UNIVERSITY OF ZAMBIA SCHOOL OF LAW

NAME: LUYANDO KONDWANI SIANJANI

LPR2930 RESEARCH
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 authoritative).

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, as long 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.

Reference article1

1
All Answers ltd, 'Defamation, Libel, and Slander Lecture' (LawTeacher.net, August 2023)
<https://www.lawteacher.net/lectures/tort-law/defamation/?vref=1> accessed 15 August 2023
Occupiers' Liability2

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’

2
All Answers ltd, 'Occupiers' Liability Lecture' (LawTeacher.net, August 2023)
<https://www.lawteacher.net/lectures/tort-law/occupiers-liability/?vref=1> accessed 15 August 2023
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.
Vicarious Liability3

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.

3
All Answers ltd, 'Vicarious Liability Lecture' (LawTeacher.net, August 2023)
<https://www.lawteacher.net/lectures/tort-law/employers-liability/vicarious-liability/?vref=1> accessed 15
August 2023
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.
Defences and Limitation of Liability4

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!).

4
All Answers ltd, 'General Defences in Tort Law Lecture' (LawTeacher.net, August 2023)
<https://www.lawteacher.net/lectures/tort-law/general-defence/?vref=1> accessed 15 August 2023
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).
 REFERENCE PAGE

All Answers ltd, 'Defamation, Libel, and Slander Lecture' (LawTeacher.net, August 2023)
<https://www.lawteacher.net/lectures/tort-law/defamation/?vref=1> accessed 10 August 2023

All Answers ltd, 'Occupiers' Liability Lecture' (LawTeacher.net, August 2023)

<https://www.lawteacher.net/lectures/tort-law/occupiers-liability/?vref=1> accessed 11 August
2023

All Answers ltd, 'Vicarious Liability Lecture' (LawTeacher.net, August 2023)

<https://www.lawteacher.net/lectures/tort-law/employers-liability/vicarious-liability/?vref=1>
accessed 14 August 2023

All Answers ltd, 'General Defences in Tort Law Lecture' (LawTeacher.net, August 2023)
<https://www.lawteacher.net/lectures/tort-law/general-defence/?vref=1> accessed 15 August
2023