negligently overstating the business prospects of
one of its petrol stations. The claimant purchased the petrol station and then
made large losses, and subsequently sued for negligent misstatement,
successfully.
The reliance on the advice must be reasonable and foreseeable. This can be
thought of as a control measure, letting the courts separate worthy and unworthy
cases. This is illustrated in Law Society v KPMG Peat Marwick [2000] 4 All ER 540 -
the defendant negligently prepared a report on the financial status of a solicitors’
firm for the claimant (the Law Society). The firm subsequently went bankrupt,
meaning the Law Society had to pay out nearly £9 million in compensation to the
firm’s clients. Since the entire purpose of the report was to alert the law society
to any firms which might be in financial distress, it was held reasonable for the
Law Society to rely on the report, and the claim was upheld.
There are a number of other specific situations which can arise with regard to
negligent misstatement. Firstly, the claimant does not have to be the individual
who has commissioned the advice in the first place - although the claimant must
still be in the mind of the defendant. Thus, in Smith v Eric S Bush [1990] 1 AC 831
the claimant sought a mortgage on a house, and the mortgage company
employed a surveyor to check for structural defects. The surveyor acted
negligently, and failed to notice such defects. The claim was upheld. Although the
claimant was not the primary recipient of the report (the mortgage company
was), she was held to still have a viable claim - it would take no great stretch of
the imagination for a surveyor to realise that mortgage companies do not survey
houses for fun, but rather in order to work out the viability of a house as security
on a mortgage. In turn, this means, logically, that a potential buyer exists who will
foreseeably rely on the structural report.
Secondly, it is rare that a widely disseminated statement will meet the threshold
for negligent misstatement, especially where the claimant is using the
misstatement for a purpose other than that which it is designed for. This can be
seen in Caparo (discussed in detail in the Duty of Care chapter) - the defendant’s
evaluation of the company was for the purposes of informing current
shareholders of the company’s status, rather than enabling third-parties to work
out the viability of a takeover. Thus, because the claimant used the report in a
non-ordinary manner, the claim failed. The same principle can be seen at work in
Mariola Marine Corporation v Lloyd’s Register of Shipping [1990] 1 Lloyd’s Rep
547 - the claimant relied on a report from the defendant stating that a yacht was
in a good state or repair, buying it. In actual fact, the yacht had severe corrosion,
devaluing it. Because the original report was only intended to denote
seaworthiness, rather than economic value, the claim failed.
It should be noted that this point is not entirely intuitive - third parties often use
audits of the nature used in Caparo to work out whether a company is a viable
purchase, and it is arguably foreseeable that a third party will use a yacht safety
report in order to work out whether a yacht is a good purchase or not. Thus, this
rule should be regarded as somewhat of a legal fiction. Notably, this principle will
not stand, however, should the defendant know of the claimant’s intentions.
Thus, in Morgan Crucible Co v Hill Samuel & Co [1991] Ch 295 the defendant
widely disseminated a negative report on its own financial state as a means of
dissuading a takeover bid from the claimant. The report was later found to be
inaccurate. The claimants sued and won - although the report was disseminated
widely, the defendants knew that the claimants would use it to determine the
viability of its bid. So, specific knowledge of a claimant’s intentions will defeat the
rule against imposing liability for widely disseminated misstatements.

Thirdly, there exists a legal oddity in the form of cases regarding ‘negligent
silence’. Such situations are not beyond imagination - if you always received
advice from someone before you made a bad decision, it would not be
unreasonable for you to assume that silence from that person would imply that
the decision you are making is good. However, the law has stopped short of
imposing a duty to avoid silence in such situations. See Banque Keyser Ullman
(UK) Insurance Co v Skandia[1991] 2 AC 249, in which (obiter) it was stated that
there was nothing, in principle, preventing silence from giving rise to negligent
misstatement liability. However, it is important to note that ultimately, liability
was not imposed in the case, primarily because such an approach would run
contrary to the contract law on silence in negotiations
Fourthly, negligent misstatement can occur where the defendant is a public
authority. However, as noted in the chapter on duty of care, it should be assumed
as a starting point that liability will not be conferred. An example of where it will
be however is seen in Welton v North Cornwall District Council [1997] 1 WLR 570.
A food health inspector inspected the claimant’s guest house, and noted a
number of changes that the guest house must make to avoid being shut down.
After making these changes (at significant expense), the claimant discovered that
many of them were not actually required. The claimant sued for negligent
misstatement and won.
This can be contrasted with Harris v Evans [1998] 3 All ER 522, in which a safety
inspector declared that a crane used for bungee jumping had to be officially
certified for that purpose. The claimant objected, and was issued a prohibition
notice, preventing the claimant from operating. It emerged that the inspector was
wrong, and so the prohibition notice was wrongly issued. The courts held that
Parliament could not have ever intended for safety inspectors to be liable for
mistakenly over-applying legislation, and so the claim failed. Notably, however,
the courts held that liability might arise should an inspector give bad advice which
resulted in a new danger being created. Thus, a distinction can be seen between a
scenario in which a local authority acts to make a situation too safe, and one in
which it acts to make a situation less safe.
Therefore, liability for misstatement can be seen to apply where public bodies are
involved but they act in a way which is not consummate the purposes of their
empowering legislation. Consider the difference between the two cases - in the
former, the claimant unnecessarily spent money because the defendant advised
that it was compulsory to do so. The purpose of the statute giving the food
inspector power was to ensure a basic standard of food safety was met, but the
misstatement caused the claimant to go far beyond that standard. It is unlikely
that parliament intended for
In contrast, the statute giving the safety inspector power was misapplied, but it
would not be sensible to have safety inspectors worry about making things too
safe - this would run contrary to the statute. It should also be noted that the
relevant statute included its own appeals process for prohibition noticed - this
meant that there was already a remedy in place for the claimant, both lessening
the need for a remedy in tort to apply, and implying that Parliament knew of the
risk of overeager enforcement, and so created a process to deal with it.
Exam Consideration: Negligent misstatement is a favourite area for problem
questions because it tests both your general knowledge of negligence, as well as
niche knowledge of the Hedley Byrne criteria, and the further sub-rules regarding
third-parties etc. Its importance should therefore not be underestimated.
It also indicates the importance of having commercial knowledge within the law -
without a basic commercial grounding, you will not be well placed to identify
whether a given action in a problem question is reasonable or not.

Psychiatric Illness
How does Tort Treat Psychiatric Illness?
In a similar manner to the way tort law treats economic loss, claims in tort for
negligently caused psychiatric illness have their own set of rules which must be
followed before a valid claim can be made. However, whilst it is relatively
straightforward to see why economic losses should be controlled (namely, their
potentially infinite nature), the contemporary reasoning behind the restriction on
claims for psychiatric harm are a little less clear. Indeed, as will be revealed below,
it is far easier for a claimant to make a claim for small cut on his or her arm, than
it is for that same claimant to receive damages for years of psychological harm.
Historically, the reasoning becomes a little clearer - it is only in recent years that
psychological illness has become relatively well understood and accepted as a
facet of healthcare, whereas in the past it was far more likely to be seen as a
character flaw (e.g. male mental illness was ascribed to wimpiness, women were
thought of as being hysterical etc.)
However, there is some obvious basis for restricting claims for psychiatric harm
stemming from a negligent act. Take, for example, a particularly gruesome car
accident. Physical harm will usually be restricted to the passengers in the involved
vehicles, with some associated property damage. In contrast, the psychological
ramifications of such an accident can be much further reaching. Those involved
might be traumatised, but then so might those who are witness to the accident.
At the same time, accidents tend to attract rescuers, both in an official capacity
(fire, police services) and an unofficial capacity (passers-by), all of whom might be
exposed to situations which take a long term toll on their mental health. Finally,
the information age has brought about the ability for (at a leap) billions of
individuals to witness a given event in both live and recorded forms, who
themselves might be negatively affected by a witnessed event. It is thus clear that
some restrictions need to be put in place in order to have a practically viable
system for compensating psychiatric harm. These restrictions can be separated
into two camps - firstly, there are restrictions on the nature of the psychiatric
harms which can be claimed for. Secondly, whilst the elements of negligence
(duty, breach, causation, remoteness) are the same for claim involving psychiatric
harm, there are certain principles governing the exact forms that they take.
General Rule One: Psychiatric Injuries Must Be Medically Recognised
Not all psychiatric harms are recognised by the law equally. Instead, as a means of
separating legitimate and illegitimate claims the law states that psychiatric injury
must manifest in a medically recognised condition. In the past, legitimate claims
were based around the idea of ‘nervous shock’, although nowadays you are more
likely to find references to post-traumatic stress disorder (PTSD) and various other
specifically defined mental illnesses.
Post-Traumatic Stress Disorder
This can be seen in Leach v Chief Constable of Gloucestershire Constabulary
[1999] 1 WLR 1421. The claimant was working as an unpaid volunteer when,
without warning as to the nature of his crimes, she agreed to act as an
appropriate adult for serial killer Fred West during the investigation of his crimes.
As a result she suffered PTSD (and a stroke). Due to their failure to provide proper
support to the claimant, it was held that the defendant had failed in its duty to
support her, and the claim succeeded.
Pathological Grief
As per Vernon v Bosley (No. 1) [1997] 1 All ER 577, pathological grief (read: really
serious grief) constitutes a medically recognised condition in tort law. The
claimant was called to a car accident in which his daughters died, and suffered
from PTSD-like symptoms. The defendant argued that these symptoms were
simply a matter of simple grief, and thus not actionable. The court disagreed - the
claimant’s symptoms were beyond that which might be expected of usual grief.
Personality Disorder
As seen in Chadwick v British Railways Board [1967] 1 WLR 912, the claimant lived
nearby to the site of a serious train crash (with 90 fatalities). He attended as an
untrained rescuer, and due to the traumatic nature of the events he had
witnessed, developed a number of personality disorders (namely, acute neurosis
and anxiety) resulting in 6 months of treatment as a psychiatric inpatient.
Trauma-Induced Miscarriage
Although not strictly a psychiatric injury (rather, a physical harm occasioned by
psychiatric trauma), there are a number of cases in which traumatic events have
been linked to miscarriages. This can be seen in Bourhill v Young [1943] AC 92.
The claimant, who was pregnant at the time, went into shock after witnessing the
death of the defendant, who was riding his motorcycle carelessly. She
subsequently brought a case against the defendant’s estate. It should be noted
that the case failed - there was insufficient proximity between the defendant and
the claimant, although it still stands as an example of miscarriage as a medically
recognised injury for the purposes of tort.
Unrecognised Psychiatric Harms
As a general rule, sadness, grief or general distress are not covered - they are held
to be expected parts of everyday life. The distinction between actionable grief
and anxiety and non-actionable grief and anxiety can be seen in two cases.

Case in Focus: Hinz v Berry [1970] 2 QB 40

The defendant lost control of his vehicle at speed, crashing into a stationery car
and killing the claimant’s husband and badly injuring her children. The courts
made a distinction between the morbid depression that the claimant suffered and
ordinary inactionable grief:
"In English law no damages are awarded for grief or sorrow caused by a person's
death. No damages are to be given for the worry about the children, or for the
financial strain or stress, or the difficulties of adjusting to a new life. Damages are,
however, recoverable for nervous shock, or, to put it in medical terms, for any
recognisable psychiatric illness caused by the breach of duty by the defendant."
- Lord Denning MR, at 41.
A similar rationale can be seen in Rothwell v Chemical and Insulating Co [2007]
UKHL 39. The claimants sued their employer when they discovered that they had
developed pleural plaques in their lungs - an indication that they had been
exposed to dangerous levels of asbestos. The courts rejected their claims for the
anxiety caused by the knowledge that they might later develop a more serious
disorder, because the anxiety had not manifested itself in any diagnosed state.
Notably, there was one claimant who did develop a mental illness as a result of
this anxiety, and so surpassed this hurdle, but the claim failed for lack of
foreseeability.
Exam Consideration: You are unlikely to have a working knowledge of all mental
health conditions, and so it will usually be up to you to work out whether the
injury constitutes a recognised condition. If you’re lucky, it will be obvious (e.g.
the claimant will be described precisely as having PTSD or depression).
If general symptoms are offered up, then ask whether the symptoms described
affect the claimant’s behaviour on a long-term basis (e.g. sleepless disorders,
anxiety). If so, then they will roughly fit into the PTSD or pathological grief criteria.
If symptoms are short-term, then they are more likely to fit into the general, non-
actionable mental distress category.
If outside of an exam setting, a list of generally recognised conditions can be
found online, in the Diagnostic and Statistical Manual of Mental Disorders (usually
abbreviated as DSM-5).
General Rule Two: Psychiatric Injuries Must be Caused by a Sudden Event
As a means of controlling the claims made under the heading of psychiatric injury,
the courts have also stipulated that such injury must now be caused by a sudden
event. This means that cases involving ‘slow burn’ illness (such as long term
exposure to a harmful influence) are unlikely to be recoverable under this heading
of damages.
Case in Focus: Alcock v Chief Constable of South Yorkshire [1992] 1 AC 310
The case arose as a result of the 1998 Hillsborough Disaster. In short: various
police failings meant that a large crowd of football supporters were allowed into a
crowded, fenced-in terrace at a Hillsborough football stadium. In turn, this led to
a severe crowd crush incident in which 95 people were killed. This was witnessed
by a large number of individuals - both in-person and via TV broadcasts of the
disaster as it occurred. In reference to the types of claims which are recognised by
tort, Lord Ackner said the following:
"Shock in this context involves the sudden appreciation by sight or sound of a
horrifying event, which violently agitates the mind. It does not include psychiatric
illness caused by the accumulation over a period of time of more gradual attacks
of the nervous system."
- Lord Ackner, at para. 400E
Thus, in order for a psychiatric injury to be recognised as actionable in tort, it
must be caused by the claimant suddenly seeing something distressing. In
addition to this key principle, this case also provides an outline of the primary and
secondary victim classes (discussed below.) It also provides a key example of the
potentially wide-reaching effects of a negligent act in when public media is
involved.
The idea of ‘suddenness’ should not be taken to mean ‘immediate’. This can be
seen in Walters v North Glamorgan NHS Trust [2002] EWCA Civ 1792 - the
claimant’s 10-month-old son suffered negligently caused liver failure, and died
over the next 36 hours. Although the event itself was relatively protracted, this
was held to be sufficiently immediate.

Duty of Care and Psychiatric Harm

Assuming the above rules have been followed, the next step is establishing a duty
of care between claimant and defendant. As per Alcock (facts immediately
above), this duty of care is based on three elements - foreseeability, proximity,
and nature of ‘shock’. It is important to note at this point the distinction the law
makes between the duty a defendant has towards primary victims and the duty a
defendant has towards secondary victims.
Case in Focus: Page v Smith [1996] AC 155
The defendant negligently failed to give way when moving from a side road onto
a main road. This resulted in a collision with the claimant’s car. Whilst the
claimant was physically unharmed by the accident, it caused him to suffer from
myalgic encephalomyelitis (ME) (also known as Chronic Fatigue Syndrome) - a
psychiatric injury which he had previously had, but which was in remission before
the accident. The key issue was whether this harm was foreseeable or not.
The court held that that two classes of claimants exist with regard to psychiatric
injury - primary and secondary. With the former class including those directly
involved in an accident or incident (for example, those in the car for traffic
accidents), and the latter including those who witness the accident or incident. It
was held that for primary victims, foreseeability of a physical injury is sufficient to
allow a primary victim to claim for a psychiatric injury. So, in a traffic accident
such as this one, if it is held to be reasonably foreseeable that turning onto a main
road unexpectedly would cause physical harm, then this is regarded as being
sufficient to establish foreseeability of psychiatric harm.
The Scope of Primary Victims
Whilst, broadly, the primary victim category is relatively straight forward to
understand, there have been two specific groups of people that the law has
historically placed in the primary category.
The first of these groups are rescuers - those who attend the scene of an accident.
Whilst these were included in the primary category in Alcock, the law has since
been modified so that rescuers are only considered primary victims when they are
either objectively exposed to danger or they hold a reasonable belief that they
are in danger. The source for this principle can be found in White and Others v
Chief Constable of the South Yorkshire Police [1999] 2 AC 455. Like Alcock, this
case also revolved around the events of the Hillsborough disaster, but involved
various members of the police claiming for psychiatric injury as rescuers attending
the disaster. The court rejected the idea that they were primary victims of the
event, stating that in order to fit into this category they must be exposed (or
reasonably believe themselves to be exposed) to danger. This was not the case
for the police, and so the claim failed. It was also notably pointed out that there
were already statutory schemes in place aimed at helping police exposed to
particular traumatic events.
To better understand the primary victim principle, consider the following
example. A negligently caused explosion on an oil-rig results in a fire. There are
three ways someone can become a primary victim of such an event. Firstly, those
hurt by the explosion will be primary victims - they are physically harmed by the
negligence (and this is foreseeable). Thus, following Page they will be able to
claim for psychiatric injury.
Secondly, there are those who come to the aid of the oil-rig workers after seeing
the explosion. Assuming that those rescuers are place into physical risk by the
fire, they can be considered to be in the ‘danger-zone’, and are therefore primary
victims, who can claim for psychiatric injury, as per White.
Thirdly and finally, some of those who attend might not factually be exposed to
the dangers of the fire, but might believe themselves to be - for instance, they
might rush in to help others, believe themselves to be at risk, when in actual fact
the fire has been contained. As long as the rescuer’s belief that they are in the
danger-zone is reasonable, then they will be able to claim for psychiatric injury as
a primary victim, again, as per White.
The second group of people is those who believed themselves to have caused the
death or injury of another were included in this category. Note: such people are
now regarded as secondary victims, although for a short while they were seen as
primary victims.
This can be seen in Dooley v Cammell Laird [1971] 1 Lloyd’s Rep 271 - the
claimant was a dockside crane operator working for the defendant. Whilst loading
a ship with heavy materials, the cable on the defendant’s crane snapped (it
emerged that the cable provided was too weak for the job). The load dropped
suddenly into the hold of the ship. This meant that the claimant could not see if
he had killed anyone or not. Believing, temporarily, that he had killed somebody
(or a number of people), the claimant suffered acute shock, aggravating a pre-
existing psychological condition. This was held to be a valid claim - the claimant
had a reasonable belief that he had killed someone.
This was later refined so that the claimant had to be present when death or injury
occurred. So, in Hunter v British Coal [1998] 2 All ER 97, an operator of mining
vehicle hit a water hydrant whilst driving through a poorly lit, overly narrow
section of mine. He attempted to close the hydrant with the help of a colleague.
He left temporarily to get a hose to drain the pooling water. The hydrant then
exploded, killing his colleague. He ran to turn off the water, and was told 10
minutes later that his colleague was dead. He believed that he was responsible
for killing his colleague (because he drove into the hydrant). As a result, he
became ill with serious depression. In legal terms, however, the accident was held
to be caused by the defendant, who had a responsibility to properly maintain the
mine, so as to avoid such accidents. However, the claimant’s case failed - he was
not present when the death (or injury) actually occurred, and only found out
about it 10 minutes later.
Exam Consideration: Remember, unless exposed to danger (as per White), those
who are caused to believe themselves to have killed someone are now considered
to be secondary, rather than primary victims. Nonetheless, in discussing the
development of the law it is important to know how the category of primary
victims has changed over the past few decades.
Secondary Victims
In order for a claimant to have a viable claim as a secondary victim, they must
satisfy a number of criteria. Firstly, there must be a close emotional link between
the traumatic event and the claimant’s psychiatric injury. In other worlds, the
courts largely require that the secondary victim be closely related in some way to
a primary victim. Alcock once again illustrates this point: although ten of the
claimants involved were relatives of primary victims of the incident, it was held
that the police had no duty to them, because they were not spouses or parents of
primary victims. Regardless of this ruling, it should be emphasised that the rule is
that there must be a close emotional link, not that the secondary victim must be a
husband or parent of a primary victim. Rather, whilst cases involving spouses and
parents have a rebuttable presumption towards there being a sufficiently close
relationship, other relationships can satisfy this criterion. It should also be noted
that this rule becomes proportionally more relaxed in relation to the seriousness
of the harm to the primary victim.
Indeed, it was mooted in McFarlane v EE Caledonia Ltd [1995] 2 All ER 1, that
should the situation be sufficiently grievous a bystander might be able to claim -
although it should also be acknowledged that the claim was rejected in this case.
So, a less serious incident affecting the primary victim requires a closer
relationship before a claim can be made, and vice versa.
Exam Consideration: Because of the relative vagueness of the ‘close relationship’
category, it can often crop up in problem questions as a means of testing your
ability to argue coherently in situations without clear cut rules. This might take
the form of either an estranged parental or spousal relationship (in other words:
you need to rebut the presumption), or a different family tie which is described in
the text as being extremely close, such as siblings or fiancées (in this situation,
you’ll need to argue for the closeness of the relationship.)
Secondly, the secondary victim must be both close in terms of ‘spatial and
temporal proximity’ (translation: same time, same place.) In other words, there
must be at least a rough correlation between the harm done to the primary victim
and the secondary victim’s experience of the harm. As seen in McLoughlin v
O’Brian [1983] 1 AC 410, this extends a relatively long time after the instigating
event. The claimant’s husband and children were involved in a serious traffic
accident. The claimant only found out about the accident two hours later, and she
was immediately taken to the hospital to see her family. She then learned that
her youngest daughter had been killed, and saw the injuries of her husband and
children, who were still covered in oil and mud. The claimant sued the defendant
for psychiatric injury. Her claim succeeded - the claimant came upon the
immediate aftermath of the incident, and this was held to be sufficiently close in
space and time.
Thirdly, the secondary victim must see or hear the immediate aftermath of the
instigating event. The importance of such a rule can be seen in Alcock - a huge
number of people saw the events over TV (remember, the disaster took place
during a football broadcast, and then via live news.) It should be noted that the
rule is not that seeing a primary victim die or get injured on a TV broadcast makes
a claim invalid. Instead, the logic in Alcock was that it was impossible to identify
individual primary victims from the broadcast, and so whilst viewers might know a
close relation was in that particular stand of the stadium, they could not directly
see the harm done to them. Indeed, Lord Acker notes that it is possible for a
secondary victim to have a valid claim upon seeing a primary victim over
television:
"Although the television pictures certainly gave rise to feelings of the deepest
anxiety and distress, in the circumstances of this case the simultaneous television
broadcasts of what occurred cannot be equated with the "sight or hearing of the
event or its immediate aftermath." Accordingly shocks sustained by reason of
these broadcasts cannot found a claim. […] Many other such situations could be
imagined where the impact of the simultaneous television pictures would be as
great, if not greater, than the actual sight of the accident.”
- Lord Acker, at 921.
These three criteria combined provide the basis for a claim as a secondary victim.
As can be seen, none of these criteria are particularly strict. Because of this, it is
often helpful to think of each of them as existing along a spectrum, in
combination with the seriousness of the involved incident, so a relationship
spectrum, a proximity spectrum, and a perception spectrum. A case which ‘scores
high’ on these three, and involves a serious harm is likely to be a valid claim - so a
wife who sees her husband die in front of her, with her own eyes is likely to have
a valid claim. Conversely, a distant third cousin, who finds out about a primary
victim’s bruise days later when they see it happen on television, is not likely to
have a claim.
Exam Consideration: A useful memory aid for the elements of secondary victims’
claims is to create your own fictional situation (such as those immediately above)
as a means of bringing all of the elements together.
Other Legal Principles
There are a few other principles which apply in cases of psychiatric injury.
Foreseeability
When dealing with secondary victims, it must be reasonably foreseeable that a
psychiatric injury might occur to someone in the given circumstances. So, to
reiterate, when dealing with primary victims the standard is foreseeable physical
or psychiatric injury, whilst when with secondary victims the standard is just
foreseeable psychiatric injury.
The ‘Egg-shell Skull’ Rule
Secondly, the ‘egg-shell skull’ (as often seen in criminal law) applies to psychiatric
injury. In essence, this means that a claimant’s particular psychiatric injury does
not need to be foreseeable - the mere fact that some psychiatric harm is
foreseeable is enough to satisfy the criteria. This rule can be seen in Brice v Brown
[1984] 1 All ER 997 - the claimant was particularly susceptible to mental illness
due to a pre-existing condition. As a result of a car crash, she became neurotically
obsessed with her daughter’s safety. She sued for psychiatric injury and lost - it
was not foreseeable that a person of reasonable fortitude would acquire a
psychiatric injury from an accident of the nature involved in the case. However,
had some psychiatric injury been foreseeable, then the defendant would have
been held accountable for the full extent of the claimant’s condition - not just
that which could be reasonable foreseen.
Primary Victim as Defendant
Secondary victims cannot recover when the defendant is also the primary victim.
In other words, if an individual negligently causes themselves a horrible injury, a
secondary victim cannot sue for psychiatric injury, as per Greatorex v Greatorex
[2000] 4 All ER 769.
Damage to Property
Although the case law regarding secondary victims focuses on seeing other
people get hurt, there is precedent to suggest that seeing property destroyed can
be sufficient to establish a case for psychiatric injury. This can be seen in Attia v
British Gas[1988] QB 304 - the claimant returned home one day to see her house
fiercely aflame, as a result of negligence by the defendant. It was held to be
foreseeable that such a sight would cause psychiatric injury, and so damages were
recoverable.
Injurious News
Finally, there is precedent to suggest that negligently presenting shocking news to
someone that can meet the standard for actionable psychiatric injury. In Allin v
City and Hackney Health Authority [1996] 7 Med LR 167, the claimant was told,
inaccurately, that her baby was dead. It was held that the defendant had a duty to
avoid such false disclosures, and so a case for psychiatric injury was found to
exist.

Breach of Duty Lecture

Once a duty of care has been found, it is then necessary to ask whether the
defendant has acted in such a way as to have breached that duty of care. The key
thing to ascertain here is therefore the standard expected of the defendant. Once
that has been done, it is also necessary to examine the actions of the defendant
to see whether they have fallen short of this standard.
Before continuing, it should be noted that the standard of care will always be
based on reasonable foreseeability. This means that the courts will not ask the
defendant whether they foresaw a certain outcome or not, but rather they will
seek to work out what the defendant ought to have foreseen. This means that
cases which involve highly unlikely outcomes are not likely to be successful. See
Fardon v Harcourt-Rivington [1932] All ER Rep 81 - the defendant’s dog, which
was usually docile, was left in the defendant’s car. It started jumping around and
barking, and in the process of doing so smashed a window, resulting in glass
entering the claimant’s eye. The courts ruled the outcome was a ‘fantastic
possibility’, and therefore not foreseeable. In contrast, the defendant was only
obliged to avoid ‘reasonable probabilities’.
So, before dealing with any case, it is first worth asking ‘are the defendant’s
injuries caused by a fantastic possibility, or a reasonable probability?’ If the
answer to this question is the former, then the courts are unlikely to rule that the
duty of care was breached.
Ascertaining the Standard of Care for Different Defendants
The existence of a duty of care does not mandate perfect behaviour. Whilst there
is certainly a duty of care between drivers and other road users, this duty does
not mandate that every driver must drive perfectly. Instead, the law strikes a
balance between providing compensation where a failure has been particularly
egregious, and where a genuine accident has occurred. As such, Donoghue v
Stevenson (and subsequent cases) have held defendants to the standard of the
reasonable man. If a defendant has acted reasonably, then they will not have
breached the duty of care, and vice versa. Although this seemingly suggests that
defendants are always judged against objective standards, there does exist some
scope to alter the test, depending on the characteristics of the defendant.
The general rule is that defendants are expected to act with a reasonable level of
skill in the activity they are undertaking. Consider the leading case of Nettleship v
Watson.
Case in Focus: Nettleship v Watson [1971] 3 WLR 370
The defendant was a learner driver, taking lessons a friend - the claimant. Before
agreeing to teach her, the claimant checked to see if the defendant’s insurance
covered passengers. After turning a bend, the claimant told the defendant to
straighten the wheel. She panicked, and before the claimant could grab the
wheel, the car crashed into a lamppost, fracturing the claimant’s knee.
The defendant argued two points. Firstly, that as a learner driver, she should be
judged against a lower standard of care (and therefore, that her actions did not
breach the standard of care expected of a learner driver.) Secondly, that because
the claimant agreed to get into the car with a learner driver, a defence of volenti
non fit injuria (voluntary acceptance of risk) applied.
Both of these arguments failed. The courts held that some who undertakes a task
should be judged against the standard of a reasonably qualified, competent
person undertaking that task.
The second argument failed on the grounds that the claimant did not waive his
rights - he demonstrated this when he checked the driver’s insurance.
Thus, the courts do not recognise a tiered system of competency, at least as far as
those learning a new skill are concerned. So, the standard of care expected of, for
example, an amateur archer, is the same as the standard of care expected of a
reasonably competent archer. In essence, this means that a defendant cannot rely
on their own lack of skill or knowledge as a defence. The most important general
principle regarding breach is therefore that the applicable standard of care is that
of a reasonably competent person undertaking that activity.
Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 provides further guidance as
to the standard of behaviour expected of a ‘reasonably competent person’. The
defendant was participating in a motor race when he lost control of his vehicle,
killing and injuring spectators. In identifying the ‘reasonable man’, some guidance
was provided, describing him, at points, as ‘the man in the street’ or ‘the man on
the Clapham Omnibus’. Essentially, the reasonable man should not be considered
as acting perfectly, merely, averagely. In turn, this means that defendants are not
asked to act perfectly; instead, they are held to an average standard.
As might be expected, there are a number of exceptions to the general rule, as
follows.
Defendants with Certain Medical Conditions
Firstly, in the past the courts have held defendants to a standard which takes into
account certain medical conditions a defendant might be suffering from. This can
be seen in Mansfield v Weetabix.
Case in Focus: Mansfield v Weetabix [1998] EWCA Civ 1352
The defendant was suffering from an undiagnosed condition (malignant
insulinoma, resulting in hyperglycaemia), and as a result drove his lorry into a
shop owned by the claimant. The driver had also been involved in two minor
accidents on the same day. The outcome is best explained by Leggatt LJ:
"In my judgement, the standard of care that [the driver] was obliged to show in
these circumstances was that which is to be expected of a reasonably competent
driver unaware that he is or may be suffering from a condition that impairs his
ability to drive. To apply an objective standard in a way that did not take account
of [his] condition would be to impose strict liability…"
- Leggatt LJ, at 1268
It is important to take note of the logic at play here - if the driver was held to be
negligent then this would involve blaming him for an accident he had no
reasonable way of preventing. At the same time, it can be argued that the shop
owner had absolutely nothing to do with the destruction of his shop, and so
should be able to recover. Regardless, this case demonstrates that the courts will
not simply seek to find the person who is most at blame for an incident. Rather,
they will ensure that a party has passed a certain threshold for culpability before
they are held responsible. Overall, the take away point is that someone who is
reasonably unaware of a medical condition will not have it held against them in
determining breach.
Children
As might be expected, children are held to a different standard then adults when
it comes to determining the applicable standard of care. The standard is instead
that of an ordinary child of the defendant’s age as per Orchard v Lee [2009] EWCA
295. In the case a 13-year-old was playing in a playground at his school. He ran
into the defendant (who was supervising the playground at the time) and injured
her. The courts ruled that no breach had occurred - the 13-year-old was acting in
the usual manner expected of a 13-year-old.
However, this should not be taken as meaning that children are able to escape all
liability - thus, in Mullin v Richards [1998] 1 WLR 1304 the courts considered a
similar question as in Orchard - the claimant and defendant were mock-fighting
with plastic rulers. One of the rulers broke, causing an injury to the claimant’s eye.
The courts considered such an incident from the perspective of a 15-year-old and
found that it was reasonably foreseeable, and they accordingly imparted liability
on the defendant (whilst at the same time reducing damages by 50%, due to the
contributory negligence by the claimant, who by the same logic should have
foreseen the incident).
It is worth noting that there is no minimum age for liability under tort law
(although of course, the younger the child, the harder it will be to show a breach
of standard of care, and the likelihood of young children having a duty of care
towards one another is small). As such, whilst young age will often help a
defendant avoid liability, it does not operate as a complete defence.
Sporting Events
The courts will also apply a different standard of care to those participating in
sporting events than it ordinarily would. This is exhibited in Woolridge v Sumner
[1963] 2 QB 43. The defendant was participating in an equestrian event when his
horse went out of control, left the track and injured a spectating photographer. It
was held that there was no negligence on the part of the rider, rather a simply
error of judgement (which might reasonably be made by a participant). The logic
behind such a decision is also extrapolated upon, by Diplock LJ at 67: “A
reasonable spectator attending voluntarily to witness any game or competition
knows and presumably desires that a reasonable participant will concentrate his
efforts on winning. […] If the participant does so concentrate his attention […] the
question of whether any mistake he makes amounts to a breach of duty to take
reasonable care must take account of these circumstances”. In essence, Diplock LJ
notes the inherent risks involved in sporting activities - they often involve moving
faster or more violently than would ordinarily be expected of an individual.
Consider the difference between someone driving on the road and someone
driving on a race track - whilst the activity is similar, the expected standard of
behaviour differs greatly. This is taken into account by the law.
However, it is worth keeping in mind that participants in sporting activities must
still act in a manner reasonably expected of someone playing that sport. This is
exhibited in Caldwell v Maguire [2001] EWCA Civ 1054 - the claimant was injured
when he fell off his horse during a race. It was submitted that two other jockeys
had undertaken an unsafe manoeuvre, causing the dismount. In examining the
claim, the courts noted that whilst the standards of behaviour which apply in
sporting situations are lower than those which might apply in everyday life, this
does not mean that standards do not exist in the sporting realm at all. Instead,
sporting competitors are still expected to act in a reasonable manner - both in
terms of following the rules of a sport and in terms of acting with skill and
aptitude.
Those Acting as Professionals
An additional expectation exists regarding those who are acting as a professional.
The relevant standard of care in such situations is not that of the reasonable
person. Instead, professionals are judged against the standards of their
profession. This is based on the Bolam test.
Case in Focus: Bolam v Friern Hospital Management Committee [1957] 1 WLR
583
The claimant underwent a court of Electro-Convulsive Therapy (ECT) in a hospital
whilst being treated for severe depression. Such treatment (which is now rarely
employed) had the aim of causing seizures. The defendant failed to provide the
claimant with either muscle relaxants or restraints during the procedure, and as a
result the claimant suffered from a number of dislocations and fractures.

The courts sought to apply the Nettleship standard - that of an ordinary man
exercising a specific skill, but ran into trouble - there were conflicting views within
the medical profession on the use of relaxants or restraints during the procedure.
As such, they implemented the Bolam-test: that is, those acting as professionals
are expected to act in accordance with a competent body of professional opinion.
Because a body of opinion existed which stated that it was preferable to carry out
the procedure without relaxants or restraints, the practitioner had not breached
the standard of care, and the claim therefore failed.
Although Bolam involved medical practitioners, it has been held to apply in
general to other professionals. This has also involved widening the test to take
into account non-traditional professions. Thus, it has been applied in cases
involving auctioneers in Luxmoore-May v Messenger May Baverstock [1990] 1
WLR 1009, through to window designers in Adams v Rhymney Valley DC [2000]
Lloyd’s Rep PN 777.
There is one further clarification to the rule for professional, as per Bolitho v City
and Hackney Health Authority [1998] AC 232. The claimant (a 2-year-old child)
was a patient in hospital who died when a doctor failed to attend to clear her
blocked airways and intubate. At trial, the defendant and another doctor claimed
that had they attended, they would not have intubated, and thus were acting in
accordance with a Bolam standard of care. The courts held that a course of action
must be capable of withstanding logical analysis before it is protected by the
Bolam test. Thus, the overall principle is that for professionals, the minimum
expected standard of care is based on a body of professional opinion, but that
opinion must be logically defensible. In Bolitho itself, it was ruled that there was a
logically defensible argument to be made regarding not intubating, and so the
claim failed.
Clarifying the Reasonable Standard of Care
The courts will often see novel situations which defy quick reference to the
reasonable person due to their unique facts or circumstances. The courts have
therefore created a framework which deals with the factors surrounding a given
incidence of negligence. The relevant standard of care therefore shifts depending
both on the nature of the defendant, and the nature of the activity being
undertaken.

Magnitude of Risk
There are two ways the magnitude of risk affects the relevant standard of care.
The first of these is likelihood of risk, and the second is the seriousness of the risk
involved.
If a risk is particularly pronounced, then there will be an expectation that the
reasonable person will act to prevent that risk from occurring, as per Bolton v
Stone [1951] AC 850 and Miller v Jackson [1977] QB 966. Both cases involved
damage caused by errant cricket balls; however, in the former case it was shown
that cricket balls rarely left the cricket ground, and so the risk of damage was
small. Conversely, in the latter case, cricket balls left the ground several times
every season, constituting a reoccurring risk. Although the damage in both cases
was of a similar nature, negligence was only found in the latter case; because the
likelihood of injury was higher, so was the applicable standard of care. This also
demonstrates the principle of foreseeability - in the former case it was not
particularly foreseeable that harm would occur because cricket balls rarely left
the ground, and vice versa for the latter case.
The same principle can be operating in Haley v London Electricity Board [1965] AC
778 - the defendant was sued for failing to provide proper safety fences around a
hole it was digging on a London street. As a result, the claimant, who was blind,
fell into the hole, injuring himself. Because it was held to be a foreseeable risk
that someone blind would be walking down the street, and would therefore be
unprotected from the hazard, the claim was successful. In contrast, consider a
case with similar facts, but in which the hole was dug in a remote field - because
the likelihood of a blind person falling into the hole is far lower, so is the expected
standard of care.
This is an arguably logical stance - if, for example, a lab is working with the highly
infectious Ebola virus, we’d want it to act with the utmost care because it
presents a likely risk. Conversely, it would be unjust to apply this high standard to
a secondary school lab working with some benign bacteria - the likelihood of it
harming someone is far, far lower. As such, the law will seek to impose a standard
of care which scales proportionally with the risk involved.
Regarding the seriousness of the risk involved, this refers not to whether a
harmful event is likely to occur, but rather to the seriousness of the harm which
will occur should that harmful event take place. Again, this is based around
foreseeability. Thus, in Paris v Stepney Borough Council [1951] AC 367 the
claimant, a mechanic, was working for the defendants. He was blind in one eye,
and his employers knew this. One day whilst working a chip of metal flew off of a
vehicle he was working on, and entered his good eye, leaving the claimant
completely blind. It was not an ordinary practice to supply goggles to mechanics
at the time. However, the courts held that the applicable standard of care was
higher because the defendants were aware of the seriousness of harm that might
befall their one-eyed employee, but had failed to act. The claim was therefore
successful.
In comparison, consider the same situation, but one in which the claimant was
only at risk of losing sight in one eye - because the foreseeable harm is less
seriousness, so would be the applicable standard of care. Alternatively, consider a
situation in which the defendants were not aware of the claimant’s blindness in
one eye (through no fault of their own). In such a situation, it would not be
foreseeable that the claimant might be blinded by a single metal chip, and so the
applicable standard of care would be lower.
This can be brought back to the lab situation above - we’d like a lab working with
Ebola to be held to a high standard of care because the seriousness of a mistake is
high. In contrast, a mistake in the school lab would not be serious at all.
In summary, a higher standard of care will be applied to situations involving either
a high likelihood of harm or situations involving a high seriousness of harm (or
both).
Cost of Precaution
The courts will take into account the cost of precaution when considering the
applicable standard of care. Succinctly: the lower the cost of a precaution, the
more reasonable it will be held for the defendant to have taken it, and vice versa.
This can be seen in Latimer v AEC Ltd [1953] AC 643. The claimant was working in
a factory which because flooded after a heavy storm. The rainwater mixed with an
oil-based cooling agent used in the factory, and this left an oily film on the factory
floor after the water was drained away. Whilst the defendants spread sawdust
over most of the floor, they did not have enough sawdust to cover the entirety of
it. The claimant was injured when he slipped on this uncovered floor.
The claim, however, failed. The only way to have prevented the risk would have
been to close the affected part of the factory until it had dried out, and this was
held to be a disproportionally expensive measure to have taken. As such, not
closing the affected section of the factory down did not breach the reasonable
standard of care, and the claim failed.
Note: It might be instinctual to conclude that the factory should have had more
sawdust on hand to deal with the slipperiness, and that this was the real breach
which occurred. However, keep in mind that the reason the entire stock of
sawdust was used up was due to the unpredictably heavy rainfall. In other words,
the factory’s supply of sawdust was enough to deal with reasonably foreseeable
situations
Therefore, when dealing with a risk, an inquiry should be made regarding the cost
of prevention. In ascertaining whether a defendant has acted reasonably, the
courts will take into account whether preventative measures could have been
taken, and the cost of such measures. However, it should be noted that it is
unlikely that a defendant will be able to use lack of money as a defence. After all,
safety is usually the first concern we’d like businesses and organisations to deal
with, rather than financial viability. Anyone who disagrees should be advised to go
bungee jumping with a company who shares their own philosophy on safety!
Exam Consideration: You’re unlikely to have expertise in many of the industries
which appear both in relevant cases and problem questions. As such, it’s up to
you to come up with a coherent argument regarding reasonable industry
behaviour when it comes to the cost of prevention.
Social Value of Activity
Finally, the courts will apply a lesser standard of care to socially valuable activities,
and vice versa. This principle is best understood via the relevant leading case -
Watt v Hertfordshire County Council [1954] 1 WLR 835. The claimant was a
fireman on the way to an accident - some 300 yards away from the fire station
itself. A heavy lorry jack was required at the scene of the accident, but the usual
vehicle for transporting the jack was unavailable. As a result, the fire chief
ordered the claimant and another fireman to lift the jack onto the back of a truck.
During the journey there was no way of securing the jack, and when the truck
braked, the heavy jack fell onto the claimant’s leg, causing severe injuries.
The courts denied the claim - the emergency nature of the situation and the utility
of saving a life outweighed the need to take proper precautions.
However, it should be noted that even when the social value of an activity is
extremely high, there still exists a need to act with relative diligence. This can be
seen in comparing Watt (above) and Ward v London County Council [1938] 2 All
ER 341 - the defendant was a fire engine driver who, whilst on the way to an
incident, caused an accident by driving through a red light. The courts held that
slowing down sufficiently at the junction would not have substantially affected
the service’s emergency response, and that the social value of the fire service’s
activities did not justify needlessly endangering other road users.
Thus, the courts can be seen to apply a lower standard of care where the
defendant’s activities have significant social value, although this will not usually
justify all behaviour undertaken by the defendant.
It is also worth noting that the social value of a given activity is dependent on the
context of that activity. This principle can be seen at work in Scout Association v
Barnes [2010] EWCA Civ 1476. The claimant was injured when he ran into a wall
whilst playing a game at a Scouting Association, in the dark. The courts were left
to ascertain whether the chance of injury that the game presented was in
proportion to the social value of the activity. In particular, there existed a
question regarding the decision to play the game in the dark (which provided
additional excitement but at additional risk). The courts ruled that whilst there
was additional value in playing the game in the dark, this turned an ordinarily
risky, but socially justified activity, into one which could not be justified by
reference to social value. Thus, an activity which ordinarily didn’t breach standard
of care became unacceptable when the context changed (in this case, the status
of the activity changed once in the dark). It is therefore necessary to not only
question the social value of an activity in establishing the relevant standard of
care, but also to question the context surrounding the activity - games played in
the dark can become too dangerous, and fire engines which go too fast can
become so risky that the benefits of prompt fire service dispatch can outweigh
the risks.

Exam Consideration: When it comes to standard of care, examiners will not be

looking for a perfect evaluation of the relevant standard of care - although if you
can provide such a thing, do so! Instead, the important thing is to demonstrate
that you are aware of all of the different factors that the courts consider in finding
the standard of care - likelihood/seriousness of breach, cost of precaution and
social value.
Proving Breach
Once the relevant standard of care has been established, it is up to the claimant
to argue that the defendant breached the standard. This will be based on the
balance of probabilities - in other words, the claimant must argue that it was
more likely than not that the defendant breached the standard of care.
Res Ipsa Loquitor
Translated as ‘the facts speak for themselves’, this refers to specific situations in
which the claimant cannot directly show that the defendant factually acted in a
negligent manner, but also in which the claimant argues that it is obvious that
their injuries were caused by the defendant’s negligence. In other words, the
claimant argues that it is more likely than not that the defendant acted
negligently, but is unable to detail exactly how the negligence unfolded.
See Scott v London & St Katherine Docks Co [1865] 3 H&C 596 - the claimant was
injured by a sack of sugar which had fallen from a crane which was operated by
the defendants. The courts ruled that there was no need for the claimant to show
that the defendants had factually caused his injuries on the basis of res ipsa
loquitor, laying down a three-part test for the use of the maxim.
Firstly, the thing which causes damage must be under the control of the
defendant (or under the control of someone for whose actions the defendant is
responsible for). Secondly, the cause of the accident must be unknown. And
thirdly, the injurious event must be one which would not normally occur without
negligence. So, applying this test to the above case, the crane was under the
control of the defendant, the exact cause of the accident was unknown, but the
accident was of a type which would not occur without negligence (cranes don’t
usually drop their load suddenly). Such a situation also demonstrates the
usefulness of the principle - it means that claimants can still make a claim, even if
they cannot directly explain the negligence which has occurred. For example, in
the above case, the breach might have been caused by incompetent operation or
poor maintenance; regardless, both of these are negligent acts. As such, the
maxim of res ipsa loquitor allows claims to be made even if a ‘true’ narrative of
events cannot be provided by the claimant.
Each part of this test can be clarified further. The definition of ‘control’ depends
on the case itself. In Easson v LNER [1944] 2 KB 421 a claimant (a four-year-old
child) was injured when he fell out of an open door on a train. It was held that the
train company could not be described as being in control of the doors - there was
no evidence that the train company had opened the door; it could just have easily
have been a passenger on the train who opened it. Thus, the control element of
res ipsa loquitor was not established.
The need for an unknown cause is relatively self-explanatory. If the facts of the
case are available to the court, then the claimant can rely on them to prove his or
her case in fact, rather than relying on res ipsa loquitor. As per Barkway v South
Wales Transport [1950] AC 185, cases in which two separate versions of events
are presented to the judge cannot use the res ipsa loquitor mechanism - the judge
must make a decision regarding the most accurate set of facts. In other words,
the mechanism can only be applied when the facts are ‘missing’, rather than
merely being unclear.
Finally, it must be successfully argued that the event which caused the claimant’s
injuries was one which would not have occurred without some sort of negligence.
Scott (above) demonstrates this, as does Ward v Tesco Stores Ltd [1976] 1 WLR
810 - the claimant slipped in a puddle of yogurt that the defendant had failed to
clean up. The courts held that the accident would not have occurred but for some
negligence on the part of the defendant, and so res ipsa loquitor applied.
The same principle can be seen in Cassidy v Ministry of Health [1951] 2 KB 343.
The claimant went into hospital for a routine operation on his hand. Whilst he
went into hospital with two stiff fingers on the hand, he left with four. Again,
whilst it could not be shown in fact that the cause of the harm was the
defendant’s actions, there was no other likely cause of the injury, and so this
aspect of res ipsa loquitor was fulfilled.

The effect of res ipsa loquitor is that it raises a presumption of negligence against
the defendant. However, this presumption is rebuttable - if the defendant can still
provide an explanation of how the harm might have occurred without negligence
then the use of the maxim will fail. This will leave the claimant to show that the
defendant’s version of events is faulty - in essence the burden of proof is then the
same as a normal case.
Cases Involving Criminal Proceedings
Finally, it is possible for a claimant to use a defendant’s criminal conviction as
proof that an act of negligence occurred, as per the Civil Evidence Act 1968:
s.11 Convictions as evidence in civil proceedings
(2) In any civil proceedings in which by virtue of this section a person is proved to
have been convicted of an offence by or before and court in the United Kingdom
or by a court-martial there or elsewhere […]
(a) he shall be taken to have committed that offence unless the contrary is
proved.
Basically, if a defendant is convicted of an offence, and that offence involves a
negligent action, then the burden of proof will be on the defendant to show that
their conduct was not negligent. This is most relevant in cases involving traffic
accidents - careless driving is both a criminal offence, but is also an act which will
often give rise to cases in tort. Rather than claimants having to prove negligence
on the part of the defendant, they can simply refer to the fact the defendant has
been found criminally liable for a negligent act.
Causation
It is not sufficient for an individual to simply have a duty of care and then breach
the standard of conduct expected of them - that conduct must also cause the
damage that the claimant has suffered. Whilst this might seem simple, many
accidents can be tied to multiple causes, and certain situations involve claimants
contributing to their own injuries. Take, for instance, a car accident; whilst
reckless driving might be one of the causes, perhaps the claimant driver was
speeding at the time the accident occurred, or maybe a seatbelt in the car had
been incorrectly fitted, worsening the situation? Perhaps the accident shunted
the driver into a railing which was damaged by a freak lightning strike earlier in
the day - an act of god. To muddy the waters even further, there exist issues of
evidence - it is not enough to simply argue in court that a harm might have been
caused by the defendant, this must be shown to be true on the balance of
probabilities.
Factual Causation
Much like the criminal law, tort law uses a ‘but for’ test in order to establish a
factual link between the conduct of the defendant and the injuries of the
claimant. In other words, the question asked is ‘but for the defendant’s actions,
would the harm have occurred?’ If the answer to this question is yes, then
causation cannot be shown, and vice versa. The ‘but for’ test constitutes the
generally applicable rule when it comes to causation.
A relatively modern description of the test can be seen in Cork v Kirby MacLean
Ltd.
Case in Focus: Cork v Kirby MacLean Ltd [1952] 2 All ER 402
The claimant was painting the inside roof of a factory. The claimant was working
on a narrow platform 23 feet above the ground, with no guard-rails or toe-boards.
The claimant had epilepsy, and was aware of this fact; his employers were not.
Whilst working, the claimant had an epileptic fit and was killed when he fell from
his platform.
When the case came to court, the defendants argued that the cause of death was
the claimant’s epilepsy, which it could not be held responsible for. Conversely, the
claimant’s estate argued that the cause was a lack of appropriate guard-rails on
the platform.
In formulating the but for test, Lord Denning said the following:
"if the damage would not have happened but for a particular fault, then that fault
is the cause of the damage; if it would have happened just the same, fault or no
fault, the fault is not the cause of the damage."
- Lord Denning, at 407.
And thus, because guardrails would have likely prevented the fall, it was ruled
that there was a causal link between the lack of guardrails and the injury to the
claimant.

In contrast, Barnett v Chelsea and Kensington Management Committee

showcases a failed but for test.
Case in Focus: Barnett v Chelsea and Kensington Management Committee
[1956] AC 613
The claimant presented himself at a hospital emergency department whilst
suffering from stomach pain and vomiting. He was seen by a nurse, who spoke to
a doctor, who told her to send the claimant home and for him to call his GP in the
morning. Five hours later the claimant died from arsenic poisoning. However, it
was established that had the claimant been seen by a doctor he still would have
died from the poisoning - there was nothing that the defendant could have done
to save him.
Thus, applying the but for test, the courts established that there was no factual
causation - the injury to the claimant would have occurred regardless of the
defendant’s conduct.
The All or Nothing Approach and the Burden of Proof
As with many elements of negligence, matters of causation are decided on the
balance of probabilities (i.e. 51%). Since the burden of proof rests with the
claimant, the onus is on him or her to argue that had the defendant not acted
negligently, their harm would likely not have occurred. Thus, if a court finds that
there is a 55% chance that a defendant caused a claimant’s harm, they will hold
the defendant entirely responsible for the harm.
However, this arrangement can be seen as troublesome from a theoretical
standpoint. Take Cork v Kirby MacLean Ltd, facts above; in finding against the
defendants the courts are essentially stating that they are responsible for the
claimant’s harm, when in fact this might not have been the case. Whilst we know
that the claimant fell from the platform, and that guardrails might have prevented
the fall, this is by no means guaranteed. It is feasible, for example that the
claimant might have fallen from the platform anyway, meaning that the
defendant’s negligence would have had no effect on the claimant’s injuries.
Nonetheless, the defendants were found liable for the full extent of the
claimant’s damages.

This approach can be considered problematic because the courts are essentially
treating the defendants as if they were 100% the cause of the claimant’s injuries,
whilst in fact it is entirely possible that those injuries would have occurred
regardless. The all or nothing approach can be seen as particularly problematic
when dealing with ‘lost chance’ cases - these are described in detail in a later
section of this chapter.
Specific Rules of Factual Causation
As will often occur when examining real-life cases of negligence, there will often
be scenarios in which there are multiple causes of the claimant’s harm. In such
scenarios, you should first work out if you’re dealing with concurrent causes
(causes which happen at the same time) or successive causes (causes which take
place one after the other).
Concurrent cause situations are often described as ‘two hunter problems’,
referring to a hypothetical situation in which two hunters in the woods both
negligently shoot the same victim at the same time, killing him. Standard
causation does not help here, since it is impossible to say which hunter caused
the victim’s death. At the same time, it is not satisfactory to have each hunter
renounce liability on the basis that had they not been negligent, the other bullet
would have killed the victim, and so they could not be described as causing the
victim’s death.
Subsequent cause situations are a little different - here, one bullet hits the victim
briefly before the other. This raises its own set of problems - primarily, the
question of whether the second shooter can escape liability just because he was
fortuitous enough to have his victim hurt before his negligent act did some harm.
Each of these situations have their own rules which apply, as follows.
Multiple Concurrent Causes - The General Rule
Where there exists more than one possible cause of an injury or harm, the
claimant does not have to show that the defendant’s actions were the sole cause
of the injury suffered. Instead, it must simply be shown that the defendant’s
actions materially contributed to the harm.

Case in Focus: Bonnington Castings Ltd v Wardlaw [1956] AC 613

The claimant contracted pneumoconiosis (a lung disease) from inhaling minute
silica particles during his work in a steel production facility. There were two
possible sources of the silica particles: a swing grinder or a pneumatic hammer
(both pieces of equipment used in shaping steel).
The defendants, who managed the factory, had a statutory duty to provide
ventilation for the swing grinder, but not the pneumatic hammer, but had failed
to provide any ventilation for either. This meant that the claimant’s illness could
be attributed to two possible causes - the illegally present silica dust from the
swing grinder which should have been removed by the fan, but also the dust
which would have been present from the pneumatic hammer (this distinction is
often referred to as the difference between ‘guilty dust’ and ‘innocent dust’). It
was argued by the defendant that the burden of proof rested with the claimant,
and because the cause of his injuries was only 50% attributable to the defendant,
that the claim should fail. The courts rejected this argument, however - in cases
involving multiple concurrent causes of injury, the claimant must only
demonstrate that the defendant’s negligence made a material contribution to his
injuries. Claimants do not have to show that negligence was the sole cause of
their injuries. The claim therefore succeeded.
Whilst Bonnington is relatively straightforward because it only deals with two
concurrent causes (and thus is a 50%/50% case), the courts still require the
claimant’s injuries to be substantially caused by the defendant’s conduct. See
Wilsher v Essex Area Health Authority.
Case in Focus: Wilsher v Essex Area Health Authority [1988] AC 1074
The claimant was a prematurely born infant who required extra oxygen in order
to survive. A junior doctor inserted a catheter into a vein, rather than an artery,
and this resulted in the claimant receiving too much oxygen, causing retina
damage and eventually blindness. However, the claimant’s medical situation was
such that there were five different possible causes of the blindness, and it was
impossible to ascertain which of the five had actually caused the harm. As such,
the courts were left considering a case in which only one out of five potential
causes was tortious - in other words, there was a 20% likelihood that negligence
was the cause of the claimant injuries.
The courts rejected the claim because of this - whilst the claimant could certainly
show that it was possible that the defendants had contributed to his injuries, he
was unable to show that this contribution was substantial (indeed, it was far more
likely (80%) that there was an ‘innocent’ cause for his injuries.
In summary, it is enough to simply show that a defendant has made a substantial
contribution to a claimant’s injuries. However, there is a limit to this principle.
Whilst a 50% contribution is enough to bring a successful case, a 20% contribution
is not.
Exam Consideration: Unfortunately, the courts shy away from providing strict
guidelines regarding how much of a contribution to a harm a defendant must
make before a successful case can be brought. This is in part due to the fact that
it’s rarely possible to describe such contributions as a sure percentage. Instead,
the courts simply look to see whether the defendant’s breach is a substantive
cause. Fortunately, we can at least see from Wilsher that a substantive cause is
definitely greater than 20%.
Multiple Concurrent Causation - Exposure to Risk
Finally, there exists a line of cases where claimants have been unable to show
that their harm has occurred as a result of the defendant’s conduct, but have
been able to show that their employer has contributed materially to the risk of an
injury occurring. This was the case in McGhee v National Coal Board [1973] 1 WLR
1 - the claimant was employed to clean brick kilns out after use. This involved
exposure to brick dust, and the defendants did not provide showers in the work
place. This meant that the claimant had to cycle home whilst covered in brick
dust. After some time working in the brick factory, the claimant developed
dermatitis (a skin condition) as a result of exposure to brick dust.
Whilst the defendant was not liable for the exposure to brick dust during the
claimant’s usual course of work, the courts held that in failing to provide showers,
the defendants had materially increased the risk of the claimant developing
dermatitis - he was exposed to the brick dust for far longer than necessary. The
claim was therefore successful.

This principle has become important where cases involve multiple illegitimate
exposures to a risk. Its application can once again be seen in Fairchild v
Glenhaven.
Case in Focus: Fairchild v Glenhaven Funeral Services [2002] UKHL 22
The three claimants had all contracted mesothelioma - a type of lung cancer
caused by exposure to asbestos. Mesothelioma can be caused by a single fibre of
asbestos, which once embedded in the lung can lay dormant for decades, until it
causes a tumour to develop. This tumour itself can lay dormant, and it is only
during the last couple of years of the disease that symptoms develop - and by
then, it is too late to treat. This means that an individual can unknowingly be
fatally exposed to asbestos early on in their career, but then continue to work
with asbestos for decades afterwards. Conversely, an individual can work with
asbestos for many years without a fatal exposure, and then be exposed in the
later years of their career. This has led to legal difficulty - since it is impossible to
ascertain exactly when and where an individual was exposed to the single
dangerous fibre, it can be difficult to work out who the proper defendant is.
This was the situation in Fairchild - each of the claimants was exposed to asbestos
during the course of their careers, but by a number of different employers. This
created a problem - the claimants were unable to demonstrate which of the
employers had actually caused the fatal exposure, just that one of them did. On
balance of probabilities, it was improbable that each individual employer had
caused the exposure. For example, consider a situation in which an employee has
three different employers - this means that each is only 33% likely to have caused
the fatal exposure to asbestos, and so for each individual employer they are
unlikely to be the one to have caused the harmful exposure.
The courts applied McGhee to deal with this problem, ruling that as long as each
of the claimants could show that an employer had materially increased their risk
of contracting mesothelioma (by illegitimately exposing them to asbestos), then
they were entitled to claim full damages from that employer.
It should be remembered that the Fairchild decision did not occur in a vacuum -
tens of thousands of employees were exposed to dangerous levels of asbestos
throughout the 20th Century in situations similar to those of the claimants in
Fairchild, and so the decision effectively meant that those individuals could seek
compensation.
It is also worth noting a couple of other things about this judgement. Firstly, this
did not mean that each employee could claim three times - they were only
entitled to claim once for their injury. Secondly, whilst this might appear to punish
the singled-out employer more than the others, that employer still had the option
of suing the others for their contribution to the exposure, meaning that the cost
of compensation could effectively be spread amongst the employers. However, it
should be noted this is not a guaranteed scenario, since there exists the potential
for a defendant to go bankrupt, leaving the other potential defendants to bear
the costs of compensation - although see Barker v Corus below for recent changes
to such a situation. So, a breach does not have to be the sole cause of an injury - it
is enough for a breach to materially contribute to the risk of injury.
This same principle applies in cases even where the claimant has exposed
themselves to asbestos voluntarily, as a matter of self-employment. This can be
seen in Barker v Saint Gobain Pipelines Plc [2004] EWCA Civ 545. The claimant
was exposed to asbestos for nearly 9 years whilst under the employment of the
defendant. For the rest of his 30 year career, the claimant was self-employed,
working with asbestos on three different occasions. It was held that Fairchild still
applied, and that the defendant was liable for the claimant’s mesothelioma
because of the material contribution by the defendant to the claimant’s illness. It
should however be noted that a 20% reduction in the claim’s value was made due
to the claimant’s own contribution to exposure.
It should be noted that the courts appear to have begun the process of limiting
this type of liability due to the fact that it can lead to individual employers being
singled out for the activities of their peers. This process can be seen in Barker v
Corus UK [2006] UKHL 20. Much like Fairchild, the claimant was an employee who
had been exposed to asbestos over the course of his career, and had developed
mesothelioma. However, some of the potential defendants had since gone
insolvent. The decision before the court was therefore, under Fairchild, could the
surviving employers be held liable for the shares of the now-insolvent companies?
The courts ruled, contrary to Fairchild, that each employer was only liable for a
percentage of damages in proportion to their contribution to the claimant’s risk.
For example, an employer who exposed a claimant to asbestos for 10 years of
their 30 year career would only be responsible for one third of the damages. In
effect, this meant that the idea of joint and several liability applied in Fairchild
was overturned, and instead it was held that the idea of ‘proportionate liability’
applied. This also meant that the share of damages attributed to insolvent
defendants was not payable.
However, this decision was not without controversy. There was significant
backlash from various groups representing mesothelioma victims, and s.3 of the
Compensation Act 2006 has reversed the Barker v Corus position - but only in
relation to mesothelioma.
In summary, Fairchild provides the principle that materially increasing the risk of a
harm occurring is sufficient to establish causation. This principle was applied in
Barker v Saint Gobain Pipelines, even where the employee was partially to blame
for their own exposure. Barker v Corus has reversed the decision in Fairchild
regarding joint and several liability - instead, the position is one of proportionate
liability. The effects of Barker v Corus, however, do not apply to mesothelioma
due to s.3 of the Compensation Act 2006.
Exam Consideration:
Due to the scale of asbestos exposure, multi-claimant cases involving it are a
significant feature of everyday tort law. Because of this, there is a high chance you
will encounter problem questions regarding asbestos, and so having knowledge of
this series of cases is a boon.
Thus, there are two categories of cases involving multiple concurrent causes of
injury. The first is where there are a number of different possible causes for the
claimant’s injuries. The rule here revolves around the defendant having made
substantive contribution to the injury, as per Bonnington Castings and Wilsher.
The second category are cases in which the defendant has materially increased
the risk of an injury occurring, as in McGhee and Fairchild.
Exam Consideration: If a problem question can be solved just by using the ‘but
for’ test, then do so! If the problem involves multiple concurrent causes, then you
will have to refer to the above cases. In such a situation, the most important thing
is that you can accurately describe the rule; this will show that you know the law,
even If you encounter difficulty applying it to an unwieldy number of contributing
defendants.

Multiple Successive Causes

There also exists a small band of cases involving multiple, successive causes of
damage - that is, the claimant is harmed by two sources of damage, one after the
other. The primary example here is Performance Cars Ltd v Abraham [1962] 1 QB
33. The claimant’s Rolls Royce was struck by a negligent driver. Two weeks prior,
however, the claimant was in another accident (also in which the other driver was
at fault). The damage from the second collision was such that it caused no
additional damage on top of the first collision. The claimant was awarded £75 for
the first collision, but did not receive it. The claimant then sought to recover the
same amount for the second collision.
The courts ruled that a claimant could not be compensated for the same loss
twice. However, the question remained over which of the drivers should be
responsible for the damage. It was ruled that in such situations, the former,
earlier defendant is liable. Thus, to take the two hunter example, it is only the first
hunter who is legally responsible for negligently shooting the claimant dead, not
the second (and not both jointly).
Lost Chance Cases
There is also a category of cases which deal with the idea of losing a chance - for
example, a claimant might have a disease with a 40% recovery prognosis if it is
caught early enough. However, due to negligent misdiagnosis the disease might
go unchecked, and become terminal in nature. This claimant would be annoyed to
say the least, and would therefore want compensation for losing their 40%
chance at recovery. Such situations are referred to as ‘lost chance cases’.
As a general rule, the courts are unlikely to compensate a claimant for the loss of
a chance, where the lost chance is less than 50%. This principle is best understood
via Hotson v East Berkshire Area Health Authority [1987] AC 750 - the claimant
fractured his hip when he fell from a tree that he was climbing. When taken to
hospital, he was misdiagnosed, and a lack of proper treatment caused the
claimant to develop a hip-deformity. Expert evidence stated that even with a
correct diagnosis by the hospital, the claimant had a 75% chance of developing
the deformity. In effect, this meant that the claimant was deprived of a 25%
chance of not developing a deformity. Whilst the Court of Appeal awarded the
claimant 25% of total damages on this basis, this reasoning was rejected by the
House of Lords - since there was only a 25% chance that the hospital had caused
the injury, this did not satisfy the balance of probabilities.
Exam Consideration: Whilst this might appear very similar to situations above, in
which there are multiple causes of harm, the relevant case law is different. The
two can be distinguished by asking whether the facts of the case involve multiple,
equally likely causes, or whether they involve a loss of a chance of avoiding a
harm. This will usually be made clear by reference to medical prognosis or similar.
The rule can also be seen to be applied in Gregg v Scott [2005] 2 WLR 268, but
regarding chance of survival. The claimant found a lump under his arm, and
consulted his doctor. The doctor misdiagnosed the lump as benign, when it actual
fact it was cancerous. This caused a nine month delay in the claimant’s treatment,
and reduced his chance of survival from 42% down to 25%. Again, the Hotson rule
meant that this was not actionable because it was more likely than not that the
claimant would have died regardless.
It can therefore be seen that the law regarding lost chances is not without
criticism. In Hotson, it was clear that the hospital had made a mistake, and that
this mistake turned a possible recovery into a certain lifelong medical condition.
Nevertheless, because the hospital’s negligence only robbed the claimant of an
unlikely chance at recovery, he was unable to claim damages (even those reduced
according to the chance his ailment would have occurred anyway). The problem
with the status quo can be seen when the margins are made smaller - consider a
situation in which Hotson had a 49% chance of recovering had the hospital
properly diagnosed him; he would still be unable to claim, despite the hospital
effectively changing his prognosis from a coin flip to certain deformity.
That being said, there is some merit to the Hotson position for claimants. For
example: consider if a defendant had a 51% of getting better, but lost this chance
due to medical malpractice. Under the Hotson principle, that claimant would be
entitled to the full extent of damages, because on balance, they would have got
better had malpractice not occurred. If, however, damages were calculated based
on the lost chance itself, then this particular claimant would only be entitled to
51% of the total compensation for their harm, since there was a 49% chance the
harm would have occurred regardless of malpractice.
Furthermore, the decision in Hotson makes it a lot simpler for the courts to work
out the proper amount of compensation to be paid. The status quo means that
claimants are either entitled to all of the damages or none (this is a slight
oversimplification due to principles like contributory negligence, but the point still
stands). If the decision of the Court of Appeal in Hotson were to stand, courts
would have to spend significant time and resources working out the probability of
certain things happening, down to the single percentage point. In contrast, the
current situation means that there is no material difference between losing a 75%
percent chance of recovery and losing a 70% chance of recovery - in either
situation the claimant would be entitled to full damages for their condition.
Exam Consideration: As you might be able to tell, lost chance cases are often
subject to significant judicial discussion. They are therefore more likely to turn up
in essay questions (although this doesn’t rule out them appearing in problem
questions!). It is therefore important not only that you know the Hotson rule, but
also the arguments for and against it.
Vindication of Rights Cases
Although lost chance cases demonstrate the problem with adhering strictly to the
all-or-nothing approach to causation, there does exist a slim category of cases in
which the courts have been willing to ignore the general rule due to policy
considerations. Whilst examples are sparse, Chester v Ashfar provides one.
Case in Focus: Chester v Afshar [2004] 3 WLR 927
The claimant was soon to undergo an operation to cure her back pain. The
defendant, her doctor, negligently failed to warn her that there was a 1-2% risk of
her becoming permanently disabled as a result of the operation. She underwent
the operation, and despite the operation being carried out correctly, the disabling
complication occurred anyway. The claimant could not show that she would have
avoided the operation had she known of the risk, but was able to argue that she
would have delayed the operation by some time.

In applying the conventional but-for test, the courts found that they could not
help the claimant - she would have likely undergone the operation anyway, and
so the doctor’s negligence could not be described as having caused the harm - the
risk would still have been run, simply at a later date. Nevertheless, the courts
acknowledged the fact that the doctor had done wrong - patients have a right to
know what they are consenting to. Lord Hope indicates the rights-based nature of
the case:
"To leave the patient who would find the decision difficult without a remedy, as
the normal approach to causation would indicate, would render the duty useless
in the cases where it may be needed most. […] The function of the law is to
enable rights to be vindicated and to provide remedies when duties have been
breached. […] On policy grounds therefore I would hold that the test of causation
is satisfied in this case."
- Lord Hope, at 87.
They therefore found against the defendant, despite the decision appearing to
run contrary to conventional causation.
Exam Consideration: McGhee and Chester are difficult to reconcile, whilst both
involves situations in which patients are failed by doctors, it is only in the latter
case that the court saw fit to validate the claimant’s rights. This can be considered
a symptom of incrementalism - rather than sticking to one set rule, the courts can
be seen to take each situation at it comes. When considering novel legal
situations, it will be up to you to argue whether the general all-or-nothing
approach should apply, or whether there is a particular right which should be
protected by tort law, as in Chester.

Intervening Acts and Remoteness

Remoteness
It is not enough for a harm to be merely caused by a defendant. It is also a
requirement that the causal link between defendant action and claimant harm is
sufficiently close, before a valid claim can be made (this is sometimes referred to
as ‘legal causation’.)

The original position was far more open, as in Re Polemis and Furness, Withy & Co
Ltd [1921] 3 KB 560. The claimants loaded a ship they had chartered with its
cargo, including a number of petrol containers. This led to petrol vapour
accumulating in the hold of the ship. This petrol ignited when a heavy plank was
dropped into the ship’s hold by a stevedore, creating a spark as it fell. This
destroyed the ship. The defendants argued that it was unforeseeable that a spark
would have occurred from the plank, and that therefore no liability arose. The
courts however rejected this argument, holding that there was no requirement
for damage to be foreseeable before it was actionable. The claim therefore
succeeded.
Fortunately, the law has now developed to demand that damage must be
foreseeable before it is actionable. See The Wagon Mound(No. 1)
Case in Focus: Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd
(The Wagon Mound) (No. 1) [1961] AC 388
The defendants negligently leaked some oil into Sydney harbour from their
tanker. This oil then drifted to the claimant’s wharf, where it mixed with various
flotsam, including some cotton wadding. Welding was taking place on the wharf,
and so the claimants sought assurances that it was okay for them to continue, and
received these assurances (oil in this form is usually non-flammable). However,
sparks from the welding did in fact ignite the oil-soaked cotton wadding, causing a
fire which spread to two ships and the damaging the wharf itself.
It was ruled that the defendants were not liable for the damage - it was not
reasonably foreseeable that the oil would catch fire (it was only the unlucky
combination of cotton wadding floating in the harbour which caused the fire).
Exam Consideration: Whilst this has become the currently applicable rule, it
should be noted that Re Polemis was not technically overruled, since that decision
was from the Court of Appeal, and The Wagon Mound was a Privy Council case.
As such, in order for a valid claim to be made there must be a duty, a breach,
factual causation, and, as per The Wagon Mound (No. 1), the harm must be
foreseeable (or rather, it must not be too remote.) However, the concept of
foreseeability has been further refined in a number of cases, as detailed below.

Refining Foreseeability - Type of Harm

As long as a particular type of harm is foreseeable, it will not be too remote, even
if the likelihood of that harm materialising is small.
This principle can be seen in the follow-up case to The Wagon Mound (No. 1) -
Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. 2)
[1967] 1 AC 617. The fact are as above, but this time the claimant was not a wharf
owner, but rather the owner of a ship moored at the wharf. It should be noted
that different evidence was submitted the court in this latter case (which helps to
explain the differing decisions.) The court held that as long as a particular type of
damage is foreseeable, then it will not be too remote, even if it unlikely. Thus,
because there was a slim, but entirely foreseeable risk of the oil igniting on the
water, it was not too remote. The ship owner was therefore able to recover.
Refining Foreseeability - The Way the Damage is Done
The courts have further refined the concept of foreseeability to dictate that whilst
the nature of the harm caused must be foreseeable, the exact series of events
leading up to it need not be.
This principle can be seen to be in effect in Hughes v Lord Advocate [1963] AC
837. The claimant was a young boy who came across a manhole which had been
left uncovered by the defendant, protected only by a small tent and a paraffin
lamp. The child descended into the hole uneventfully, but upon climbing up
kicked over one of the paraffin lamps, which fell into the hole, causing an
explosion in which the child was burned. The defendants argued successfully in
the Court of Appeal that whilst a child being burned by an unsupervised paraffin
lamp was foreseeable, the sequence of events which led to the child being burned
in the case at hand was not, and that therefore the claim was invalid by reason of
remoteness. This decision was reversed upon appeal - it was held that since the
child’s burning through contact with one of the lamps was foreseeable, this was
sufficient to establish causation, and thus the claim succeeded. It can thus be
concluded that remoteness is based on something being foreseeably harmful,
even if the exact series of events which might lead to that harm occurring is itself
not foreseeable.

The same principle can be seen at play in Jolley v Sutton London Borough Council
[2000] 1 WLR 1082. The defendant was a borough council who left a damaged
boat propped up on a piece of its land for two years. The claimants, two boys,
took it upon themselves to repair the boat back to working order. Whilst
undertaking this work the boat collapsed, trapping one of the boys and causing
him injury. The Court of Appeal held took an event-based perspective of the
matter (as it did in Hughes), ruling that it was not foreseeable that an accident
would occur as a result of the boys deciding to work on the boat. Again, as in
Hughes, the House of Lords rejected this stance, and instead ruled that since it
was foreseeable that some harm would occur to the children as a result of the
boat’s unsecured presence on the land, that the claim should succeed.
The courts have at times been willing to stretch the Hughes principle rather far,
and this has rendered some strange rulings. Bradford v Robinson Rentals Ltd
[1967] 1 All ER 267 provides one such example. The claimant was employed by
the defendants as a radio service engineer. One day, he was tasked with
exchanging an old, dilapidated work van for a newer vehicle. This involved a long
drive, and conditions were extremely cold, to the extent that a weather warning
had been issued, advising drivers not to make any unnecessary journeys. The
van’s heater was broken, and the window stuck in a lowered position, but despite
the claimant’s request that the journey be postponed, his employers insisted. As a
result this combination of factors, the claimant suffered frostbite, and thus sued
his employers. The courts upheld his claim. Whilst it is apparent from Hughes that
odd circumstances will not form an obstacle to claim, there remains still also
remains a requirement that the type of damage be foreseeable. It is therefore
odd that the courts held frostbite to be a foreseeable type of damage, given its
rarity within the temperate UK climate. Nevertheless, frostbite was held to be
foreseeable - after all, the defendants were aware of the extreme cold weather
warning and the poor state of repair of the van.
It should be kept in mind, however, that the courts appear to have placed
emphasis not simply on whether an object or practice is foreseeably harmful, but
also on the specific way an object or practice might be harmful. This can be seen
in Doughty v Turner Manufacturing Co. Ltd [1964] 1 QB 518. The claimant, an
employee of the defendants, was injured when the cover from a vat of molten
metal was tipped into the vat itself. This caused a chain reaction, resulting in an
explosion which seriously burned the claimant. The courts held that whilst a
splash burn from the molten metal was foreseeable, a burn from an explosion
was not, and the claim therefore failed.
Although it is difficult to reconcile Hughes and Doughty, both can be considered
to turn around the concept of kinds of damage. In the former case, the
foreseeable kind of damage was ‘burns that might foreseeably be caused by an
unsecured paraffin lamp’, and thus included both burns from direct contact, but
also explosions. In the latter, the kind of damage was ‘burns that might
foreseeably be caused by molten metal’, and thus included splash damage, but
not the rare and unlikely explosive damage which injured the claimant.
The same principle can be seen to be applied in Tremain v Pike [1969] 1 WLR
1556. The claimant was employed as a labourer on a farm by the defendants. He
contracted leptospirosis (a bacterial infection) from handling materials which rats
had urinated on. However, whilst it was known that the infection could be
transmitted by rat bites or scratches, or by consuming contaminated food it was
not known that it could be transmitted in the way that affected the claimant.
Thus, although leptospirosis from rats on a farm was foreseeable, because the
mode of harm was unforeseeable, the claim failed. This can be seen as existing in
a similar vein as Doughty - although the general harm of leptospirosis was
foreseeable, the specific ‘brand’ of harm was distinguished from those which
could be considered as foreseeable. This is arguably a sensible stance to take - the
defendants in this case could not have possibly acted to have prevented the harm
from occurring, since it was unknown to anyone that leptospirosis could be
transmitted in the way it was in this case. This can be contrasted with cases such
as Jolley v Sutton London Borough Council - it is hardly novel medical science that
children can be crushed by a falling boat.
Although the courts have meandered in their application of the Hughes principle,
the general principle is clear: the courts will not ask whether a specific series of
events is foreseeable when examining remoteness; rather they will simply ask
whether a general category of harm is foreseeable. This is arguably a simpler and
more effective approach to take towards remoteness, and this point can be
illustrated through an examination of the US case of Palsgraf v Long Island
Railroad Co.162 NE 99 (1928). The claimant was waiting for a train at the
defendant’s train station. Another train arrived, and just before it was about to
pull away, a passenger attempted to climb aboard. Two train guards attempted to
help the passenger on-board, and in doing so knocked a package he was carrying
from his arms. Unbeknownst to anyone except the passenger, the package
contained volatile (early 19th century!) fireworks, and when the package hit the
rails, the fireworks ignited. This caused an explosion which knocked a heavy set of
industrial weighing scales from their perch, onto the claimant, injuring her.
Exam Consideration: It should be noted that the claim failed (on the basis that, as
per 19th Century US law, the claimant was not owed a duty of care by the
railway). Nevertheless, the facts provide a key example of how Hughes deals with
unlikely series of events.
A pre-Hughes reading would render the result that the harm was too remote - the
farce-like series of events would not have been foreseen by even the most
imaginative defendant, and thus the harm too remote. A post-Hughes reading, on
the other hand, would render the result that as long as it was held to be
foreseeable that the heavy scales might fall onto someone, the injured party
would be able to make a successful claim. When this distinction is considered,
further advantages emerge. We don’t want defendants to prevent specific series
of events from occurring; rather, we want them to take the proper precautions to
prevent a potentially harmful object from harming anybody, regardless of the
cause. Consider a grand piano secured with the thinnest and most fragile of wires
above a busy thorough-fare. One day, a passer-by loses their glasses. It is a sunny
day, and the glasses focus the sunlight onto a pile of leaves, and start a small fire.
This fire startles a bird, which then flies off haphazardly and clips the piano,
causing it to fall and crush another passer-by. This precise series of events is
unforeseeable, and so without the precedent of Hughes in place a claim would fail
through remoteness.
Consider the same setup, but this time it simply rains. The extra weight on the
piano causes the wire to snap, dropping the piano onto a passer-by. This is far
more foreseeable, and a claim would likely succeed. Regardless, the owner of the
piano has been extremely careless in both scenarios, and so it would be
nonsensical to let the first claim fail just because the entirely foreseeable harm of
the piano falling was caused by an unforeseeable chain of events. We don’t want
the piano owner to take precautions just to avoid foreseeable chains of events -
we want them to secure the piano full stop, so as to negate the general danger it
presents. This is the benefit of the Hughes approach- it does not discriminate
against claimants who are unlucky enough to be injured through odd
circumstances. Instead, it simply asks what the preventable risk was, and punishes
those who fail to make safe those risks - a far more pragmatic formulation of tort
law, which acts to minimise harm. At the same time, all it asks of defendants is
that they act to prevent the foreseeable categories of harm, rather than all of the
harms which might occur from a given object or activity - as seen in Doughty.
Refining Foreseeability - Extent of Damage
As long as a type of damage is foreseeable, then defendants will not be able to
argue that they did not foresee the extent of damage caused. This principle can
be seen in Vacwell Engineering Co v BDH Chemicals Ltd. [1971] 1 QB 88. The
defendants supplied volatile chemicals to the claimants without a warning that
they would explode when in contract with water. One of the claimant’s
employees dropped a container of the chemical into a sink, and this caused a
large explosion, destroying the claimant’s premises. Since it was foreseeable that,
without sufficient warning, that a risk of accidental combustion existed, the
defendant was liable for the full extent of the damage.
Extensive damage will not be regarded as being too remote, even if that damage
has unfolded in a unique or eccentric manner. Thus, in The Trecarrell the
defendants, who were ship repairers working on the claimant’s ship, negligently
dropped a barrel of flammable lacquer into the ship’s hold. This severed an
electric cable, which then shorted in the spilt contents of the barrel, causing an
electrical fire. The defendants were liable for the full extent of the damages
caused, since it was foreseeable that dropping a barrel of flammable lacquer
might cause fire damage. This is essentially the same reasoning as seen in Hughes,
except Hughes refers to an odd series of events unfolding and causing harm,
whereas The Trecarrell refers to a pedestrian event causing harm which then
unfolds in a unique or unlikely manner.
This stance reflects how we’d want tort law to operate - we would find it absurd
for someone who negligently starts a fire to argue that they are only responsible
for burning down the first two houses in a terrace, but no the third or fourth.
Similarly, we would find it unjust if a drunk driver who caused a pileup could claim
that they only foresaw creating a minor accident, but not a major one. Thus, at
least in cases of physical damage or injury, claimants are responsible for the full
extent of the damage they cause, even if that damage has unfolded in an
unforeseeable manner
However, it should be noted that the courts have seen fit to place a perimeter
around a harmful event in order to distinguish between actionable and
inactionable harms. This can be seen in Crossley v Rawlinson [1981] 3 All ER 674.
A lorry caught fire whilst travelling to its destination (the fire was caused by the
defendant’s negligence). The lorry’s driver then pulled over onto the side of the
road. The claimant, an AA patrolman, saw the fire and also stopped, pulled out a
fire extinguisher from his vehicle, and ran towards the lorry to extinguish the fire.
He tripped and fell, and was injured. He brought a claim against the defendants
on the basis that he was on the way to deal with the danger they had created.
The claim, however, failed. The courts held that it was foreseeable that someone
might be hurt dealing with a fire, but not that they might be injured on the way to
the fire itself. Thus, the courts drew a distinction between the events of the fire
itself (and anyone who was hurt in dealing with the fire directly) and the
claimant’s injuries.
So, whilst the courts will hold defendants responsible for the full extent of the
damages they have caused, they can be seen to place a limit on the types of harm
which can be said to emanate from an instance of negligence.
The Egg Shell Skull Rule
As in criminal law, the courts have instituted an egg-shell skull rule for claimants,
as per Smith v Leech Brain & Co Ltd [1962] 2 QB 405. The claimant was splashed
with molten metal on his lip due to the defendant’s negligence. The claimant’s lip
happened to be pre-malignant, and the burn caused cancer to develop, which
then killed the claimant. The defendant argued that, under The Wagon Mound
(No. 1), that this was not foreseeable, and so liability should not be imposed.
However, the courts rejected this argument - it was foreseeable that some harm
would occur from the burn.
Consider the difference between The Wagon Mound and Smith - in the former
case, it was unforeseeable that any harm would occur at all, whilst in this latter
case, harm was foreseeable, even if the exact extent of the harm was not. As
such, the egg shell rule dictates that defendants must take their claimants as they
find them.
This rule applies not only to claimants themselves or their property, but also to
the environment surrounding their property. This was the ruling in Great Lakes
Steamship Co v Maple Leaf Milling Co [1924] 41 TLR 21. The defendants were
contracted to remove weight from a docked ship at a particular time. They failed
to do so, and when the water level dropped, the ship was grounded and damaged
(had the ship been light enough, it would have been higher in the water and
saved from harm.) The damage was particularly extensive because, unbeknownst
to the defendants, a large anchor was submerged below the ship. Nevertheless,
the defendants were held to be liable for the full extent of the damage - in effect,
the defendants had to take the external circumstances of the claimant as they
found them.
For a period of time this rule did not apply to the wealth of claimants, as in
Liesbosch Dredger v SS Edison [1933] AC 449. The defendant negligently sank the
claimant’s dredger. Because of the claimant’s financial situation, they could not
afford to replace it, and so had to hire a replacement at a high cost. It was ruled
that the claimant could not recover the hire charges as these did not stem from
the defendant’s negligence, but rather the claimant’s own financial situation.
This exception has since been overruled in Lagden v O’Connor [2003] UKHL 64.
Here, the defendant damaged the claimant’s car, and the claimant had to rent a
replacement. Because of the claimant’s poor financial situation, they had to hire
on credit, which was more expensive than paying for the hire outright. The courts
ruled that this additional cost was recoverable under the egg shell skull rule - just
as it is possible to recover for unforeseen cancer, it is also possible to recover for
unforeseen credit-hire charges.
Furthermore, the rule also applies to claimant’s pecuniousity (their willingness to
spend money). This is illustrated in Dodd Properties (Kent) Ltd. v Canterbury City
Council [1980] 1 WLR 433. The defendants erected a carpark using a pile driver,
and in doing so caused damage to the claimant’s neighbouring property. The
claimant opted to wait until the case had been decided before embarking on
repairs. The case took some 8 years to be decided, and in that time the damage to
the claimant’s building worsened, and so did the cost of repair. This left the court
to decide which amount of damages was appropriate - the smaller cost of repair
shortly after the damage occurred, or the greater cost of repair now that the case
had been decided.

The courts ruled that the later value was the correct measure of damages - the
defendants had to accept their victim as they found him - and this included a lack
of willingness to spend money to immediately rectify a fault, even if this might
mean that the fault worsened. It should however be noted that claimants must
still act reasonably under this rule - they cannot, for example, refuse to undertake
a £20 repair if this would prevent £20,000 of damage. It should also be noted that
the general rule for assessing damages is that they are calculated at the time of
breach.
Intervening Acts (or Novus Actus Interveniens)
It is also possible for certain events to break the chain of causation between the
defendant’s actions and the claimant’s injuries. There are three varieties of
intervening acts. Those taken by third parties those taken by the claimant
themselves, and those which are acts of nature.
Third Party Acts - As Consequences of the Original Harm
Third party acts take place after the original harm to the claimant or their
property, but can be thought of as disrupting the claim in some way. Consider a
situation in which a car is damaged by a negligent driver, who pays compensation.
The next week, the same car is negligently crushed into a cube by a parking
official. The driver who merely damaged the car might argue that they should only
have to pay compensation to cover one week’s worth of damage, since the
original damage to the car was completely overtaken by the act of crushing it.
The general rule involves asking whether the third party’s acts can be tied to the
original harm, as seen in Scott v Shepherd [1773] 96 Eng. Rep. 525. The defendant
tossed a small lit firework into a crowded marketplace. It landed on a seller’s
market stall, who tossed the firework away to protect himself. It landed on
another seller’s stall, who then also tossed the firework away, where it hit the
claimant, exploded, and blinded him in one eye. The court held that the
defendant was responsible for the claimant’s injuries - although there had been
intervening third party acts, they could be considered consequences of the
original harmful act.

The same principle can be seen to be applied in The Oropesa [1943] 1 All ER 211.
The claimant’s ship was damaged in a collision with the defendant’s ship. As was
usual practice, the captain of the damage ship attempted to travel across to the
defendant’s ship to discuss the collision. The boat he was in overturned, and he
was killed along with several members of his crew. The court ruled that this was
still a consequence of the original harm - it was reasonable and foreseeable that
the captain would make the journey.
However, if an unreasonable act is undertaken by a third-party in response to a
negligent harm, that will break the chain of causation. See Knightley v Johns and
Others [1982] 1 WLR 349. The defendant negligently caused a car accident. In
dealing with the accident, a senior police officer neglected to close the tunnel in
which the accident had occurred. This meant that another police officer on a
motorcycle had to ride against traffic up the tunnel to close it. This police officer
was involved in another collision, and was badly injured. The court ruled that the
original defendant was not liable for this injury - the senior police officer had
acted unreasonably in failing to close the tunnel, and so it was he who was liable
for the motorcyclist’s injuries.
It is also possible for liability to be apportioned between the original defendant
and the third party. In Wright v Lodge & Shepherd [1993] 4 All ER 299 a driver
broke down on a busy road, and failed to move her car onto the hard shoulder.
This caused a lorry to crash into it. The defendant negligently swerved to avoid
the crashed lorry onto the other side of the road, causing another crash to occur.
The courts ruled that whilst the defendant had acted unreasonably, the ultimate
cause was the first driver’s negligence, and so split the cost of damages 10%/90%,
between the first driver and the defendant.
Third Party Acts - Unrelated to the Original Harm
The general rule is that whether an act or occurrence is severe enough to
constitute a novus actus interveniens depends largely on the circumstances of the
case itself. This can be seen in Baker v Willoughby [1970] AC 467. The claimant
was originally knocked down by a negligent driver, and was suffering from
permanent stiffness in his leg as a result. Before the cause went to trail, the
claimant was involved in an armed robbery, during which he was shot in the same
injured leg. This meant his leg had to be amputated.

The courts ruled that although the original injury was ‘overtaken’ by the new
injury, that this did not constitute an intervening act within tort. It was instead
ruled that his compensation for the original injury should remain in place - the
robbers had never been caught, and thus could not be sued, so to end the original
compensation claim would leave the claimant without remedy. It was held that
the original claim for loss of earnings still stood - the claimant still could not work
properly, even if a new injury was now the prevailing cause of this.
This is arguably a logical position - compensation claims are prospective in nature,
they involve roughly ascertaining the loss to the claimant over the course of their
lifetime, and then compensating the claimant accordingly. If claims were able to
be changed based on things that happened to the claimant after the court’s
decision, then this would potentially open up all claims to re-evaluation.
However, the position in Baker is not necessarily applied consistently. See Jobling
v Associated Dairies Ltd [1982] AC 794. The claimant had an original slip and fall
injury due to his employer’s negligence, resulting in a back injury. This led to a loss
of 50% in his earning capacity, for which he was compensated. Three years later
(but still before trial!) the claimant independently developed a spinal disease
called spondylotic myelopathy, leaving him completely unable to work. In
contrast to Baker, the courts ruled that the new disease constituted an
intervening act, breaking the chain of causation and leaving the claimant’s
employer only liable for the three-years between the injury and the new disease.
Whilst the courts fell short of overruling Baker, they were critical of the decision,
which suggesting that Jobling represents the generally applicable law. The
principle from Jobling is that as long as it occurs pre-trial, any unconnected
disabling illness which effectively overwhelms the original injury will constitute a
novus actus interveniens.
Exam Consideration: The uncertain position regarding third party acts is
somewhat problematic when it comes to finding the correct law to apply. In
general, where the intervening act is a disease, this will fall under Jobling. Where
it is not, then Baker will likely apply. Regardless, such situations are rare -
remember, the second harm has to occur pre-trial to be considered, since the
courts will rarely go back to modify compensation agreements after the trail
process has concluded.
Claimant Acts
There also exists the possibility for the claimant’s themselves to take an
intervening act, breaking the chain of causation between the defendant’s acts and
the eventual injury. This took place in McKew v Holland & Hannen & Cubitts.
Case in Focus: McKew v Holland & Hannen & Cubitts (Scotland) Ltd. [1969] 3 All
ER 1621
The claimant was injured at work due to negligence on the part of his employer.
This left him with a variety of minor temporary issues, including a weakened leg,
which was prone to giving way. A few days later, when viewing flats to rent, he
attempted to move down a flight of stairs which did not have a handrail. The
claimant’s leg gave out, and the claimant jumped down the remaining 10 steps (in
order to land on his feet, rather than fall). This fractured his ankle and left him
with a permanent injury. The claimant then sued his employer again, asserting
that the new injury was a consequence of the old injury.
Whilst the defendant accepted liability for the original injury, it disputed liability
for this second injury. The courts agreed, ruling that the claimant had acted
unreasonably in descending the stairs without taking proper precautions (i.e.
moving slowly so that he might react to his leg giving way).
Noting the unforeseeable nature of the claimant’s new injuries, the courts
therefore ruled that the claimant had taken an intervening act (in descending the
stairs unsafely), and the second claim failed:
Acts of Nature
There also exists a third category of intervening acts - not those taken by the
claimant themselves, nor by any third party, but instead acts which are due to
nature itself (sometimes referred to as ‘acts of god’). Such an act can be seen in
Carslogie Steamship Co Ltd v Royal Norwegian Government [1952] AC 292. The
claimant (the Royal Norwegian Government) had one of its ships damaged by the
defendant in a collision (and the defendant admitted fault). This meant that the
ship had to be repaired temporarily in the UK before it sailed to the US for
permanent repairs to be carried out. During the crossing, the claimant’s ship
sustained further damage when it was caught up in a storm. The claimants
asserted that but for the original collision, the ship would not have had to have
made the trans-Atlantic journey, and so would not have sustained the additional
storm damage.
The courts rejected the claim, and so the defendant was only held liable for
damages arising from the first collision, and not the subsequent storm damage -
the storm was held to be a novus actus interveniens, and so the claim was based
on a faulty reading of causation. In particular, the courts noted that the storm
damage was incidental - it could have happened to any ship on any voyage, and
thus could not be held to be a consequence of the original collision.

Employers Liability
It is unsurprising that a significant body of tort law has developed to deal with the
duties employers have towards their employees - after all, many people will
spend around close to 40 hours each week at work. Many employments also
expose employees to significant sources of danger, with over 600,000 workplace
injures occurring each year in the UK. It is estimated that around 10% of these
workplace injuries result in a case being brought under tort law.
The law covering employers’ duties can be neatly split into two categories - those
laws which have developed as a matter of common law, and those laws which are
covered by statute. This chapter will deal with the former category, with statutory
law dealt with in the next chapter. It should be noted that there is a partial
overlap between these two categories - although when in doubt, statutory law
will usually be the most authoritative and straightforward authority to use.
The sizeable amount of law regarding employers’ duties can in part be ascribed to
the workers’ rights movement of the 20th Century - after all, we’ve come a long
way from forcing children under dangerous machinery to deal with breakdowns!
Exam Consideration: The comparative powerlessness that the average employee
has when compared to their employer means that the courts will often err on the
side of caution when a question of protecting employee rights comes up. As such,
the courts will often place a greater emphasis on what employers should be doing
and a lesser emphasis on employees’ behaviour. This same way of thinking will
therefore likely apply to any problem questions you deal with.
The Duty to Take Reasonable Care to Ensure the Safety of Employees
Any given employer holds a duty to take reasonable care to ensure the safety of
their employees. It is important to note that this duty is personal and non-
delegable - in essence, ultimate responsibility always rests with the employer -
they cannot delegate the duty to someone else. Thus, if an employer hires a
company to build a factory, which then collapses and injures employees, the
employer will be held liable for the collapse, even though they did not personally
build the factory. Whilst the employer can still personally sue the builders, the
point is that the employer will be liable to the employees - he cannot point to the
conduct of another to discharge his own duty. This helps to promote workplace
safety - since an employer’s personal liability is tied up with his employees’ safety,
he has a personal interest in providing a safe environment for them. An employer
is therefore not able to simply place a barrier between themselves and law by
employing someone else to take on their safety responsibilities.
The authority for this duty can be found in Wilsons & Clyde Co Ltd v English.
Case in Focus: Wilsons & Clyde Co Ltd v English [1938] AC 57
The claimant was killed in an accident whilst carrying out maintenance work in
the defendant’s mine. The claimant’s family the sued the mine owners. The mine
owners argued that they had entrusted the safe running of the mine to another
employee, and that the failure to do so was that employee’s responsibility. The
courts rejected this argument and held the mine owners liable on the basis of
their duty to provide a safe working environment.
The bench identified the elements of a safe working environment which must be
provided. Firstly, safe premises must be provided in a safe location. Secondly,
employees must be provided with safe plant (or machinery), materials and
equipment. Thirdly, a safe system of work must be provided and safe working
practices observed. Fourthly, employers must provide competent staff as
colleagues to any given employee. Each of these factors is considered in more
detail below.
Note: ‘Safe premises’ was not actually explicitly listed by the judiciary in Wilsons v
English - but it has since been included as a core element of a safe working
environment.
It should be noted that these different factors of safe working must all coincide
for a workplace to be considered safe - for example providing safety goggles is
little use unless employees are told to wear them (a combination of the ‘safe
equipment’ and ‘safe system’ elements of workplace safety), as in Bax v Slough
Metals, discussed below.
Safe Place of Work
In order for a place of employment to be considered safe, it must include safe
premises in a safe working environment. These two things must coincide - the
world’s most structurally sound building could not be considered safe if it was
located on the edge of a volcano. Similarly, going to work each day in an
extremely safe location would not be much good if your office building was
constructed from leaky petrol barrels and lit by naked flames.
The standard which must be met is that of the ‘reasonably prudent employer’.
The application of this principle can be seen in Latimer v AEC Ltd (also discussed in
the preceding chapter on standard of care).
Case in Focus: Latimer v AEC Ltd [1953] AC 643
In brief, the employer’s factory floor became dangerously slippery after it was
flooded by unusually heavy rainfall. Although the employer provided sawdust to
put down to negate the danger, not enough was provided to cover the entire
floor. An employee slipped and was injured. It was held that the employer had
acted with reasonable prudence (it was only the extraordinary weather which led
to flooding, so there was no usual need to provide an entire factory’s worth of
sawdust.) Since the employer had taken reasonable steps to protect against the
risk, its duty was discharged, and the claim therefore failed.
This case also illustrates another point with regard to safe premises - that the
capacity exists for them to become suddenly unsafe due with the introduction of
a new factor (such as flooding). Consider the outcome if the defendant employer
had no way of dealing with slippery floors; even the smallest spill would make the
workplace unsafe - an unreasonable state of affairs.
The duty to provide a safe place of work extends to situations in which employees
are tasked with going off-site to work in places which are not controlled by their
employer. This means that those whose jobs involve visiting different places can
enjoy a similar level of protection as those who work in the same location every
day. See Wilson v Tyneside Window Cleaning Co. [1958] 2 QB 110 - the claimant
was employed by the defendant as a window cleaner. When out on a job, the
claimant fell and injured himself due to the unsafe state of the client’s premises.
The claimant argued that this meant that his employers had exposed him to an
unnecessary risk. Whilst the claim in this failed (because his employers had
fulfilled their duty despite the accident) the court held that employers still owe a
duty of care to employees even when they are working outside of their
employer’s premises.
This duty will be heightened if the employer is aware of a particular off-site
hazard (most likely because it has been encountered by an employee before.) This
was the case in General Cleaning Contractors v Christmas [1954] AC 180. A
window cleaner (Christmas) was working on the outside of a building, balancing
on a window sill and using the bottom half of a sash window for balance. The
window slipped and closed, crushing the cleaner’s fingers, causing him to lose his
balance and fall. This was a risk which had been encountered before - the simple
solution would have been to wedge to window open somehow. The claimant’s
employer argued that this was a precaution their employee should have known to
take, but notably it was not one that they had provided for (or instructed their
employees to take). It was thus ruled that the employers were liable - they were
aware of an offsite risk but had failed to provide proper instruction or equipment
to deal with it. So whilst employers do not necessarily have to inspect every set of
premises their employees visit, they still have to take reasonable precautions to
allow their employees to deal with hazards they might face.
This can be considered a balanced position - it would be overly taxing for an
employer to ensure that a site they do not control is constantly safe, but they can
control other aspects of their employees’ safety - namely their equipment and
training (discussed in further detail below).
Cook v Square D Ltd [1992] ICR 262 provides a concise (but non-exhaustive) list of
factors which an employer must consider when ascertaining the safety of any
given workplace. A UK-based electrical engineer was sent on assignment to Saudi
Arabia. Whilst working, he slipped on an access panel in the floor, which had been
raised but not guarded. Whilst it was held that his employers had acted
reasonably (since they could not be expected to be responsible for the Saudi site)
the bench listed the following factors in determining workplace safety: the
location of where the work is to be done, the nature of the building in which the
work is completed, the nature of the work required, the expertise and experience
of employees, the degree of control which might be expected from the
employers, and whether the employer is aware of any particular dangers which
might manifest themselves.
It was also noted in this case that there exists a tipping point at which employers
would be expected to take a more proactive approach to off-site safety,
depending on the number of employees working at the site and the length of
their employment. So, if an employer’s entire payroll is working at a particular site
for years, then it is highly likely that their employer will be expected to have
inspected the site and ensured that whoever controls the site has sufficient safety
measures in place. Building sites provide a prime example of this phenomenon,
and also illustrate the fact that it is often those employments which involve a
variety of different sites which are the most dangerous, and thus require a proper
framework of legal protection for employees.
Safe Equipment (and Materials)
An employer must provide equipment and materials which are safe and properly
maintained. This section of law overlaps considerably with the Employers’ Liability
(Defective Equipment) Act 1969 (discussed in the next chapter).
A safe set of premises is little use if employees are using equipment which is
prone to breaking and injuring employees. Similarly, if employees are working
with a particular material it will be expected that the material supplied will be of a
high-enough quality to avoid unnecessary risk. This was the case in Knowles v
Liverpool County Council.
Case in Focus: Knowles v Liverpool County Council [1993] 1 WLR 1428
The claimant employee was injured when a flagstone he was carrying broke in
two, crushing his finger. The breakage was due to an inherent manufacturing
defect in the stone. The defendant employer advanced two arguments in their
defence - firstly, that it was impossible for the employer to have known of the
defect, and so it should not be held responsible for it. Secondly, that the flagstone
was not ‘equipment’. The court rejected both of these arguments - it was for the
employer to take appropriate action to ensure equipment is safe, even if this
meant ensuring that issues did not exist further up the supply chain. Furthermore,
equipment was held to include any item or article given to employees for use
during their course of business - such as a heavy flagstone.
This reflects the non-delegable nature of employer’s liability - just as an employer
cannot claim that they employed somebody else to deal with workplace safety as
a defence, they cannot claim as a defence that somebody else manufactured the
equipment their employees are using.
Despite the wide nature of the duty to provide safe equipment, there is a limit to
an employer’s obligations. In particular if an employer can successfully argue that
defective or lacking equipment did not cause their employee’s injuries, then they
will be able to avoid liability. This was the case in McWilliams v Sir Arrol & Co Ltd
[1962] 1 WLR 295. The claimant was employed by the defendant to build
scaffolding around a steel crane, for use in its erection. Whilst carrying out this
work he fell from 70 feet up and was killed. It was usual practice to provide safety
harnesses to workers in the claimant’s position, but they had been removed from
the site a few days earlier for use on another site. The defendant had thus been
negligent in failing to provide such harnesses for the entirety of the job’s length.
However, the employers successfully established that had they provided such
harnesses, the claimant would not have worn them, despite any instruction
otherwise. Thus, because the employer’s failure would have likely had no bearing
on the outcome of the accident, the claim failed.
Safe System of Work
The failure to provide a safe system of work is the area in which the majority of
claims arise. This is understandable - it is easy enough to spend money on the
best premises, the most up-to-date equipment, and to employ only the most
qualified staff. It is more difficult, however, to create a comprehensive system of
working which ensures safety at all times. Furthermore, poorly designed systems
of work can give rise to problems which only manifest themselves after a long
period of time, whereas issues with equipment, premises or incompetent
colleagues tend to involve sudden injury.
Because of its wide-remit, it is difficult to pin down exactly what characteristics a
good or bad system of work has. It is for this reason that courts tend to take a
case-by-case approach to evaluating whether liability exists. Speed v Thomas
Swift & Co Ltd provides one such illustration of what a system of work can be said
to entail.
Case in Focus: Speed v Thomas Swift & Co Ltd [1943] 1 KB 557
The claimant employee was injured during the loading of a ship. It emerged that
there were a number of issues with the system of work in place, and furthermore
that the system was unsuitable for use on the particular type of ship the claimant
was working on at the time of the injury. The court identified four different
features of any given system of work which should be considered by employers:
the physical layout of the job, the sequence in which work is carried out, the
provision of warnings and notices of particular dangers, including special
instructions where necessary, and finally the need to improve the system as
necessary, or modify it to deal with particular circumstances (so in this case, the
system was not modified to deal with the involved ship).
This means that a wide range of circumstances are covered by the duty of provide
a safe system of work. This includes situations in which employees are not
warned of a given danger - as in Pape v Cumbria County Council [1992] 2 All ER
211. The claimants were cleaners employed by the defendants, and contracted
dermatitis as a result of handling cleaning chemicals. Their employer had failed to
inform them that a failure to wear gloves when handling the chemicals could
cause such issues, and was thus held liable.
An employer cannot simply provide a safety measure and then forget a particular
risk exists. This can be seen in Bax v Slough Metals [1973] 1 WLR 1358. The
claimant was employed in a metal refinery, and worked with molten metals.
Although safety goggles were provided the claimant refused to wear them,
because they steamed up and therefore stopped him from carrying out his work
properly. His employer knew of this, but failed to take any action to correct the
situation either through providing more suitable goggles, or else ensuring that the
employee wore the problematic goggles. The employer was thus held liable when
the claimant was splashed with molten metal, injuring his eyes as a result.

If a particular risk has manifested itself, an employer will be mandated to take

preventative action. This was the case in Rahman v Arearose Ltd [2001] QB 351.
The claimant was working as a manager at a branch of Burger King. Two
individuals came into the branch and started causing trouble. The manager
confronted them and they attacked him in a protracted and brutal assault. The
claimant suffered serious injuries as a result, and a number of psychiatric
conditions following the attack. The two attackers were members of a gang who
had been into the branch before and caused trouble. It also emerged that there
had been previous attacks on staff working in the branch in similar circumstances.
Despite these previous attacks, the claimant’s employers had taken no action to
guard against the risk of such attacks occurring again. The court thus held that the
claimant’s employers were liable - they had been put on notice of a risk but had
failed to change working practices to deal with it.
The duty to provide a safe system of working extends to protecting the mental
health of employees (limitations on claims psychiatric harm withstanding.) This is
illustrated in Walker v Northumberland County Council [1995] 1 All ER 737. The
claimant worked in a busy social services department, and despite requesting
additional support from his employers, this was not provided. As a result the
claimant had a mental breakdown, and took four months off of work. The
additional support was still not provided, and the claimant took a second sick
leave. He was dismissed, and sued his employer on the basis that they had
breached their duty of care. This claim succeeded - it was held that there was no
reason why an employer’s duty to provide a safe system of work did not extend
to preventing psychiatric harm. The defendant should have been put on notice of
the risk by the claimant’s first leave of absence, and should have taken steps to
provide adequate assistance to the claimant.
However, employers can generally expect employees to withstand a certain level
of stress, and this expectation is heightened when employees are working in
managerial or more professional positions - after all, employees take on these
positions due to heightened competence and ability. There also exist issues of
foreseeability with regards to psychiatric harm in the workplace - employers know
that they will expose their employees to a certain level of stress, but it is difficult
to foresee which employees might be adversely affected by such stress (note how
in Walker the employer knew for certain that the employee was susceptible to
breakdowns, and that they had caused it.)
There is however a limit to the actions expected of an employer in respect of
providing a safe working system. This was the ruling in Woods v Durable Suites
Ltd.
Case in Focus: Woods v Durable Suites Ltd [1953] 1 WLR 857
The claimant worked with wood veneers in the manufacturing of furniture. In
particular, he worked with synthetic glue, which came with a risk of dermatitis.
Notices were provided warning of the precautions which should be taken, and the
claimant, who was extremely experienced, had been personally instructed on
these precautions. The claimant ignored some of these instructions, and
contracted dermatitis as a result. It was held that the employer was not liable - it
had discharged its duty. Singleton LJ’s remarks illustrate the limit of an employer’s
duty:
“An employer is [not] bound, through his foreman, to stand over workmen of age
and experience every moment they are working and every time that they cease
work, in order to see that they do what they are supposed to do”.
- Singleton LJ, at 862.
Thus whilst an employer has a duty to put a safe system of work in place, they are
still entitled to trust employees to follow it as sensible human beings.
Exam Consideration: The duty to provide a safe system of work is the widest of
the four categories. This makes it particularly useful as a means of covering
situations in which employers have clearly acted poorly, but in which it is difficult
to describe exactly what they have done wrong. At the same time, it might be
difficult to ascertain exactly what an employer’s practices should have been
without reference to specific industry practices or guidelines.
Competent Staff
Finally, employers must provide competent colleagues for their employees - a
safe working environment is little use if a fellow employee brandishes equipment
dangerously, or fails to observe safety protocol. The need to provide competent
staff can give rise to two different types of liability - there can be a breach of the
duty to provide competent staff (discussed here), but also a claim can arise as a
result of vicarious liability (discussed in a later chapter).
There are also situations in which only the employer’s duty is relevant, when an
employee has acted poorly, but outside of the remit of their duties. This was the
situation in Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348. The claimant
was injured when a colleague decided to wrestle him to the ground in a prank.
This resulted in the claimant breaking his wrist. The claimant’s employer had been
aware of the prankster’s inappropriate behaviour for years at that point, but had
done nothing to prevent his actions. The employer was thus held liable - their
failure to deal with the prankster constituted a failure to provide a safe workplace
for the claimant.
Thus, part of the duty to provide a safe workplace includes the provision of
competent colleagues, and the maintenance of proper order. Just as a rickety
handrail or a poorly maintained safety guard can constitute a risk, so can a poorly
behaved employee.
Other Issues in Employers’ Liability
There also exist a handful of other rules and principles which apply to employers’
common law duties.
The Imposition of a Duty of Care Must Be Fair, Just and Reasonable
As with other forms of duty in tort, it must be fair, just and reasonable to impose
a duty in the given situation. Whether a particular risk is acceptable will depend a
lot on the profession being practiced. For example, a risk of burning would be
wholly unreasonable in an office setting, but less so for firefighters. The court will
therefore consider wider policy considerations when imposing a duty. This was
the case in Mulcahy v Ministry of Defence [1996] 2 All ER 758. The claimant, a
solider, was injured whilst deployed in Saudi Arabia. He was standing in front of a
large artillery emplacement when it was negligently fired by the gun commander,
injuring the claimant.
The general principle of combat immunity (i.e. conventional law does not apply in
a wartime context) meant that the claim was invalid. It was further noted by the
court that no duty of care was owed - it was not reasonable to demand the
imposition of safe system of work on a battlefield.

Exam Consideration: Mulcahy also provides a convenient example of how despite

general policy, the courts will sometimes rule on hypothetical sets of facts -
hypothetical in this case because it was ruled that the case was invalid on the
basis of combat immunity. Nevertheless the court made a ruling on the basis that
the arguments from either side had already been heard, and so there was more
to be gained from making a ruling than not.
The Duty Extends Beyond the Four Elements
It is important to remember that whilst the four elements of a safe workplace
discussed above provide a solid framework for investigating workplace safety,
they do not form the hard limits to an employer’s duty. Instead, the duty entails
providing a safe workplace, even if that means dealing with factors which do not
come under either premises, equipment, system or staff. Of course, an employer
who does not take sufficient care in dealing with these four factors is opening
themselves up to litigation. As with negligence in general, the imposition of a duty
of care in any given common law situation will depend on the Caparo test.
The Duty Does Not Apply to Independent Contractors
The duty to provide a safe workplace does not extend to all of those employed by
an employer. There must first be a relationship of employer-employee in place.
Because of this, independent contractors cannot rely on an employer’s common
law duty. The distinction which is made between employees and independent
contractors is discussed in depth in the chapter on vicarious liability.
Of course, independent contractors are not stripped of all of their legal rights as a
result of their employment status - they enjoy the same legal protection as any
other individual would, such as the rights given under Occupier’s Liability or plain
old negligence.
The Duty Exists Towards Each Individual Employee
The duty that an employer has towards their employees is not an abstract one.
Instead, it is of a practical nature, and the characteristics of a given individual
employee can and will alter the nature of an employer’s duty. This can be
understood through an examination of Paris v Stepney Borough Council [1951] AC
367 (also discussed in the chapter on standard of care). The claimant was working
in a garage. He was blind in one eye and his employers knew this. Employees in
his position were not usually provided goggles. The claimant was left blind when a
splinter of metal flew into his good eye. The courts held that the claimant’s
employers had a greater obligation towards the claimant because he was at a far
greater risk of being blinded in a workplace accident than the average employee.
Thus, whilst the employer did not have a usual obligation to provide safety
goggles (as an element of safe workplace equipment), they did have an obligation
to provide such equipment to the claimant because of his individual
characteristics.
There Exists a Limit to the Expected Standard of Care
Although employers are expected to ensure the safety of their employees where
reasonable, there is a limit how far they must go. There are certain employments
which will carry a certain risk regardless of the safety measures put in place for
instance. In such situations the only way to avoid the risk would be to refuse to
employ an employee in the first place - clearly a step too far, and one which does
more to harm workers’ rights than to help them. This can be seen in Withers v
Perry Chain Co Ltd [1961] 1 WLR 1314. The claimant, who had previously suffered
from dermatitis, returned to work for the defendant after a leave of absence. It
was known to both the employer and the employee that this meant that there
was a small risk of the dermatitis reoccurring, or else being exacerbated. The
dermatitis did reoccur, and the claimant sued. The courts rejected the claim - to
allow it would have essentially meant that the employers had a duty to deny
employment to a willing, competent adult employee.
Modification of the Duty (is Largely Impossible)
Many employees within the UK will sign a contract of employment before
embarking on a given job. This can be seen as a potential opportunity for
employers to attempt to modify their duties towards their employees through the
inclusion of express terms. However, such terms will generally not be binding. See
Johnstone v Bloomsbury Health Authority [1992] QB 333. The claimant, a junior
doctor, was employed by the defendants to work forty hours per week. Included
in the terms of his contract there was a clause which included that he must make
himself available for a further forty-eight hours of work over a certain period of
time. He argued that this was a breach of his employer’s duty to provide a safe
system of working (essentially, that creating the conditions for overworking the
claimant was a breach by the defendant). The claim succeeded. Although the
bench was split on whether an express contract term could be used to overturn
the employer’s obligations under tort law, the majority held that it could not. This
is arguably a sensible stance, otherwise a wily employer could essentially overturn
all of their safety obligations with a well-drafted contract - a clearly problematic
situation. As such, an employer cannot modify their duty to provide a safe
workplace.
Of course, whether a particular contract term violates this rule will depend on the
context. A term stating that an employee is solely responsible for their own safety
will likely be held to be an unreasonable modification, and therefore inapplicable.
Conversely, a term stating that employees have the responsibility of wearing
sensible footwear is probably far more reasonable, and will probably be held to
apply.
Defences
Since the duty to provide a safe workplace is a common law one, employers are
able to use common law defences when fighting a claim. The most relevant of
these will be consent, since employees are in a workplace of their own free
volition. Of course, whilst an employee might be held to consent to a low level of
risk, a court is highly unlikely to rule that an employee has consent to being
maimed by an unsafe machine, or splashed with molten metal.
Secondly, there will often be situations in which a claimant employee has
contributed to their own injury, through misusing a piece of equipment or failing
to heed a safety warning. In such circumstances, the defence of contributory
negligence may well apply. Both of these defences will be covered in more detail
in a later chapter.

Breach of Statutory Duty

Employers’ Statutory Duties
As noted in the previous chapter, the law governing safety in the workplace can
be split into both common law and statutory law. It is this latter category of law
that this chapter will deal with. Statutory duties can be considered easier to
handle than their common law counterparts - rather than seeking out a particular
legal principle from a specific case, key statutory duties tend to be consolidated
into one of a small number of pieces of legislation.
There is often some crossover between the common law duty to ensure
employees’ safety, and an employer’s duty to abide by statute. In any given case,
statutory law will usually be the most persuasive - it is, after all, laid down by
Parliament. Nevertheless, it is entirely possible for a case to be argued both in
terms of statute and common law (e.g. ‘the employer has breached one of its
statutory duties, but if the court doesn’t accept that, then it has breached its
common law duty.’).
Due to the sizeable bulk of statute law, this chapter will concentrate less on the
content of specific statutes, and more on how any given relevant statute might be
applied. This will allow you to transfer your knowledge and apply it to the statute
which covers the situation in which you dealing with. This is beneficial because UK
law contains a number of esoteric statutes, aimed at dealing with safety and
protocol within a given industry - for example, the Mineral Workings (Offshore
Installations) Act 1971 deals with oil derricks and similar. It would not be feasible
to run though all statutes for all industries, which is why knowing the generally
applicable rules is more important. It should be noted at this point that the rules
of statutory interpretation apply here, as with any other statute. A refresher on
these can likely be found in textbooks and materials on the English legal System.
Exam Consideration: Statutory duties are less likely to come up in an exam
question, due to the industry specific nature of much of the law. That being said,
it is entirely possible that you might be provided an industry-specific statute and
then be asked to apply it in an exam. Knowing the relevant principles of
application is therefore important.
The Health and Safety at Work etc. Act 1974
The most widely applicable statute which deals with workplace safety is the
Health and Safety at Work etc. Act 1974 (yes, the ‘etc.’ is part of the title!) This
provides, amongst other things, a list of the general duties that employers have
towards their employees in terms of safety. The most useful element of the Act is
the explicit list of the elements of workplace safety, as found in s.2 of the Act
If you examine this section you might notice that this section of the Act essentially
mirrors the elements of a safe workplace as listed in Wilsons & Clyde Coal Co Ltd
v English [1938] AC 57 (although it splits equipment and materials into two
categories). This is extremely useful - since the common law and statute law
concur, you will be able to use the relevant precedent in conjunction with the
statute. So, when dealing with the HASAW duty to provide a safe workplace, for
example, you can refer to Latimer v AEC Ltd [1953] AC 643 for clarification on the
extent of the duty.
Exam Consideration:
Even if HASAW applies (and it likely will if employee safety has been
compromised), it is always worth searching more widely for further applicable
legislation which is specific to the claimant’s occupation.
European Law
In recent decades, a substantive proportion of the law dealing with employer-
employee dealings has come from European Union Law. Its effect should not be
underestimated, even in a post-Brexit era - since the majority of EU law is enacted
at a domestic level it will not instantly become null and void upon the UK’s
withdrawal from the EU. This means that in all likelihood that the current EU law
which is in place will continue to have some influence on the statutory duties of
employers. Of particular note is the EC Framework Directive on Health and Safety,
which lays out the basic minimum standards of safety expected of employers
within the EU. It should be noted that a significant amount of EU health and
safety legislation has replaced various UK provisions, and that therefore unless
the legislature is willing to redraft a litany of 20th Century safety provisions to
replace the EU legislation, it is likely to have a continued effect on UK law (albeit
in perhaps a slightly reformed state).
The most important thing to note is that under EU law, it is possible for private
individuals or organisations to bring claims in tort against other private parties.
This was confirmed in Garden Cottage Foods v Milk Marketing Board [1984] AC
130. The defendant was a dairy wholesaler, and sold butter to the claimants,
under the condition that it could be sold overseas (presumably so that the
defendant could control the supply, and thus the market value of its own butter
stocks within the UK).
The claimant allegedly resold some of the butter internally, and whilst the matter
was resolved outside of the courts, the claimant was subsequently removed from
the defendant’s list of customers. This was argued by the claimants to be a breach
of EU competition law (specifically Article 102 of the Treaty on the Functioning of
the European Union). Whilst the courts stopped short of granting the claimant’s
requested injunction, the judiciary agreed that it was possible to claim damages
for breach of EU legislation, as long as the relevant domestic prerequisites were
met (i.e. the rules laid out in the section below).
It should be noted, however, that such claims can only arise from directly
effective EU provisions. The difference between direct and indirect legislative
effect forms its own chapter in most EU law textbooks, and so doesn’t bear
reproduction here.
Establishing a Tortious Breach of a Statutory Duty
Whilst a statute will usually make the content of an employer’s duty towards their
employees clear, they will often not expressly lay out the fact that a claim in tort
is possible for a breach. It should not be forgotten that tort is not the only means
of correcting an employer’s behaviour, and that often workplace safety statutes
are created with non-tort remedies in mind (such as criminal sanctions, or fines
which go into public coffers).
The first step in examining a statute for the purposes of tort is therefore to
establish whether a breach of the statute is actionable. Some statutes will have
tortious remedies in mind, and will expressly provide for a civil remedy. One such
example can be seen in s.11 of the above-mentioned Mineral Workings (Offshore
Installations) Act 1971:
“s. 11(2) Breach of any such duty shall be actionable so far, and only so far, as it
causes personal injury […]”
Note how the act explicitly provides for personal injury, but also excludes other
types of liability (economic harm or property damage, for example). It is therefore
key that when dealing with express provisions for action that you note not only
what is included, but also what is excluded by the statute.
The majority of statutes, however, are silent on whether an action is possible in
tort. This does not necessarily mean that such an action is impossible. In such a
situation, the courts will first look to see if there has been a precedent set
regarding the relevant statute - in other words, whether a claim for a breach of
the statute has been allowed or denied in the past. If not precedent has been set,
the court will examine the statute in more detail, in order to establish the
potential for civil liability. The test for establishing this potential stems from
Lonrho Ltd v Shell Petroleum Co Ltd (No. 2).
Case in Focus: Lonrho Ltd v Shell Petroleum Co Ltd (No. 2) [1982] AC 173
The plaintiff company (Lonrho) constructed an oil pipeline to southern Rhodesia
(now Zimbabwe). The UK imposed sanctions on Rhodesia, and made it unlawful to
supply oil the country via the Southern Rhodesia Act 1965, under threat of fine or
imprisonment. The plaintiff ceased its operations, and cut off its supply. The
defendant company (Shell) continued to supply oil to Rhodesia, in contravention
of the sanctions. The claimants argued that this was a breach of the defendant’s
statutory duty, and that this had harmed the claimant - the aim of the sanctions
was to oust the current Rhodesian regime, and in continuing to supply it with oil,
the defendant had effectively prolonged the ability of the regime to stay in
power. This meant that the sanctions would stay in place longer, harming the
claimant’s business interests in the area.
The claim was denied on the basis that the claimant was not in the mind of Shell
when the purportedly breached the sanctions (there were also a number of issues
to do with the law of conspiracy, which are irrelevant here).
Of more interest than the result of the case was the discussion of statute-based
civil liability. The primary test for liability is described by Lord Diplock:
“the court should presume that if the Act creates an obligation which is
enforceable in a specific manner then it is not enforceable in any other manner. In
this way if the Act was intended for the general benefit of the community rather
than for the granting of individual rights then it will not usually be possible to use
the Act to bring an action in tort.”
- Lord Diplock, at 189.
So the generally applicable principle is that statutes which include specific
remedies are less likely to be enforceable in another way (i.e. via tortious
remedy).
That being said, the imposition of a criminal penalty will not always mean that
civil remedy will not be available (especially when the act is aimed at protecting a
particular group). This can be seen to occur in Groves v Lord Wimborne [1898] 2
QB 402. The claimant caught his arm in an industrial winch, injuring him to the
extent that his arm had to be amputated. The winch should have been protected
with a protective fence, as per the Factory and Workshop Act 1978, which
specified criminal sanctions for violations. The claim nonetheless succeeded - the
courts held that criminal enforcement would itself have been unlikely (and thus
an ineffectual remedy for breaches), and that it would be unreasonable to
prevent the claimant - who the act purported to protect - from actually applying
the law once he had been injured by a breach.
It has also been established that tortious remedies are less likely to be available if
a statute includes a number of different ways to enforce it. Consider a statute
which includes 100 different ways to enforce its content - injunctions, criminal
sanctions, inspection on demand by a third party etc. - this demonstrates that
Parliament have thought long and hard about how the statute should be
practically implemented. It would thus be improper for the courts to add to this
list of enforcement measures with civil liability. This principle can be seen in Issa
and another v Hackney London Borough Council [1997] 1 All ER 999. The
claimants lived in accommodation which was owned by the defendant. A health
inspector discovered significant condensation issues, as well as resulting mould
growth. This was considered a nuisance under the Public Health Act 1936, and the
defendants were fined accordingly. The claimants then brought a claim for ill-
health resulting from the mould, on the basis that the defendant had breached
the aforementioned statute. The courts denied the claim on the basis that the
fine imposed was but one of a number of possible enforcement measures. The
courts therefore rejected the notion of civil liability under the Act, and the claim
was dismissed.
Furthermore, the courts will also examine the nature of the relevant statute in
determining whether civil liability is possible. If it is aimed at promoting a
communal benefit (e.g. a statute aimed at preventing trade with Rhodesia) then
this will also make it unlikely that it can be used in a the individualistic
proceedings of a tort claim. There exist two important exceptions to this rule,
however. Firstly, where an act is aimed at benefitting a particular class of
individuals, then this makes it more likely that the courts will allow members of
that class to bring a case in tort. Secondly, when the claimant has suffered
damage which is particular, direct, substantial, and different from the general
public, this will make it more likely that a claim can be made.
If a piece of legislation does not contain a specific remedy, but also purports to
protect a particular class of persons, then the courts are far more likely to infer
that it was the intention of Parliament to allow civil remedy (else the statute
would essentially be toothless.) This principle can be seen in operation in Cutler v
Wandsworth Stadium Ltd [1949] AC 398. The claimant was a bookmaker at a
greyhound racing track. Under the Betting and Lotteries Act 1934, the owners of
such racing tracks had to make suitable spaces available for bookmakers to
operate, under penalty of criminal sanctions. The bookmaker was not given such
a space, and therefore attempted to sue. The claim failed - since there was a
sanction in place it was held that Parliament did not intend for a civil remedy to
also be in place. In giving his judgement, Lord Simonds noted an assumption exists
in favour of civil remedy else “the statute would be a pious aspiration”.
It can thus be held that whilst a number of principles apply to the application of
statute in tort, there is no concrete rule which forbids the practice. Indeed, one of
the few rules which can be said to have blanket effect is that the courts are
obliged to take a holistic interpretation of the relevant Act, as per Lord Simonds in
Cutler (discussed above):
“The only rule which in all circumstances is valid is that the answer must depend
on a consideration of the whole Act and the circumstances, including the pre-
existing law, in which it was enacted.”
- Lord Simonds, at 548
Elements of the Tort of Statutory Breach
The elements which are applicable in determining whether an employer has made
a tortious breach of statute are helpfully similar to those of general negligence.
There must be a statutory duty owed to the claimant, there must be a breach of
that duty by the defendant, there must be damage to the claimant, and that
damage must have been caused by the breach of the statutory duty.

Establishing a Statutory Duty

Once it has been sufficiently argued that a particular statute applies to the case in
hand (as discussed in the above section), the claimant must then successfully
argue that they are a member of the class of persons the statute aims to protect.
This principle can be seen in Hartley v Mayoh & Co.
Case in Focus: Hartley v Mayoh & Co [1954] 1 QB 383
The defendants were in breach of the Factory Workshop Act 1901 (and 1907, and
1908). They had negligently miswired the electrical system of their factory. The
claimant, a fireman, was called to the factory to extinguish a fire. Whilst at the
factory, the fireman was electrocuted by the faulty wiring and was killed. The
claim, however, failed. The protected class of persons was limited to those who
worked within the factory. Since the fireman was only a visitor to the property, he
was not covered by the act, and could therefore not make a claim in tort for
breach of statute. It should be noted that if the case were heard today, the
fireman might have a claim on a number of different grounds (just not breach of
statute).
The same principle can be seen to be applied in Knapp v Railway Executive [1949]
2 All ER 508.
The claimant was driving on the road and came to a railway crossing. The gate
was closed, and so the claimant waited for the train. Unfortunately the claimant’s
handbrake was not properly engaged, and his car rolled down a slight incline
towards the tracks. The car hit the crossing gate, and although the gate should
have been properly secured it was not. The gate swung open, into the path of the
train. The gate struck the train, and the driver was injured. The train driver sued
the claimant successfully, who in turn decided to sue the railway company which
owned the crossing gate on the basis that they had breached their duty under
s.274 of the Railway Act 1844 to keep the gate properly secured. The claim
however, failed. The section of the Act that the claimant was attempting to rely
upon only purported to confer a benefit on road users, not railway users - the Act
made explicit mention of ‘public safety’, and this was held to exclude the driver.
Therefore, because the Act conferred no benefit on the driver, the claimant could
not rely on it against the defendant.
It can therefore be seen that the courts will closely inspect a statute in order to
work out who is the intended beneficiary. If the claimant is not one of those
people, it is unlikely that they will be able to use the statute against the
defendant. Note that this position is not necessarily equitable - in Hartley v
Mayoh & Co the factory owners had a clear duty to maintain the electrical safety
of their premises and failed to do so, killing a firefighter. Nonetheless, because of
the construction of the act, the claimant’s estate was unable to recover. This
unjust phenomenon can perhaps be attributed to the fact that just because a
particular statute does not give rise to a claim, this does not mean that the
claimant cannot make a claim on the basis of general negligence (and, in a
modern setting, occupier’s liability legislation).
Fortunately, this element of establishing a claim will usually be relatively easy to
deal with in cases of employer-employee relationships, although care should be
taken when dealing with independent contractors (who generally will not be
considered employees). The definition of an independent contractor is dealt with
in more detail in the chapter on vicarious liability.
Breach of Duty
Once a duty has been established, it must be shown that the defendant has
breached the duty. This will depend on the exact wording of the statute. Statutes
can be divided into two different categories - those which impose strict liability
and those which do not. In cases of strict liability, the duty imposed by the statute
is absolute, and so if a breach has occurred it will be held to be the defendant’s
fault regardless of the their conduct. An example of strict liability can be seen in
John Summers & Sons Ltd v Frost [1955] AC 740. The claimant was employed in a
steel works by the defendant. Whilst using a grinding machine, the claimant’s
thumb came into contact with the grindstone, injuring him. Under s.14(1) of the
Factories Act 1937 the machinery should have had a safety guard attached. The
defendants argued that this would have been an impractical safety measure -
essentially rendering the machine inoperable. The courts rejected this argument -
the Act imposed strict liability. Since they had been a breach of the statute, this
meant that the defendants were liable for the claimant’s injuries.
Of course, there also exist many statutes which do not provide for strict liability. If
this is the case, then it will be up to you to argue that the defendant’s behaviour
fell below the standards described in the statute. If a statute does not impose
strict liability, then you can safely infer that whilst the standards imposed by the
statute might be high, that it will always be possible for a defendant to avoid
liability if they have taken a sufficiently proactive approach to their duties. This
principle can be seen in Brown v NCB [1962] AC 574. The claimant was injured in a
mining accident. Under the Mines and Quarries Act 1954 the defendants were
obliged to take such steps as necessary to keep the mine secure. Although the
courts held that this meant that the defendant had to act with the highest degree
of care and skill, they noted that this obligation was not absolute, and the claim
thus failed.
It should be noted that in general the courts will place the burden on defendants
to demonstrate that their behaviour has been reasonable. This is important, since
many statutes dictate that employers implement safety protocol ‘as far as
reasonable practicable’. This can be seen in Nimmo v Alexander Cowan and Sons
Ltd. [1968] AC 107. The claimant was injured in an accident in a factory. It was
asserted by the claimant that there had been a breach of s.29(1) the Factories Act
1967 which stated that the factory “shall, far as reasonably practicable, be made
and kept safe for any person working there”. The courts ruled that the burden of
proof for showing the premises were safe rested with the defendant, rather than
the claimant having to show that the premises were unsafe (after all, the claimant
had been just been injured!). As per the reasoning of Lord Wilberforce, since the
employer was seeking to benefit from the exception to their general obligation to
create a safe workplace, it was for them to argue the point.
The case also demonstrates how the judiciary will examine the statute in order to
work out where the relevant burden of proof lies - since the Act was aimed at
ensuring factory owners acted properly, the burden was on the factory owner to
argue that they had not breached the act.
The concept of reasonableness can also change depending on the risks the
defendant was aware of at the time of breach (just as with employers’ common
law duties). This can be seen in Reffel v Surrey County Council [1964] 1 All ER 743.
The claimant was a 12 year old girl attending a school which was under the
jurisdiction of the defendants. When walking quickly along a corridor the claimant
put her hand out to prevent a swing door from closing on her. Her hand went
through a glass panel of the door, and she was injured. The glass panel was only
an eighth of an inch thick, and was not toughened. She subsequently brought a
claim for breach of s.10 of the Education Act 1944, which mandated that the
defendants ensured that the safety of the school’s occupiers was ‘reasonably
assured. The courts established that the defendants had been aware of the
dangers of the thin, untoughened glass for many years, and therefore that the
defendants had not acted reasonably.
Damage to the Claimant
As with other types of negligence, the defendant’s breach of statutory duty must
result in a recognised type of harm to the claimant. It is important to note that
the courts will examine the statute in order to establish the type of harm it is
intended to protect. This can be seen in Gorris v Scott [1874] LR 9 Exch 125. The
defendant took on a contract to move the claimant’s sheep to the UK. Under the
Contagious Diseases (Animals) Act 1869, the defendant had an obligation to
provide pens for the livestock. He failed to do so, and some of the sheep were
washed overboard during the voyage. The claimant then sued for breach of
statutory duty. The claim failed, however. The act was designed to prevent
livestock from being lost to contagious disease. Since the sheep were lost from a
different type of damage, the statute could not be used in this way, and the claim
failed.
Causation
Finally, there must be a causal link between the breach of the statute by the
defendant and the damage the claimant has suffered. This will usually be
straightforward where a harm is sudden - so if a poorly maintained factory injures
a claimant, this will be a pretty obvious breach of HASAW, which has resulted in
injury to the claimant. Where the harm suffered is of a long term nature - such as
respiratory disease caused by statute-breaching lack of ventilation, then things
might be more complicated, as there may well be multiple causes of the
claimant’s injures. The same rules which apply to concurrent and subsequent
causation (as discussed in a previous chapter) will apply for statutory breach as
much as they apply for general negligence. Indeed, Bonnington Castings v
Wardlaw [1956] AC 613 is often tabled as an example of how concurrent
causation works, but is itself a case involving breach of statutory duty.

Defences
Both consent and contributory negligence can emerge as defences in cases of
breach of statutory duty. Whilst they are covered more fully in a later chapter,
there are a few principles which should be noted with regard to breach of statute.
Consent
Since workers consent to their employment, an employer might argue that their
employees have consented to being put at risk. However, as a rule the courts will
reject this argument - after all, it would be absurd for an employer to successfully
argue that their employees consented to have their employer break the law. This
principle can be seen to be in effect in Wheeler v New Merton Board Mills Ltd
[1933] 2 KB 669. The defendants installed a new machine into their factory. The
machine did not have proper safety guards attached to it, as it should have under
the Factory and Workshops Act 1901. Due to its unsafe state, the claimant was
injured by the machine whilst working. The defendants argued that since the
claimant had used the machine willingly, that a consent defence applied. The
courts rejected this argument - it was impossible in law for an individual to
consent to a breach of statute; particularly where the relationship concerned
relationship between claimant and defendant was that of employee to employer.
However, there exists a small exception to this rule - where the claimant is an
employee, and they are holding their employer vicariously liable for a colleague’s
breach of a statutory duty, then it will be possible to advance the defence. This
was the case in Imperial Chemical Industries Ltd v Shatwell [1965] AC 656. The
claimants were two brothers employed as shotfirers (explosive experts) at a
quarry. During the course of their work, they had to test a demolition circuit. The
brothers had opted to use an outdated means of testing the circuit, which had the
potential to set off the explosives earlier than intended. This method was
outlawed by the statutory regulations which were in place. There was insufficient
wire in place to allow them to test the circuit from the safety of a shelter. A third
colleague had gone off to fetch more wire to allow test to be carried out in
relative safety, but the brothers decided to go ahead anyway. The test went
wrong, and both brothers were injured in the resulting explosion. Each brother
claimed against the defendant (their employer) on the basis of vicarious liability
(i.e. each claimant’s brother was 50% to blame for the incident, and as their
employer, the defendant was vicariously liable).
The defendant put forward a consent defence - both brothers had full knowledge
of the risk they were running, and were acting against instructions they had
expressly been given to not carry out the test in such a manner. At both the court
of first instance and the Court of Appeal the judiciary held that the defence did
not apply to statutory duties. The House of Lords rejected this line of reasoning
however. The relevant breach was that of the brothers, not the employer. In
comparison, the employer had acted impeccably, having brought in the new
statutory regulations fully, informing its employees of them, and even going as far
as firing an employee who had ignored them.
Thus, since the employer had not breached its statutory duty, and the only wrong
attributable to it was via the mechanism of vicarious liability, the defendant was
able to successfully argue consent as a defence. The claim thus failed.
Contributory Negligence
There will often arise circumstances in which the claimant has themselves
contributed to their own harm, perhaps through inattention or carelessness.
Although the defence of contributory negligence is generally available to
employers, the courts are less likely to accept in in contexts in which a certain
level of carelessness might be expected. This principle can be seen in effect in
Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152. The claimant
was injured in a mining accident which could be attributed to his employer’s
breach of statutory duty. The defendant asserted that the injury was at least
partially due to the claimant’s own negligence. In giving his judgement Lord
Wright noted that it was to be expected that someone who constantly worked in
a factory or mines would be less attentive to their safety than the average person,
through a combination of getting used to using dangerous machinery, and the
inattention which comes with carrying out a repetitive task over a long period of
time. Wright also noted the need to ensure employers abide by statutory
regulation, and thus that findings of contributory negligence should be minimised
where possible.

As such, whilst contributory negligence forms a viable defence, it would appear

that the courts will remain aware of where the balance of power rests within
employer-employee relationships.

Vicarious Liability
In most scenarios in tort, the defendant will be the party who has actually done
the relevant misdeed (or else faltered in their fulfilment of a duty.) There exists
one important exception to this pattern, however - the concept of vicarious
liability. In essence, vicarious liability deals with situations in which an individual
has committed a tortious act whilst acting on behalf of another. The primary
situation in which the concept will arise is one in which someone is acting on
behalf of an employer. This makes vicarious liability a useful tool. Firstly, it
provides a sensible way to deal with situations in which an individual has not truly
acted of their own volition, but instead has simply been doing as they have been
told by their employer. It would be unjust to hold an employee wholly responsible
in law for the plans and orders of their higher ups, and so vicarious liability allows
liability to be attributed to those who were truly in control of a given situation.
Secondly, since attributing vicarious liability tends to involve the targeting of
employers and business owners, it means that liability can be attributed to those
who can best bear the costs of litigation - it is far more likely, for example, that an
employer will have comprehensive insurance in place than an employee. One
explanation for this phenomenon can be seen in Dubai Aluminium Co Ltd v
Salaam [2002] 3 WLR 1913. The case concerned a solicitor’s firm vicarious liability
for the acts of one of its partners. The facts are unimportant - but of interest is
the obiter of Lord Nicholls:
“The underlying legal policy is based on the recognition that carrying on a
business enterprise necessarily involves risk to others. It involves the risk that
others will be harmed by wrongful acts committed by the agents through whom
the business is carried on. When those risks ripen into loss, it is just that the
business should be responsible for compensating the person who has been
wronged.”
- Lord Nicholls, at 21
What Lord Nicholls is essentially pointing out is that just as an employer gladly
reaps the benefits of their employees’ actions, they must also be prepared to bear
the costs of those employees’ misdeeds. With the theoretical basis for vicarious
liability laid out, we can now examine its mechanics.
Vicarious liability is not a separate tort in and of itself (like negligence, or
nuisance); instead, it is a way in which any of the other torts can be attributed to
a particular defendant, even if that defendant was not directly involved in the
tort. This makes vicarious liability a somewhat controversial mechanism, since it
can involve imposing liability on a party who in reality was nowhere near the
place where the tort occurred.
Establishing vicarious liability requires three primary criteria to be met. There
must be a relationship of control, a tortious act, and that act must be in the
course of employment.
Exam Consideration: It’s worth paying extra attention to who the claimants,
defendants and other parties are in vicarious liability cases so that you don’t make
mistakes when recounting them. Since they often involve several different actors,
a lot of the time you won’t be able to simply look at the case name for help.
Relationships of Control
Since it would be unjust for a tortfeasor to be able to hand off liability to any third
party, the courts will first look for a sufficiently close relationship between
tortfeasor and third party before it allows vicarious liability to be imparted. Since
most people will at some point have an employer, this tends to be the most
frequently encountered situation. However, certain other relationships give rise
to vicarious liability - such as between a principal (someone who employs an
agent) and their agent, between business partner and business partner, and
between vehicle owners and an appointed driver.
Exam Consideration: It is important to have a practical knowledge of how the
above relationships function in an everyday setting. This is because a particular
devious defendant might give themselves an alternative title to help muddy the
waters, in order to avoid vicarious liability from being attributed. For example,
business partners might call themselves ‘joint-corporate leaders’, or some other
obfuscating term. What is important to the courts is not the title of the third-
party, but the nature of the relationship. So if it looks like a principal, or partner,
or employer, and acts like a principal, partner or employer in all but name, then it
is likely to be considered in law a principal, partner or employer!
Since the most commonly encountered relationship is employer-employee, it is
important to know the features which define such a relationship. This is key, since
independent contractors act a lot like employees, but are rarely able to hand-off
liability to those who engage their services. Before continuing onto the law, it is
worth briefly putting in place a rough idea of what an employee is versus what an
independent contractor is. Employees tend to work in one place, on a formal
basis. They can often be easily identified because they will have contracts with
their employers formalising their working arrangements (pay, hours etc.). In
contrast, independent contractors often have multiple employers, and often have
less formalised working arrangements, often being paid per job, rather than per
hour. Prime examples include gardeners, electricians and private tutors.
Since these definitions are general at best, the law has developed a number of
tests to distinguish between these two camps. None are perfect on their own, but
combined they form a framework which distinguishes between employees and
contractors.
The Control Test
The first is the ‘control test’. This involves asking who, exactly, is in control of the
individual’s work. Employees tend to have the nature of their task dictated
specifically by their employer, whilst independent contractors tend to have more
personal control. Imagine an independent electrician - you’d hire them to wire
your house, but you wouldn’t tell them which wire to put where!
The source of the control test can be found in Yewen v Noakes [1880] 6 QBD 530.
The defendant was attempting to benefit from a law which stated that a lesser
amount of duty (read: tax) was payable on properties which were inhabited by an
employee of the owner. The courts held that the occupier was not an employee,
since he was not ‘a person who is subject to the command of his master as to the
manner in which he shall do his work’.
This test works well in conventional employment situations - many employees are
subject to the whims of their employers, and wouldn’t find it odd if they were
ordered to carry out a particular task. However, there are many employment
situations which don’t come under the Yewen definition, particularly where the
employee is acting with a high level of skill. A hospital trust will employ many
surgeons and doctors, but is hardly well placed to tell someone how to carry out
brain surgery or deliver a baby.
The Organisation/Integration Test
The ‘organisation’ or ‘integration test’ distinguishes between people who sign
contracts of service and those who contract to provide services. Employees tend
to do work which is integral to the business’s operations, whilst independent
contractors tend to do work which is ancillary to the main functions of the
business. This principle can be seen at play in Stevenson, Jordan & Harrison Ltd v
MacDonald & Evans.
Case in Focus: Stevenson, Jordan & Harrison Ltd v MacDonald & Evans [1952] 1
TLR 101
An accountant wrote a book based on the skills and knowledge he gained during
his employment by a firm. He died before the book was published. The question
then arose as to who was the owner of the copyright - the accountant’s estate or
his former employer. Whilst authors are the primary owners of the copyright for
things they write, if something is written under a contract of employment and the
work is done in the course of employment, then copyright belongs to the
employer. Lord Denning opted to draw a distinction between the content of the
book which came directly from the firm’s employment of the accountant and that
content which was merely associated with the accountant’s work. The former
content belonged to the firm since it was essentially a product of the accountant’s
employment, but the latter belonged to the accountant’s estate since it could be
regarded as a mere accessory to the accountant’s work. This principle can also be
applied to the employer versus contractor distinction - as per Lord Denning:
“One feature which seems to run through the instances is that, under a contract
of service, a man is employed as 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.”

- Lord Denning, at 111.

The ‘accessory’ idea is better understood by reference to examples. Consider a
sales company. The company will need sales people to operate, and will likely
have a HR department to hire people, and a payroll team to pay them. All of these
functions are key to the everyday workings of the organisation. That same
organisation might employ a cleaner to hoover their offices at night, or a glazer to
repair a broken window at their sales office. Whilst a sales office without a
window, which hasn’t been hoovered in years will not operate as effectively as it
ordinarily would, neither the cleaner nor the glazer carry out business-essential
activities. The cleaner and glazer can call in sick, and the business will continue to
operate. If the sales team were to not come into work however, the company
would cease to function.
This test is itself flawed, however. One day the sale’s computers might all crash
with an irreparable bug. The company could not operate without their computers,
and would call in an IT consultant for the day to deal with the issue. Whilst the IT
consultant is doing business-vital work, they are still not an employee, despite
apparently passing the organisation test. This demonstrates the usefulness of the
multi-test approach - it helps to avoid anomalies which arise when only one of the
rules is applied.
The Economic Reality Test
The ‘economic reality test’ is sometimes referred to as the ‘multiple test’ or the
‘pragmatic test’. It involves examining the characteristics of the subject’s work
arrangements against a checklist of signs of conventional employment. The test
appears in Ready Mixed Concrete Ltd v Minister of Pensions.
Case in Focus: Ready Mixed Concrete Ltd v Minister of Pensions [1968] 2 QB 497
The claimant hired a number of drivers to deliver concrete, paying the drivers a
fixed rate per mile. These drivers were named in their contracts as independent
contractors. The drivers used vehicles which they had purchased from the
claimant in order to do this. The vehicles had to be painted in the claimant’s
company colours, had to bear the company’s logo, and was obliged to present
their accounts in a special manner dictated by the claimant. The drivers also had
to wear the company’s uniform.
The drivers were responsible for maintaining the vehicles and had flexible
working arrangements - they could even, if they so wished, employ a competent
driver themselves to carry out the work on their behalf.
The question arose as to whether the drivers were employees of the claimant or
not. If so, the claimant would have to pay National Insurance contributions on
their behalf (hence, ‘Minister of Pensions’ as the other party). If not so, then the
claimant did not have to make the payments. The court ruled that the drivers
were not employees, and identified three criteria which had to be met before
employee status was granted:
Firstly, the individual must provide work or skill for the employer in return for
payment or other remuneration.
Secondly, the individual must have agreed (either expressly or impliedly) that they
will work under the control of the employer.
Thirdly, the other circumstances of the individual’s working arrangements must
be consistent with those of an employee.
The court also mentioned risk as a method of determining employment status.
(Read ‘servant’ as ‘employee’.):
“He who owns the assets and bears the risk is unlikely to be acting as an agent or
a servant. If the man performing the service must provide the means of
performance at his own expense and accept payment by results, he will own the
assets, bear the risk, and be to that extent unlike a servant.”
- MacKenna J at 521.
The first two of these criteria are relatively simple - work which is paid for by the
employer, and which is controlled by that employer. The third however, is far
more open-ended. Particular characteristics to look out for include:
Working Hours: Employees tend to have fixed hours (or else a set amount of
hours which they can structure flexibly). Independent contractors tend to have far
more open arrangements, and are often employed to complete a certain task,
with that task taking as long or as short an amount of time as it takes to finish the
work.
Payment: Employees tend to have set weekly or monthly salaries, which they
receive on a regular basis. Contractors tend to be paid per job, and thus do not
tend to have guaranteed income.
Tax: Employees tend to be taxed at the source of their payments (so their
employer will pay tax on their behalf, taking it from their wages as necessary).
Independent contractors tend to be personally responsible for paying tax.
Equipment: Employees tend to have their working environment and equipment
provided for them by their employer (office, computer etc.). Independent
contractors will usually have their own premises (if any at all) and their own
equipment, which they will be responsible for purchasing and maintaining.
Independence: Employees tend to be relatively restricted in the duties they carry
out, and are rarely able to refuse work (at least in the sense of ‘I won’t do that’, as
opposed to ‘I can’t do that’). Independent contractors on the other hand have far
more control. They can refuse jobs, change the terms of their working agreement,
and often have the capacity to work for multiple employers within the same
period of time.
Exam Consideration: As you might have already noticed, the economic reality test
is more practically-minded than the other two. For this reason, it tends to be the
test applied in modern settings. Nonetheless, you can demonstrate your
knowledge of the development of the tests either directly by discussing them in
essay questions, or indirectly, by applying all three of the tests to a problem
question.
It should be noted that even as the most comprehensive of the tests, the
economic reality test is by no means exhaustive. Indeed, the one certain principle
is the non-exhaustive nature of the tests, as per Market Investigations Ltd v
Minister of Social Security [1969] 2 QB 173. The claimant - a market research
company - employed a number of individuals to carry out surveys on their behalf
on a part-time basis. These part-time employees worked on a job-by-job basis,
could work for other firms, received neither sick pay nor holiday, and both parties
signed contracts for services (as opposed to ‘service’). As in Ready Mixed
Concrete, a question arose as to who was responsible for the part-timers’
National Insurance contributions. In a somewhat eccentric result, the High Court
ruled that the part-timers were employees, on the basis that the part-time
employees could not be considered as working on their own account, but rather
were carrying out the functions of the claimant company. Whilst this result
shouldn’t be considered authoritative in terms of the process for determining
employee status, of interest is the statement by Cooke J:
“No exhaustive list has been compiled and perhaps no exhaustive list can be
compiled of the considerations which are relevant in determining that question,
nor can strict rules be laid down as to the relative weight which the various
considerations should carry in particular cases.”
Exam Consideration: The advantage of the principle in Market Investigations is
that it leaves a lot of leeway for you to argue a party’s employment status either
way (although this doesn’t mean the tests should be ignored, merely that they
can be built upon).
Establishing a Tortious Act
Once a sufficiently close relationship has been established, it must be shown that
the employer (or agent, business partner etc.) had committed a tortious act. This
is because no secondary liability can be imposed on a third party before someone
acting on their behalf has attracted primary liability.
This means that whether vicarious liability is possible depends on whether liability
exists for the relevant tort. So if it is asserted that an employee has acted
negligently in the course of his work, liability for the tort of negligence must be
established before that liability can be handed up to their employer. Thus, your
ability to deal properly with vicarious liability will depend on your ability to deal
properly with the relevant tort.
One technicality should be noted. If the employee (etc.) enjoys immunity from
lawsuits by merit of their personal status, their employer will not receive the
same protection. This principle is best understood by reference to the case of
Broom v Morgan [1953] 1 QB 597. The claimant was employed alongside her
husband to run a pub. She was injured in an act of negligence by her husband. At
the time, husbands and wives could not sue each other in tort and so the
defendant denied vicarious liability (since the husband could not be sued by his
wife, primary liability did not exist, and so the employer argued secondary liability
could not exist). The courts rejected this argument, holding that the spousal
immunity was from being sued, rather than being held responsible for a tort.
Since the husband was not the one being sued, the immunity did not apply.
This particular phenomenon can best be understood through an examination of
how vicarious liability operates - both the original tortfeasor and their employer
are still considered separate legal entities, with their separate legal immunities (if
any exist at all). Instead, it is just the actions of the tortfeasor which are attributed
in law to the employer.
Tortious Acts Must be in the Course of Employment
An employer is not responsible for all of the acts one of their employees carries
out. It would be absurd if an employer was held liable for a car crash one of their
employees caused on their day off. Instead, for vicarious liability to be possible,
the tortious act must occur in the course of employment. If the relevant
relationship is not employer-employee, then the same principle applies but in a
modified form - so an agent must be acting as an agent before vicarious liability
can be attributed to their principal, and a business partner must be acting in their
business capacity before their counterpart can be held jointly responsible for their
actions. There are several categories of employment scenarios which can arise
with regard to this element of vicarious liability.
Authorised Acts
It will sometimes be simple to see when a tortious act is done in the course of
employment - most notably when an employee is directly following their
employer’s express orders and in doing so, commits a tort. So a waste disposal
company which orders an employee to dump toxic waste in a public waterway
will have committed a tort. Indeed, liability in such situations is so clear-cut that it
can be considered a matter of primary liability - the employer is directly acting
though their employees.
However, express authorisation is not an ever-present feature of many
employment situations (particularly where an employer knows they are doing
wrong - they are unlikely to put such orders in writing). The key thing to ascertain
is then whether an employee has been given implied authority to act due to the
scope of their employment.

Implied authority can be seen in Poland v Parr & Sons [1927] 1 KB 236. The
defendant’s employee believed that some children were stealing the defendant
company’s property. He struck one of the children, seriously injuring him. It was
held that although this was an unreasonable act, it was still done under his
employer’s implied authority. The court noted that in general employees have an
implied authority, in an emergency, to protect their employer’s property
(although the bench also noted that there was a limit if, for example, the
employee had shot at the boy, this would be beyond implied authority). The
claim, therefore, succeeded.
Authorised Acts in an Unauthorised Manner
Situations will often arise in which an employee is undertaking an authorised act,
but does so in an unauthorised manner. An example of this can be seen in
Century Insurance v NI Road Transport Board [1942] AC 509. A driver was
employed by the defendant company to deliver petrol. Part of this task involved
transferring the petrol from his lorry to a storage tank at the destination. Whilst
doing this, the employee lit a cigarette, threw the match to the ground, and
caused an explosion. The defendant was held vicariously liable for this conduct.
Although the employee’s conduct was clearly careless, he was nonetheless in the
process of carrying out an authorised act - delivering petrol.
A distinction can be made between situations in which an employee acts within
their employment responsibilities (as in Century Insurance), and when they act
outside of them (albeit with the intention of aiding their employer). An example
of this distinction can be found in Beard v London Omnibus Co [1900] 2 QB 530. A
bus conductor (i.e. not a driver) was at the bus depot, and realised that a bus was
urgently needed for its next journey. He could not find the driver, and so decided
to drive the bus around to the front of the depot, so that it was ready to go. In
doing so, he injured a mechanic working in the depot. A claim was made against
the employer bus company. The courts rejected vicarious liability - the conductor
was acting outside of the course of his employment.
Explicitly Prohibited Acts
As might be expected, the courts will usually deny vicarious liability when an
employer has expressly prohibited an employee from taking a particular action.
However, it is important to note that whilst a prohibition against taking a
particular action will be sufficient to break the link between the employee’s
conduct and the employer, the same cannot be said when an employer has
merely prohibited an employee from taking an authorised action in an
unauthorised way. This distinction is often referred to as the difference between
scope of action and manner of action. Scope of action can be seen in Iqbal v
London Transport Executive [1973] EWCA Civ 3 (another, but different bus
conductor case!). A bus conductor was prohibited from driving - it was explicitly
outside of the scope of his duties. Nonetheless, he decided to move a bus that
was blocking a depot but crashed, injuring another employee. The court rejected
vicarious liability on the basis that the conductor’s conduct was beyond his duties.
In contrast, prohibited manner of conduct can be seen in London County Council v
Cattermoles (Garages) Ltd [1953] 1 WLR 997. The employee worked for a garage,
which had petrol pumps outside. Part of the employee’s duty was to assist in the
movement of vehicles around the garage, and this included either pushing them
by hand, or guiding their drivers as they undertook tricky manoeuvres. He had
been explicitly told not to drive, being threatened with dismissal on a previous
occasion. One day, a van was parked at the pumps (blocking them) and two
lorries were waiting for petrol. The employee jumped into the van in order to
move it, and drove out into busy Pentonville Road in order to come back around
into the garage. It was at this point that he hit the claimant’s vehicle. The
defendant employer argued that they should not be held vicariously liable, since
they had prohibited such behaviour. The courts rejected this argument - whilst
they had prohibited the manner of his conduct, he was still engaged in his duty -
moving vehicles around to ensure the smooth running of the garage. Vicarious
liability was, thus, imposed.
It can, therefore, be seen that unless an entire category of action is prohibited by
an employer, they remain potentially vicariously liable for the acts of their
employees.
Unlawful Activity
Another category of cases exists in which employees take criminal actions during
their employment. Whilst these will often fall outside of the scope of vicarious
liability, this is not a given. The test is whether a sufficiently close connection
exists between the criminal conduct and the employee’s usual conduct. This can
be seen in the unfortunate case of Lister et al. v Hesley Hall Ltd [2002] 1 AC 215.
The employee was a warden at a school for difficult children. It emerged that this
warden was sexually abusing the children in his care. The claimants, thus, sought
to hold the owners of the school vicariously liable for their harms. The court
applied the test of ‘closeness of connection’ to the situation. It was held that the
abuse occurred on the employer’s premises, whilst the employee was performing
his duties of caring for the children, and thus vicarious liability was imposed. The
courts also noted the obvious risk of abuse in such circumstances, and thus that
the employer should have been alert to it.
This principle can be considered an extension of the prohibition principle
discussed in the section above - whilst sexual abuse was obviously prohibited, it
occurred during the course of the employee’s employment.
This principle has been extended relatively far by the courts, as in Mohamud v
WM Morrison Supermarkets plc [2016] UKSC 11. The claimant stopped at a petrol
station owned by the defendants. He entered the kiosk and asked the employee
manning it whether he could print off some documents from a USB stick. The
employee refused the request, using an expletive. The claimant objected to the
employee’s language, and the employee responded with a variety of threatening
and racist language. When the claimant sought to leave, the employee followed
him to his car, and the altercation escalated to the point of the employee
physically attacking the claimant. The claimant, thus, sought to hold the petrol
station’s owners vicariously liable for their employee’s actions. This claim was
successful. Although the employee’s conduct was clearly beyond his employment,
it was nonetheless held to have occurred during the course of it. The employee’s
job was to man the kiosk, and respond to customer enquires - and it was during
this conduct that the altercation began.
Distinguishing Between Employment and Personal Conduct
It will often be the case that the lines between employment conduct and personal
conduct are blurred. Further complications can occur when personal conduct
occurs within working hours and in the workplace (so between 9-5 and in the
employee’s office, for example). The law, thus, makes a distinction between an
employee’s conduct which is in the course of employment and conduct which can
be considered ‘a frolic of his or her own’. This distinction can be traced back to
Joel v Morison.
Case in Focus: Joel v Morison [1834] 172 ER 1338
The claimant was struck by a horse and cart which was under the control of a
driver employed by the defendant. However, the accident occurred whilst the
driver had detoured from his usual route to visit a friend. The defendant,
therefore, argued that he was not liable for the claimant’s injuries, since they
occurred outside of the course of employment. Nonetheless, since the driver was
on the whole engaged in his master’s business, the claim succeeded.
As per Parke B at 5: “If the servants, being on their master's business, took a
detour to call upon a friend, the master will be responsible […] but if he was going
on a frolic of his own, […] the master will not be liable.”
This principle is not entirely intuitive - the driver in Joel had decided, of his own
volition, to go off track to visit his friend, so it can easily be argued that this should
not be considered as part of his course of employment. The distinction between
employment conduct and a personal frolic becomes a little clearer when Storey v
Ashton [1869] LR 4 QB 476 is examined. The defendant employer, a wine
merchant, sent his carriage driver to deliver some wine. After he had finished the
deliveries, the driver went to visit his brother-in-law. During this journey he
knocked down the claimant and injured him. The courts rejected the claim against
the driver’s employer - it was held that the driver was engaged in a new and
absolutely unauthorised journey.
Thus, the distinction between Joel and Storey can be seen - in the former case,
the driver was doing his job, and took a diversion in which he caused an accident.
In the latter, the driver had finished his work when he took the ill-fated diversion.
Employers’ Indemnity
Since vicarious liability depends on the existence of primary liability, both
employer and employee are joint tortfeasors. This means that it is often the case
that employers can recover from their employee for their misdeed. There are two
primary ways in which this can happen. Firstly, the Civil Liability (Contribution) Act
1978 provides a given defendant who has paid damage with the ability to recover
a contribution to those damages from any other party who has contributed to the
claimant’s harm. The split will be decided by the courts on the basis of what is
‘just and equitable’ as per s.2(1) of the Act.
Under the common law, it is possible for a defendant to recover an indemnity (a
full recovery) for their loss from their employee if the employee has acted in
breach of contract. This was the case in Lister v Romford Ice & Cold Storage Co Ltd
[1957] AC 555. The defendant was held vicariously liable when one of their
employees negligently backed over another employee in a lorry. The defendant’s
insurance company then brought a case on behalf of the defendant against the
employee. They were successful - the employee had not been acting with
reasonable care and skill, and thus had breached an implied term of their
contract.
However, the contract law means of acquiring an indemnity is only available to
defendants when they have acted beyond reproach. If they are even partially to
blame for their employee’s conduct, they will be restricted to the statutory course
of action, as per Jones v Manchester Corporation [1952] 2 QB 852. The defendant
hospital board sought to reclaim the damages it had paid out for a junior doctor’s
mistake. However, the board was held to be partially at fault - it had failed to
provide him with proper supervision. The claim for an indemnity for breach of
contract, therefore, failed.

Occupiers' Liability
Just as a driver cannot drive haphazardly, and a surgeon must exercise care when
operating, a person who is in control of land or property must conduct
themselves in a certain manner, in order to avoid injuring others. This is the core
ethos of occupiers’ liability law. This means that a certain tension exists between
the concept of personal autonomy and privacy, and the concept of public
protection and welfare. The law of occupiers’ liability seeks to strike a balance
between these two. Just as it would be undesirable to have the State dictate the
colour of one’s house, or the flowers which must be grown in the front garden, it
would be equally undesirable for a landowner to sew a minefield along their
land’s border, to spite the postman and any wandering children that might come
by.
Fortunately, much of the law on occupiers’ liability has a statutory basis.
Unfortunately, a necessary body of case law has developed to clarify the content
of those statutes.

Exam Consideration:
Note the correct placement of the apostrophe in “occupiers’” - it might help to
remember that the law isn’t dealing with one occupier, but many.
Occupiers’ Liability Act 1957
The Occupiers’ Liability Act 1957 dictates the duty that an occupier owes to lawful
visitors (as per s.1(1)). All others are covered by the Occupiers’ Liability Act 1984
(discussed below).
There are, thus, three key definitions which are relevant to applying the Act. We
must define who an occupier is, what their premises are, and who a lawful visitor
is. This is logically intuitive - cases involving occupiers’ liability will always require
a claimant, a defendant and location for the incident to have occurred.
It should be noted that OLA 1957 covers both personal injury and damage to
property (whereas OLA 1984 only imposes a duty with regard to personal injury)
Defining ‘Occupier’
The Act does not provide a definition for ‘occupier’, since the term is discussed
widely in the applicable common law. An occupier is simply a party who exercises
an element of control over premises, as per Wheat v E Lacon & Co Ltd.
Case in Focus: Wheat v E Lacon & Co Ltd [1966] AC 552
The claimant was on holiday, and stayed in a pub with attached guest rooms. The
pub was owned by the defendant company, which had hired a manager-in-
residence to manage both the guest rooms and the front-of-house. In order to
access his room, the claimant had to climb a steep, narrow staircase. The handrail
stopped two steps short of the bottom, and there was no bulb in the light fitting,
leaving it dark. The claimant was fatally injured whilst descending these stairs.
The claimant’s estate brought an action under the OLA 1957 against both the
owning company and the manager, as dual occupiers. The primary question of
law was then who was the proper party to the suit. The court held that both the
owners and the manager were occupiers, applying a test of control. The owners
retained both property rights, and the right to repair the premises as they saw fit,
and hence had sufficient control over the premises to be an occupier. The
manager was too an occupier - he was licensed to deal with the day-to-day
running of the premises, and additionally physically lived on the first floor of the
pub. Whilst both were occupiers, only the manager was held liable - the lack of
lighting was held to be the key breach of duty, and that was the manager’s
purview.
Lord Denning provides a concise rundown of who occupiers are, and the nature of
their general duty:
"wherever a person has a sufficient degree of control over premises that he ought
to realise that any failure on his part to use care may result in injury to a person
coming lawfully there, then he is an ‘occupier’ and […] is under a duty to his
‘visitor’ to use reasonable care. In order to be an ‘occupier’ it is not necessary for
a person to have entire control over the premises. He need not have exclusive
occupation. […] He may share the control with others. Two or more may be
‘occupiers’. And […] each is under a duty to use care towards persons coming
lawfully on to the premises, dependent on his degree of control."
- Lord Denning, at 577.
Not only does Denning provide a definition for ‘occupier’, but he also describes it
in terms which are intentionally similar to those of the neighbour principle of
Donoghue v Stevenson. Thus, the basis for occupiers’ liability can be considered
the same as the basis for general negligence - if you control a situation, you
should do so in a way which promotes the safety of those who might be injured if
care was not taken. Notably, an ‘occupier’ does not have to actually occupy (as in
‘live at’) premises in order to come under the Act. This is sensible - there are vast
swathes of land in the UK which are controlled by various parties, even if they
don’t live on the property personally. Because of the occupier principle, the law
can be thought of as emphasising the practical reality of a situation.
Whilst the occupier definition doesn’t depend on legal ownership, legal owners
will usually be regarded as having a degree of control over the property they own,
as will thus be regarded as occupiers, as in Harris v Birkenhead [1976] 1 WLR 279.
The defendant council had served a compulsory purchase on a rented property,
and the current tenant moved out. They gave the owner/landlord 14 days’ notice
of their intention to take possession, but didn’t actually take physical possession
of the property (i.e. send an agent to it) once the 14 days had passed. The
claimant, a four-year-old girl, wandered off from a nearby playpark with a friend.
The house was unsecured (unknown vandals had broken in), and the claimant
entered the open front door, went upstairs, and was seriously injured when she
fell from a window.
The council was held liable - although they had not physically occupied the
property, they had legal ownership at the point the accident occurred. This legal
control was enough to establish occupier status.
Defining ‘Premises’
Whilst defining ‘premises’ will be simply in many scenarios, there exist several
peripheral issues which should be noted. s.1(3)(a) of the Act notes that it is not
just land and buildings which might be considered premises, but vessels, vehicles
and aircraft.
Of particular note is that temporary and mobile structures are included under this
definition, such as scaffolding and ladders. See Wheeler v Copas [1981] 3 All ER
405. The claimant was a builder working on the defendant’s property when he
used a ladder which the defendant had lent to him. The ladder was too flimsy,
and broke, injuring the claimant. The court noted that the ladder came under the
definition of premises, but that the defendant could not be considered the
occupier of the ladder since he had no control of it at the time of the accident
(the courts noted that the claimant was equally to blame for using a ladder he
should have known was insufficient). Nevertheless, under employer’s liability the
claim succeeded (but damages were reduced by 50% for contributory negligence.)
Defining ‘Lawful Visitors’
The law splits lawful visitors into three categories - those who have express
permission to visit, those who have implied permission to visit, and those with a
lawful right to visit.
The express permission category, on the whole, is relatively straightforward. It
refers to those who are expressly invited onto premises by some means (so, a
written invite or a simple beckoning by the occupier, for example). Occupiers can
limit the extent of an express invite in terms of place, behaviour or time. So
someone who is invited to a dinner party can attend with express permission, but
they cannot refuse to leave at the end, smash the host’s windows and then climb
up onto the roof. Someone who deviates from such instructions will be
considered a trespasser, and thus will lose the protection of OLA 1957 (but will
thus be covered by OLA 1984).
This principle can be seen in The Carlgarth [1927] P 93. The claimant’s ship filled
with water and sank whilst travelling down the defendant’s channel of water.
Whilst the ship was invited to use the channel, it had navigated in an irregular
manner (causing the sinking.) Thus, because the ship was acting in a manner
other than that which it had permission to, the occupier of the channel could not
be held liable. In the now-famous words of Scrutton LJ at 97: “When you invite a
person into your house to use the staircase, you do not invite him to slide down
the bannisters, you invite him to use the staircase in the ordinary way in which it
is used.”
The implied permission category includes those who lack express permission but
whose presence is assumed to be unobjectionable to the occupier. This is a
practical measure - each new resident in a road doesn’t write to their postman
telling him he can deliver the mail. Similarly, it is one of the needs of society that
people can be found and spoken to at their home address. This permission can
also be limited, firstly, expressly (so, telling a delivery person to use a particular
entrance or path). Secondly, there is a natural limitation which will apply for many
forms of implied permission - so a postman will likely be considered to have
implied permission to access the front of a property, but this permission will not
extend to the postman going round the back of the property and playing on the
owner’s swing-set for an hour (if he does, talk to your local post office.) Again, a
visitor who exceeds the limitations of implied permission will be considered a
trespasser.
Implied permission can come into being if an occupier knows that their land is
being used by trespassers, but does nothing to prevent their activities, as in
Lowery v Walker [1911] AC 10. A path running across the defendant’s field was
used as a shortcut by several people to get to a nearby railway station. The
defendant knew about this, and objected to it, but had not taken any steps to
stop it from occurring. One day, he put a wild horse in the field, which attacked
and injured the claimant. The courts held that since the defendant knew about
the trespassers, but did nothing about it, this amounted to implied permission.
The defendant was, thus, held liable.

The lawful right of entry category encompasses those who maintain a right to
enter land or property regardless of the occupier’s wishes, under s.2(6) of the Act.
This includes police officers (with a warrant or chasing a fugitive), firefighters
attending a fire, and public utilities employees attending to read meters etc. The
root of such permission can usually be found in the relevant statute (such as the
Police and Criminal Evidence Act 1984).
Those who enter property in accordance with a valid contract are held to be a
lawful visitor under the act, and notably, if the relevant contract provides for a
higher standard of care it will apply. So if a landowner hires builders, and agrees
to being held strictly liable for any accidents that occur, then that duty of care will
apply (in addition to the lesser one contained in the 1957 Act).
So as long as a visitor is a member of one of these categories, they will be
protected by OLA 1957.
Occupiers’ Duty of Care
The relevant duty of care can be found in s.2(2) of OLA 1957. An occupier must
“take such care as in all the circumstances of the case is reasonable to see that
the visitor will be reasonably safe in using the premises for the purposes for which
he is invited or permitted by the occupier to be there.”
Whilst this is relatively similar to the negligence duty of care, the ability of the
occupier to modify the exact nature of the duty should be noted. So an occupier
who invites people into his house, but not the garden, has to ensure the
reasonable safety for their visitors in the house but holds no such duty (at least
under OLA 1957) with regard to their garden.
A distinction should also be noted that the duty is based around preventing injury
in visitors, rather than ensuring that premises are objectively safe. Thus, whilst a
deep pit presents an objective hazard, the occupiers duty is based on ensuring
nobody is injured by it (for example, by putting up warning signs or fencing it off).
Special Visitors
The duty contained in s.2(2) is the commonly applicable one. However, OLA 1957
provides for two special sorts of visitors: children and skilled visitors, for whom
the applicable duty of care is higher and lower respectively.
s.2(3)(a) warns that children can be expected to be less careful than adults, and,
by implication, that a greater level of care might be required to keep them from
harm. The common law has sought to strike a balance between the
responsibilities of parents and occupiers to prevent harm from befalling children.
In Phipps v Rochester Corporation [1955] 1 QB 450 a 5-year-old was walking, with
his 7-year-old sister, across some land owned by the defendant, which was under
development. The 5-year-old fell into a trench dug for such purposes, and was
injured. The court ruled that the occupying council was not liable - just as an
assumption could be made that children would be less careful, an equal
assumption could be made that young children would not be allowed to wander
unsupervised onto unsafe land. Thus, to avoid shifting parental responsibility to
landowners, the claim was denied.
However, if land holds either concealed danger, or something which might allure
children to it, then a duty will likely be held to exist, as in Glasgow Corporation v
Taylor [1922] 1 AC 44. A seven-year-old died after eating poisonous berries which
were in a public park. Whilst the plants were faced off, there were no notices
warning that the berries were poisonous. The court held that the defendant
council was liable. The plants did not present an obvious danger, and so the
council should have taken sufficient measures to draw attention to the concealed
danger. It was also noted that an occupier who is aware that something on his
land might act as an allurement to children (for instance, berries that look edible)
should take greater care to prevent that risk from manifesting.
This ruling fits into the theory of parental responsibility - parents cannot be
expected to protect against a danger they cannot see - and this goes doubly
where such dangers are not adequately signposted.
Of course, not all minors are equal - older children are less susceptible to harm
than younger children. Thus, the relevant level of care will depend on the nature
of the risk and the age and awareness of the child involved. This principle can be
seen at work in Titchener v British Railways Board [1983] 1 WLR 1427. The
claimant, a 15-year-old girl, was walking with her 16-year-old boyfriend. They
took a shortcut across a railway line and were both struck by a train, severely
injuring the claimant and killing her boyfriend. They had accessed the railway
through a gap in the fence, and there was a pathway worn up to the gap,
suggesting that this was a point of repeated trespass. It was established that the
defendant either knew of the gap, or would have known of it upon reasonable
inspection. The defendant denied liability on the basis that it did not owe a duty
of care towards a 15-year-old, who would have been aware of the risks they were
running. This argument was successful - indeed upon cross-examination the
claimant noted her knowledge of the risk and her choice to take the chance.
It can, thus, be concluded that the duty of care owed to minors scales with age -
an occupier will owe a greater duty of care towards younger children, and this will
slowly diminish over time, until the child becomes an adult (indeed, once a child
reaches around 16, there aren’t many risks that they’ll be expected to react to
differently than an adult).
At the opposite end of the spectrum lie skilled visitors, as noted in s.2(3)(b).
Occupiers can assume that such visitors will have a greater awareness of risks and
the relevant precautions that they should take - although importantly, this
increased competence will only apply to risks whose nature matches the skill of
the visitor. So an electrician will be owed a lesser duty of care by an occupier - but
only in relation to risks of electric shock and similar.
This can be seen in General Cleaning Contractors Ltd v Christmas [1953] AC 180.
The claimant was cleaning windows on the defendant’s building. He had climbed
up onto a wall, and was using an open sash window for support. The top half of
the window closed on his fingers, he lost his balance and fell, injuring himself. His
action against the occupiers failed - it was held that as a professional, he should
have known how to mitigate the risk he was running.
Exam Consideration: General Cleaning Contractors Ltd v Christmas also appears as
a case in employers’ liability. It should be noted that the claimant’s suit against his
employers succeeded, whilst his suit against the building’s occupiers failed.
It should be noted that just because a risk is of a nature which might be
encountered by a skilled visitor, that does not dispel the entirety of the occupier’s
duty of care - an occupier must still act reasonably. This is sensible - an occupier
can’t invite an electrician to their property and then fail to tell them that the first
light switch they use will likely kill them. Furthermore, an occupier will still have a
duty of care towards skilled visitors if they are harmed by a risk, despite utilising
their skill. Again, this is a sensible formulation of the law - there are certain risks
which remain dangerous despite the application of skill. Consider a zoo-owner
who negligently allows a grizzly bear to get loose. Just because the zoo-keepers
are skilled at dealing with animals does not mean that the zoo-keeper can ignore
liability for any injuries they might incur whilst corralling the animal.
This principle applies most often in the case of injuries incurred by firefighters, as
in Salmon v Seafarer Restaurants Ltd [1983] 1 WLR 1264. A fireman was injured in
an explosion whilst attending a chip shop fire. The defendant occupier argued
that, with regard to a fireman attending a fire, his duty only existed to protect him
against a special or additional risk above those he might ordinarily encounter as a
result of his job. This argument was rejected - whilst the firefighter’s skills were
relevant to determining the applicable duty of care, where it was foreseeable that
he might be injured through the exercise of those skills, the occupier would
remain liable. The claim therefore succeeded.
Warnings
As noted at the top of this section, the duty of care is based on protecting visitors,
rather than removing hazards altogether. This means that the humble warning
sign forms a key element of fulfilling the duty. However, the addition of a warning
to a hazard will not absolve an occupier of liability. To return to the escaped bear
example: a zoo owner telling his keepers ‘look out, you have to capture a bear!’
will not let him escape liability for bear-related injuries. As per s.2(4)(a), warnings
only fulfil the occupier’s duty of care if they enable a visitor to be reasonably safe.
Exam Consideration: It should be noted that s.2(4)(a) refers to all warnings, rather
than warning signs specifically. This means that an occupier could potentially give
an effective verbal warning instead of posting a sign. Of course, this is impractical
- since most hazards exist 24/7, erecting a sign is a far more practical solution
than providing verbal warnings to every single visitor. Nevertheless, do not make
the mistake of assuming that the absence of signage is proof of a negligent
occupier - the key is that the warning is communicated, not the means of
communication.
Since signs form the primary method of warning visitors, various principles have
built up around their implementation. In general, a specific hazard will require a
specific warning - so if the hazard is an electric fence, then an appropriate
warning would be: ‘Caution: Electric Fence’, rather than just ‘Caution’. Visitors
shouldn’t have to play ‘guess the hazard’ whenever they see a warning. Hidden
dangers will require greater attention to be drawn to them (since by definition a
visitor cannot be relied upon to avoid them of their own volition). Conversely,
very obvious risks require no warning at all, as in Staples v West Dorset District
Council [1995] 93 LGR 536. The claimant was badly injured when, crouched on a
harbour wall to take a photo, he slipped and fell off of the wall, some 20 feet high.
The harbour wall was covered in algae, and thus very slippery when wet. He
brought an action against the defendant council, arguing that no warning signs
were present regarding the danger of slipping. The claim failed - the dangers of
slipping on algae on a harbour wall were obvious, and the claimant was aware of
them. The defendant thus had no duty to warn.
Exam Consideration: Staples demonstrates how claimants will be expected to use
their own common sense to self-warn of a hazard. All relevant circumstances
should be considered when dealing with OWA 1957 problem questions - so whilst
you could argue that the slip hazard was unobvious, it would be difficult to argue
that an adult wouldn’t recognise that walls next to steep cliffs shouldn’t be
mounted.
Staple also provides an example of how the effects of warning signs can be
enhanced when used in combination with other safety measures - if there was a
sheer drop at the cliff edge, without a warning sign or wall, the claimant’s
argument may well have succeeded. It should also be noted that the effectiveness
of a warning will depend on the concerned visitor - warning signs will do little to
deter younger children, for example (although they do enhance their parents’
ability to keep them safe).
Independent Contractors
As noted in the chapter on vicarious liability, it is usually not possible to attribute
the actions of an independent contractor to their employer. However, s.2(4)(b)
provides a list of the situations in which an occupier will be held liable for a harm
caused by an independent contractor. Firstly, where in was unreasonable to
entrust the work to an independent contractor in the first place. This is to prevent
an occupier from hiring independent contractors to deal with all aspects of their
premises in order to avoid liability. Secondly, where the occupier failed to take
reasonable steps to ensure the independent contractor was competent - for
example, a landlord who hires an independent engineer to do gas safety checks
will be expected to check that he is qualified. Thirdly, where the occupier has
failed to take reasonable steps to check the work of an independent contractor.
So if a school hires an independent contractor to clear ice off of steps, they will be
expected to check that it has been done (as in Woodward v Mayor of Hastings
[1945] KB 174). Conversely, an occupier will not be expected to check overly
technical work, as long as they have taken the proactive measure of ensuring
their contractor is reputable (as in Haseldine v Daw & Son Ltd [1941] 2 KB 343).
Defences
There are three commonly encountered defences when dealing with OLA 1957.
The first is the defence of consent, as per s.2(5). Visitors will often be in situations
in which they are aware of a risk, but choose to continue anyway - so a visitor
who is aware of a wild horse, but decides to continue into its field regardless, may
well be held to have consented to the risk.
Secondly, there will often be scenarios in which a visitor has acted poorly around
a risk, and thus the defence of contributory negligence can be raised. So visitors
who fool around near a cliff edge and fall off will likely be held to have
contributed to their injuries.
Thirdly, exclusion clauses (a matter of contract law) will often be employed by
occupiers as a means to avoid liability.
Occupiers Liability Act 1984
OLA 1984 provides the basis for the duty that an occupier has towards those who
are not lawful visitors. This includes trespassers - those who lack permission in the
first place, as well as those who have overstepped the bounds of their permission.
OLA 1984 also covers those who lawfully exercise a private right of way (this is a
property law concept), and those who have their access covered by right to roam
legislation.
Much of the content of OLA 1984 matches that of OLA 1957. The primary
difference between the two is the conditions which must be met before a duty of
care comes into existence.
Defining ‘Trespasser’
The exact definition for trespasser can be found in Robert Addie & Sons
(Collieries) Ltd v Dumbreck [1929] AC 358 (facts unimportant, since the
judgement is based on out-of-date law): “someone who goes on the land without
invitation of any sort and whose presence is either unknown to the proprietor or,
if known, is practically objected to”.
The Duty of Care towards Trespassers
The relevant duty of care can be found in s.1(3) of the Act. It describes three
criteria which must be met before a duty arises. Firstly, the occupier must be
aware of the hazard, or have reasonable grounds to believe it exists. Notably, this
is a subjective standard - so whether this condition is met will depend on an
occupier’s actual knowledge of either a hazard or the symptoms of a hazard.
Secondly, the occupier must know or have reasonable grounds to believe that a
trespasser is in the vicinity of that danger. Again, this is also a subjective standard,
based on the occupier’s knowledge. The ‘reasonable grounds’ element is
important here - an occupier does not need to be looking out their window at the
time a trespasser is injured by a hazard. Instead, this condition is more about an
occupier being aware of the phenomenon of trespassers on their land. Examples
of such grounds include an occupier’s knowledge that people often use their field
as a shortcut, or that children often use a broken fence as a way to access a
building site managed by the occupier.
Thirdly, the relevant risk must be one which the occupier would reasonably be
expected to protect against. This is not subjective, but objective - the courts will
ask what the reasonable occupier would have done. This will depend a lot on the
nature of the risk - a hidden and serious risk will require greater action than an
obvious and mild one - contrast a minefield with some nettles. We’d expect a
reasonable occupier to go to great lengths to protect trespassers from the former,
but not the latter. The application of the duty of care can be seen in Young v Kent
County Council.
Case in Focus: Young v Kent County Council [2005] EWHC 1342
The claimant, a 12-year-old boy, climbed up onto the roof of a school (via a
ventilation flu) to fetch a ball. He then fell through a skylight and was injured. The
defendant occupier was aware that the skylight was brittle, and that it
represented a hazard. They were also aware that the roof was used as a meeting
place by children - the fact that the roof could be accessed via the ventilation flu
by children was even noted in a HSE report. Finally, the brittle skylight was a
hazard which could have easily been protected against. The claim therefore
succeeded, albeit with the claimant’s damages reduced by 50% on the basis of
contributory negligence.
Exam Consideration: Be wary of being too harsh on trespassers when dealing with
problem questions - yes, they probably shouldn’t be on the land when they’re
injured, but the punishment for what is ultimately a pretty tame crime shouldn’t
be death or injury - especially considering that the duty is only imposed when an
occupier knows they are exposing trespassers to a hazard.
As with OLA 1957, greater lengths will be needed to protect children than adults -
so pay special attention when it is known that children are trespassing.
Nevertheless, the courts will rarely shy away from acknowledging the fact that
there comes a point at which children should be aware of a risk they are taking.
An example of this can be seen in Keown v Coventry Healthcare NHS Trust [2006]
1 WLR 953. The claimant, an 11-year-old boy, was seriously injured when he fell
from a fire escape that he was climbing on. The claimant admitted at trial that he
knew that his actions were dangerous, and that he should not have been climbing
on the fire escape. The claim therefore failed. Notably, the courts also held that
the fire escape was not a hazard (as per the first requirement to find a duty of
care) - the fire escape was perfectly safe, it was the actions of the claimant which
rendered it hazardous.
The same principle that was employed in the analysis of the hazard in Keown can
also be seen to operate in Thomlinson v Congleton Borough Council [2004] 1 AC
46. The defendant occupier owned a large country park - an old sand quarry
which had to be turned into a lake. The lake was dangerous for swimmers, and so
notices were posted around the lake, and rangers were deployed to, amongst
other duties, prevent swimming. The claimant dove into shallow water and broke
his neck. The claim failed. The claimant was a self-acknowledged trespasser due
to his choice of activity. The injuries were not due to a hazard, but instead due to
the claimant’s own freely taken actions. The bench also noted, from a policy
perspective, that the relevant preventative measure would have been to close the
lake altogether - something which would have led to the closure of a number of
similar locations around the country.
It can, thus, be seen that the courts will not define something as a hazard on the
basis of it being involved in an injury, but instead will ask if it is of a generally
hazardous nature. This will particularly be the case when injury is caused by an
action taken by a fully autonomous claimant.

Nuisance and Rylands v Fletcher

Just as tort law extends to cover more than personal injury, into property damage
and economic harm, it has also developed a mechanism to deal with the ongoing
annoyance that can arise as a result of certain land usage. This is known as the
tort of private nuisance. A good preliminary definition can be found in Miller v
Jackson.
Case in Focus: Miller v Jackson [1977] QB 966
The claimants lived next to a cricket ground, and their garden was only 100 feet
away from the nearest batting crease. This meant that several cricket balls were
hit onto their property, causing minor property damage and constituting a risk to
the claimants. Whilst the cricket ground attempted to take several measures to
abate the issue, cricket balls continued to be hit into the housing estate where the
claimants lived. They thus sought an injunction against the cricket club.
The claim was successful - the cricket ball risk constituted nuisance. Of note is the
description of nuisance from Denning MR at 980: “The very essence of private
nuisance […] is the unreasonable use of man of his land to the detriment of his
neighbour.”
There are two primary features of nuisance - firstly, it involves the protection of
the use of land (or property). Secondly, that protection is from unreasonable
interference.
This can cover a wide range of neighbour-neighbour relationships. There is no
requirement that the claimant and defendant properties be adjoined - so a
neighbour two doors down can be a defendant in a case of nuisance. Conversely,
there is no need for the properties to be separate buildings, so claimant and
defendant can live in flats in the same block. Nuisance does not have to be
artificial - it can be naturally occurring, so encroaching branches can constitute
nuisance, or a neighbour could plant a nursery of extremely smelly corpse
flowers. As seen in Miller v Jackson, it can cover activities which take place on a
piece of land. A factory might pour acrid smoke into a residential area - but it
should also be noted that private nuisance does not just protect residential rights,
but all land uses. A residence can, thus, cause nuisance to an industrial site.
Property Interests and Private Nuisance
Since nuisance deals with property rights, it is necessary that a claimant has a
proprietary interest in the property which is interfered with. This might be as an
owner, leaseholder or tenant. Further details on the concepts of proprietary
interests and beneficial interests can be found within property law resources.
The need for proprietary interest stems from Malone v Laskey.
Case in Focus: Malone v Laskey [1907] 2 KN 141
The claimant lived next door to a business which used heavy machinery. She lived
with her husband, who was allowed to live in the property because he was a
manager employed by the business which let the property. In property law terms,
he was a licensee. One day, the vibrations from the machinery next door caused
the toilet cistern to fall from a poorly installed bracket, injuring the claimant. Her
claim in private nuisance failed - she lacked a proprietary interest in the property,
and thus the tort was unavailable to her as a claimant.
For a brief period of time in the mid-90s, this requirement was removed, in the
case of Khorasandijan v Bush [1993] QB 727. The claimant, an 18-year-old
woman, was subjected to a campaign of harassment by a 23-year-old man. He
threatened her with violence and behaved aggressively towards her, even
spending time in prison for threatening to kill her. An injunction was obtained
against the defendant on the basis of private nuisance. On the basis that it would
be absurd to not extend the protection of private nuisance to the claimant on the
basis of her lacking proprietary rights, this requirement was overturned, and the
injunction remained in place.
This stance changed in 1997, however. It should be noted that the Protection
from Harassment Act 1997 came into force, providing a non-nuisance basis for
injunctive protection from Khorasandijan v Bush type behaviour. The proprietary
right requirement was reinstated in Hunter v Canary Wharf [1997] AC 655. A
number of residents living in the Canary Wharf area experienced interference
with their television signals due to the construction of the 800-foot Canary Wharf
Tower. Some of the claimants were homeowners and leaseholders, whilst some
were family members, lodgers, and others who lacked a proprietary interest. The
House of Lords reinstated the proprietary interest requirement of Malone v
Laskey, although added an amendment that a spouse’s beneficial interest
(another property law concept) conferred upon him or her a proprietary interest.
This means that, as in 1907, private nuisance remains a matter of property rights,
rather than personal rights.
What Constitutes Unreasonable Interference?
The second key element of private nuisance is that of unreasonable interference -
that is, use of land or property in a way which would foreseeably interfere with
the claimant’s quiet enjoyment of their own land. There are five main factors
which, to date, have been used to determine unreasonableness - character of
neighbourhood, claimant sensitivity, nuisance duration, public benefit, and
defendant malice.
Character of Neighbourhood
Character of neighbourhood refers to what might reasonably be expected of a
particular area - so whilst it would be unreasonable for a factory to cause a lot of
noise in the middle of an idyllic countryside setting, the same noise would likely
be found reasonable if found in an industrial estate. Thus, the relative amplitude
of a nuisance depends on its context. This principle can be found in Sturges v
Bridgeman [1879] 11 Ch D 852.
The defendant ran a confectionary shop, and used a noisy pestle and mortar in his
kitchen for the purpose of grinding up ingredients. A physician moved into the
neighbouring property, and built a consulting room next to the noisy kitchen. The
claimant brought an action in nuisance against the defendant, aiming for an
injunction against the noise. The claim succeeded on the basis that the activity
was unreasonable, given the character of the area. In giving his judgement
Thesiger LJ provided the principle of neighbourhood consideration:
"…whether anything is a nuisance or not is a question to be determined, not
merely by an abstract consideration of the thing itself, but in reference to its
circumstances; what would be a nuisance in Belgrave Square would not
necessarily be so in Bermondsey;"
- Thesiger LJ, at 865.
It should be noted that the factor of neighbourhood character only comes into
play when the nuisance is one which causes inconvenience to the claimant, rather
than physical damage. So, if the subject of the complaint is noise or smell, then
the defendant will be able to refer to the character of their neighbourhood as a
demonstration of how their behaviour is not unreasonable. If the nuisance causes
physical damage (such as acid discharge damaging a claimant’s trees, or cricket
balls damaging paint and roof tiles), then neighbourhood character will not form a
valid defence. Physical damage remains an unreasonable nuisance, regardless of
neighbourhood context. This principle can be seen in St Helen’s Smelting Co v
Tippings [1865] 11 HL Cas 642. The claimant owned a manor house and some
1300 acres of land. This was situated nearby to the defendant’s copper smelting
business. Discharge from the smelting process caused damage to greenery on the
claimant’s land. The defendant argued that his business was located amongst a
number of other heavy industrial processes, including an alkali processing plant,
and that the claimant had purchased the property in the knowledge of this. The
claim succeeded - neighbourhood character had no bearing on claims in tort of
the nuisance of property damage.
Sensitivity of the Claimant
Whilst claimants will by definition be annoyed by a nuisance (else why would they
bring a claim?), this is not the test for private nuisance. Instead, the existence of
nuisance will be judged against its effect on a reasonable person. If it is held that
the claimant is simply unusually sensitive to a nuisance, or is using their property
for an unusual purpose (which in turn is disrupted by the nuisance), then the
nuisance will not be legally recognised
This can be argued to be a theoretical inconsistency within the tort of nuisance -
the claimant who brings the case to court must have a personal (and thus
subjective) proprietary interest, but in examining their claim the courts take an
objective, rather than a subjective view of nuisance. This can perhaps be
explained by reference to the fact that whilst the need for a proprietary interest is
a personal hoop the claimant must jump through, it provides a convenient
gatekeeping mechanism to prevent all-comers from lodging claims (and by
extension, stops businesses from using nuisance as a way to stop competitors’
operations.)
The use of the reasonable person/ordinary land use test can be seen in Robinson
v Kilvert [1889] 41 Ch D 88. The defendant ran a business which manufactured
boxes. This process required that the basement of the defendant’s property was
kept at a warm, dry temperature. The defendant let out the room above the
basement to the claimant, a paper merchant, who stored his stock in the room.
Due to the heat of the basement operation, the claimant’s stock was damaged,
and he brought a claim in nuisance. The claim failed - it was held that the
nuisance was not one which would affect the reasonable claimant, and it was only
the claimant’s particular business which caused the nuisance to manifest.
It should be noted that there exist circumstances in which the claimant’s
annoyance will be because a particular activity of theirs is affected by a nuisance,
but it is nonetheless one which would still interfere with the ordinary person. So
in the case of Robinson, if the room above the heated basement was
uncomfortably warm at all times of the day so that an ordinary person wouldn’t
have been able to spend their time there, then the claim would likely have
succeeded.
It should also be noted that the relevant standard is that of ‘ordinary use’. This
should not be taken as meaning that the disruption of a specific activity is not
grounds for nuisance, as long as that activity is considered by the courts to
constitute normal use. So it might be that a nuisance prevents rugby from being
played in a field - as long as the court holds that playing sport in the field
constitutes ordinary use, then the claim will likely succeed.
Duration of Nuisance
There must be some continuity to the duration of the nuisance. ‘Continual’ is a
distinct concept from ‘constant’ as far as private nuisance goes. So whilst loud
trucks five days a week leaves an occupier with two days of peace, the fact that
the nuisance reoccurs means it is actionable, since it will be regarded as continual
for the purpose of nuisance. This is a practical principle - it wouldn’t be sensible to
allow a defendant to point to brief periods of non-nuisance as a defence. At the
same time, the law is usually only concerned with dealing with nuisances that will
likely reoccur: a one-off music festival might annoy the neighbours, but there’s
nothing for the law to do once it has been and gone forever. There have been
rare exceptions to this rule, however, as in Crown River Cruises v Kimbolton
Fireworks [1996] 2 Lloyds Rep 533. The defendant put on a firework display,
during which some burning debris from the display landed on the claimant’s
barge, setting it aflame. Despite the nuisance of burning debris only continuing for
20 minutes, the claim succeeded. This case should be considered an eccentricity,
however - the judiciary even noted that the finding of nuisance was an attempt to
avoid applying the Rylands doctrine (see Potter J’s judgement in this case, and the
discussion of Rylands below.)
Although the courts will look for an ongoing nuisance, that ongoing nuisance can
be instigated by a single act. This can be seen in Spicer v Smee [1946] 1 All ER 489.
The defendant installed faulty wiring on his property, which eventually caused a
fire to break out which damaged the claimant’s property. Although the act of
installing faulty wiring was a one-off, the ongoing threat of fire from that wiring
was considered an ongoing state of affairs, and thus satisfied the test for
nuisance.
It should be noted that temporary nuisances can still be considered continual - so
a month-long music festival which goes on all night can be considered a nuisance.
An example of both the continuance principle and of temporary nuisance can be
seen in De Keyser’s Royal Hotel v Spicer Bros (1914) 30 TLR 257.
The defendants were using a noisy pile driver to complete a construction project.
The claimants - hoteliers, had complaints from their guests that they could not
sleep, and that after-dinner speakers could not be heard. The claimants sought an
injunction against the defendant’s activity. The claim was successful - the
interference was of an unreasonably nature, and its temporary nature was not
obstacle to a finding of nuisance.
Exam Consideration:
A useful tool to judge ‘continuance’ can be to simply ask how many times a
nuisance will be annoying. So in De Keyser, the noise from building annoyed
guests over a number of nights.
Public Benefit
The courts will also consider the public benefit of the nuisance action - much as
they will in an action for negligence. This is a key mechanism for distinguishing
between reasonable and unreasonable conduct - a neighbour playing thrash
metal loudly all day is doing little to benefit the public, but a hospital which is
carrying out building works to create a new treatment wing is. The courts will
generally hold that construction is of public benefit - after all, everywhere you’ve
ever lived, and every shop or business you’ve ever used had to be built at some
point!
Of course, defendants are rarely given free rein to annoy their neighbours; they
will still have to act reasonably in carrying out their publicly beneficial activity.
Building a new library is great, but not if work continues 24/7 in a residential area
without good reason.
Malice
If it is found that the defendant is acting with deliberate hostility or spite, this
makes it far more likely that their actions will be found to be unreasonable. In a
similar manner to the way in which the law will look favourably upon a claimant
with ‘clean hands’, in nuisance cases it will treat defendants with ‘dirty hands’ less
favourably. This can be seen in Hollywood Silver Fox Farm Ltd. v Emmett [1936] 2
KB 468. The claimant was engaged in the (now banned) practice of fox fur
farming. Silver foxes are particularly timid, and if disturbed whilst pregnant are
especially prone to miscarriage. They are also prone to infanticide if they are
disturbed whilst they have cubs. The defendant took issue with the claimant’s
farm, on the grounds that he thought it devalued his neighbouring property. He,
therefore, took to firing his shotgun regularly in order to disturb the claimant’s
foxes. The claim succeeded - whilst it was ordinarily reasonably for a farmer to
fire his shotgun on his land, and the claimant’s activity was out of the ordinary,
the fact that the farmer’s actions were malicious rendered them unreasonable.
Exam Consideration:
Unless a defendant is particularly foolish, they will rarely spell out the intent of
their actions. However, it is sometimes possible to find malice if the defendant is
acting in a particularly inexplicable manner.
Private Nuisance Must Cause Harm
Once it has been established that a claimant has a proprietary right, and the
defendant’s actions are unreasonable, the claimant must demonstrate that there
has been some harm from the defendant’s actions. Three types of recognised
harm were laid down in Hunter v Canary Wharf (described above.) The first
category is encroachment - where the defendant’s activity or land directly affects
the claimant’s property. The classic scenario here will be where subsidence is
caused in the claimant’s property, usually by tree or hedge roots from the
defendant’s property.
Secondly, where the defendant’s use of their land causes physical damage to the
claimant’s property, as in St Helen’s Smelting Co v Tippings, discussed above.
Thirdly, where there is an interference with the claimant’s enjoyment of their
property. This category includes cases involving noise or odour. De Keyser
provides an example of the former category.
Certain scenarios will present a combination of these harms, so Miller v Jackson
(above) involved both property damage and the prevention of the claimants being
able to safely use their garden.
Public Nuisance
There exists a second category of nuisance cases, distinct from private nuisance.
This category of cases is called public nuisance. Public nuisance is first and
foremost a matter of criminal law - a common law offence which a party can be
cited for. However, if an individual can demonstrate that they, as an individual,
have been especially affected by a public nuisance, then they can make a claim in
tort. A working definition for public nuisance can be found in Attorney General v
PYA Quarries
Case in Focus: Attorney General v PYA Quarries [1957] 2 QB 169
The defendant owned a quarry, which emitted large amounts of dust and grime
into the surrounding residential area. The equipment also caused damage via
vibration to the surrounding properties. Romer LJ provided the following
description of public nuisance at 184: “any nuisance is 'public' which materially
affects the reasonable comfort and convenience of life of a class of Her Majesty's
subjects. […] It is not necessary, in my judgment, to prove that every member of
the class has been injuriously affected; it is sufficient to show that a
representative cross-section of the class has been so affected for an injunction to
issue.”
Thus, the key to public nuisance is that a class of persons are affected by a
nuisance (but not all of them, just a substantial proportion). This can be regarded
as an extension of the ethos of private nuisance - just as tort law will seek to
ensure an individual can enjoy their property in relative peace, the criminal law
will seek to extend this protection to a group of people. This also recognises the
fact that there will often be nuisances which affect more than one individual.
Rather than several individual cases in nuisance, public nuisance deals with
activities which are so anti-social in nature that they become criminal. Since
criminal sanctions will do little to aid the individuals affected, a tort case can thus
be appended to the criminal case so that individual claimants can seek
compensation for their harm.
A sufficiently large class of people is required before a public nuisance case can
succeed. At a bare minimum, the affected group of people must be so large that,
in the words of Lord Denning in Attorney General v PYA Quarries: “it would not be
reasonable to expect one person to take proceedings […] to put a stop to it but
that it should be taken on the responsibility of the community at large.
This doesn’t give us a direct number, however. This is because whether a class is
large enough will depend on the facts of the case at hand. There are several
examples of note, however.
In R v Ruffel [1991] 13 CR App R the organiser of a rave in a field was held
criminally liable for public nuisance - the loud music and litter was held to have
caused a public nuisance to local residents. It can, thus, be seen that a local
community can constitute a class of people.
In R v Ong [2001] 1 Cr App R (S) 117 a betting scam was orchestrated in which the
floodlights at a Premiership football ground were sabotaged so that they could be
turned off via remote, causing an abandonment of the match. This meant that the
defendant could profit from a rule of their betting syndicate which stipulated that
the result of an abandoned match would be recorded as it stood at the point of
abandonment (so if the bookie’s favoured team was winning, they could
effectively end the match at will.) This was held to be a public nuisance to the
spectators, who had their enjoyment of the match impaired. Thus, a group of
people with a common interest can constitute a class of people.
A group of road users can be a class of people, as in Castle v St Augustine’s Links
[1922] 38 TLR 615. Golf balls were regularly hit onto the road from a nearby
course - constituting a public nuisance.
Even if the effect of a nuisance action is indirect, it can still affect a class of
people. So in R v Lowrie [2005] 1 CR App R (S) 95 the defendant made a number
of hoax calls to emergency services, thus diverting the services away from
genuine cases. The community affected by this was held to constitute a class of
people.
Smaller groups of people can be considered a class, as long as they have common
characteristics. So in R v Johnson [1997] 1 WLR 367 a group of women who all
lived in a similar area were subjected to obscene phone calls from the defendant.
It should be noted, however, that the courts appear to have started to shy away
from applying public nuisance to cases involving numerous, but separate victims,
as in R v Rimmington [2006] 1 AC 469. The defendant sent racially abusive
communications to over 500 individuals. A distinction was made between
nuisances which affect communities as a whole, and those which affect several
individuals. This should not be regarded as a rejection of the criminalisation of the
conduct in the case at hand - indeed, the judiciary noted that statutory offences
existed which covered such conduct (namely, the Malicious Communications Act
1988), and that this was the motivation for not finding public nuisance to have
occurred.
The Special Damage Requirement
In order for a claim in tort to be made, the claimant must show that they have
suffered damage over and above the class of people affected by the public
nuisance. This effectively prevents all of those affected by a public nuisance from
bringing a claim. Damage can be personal injury, property damage, economic loss,
or just discomfort or inconvenience. This will purely be a matter of the facts at
hand, since whether a claimant is especially affected by a nuisance will depend on
the extent to which the general class of persons is affected.
Nuisance Defences
Prescription
The defence of prescription, which only applies to private nuisance is a claim that
a defendant has acquired a right to cause the relevant nuisance because they
have done so for over 20 years without interruption. This is similar to the manner
in which certain property rights come into existence. The logic is that a defendant
can assume that there is nothing wrong with their activity if it has persisted for
over 20 years. It is essential to note that the start of this 20-year period is not
from the start of the activity itself, but from the start of the time that the activity
became a nuisance. This can be seen in Sturges v Bridgman (the case of the
confectioner and the doctor discussed above). The defendant claimed that he had
been operating his pestle and mortar for over 20 years, but this argument failed -
the activity only took on the nature of being a nuisance when the doctor built his
consulting room.
Statutory Authority
If a defendant’s activity is authorised by statute, then this will likely constitute a
valid defence. This is based on the fact that statutes are the creation of
Parliament, and the judiciary is remiss to usurp its authority. Certain statutes
(such as the Civil Aviation Act 1982) will explicitly note that activity covered by
them cannot give rise to a claim in nuisance. Others will simply authorise the
activity - this will not form a barrier to using the statute as a defence. Notably, this
covers the process of planning permission, meaning most authorised construction
will be covered. However, an authorised activity which is undertaken in an
unreasonable manner can still give rise to a claim in nuisance, as in Wheeler v JJ
Saunders Ltd [1996] Ch 19. The defendant built a pig house with planning
permission. The claimant brought a case in private nuisance on the basis that
smells and noise coming from the pig house disturbed the guest house he had
built close by. Nevertheless, the claim for nuisance succeeded since the activity of
the pig house was held to be unreasonable.
Ineffective Defences
There are a number of arguments which are often put forward in nuisance cases
which the courts usually regard as invalid. It is often argued by defendants that
the claimant has ‘come to the nuisance’, and thus as the newcomer they
shouldn’t be allowed to disrupt the activity of the established resident. This can
be seen in Miller v Jackson and Sturges v Bridgman. The law will ignore this
argument - an activity is a nuisance whether it starts the year before or the year
after a claimant has moved to their property, and the right to quiet enjoyment
remains static. Furthermore, this defence could effectively allow a defendant to
singlehandedly make their area unappealing to newcomers.
Exam Consideration: The ‘coming to the nuisance’ situation is often the focus of
essay questions, so it is worth reading up on the scholarly evaluations of the
defence.
It should also be noted that a defendant cannot successfully argue that their
actions only constituted a nuisance when combined with the actions of another.
The prime example here is a loud band - a single defendant musician cannot claim
that their contribution in isolation was not a nuisance as a defence.
Rylands v Fletcher
There also exists a nuisance-like tort created by the case of Rylands v Fletcher.
This is anomalous: there are few cases which can be said to have given rise to
their own special tort.
Case in Focus: Rylands v Fletcher [1868] LR 3 HL 330
The defendant built a large water reservoir over abandoned mine shafts. These
shafts collapsed under the weight, flooding the shafts and the claimant’s
coalmine. The defendant had not acted negligently, and had taken reasonable
care to choose a skilled and competent contractor to carry out the creation of the
reservoir. However, the defendant was still held liable for the damage to the
claimant. The reasoning behind the decision can be found in the judgement of
Blackburn J:
"the person who for his own purposes brings on his land and collects and keeps
there anything likely to do mischief if it escapes, must keep it at this peril, and, if
he does not do so, is prima facie answerable for all the damage which is the
natural consequence of its escape"
- Blackburn J, at 279.
It is important to note that there now exists a comprehensive body of tort law to
deal with the situations originally covered by Rylands. Whilst it originally covered
personal injury, it is now only relevant in cases of property damage or harm to
proprietary interests. Whilst it has not been overturned entirely, the courts dislike
using the doctrine, and will seek to use other areas of tort law wherever possible.
The tort can be broken down into four elements - collecting and keeping on land,
non-natural use of land, likely mischief, and escape and harm.
Collecting and Keeping on Land
Collecting and keeping on land refers not only to an innately mischievous thing
(like water or deadly bees), but also things which, if kept on a piece of land, might
cause something else to escape. So, in Miles v Forest Rock Granite Co
(Leicestershire) Ltd (1918) 34 TLD 500, the defendant kept explosives on his land
which then caused an explosion, causing rocks to be ‘freed’ from his land, causing
damage.
This is particularly important for cases of fire - which naturally ‘escapes’ and does
damage. So in LMS International v Styrene Packaging and Insulation Ltd [2005]
EWHC 2065, the thing kept on the land was a hot wire for cutting polystyrene, but
the thing that was caused to escape was fire.
It is worth noting the requirement for the active collection of the mischievous
object - so naturally occurring objects will not be covered by Rylands. So if the
rocks in Miles were simply knocked loose by a falling tree which happened to be
on the land, then the claim would not have come under the Rylands doctrine.
Non-natural Use of Land
Non-natural use of land is largely context dependant. So, in Rickards v Lothian
[1913] AC 263, it was held that water coming out of an overflow pipe onto the
land was not unnatural. This was not a special use of the land, and there was
nothing innately dangerous about the operation of the overflow pipe which made
it dangerous to others.
What is natural and what is not is a matter of context, and thus has the definition
of ‘natural’ can change over time. This can be seen in Musgrove v Pandelis [1919]
2 KB 43. A car was stored in a garage below the claimant’s rented property. One
of the defendant’s employees spilled petrol whilst filling the car, which caught
alight. The fire spread, damaging the claimant’s property. It was held that storing
the car and refilling it in the garage was unnatural. Nowadays this would not
satisfy the non-natural condition. The current working definition of “unnatural”
can be seen in Transco plc v Stockport MBC [2004] 2 AC 1. A pipe managed by the
defendant developed a leak, causing an embankment to collapse. This exposed a
gas pipe, and so the claimant had to carry out emergency maintenance, at some
cost. The claim, however, failed - the water pipe was not an unnatural use of the
land. Non-natural use was described as “an exceptionally dangerous or
mischievous thing in extraordinary or unusual circumstances”.
Likely Mischief
Likely mischief can be obvious (like keeping deadly bees) but can also include
things which are not dangerous whilst contained, but become dangerous when
released - so the water in the reservoir in Rylands was not dangerous whilst
contained, but caused substantial damage when released. This can be seen in
Crowhurst v Amersham Burial Board [1878] LR 4 Ex D 5. The defendant kept yew
trees on his land. The branches of the trees hung into a neighbouring field, and
were eaten by the claimant’s horse. The horse died as a result of eating the
poisonous leaves.
Escape and Harm
Simply, the requirement that there is an escape from the defendant’s land, and
harm occurs. This used to be a matter of strict liability - escape and harm alone
used to satisfy the test. It is now the case that the escape must be reasonably
foreseeable (in line with the test in Wagon Mound (No 2).)
This change was brought about by Cambridge Water Co. v Eastern Countries
Leather plc [1994] 2 AC 264. The defendant stored tanning chemicals in drums.
The claimant tested its water, and it emerged that the defendant’s chemicals had
tainted it. The claim, however, failed - it was not foreseeable that the chemicals
could taint the water supply.
It should be noted, however, that a defendant cannot take reasonable steps to
prevent the escape to discharge their duty. If an object escapes, and the escape is
foreseeable, then liability will be imposed, even if the defendant has attempted to
prevent the escape.
Defences
Both contributory negligence and consent can be used in Rylands cases - so if a
claimant knowingly consents to the keeping of a mischievous thing, they will not
be able to rely on Rylands.
Defendants can also advance an act of god/nature defence. For example, if it was
only unusually heavy flooding which caused the reservoir to collapse in Rylands,
then the claim would have likely failed.
If the escape is caused by third-party action, then the claim against the defendant
will fail (although an alternative claim against the third party in negligence will
arise). This can be seen in the aforementioned Rickards v Lothian - flooding was
caused by a mischievous third party who blocked a water outlet and then left a
tap running. The defendant was, thus, able to avoid liability.
Finally, if a defendant’s actions are authorised by statute, this will usually form a
defence to liability under Rylands, provided the defendant has acted in
accordance with the relevant statutory requirements.
Trespass to the Person, Land and Goods Lecture
Share this: Facebook Twitter Reddit LinkedIn WhatsApp
Trespass to the Person
Whilst the criminal law has developed its own framework to combat injurious
actions against the individual, it concentrates on punishing the defendant, rather
than aiding the victim. Tort law has therefore developed its own framework for
claims against defendants who have acted to infringe personal rights. This
includes the torts of battery, assault, false imprisonment and harassment.
It should be noted that these torts have fallen out of use in favour of the use of
negligence, but they nonetheless remain part of the law. They are particularly
useful in cases in which the claimant suffers no harm or injury since in contrast to
negligence, the tort of personal trespass does not require demonstrable harm to
be actionable.
Exam Consideration:
The criminal and tort forms of these activities are the same. Criminal law
resources will thus cover them in a greater level of detail than most tort law
resources.
Battery
Battery simply involves the intentional and direct application of force to another
person (either to their body or via their clothing). It is essential to note that it
does not require injury or objective harm - an individual has a straightforward
right to not be physically touched or moved by another person.
Intention
The key feature of battery is intention - else every busy street would result in a
litany of cases. The intention requirement be seen operating in Letang v Cooper.
Case in Focus: Letang v Cooper [1965] 1 QB 232
When driving out of a grass carpark, the defendant accidentally drove over the
claimant’s legs whilst she was sunbathing. Some time passed between the
incident and the case coming to court, and so the statute of limitations for a claim
of negligence had passed. She thus brought a case in trespass against the
defendant. The court held that the tort of trespass required intent on the part of
the defendant. Since the infliction of force was negligent, rather than intentional,
the tort of trespass did not apply, and since the statute of limitations for
negligence had passed, the claim as a whole failed.
Exam Consideration:
Whilst negligence and trespass form two exclusive sides of the same coin it is
important to note that they are both exclusive - a successful claim for negligence
and a successful claim for trespass to person cannot be based on the same facts.
Where carelessness has occurred, then the tort will be negligence, but where
there is intention, then the tort is trespass.
Direct Application
Direct application of force is also a requirement of battery. This requirement
should not be taken literally - a defendant can use a tool to inflict battery. This is
logical given that the reasoning behind battery is to protect individuals’ personal
rights: it would not matter to the individual whether they’re being poked with a
finger, a baseball bat, or hit with a thrown baseball - the nature of the
interference is essentially the same.
Indirect contact can still fulfil the ‘direct application’ requirement. This can be
seen in Pursell v Horn [1838] 112 ER 966. The defendant threw boiling water over
the claimant. Despite this not being a direct form of contact, it was still held to be
a direct application of force, and thus the components of battery were in place.
Contact by a third party can also fulfil this requirement, given that the contract is
instigated by the defendant. The key example here is Scott v Shepherd [1773] 96
ER 525 (discussed too in causation.) The defendant threw a small explosive into a
crowded market. It landed next to a market-trader, who threw it onwards. This
happened once more again, until the explosive blew up, blinding the eventual
victim in one eye. Despite the intervention of the third parties, this was held to
constitute the direct application of force. It wouldn’t do for a defendant to be
able to place someone else in a position where they unwittingly harm another
and escape liability, and thus the law recognises these sort of situations as
battery.
The criminal law concept of transferred malice means that a defendant who
intends direct contact with one party but instead hits another will be held liable
for the contact with the ‘wrong’ victim. This can be seen in Livingstone v Ministry
of Defence [1984] NI 356. A solider in the employ of the defendant fired his gun at
a rioter. He missed the rioter and hit the claimant. Under the doctrine of
transferred malice, he was held to have committed battery against the claimant.
Whilst injury is not a prerequisite, the courts will distinguish between hostile and
unhostile contact. This is why, quite reasonably, one person can tap another on
the shoulder to get their attention without a claim in battery arising. As per Cole v
Turner [1704] 6 Mod Rep 149, the “least touching in anger is a battery.” Whilst
hostility is usually accompanied by a lack of consent on the part of the victim,
non-consent will not always indicate hostile intent. In F v West Berkshire Health
Authority [1989] 2 AC 1, the concept of battery came under close scrutiny when
doctors came to the courts seeking permission to sterilise a seriously mentally
disabled, but sexually active patient, in order to avoid the trauma that an
unintended pregnancy would cause to her. This was ruled to be a lawful practice,
and in giving his judgement Lord Goff (at 564) alluded to an alternative situation
of non-consensual, but necessary forceful contact: “….a man who seizes another
and forcibly drags him from the path of an oncoming vehicle, thereby saving him
from injury or even death, commits no wrong.”
Exam Consideration:
 It is a common mistake to assert that battery is based on violent action. Battery
should not be regarded as being based on the level of force applied to the
individual, but instead on the intent of the defendant in applying that force. A
hand placed gently on the chest of another can be done in utmost hostility, whilst
a punch on the arm or a slap on the back can be friendly gestures.

Assault
Not to be confused with the everyday meaning of assault (as in attack), assault in
criminal and tort law refers to situations in which an individual “causes another
person to apprehend the infliction of immediate, unlawful force on his person”, as
per Collins v Wilcock [1984] 1 WLR 1172. It often goes hand-in-hand with battery,
since there will often be a moment before a battery occurs in which the victim can
see what is about to happen.
Intention and Form
Assault does not solely involve physical indications of violence - it is now the case
that words and threats can constitute assault, as long as they fulfil the relevant
criteria. Since assault is based around communication, even silence can constitute
an assault. The issues of both words as assault and silence as assault appear in R v
Ireland.
Case in Focus: R v Ireland [1998] AC 147
The defendant made a series of silent telephone calls to three victims (in an
attempt to, essentially, menace them.) It was argued by the defendant that this
could not be considered assault, since there was no active communication which
took place. The court however, rejected this argument.
Silence was held to constitute assault, since the communication of silence had the
intention of causing fear in his victims, just as the communication of a certain
sentiment via words or actions could.
It should be noted that, as with battery, intention is a necessary component of
assault. Thus, somebody who unwittingly acts in a way which causes another to
apprehend an attack will not be liable - else someone walking down the street
towards a baseball game holding a bat might find themselves in significant
trouble.
Reasonableness of Fear
The fear of the victim must be reasonable. This reasonableness will be judged
based on the facts which are available to the victim at the time of the assault,
rather than the objective reality of the situation. This principle can be seen at
work in R v St George [1840] 9 C&P 483. The defendant had an argument with the
victim, and took out a gun and pointed it at him. The gun was unloaded. This was
still assault - the victim still apprehended being shot. Thus, although there was no
objective danger to the victim, a reasonable person in his position would have
thought that there was danger, and so it was assault.
It is a requirement of assault that the apprehended danger be of an immediate
nature - so a threat to take a violent act in a month will not constitute assault (this
constitutes a different criminal act.) This principle can be seen in Mbasogo v Logo
Ltd (No. 1) [2005] EWHC 2034. The claimant was the President of Equatorial
Guinea. A group of insurgents planned to stage a coup of the country, which
would have involved forcibly (and probably violently) removing the claimant from
power. The coup failed, and some of the plotters were caught outside of
Equatorial Guinea. In the following days, an advance party of the plotters was
caught inside of the country. The claimant brought a case against the defendant
for, amongst other things, assault - since in the time between the plot being
uncovered and the plotters being caught, he feared for both his life and that of his
family. The claim for assault failed - whilst the claimant certainly reasonably
feared violence, this violence was not held to be immediate.
Since assault is a matter of what the victim believes can happen in the immediate
future, a threat the victim knows the defendant cannot carry out will not
constitute assault. This can be seen in Thomas v National Union of Mineworkers
[1986] Ch 20. The defendants and the claimant were all miners, embroiled in the
miners’ strikes of the mid-80s. The defendants were striking, and on the picket
line being held back by the police. The claimant, along with a number of other
workers, was being bussed to the mine, and the defendants yelled threats of
violence towards him. Since the defendants could not have possibly reached the
bus to carry out their threats, this did not constitute assault, and the claim thus
failed.
Defences to Assault and Battery
Lawful Authority
Those with lawful authority will be protected from being held liable of either
assault or battery. Thus, under the Police and Criminal Evidence Act 1984 the
police can use reasonable force in order to arrest somebody (amongst other
activities). Similarly, medical professionals can use reasonable force within certain
situations specified by the Mental Health Act 1983. It is important to note that
people with lawful authority do not have the authority to do as they will - they
still have to act reasonably. This can be seen in Collins v Wilcock [1984] 3 All ER
374. A police woman stopped in her police car to speak with the defendant - she
was under the impression that the defendant might have been soliciting for the
purposes of prostitution. She asked the defendant to get into her car. The
defendant refused and went to leave, whereupon the officer grabbed her arm. In
response, the defendant scratched the officer. The defendant was charged with
assaulting a police officer in the course of duty. Upon appeal however, the
conviction was quashed - the defendant was not under arrest, and so the officer’s
action amounted to battery. The defendants action was thus in self-defence.
Self-Defence
As can be seen in Collins, an individual can use reasonable force to protect
themselves against either an actual or perceived threat of harm against
themselves or another person. The force must be proportionate to the threat -
since the purpose of the force is to repel to threat, it must be no more
substantive than is necessary to do that. This principle can be seen in Revill v
Newbury [1996] 2 WLR 239. The defendant owned an allotment and a shed, in
which he had taken to keeping valuable items. The shed was frequently broken
into, and thus the defendant had begun to sleep in it, armed with a shotgun. The
claimant came along at 2am to break into the shed. The defendant awoke and
shot through a hole in the shed, shooting the claimant in the arm and torso. Both
parties were held criminally liable for their respective actions, and then the
claimant brought a claim in tort against the defendant, who argued self-defence.
The claim succeeded - the defendant’s actions were far in excess of what was
required to repel the threat of the burglars. The claimant’s damages were
reduced by 2/3rds on the basis of contributory negligence.
Parental Authority
Whilst becoming increasingly unpopular, parents still have a right to use physical
force to chastise a child (often colloquialised as ‘smacking’.) This right has
important limits, however. The level of force inflicted must be proportional to the
child’s behaviour (and has, in any case, an upper limit), and if the child does not
understand the purpose of the punishment, the defence will fail. This can be seen
in A v UK [1998] 2 FLR 959. ‘A’ was an eight year old whose doctor notified the
authorities when he noticed that the boy had several marks indicative of beating
with a cane. Whilst the jury acquitted the boy’s step-father, a case was brought
against the UK in the European Court of Human Rights, alleging that there had
been a failure in law to protect the boy’s Article 3 right to avoid inhumane or
degrading punishment. This was successful.
Necessity
If interference with another (i.e. battery) will protect them from a greater evil,
then this will form a valid defence against battery. This is the essence of the
‘pushing someone from the path of a car’ discussed in F v West Berkshire Health
Authority above.
Exam Consideration: Resist the urge to enthusiastically trot this defence out
wherever possible. This defence is rarely successful, since it tends to require
absolute selflessness on the part of the defendant - it is not a defence of ‘I did
what I thought had to be done’, but rather ‘I took a small act in order to prevent
an obvious evil.’
Consent and Contributory Negligence
As with other torts, consent and contributory negligence form an absolute and
partial defence respectively, to the torts of assault and battery. There is a limit to
the bounds of consent - see R v Brown [1993] 2 All ER 75 (and other criminal cases
related to it). However, this limit tends to only be approached once behaviour
moves into actual bodily harm territory, rather than simple battery.
False Imprisonment
False imprisonment is restraint without lawful authorisation. It is essentially the
tort of either directly holding a victim in one place (in which case it will overlap
with battery), or else creating a set of circumstances that prevents the victim from
leaving. Like assault and battery, no harm is required before this tort becomes
actionable. Indeed, as long as the circumstances of false imprisonment exist, the
victim does not need to even be aware that they are being falsely imprisoned
before a case can be brought. This can be seen in Murray v Ministry of Defence.
Case in Focus: Murray v Ministry of Defence [1988] 1 WLR 692
The claimant’s house was surrounded by armed guards and searched by the
military (as per the Northern Ireland (Emergency Provisions) Act 1978, the armed
forces had police-like powers.) During the search, the claimant asked if she was
being arrested, and received no answer. She was then arrested 30 minutes later.
This was held to constitute false imprisonment, despite the claimant not being
explicitly aware that she was being falsely imprisoned for the 30 minutes before
her arrest. However, as noted by the court in this case, whilst false imprisonment
is actionable per se, a claimant who doesn’t know they’ve been imprisoned will be
affected a lot less negatively than one who does, and so damages will be reduced
accordingly.
Thus, whilst finding out that you’re locked in a room is more troubling than
finding out that you were locked in a room, the same wrong has still be
committed in both cases. Furthermore, consider a situation in which, for
nefarious purposes, it was necessary to keep an individual from leaving their
home for an hour. Just because the victim happened to not try to leave their
home for that period does not change the nature of the wrong which has been
committed. The tort of false imprisonment can thus be thought of as involving the
creation of an illegitimate situation, even if that situation doesn’t result in an
active harm.
It is important to note that whilst being locked in room or held onto by another
are both forms of false imprisonment, the restraint needn’t be physical - so, as in
Murray, the simple implication that the claimant was under arrest (when she was
not) was enough to constitute false imprisonment.
Total Loss of Freedom
The key element of false imprisonment is that it must involve a total loss of
freedom - it will not arise in situations where the victim is merely prevented from
proceeding in a particular direction. This can be seen in Bird v Jones [1845] 7 QB
742 - the claimant attempted to cross a bridge which was closed during a sailing
regatta. He claimed that this limitation on his freedom of movement constituted
false imprisonment. The claim however, failed: whilst he was prevented from
moving forwards, he was free to go back the way he had come. Thus, because he
was only partially restrained, false imprisonment did not occur.
Defences to False Imprisonment
Reasonable Condition of Release
If the claimant is being detained on the basis that they need to meet a reasonable
condition, then this will form a defence to a claim of false imprisonment. This can
be seen in Robinson v Balmain New Ferry Co. Ltd [1910] AC 295. The claimant
paid a penny to enter a wharf via a turnstile so that he could board a ferry. He
then decided to not wait for the ferry, and attempted to go back through the
turnstile. However, as noted by a sign on both sides of the turnstile, there was a
charge of a penny to both enter and exit the wharf. A similar fee would have been
payable at the wharf on the other end of the ferry journey. The claimant refused
to pay the exit fee, and so was prevented from leaving. He later brought a claim in
false imprisonment. The claim failed - he was aware of the fee before he entered
the wharf, and furthermore he had the exit of the ferry journey available to him.
This case is also cited as a matter of consent - the claimant was aware of the
conditions of his release when he entered the wharf.
Assuming the surrounding circumstances are reasonable, a claimant who has to
wait a reasonable period of time for ‘release’ will not be considered as being
falsely imprisoned. This can be seen in Herd v Weardale Steel, Coal and Coke Co
Ltd. [1915] AC 67. The claimant was a miner who descended in a lift to the bottom
of a pit. When he arrived, he decided not to work, and asked to be returned to
the surface in an empty lift. The defendants refused, and told him that he had to
wait until the end of the previous shift, some twenty minutes later. He brought a
claim in false imprisonment which failed. The courts regarded this as a matter of
consent, but again, this can be thought of as a matter of reasonable condition of
release - the claimant had a right to leave, but not to the extent that the
defendants had a duty to act immediately to realise it.
Lawful Authority
As with assault and battery, the police have a reasonable right to restrain
individuals in particular circumstances. However, if these circumstances are not in
place, then cases can be brought against them for false imprisonment. This is
usually based on the concept of reasonable belief on the part of the police officer
involved that the claimant has committed, or is about to commit an offence. This
is a significant area of liability for the police, and so is covered in greater detail in
policing law resources.

Mental health professionals also have a similar ability. It is also possible to

lawfully detain an individual if they have a particular contagious disease, as per
the Public Health (Control of Disease) Act 1984.
Consent and Contributory Negligence
As noted above, individuals can explicitly or impliedly consent to temporary
imprisonment of some kind, as in Robinson. It is also feasible that an individual
might contribute to their own detention - someone who pretends to shoplift and
is then kept for longer than necessary by a security guard, for example, will
reasonably be regarded as having contributed to the situation.
Wilkinson v Downton and Indirect Trespass
Although largely subsumed by the torts of negligence and harassment, the case of
Wilkinson v Downton provides an action based on the infliction of indirect harm
on another.
Case in Focus: Wilkinson v Downton [1897] 2 QB 57
The defendant told the claimant that her husband had broken both of his legs in
an accident. She suffered nervous shock as a result and became ill for some time.
Despite there being no direct trespass to her person, this was held to be
actionable. The essence of the claim can be found in Wright J’s judgement (at 58):
“The defendant has […] wilfully done an act calculated to cause physical harm to
the plaintiff - that is to say, to infringe her legal right to safety, and has in fact
thereby caused physical harm to her…”.
This is essentially the tort of communicating information designed and intended
to harm the well-being of an individual. The elements of liability were more
recently laid out in Wong v Parkside NHS Trust [2001] EWCA Civ 1721. The
claimant was subject to a campaign of workplace harassment and bullying from
the defendant, eventually culminating in a physical attack. As a result, the
claimant suffered from a variety of physical and psychiatric injuries. The
defendant was prosecuted for the assault, but the claim on the basis of Wilkinson
was struck out. The court identified three elements of the tort - actual harm in the
form of physical or psychiatric injury, there must be intention, and the conduct
must be of such a degree and such a nature that it was intended to cause harm. It
was this third ground that Wong failed to meet.

Now that harassment law is firmly in place Wilkinson is rarely utilised - indeed, in
the time since the original case, it has only been successfully employed twice in
Janvier v Sweeney [1919] 2 KB 216 and Khorasandjian v Bush [1993] QB 727. In
the former, private detectives threatened to out the claimant’s fiancé, who was
imprisoned by Germany at the time, as a spy (a dangerous allegation, given the
year.) In the latter, a series of threatening calls were made to the claimant, and
the case was used as the basis for an injunction. Nevertheless, Wilkinson remains
good law, despite its function being overtaken by legislation.
Exam Consideration:
Wilkinson theoretically exists, but has little practical effect. You’ll gain more
marks by showcasing your knowledge of the more practically relevant
Harassment Act.
Harassment
Thanks to the Harassment Act 1997, the tort of harassment now has a statutory
definition. Its three elements are mentioned in s.1 of the act: “a course of conduct
that the defendant knows or ought to know amounts to harassment of another.”
Course of Conduct
As per s.7(3), this refers to conduct on two or more occasions - so one off
instances are not covered. This can be seen as a reference to concerted intention:
a one-off occasion of nastiness is regrettable, but potentially eccentric. Two
occasions, however, indicates a pattern, and a failure to self-modulate on the part
of the defendant. Conduct includes speech, as per s.7(4).
That Amounts to Harassment
As per s.7(2) harassment is that which causes alarm or distress in the victim.
Notably, this is subjective on the part of the victim. This makes sense - what
alarms and distress one person might be a hugely comical joke for another.
In combination with the ‘two occasion’ rule, this also allows a defendant a chance
to understand the effect of their conduct - since harassment depends on
subjectively on the victim’s response, a defendant cannot be expected to know
the victim’s subjective response before the first time the conduct occurs.
The Defendant Knows (Or Ought to Know) That It Amounts to Harassment
Knowledge is either subjective on the part of the defendant, or otherwise
objective if, as per s.1(2), a reasonable person who has the same knowledge as
the defendant would consider it harassment.
Examples include a campaign of threats against the employees and business
partners of an medical animal research laboratory, in Daiichi v Stop Huntingdon
Animal Cruelty [2004] 1 WLR 1503, workplace bullying in Majrowski v Guy’s and
St. Thomas’s NHS Trust [2006] 2 WLR 125 (which recognised vicarious liability for
the tort) and aggressively intrusive police questioning, in KD v Chief Constable of
Hampshire [2005] EWHC 2550.
Trespass to Land
Trespass to land is the unjustified interference with the possession of land. This
interference might take the form of someone refusing to leave land or property
when asked by the legal possessor, or the dumping of an unwanted fridge on the
lawn of a neighbour. The process whereby an authorised visitor can become a
trespasser is discussed in detail in the chapter on occupiers’ liability.
Whilst both trespass of land and goods (discussed below) are torts, they are
primarily a matter of property rights. Thus more information on either can be
found in property law resources.
There are four elements of the tort which need clarification: there must be direct
interference, and that interference must be voluntary, but there is no need for
awareness that trespassing is occurring, and there is no need for harm (it is
actionable per se).
Direct Interference
There must essentially be some purposiveness to the interference with the land.
Consider an aging tree on the edge of a neighbour’s property. If the tree’s owner
pushes it or cuts it so that falls onto the neighbour’s land, then this would be
direct interference. In contrast, if the tree simply falls from old age onto the
neighbour’s land, this will not be the tort of trespass - instead, it will likely be
negligence or nuisance.

This interference needn’t be particularly egregious. This can be seen in Gregory v

Piper.
Case in Focus: Gregory v Piper [1829] 9 B & C 591
The defendant, in a dispute with a neighbour, asked his manservant to build a
rough ‘wall’ of rubbish on his property, to stop the claimant from using it as a
path to get to his own land. After a while being out in the elements, some of the
rubbish was displaced by the wind, and rolled down a hill onto the claimant’s
land. Although trifling in nature, this was held to be sufficiently direct.
Indeed, the court noted (at 594) that a single stone laid against a neighbour’s wall
can give rise to a case of trespass.
Voluntariness
The interference must be voluntary - so if party A pushes party B onto the
claimant’s land, party B will not be liable for trespass. Party A, however, will - they
have interfered with the claimant’s land, having pushed something onto it, like
the tree owner above. Thus, in Stone v Smith [1947] Style 65, the defendant was
brought onto the claimant’s land against his will. This was not trespass.
Awareness is not Necessary
Trespass caused by a mistake is still actionable - thus someone who dumps a
fridge onto their neighbour’s land, whilst thinking they are dumping it onto their
own land, will still be committing a tort. Similarly, someone who is mistaken as to
their permission to enter onto land will still be committing a tort, as per Conway v
George Wimpey & Co Ltd [1951] 2 KB 266.
No Harm Needed
Trespass to land, much like trespass to the person, is a matter of protecting rights,
rather than preventing harm. Because of this, no harm need be shown before a
trespass is actionable. Thus someone who builds a house on a piece of land the
owner wasn’t intending to use will still be committing a tort.
Further Trespass Rules
There are three particulars of trespass which bear mentioning. Firstly, ‘land’
should be given its proper property law definition - it includes the air above a
piece of property and the soil below. Essentially, land rights can be pictured not as
a 2D plane on a map, but rather as a 3D ‘cube’ that the owner gets to enjoy the
rights to. There is an upper and lower height limit to this cube, however, as seen
in Bernstein v Skyviews and General Ltd [1978] QB 479. The defendant took aerial
photos of houses and then offered them to the owners. The claimant argued that
the defendant had trespassed into his airspace to take the photograph, and had
thus trespassed. The claim however, failed, the airspace rights only extended up
as far “as is necessary for the ordinary use and enjoyment of land”.
Only those who have exclusive possession of a piece of land can sue for trespass -
this means that tenants, guests, visitors or lodgers cannot.
The rule of trespass ab initio states that where a defendant abuses their
permission to enter a piece of land, then they will be treated as having trespassed
from the moment they entered the land, as per The Six Carpenters Case [1572]
EngR 452.
Thus someone who enters a petting farm with permission and then as a prank
decides to fire a shotgun into the air to scare the animals, will have committed
trespass from the moment they entered, not just from the moment they
overstepped the bounds of their permission.
A Note on Trespass
It should be noted that this tort is one which is important for the functioning of
property rights, but which at the same time is rarely applied in all possible
eventualities. Someone throwing a cigarette butt onto your land is technically
trespass, but a court wouldn’t be likely to give you the time of day if you sought to
bring an action. At the same time, the right to prevent trespass allows the
application of injunctions to remove squatters and the fining of companies for fly
tipping.
Trespass to Goods
Just as a right exists to prevent interference with land rights, there also exists an
action in tort to deal with unwarranted inference with personal property - the tort
of trespass to goods. This is covered in the Torts (Interference with Goods) Act
1977. The elements are largely the same as for trespass to land - direct
interference with goods belonging to another.
Direct Interference
As with land, the tort is of direct interference. This essentially means an object
must be physically affected - so moved or damaged. In contrast, unauthorised
observation is not trespass, so in Malone v Metropolitan Police Commissioner
[1979] Ch 344 it was held that reading another’s mail or listening to a private
conversation was not trespass of goods.
Awareness
As long as the defendant knows they are interfering with the object, then the fact
that they did not know they were committing trespass will not form a defence.
This can be seen in Wilson v Lombank.
Case in Focus: Wilson v Lombank [1963] 1 WLR 1294
The claimant left his car at a garage for repair. The work was completed and it
was left on the forecourt of the garage. The defendant was told to pick up his
employer’s car from the garage. He arrived and mistakenly took the claimant’s
car, believing that it was the one he was meant to pick up. Despite no intention to
trespass, a claim for trespass was successful - the claimant’s property rights had
been interfered with, and this was enough to establish liability.
However, if the defendant mistakenly interferes with an object but doesn’t know
that they are doing so, then this will form a defence, as in National Coal Board v JE
Evans & Co (Cardiff) Ltd [1951] 2 KB 861. The defendant damaged a cable
belonging the claimant, which ran through ground belonging to the local council.
He had no way of knowing the cable was there - it had been laid without
knowledge of the landowner. The claim thus failed.
It can therefore be seen that liability is strict when the trespassed object is known
to the defendant, but fault based (like negligence) when they have no knowledge
of it.
Harm is Not Necessary (Most of the Time)
When the interference is deliberate - so moving a car that doesn’t belong to you,
then trespass is actionable per se - without damage (as per Transco Plc v United
Utilities Water Plc [2005] EWHC 2784.) In contrast, if the interference is done
unknowingly (so mistakenly hitting a hidden cable) then damage is necessary (as
per Everitt v Martin [1953] NZLR 298).
Possession
Trespass is a matter of interfering with possession, rather than ownership. It is
thus possible for a possessor who is not an owner to bring an action for trespass,
such as in the case of trustees, executors or administrators.
However, as per s.8 of the 1977 Act, a defendant can argue a defence if jus tertii
(third party rights) - essentially, that a person other than the claimant has a
greater right to the property, and thus that they are the proper claimant of the
case. If this is the case, that third party will become a joint-claimant. This will
occur rarely, however, since claimants are obliged to give full details of the nature
of their ownership before the claim reaches court.
Defences to Trespass to Land and Goods
Under the Police and Criminal Evidence Act 1984, those with lawful authority can
interfere with property and land within certain parameters - to execute a warrant,
for example.
Consent and contributory negligence are available for trespass to land. Consent
can operate within the trespass of goods, but as per s.11 of the Act, contributory
negligence is not a defence where interference goods is intentional.

Economic Torts
Just as tort law recognises that one can negatively affect a person or their
property through either negligence or intent, tort law also provides a framework
for dealing with negligent or intentional acts done against a person’s business or
livelihood. Indeed, if these were not in place, a malicious actor could satisfy
themselves with destroying an individual financially, whilst leaving their person
and property untouched.
The economic torts can be split into two primary categories: procuring a breach of
contract (sometimes found under the heading of ‘wrongful interference with a
pre-existing right’) and causing loss by unlawful means. Conspiracy is also
discussed below, and whilst this is a separate tort, it can generally be regarded as
ancillary to the two primary torts of inducing breach and unlawful interference. In
essence, conspiracy just involves an agreement of a group to commit one of the
primary torts.
Exam Consideration:
Since the economic torts often involve contracts you will need a working
knowledge of how contract law operates before you can confidently deal with
problem questions. Nonetheless, remember that a tort law essay or exam answer
will be marked on the basis of your tort knowledge, so don’t get too hung up on
peripheral contract law issues.
Before continuing, it is worth noting an important point - unless a breach of
contract is induced, or an unlawful act occurs, no economic tort will have
occurred; harsh business practices do not form the basis for a tort. This can be
seen in Mogul Steamship Co Ltd v McGregor, Gow & Co [1889] LR 23 QBD 598.
The claimants were driven out of their market, Chinese tea shipping, by the
defendants, a group of merchants who offered much more favourable terms to
their Chinese contacts. The courts rejected a claim for economic tort - the
negative effect on the claimant was a side effect, rather than an end of the
defendants’ actions. The exception to this rule is conspiracy to injure, discussed
below, but even this exception is rarely applied.
Inducing a Breach of Contract
Contracts form the backbone of business operations. A given organisation will
have multiple contracts with the businesses which provide it with stock or raw
materials, and everyone who provides services to it will be contracted to do so -
from the part-time employee in the post-room, up to the CEO. Each and every
one of its customers will create a contract whenever they deal with the
organisation (even if these contracts are not in traditional paper form.) If these
contracts are not fulfilled as each side promises they will, this can have severe
and unanticipated negative effects for both parties. Consider a car manufacturer
with an order to fill - if a steel supplier suddenly refuses to meet its contractual
obligations to supply the manufacturer, then the manufacturer will suddenly find
itself unable to manufacture the promised cars. This will have knock on effects on
its stock and all of the employees it has employed - indeed, if a given business
forms a significant enough proportion of a given national economy, a singular
breach of contract can be disastrous. Contract law has developed its own
mechanisms to deal with the steel supplier - but if a third party has been the one
to persuade the steel supplier to deny the promised steel (for example by offering
it a bribe) they will largely be untouchable in contract, since they were not party
to the steel supply contract. This is where tort law steps in: to provide a course of
action against the third party for persuading the supplier to breach its contract.
Exam Consideration: Although the induction can come in the form of a better
offer, it would be a mistake to regards this as the only form of inducement.
Induction can come in the form of a threat, or in the form of simply deliberately
creating conditions which stop a contract from being carried out.
The root of the tort can be found in Lumley v Gye.
Case in Focus: Lumley v Gye [1853] 2 E & B 216
The claimant had contracted for the services of an opera singer. The defendant
then offered to pay the opera singer a higher fee to sing at his theatre instead.
Whilst an action existed against the singer for breach of contract, the court held
that an action also existed against the defendant for the tort of inducing a breach
of contract. Notably, the court discussed that under contract, the damages might
be limited in a way which would mean they failed to properly reflect the
claimant’s harm. They thus found it just, under the principle of full compensation,
to create an action against the inducer.
The Tort Requires Malice
It should be noted that the tort requires malice on the part of the defendant.
Rather than active hostility, this refers to the concurrence of two things - the
defendant must know that they are affecting the discharge of another contract,
and they must intend to do so. Thus a defendant who unknowingly offers a better
contract to a third party than the one they are already in will not be liable.
Regarding intention, a defendant who carelessly causes another to breach their
contract will not suffice, as in Cattle v Stockton Waterworks Co [1975] LR 10 QB
453. The defendant installed and maintained a water pipe. This pipe sprung a
leak, and flooded some land the claimant was attempting to build a tunnel under,
preventing them from fulfilling their contractual obligations. Since this was a
matter of carelessness on the part of the claimant, rather than malice, no liability
arose under the head of inducing breach.
Intention does not need to be particularly concerted - it will suffice if a defendant
knowingly creates a risk of breach being induced, even if they are indifferent as to
whether the breach is actually made or not.
This is important, since there are certain contract exemption terms which allow a
party to not follow through with their obligation whilst still not technically
breaching the contract, as long as certain circumstances are fulfilled (for example,
see force majeure terms). If the law didn’t recognise these situations under tort
law, then a wily defendant could potentially find a way to stop a third party
contract from effectively being carried out but escape liability because the
contract wasn’t technically breached. The overriding principle and this
phenomenon of contract can be seen in Torquay Hotel Co Ltd v Cousins.
Case in Focus: Torquay Hotel Co Ltd v Cousins [1969] 2 Ch 106
The defendants were a union who, in a dispute with the claimant hotel, declared
it to be ‘black’ (as in ‘blacklisted’). This had the effect of preventing the hotel’s oil
supplier, Esso, from being able to deliver oil, since it employed members of the
union as drivers. In effect, this meant that Esso could not fulfil the supply contract
it had with the hotel. However, Esso had a force majeure term in its contract,
stating that it would not be in breach of contract if it was prevented from carrying
out its obligations by, amongst other things, labour disputes. Thus although the
defendants had acted with the intention of inducing a breach of contract, and had
effectively accomplished their goal by harming the hotel’s oil supply, they
technically hadn’t caused any breach of contract.
The court held that this was no obstacle to a claim of inducing breach of contract.
The court summarised the three essential elements of the tort: there must be
interference with the execution of a contract (even if that interference doesn’t
result in breach), that interference must be deliberate, and that interference must
be direct. Since these three elements existed in the case at hand, the tort had
occurred, despite the existence of the force majeure clause.
Thus the tort of inducing breach of contract finds itself in a relatively odd place -
the tort requires harm, but the harm doesn’t necessarily come in the form of the
advertised ‘breach of contract’. Whilst odd in theory, as noted above this enables
the law to appropriately deal with situations in which a defendant causes the
practical effects of breach whilst failing to cause a breach in traditional contact
terms. Just as the law recognises that sometimes a failed attempt at robbing a
bank can be as dangerous as a successful attempt, tort law takes the same dim
view of failed attempts to induce breach.
Regarding knowledge, a defendant’s knowledge that their actions will cause a
breach of contract is not enough to demonstrate intent - there must be evidence
to show that the defendant’s primary aim was to cause a breach of contract,
rather than that being a secondary effect of an action with an altogether different
intent. This can be seen in OBG v Allen.
Case in Focus: OBG v Allen [2007] UKHL 21
The defendants took control of the failing claimant company as receivers. It later
emerged that their appointment was invalid, and thus their control of the
company was illegitimate. Whilst in control of the company, the defendants
managed some pre-existing contracts the company had in a way that involved
them being breached. The claimant’s thus argued that the defendants had
induced breach of contract.
This claim failed - the receivers had been acting in good faith (having been told by
another organisation that they were rightfully appointed as receivers), and had
merely managed the contracts as any competent receiver would have. Because
their primary intention was not to cause breach, the claim failed.
Knowledge of the other contract does not need to be particularly detailed, as per
JT Stratford & Son Ltd v Lindley [1965] AC 269. The defendants were a union who,
in an illegitimate attempt to negotiate with the claimant barge operator, told
their members to refuse to work on the claimant’s barges (thus causing them to
fail to meet their obligation to their clients.) Whilst it could not be said that the
defendant had specific knowledge of the terms of their employees contract that
they were seeking to breach, this was not necessary - it was merely enough to
know that they were causing some sort of contractual breach.
The tort is also one of inducing a third party away from a contract they are
already in, rather than putting a better offer on the table when the third party is
merely considering what deal they will take. This can be witnessed in Allen v
Flood [1898] AC 1. The defendant, a trade union, told an employer that its
members would not work alongside non-union workers. All of the workers were
employed on a day-by-day basis - so each worker essentially entered into new
contract with the employer each day. The employer was thus pressured to get rid
of the non-union workers, else it would lose the service of the union workers. The
non-union workers then sued the union, on the basis that the union had caused
them to become unemployed. This was unsuccessful - no contract had been
breached since the non-union workers were re-employed each day. The union
had thus only persuaded the employer to not contact with the claimants again.
Whilst the claimants might have had an expectation that they would be given
work, this was not a legal obligation.
Exam Consideration:
As you will have noticed by now, union action features heavily in the case law
surrounding this tort. However, it is worth being careful when dealing with
recognised unions - they can often take actions that, if done by any other party,
would be deeply illegal. In short: be wary of quickly stating that a union has acted
illegitimately. Furthermore, don’t assume that the actions taken by the defendant
unions in the cases above and below are indicative of what a union can and can’t
do nowadays. This is itself its own topic, under the heading of Labour Law.
Damage is Required
It is not enough for a defendant to have merely induced breach of contract - the
claimant must show some loss has stemmed from the action. However, this does
not necessarily mean that quantifiable loss needs to have arisen from the breach
of contract. Thus, in Exchange Telegraph Co v Gregory & Co [1896] 1 QB 147 the
defendant company induced a third party to give it stock information, in breach of
the third party’s copyright agreement with the claimant. The claimant could not
be said to have lost anything - they were prohibited in law from providing the
information to the defendant (for sale or otherwise.) Regardless, the court found
that the infringement of the claimant’s copyright property fulfilled the damage
requirement of the tort.
Defences
A defendant can argue that their actions were justified as a defence to this tort.
However, the bar for advancing this defence is understandably high, so as to
avoid eroding the utility of the tort. Thus in South Wales Miners’ Federation v
Glamorgan Coal Co Ltd [1905] AC 239 the defendant union asked their members
to only work intermittently at their employer’s coal mine (effectively, a partial
strike.) The miners were paid on the basis of the current price of coal. The
defendant union argued that in doing so, they were reducing the supply of coal
and thus increasing the price, to the benefit of both its members and the mine
owners; in essence, a justification for their tortious actions. As pleasingly novel as
this argument might be, it failed.
There is one noted example of illegitimate strike action being held as justified, in
Brimelow v Casson [1924] 1 Ch 302. The defendant union represented chorus girls
working for a theatre manager. In an attempt to have its members paid properly,
it persuaded a number of theatres to break its contracts with the manager. Whilst
this constituted inducement of breach, the defendants argued that they were
justified in doing so - the chorus girls were paid so little that many of them were
forced to supplement their wages via prostitution. This argument succeeded and
the claim failed.
A particular form of justification can be employed when the defendant can
demonstrate that they are exercising a right which trumps that of the claimant.
This is illustrated in Edwin Hills & Partners v First National Finance Cop [1989] 1
WLR 225. The defendant lent money to a developer to develop some land. This
meant it was a secured creditor, and thus had rights over the land. The claimants
were a firm of architects who also had a contract with the developer to work on
the land. The loan lapsed, thus giving the defendant a right to call in its debt; this
would have resulted in the defendant taking over the land, and the claimants
would have had their contract terminated. Instead, the defendant arranged for a
re-financing detail, part of which involved the developer appointing a new firm of
architects and thus dismissing the claimants. The claimants sued for inducing a
breach, but failed - the defendant’s actions were justified since it had a right to
effectively end the claimants’ contract by calling in the loan. Instead, it had taken
the less economically destructive path of ensuring the development went ahead.
Causing Loss by Unlawful Means
It is also a tort to interfere with the claimant’s trade using unlawful means. For
example a defendant might threaten a claimant’s client so that they withdraw
business from him. Alternatively, a defendant on a picket line might threaten an
employee with violence on their way into work, in order to dissuade him from
working for the claimant.
The tort includes two primary elements - the defendant must have acted
unlawfully in their interference with the claimant’s trade, and they must have
done so with the intent to injure the claimant.
Exam Consideration:
Despite the lifespan of the economic torts lasting several centuries, there is still
much confusion within the judiciary as to what the different categories of
economic tort are, and when they should be applied (and as you might notice,
even what they are called!) When dealing with problem questions, you might
need to take a leaf out of the judiciary’s book, and apply more than one of the
torts to the same set of facts. It’s obviously worth trying to work out which is the
best fit, but don’t panic too much if it isn’t immediately apparent.
Intention to Harm
It is necessary for a claimant to demonstrate that a defendant has the intent to
injure their business via their unlawful act. This will sometimes be obvious - so a
defendant owner of a delivery company who lets all of the air out of the tires of a
competitor’s vehicles clearly shows intent.
Sometimes it is less clear than this, however - a defendant might take an unlawful
act which harms the claimant, but which isn’t inherently aimed at the claimant.
The intention element was subject to significant discussion in Douglas v Hello! Ltd
(No. 3). There are two important things to note about this case. Firstly, the case
was actually decided on the basis that a breach of confidence had occurred
(rather than unlawful interference.) Secondly, this case was decided in
conjunction with the above discussed case of OBG Ltd v Allan, as well as
Mainstream Properties Ltd v Young [2005] IRLR 964. These three cases are known
as the ‘OBG Trilogy’ - essentially the most recent developments of both this tort
and tort of inducement of breach.
Case in Focus: Douglas v Hello! Ltd (No. 3) [2005] EWCA Civ 595
Hello! magazine took covert photographs of the wedding of the claimants - actors
Michael Douglas and Catherine Zeta-Jones. They had a deal with Hello!
magazine’s competitor, OK! magazine, stating that they would have exclusive
rights to photograph the event. Hello! published the photographs and were sued
by the claimants (in conjunction with Ok!). In giving his judgement, Lord Hoffman
noted (at 134) that he believed the components of unlawful interference were
present. Hello! had taken an unlawful act. This wasn’t aimed directly at OK! - the
defendant’s main goal was to get profit from distributing the photos, rather than
directly harming the exclusivity of OK! magazine’s publication of them. However,
‘stealing’ the exclusivity was the defendant’s only way of publishing the photos,
rather than merely a foreseeable consequence. This satisfied the intent criterion.
Lord Nicholls described the intent element as follows:
"Intentional harm […] satisfies the mental ingredient of this tort. This is so even if
the defendant does not wish to harm the claimant, in the sense that he would
prefer that the claimant were not standing in his way. Take a case where a
defendant seeks to advance his own business by pursuing a course of conduct
which he knows will, in the very nature of things, be injurious to the claimant. In
other words, a case where loss to the claimant is the obverse side of the coin
from gain to the defendant. […] If the defendant goes ahead in such a case […] his
state of mind will satisfy the mental ingredient…"
- Lord Nicholls, at 165.
This can be regarded as building on the case of Lonrho (below), which also
involved an unlawful act which wasn’t made directly against the claimant.
Unlawful Means
Until recently, this criteria was quite wide, including just about any act which a
defendant was not at liberty to do - including those prohibited by tort or contract.
More recently, however, the scope of what fulfilled the unlawful act criteria was
narrowed in OBG v Allen [2007] UKHL 21 (facts above.) At 99, Lord Hoffman
provided the following definition: “Unlawful means consists […] of acts intended
to cause loss to the claimant by interfering with the freedom of a third party in a
way which is unlawful […] and which is intended to cause loss to the claimant. It
does not in my opinion include acts which may be unlawful against a third party
but which do not affect his freedom to deal with the claimant.”

Violence and threats of violence provide a primary example of how the tort
operates, as in Tarleton v McGawley [1793] 170 ER 153. The claimant outfitted a
ship (The Tarleton) for the purpose of trading with natives living on the coast of
Cameroon. The claimant arrived and sent a smaller accompanying vessel (The
Bannister) off to find customers. The Bannister was trading with one of the
natives when the defendant’s ship (The Othello) shot one of them with a cannon,
killing him and driving off the natives who were trading with The Bannister. The
claimant brought a case against the defendant for unlawful interference with his
trade. This claim was successful. Modern forms of violence will be a little less
overt in their nature (although you can always hope for a cannon-based problem
question.)
Fraud and misrepresentation are also covered by this tort, as per National
Phonograph Co Ltd v Edison Bell Co Ltd [1908] 1 Ch. 335. The defendants
purchased products from the claimants for resale. One of the conditions of the
supply contract was that the products were to be sold at a set price. The
defendants ignored this stipulation, and were placed on a list of suspended
clients, blocking them from dealing with the claimants. In order to get around
this, the defendants had their employees act as independent retailers, who
bought from the claimants and then furnished the goods to their employer. This
practice was itself a breach of contract - the employees weren’t allowed to give
the stock they had bought to their employer by merit of their suspended status.
The claimants found out about the ruse and sued for unlawful interference, on
the basis that the defendants had made a fraudulent misrepresentation to impose
a loss on the claimants (in the form of undermining their pricing practices).
A more modern version of fraud can be seen in Lonrho v Fayed [1990] 2 QB 479.
Both the claimants and defendants were attempting to place bids for the
purchase of London department store Harrods. The claimants had their bid
investigated by the Monopolies and Mergers Commission, but due to fraud on the
part of the defendants, their bid was not. This effectively held up the claimants’
bid, and the defendants secured the deal. When the fraud became apparent, the
claimants sued for unlawful interference and were successful - even though the
unlawful act wasn’t ‘aimed’ at the claimants.
In a crossover between the torts of inducing breach and unlawful interference,
there is a precedent of breaching contract or threatening breach of contract
constituting the required unlawful act. This can be seen in Rookes v Barnard
[1964] UKHL 1. The claimant was a draughtsman employed by a third party
company, BOAC. He had a disagreement with the defendant union (AESD), and
left it. BOAC had a deal with the defendant union, whereby they wouldn’t employ
anyone who wasn’t a member. The defendant then threatened an illegitimate
strike of its members if the claimant wasn’t dismissed (essentially, a threat that its
members would breach their contracts - which included a no strike clause). The
claimant was suspended, and eventually dismissed. He then sued the defendant
union, on the basis that they had threatened an unlawful act (an unlawful strike)
with the intention of interfering with his livelihood. This claim was successful.
Reid noted that, like a threat of violence, the threat of an unlawful strike was just
as much a coercive weapon.
This suggests that threatening a breach of contract can very much be considered
unlawful interference. There exists a notable theoretical oddity here, however -
the ‘two party intimidation’ scenario. Because breach or threatened breach of
contract can constitute unlawful interference, this means that it is possible for a
situation to arise where one party to a contract threatens the other with breach,
creating a cause of action to arise in both contract and tort. For example, a steel
supplier with a contract with a car manufacturer might threaten to fail to upkeep
their half of a deal in order to get a more preferable price for their goods. This
would be both a breach of contract, and the tort of unlawful interference (under
the precedent set by Rookes). Since contract has certain rules which limit
recoverable damages and tort does not, this would mean a claim for breach of
contract could effectively be decided in tort terms, thus skirting established
contract law principles. Lord Hoffman’s comments in OBG Ltd v Allan (discussed at
the top of this section), suggest such a situation would not be recoverable (since
he emphasises the need for a third party to be the subject of such interference).
Whilst non-violent crime can form the basis of unlawful interference, the
requirement remains that it must be aimed at the claimant. This can be seen in
Lonrho Ltd v Shell Petroleum Co Ltd [1982] AC 173 (also discussed as a matter of
employers’ statutory duties). The defendant breached sanctions making it a
criminal offence to supply Rhodesia (now Zimbabwe) with oil. The claimants
brought a case against them, arguing that this helped the regime in power to
survive and therefore causing the sanctions to remain in place for longer, harming
the claimant’s business interests in the area. This claim failed - unlawful
interference required intention to harm, and whilst the defendant’s actions had
certainly harmed the claimants, this could not be said to be an intention of the
claimant. This also demonstrates the use of malice as a gatekeeping mechanism
for this tort - if intention to harm the claimant was not a prerequisite, then the
number of claimants for a given unlawful act could be potentially huge.
Defences
Unlike inducing breach, the defence of justification cannot be employed for
unlawful interference, as per Rookes v Barnard. In short - if an act is unlawful it
cannot be justified. The exception to this rule is where the unlawful act is
threatening or causing breach, but the defendant has a pre-existing legal right
which equals or overrides the right he is interfering with (for an example of this,
see Edwin Hills & Partners v First National Finance Cop above.)
Conspiracy
The law recognises situations in which a group of actors come together with the
aim of harming the claimant’s business or trade, via unlawful means or otherwise.
In a similar rationale to the concept of conspiracy in criminal law, conspiracy to
commit an economic tort is designed to allow a claimant to bring a case against a
group of malicious plotters who would otherwise avoid liability, because their
individual actions are not in and of themselves tortious, or because only one of
them actually took the tortious act. This tort is particularly relevant considering
the often complex business structures of modern corporations and financial
entities.
Conspiracy to Injure
This tort is essentially an agreement between several actors to act together to
injure the claimant’s business interests (which results in damage, mere
agreement is not enough). It is key that the conspirators’ actions are aimed at the
claimant, rather than merely being a genuine attempt to further their own
business interests. In other words, malice is required. Notably, however, this tort
does not necessarily an illegal act (such as breach of contract or unlawful
activities). The tort is essentially one of acting in a legal manner, but in such a way
that the aim is clearly economic injury of another, rather than self-profit. It should
be noted that this tort is rarely applied and highly controversial, since essentially
it imports liability on a group of people for taking perfectly legal actions. In both
Lonrho v Shell and Lonrho v Fayed, the courts have confirmed that this tort still
exists, but have noted that the bar for finding that a legal business practice is
illegitimate is extremely high.
This tort is illustrated in Quinn v Leathem.
Case in Focus: Quinn v Leathem [1901] AC 496
The defendants (Quinn et al.) were the head and officers of a butchers’ union. The
claimant (Leathem) was a butcher who employed some non-union members. The
union put pressure on the claimant to fire the non-union employees. The non-
union employees attempted to join the union at one of their meetings, but were
prevented from doing so. This was apparently out of spite - the union are quoted
as wishing that one of the applicants should be made homeless, along with his
nine children. The union then put pressure on the butcher to fire his employees
and hire those of the union. This involved pressuring the claimant’s wholesale
customers to stop trading with him, putting the claimant on blacklists, and
eventually buying out the claimant’s staffs’ contracts so that they quit.
This series of actions was held to be conspiracy to injure - the actions of the union
were beyond that which were legitimate for furthering their own interests, and
were undertaken with the intention of injuring the claimant’s interests.
This can be contrasted with Crofter Hand Woven Harris Tweed Co v Veitch [1942]
AC 435. The claimants were non-union weavers of Harris Tweed, employed by the
larger Harris Tweed Association. The defendant union (Veitch, on behalf of the
Transport and General Workers Union) had many members who were also
employed by the Harris Tweed Association. In the face of decreasing wages, the
union wished to bring all of the weavers employed by the Association into its
membership, so as to increase its bargaining power. To this end, it introduced an
embargo against the non-union weavers. Since the union also controlled the
docks through which both raw materials and finished goods travelled, this meant
that the non-union weavers were essentially prevented from operating. The
claimants thus brought a case against the defendants on the basis of conspiracy
to injure. This claim failed - the courts regarded the actions of the defendants to
be legitimate, since the object of their actions was to best benefit their members,
rather than to harm the claimants.

Thus, as long as nothing unlawful has happened, and no contracts have been
breached, and the defendants can show that they were simply seeking a benefit,
then no case for conspiracy will arise. This is important - since it allows trade
unions to operate without the threat of tortious liability. This also illustrates the
primary defence to an accusation of conspiracy - that the action taken is justified
(usually as a matter of everyday economic competition). The bar for finding this
tort is extremely high; in other words: the justification defence is very easy to
advance.
Conspiracy Using Unlawful Means
Conspiracy using unlawful means is a much simpler affair - since the defence of
justification doesn’t exist, there will be no need to distinguish between legitimate
acts of economic competition and malicious conduct. Instead, it will be sufficient
to show that a group of actors conspired to use unlawful means to inflict
economic harm upon the claimant. The nature of this tort is essentially exactly the
same as the tort of unlawful interference discussed above, to the extent that the
above mentioned Rookes v Barnes provides the key case. One of the defendants
in the case, a trade union official called Silverstone, wasn’t employed by the
claimant company at all, and thus his involvement was merely helping to organise
the actual unlawful action of the illegitimate strike. Nonetheless, since hewas a
co-conspirator with those who were actually going on strike, he was held liable in
conspiracy.

Defamation, Libel, Slander and Defences

Defamation is, in essence, the act of publishing an untrue statement which
negatively affects someone’s reputation. Taken at face value this definition is
obviously far reaching, covering acts as trivial as one classmate writing a joke on a
scrap of paper and passing it to another. Luckily, both common and statute law
has developed a framework to limit the extent of the tort of defamation. This has
involved a significant balancing act - on the one hand, the law needs a way to deal
with damaging false statements, else an individual with enough money or media
control could shape public perception at will. On the other, freedom of expression
stands as a key facet of liberal society. Indeed, if absolute truth were a legal
requirement, art, comedy and criticism would disappear in the blink of an eye.

They key authority is the Defamation Act 2013, which helps straighten out the
significant body of case law which has built up over the years. The overall aim of
the act was to rebalance the law towards protecting freedom of speech; in other
words it benefits defendants more than it does claimants. It should be noted that
the Act doesn’t destroy the common law, which remains important for clarifying
key principles and terms (although it does override any contradictory common
law). The same general definition of defamation still applies, but its elements
have been slightly recast by the Act. The four primary components of defamation
are a defamatory statement (this has a particular definition), about the claimant,
which is published, which has caused or is likely to cause serious harm to the
claimant’s reputation. Before continuing onto the elements, it is worth noting the
distinction between libel and slander.
Exam Consideration
The Defamation Act 2013 is likely one of the most recent pieces of legislation
you’ll deal with. This means that the content of all resources published before
then should be taken with a pinch of salt (or rather, as informative but not
entirely auhoritative).
Libel and Slander
Although ‘defamation’, ‘libel’ and ‘slander’ are often used in everyday parlance to
mean the same thing, they have specific legal meanings. The foremost thing to
note is that libel and slander are simply two different types of defamation;
defamation is the overarching tort, libel and slander are just two different ways of
committing that tort. The distinction between the two is slightly anachronistic,
and most legal systems have done away with it (indeed, it was recommended by
the 1975 Faulks committee that the same thing happen here, it didn’t).
Nonetheless, it remains in place under the common law, and slightly different
rules dictate when each is actionable. Since they are different brands of
defamation, they both remain privy to the general principles governing the tort of
defamation (in other words, read the below sections on libel and slander in
conjunction with the section after).
Libel
Libel refers to permanent defamatory statements, so anything which is written
(books, newspapers, letters), anything which is broadcast (television or radio as
per s.1 of the Defamation Act 1952, cable television as per s.28 of the Cable and
Broadcasting Act 1984), and even theatre productions (as per s.4(1) of the
Theatres Act 1968.) The ‘permanence’ requirement doesn’t mean ‘forever’
(because on a long enough time line, nothing is), but rather communication which
exists for longer than the time the original message is communicated. Thus, the
courts have gone as far as suggesting that skywriting can constitute libel since the
writing takes time to disperse, as in Gulf Oil (GB) Ltd v Page [1987] Ch 327, which
concerned a plane towing a defamatory statement behind itself.
Words are not necessary, it merely must be a type of permanent communication.
Thus in Monsoon v Tussauds Ltd [1934] 50 TLR 581 the defendant placed a
waxwork of the claimant near its ‘Chamber of Horrors’ exhibit. He had been tried
for murder, but not convicted. Since this was a permanent communication, this
was held to be libel (described by the court as libel via innuendo).
It should be noted that libel is also a criminal offence, as well as a tort.
Slander
Slander is a defamatory statement which is non-permanent. In essence, it covers
defamatory statements which aren’t included under libel. The key example is
spoken word - an untrue statement whispered in the ear of the right person can
be devastating to an individual, and so the law recognises this. Gestures can also
constitute slander, since they are a form of non-permanent communication -
thus, even those who communicate via sign language are covered by the law!
Because non-permanent statements have a lesser effect than permanent
statements, a claimant must show that they have suffered a ‘special loss’, in effect
a loss which can be estimated in monetary terms. The courts however have
stretched this definition to include loss of a marriage prospect (in Speight v
Gosnay [1891] 60 LJQB 231), and loss of consortium (effectively, losing the
financial support of a family member, as in Lynch v Knight [1861] 9 HLC 777).
There are two exceptions to this rule. Firstly, if it is imputed that the claimant has
committed a criminal offence punishable by imprisonment (in the first instance,
as opposed to as a repeat offence), as per Gray v Jones [1939] 1 All ER 798. This is
because statements of this nature can quite easily lead to exclusion from society
and other negative effects.
Secondly, if the statements are calculated to disparage the claimant in his or her
profession, business or office. Thus, in Foulger v Newcomb [1867] LR 2 Ex. 327 the
claimant was a gamekeeper tasked with preserving foxes. A slanderous statement
was made that he was poisoning them instead. This was actionable, since it the
statement was directed against his ability to practice his profession. It should be
noted that the statement must be based on the claimant’s calling, rather than
merely being an unrelated statement which nevertheless might affect others’
perception of the claimant’s ability to undertake that calling. Thus, in Jones v
Jones [1916] 2 AC 481, the statement was that a schoolmaster had committed
adultery on school premises. This was not actionable - the statement wasn’t
closely related enough to the claimant’s profession. In contrast there is the case
of Thompson v Bridges [1925] 273 SW 529, in which a schoolmaster was
slanderously accused of sleeping with a student. This was calculated to disparage
the claimant in his profession, and so was actionable without special harm. Much
like slanderous statements regarding criminal acts, such statements are
actionable per se because they can effectively destroy an individual’s ability to
pursue their chosen profession.
It used to be the case that imputing that a girl or woman was unchaste or
adulterous via slander was actionable per se. This was repealed by s.14(1) of the
Defamation Act 2013 (presumably because this exception relied on anachronistic
views of women’s societal ‘worth’). It also used to be the case the imputing that
someone had a contagious or infectious disease was an exception - this was
repealed by s.14(2) of the 2013 Act. Special damage is now required in both of
these situations.
Slander is not a criminal offence.
Since slander usually requires special damage and libel does not, it will usually be
preferable for a claimant to argue that libellous defamation has occurred, if
possible.
Elements of Defamation
The Statement Must be Defamatory
The definition of a defamatory statement is found in the common law. Since the
communication of concepts and sentiments is an inherently inexact phenomenon,
so too, is the definition of a defamatory statement.
Whilst the edges of what constitutes a defamatory statement are a little fuzzy, the
general concept can be found through reference to a number of cases. The first
instance of note is the definition advanced in Parmiter v Coupland.
Case in Focus: Parmiter v Coupland [1840] 6 M&W 105
The claimant was the mayor of Winchester. A newspaper, the Hampshire
Advertiser, printed a series of statements imputing that the mayor was corrupt,
and ignoring his duties as mayor. Defamation was described by Parker B, at 108,
as “A publication, without justification or lawful excuse, which is calculated to
injure the reputation of another, by exposing them to hatred, contempt or
ridicule”.
This definition can be added to that employed in Sim v Stretch
Case in Focus: Sim v Stretch [1936] 2 All ER 1237
The claimant brought a case against the defendant for defamation, when in a
telegram he accused the claimant of enticing away a servant. This was held to not
be defamation, but merely discourteous conduct. Lord Atkin noted the Parmiter
definition (at 1240) and widened it to include words which “tend to lower the
plaintiff in the estimation of right-thinking members of society”.
This provides a rough basis for a defamatory statement as something which
negatively affects a claimant’s reputation, which might affect perception of that
person’s ability to do their job, which might cause an individual to be considered a
person of poor standing (someone you’d rather not have around), and/or
someone who is not be taken seriously or deserving of respect. None of these
criteria are a right that any individual has - rather, if someone has built
themselves a truthful reputation as a decent, competent person (for example, by
not stealing and by doing their job well and giving to charity) they have a right to
not have that reputation destroyed by falsehoods (that they are a thief, an
incompetent, or that they are greedy). Thus, just as an individual has a right to
not have their wages stolen, someone who earns themselves a good reputation
has a right to not have that reputation stolen or tarnished.
Most notably, reputation is not an inherent characteristic, but is a matter of
perception - a man stranded solo on a desert island has no reputation at all. Thus
the defamatory nature of a statement is not based on the reaction of the claimant
to that statement, but rather the reaction of others to that statement. This means
a statement cannot be defamatory if communicated only to the subject of that
statement (if you’re told you’re a thief by another, you know that’s not true, and
so your perception cannot possibly be changed).
There is no need for a claimant to show that the statement made had a particular
effect on certain persons, or the public in general (else they’d have to run absurd
surveys and polls for the sake of evidence), instead they must simply argue that
the defamatory statement would have had the abovementioned negative effect
on the claimant’s reputation in the mind of an ordinary, reasonable recipient. This
principle is essentially included in s.1(1) of the 2013 Act, which dictates the need
to show either serious harm, or likely serious harm to reputation. As a general
rule, statements which are clearly a matter of raised passions or vitriol will not be
regarded as defamation, since the ordinary person will usually be held to know
the difference between a statement made out of anger and one made calmly (and
that the former type of statement shouldn’t be given much weight). This can be
seen in Penfold v Westcote [1806] 2 B & P (NR) 335. The defendant yelled at the
claimant “…come out, you blackguard rascal, scoundrel, Penfold, you are a thief!”
This was not held to be slanderous (see the section above on imputing criminal
status), because anyone who heard the accusation would realise that it was in the
heat of passion. However, it is doubtful that such a defence could be applied in
the case of written or recorded statements (since the defendant invariably has a
chance to not distribute their statement, and it’s very difficult for a reader to infer
that such statements are made merely out of momentary passion.) In short:
context and content are crucial to a statement being of a defamatory nature.
With the general definition above in place, the nature of a defamatory can be
best understood through its application, as in Byrne v Deane.
Case in Focus: Byrne v Deane [1937] 1 KB 818

The claimant was a member of a golf club, whose owners kept popular, but illegal,
gambling machines on its premises. Someone reported these machines to the
authorities. An offensive poem (yes, really) was posted in the club, imputing that
the claimant had been the informant - it read “but he who gave the game away
may he byrne [sic] in hell and rue the day”.
He sued for defamation. However, this claim was unsuccessful - since the
defamatory statement was essentially implying that he had informed the
authorities of a crime, this could not be regarded as something which would
lower him in the minds of the ‘right-thinking’. Notable is Greer LJ’s dissent who
argued that the defamatory statement was that the claimant was disloyal to his
club - something which could be regarded as injuring the claimant’s reputation in
the minds of the right-thinking. This illustrates the difficulty in applying
defamation - it involves not only evaluating the words used and their context, but
also the meaning that might reasonably be given to those words.
The scope of defamation can be seen in a wide range of scenarios. Thus in Berkoff
v Birchill [1996] 4 All ER 1008, a journalist described the claimant, an actor, as
“hideously ugly”. Whilst such a statement would not ordinarily be defamatory
(beauty is, after all, in the eye of the beholder), it was in this case, since the
claimant made his living as an actor and thus the statement was held to single
him out as an object of ridicule.
In Donovan v The Face [1992] (Unreported) the claimant, Jason Donovan, was
outed as gay by the defendant. Donovan sued for defamation, not on the basis
that the accusation itself was defamatory, but on the basis that it carried the
implication that he was intentionally deceiving the public (and thus, was both a
liar and a hypocrite).
The context principle can be seen in Cassidy v Daily Mirror Newspapers Ltd [1929]
2 KB 331. The defendant published a photo of a couple, claiming that it was of the
claimant’s husband and his supposed fiancée - this information came from the
claimant’s husband himself. The caption was actually false - the claimant was
married (although she did live apart from her husband). Since this implied that
the claimant wasn’t married, the photo had the effect of implying that the
claimant was in fact her husband’s mistress, not his wife. In a modern context, the
claimant would have had a harder time arguing such an implication was injurious
to her reputation. Such a case also demonstrates that it is not just the bare
statement which is relevant, but any reasonably drawn implication. This also
demonstrates the fact that the definition of defamation is based on the mind of
the perceiver, rather than the publisher. In this case, the defendant didn’t know
that they were publishing a falsehood, and the effect this would have on the
claimant. Nonetheless, the newspaper was held responsible for the content it
published.
Defamation need not be particularly insidious. Thus in Tolley v Fry & Sons Ltd
[1931] AC 333, the claimant, a well-known amateur golfer, was depicted in a
caricature (without his permission) with a bar of the defendant’s chocolate in his
back pocket. The implication was that the golfer had endorsed the brand (else
why depict him?), and that therefore the golfer had pursued paid advertising
opportunities contrary to his amateur status. As well as the effect on his
reputation, this might have resulted in him being barred from several golf clubs.
This claim was successful.
Exam Consideration: Don’t make the mistake of asserting that a statement is not
defamatory if it is true. Any statement, true or not, can be defamatory since the
definition is based on hurting someone’s reputation, and this can happen with
both true and untrue assertions. Truth is merely a complete defence (discussed as
such below).
The Statement Must be About the Claimant
It must be established that the defamatory statement is about the claimant. This
will usually be simple, if the claimant is named or identified. Sometimes, the exact
subject of a statement will be unclear. Nevertheless, if the claimant can be
identified from the information included in the statement, then this criterion will
be satisfied, as in Morgan v Odhams Press.
Case in Focus: Morgan v Odhams Press [1971] 1 WLR 1239
G was a journalist who investigated an illegal doping ring at a greyhound track. He
became acquainted with M, a kennel-maid, who later confessed to the police her
involvement and became a key witness. It was arranged for her to stay with G for
her protection. Whilst staying with G she met the claimant, and stayed with him
for a short while, later returning to stay with G.
The defendant’s newspapers, The Sun and The People published both a picture of
M, and an article stating that she was “kidnapped […] by members of the
[greyhound doping] gang and kept in a house in Finchley”. M had been seen with
the claimant on a number of occasions, and the claimant’s house was on the edge
of Finchley. The claimant then sued the publishers of the aforementioned
newspapers, alleging that this friends (and, by implication, anyone who had seen
him with M and read the articles) understood him to be M’s kidnapper.
The defendant argued that, read carefully enough, the articles contained
discrepancies which indicated that the claimant was not actually being referred to
by the articles, and that there was no direct pointer in the article indicating that
the claimant was the depicted kidnapper.
These arguments failed. Firstly, the court held that the ‘ordinary reader’ standard
should be based on the likely type of reader and the nature of the statement
made. Thus, because the likely readers of the aforementioned publications were
unlikely to forensically analyse the articles to the extent that the claimant’s
innocence would become clear, the first argument failed. Secondly, there was no
need for a reference to the claimant - providing sufficient information to identify
him was enough. The claim therefore succeeded.
If a statement is made about an individual which is true, but through coincidence
also applies to another individual (who can be identified, as per Morgan v Odham
Press) for whom it is untrue, then a claim will still exist. This is illustrated by
Newstead v London Express Newspaper Ltd [1940] 1 KB 377. The defendant
newspaper reported that a man named Harold Newstead, living in Camberwell,
aged 30, was convicted of bigamy. There were two men with these characteristics
living in Camberwell, and whilst the statement was true of one of them, the
innocent Harold Newstead sued in defamation. Despite the truthful nature and
intent of the reporting, this was still defamation - a reasonable person would still
think the statement referred to the claimant.
There is a limit to this principle, because there comes a point at which a
statement does not refer to identifiable individuals, but to a class of persons. This
can be seen in Knuppfer v London Express Newspapers [1944] AC 116. The
defendant newspaper put out an article on Russian political group, Mlado Russ (or
‘Young Russia’), stating that they were fascists working to advance the aims of
Adolf Hitler. Although the group had thousands of members in Russia, it had only
24 members in its British branch. The claimant, one of these members, brought a
case against the defendant asserting that this was defamatory to him as the
leader of the branch, and thus the most prominent member. The claim however,
failed - there was nothing in the article personally identifying the claimant (and
indeed, no particular reference was made to its British operations).
There thus exists a vague point at which a reference to a class becomes a
reference to identifiable individuals. This can be seen in Le Fanu v Malcolmson
[1848] 1 HLC 637. An article was published referring to the “owners of some of
the Irish factories” as implementing cruel employment policies. Due to the
characteristics listed of the factories, it was possible to identify the claimants at
the subject of the article, and thus a claim for defamation succeeded. Chief Justice
Lord Campbell noted (at 668) that where a class is described in a way which
clearly refers to an individual or individuals, then that will be sufficiently precise
for a defamation claim: “whether a man is called by one name […] or whether he
is described by a pretended description of a class to which he is known to belong,
if those who look on know who is aimed at the very same injury is inflicted…”.
The Statement Must Be Published
As noted above, defamation is about communication of a statement. This is
referred to as publication, although this term has a specific legal meaning. The
definition can be found in Pullman v W. Hill & Co Ltd.
Case in Focus: Pullman v W. Hill & Co Ltd [1891] 1 QB 524
The defendant dictated a defamatory statement to his typist so that it could be
written in a letter. The letter was sent to the claimant, and then opened by one of
his mailroom clerks. The claimant brought a case for defamation against the
defendant on the basis that this constituted publication. The claim succeeded -
this was sufficient to establish publication. Lord Esher MR provided (at 527) the
following definition of publication:
“The making known of the defamatory matter after it has been written to some
person other than the person of whom it is written”.
In essence, publication is the communication of the statement to any third party
(i.e. not the claimant or the defendant). Esher also goes on to note that intention
is necessary:
“…where the writer of a letter locks it up in his own desk, and a thief comes and
breaks open the desk and takes away the letter and makes it contents known […]
no intentional publication by the author occurs.”
If it is reasonably foreseeable that a third party will read or receive a defamatory
statement which is sent directly to the claimant, then that will constitute
publication, as in Theaker v Richardson [1962] 1 WLR 151. The defendant sent a
letter to the claimant, making a number of insulting accusations. The claimant’s
husband opened and read the letter, thinking it was an election address (a
political leaflet). This was held to be publication, since the claimant was able to
show that the defendant anticipated that someone else might read the letter. In
contrast, in Huth v Huth [1915] 3 KB 32 a nosy butler opened his master’s mail
and read the defamatory statement. This was not defamation, since this was
unforeseeable; indeed, the butler was acting in breach of his duties. The fact that
there are plenty of situations in which others open and read mail on behalf of
others (secretaries, mailroom clerks) makes this a common means of publication -
and thus a prudent defendant will send any defamatory remarks straight to the
claimant, and mark them as private (or similar.)
The Statement Must Cause Serious Harm
This criterion is a new development, brought into force by s.1 of the 2013 Act.
Although the case law on this point is sparse, there exists one noted case, in the
form of Cooke v MGN Ltd [2014] EWHC 2831. The defendant newspaper
published an article in which it was asserted that she owned a number of
properties rented to people on housing benefit, and that they were kept in a state
of disrepair (roughly, an accusation that the claimant was profiting from others’
poverty). The claimant could not demonstrate that this had caused serious harm
(or was likely to do so), and thus the claim failed.
Defences
Truth
As per s.2(1) of the 2013 Act, if a statement is true, then this will form a complete
defence. It should be noted that the burden of proof for showing that a statement
is true rests with the defendant. The defendant does not have to show that every
single characteristic of the statement made is true, merely that it is substantially
true. This can be seen Alexander v North Eastern Railway Co [1865] 6 B & S 340.
The defendant put up ‘name and shame’ posters up at a number of its stations,
stating that the claimant had been charged with travelling without a ticket, and
ordered to pay a fine or serve 3 weeks prison time. In fact, the sentence of prison
time was only 2 weeks long. The claimant argued this made the offence look
worse than it was. The defendants successfully argued that the substance of the
statement was true, and the claim failed.
Privilege
Individuals in certain roles are protected from defamation claims. This takes two
forms; the first being absolute privilege. This is enjoyed by Parliamentarians (as
per the Bill of Rights 1668) and members of the judiciary (as per s.14 of the
Defamation Act 1996).
The second is qualified privilege, as per s.15 of the 1996 Act, and covers situations
in which an individual is obliged morally or statutorily to communicate
information. The typical situation regards employment references; since the
referee is generally obliged as a matter of good business practice to provide a
reference. The law recognises that it would be unjust to punish someone for
doing something they are obligated to, and thus whilst an inaccurate reference
can be damaging, it will not give rise to a defamation claim. The exception is if a
reference is made maliciously (as per Spring v Guardian Assurance plc [1994]
UKHL 7).
Public Interest
As per s.4 of the 2013 Act, if a statement is made on a matter of public interest,
and the defendant reasonably believes that publishing the statement is in the
public interest. Although there is little guidance on what exactly constitutes public
interest since 2013, Reynolds v Times Newspapers Ltd [2001] 2 AC 127 provides a
list of the factors which indicate whether a statement is made in the public
interest or not. The defendant newspaper published (ultimately false) allegations
that the claimant, a recently resigned Irish Prime Minister, had misled the Irish
Parliament. The courts found themselves having to balance the need to prevent
defamation and the need to retain the ability of the media to report allegations
freely. Lord Nicholls provided a list of factors indicating when the courts were
likely to permit the defence to be advanced:
Seriousness - serious allegations are more damaging, so a serious false allegation
is harder to justify on the grounds of public interest.
Subject matter - certain topics are more likely to be found to be in the public
interest, so reports on parliamentary impropriety is in the public interest, but
reports on a newspaper editor’s hairdresser’s sexual activity is not.
Source - well-sourced information is more likely to be protected. If a statement
comes from someone who obviously has an interest in spreading lies, or is paid
for the story, then it is less likely to be in the public interest to publish it.
Verification - verified information is more likely to be protected than unverified
information.
Status - Information which has already been subject to another investigation is
more likely true, and so more likely to be protected.
Urgency - there are situations in which it is in the public interest to publish
quickly, and so the courts will take a kinder view there is no time to verify it.
Comment from the claimant - sometimes it will be reasonable to except a
publisher to approach the subject of a statement for comment or rebuttal.
Balance - statements which attempt to convey the claimant’s side of the story will
be looked on more favourably.
Tone - there will be situations in which a publisher has a choice between
reporting allegations as allegations, or as solid fact. Statements which err on the
side of caution will be looked on more favourably.
Circumstances - in effect, any other external factors, such as timing: statements
timed to do damage will be looked on less favourably.
In essence, the courts are seeking to make a distinction between diligent, proper
journalism published in good faith, and disingenuous editors attempting to use
the public interest defence to protect poor quality, salacious reporting.
Honest Opinion (Or ‘Fair Comment’)
As per s.3 of the 2013 Act, honest opinion will not be considered defamation. The
key to advancing this defence is that the statement must be presented as opinion,
rather than fact, and that the statements made are ones which are actually
matters of opinion, rather than fact. So a statement from an author that ‘2’ is the
best number is an opinion, and a matter of opinion. In contrast, a statement that
‘2+2=5’ might be an author’s opinion, but the answer to ‘2+2’ is not a matter of
opinion, but fact. Thus this defence would not apply.
The opinion must also be one which the court regards as one which a reasonable
person might form based on the facts available to them - so conjecture which
ignores obvious evidence to the contrary will not be protected by this defence.
Reportage
As per s.7 of the 2013 Act, there are a variety of situations in which simply
reporting what another has said will be protected from defamation claims. This is
based on the distinction between republishing a statement, and merely reporting
that a statement has been made. Thus a newspaper which reports that a public
figure has made a statement that government is staffed with lizard people will not
be regarded as making that statement itself, even though it has technically given
that opinion prominence.
Website Operators
As per s.5 of the 2013 Act, the law has developed a particular way to deal with the
operation of websites, aimed at taking account of the fact that unlike
conventional media, there is often an important distinction to be made between
the content published by a website operator and the content published by its
users. Since it would be overly onerous (and often undesirable) to expect website
operators to operate as moderators of every statement which is made on them, a
website owner can defend itself from defamation claim by simply pointing out
that the statement was not one they made, but instead it was one made by a
user. Thus if a defamatory statement is made on Facebook, then Facebook’s
owners won’t be held responsible for it, aslong as they can show that it was made
by a user.
A claimant can defeat this defence if they show that it was impossible for them to
identify the original author of the statement. Thus if a website operator provides
users with absolute anonymity, then it will be held responsible for the content
posted there. A claimant can also defeat this defence by showing that they asked
the website operator to remove the defamatory statement, but that they failed to
do so.
Further Notes
The Dead Can’t Be Defamed (or Defame)
Although the tort is one of injuring reputation, this only applies to the reputations
of the living. Thus, the dead cannot be defamed, and nor can they be a defendant
in a defamation case.
Trial by Jury (with Permission)
There exists the ability for a defamation claim to be heard by a jury. This used to
be a right, but s.11 of the 2013 Act has removed it, allowing a trial by jury if
ordered by a court. The willingness of the courts to do this is doubtful,
considering the added cost, time, and unreliability this would add to any given
case.
Limitation Period
The limitation period for claims for defamation is unusually short, lasting only a
year in time from when the statement occurred as per s.4A of the Limitation Act
1980. If a statement is made and then repeated (in a form which is substantially
the same), then this time limit starts upon the first instance of publication, as per
s.8 of the 2013 Act. So if a statement is published online on one website in
January and then again on another website (by the same author) in June, the one
year only runs from January. This does not apply to publication in a materially
different form - so if a statement is published online in January, and then in a
newspaper in June, then a claim for the newspaper publication can be made in
the year running on from June.
Company Reputation
Unless the harm is of a serious financial nature, organisations which trade for
profit cannot bring a claim for defamation, as per s.1(2) of the 2013 Act.

Privacy
Does the Tort of Invasion of Privacy Exist?
Invasion of privacy is perhaps the oddest of all the torts for a singular reason:
officially, it doesn’t exist. Statements to this effect can be seen in Wainwright v
Home Office.
Case in Focus: Wainwright v Home Office [2004] 2 AC 406
The claimants, a son and his mother, went to visit his brother (her son) in prison.
The imprisoned brother had been suspected of taking drugs whilst in jail, and so
as a condition of the visit they were asked to consent to a strip search. This was
legal, under Rule 86(1) of the Prison Rules 1964. They consented and were
searched - a process that both the claimant and his mother found upsetting. The
claimant, who had physical and mental disabilities, was held to have suffered
PTSD (i.e. recognisable psychological harm.)
The court held that the search of the son constituted battery - this was largely
unchallenged by the defence. However, they rejected the idea that there had
been an actionable invasion of privacy. This was concluded by Lord Hoffman
(general discussion starts at 15):
“…I would reject the invitation to declare that […] there has been a previously
unknown tort of invasion of privacy.”
- Lord Hoffman, at 35.
However, Lord Hoffman does note that there exists a bundle of rights which cover
much of the ground that a tort of privacy might cover:
“There are a number of common law and statutory remedies of which it may be
said that one at least of the underlying values they protect is a right of privacy. […]
Common law torts include trespass, nuisance, defamation and malicious
falsehood; there is the equitable action for breach of confidence and statutory
remedies under the Protection from Harassment Act 1997 and the Data
Protection Act 1998.”
- Lord Hoffman, at 18.
Lord Hoffman makes an important point however - that there are a number of
other torts and legal mechanisms which act to protect the privacy of individuals.
So an individual can prevent people from coming into his house via trespass to
property, can stop them from rooting through his diary via trespass to goods, and
can prevent them from lifting his shirt up via trespass to person. The same
snooper is prevented from accessing the individual’s bank account by the law
regarding fraud, and from falsely affecting his reputation thanks to the tort of
defamation. He can go about his business free from constant interference under
harassment law. In essence - the private ‘sphere’ of an individual’s life is
protected by a number of different and effective safeguards.
It should also be noted that the lack of a tort of invasion of privacy doesn’t
indicate that there isn’t an argument for one. The Leveson inquiry of 2011-12
undertook a protracted examination of invasive media practices, spurred on by a
number of high-profile incidents, noting that a lack of proper regulation provided
the environment for such incidents to take place. Nevertheless, the courts regard
Parliament to be the proper source of such regulation, and Parliament has not yet
acted on recommendations to that effect. This also showcases the primary
argument against the creation of such a tort - since invasions of privacy usually
involve exposing information to the public, they become a matter of free
expression (and by extension, press freedom). Since tort law remains most useful
to those who can afford access to the courts, a tort of invading privacy would
likely do little to help the man on the street, and a lot to help those involved in
illegitimate or immoral (but well-paid) practices. Since such practices are
invariably kept secret by their perpetrators, they become a matter of privacy. In
short: anyone arguing for a tort of invading privacy should be careful what they
wish for!
Thus, although there is no tort of invading privacy per se, there does exist a
bundle of rights which can be thought of providing a rough de facto basis for
protecting privacy. Most of these have already been covered in other sections
(and some, like data protection, remain beyond the purview of this work) but two
remain to be outlined (and remain key to fleshing out the bundle). These are the
Article 8 Right to Respect for Private Life and equitable doctrine of breach of
confidence.
Exam Consideration: Privacy is a peripheral issue of tort law due to its non-
existence as a clear tort, and its piecemeal nature. Nonetheless, it is a popular
subject for essay questions, because it remains a novel area of developing law
(and the scope still exists for it to one day become a proper tort).
Human Rights Approaches to Privacy
The Human Rights Act 1998 should not be regarded as providing an individual
with a right to bring a claim for invasion of privacy. However, it does provide the
basis for the courts interpreting laws in a way which protects privacy.
Article 8 of the Human Rights Act provides everyone with a “right to respect for
his private and family life, his home and his correspondence”. This is not absolute,
Article 8(2) provides for the right’s restriction, where necessary.
This right can be contrasted with its counter-weight: The Article 10 Right to
Freedom of Expression. Again, this right is not absolute, and notes the possibility
of limitation under Article 10(2).
The balancing mechanism between these two can be found in s.12(4) of the Act,
which notes that courts must give particular regard to the right of freedom of
expression when exercising their power.
This provides an important basis for the UK’s protection of privacy, since it means
that the other laws mentioned in the ‘bundle’ above will be interpreted in a
manner which promotes Article 8 (as long as this doesn’t unduly infringe Article
10.) This effect can be seen in Douglas v Hello! Ltd (No. 1) (with No. 3 discussed
under economic torts).
Case in Focus: Douglas v Hello! Ltd (No.1) [2001] 2 WLR
The defendants, Hello! magazine, took unauthorised photos of the wedding of
Michael Douglas and Catherine Zeta-Jones. They had an exclusive deal with OK!
magazine for the publishing of the wedding photos, and accordingly searched
their guests for cameras, and had the people staffing the wedding sign
agreements to not take photos. The sought an injunction against the publishing of
the photos, and this was granted. The defendant then appealed.
It then fell to the court, under s.12 of the Human Rights Act 1998, to consider the
competing rights of privacy under Article 8, against the right to freedom of
expression under Article 10. The important question at hand was not if a wrong
had been committed - it was largely clear that it had. Instead, the question was
whether an injunction was an appropriate remedy, or whether the case could be
resolved via the award of damages (thus avoiding the use of a remedy which
would involve hampering press freedom, when an alternative award of damages
would acknowledge the harm whilst preserving the press’s freedom of
expression).
The court held that, on balance, damages would be a sufficient remedy. Sedley LJ
mentions Article 8 providing a basis for the application of what can be termed, in
the abstract, as privacy law:
"The Court recalls that although the object of Article 8 is essentially that of
protecting the individual against arbitrary interference by the public authorities, it
does not merely compel the State to abstain from such interference: in addition
to this primarily negative undertaking, there may be positive obligations inherent
in an effective respect for private or family life.”
- Sedley LJ, at 128.
In effect, Sedley is acknowledging that the courts should not stop at preventing
government intrusion, but instead that Article 8 extends further into the territory
of actively promoting privacy rights.
The human rights basis for privacy is important, since it has informed the way the
courts have interpreted the breach of confidence doctrine, as the next section will
reveal.
Breach of Confidence
The doctrine of breach of confidence is in fact a matter of equity law, rather than
tort. It would take too long to describe entirely where it came from, so it will
suffice to say that the doctrine is rooted in law aimed at stopping industrial
espionage, by promoting the ability of companies to act privately (i.e. in
confidence). Over the course of the 20th Century the doctrine developed and
widened to take into account situations outside of commercial contexts, with the
latest development coming in the form of Campbell v Mirror Group Newspapers.
Case in Focus: Campbell v Mirror Group Newspapers [2004] UKHL 22
Claimant, model Naomi Campbell was photographed by the defendant whilst
leaving a drug rehabilitation clinic. At the time, she was publically denying the fact
that she was a recovering addict.
The claimant sought damages for the publication of the photos, as a matter of
negating breach of confidence. The question was not whether the Mirror
newspaper could print a story about the claimant’s drug rehabilitation - they
could - but rather whether the pictures could be printed. The defendant argued
that the pictures were merely ancillary to the article that they accompanied, and
since the article was not in question legally, neither were the photos. The court
rejected this argument, holding that this was an actionable breach of confidence.
The court effectively redrafted the breach of confidence doctrine to facilitate the
balance of Articles 8 and 10:
“The time has come to recognise that the values enshrined in articles 8 and 10 are
now part of the cause of action for breach of confidence. […] the courts have
been able to achieve this result by absorbing the rights protected by articles 8 and
10 into this cause of action.”
- Lord Nicholls, at 17.
The court implemented a two-part test. Firstly, it will be asked whether the
information is of a nature that an individual would reasonably expect to be kept
private:
“If the information is obviously private, the situation will be one where the person
to whom it relates can reasonably expect his privacy to be respected. So there is
normally no need to go on and ask whether it would be highly offensive for it to
be published.”
- Lord Hope, at 96.
Secondly, this must be balanced against the right to freedom of expression:
“They are whether publication of the material pursues a legitimate aim and
whether the benefits that will be achieved by its publication are proportionate to
the harm that may be done by the interference with the right to privacy.”
- Lord Hope, 113.
What Constitutes Private Information?
There is a developed selection of cases which detail situations in which privacy
can reasonably be expected (thus fulfilling the first part of the Campbell test). It
should be noted that many of these cases are pre-Campbell, but nonetheless
demonstrate when the court will regard information of be sufficiently private. It
should go without saying that an individual seeking drug counselling is included in
this category (i.e. Campbell).
Sexual relations will always be considered private, even if extra-marital (as
salacious as they might be.) Thus, in A v B [2002] 2 All ER 545, a premiership
footballer applied for an injunction to stop the publications of details of an
extramarital affair he was having. The injunction was granted, and the defendant
newspaper appealed. This was held to be sufficiently private, but nevertheless the
appeal was allowed on the basis that the injunction would have sufficiently
infringed Article 10.
The inside of an individual’s home will be considered private. Thus in Beckham v
Mirror Group News Ltd [2001] All ER (D) 307, David and Victoria Beckham
successfully obtained an injunction against the publication of photos detailing the
inside of their new home. It should also be noted that a public interest argument
failed in this case, demonstrating that not everything which interests the public
can be defended on the basis of public interest.
An individual’s address will be considered private, but only if there is a
demonstrable danger to the individual from the release of that information. Thus,
in Mills v News Group Newspapers Ltd [2001] EMLR 957, Heather Mills was
unable to obtain an injunction against the defendant newspaper publishing such
information. The risk to her was only slight, it was already well known that she
lived in the town, and photos of her home had previously published in national
publications. This can be contrasted with Venebles & Thompson v News Group
Newspapers Ltd [2001] EWHC 32. The notorious murderers of James Bulger were
provided with new identities upon release from prison. The defendant newspaper
sought to make these identities known, and thus the claimants sought an
injunction. This was granted - the release of the information would have
presented a significant danger to the claimants.
Information that an individual has had plastic surgery will be considered private.
Thus, in Archer v Williams [2003] EWHC 1670, the claimant sought damages for
the publication of information regarding a facelift, from a former assistant who
had sold her story to the press. The claim was successful.
It should be noted that the law will treat photographs of an individual as a
particularly aggressive invasion of privacy, since unlike mere information about an
individual’s private life, the taking of a photograph is, by definition, accompanied
by the following of an individual, often without their knowledge. Thus, in
Campbell, Baroness Hale noted (at 30) that the photographs of the claimant
would both induce her into thinking that she was being followed and/or her
location betrayed by a confidant, as well as deterring her from returning to the
place the photos had been taken (and, after all, deterring a drug addict from
seeking counselling is morally dubious.)
Whilst the general scope of privacy is open to the courts to decide, one test can
be found in the Australian case of Australian Broadcasting Corporation v Lenah
Game Meats [2001] 208 CLF 199. It should be noted that this test was rejected by
the judiciary in Campbell, although it remains useful as a general guide. The
claimant sought an injunction against the broadcast of a film containing
undercover footage of its possum meat slaughterhouse. The claim failed on the
basis that the broadcast was of public interest.
In describing the benchmark for privacy, Gleeson CJ provided the following
formulation:
“Certain kinds of information about a person, such as information relating to
health, personal relationships, or finances, may be easy to identify as private; as
may certain kinds of activity, which a reasonable person, applying contemporary
standards of morals and behaviour, would understand to be meant to be
unobserved. The requirement that disclosure or observation of information or
conduct would be highly offensive to a reasonable person of ordinary sensibilities
is in many circumstances a useful practical test of what is private.”
- Gleeson CJ, at 42
Therefore, introspection can be a useful tool when dealing with privacy: it can be
easy to pick up a newspaper and read about another’s business, but upon
consideration we would find it highly alarming if such information was to appear
about ourselves in the press.
Do Individuals in Public Have Any Expectation of Privacy?
Information which is already in the public domain will generally not be regarded
as private. Indeed, s.12(4)(a)(i) of the Human Rights Act 1998 mentions that this
factor should be considered by the courts when dealing with questions of Article 8
rights. By extension, that which happens in public will generally be regarded as a
non-private. This was noted in A v B (the case of the amorous footballer,
mentioned above). Since some of the footballer’s indiscretions had taken place in
public, the court erred away from considering them as confidential. This is a
general principle, rather than a rule, however - indeed, Campbell was
photographed in public (albeit when leaving a very private place).
Appearing in public does not mean that a claimant loses all right to privacy. This
can be seen in Peck v UK.
Case in Focus: Peck v UK [2003] EHRR 287 (App. No. 00044647/98)
The applicant (an average, non-famous citizen) was photographed by CCTV
wondering the streets with a knife, shortly after he had attempted to commit
suicide in 1995. This CCTV was sent (perhaps insensitively, but unmaliciously) to
various local newspapers and a national TV programme, all of which published
imagery of the applicant. After a failed attempt to have the council’s actions
judicial reviewed, he applied to the ECHR on the basis that his Article 8 rights had
been breached. The court drew a distinction between foreseeable exposure and
the exposure that took place, and the application was successful.
Thus, whilst there was certainly nothing wrong with the council using the CCTV
for internal purposes, it had violated the applicant’s rights when it exposed the
footage to news organisations. It should be noted, however, that the events of
the case took place in 1995. It is extremely doubtful that a similar decision would
be made nowadays, since it is now largely impossible to do anything of any
interest in public without being captured on the iPhone of a passer-by! Thus it
cannot realistically be said that an individual can expect relative privacy whilst out
in public.
In general, celebrities and others who seek fame will be afforded less protection
by the law than the average individual. This is because one who seeks fame will
accordingly, be less able to expect privacy. Similarly, someone who undertakes a
notorious act (murder or robbery, for example) will be regarded as having
accepted that their lives will be of more interest to the public. This point was also
espoused in A v B (footballer, again) - whilst a randomly chosen individual’s sexual
indiscretions cannot reasonably be regarded as being of public interest, the same
cannot be said for a Premiership footballer. Again, Campbell demonstrates the
limit of this principle.
Freedom of Expression
The second part of the Campbell test involves asking whether granting an
injunction (the objective of most privacy claims) would unduly infringe on the
right to freedom of expression. If the press is involved in the privacy breach (as
they invariably often are), the courts will also consider press freedom, under
s.12(4) of the Human Rights Act.
This decision will be entirely dependent on the nature of the privacy breach. Thus
a tiny privacy breach, such as a picture of a celebrity at an awards ceremony, will
only need the slightest justification before it will be held as reasonable
(realistically, no substantive justification at all). Conversely, a naked photo of a
celebrity taken with a pinhole camera secretly hidden in their bedroom will
require a proportionally massive justification (indeed, this would be such a great
breach of privacy that it would more than likely be held as unjustifiable).
The essence of the defence’s argument will often take the form of a public
interest defence. As noted above, this does not mean that just because the public
are interested in something that it will be freely publishable (indeed, if the right
celebrity’s bedroom were bugged, it would be probably be of interest to the
public). Conversely, it is also doubtful that much of the content of various
publications could really be considered as being in the public interest - the world
would function perfectly well without telescopic lens photos of female celebrities
on their private yachts. The justification for such behaviour is perhaps best
understood via the judgement in A v B:
“…it would be overstating the position to say that there is a public interest in the
information being published. It would be more accurate to say that the public
have an understandable and so a legitimate interest in being told the information.
[…] The court must not ignore the fact that if newspapers do not publish interest
which the public are interested in, there will be fewer newspapers published,
which will not be in the public interest.”
- Lord Woolf CJ, at 11.
Thus, since a free press is a matter of public interest, and part of that freedom
involves publishing that which might ordinarily be considered distasteful or
spurious, even the more lurid practices of journalists are defensible as a matter of
public interest.
Exam Consideration:
Since privacy law relies heavily on human rights law, it often involves abstract
qualitative arguments, rather than the application of strict principle. It will thus
often be important that you take notice of the facts of problem questions and ask
what each party’s reasonable expectations would be in the situation.

Soft Regulation
The tension which often exists between the press and the subjects of their
investigations have led to the creation of the Press Complaints Commission’s
(PCC) Code of Practice. This lays down the standard of behaviour expected of
contents editors, including standards regarding respect of privacy (see Clause 3).
If an individual believes that there has been an invasion of privacy, they can make
a complaint to the PCC, who in turn are able to order editors to print retractions
and apologies. It should be noted, however, that the PCC does not have the
power to grant other remedies, like injunctions or damages, and so it remains
relatively toothless.
Other Notes on Privacy
As can be seen from the cases above, there are times at which the court will hold
that there has been a breach of privacy, but that an injunction would still be an
overzealous remedy (since it is essentially a wrecking ball as far as press freedom
goes). In such situations, the court can opt for the compromise of allowing the
publication to go ahead, whilst still awarding damages to the claimant.
It is notable that the presence of litigation can actually make a given invasion of
privacy more notorious - in essence, the claimant obtains the polar opposite of
what they desired (even if they receive damages for the original breach of
privacy). Colloquially, this is known as the ‘Streisand effect’ - named for a now
notorious US case in which singer Barbara Streisand attempted to obtain an
injunction against the publishing of pictures of her home on the Californian coast
(on a website dedicated entirely to surveying coastal erosion, no less). For proof
of the Streisand effect, you need look no further than any article on the matter - it
will invariably contain the photo in question. In short: a wise claimant would be
advised to be wary of jumping both feet first into litigation for breach of privacy.

Defences and Limitation of Liability

Just as tort law uses remoteness or lack of duty as mechanisms to control which
claims are and are not actionable, defences provide a way in which a defendant
can negate liability either by reference to their own positive behaviour or through
pointing out the claimant’s own misdeeds. Some of these defences will only
reduce the award of damages, and are thus referred to as ‘partial defences’.
Others will dispel all liability, and are therefore known as ‘complete defences’.
It should also be noted that even if these defences do not apply, both claimants
and defendants can table aggravating and mitigating factors in an effort to
convince the courts that a greater or lesser amount of damages should be
awarded. It is also worth acknowledging that where a complete defence fails, the
courts might still take the defence into account as a mitigating factor. Thus where,
for example, a necessity defence fails the courts might still regard the defendant’s
behaviour as being well intentioned, and reduce damages accordingly.
Finally, it should be remembered the best defence available will often be an
argument that the claimant doesn’t have a case at all (so for negligence claims,
that no duty existed etc.)
Exam Consideration: Many of these defences function slightly differently
depending on the tort that they are being applied to. It would therefore be wise
to check the content on the relevant tort before zealously applying any of these
to a given case. Conversely, the defences listed in relation to each tort will need
to be read in conjunction with this chapter.
Contributory Negligence
A contributory negligence defence is quite simply an argument that the claimant,
through some action or omission of their own, contributed manifestly to their
own injuries, and that this fact should be reflected in the awarded damages. Since
it affects the damages, rather than the verdict of the case itself, it is a partial
defence.
The effect of a contributory negligence defence is easy to understand. It involves
asking to what extent a claimant contributed to their own injuries as a
percentage, and then taking that percentage off of his or her damages. Thus if the
courts regard a claimant as having made a 40% contribution to their own injuries,
the court will reduce their damages by 40%. Because of this mechanism, the
defence is not available where the relevant remedy is not damages (because it’s
impossible to reduce an injunction by a percentage!).
The authority for the defence and a description of how it works can be found in
s.1(1) of the Law Reform (Contributory Negligence) Act 1945, although the
defence itself was developed before then.
Exam Consideration:
Whilst it has ‘negligence’ in the name, do not make the mistake of thinking that
contributory negligence only applies to negligence claims.
There are two main elements of a contributory negligence defence. Firstly, the
claimant must be at fault (their conduct having fallen short of the expected
standard of care). Secondly, once fault has been established, the extent of blame
must be apportioned.
Finding Claimant Fault
As per s.4 of the 1945 Act, claimant fault includes negligence, breach of statute or
any other form of tortious liability and (perhaps paradoxically) any other act
which gives rise to a defence of contributory negligence. This criterion is
important, since it means that contributory negligence will only arise where the
claimant’s behaviour can be regarded as giving rise to tortious liability.
Exam Consideration: It is often difficult to think of a claimant’s own actions as
being tortious, since one cannot sue oneself. It can be useful to think of the
claimant as being controlled by an imaginary third party: so if a third party was in
control of a claimant, and didn’t make them put a seatbelt on when they got into
a car, we’d regard that as negligent. Thus, someone who doesn’t make
themselves put a seatbelt on can be considered as acting negligently.
An example of the negligent fault principle can be seen in Jones v Livox Quarries.
Case in Focus: Jones v Livox Quarries [1952] 2 QB 608
The claimant worked in a quarry owned by the defendant. He decided to hitch a
lift on the back of an excavator by standing on the tow bar, unbeknownst to the
driver, and a policy was in place forbidding this behaviour. A dump truck, driven
recklessly by another employee, went out of control and hit the back of the
excavator, crushing the claimant’s legs, leading to amputation.
Whilst the dump truck’s driver was to blame for the accident, the court held that
the claimant was 20% to blame for his injuries - he had acted negligently, and had
acted against orders. Lord Denning MR identified the foreseeably
requirement:"Just as actionable negligence requires the foreseeability of harm to
others, so contributory negligence requires the foreseeability of harm to oneself.
A person is guilty of contributory negligence if he ought reasonably to have
foreseen that, if he did not act as a reasonable, prudent man, he might be hurt
himself…"
- Lord Denning MR, at 615
Thus, contributory negligence is not based on being in the wrong place at the
wrong time, but rather on whether the claimant had acted reasonably in the
circumstances, with ‘reasonable’ defined as taking action to avoid foreseeable
harm. It should be noted that reasonable behaviour is not based on acting to
prevent any and all foreseeable accidents, but rather just taking precautions to
avoid generally foreseeable harm. All that can be asked of claimants is that they
take reasonable precautions to self-protect themselves, since the nature and
extent of the tort that affects them will be determined by the behaviour of the
defendant who has harmed them. In other words, you can wear a seatbelt, but
you can’t stop someone from hitting you with their car.
What is reasonable will depend on the context, and a protracted discussion of the
reasonable standard of care is discussed in the chapter on breach of duty. There
are a few common situations which are worth mentioning, however. Claimants
will be expected to wear seatbelts whenever they get into a car, regardless of
length or road conditions. This can be seen in Froom v Butcher.
Case in Focus: Froom v Butcher [1976] 1 QB 286
The claimant was involved in a negligently caused car accident, in which the
claimant was not wearing a seatbelt. A lengthy discussion of contributory
negligence ensued, with Lord Denning coming to the follow conclusion (in
reference to failures to wear seatbelts):
“Sometimes the evidence will show that the failure made no difference. In such
case the damages should not be reduced at all. […] At other times the evidence
will show that the failure made all the difference. In such cases I would suggest
that the damages should be reduced by 25 per cent. […] Often enough the
evidence will only show that the failure made a considerable difference. In such
case I would suggest that the damages […] should be reduced by 15 per cent.”
- Lord Denning MR at 293
It is perhaps odd that situations in which the entire harm of the accident can be
attributed to non-seatbelt wearing only attract a 25% reduction in damages.
However, it should not be forgotten that whilst a claimant has a responsibility to
wear a seatbelt, they have a greater right to not be hit by a negligent driver. Of
course, this only refers to non-seatbelt wearing - it may well be a case that a
claimant contributes to an accident in more than one way, and so the
contribution will be greater. So a claimant who isn’t wearing a seatbelt and is
speeding and on their mobile phone will have their damages slashed beyond 25%
for their myriad wrongdoings.
The same principle applies for motorcycle drivers who do not wear helmets, as
per O’Connell v Jackson [1971] 3 WLR 463. The claimant was injured whilst riding
his motorcycle without a helmet. A negligent driver moved into his lane and
struck him. The court used the Highway Code as their benchmark for
responsibility, and noted that it told motorcyclists to wear helmets. Since the
motorcyclist did not contribute to the accident, and the lack of a helmet only
caused some but not all of his injuries, damages were reduced by 15%. This case
also demonstrates the utility of codes of conduct and guidelines: it can generally
be held that someone undertaking a job or activity has read any relevant guidance
or codes of practice that pertain to it (after all, that’s why they exist.) Thus such
codes or guidelines can form a useful demonstration of what constitutes
reasonable behaviour.
It should be noted however that whilst there are generally accepted situations in
which contributory negligence will be found, the precedent set by cases such as
Froom and O’Connell (and any other case in which contributory negligence is
found) is of a soft, rather than a hard nature. The only set rule is that the courts
should consider each instance of contributory negligence on the basis of its own
facts and circumstances. This principle can be seen at work in the case of Owens v
Brimmell [1977] QB 859. The claimant knowingly got into a car with the
defendant, with whom he had been drinking with at a pub. He also failed to wear
his seatbelt. The defendant negligently caused an accident in which the claimant
was injured. Tasker Watkins J noted (at 867) that a substantive body of case law
existed regarding such situations, but ultimately, that: “whether [the law] can be
relied on successfully is a question of fact and degree to be determined in the
circumstances out of which the issue is said to arise”. Thus, not every situation
involving a seatbelt has to be decided according to Froom. Of course, a prudent
judge will still attempt to maintain the continuity of the law unless the case at
hand can be sufficiently distinguished.
The relevant standard of care can change depending on the characteristics of the
claimant. Thus, children will be expected to act less carefully than adults, as in
Gough v Thorne [1966] 1 WLR 1387. Three siblings aged seventeen, thirteen and
ten were waiting to cross a road. A lorry driver slowed down, and beckoned them
to cross. They did so, but then a car overtook the lorry via a narrow gap, and hit
the two youngest siblings. At trial, the thirteen year old was held to have
contributed a third to her injuries, for not checking the road for any other
oncoming traffic. On appeal this decision was struck out on the basis that her
behaviour was acceptable for a thirteen year old, although negligent if
undertaken by an adult. It should be noted that unless very young, children will
rarely be held to be blameless, thus in Morales v Ecclestone [1991] RTR 151 an
eleven year old was held 75% responsible for running out into a road without
looking and getting hit by a car.
The situation that the claimant is in will also change the relevant standard of care,
so rescuers attending to an event will be held to a lesser standard of care and
those who act quickly when placed in an emergency situation will not be handled
as if they were capable of rational, calculating thought. Thus in Jones v Boyce
[1816] 171 ER 540, the defendant negligently drove a horse-drawn coach in which
the claimant was a passenger. The claimant thought the coach was about to
crash, and so jumped from it to avoid the danger, injuring himself. The coach did
not crash. Nevertheless, the claimant was not held to have contributed to his
injuries - whilst he had acted unreasonably by normal standards, he had acted
reasonably for someone put in a position of perceived danger. However, there is a
limit to when ‘emergency’ behaviour will be considered reasonable. Thus in
Sayers v Harlow [1958] 1 WLR 623the claimant was negligently locked in a toilet
cubicle which had no inside handle. In a desperate attempt to escape the claimant
stood on the cubicle’s toilet roll holder which gave way, injuring her. The courts
held that her behaviour was unreasonable, and thus applied a 25% reduction to
the claimant’s damages.
Apportionment
Once claimant fault has been established the court will seek to ascertain the
contribution the claimant has made to their harm, expressed as a proportion, as
per s.1 of the 1945 Act.
It should be noted that courts are prevented from making deductions of 100%,
following Pitts v Hunt [1991] 1 QB 24. The claimant was injured whilst riding on
the back of the defendant’s motorcycle. The defendant was driving negligently,
and hit an oncoming car, killing himself and permanently disabling the claimant. A
variety of different factors were tabled regarding the claimant’s contributory
negligence. Both parties were drunk. The defendant had no motorcycle license or
insurance. The defendant was driving dangerously, and the claimant was
encouraging him to do so, with both parties shouting and jeering at pedestrians.
The court of first instance held that the claimant was 100% liable, but on appeal
this was reduced by 50%. The bench noted that the function of contributory
negligence was not to defeat a claim, but merely to reflect a claimant’s
contribution to that claim. This is a perfectly sensible approach - a defendant who
is regarded as 0% to blame for a tort isn’t at fault at all.
Whilst the reduction in damages will be a matter of factual context, there are two
general factors that the court will take into account - fault and causation. Fault
refers to the claimant’s lack of care - so not wearing a seatbelt demonstrates a
lack of care. Consider two drivers who are hit from behind whilst driving, both of
who suffer the exact same damage. The first is not wearing a seatbelt (a
moderately careless act), whilst the second has failed to repair a broken brake
light (a minor careless act). The courts will regard the first driver more harshly,
because they have been more careless, even if the resulting damage is the same.
Causation refers to the extent to which the claimant’s lack of care affected the
damage they sustained. Consider two drivers, neither of whom are wearing
seatbelts. The first is involved in an accident which is made a lot worse by the lack
of a seatbelt. The second is involved in an accident the result of which is only
made slightly worse by the lack of seatbelt. The courts will regard the first driver
as more culpable (this is essentially the Froom decision).
These two factors are combined, so a very foolish act or omission which makes an
accident massively worse will result in a far higher reduction in damages then a
minor omission which only makes an accident a little worse.
Consent
Consent refers to situations in which the claimant can be regarded as having
consented to a risk which then manifests itself. This is sometimes referred to via
the Latin maxim volenti non fit injuria (to a volunteer, injury is not done). Consent
is a complete defence - if consent is found, a claim will be defeated.
Consent defences can be broken down into two categories. In the first are
situations of negligence where a claimant agrees that the defendant will not be
held liable for any injuries they might incur whilst undertaking a particular
activity. So an individual might sign a waiver in which they consent to any risk of
injury that might occur when they bungee jump. In the second are where the
claimant effectively tells a defendant to do something. So an individual who tells
another to burn down his house cannot sue that person for damaging his
property.
Consent is made up of three factors. The claimant must have a knowledge of the
nature and extent of the risk they consented to, the claimant’s consent must be
voluntary, and they must be shown to have agreed to the risk.
Knowledge of Risk
Before consent can be effective, a claimant must know what it is that they are
consenting to. This is subjective, so the courts will ask what a claimant knew at
the time consent occurred. This can be seen in Morris v Murray.
Case in Focus: Morris v Murray [1991] 2 QB 6
The claimant had been drinking with the defendant all day (to the point at which
the defendant had consumed roughly seventeen servings of whiskey). The
defendant, who had a pilot’s licence, suggested that they take his light aircraft for
a flight. The claimant agreed and drove to the airfield. In a perhaps predictable
turn of events the plane crashed, killing the defendant and seriously injuring the
claimant, who brought a case against the defendant’s estate. The defence argued
that the claimant had consented to the risk, since he must have known how
glaringly dangerous the flight would have been.

This argument was successful - the claimant was held to have known of the risk
but continued on regardless, and thus the defence of consent applied.
It can thus be seen that whilst knowledge is subjective, there is no need for an
explicit expression on the part of the claimant that they are aware of the risk they
are running. Instead, the court will infer the likely knowledge of the claimant
(although they will of course pay attention to any explicit evidence that the
claimant knew of a particular risk).
Since this requirement is subjective, the defence will fail if the defendant was not
aware of a risk, even if they should have been. Thus in Smith v Austin Lifts Ltd
[1959] 2 Lloyd's Rep 583 the claimant was injured by a risk that he reasonably
should have known about. Nonetheless, a consent defence failed, because the
claimant wasn’t aware of the extent of the risk he was exposing himself to.
Exam Consideration: Remember, none of these defences operate in a vacuum,
and thus can overlap. It will quite often be the case that where consent fails,
contributory negligence can still apply.
Voluntariness
Key to the employment of a consent defence is that the claimant must have been
given true freedom of choice before they can be said to have consented. This can
be seen in Bowater v Rowley Regis Corp.
Case in Focus: Bowater v Rowley Regis Corp [1944] KB 476
The claimant was employed by the defendant as a road sweeper. Part of this work
involved using a horse-drawn cart to collect sweepings. He was ordered by his
foreman to use a horse which was known for misbehaviour. The claimant
protested, but his protests were ignored. A few weeks later the horse bolted,
throwing the claimant from his cart and injuring him. The defendant raised a
consent defence. The defence failed - the claimant could not be regarded as
willing since he had no real choice in the matter, and thus consent did not apply.
This case also demonstrates a couple of other points. Firstly, employees can rarely
be described as consenting to risk, where that risk comes about as part of their
employment. Since the actions of employees are usually dictated by a manager, it
is the manager who is effectively making the choices in such scenarios. This can be
seen in Smith v Baker & Sons [1891] AC 325. The claimant was injured on a
building site when a stone fell from a crane. Whilst he was aware of this risk, and
continued to work on the site, this was not effective consent - he had no control
over the risk, and thus no choice over whether he was exposed to it or not
(outside of his general consent to employment on the site). This principle also fits
into wider legal views of the employer-employee relationship, which tend to
emphasise the duty of employers to avoid harm and their ability to bear losses via
organisational coffers or insurance policies. There exists an exception to this
principle, however, where an employee is paid ‘danger money’ to undertake a
particularly risky activity - since such payments are predicated on an employee
consenting to undertake a particularly risky activity, this can be considered
effective consent (unless of course, the choice was between taking on the extra
risk and becoming unemployed).
Secondly, freedom of choice does not mean merely ‘it was possible to avoid the
risk’. So in Bowater the employee had the freedom to refuse the order to use the
dangerous horse and potentially run the risk of dismissal or disciplinary action.
Still, it would be disingenuous to assert that the claimant had a free choice
between using the horse and not. To put it another way, a choice between
fighting a bear or jumping off a cliff is not a freely made choice.
Agreement
Agreement can take one of two forms - express and implied.
Express agreements include explicit forms of consent such as the eponymous
consent form, or else an explicit agreement between claimant and defendant.
Since written consent is effectively a form of contract, it is subject to relevant
statutes, such as the Unfair Contract Terms Act 1977. Most notable is s.2(1) which
notes that it is impossible, in law, to exclude or restrict liability for negligently
caused personal injury or death. This provision does not cover property damage -
that can be excluded, and similarly it is perfectly legitimate to exclude non-
negligently caused personal injury or death. So a paintballing accident, for
example, which is not caused by negligence but results in the loss of an eye, can
be excluded via the proper contract terminology. Express agreements are, overall,
much more simple than implied agreements, since they will usually make it clear
what the consent pertains to.

Exam Consideration: Express consent is largely a matter of contract law, and so it

would be impossible to cover in full all of the rules and regulations which apply to
it. In short, a proper understanding of express consent is predicated on a proper
knowledge of contract law.
Implied consent includes situations in which a claimant can reasonably be held to
have consented to a particular risk, but do not make this consent explicitly known
(after all, the phrase ‘I consent to that risk’ is hardly a common phrase in everyday
life). However, the courts are relatively reluctant to imply consent unless it is very
clearly (but not explicitly) in place, since this is effectively putting words into the
claimant’s mouth. The situations in which it tends to be found are those in which
a claimant is aware of an obvious danger but presses on regardless. This can be
seen in Imperial Chemical Industries Ltd v Shatwell (also discussed in employers’
statutory breach).
Case in Focus: Imperial Chemical Industries Ltd v Shatwell [1965] AC 656
In defiance of express instructions and statutory regulation, the two claimants
tested mining explosives in a quarry in an unsafe manner. They could have
undertaken a safe test had they just waited for a colleague to return with a longer
detonator wire. The explosives detonated early, and the claimants were injured.
They then brought a case against their employer. The courts allowed a consent
defence to succeed, on the basis that the claimants were clearly in full knowledge
of the risks and decided to press ahead anyway.
However, unless a danger is staggeringly clear (thus in Imperial Chemical
Industries, there were explicit warnings in place) the courts will not imply
consent. This can be seen in a series of cases where passengers have knowingly
ridden in the vehicles of drunk drivers. Thus in Dann v Hamilton [1939] 1 KB 509,
the defendant went drinking in a variety of different pubs with the claimant and a
third party. The trio got into the defendant’s car (defendant driving), but after a
short while the third party declared the defendant to be drunk, and got out. The
claimant stated that she would accept the risk of an accident occurring. A
negligently caused accident did occur, injuring the claimant. Nonetheless, a
consent defence was not accepted - the claimant was not held to have consented
to absolve the defendant from any acts of negligence. The same principle can be
seen in Owens v Brimmell(discussed in contributory negligence.) Again, although
the claimant passenger knew that the defendant driver was drunk, a consent
offence did not apply.
These cases can be contrasted with Morris v Murray (drunken pilot), in which the
danger was held to be so incredibly obvious and extreme that consent could
succeed. Thus, unless a danger is overwhelmingly apparent and grievous, consent
will usually not be implied by the courts.
It should be noted that statute now prohibits a consent defence being used
against passengers in cars, as long as the situation is one in which insurance is
required (so certain private property activities aren’t covered etc.), as per s.149 of
The Road Traffic Act 1988.
Authorisation
As noted in previous chapters, statutory authorisation can render ordinarily
tortious activities legal. Examples include police searches under the Police and
Criminal Evidence Act 1984, mental health detentions under the Mental Health
Act 1983, and noisy aircraft flight under the Civil Aviation Act 1982. There are
dozens and dozens of such acts and so it is impossible to cover them all. The key
thing to note that certain instances of negligence are held to go beyond the
authorisation of statute, and thus can still give rise to tort. However, this is a
matter of public/administrative law, rather than tort.
Exam Consideration:
Don’t worry too much about the authorisation defence - since it is essentially a
‘get out of jail free card’ as far as tortious acts go, it rarely appears in tort law
questions. If it did, your answer would be a single sentence referring to the fact
that the activity is authorised.
Necessity
The complete defence of necessity applies in cases of trespass (personal, property
or goods), and has been discussed as such in the relevant chapter. Whilst the
defence is technically open for use in other areas of tort, it tends not to appear
(for example, it is difficult to argue that a defendant has been negligently careless
out of necessity).

Illegality
Illegality, sometimes referred to as ‘ex turpi causa’ (from a foul cause), is a
complete defence essentially asserting that the claimant’s harm occurred whilst in
pursuit of a criminal endeavour. This should not be regarded as a rule that
prevents all claims from succeeding - if this were the case then every road user
not wearing a seatbelt or speeding would have their claims in tort barred. Instead,
the defence tends to only by applied by the courts when it is just to do so, and as
a prerequisite the harm must be closely linked to the criminal act that the
claimant is engaged in. See Cummings v Granger [1977] QB 397. The claimant was
a burglar who was in the process of robbing a scrap yard. Unbeknownst to the
claimant, an untrained Alsatian was loose in the yard to deter intruders. The dog
bit the burglar, who then sued the defendant. The claim was denied by the courts
on the basis that the claimant was in the process of a criminal enterprise, and his
injury could be connected to it.
The same principle can be seen at work in Vellino v Chief Constable of Greater
Manchester Police.
Case in Focus: Vellino v Chief Constable of Greater Manchester Police [2002] 1
WLR 218
The claimant, a serial criminal and escapee, jumped from a second floor window.
He suffered serious injuries, including tetraplegia. The claimant brought a case
against the police, asserting that the police owed him a duty to prevent him from
injuring himself. The claim failed, on the basis that the claimant’s criminal
enterprise precluded the imposition of a duty of care. The three primary elements
of an illegality defence were identified by Sir Stuart-Smith (at 72). The harm must
be linked inextricably to the claimant’s criminal enterprise, the defence must be
justified by public policy, and the criminal conduct must be sufficiently serious.
It is notable that Stuart-Smith notes that the defence is rooted in public policy -
this essentially means it is a defence which is available to the judiciary to use,
rather than one which the defendant can actively rely upon. Whilst this provides
the judiciary with a lot of discretion, it also allows the defence to be used even
when the defendant has themselves acted poorly. In essence, it allows the court
to throw out a claim because it would be unjust to allow the claimant to use tort
law in such a manner (as in Vellino).
Limitation of Liability
The law dictates that there is a limit on how much time can pass after a claim
arises before it becomes inactionable. This is generally ascribed to two factors.
Firstly, the more time that passes after a claim arises, the harder it is to deal with
them. Injuries heal, damage is repaired, and records of events are destroyed
(particularly in a post-Data Protection Act world) or forgotten by witnesses. This
makes such claims onerous and expensive to deal with inside of the legal system.
Secondly, defendants have a right to eventually consider themselves finished with
a particular dispute or conflict, and it is just to expect claimants to bring a case in
a timely manner (and to prevent them from holding the potential claim over the
heads of defendants, or using it as a tool to economically harm someone when
they are most vulnerable).
The primary body of law on this matter is found within the Limitation Act 1980,
the most important part of which is s.2, dictating that actions founded on tort
expire after six years have passed from the date on which the cause of action
accrued. In general, the date of accrual is the date the damage occurs, but there
are important exceptions to this rule.
As per s.4A, claims for defamation are subject to a time limit of one year.
Non-Personal Injury Damage Caused by Negligence
In the case of non-personal injury damage, the six year limit will start when the
damage occurs, as long as the damage is readily apparent. So if a car crashes into
a house and smashes down a wall, the action will accrue from the point the car
crashes into the house. As per s.14A(4)(b), if damage is latent (i.e. not readily
apparent) then the same six year timer will start running from the point of
damage, but a second three year timer will run from the point at which damage
becomes reasonably apparent. So if a builder negligently builds a chimney with a
defect, which only becomes apparent ten years later, the claimant will have two
windows to lodge a claim - the first six years after the chimney is built (although
this naturally won’t happen because the defect isn’t apparent), and then for three
years after the defect becomes reasonably apparent. There is, however, a hard
limit to these time limits - no action can be brought after 15 years have passed
since the original damage (so in the case of the chimney, 15 years after it has
been built).

Knowledge of damage is objective - so the courts will ask at what point the
damage would have become apparent to the reasonable person, based on the
facts available, as per s.14(A)(7)
Personal Injury Damage
As per s.11 and s.14, where the damage is personal injury, the time limit will be
only three years running from the point the damage occurred, or if later, from
when the claimant became reasonably aware of the information needed to lodge
a claim. This information is made up of three things: knowledge of injury;
knowledge that the injury was caused by negligence, nuisance or breach of duty;
and knowledge of the defendant’s identity. Again, this is based on a reasonable
claimant, so if and individual is in possession of enough facts to ascertain these
three things, then the clock will start running.
Exceptions to All the Rules
As per s.28, 28A and 38(2), the court are able to ignore the above time limitations
if the claimant was a minor or lacked mental capacity at the time the action
accrued. For people in such situations, the clock will only start running when the
person becomes an adult, or mental capacity is achieved, or in either case if the
claimant dies (this might be relevant for the claimant’s estate).
As per s.32, if the defendant has deceived the claimant as to the validity of their
claim in some way, then the clock will only start running once the deception is
discovered (or else ended).
As per s.33, if the tort is one involving personal injury or death, the court has an
ability to overturn any involved time limits if it is equitable to do so. The factors
that the court will have regard to are listed under s.33(3). Such exceptions are
rarely applied (else the time limits would be undermined).

Remedies
Once a case has been made by a claimant and the defendant’s case defeated, the
court will decide on an appropriate remedy to apply to the problem at hand.
Remedies come in two primary forms: damages and injunctions. The claimant will
certainly have an idea of the outcome that they’d like, but a win does not
guarantee that outcome, which is ultimately determined by the court. Thus, as
can be seen in many privacy and defamation cases, a claimant will often come to
court to apply for an injunction but then leave with damages (whilst their private
information is published enthusiastically by the press over the next few days).
Exam Consideration: You won’t be expected to know everything there is to know
about remedies - they are usually examined fully at vocational course level.
Nevertheless, knowing tort without knowing about remedies is like knowing how
to play football but not knowing what a goal is.
Damages
Damages are quite simply the award of a monetary sum to the claimant, which
must then be paid by the defendant (or as is often the case, the defendant’s
insurance company). The general guiding principle is that of full compensation:
the idea that the amount of damages awarded should return the claimant to the
position they would have been in had the tort not occurred. It should be noted
that the compensation principle (justifiably) only demands like-for-like
replacement: so a claimant won’t be awarded the cost of a new car if their car
had 200k on the milometer. Instead, their damages will reflect wear and tear.
Other situations are less clear and cannot be assigned an easily calculable label -
actions for trespass to person, for example, are about the damage done to a right,
and are thus difficult to quantify.
An award of damages is made up of a number of different smaller awards which
take into account different elements of the case, all added together to reach a
final lump sum. Prudent judges will provide this breakdown a trial (see the cases
below for an example of this).
The Mitigation Principle
Before continuing, it is worth noting the mitigation principle: roughly, a claimant
must act where reasonable to mitigate their own losses. This is important because
the cost of many of the heads of damage below could be artificially inflated by an
avaricious or malicious claimant. If this were the case a claimant could opt for a
solid gold prosthesis over a carbon-fibre model, to the detriment of the
defendant.
Special Damages
The first category is special damages. That is, damages which can be specified at
the time of the trial (so damages for injuries or costs which take place pre-trial).
This includes any injuries which have manifested themselves such as a broken
arm or the acquirement of a disability. These are quantified using the Ogden
tables - essentially a guide for judges and lawyers to help them calculate the
appropriate amount for a given injury. As per the mitigation principle, a claimant
will be expected to take reasonable care to not make their injury worse than it
already is (and indeed, any excessively careless events in which a claimant makes
their injury worse can invalidate the claim, see causation for more details).
Loss of earnings before the trial come under special damages - so a claimant
might have been off of work due to their injury. This can be given a specific value,
and thus comes under the heading of special damage.
Pre-trial medical expenses are included under special damages, since they can be
quantified. It will be up to the claimant to demonstrate that their medical
expenses have been reasonable. This principle can be seen in Donnelly v Joyce.
Case in Focus: Donnelly v Joyce [1973] QB 454
The claimant was a six year old who involved in a negligently caused accident in
which he was run over by a seven-ton lorry, causing him a serious injury to his leg.
In order to carry out the specialised care that he needed, his mother quit her job.
Her lost wages were thus included in the claimant’s calculation of special
damages for medical care. The defendant disputed this, on the basis that the
mother’s care was being provided for free to the claimant, and thus should not be
included in damages.
The court rejected this argument:
“If she had not been available, the daily attendance of some qualified person
would have been needed during the six-months period, and there was no
suggestion that such attendance, if it had been paid for, would have cost less than
the amount of the mother's wages. Had it cost less, the ordinary principle of
mitigation of damages would have had to be considered.”

- Lord Justice Megaw, at 8.

Thus since the ‘reasonable cost’ was that of a nurse, and the mother’s lost wages
were less than this amount, the cost of the lost wages was recoverable.
This also demonstrates the compensation principle - whilst the claimant was
entitled to use a nurse and recover the cost, he did not, instead opting (‘opting’
used loosely, he was six years old) for the cheaper option of his mother’s care.
Since he was entitled to recover for his losses but not any more than that, the
relevant cost was the one he incurred, rather than the one he was entitled to.
Thus the maximum recoverable cost is that which is reasonable, or that which the
claimant incurred, whichever is less.
Claimants are not necessarily expected to be complete spend-thrifts, as long as
they can demonstrate that their choice of treatment is reasonable. Thus in Rialas
v Mitchel [1984] 128 SJ 704 the claimant received injuries which could have been
treated at a lesser cost if they had been institutionalised, instead opting to receive
treatment as home. This was regarded as reasonable, since the claimant was
simply seeking to live at home - something which would have happened had he
not received his injuries. What is reasonable for a particular claimant will depend
on their circumstances, and this can lead to some novel decision making. Thus in
Roberts v Roberts [1960] (The Times, 11 March) a Canadian claimant was injured
in France, and opted for treatment in New York. Since it was held reasonable for a
Canadian citizen to do so, this meant that the defendant was left paying
excessively high US medical cost, as opposed to the usually low English rates.
Notably, whilst the most obvious thing a claimant could do to mitigate costs
would be to opt for NHS treatment, the courts are instructed by statute to ignore
this option when considering whether the claimant’s behaviour has been
reasonable, as per s.2(4) of the Law Reform (Personal Injuries) Act 1948. This is
because NHS medical care is not free - to the contrary it is very expensive, but
that cost is simply borne by the government. Since in the grand scheme of things
tax-payers fund NHS treatment, the courts do not consider it to be a legitimate
means of treating a tortuously acquired injury, since that would simply involve
transferring the cost of treatment from the defendant to the tax payer. Thus
when considering whether a cost is reasonable, one should pretend (for a short
disquieting moment) that the NHS does not exist. Of course, a claimant who opts
for NHS care cannot then claim the cost of private healthcare - they are entitled
to claim for the medical costs they have borne, and if they have opted for free
healthcare, then they have borne no medical costs.
House help will often be necessary for those who have suffered a debilitating
injury - after all, a claimant’s position before their injury will usually be one in
which they can keep their house in a tidy manner and do various chores. Thus a
claimant can table the costs of help to accomplish these tasks under special
damages. Thus in Daly v General Steam Navigation Co Ltd [1981] 1 WLR 120 a
housewife was injured by the defendant and was awarded, in part, damages to
reflect the need to hire domestic help. It should be noted that it is common for
claimants to soldier on and perform their own domestic tasks - if this is the case, a
claimant will be able to recover general damages which take into account loss of
amenity and if performing such tasks causes pain, damages which account for
pain and suffering.
The law has developed a particular way to deal with situations in which outside
assistance (medical or domestic) is provided by family of friends. This is in order
to take account of the fact that often such help won’t be easily quantifiable (as it
was in Donnelly, where loss of wages provided the cost.) This method of
quantification can be seen in Evans v Pontypridd Roofing Ltd.
Case in Focus: Evans v Pontypridd Roofing Ltd [2001] EWCA Civ 1657
The claimant suffered from constant severe pain as a result of the defendant’s
conduct. His wife became his main carer, taking on the tasks analogous to those
of, at different times, a home carer and a residential carer. The courts
acknowledged the fact that it would be unjust to quantify familial caring at a
commercial rate, and instead stated that the number of hours of required care
should be determined, multiplied by the applicable commercial rate (cleaner for
cleaning, nursing for residential nursing), and then that amount reduced by 25%
to reflect the non-commercial nature of the care.
Whilst the court provided this method of quantification, it also noted that this
was not binding. Thus it can be held that whilst courts will certainly make an
effort to follow previous cases, they still hold authority to decide the appropriate
award in the case before them (much like contributory negligence calculations).

Personal expenses might rise as a result of injury. These can thus be claimed for.
Examples include additional heating for a claimant who becomes more perceptive
to the cold, as in Hodgson v Trapp [1989] AC 807, or a claimant who requires
special clothing, as in Donnelly (above), or must wash their bedding more often
due to increasing hygiene needs, as in Leong San Tan [1986] (unreported). It is
important to note that the defendant is only liable to the extent that the cost is in
addition to the claimant’s usual spending. Thus if a claimant would have spent
£100 on heating each month, and as a result of their injury now spends £110,
then the defendant is only liable for £10 each month.
Finally, the claimant might have suffered easily quantifiable property damage - a
car smashed to piece in an accident, or a coat destroyed in a fire. These damages
are as much subject to the mitigation principle as any other - thus the courts will
take a dim view of a claimant who suffers a small dent in a car crash but then
decides that the car is totalled and sells it off to a scrapyard.
It is worth noting that claimants will often look to expert evidence in order to
argue why their behaviour or needs are reasonable. Thus a doctor might be
consulted as to reasonable treatment needs, or an insurance company as to the
value of a destroyed car. Similarly, a defendant might bring their own expert to
argue that the claimant has acted unreasonably, in order to reduce the award of
damages.
General Damages
General damages are those which cannot be quantified at the time of trial, and
instead are more prospective in nature. The court will ask the claimant to
demonstrate what their likely future costs and losses are likely to be. Many of
these damages will blend into the special damages discussed above; for example,
a claimant who has already incurred lost earnings or needs nursing help may well
need this help after the trial. Some injuries are lifelong, and thus will have a
lifelong cost. These are far more difficult to quantify accurately. Take, for
example, one of the simpler extra costs - a claimant needs an adapted car to help
cope with an acquired disability. This car will need to be replaced every so often -
but thanks to inflation and the resale market it is difficult to say how much the
replacement will cost in 20 years’ time. The car might require extra fuel above a
normal car, which means that damages will need to reflect that - but there’s no
telling what the oil market will do. Thus the proper calculation of general
damages is not exactly easy. It should be noted that all of these calculations will
involve hypothetical assessments of an individual’s remaining lifespan, which in
itself is precarious - there is every possibility that a claimant might be awarded a
lump-sum reflecting of an 80 year lifespan, and then get hit by a bus the very next
day.
Future loss of earnings forms a substantive part of general damages. Sometimes
this will be easy to quantify - so if a claimant will be off work for a month, they will
be able to recover their net earnings (e.g. minus tax and national insurance).
However, some injuries might affect a claimant’s lifelong ability to work. A
claimant who cannot work at all will be able to recover their earnings for the
length of their future career, up until a likely retirement date. Sometimes a
claimant will be prevented from carrying on with their current career, but will be
able to undertake some other sort of work. In these situations the mitigation
principle is important - a claimant will be expected to mitigate their loss of
earnings by taking on another job. Thus the relevant loss of earnings total will be
what the claimant would have earned, minus what they will be able to earn
regardless of injury. Of course, claimants don’t have to work, but the court will
imagine that they will in calculating their damages; in other words, claimants are
expected to mitigate their future losses. A claimant cannot argue that a particular
line of work is below them - this simply doesn’t chime with the equitable practice
of law. However, it might be that through over-qualification a claimant won’t be
accepted to certain unskilled work. Nevertheless, the claimant must demonstrate
this fact by applying for such jobs and bringing the subsequent failed job
applications as evidence (or else show in some other way that they are prevented
from working).
Promotions create a significant difficulty: a claimant who can only work 20 hours a
week instead of 40 might have their promotion opportunities curtailed, and since
promotions can beget promotions, damages will have to take into account not
only how much money an individual might earn over their career, but also how
quickly their earnings might be ramped up as a result of promotion. As long as the
claimant can show to the court that they were on a career ladder of sorts (which
they were likely to ascend) they will be able to claim higher damages to reflect
career advancement, as in Brittain v Garner [1989] (The Times, 18 Feb).
Future medical expenses also come under this category, since they will often be
speculative (nobody knows what treatment might become available in 20 years’
time, after all). The mitigation principle applies here as elsewhere, so the claimant
will have to argue that they are intending to pay for a reasonable course of
medicine. Thus in Lim Poh Choo v Camden and Islington AHA [1980] AC 174 the
claimant, who was injured in a medical malpractice incident, was being cared for
by her mother in Malaysia. It emerged that her mother was becoming increasingly
infirm, and so the claimant was able to care for the private British healthcare that
she would foreseeably require. Again, the ‘no-NHS’ principle applies here, but the
claimant will still need to argue that they will be using private medical facilities,
rather than the NHS. This argument is not difficult to make, however; thus in
Woodrup v Nichol [1991] PIQR 104, the claimant’s ‘proof’ that they would use
private healthcare included a desire to use the consultant of their choice, a desire
to make their own scheduling decisions (rather than relying on appointments as
given by the NHS), and a desire to benefit from medication and techniques as
they became privately available (rather than having to wait for such things to be
made NHS-available). Since these arguments could be applied to just about any
person, it appears it is not difficult for a claimant to show that they will be seeking
the benefits of private medical care.
It is important to note that just because an activity might help with a negligently
acquired injury, this does not mean that it can necessarily be wrapped into
damages - it must be demonstrated that the activity is an additional cost. Thus if a
claimant regularly went hillwalking before an injury, and then intends to go
hillwalking after a leg injury to rehabilitate it, they will not be able to claim for any
costs (this principle can be found in Cassell v Riverside Health Authority [1992]
PIQR Q168). Similarly, rehabilitation activity must be undertaken in a reasonable
manner. Thus in Robshaw v United Lincolnshire Hospitals NHS Trust [2015] EWHC
923, it was held that the claimant’s need for hydrotherapy could not be met by
travelling to a local pool, and that a cost of a small pool was reasonable. In
contrast, the court noted that if such a need could be reasonably met in a cheaper
way, that element of the claim would fail.
Pain and suffering are a general damage, since they cannot be quantified in an
exact manner. Their exact calculation will depend on the claimant and the
manner of their injury. It should be noted that pain and suffering is subjective. An
example of this thinking can be seen in H West & Son Ltd v Shepherd [1963] UKHL
3, at 1: “In the ordinary case of a man losing a leg or sustaining a permanent
internal injury, he is entitled to recover in respect of his pain and suffering: if he is
fortunate in suffering little pain he must get a smaller award.” It should be noted,
however, that the courts will not consider economic or social position to have a
bearing on this category, as per Fletcher v Autocar and Transporters [1968] 2 QB
322. This category also includes psychiatric harm, as per James v Woodall
Duckham Construction Co Ltd [1969] 1 WLR 903, but in keeping with tort law’s
approach to psychiatric injury, does not include mere sorrow or grief, as per Kralj
v Kaye [1986] 1 All ER 54.
Loss of amenity is also a type of general damage, referring to the physical
impairments (and loss of ability to undertake activities) that can occur as the
result of an acquired injury. This definition can be found in H West & Son Ltd v
Shepherd [1964] AC 326:
“There are two views about the true basis for this kind of compensation. One is
that the man is simply being compensated for the loss of his leg or the
impairment of his digestion. The other is that his real loss is not so much his
physical injury as the loss of those opportunities to lead a full and normal life
which are now denied to him by his physical condition— for the multitude of
deprivations and even petty annoyances which he must tolerate.”
- Lord Reid, at 1.
Whilst Lord Reid later comes down in favour of the ‘real loss’ definition it
effectively encompasses the first. Thus loss of amenity is based on working out
what exactly the claimant has lost out on. This is not a matter of including every
possible lost opportunity, otherwise loss of amenity would be nearly infinite, but
instead is one of asking which activities that the claimant was likely to have
engaged in are now unavailable to them. This means that an extremely active go-
getter will usually have a greater claim under this head of damages then a
sedentary shut-in. Examples of such losses include loss of ability to fish, as per
Moeliker v A Reyolle & Co Ltd [1977] 1 All ER 9, disfigurement in Oakley v Walker
[1977] 121 Sol Jo 619, or loss of senses in Cook v JL Kier and Co [1970] 1 WLR 774.
Exam Consideration: In reality, it will be impossible for a claimant to draw up a list
of every single one of their ‘lost’ activities. In a damages problem question, it will
be your job to infer from the facts what the claimant is missing out on as a result
of their injury. Be comprehensive, but not excessive or fanciful.
Nominal Damages
Nominal damages are a small financial award (sometimes as low as £1) awarded
when a claimant’s rights have been infringed, but little to no harm has occurred.
They are often awarded alongside an injunction (which solves the problem the
claimant is attempting to deal with). Consider: a defendant fly-tipping a fridge in
your garden might be annoying, but what you really want is the fridge moved;
there is little quantifiable damage. Of course, aggravated or serious attacks on a
claimant’s rights will result in higher (and thus non-nominal) awards of damages,
as per Alexander v Home Office [1988] 1 WLR 968.
Contemptuous Damages
Where the courts are of the belief that a claim technically has legal merit, but
little moral merit, then they will award contemptuous damages to the claimant.
This is often as small of an amount as possible - as low as 1p. Consider a case in
which a claimant has fly-tipped an empty packet of crisps into your garden. A
lengthy might find you in the legal right, but this would also be a sure way to
annoy a judge! Contemptuous damages can be seen in Reynolds v Times
Newspapers [1998] 3 WLR 862 - the first two courts awarded the claimant 1p of
damages (and the third ultimately found for the defendants). It should be noted
that the issue of costs can mean the defendants still have to pay more that the
single penny, but at the same time a court which believes a claim to be frivolous is
likely to be equally harsh on the claimant when taking their costs decision.
Aggravated Damages
Aggravated damages are those reflecting the fact that a case has been aggravated
by one factor or another, usually for humiliation or distress caused to the
claimant. This can be seen in Appleton v Garrett.
Case in Focus: Appleton v Garrett [1996] 5 PIQR P1
The defendant dentist provided unnecessary dental surgery to young patients
(without telling them it wasn’t needed), for the purpose of profit. The claimants
then sued for trespass to person, arguing for aggravated damages on the basis of
anger and indignation felt by the claimant. Whilst previously such damages had
been limited to situations involving distress of humiliation, the court saw fit to
extend this category to those emotions felt by the claimants in the case at hand
(citing, nothing less than the principle of common sense!).
Thus aggravated damages allow the court to take account of abstract injury to the
claimant’s feelings (as long as the claim itself is based on something more
concrete).
Exemplary Damages
Exemplary damages are similar to aggravated damages, but rather than stemming
from injury to the claimant’s feelings they stem from the defendant’s own poor
behaviour, with the aim of making an example of their conduct. This can be seen
in Thompson v Metropolitan Police Commissioner.
Case in Focus: Thompson v Metropolitan Police Commissioner [1998] QB 498
The claimant was arrested for a drink driving offence. When being placed in a cell,
excessive force was used - the claimant had hair pulled out, and suffered bruising
and pain. She brought a case against the police for this. The involved police
officers fabricated a false ABH charge against her as a means of defending against
the claim, inventing evidence against her. Due to this corrupt and unjust action,
the judge awarded the claimant additional damages for her claim in order to
make an example of defendant action.
Payment
Originally, the only option open to the courts was lump sum payments at the time
of the judgement. This would lead to issues where claimants’ medical prognoses
were highly variable - so a claimant might have a negligently acquired injury
which might get better or worse. In acknowledgement of this issue, The Damages
(Variation of Periodical Payments) Order 2005 was passed, which allows the court
to rule that damages should be paid periodically, and then reviewed upon the
deterioration or improvement of the claimant’s injury.
Although there was a point at which certain judges would award extra damages
to account for inflation, this is now not the case. It is assumed that claimants will
have the foresight to invest or save their lump sum in a way which will deal with
inflation (via interest rates or similar).
Injunctions
An injunction is a declaration by a court that the defendant must behave in a
certain manner. They come in two main forms - prohibitory, in which a claimant is
prohibited from doing something and mandatory, in which the defendant must do
something. As well as being either prohibitory or mandatory, injunctions will be
either quia timet, final, or interim.
Injunctions are a matter of court discretion. Whilst damages are available to
claimants in all eventualities (as long as they have a valid case), injunctions are an
equitable remedy, and thus whether they are granted depends on the will of the
court. Their use tends to be limited, since they involve essentially overriding the
will of an individual or organisation - something the court attempts to avoid,
where possible.
Prohibitory Injunctions
Prohibitory injunctions are useful to prevent the interference with a claimant’s
rights: so an order that a newspaper cannot publish confidential information, or
one that states that a building site cannot operate at night, for the benefit of local
residents. The tendency is to grant an injunction where there is a good chance of
the tortious behaviour being repeated. Thus in Wollerton and Wilson Ltd v
Costain Ltd [1970] 1 WLR 411, the defendants’ crane regularly trespassed onto
the claimant’s land. There was little actual harm, and so an award of damages
would be so low that the defendant could pay them and then carry on with their
trespass behaviour. Instead, an injunction was used to prevent the behaviour
from reoccurring.
The courts won’t always grant an injunction if the tortious behaviour is trivial, or if
the defendant is not at fault. This can be seen in Armstrong v Sheppard and Short
Ltd.
Case in Focus: Armstrong v Sheppard and Short Ltd [1959] 1 QB 384
The defendant came to the claimant and asked his permission to build a sewer
and manhole cover at the rear of the claimant’s property. The claimant thought
the land belonged to the defendant, and granted permission. When he discovered
that he actually owned the land, he came to the court for an injunction
prohibiting the trespass onto his land, despite it causing no inconvenience to him.
The court rejected the application for an injunction. The interference was trivial,
and the claimant had effectively consented to the trespass, meaning that the
defendant could not be described as being at fault.
Mandatory Injunctions
Mandatory injunctions tend to be rarer, firstly because cases tend to arise more
often from people doing something they shouldn’t (so call for prohibitory
injunctions), and secondly because mandatory injunctions involve a greater level
of interference with the defendant. This can be seen in Redland Bricks Ltd v
Morris.
Case in Focus: Redland Bricks Ltd v Morris [1970] AC 652
The claimants (Morris) and defendants (Redland Bricks) were neighbouring
landowners. The defendants ran a quarry, and their activities caused subsidence
in the claimants’ land, which was used for market gardening. It was predicted that
this subsidence would continue, making the claimant’s land unsuitable for
gardening. The trial judge granted a mandatory injunction against the defendants,
ordering them to take action to remedy the subsidence problem. The defendant
then appealed this injunction.
The court allowed the appeal against the injunction - the cost of dealing with the
subsidence was £35,000, and part of the claimant’s land that required protection
was only worth £1500. Damages were applied instead. The court identified four
criteria which should be satisfied before a mandatory injunction would be
granted.
Firstly, there must be a strong possibility of damage occurring in the future - in
other words, there must be some utility to the injunction.
Secondly, damages must be an insufficient alternative. There are situations in
which money cannot solve a problem, or in which the level of damages would be
disproportionally high when compared to an injunction.
Thirdly, the defendants must have behaved unreasonably. The court won’t seek
to interfere with reasonable behaviour.
Fourthly, the injunction must be capable of describing exactly what the defendant
should do. Thus injunctions cannot have vague ‘goals’ for the defendant to
accomplish; they must specify the expected behaviour (else enforcement
becomes complicated and potentially unjust).
Further Injunction Subtypes
Injunctions can also be divided up into three groups, depending on when a
tortious event is likely to occur: quia timet injunctions, final injunctions and
interim injunctions.
Quia timet (‘because he fears’) injunctions are used when the claimant fears a
tortious action will occur, but it has not yet taken place. They are often seen in
situations in which the tortious action will do irredeemable damage if it occurs,
such as defamation and privacy cases (once the information is out there, the
genie cannot be put back into the bottle.) The prerequisites which must be
fulfilled before they are granted were also mentioned in Redland Bricks: there
must be evidence that the defendant is intending to take an act; that act must be
one which will cause significant irreparable damage to the claimant; and there
must be evidence that the defendant will not desist unless a quia timet injunction
is granted.
Final injunctions are simply those which are granted after a tort has been
committed, but where it is likely that the tort will reoccur. This might be an order
to stop holding noisy warehouse parties, or an order to stop a series of threating
phone-calls.
Interim (or interlocutory) injunctions apply whilst the tortious activity is ongoing
(or else where there is a high chance of it reoccurring in the near future). They are
used primarily as a means of stopping a defendant from acting in a certain way
whilst the matter is resolved by the courts, especially where the behaviour would
we highly detrimental if it were allowed to go ahead (see privacy, defamation). By
definition, they are temporary. Their use is particularly restrained, since they are
essentially a remedy which is applied before a case has been properly heard. The
criteria for an interim injunction are found in American Cyanamid v Ethicon.
Case in Focus: American Cyanamid v Ethicon [1975] AC 396
Both the claimant and defendant companes manufactured surgical sutures. The
claimants alleged that the defendants were breaching a patent that they held,
and thus came to the court for an interim injunction whilst the patent dispute was
resolved. The court laid down a two part test to be met before an interim
injunction could be granted.
The first part of the test involved the claimant showing that the issue at hand was
serious enough to warrant an interim injunction - so interim injunctions will not
be granted in trivial situations.
The second part of the test involves the claimant demonstrating that, on the
‘balance of convenience’, it would essentially be more sensible for the court to
grant the interim injunction. The claimant will be arguing that the damage they
will incur whilst waiting for the proper trial to be completed cannot be easily
remedied with damages if their case is successful. The defendant will be arguing
that this is not the case, and that the court shouldn’t risk applying an injunction to
the behaviour of a possibly innocent party. If the court regards both sides’
arguments as being balanced, they will opt in favour of the status quo (i.e. the
defendant will be able to carry on).
Equitable Rules
Since injunctions are an equitable remedy, they are affected by the principles of
equity law. Whilst such a wide topic cannot be covered here, there are three rules
it is useful to know. Firstly, equity does not act in vain. Thus injunctions will only
be provided if they are practical, and can be implemented effectively. Secondly,
equity looks poorly upon delay. So if it is held that a claimant has delayed in
bringing their claim, the court are less likely to grant an injunction. Thirdly, equity
looks for claimants with clean hands. Thus claimants must have acted fairly in
order to benefit from equity. This can be seen in Armstrong: the claimant was
held to have acquiesced to the tortious act.