Lecture Notes Law of Tort

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Lecture notes, Law of Tort
Law Of Tort (King's College London)
Distributing prohibited | Downloaded by Bernhard Osmann (osmann88@byom.de)

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Intro
September-22-14 8:09 AM
What is it?
- Civil wrong
Civil: against private persons (as opposed to public, which is taken care of by criminal
law)
Legal wrong against another legal person (companies)
- Tort v Criminal Law
Looks similar because certain actions that are crimes are also torts
Driving+texting+running someone over
Theft, battery, trespass/breaking and entering, etc
Criminal law doesnt grant individuals rights (state prosecutes, not individuals)-in tort
the individuals affected can actually sue
- Wrongdoing:
Rights and Breach of Duty 2 sides of the same coin
Duty not to hit you
Right not to be hit
Must coexist for jurisdiction inside tort law
Sometimes the law imposes a duty where there is no right, this is not
tort law
- Only holder of right can sue
Defaming lady gaga, and company that holds right to use lady gaga's name in shoes loses
money
Lady gaga can sue but company can't because the company cannot say that it has
a right for Lady gaga not to be defamed
Contract vs Tort
- Contractual rights are entered into voluntarily outside of tort
- Tort laws are given to everyone (intrinsic rights)
Morals
- Strong moral language in discussion of torts
Separate moral rights/legal rights
Woman used to be husband's property, adultery used to be tort of trespass
Some examples of protected interests (Torts protects interests, usually begin discussion about why
this tort exists by first discussion the interest it tries to protects)
Physical integrity (battery, assault)
Personal property (conversion)
Liberty (false imprisonment)
Compensation
- Partly true-but many losses we suffer aren't covered
- Tort only covers wrongs that are prescribed under tort law
Damages-> compensation
Injunctions: not compensation
Why do we have it?

- Corrective justice: between 2 individuals who are part of an interaction
Compensating for wrongful harm by wrongdoer
- Distributive justice: social justice
Only works for accidents
Person hold liable is insurance law
Firms all pay for insurance together as a pool
Unlucky firm pays for law firm by taking money out

Lecture Notes Page 1
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Unlucky firm pays for law firm by taking money out

- Empower through recourse
Victim wants to make D pay
Criminal law prevents V from enacting straight up revenge
Tort law gives a chance to directly enact revenge
Personal reaction

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Intentional infliction of Emotional Distress

October-01-14 12:43 PM
Negligence
- Seems now the prevailing law
Wilkinson v Downton [1897]

- Wife told husband is dead in jest
Convicted
Seems mostly absorbed by negligence (Defendant was negligent to the victim)
Harassment
- Protection from Harassment Act 1997
Civil/criminal sanctions
Serious enough to constitute a crime
Claimant: individual victim
Sec. 1 (1)
Elements
Alarming or causing distress
Oppressive and unacceptable
Majorowski v Guys & Thomas
Oppressive or unacceptable: constant abuse sufficient
Unattractive/unreasonable not enough
Thomas v News Group
Newspaper wrote articles about person who complained
to police HQ and got two police officers fired
Lots of complaints and threats against that person
Court decided articles individually do not amount to
harassment
Fairly high threshold
Ferguson v British Gas
B Gas sends F letters telling her she hasn't paid, but she
has and is no longer with the company
Judge said a reasonable jury could convictn
Course of conduct
Closer time between actions=more likely to be tort
Objective standard of knowledge S.1(2)
Threshold reasonable person
No thin-skull rule
Exceptions
S.1 (3)1
If actions are pursued for preventing/detecting crime
Pursued under any enactment or rule of law
That in the particular circumstances the4 conduct was reasonable


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Trespass to the Person

September-28-14 2:21 PM
Intentional interference with the person
Trespass and harassment

- Trespass to the person
Assault
Battery
False imprisonment
- Protection from Harassment Act 1997
- Equality Act 2010
- Violation of personal integrity
Historical Foundations
-

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Historical Foundations
Writ of trespass (protected personal interests, land, goods)

Must prove 2 things
- Vi et armis (direct violence and injury)
- Contra pacem (breach of peace)
Remedy was damages
Action per se
- All you needed to prove was the two occurred
- No need for intention, harm, etc
- No need to prove consequence of trespass
Butproblems!
- Lots of cases not covered
Many trespasses do not occur with vi et amis, no direct application of force
Lots of accidents without direct force
Time passes before force is applied
Carelessless (negligence)
- So, a new type of trespass: Trespass "on the case"
Indirect/inconsequential injury (prove losses), no vi et amis, etc
Must prove special case, prove damages, not actionable per se
Special cases where D acted wrongfully (negligent)
Prescribed conduct for interactions
Standard of conduct specific to each case (blacksmiths, carriage
drivers, etc.)
Moving towards general negligence/duty of care standards
So two types of-when does one sue for trespass and when does one sue for case?
- Reynolds v Clarke
- If one throws a log and hits someone on the face, it's trespass
- If one throws a log on the road and someone trips it over after a while, it's case
- Main difference is no direct application of force
- Judicature Acts 1873-5
- Direct/indirect causation abolished
Shifts focus on distinction between intention and negligence
Main differences between Trespass and Case
Trespass Negligence (Case)

Intention Y N
Directness Y N
Per se Y N
Proof of damage N Y
Intention
- Intention to perform acts that constitute a tort or to bring about consequences that constitute
a tort
- Need not intention for consequences for tort, e.g. harm/injury
- Includes knowledge of substantial certainty
Causal consequence/action must not be crazy
3 taps to bring down the roof
Objective certainty/probability of consequence is enough
- Don't confuse motives with intentions

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- Don't confuse motives with intentions

Jailbreak with bomb
Criminals know bomb can kill guard
- Transferred intent
- Same as criminal law
If nature of tort same, then can transfer
If different, cannot transfer

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Battery
Requirements
- Intentional (positive act)-not omissions
R v Santa Bermudez
Positive act
- Directly resulting in
- Unlawful
- Contact/touching/application of force
Every part of a person's body is inviolate, including clothes
Can apply force with tools
Scott v Shepherd [1773]
Firecracker thrown, hits person, sued
DDD v K1 WLR 1067
A put acid in hand sanitizer, person got burned
Although force was not immediate, it was directly applied to victim's body
(no requirement for instantaneous application of force)
- With another
Should we skip directness requirement?

- Intentional
To do what?
Unlawful contact/touching, not injury!
Wilson v Pringle [1987]
Unlawfulness
- Touching in "anger"
Cole v Turner
- Absence of consent
- Re F: F v West Berkshire Health Authority (1990)
Not generally acceptable in the ordinary conduct of daily life

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Assault
Elements
- To intentionally
- Cause by a direct act
- Reasonable apprehension of
No need to intend for apprehension by victim
- Imminent infliction of
- Unlawful force
No actual infliction need occur
Apprehension
- Objective standard for reasonableness
1. Must prove apprehension-not fear (afraid)
2. No thin-skull rule here: objective!
i. However, If D was aware of frailty, then it is a tort
Imminent threat of battery

- Tuberville v Savage
If it weren't forI would hit you
Conditional language not sufficient for imminent requirement
- R v Ireland
Requirement of imminency relaxed
Calling/not speaking is an action
Court said this is imminent
"all depends on facts"
Assault Battery
Throw Water at someone If any drops land on them
Riding horse at person Riding a horse against person

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False imprisonment
Elements
- Unlawful
- Intentional detention of another
- Directly resulting from
- A positive act
Interests protected
- Liberty, freedom, personal autonomy
Detention: actual restraint required

- Prison may be large or narrow, visible or tangible, or, though real, in conception only, it may
itself be moveable or fixed but a boundary it must have done, and that boundary the party
imprisoned must be prevented from passing
Bird v Jones
Must be confined on all sides
Intention
- Intention to perform action that causes the imprisonment
Need not intend for the person to be imprisoned
- Iqbal v POA
Police officers go on strike and do not let prisoners out of their cells as per routine
Prison guards win appeal
One reason used was that the prison guards didn't intend for the prisoner's
perpetual imprisonment
Another reason was that there was no positive act
Prolonged action?
- Assuming Iqbal's reasoning stands, there would now be a requirement for intention
Can still sue for negligence if you stayed in a museum and got accidentally locked in
Directness
- Davidson v CC of North Wales
Students in store, thought to be stealing but weren't
Store detective told police who came to take them away
Students sue store detective for causing them to be falsely imprisoned
Court held not liable
Claimant said police was a tool used by the detective, and detective was
main actor
Defendant said police held agency and that it was their call
Scott v Shepard
Agency is a big factor in determining directness
No requirement for you to be aware of your false imprisonment

- Sleeping when someone locks, then unlocks the door
Focuses on right
US, youm ust be aware
Practical exercise of right

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Defences
Consent
- Capacity
Ability to understand circfumstances and implications of proposed interference
When consent is vitiated
No full knowledge of material facts
Chatterton v Gerson 1981
Claimant must know broad terms of nature/risk
Focus on knowledge of claimant, not on what knowledge was
conveyed
What was known not what was given
Consent to what?
Blake v Galloway 2004
No need to consent to specific injury but risk of injury
Fooling around and get hit in the eye
Risk of that happening, consent!
Material facts
Motives
KD v Chief Constable of Hampshire
Rape victim consoled by police who didn't have to under
regulations, but did so to get closer to the victim
Police says she consented
Court rules she did not consent to the police's
motivations, so police did commit tort
Identity
R v Richardson 1999
Fake dentist does operation
What about HIV/im rich, have sex with me cases etc?
Duress
- Latter v Braddell 1880
Must be threat of physical force
Pressure for maid to undertake physical examination
Economic/authoritative duress not sufficient
Fraud
- Information withheld
If info is withheld in bad faith, it is automatically material
Chatterton v Gerson
Withdrawal of Consent
- Must give reasonable time to stop
Hard v Weardal Steel Cole 1915
Self-Defence
- Response must be proportionate
Cross v Kirby 2000
Private necessity
- Not like in criminal
- To perform unlawful act to prevent greater harm
Party t4respassed may not be source of threat
I destroy your burning house to save my own, though fire may have originated

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I destroy your burning house to save my own, though fire may have originated
elsewhere
- Rarely allow personal harm
Re S 1993 Fam 123
St. George Health Care v S 1999 Fam 26
Mother/fetus and conjoined twins cases are exceptions
Can kill one to save the other without consent, etc
Why are these cases special?


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Trespass to Land
October-08-14 11:29 AM
Elements
- Corsses boundary onto land
- Possessed by b
- When he has no lawful justification for doing so
- Or if eh causes some object or matter to move directly onto land possessed by B
When he has no lawful justification for doing so
- Must prove trespass was direct result of A's actions
Not if this was an indirect consequence
Not a consequence
Or he had lawful justification
Conduct requirements
A. Physical movement
a. Smith v Stone
i. Being carried onto land forcefully not trespass
ii. Would be trespass if done so under duress
b. Braithwaith v South Durham Steel Co.
i. If it was a leap of instinctive panic, then no trespass
B. Inanimate Objects
a. Direct vs indirect result of D's actions
i. Degree of D's control over the movement of the thing
1) If D throws a rock over the boundary it is direct
2) If D releases toxic fumes somewhere else that float to the land it is indirect
a) Also indirect if person loses control of car and it crashes onto land
b. Direct/indirect not intentional/unintentional
i. D hits ball intending it to stop just before land of C, but it goes beyond
1) Unintentional, but still direct
ii. Conarkent Group v Network Rail Infrastructure
1) If a driver attempts to drive his truck under a bridge thinking that its height
was adequate but it wasn't and he crashes into bridge, he is liable for
trespass
a) Not intentional, but direct
c. Animals
i. Hard to determine because animals harder to control
1) Not necessary to determine sometimes
a) Strict liability for damage caused by livestock on another's property
b) Therefore mostly regards to animals that are neither livestock or
dangerous animals
ii. Buckle v Holmes
1) Cat killed chicken on another's land
2) Held that cat belonged to class of animals not generally confined and
unlikely to cause substantial damage on straying
a) Not a tort if cat strayed onto someone elses land and causes damage
b) Would be tort if owner sent cat
iii. League against Cruel Sports v Scott
Park J: master of hunt would be liable for tort of trespass if he is negligent in
preventing them to do so
Hard to reconcile with Buckle v Holmes
Intention and Fault
- C does NOT have to prove that D
Intended to trespass on land possessed by B when crossing the boundary
When D crossed the boundary he knew or ought to have known that there was a risk he

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When D crossed the boundary he knew or ought to have known that there was a risk he
would be trespassing on C's land
- Honest mistake is no defence.
Defences
-

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Defences
License (consent)
- No trespass if C gives D a license
Trespass if he stays beyond term of license or
Fails to leave when license withdrawn
Some licenses are under contract
Distinguish between cases where withdrawal of license is breach but still
effective and others when it is ineffective
Necessity
- Esso Petroleum v Southport Corporation
D dumped oil that ran onto C's land because they were about to capsize
However, defendants would not be permitte4d to rely on defence if predicament
was result of their own negligence
Only available during immediate danger/emergency
- Southwark LBC v Williams
Did not stretch to cover homeless people who made orderly entry into empty property
Vincent v Lake Erie Transportation Co

- American case
- Sometimes even though the actions are necessary, it does not mean that D should not pay for
damages caused

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Title to Sue
C can sue if he was in possession of land at time of alleged trespass

- Legal concept, not simple physical occupation.
JA Pye Ltd v Graham

- 2 elements necessary for legal possession
Sufficient degree of physical custody and control (actual possession)
Intention to exercise such custody and control on one's own bhehalf and for one's own
benefit (intention to possess)
Owner of land is in possession of land unless evidence to the contrary

- However, if tenant moves onto premises then he has exclusive possession and can sue for
trespass
- Licensee can sue depending on terms of license
D cannot claim higher legal right to land in someone other than C as defence
Unless he had permission from higher authority
Nicholls v Ely Beet Sugar Factory
The sky?
- Anchor Brewhouse Developments v Berkley House
Overhanging cranes, etc
Deprivation of enjoyment of land required
The land?
- As deep as humanly possible-not required for deprivation of enjoyment of land
Bocardo SA v Star Energy UK

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Remedies
Compensatory damages for losses occurring from trespass

- Reasonably forseeable losses only
Exploding car problem
D parks car into reserved parking building, car explodes and damages building
Reasonably forseeable losses? Or losses directly cause by his trespass?
Will depend greatly on state of mind

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Nuisance
- Show actual harm

- Indirect interference with rights of land
Lesser form of intrusion
Necessary to show damage
Examples
- Noise
- Odours
- Fumes
- Flooding
- Encroachment by vegetation/soil
- Fire
Often called "environmental tort"

- Much covered by statutes/planning law
Environmental Protection Act 1990
Public/Private law controls

- Mostly public controls work
Lots of times private law has to come in
Cambridge Water
Less need for common private law nuisance
considerations due to increased statutes
Barr v Biffa, Coventry v Lawrence
Why should public law cut down private law
rights?
Public nuisance
- Primarily a common law crime
Nuisance that materially affects the reasonable comfort and
convenience of life of a class of the public within sphere of
its operation
Obstructing highways, selling food unfit for human
consumption, etc.
Actionable in civil cases only when one can demonstrate
losses suffered above normal people's suffering
Private nuisance
- Coventry v Lawrence
Interference is indirect
- Hunter v Canary Wharf
3 types of private nuisance
Encroachment on a neighbour's land
Direct physical injury to neighbour's land
Interference with a neighbour's quiet enjoyment of his
land
Reasonable user principle
- Cambridge water v Eastern Countries Leather
Objective interpretation of "reasonable" in facts
What level of interference can C be reasonably expected to
put up with?
Irrelevant that D is acting in good faith (all steps taken
to reduce interference)

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to reduce interference)
Sometimes looks like strict liability
Irrelevant C's subjective perception of his own
endurance of interference
Objective standard!

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Emanation Cases
Where something has emanated onto the claimant's land

- 2 causes of action
Reduced amenity value of land
Physically damaged the land
Reduction of amenity value

- Making whatever the amenity was made to do harder to do
Noise in house, house meant for enjoyment, harder to enjoy with noise
- Not necessarily lowering of price
Can be temporary and then restored
- St. Helen's Smelting v Tipping
If it interference causes "sensible personal discomfort"
Just a guideline, not exclusive
Alkali factory causes direct interference
Damage suffered, neighbourhood characteristics irrelevant
- Hunter v Canary Wharf
Canary wharf tower interfered with television reception
People with no proprietary interest in land affected
Court ruled television interference not nuisance, interest in property required for
action
Recovery cannot be increased simply due to fact that more people suffered
Only take into account size, commodiousness and value of property
- Dobson v Thames Water Utilities
Where C has not been inconvenienced but there still has been emanation that could
potentially inconvenience, only nominal damages
Self ridge
- Hotel-C not present, not directly affected, but his guests are so still has right to sue
Physical Damage to land

- Obvious: debris falling on and breaking stuff on C's land
Debris intermingling with C's land to reduce value also damage
Hunter v Canary Wharf
Dust mingling with carpets
- Damage to chattel on land?
Dog Whistle Problem
Only when reducing chattel you reduce the value of land itself as wel
Personal injury
- Suffering personal injury does not affect land, no nuisance
Acid smoke goes onto C's land and blinds her, no action because land unaltered

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Reasonableness
Reasonableness of interference depends on 5 factors

- Intensity
- Duration
- Character of neighbourhood
- Special sensitivity on part of claimant
- Malice on part of defendant
Intensity
- How loud is the noise? How intense of the fumes?
Kennaway
Boatclub that used lake for watersports, boat engines improved over years and
became noisier
Duration
- Time of day that interference occurs
Halsey v Esso Petroleum
2pm OK, 2am not OK
- Frequency
Barr v Biffa Waste
- One-off event amount to nuisance?
In some appropriate circumstances, yes
Crown river cruises v Kimbolton Fireworks
Fireworks debris falls on boat just once, considered nuisance
Temporary events usually reasonable
Harrison v Southwark and Vauxhall water
- Need for a link to "continuing dangerous state of affairs"
British celanese v Hunt
Geese flies into generator and causes nuisance
Could have done so before, this was always a possibility, dang. situation
Character of Neighbourhood
- Sturges v Bridgeman
What an nuisance in Belgrave is not the same in Bermundsey
- Exception
St. Helens Smelting v Tipping
Alkali factories bult near estate
Damage to crops, trees, cattle on estate
D says alkali fumes character of neighbourhood
Court
If material injury to property suffered, then character of neighbourhood
discounted
- Should defendant's own activities contribute to character of neighbourhood?
Coventry v Lawrence
What if the environment was a little less noxious?
Special sensitivity of C
- In principle is irrelevant
Robinson v Kilvert
C and D rent property in same building
D made boxes in basement and needed heat
C was paper merchant whose paper got destroyed because of heat
Court ruled that the heat was not unreasonable objectively, so no claim
McKinnonn Industries v Walker
C suffered loss due to D's fumes
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C suffered loss due to D's fumes

Fumes objectively nuisance
C suffered more than usual due to these fumes
D still had to pay full damages despite special suffering
Network Rail v Morris
Buxton LJ said obiter reasonable rule out of date
Emphasis on forseability
Malice
- If D seeks to interfere, is this in itself enough?
Where reasonableness is unclear, this can be a factor
- Christie v Davey
C played piano loudly, D wants to get back at him and starts banging pots and pans in his
house
Court
The nuisance was borderline, but since he did it deliberately it was actionable
- Hollywood Silver Fox Farm v Emmette
D didn't want silver fox farm where he lived
Silver foxes very sensitive
D and his son starts shooting into the air at the border between the two
properties
Wanted to disrupt fox business
Court states this is nuisance
If activities were not malicious it would have been ok
- Bradford v Pickles
D owned a reservoir of water that flows into a town, C
D stopped providing the water to C to force the town to buy his property
Malice intend irrelevant, because C had no rights to the water anyways
Not nuisance
Irrelevant Factors
- Planning permission not license to commit nuisance
Doesn't affect nuisance, but does authorise a change in neighbourhood
Gillingham BC v Medway Dock
Residential area becomes commercial
Court says it's OK, can't assess level of traffic now that it's a
commercial sport area
If planning permission changes character of neighbourhood,
disturbance OK
Allows administrators to change private law?
Bar v Biffa Waste
General planning permission vs detailed environmental permit
If permit was detailed enough, then cannot be sued for nuisance (latter OK)
Wheeler v Saunders
Well-run pig farm not OK
Planning didn't change area to industrial area, so odor not OK
Conventry v Lawrence
Facility with planning permission not relevant
Confirms good law
However, greater relevance in realm of remedies
Coventry
Contrast of opinions between judges on remedial effect
- Utility of D's conduct
No matter the beneficialness of D's actions
Miller v Jackson
Dennis v Mod
Only may be relevant in remedies (E.G no injunction, only damages)
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Only may be relevant in remedies (E.G no injunction, only damages)

- Common ordinary use of land
If disturbance arises from common use of land, not nuisance
Southwark London Borough Council v Tanner
Conditions intolerable, C can hear everything his neighbours did
Considered normal use of land
- Conventionality
Sturges v Bridgeman
Irrelevant that D had been committing nuisance for long time
No D of prescription
Coventry v Lawrence
No D when C buys property already subject to nuisance
Court says, however,
If C had changed behaviour/use of property (changing farm to residential
area), this could be defense
- Other elements of nuisance beyond reasonableness
Must be a legally protected interest
Some forms of interest property owners have no right to
Bradford v Pickles
No right to neighbour's underground percolating water
View, free passage of air, light, tv reception (Hunter)
Forseeability
Important in English law generally
Cambridge Water
Obiter: show harm was forseeable
Does not mean likely, only possibility
Network Rail
Relevant property interest
Hunter v Canary Wharf
Only C with property interest can sue
Nuisance is tort against land
Must be either owner, tenants, or maybe easements
Licensees cannot sue
Court: sue not for frustration, for diminution of land
Matrimonial homes act
Gives spouses certain rights to land-change anything?
Recoverable type of loss
Damage to land or
Diminution in capital value of land (Hunter)
Personal injury not recoverable in nuisance
Hunter
Transco v Stockport Met Council
Damage to chattel
Halsey v Esso
Used to be able to claim damages or chattel
Hunter
Much harder to recover damaged chattel
Hoffman: maybe consequential loss?
Going for negligence is better bet
Need for link to D's use of his land
Hussain v Lancaster
High watermark
D harassed C on C's land
Court claimed no nuisance, because D didn't use land
Loppiatt
Arguably could be a nuisance
Costaki
Presence of brothel could amount to nuisance
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Presence of brothel could amount to nuisance

Flarinplace
Presence of sex shop could amount to nuisance

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Obstruction Cases
- Complaint that something has been obstructed from coming onto his land
- When does a claimant have a right to have something cross his neighbour's land without
obstruction?
Light, Air, Water, Earth
Light
- Colls v Home and Colonial
Landowner may acquire right through grant/prescription
If enjoyed for a certain period of time, will gain right to it
- Does not apply to a beautiful view
No right to beautiful view/right to not see an ugly view
Air
- No general right to receive air or wind that would otherwise come onto your land
Unless air flows to a defined aperture in C's land, such as a ventilator
Water
- Right to water subject to ordinary use by those upstream
- Bradford v Pickles
No right to water that flows in undefined channels under neighbour's land
Earth
- Claimant must establish a right to that withdrawn benefit
- If B digs under A's land and A's buildings lose support
A must prove he has right to support
Not exist in common law-only restrictive covenant

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Passive Nuisance
- Natural forces on D's property cause damage to C's property

Sedleigh-Denfield v Dallagan
Landowner farmed land adjacent to C's property
Local council built drain that leads to C's land or D's property unbeknownst to D
Pipes flood, is D liable?
Court says
Council=trespasser
Yes, D can be liable, but only if D
Continued, or
Adopted the nuisance
On the facts, B adopted the nuisance since his servants cleaned the
pipes, etc. (adoption)
Leaky v national Trust
National trust owned a mound with several properties below
D subject to slow landslides, giant crack appears on mound
C goes to D and warns them, D says it's not their responsibility
C's house later gets damaged and sues
Court looks to Goldman v Hargreeves
D let tree burn down, wind blows and burns C's land
Court said though D didn't start the fire, he must act prudently to
prevent the spread of dangerous situation
Court took same approach as in goldman
Once a dangerous situation occurs on D's land, he must act prudently (with
reasonable care)
Pretty much the same as negligence
Smith v Littlewood
Abandoned cinema burns D's property
Danger was not forseeable, so no liability
Relevance of resources
- Holbrook Hall Hotel v Scarbourough BC
Landowners cliff collapsed, hotel destroyed
Court made 2 qualifications to landowner's duty
Only liable for dangers that are foreseeable
On facts: landowners only aware of erosions, catastrophic landslide not
foreseeable
Even if risk is foreseeable, resources of D is a factor
If it costs a lot to prevent disaster (outside capabilities of landowner), then
sufficient warning OK
Defences
- Prescription
20 years use of right (granted easement)
Do in the light (able to be seen by C)
Do as if you have right
Do without violence
C should know he could have brought claim during those 20 years
Coventry v Lawrence
- Statutory authority
Nuclear power plants immune to nuisance suits
Usually phrase dot impliedely exclude nuisance claims
Barr v Biffa waste
If nuisance is a certainty in following with the statutory authority then it is OK. On

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If nuisance is a certainty in following with the statutory authority then it is OK. On

facts it was not.
Not licensed for smell, just licensed for the waste dump
Very narrow test
- Act of god, 3rd party
- Exercise control
- Incorporation of nuisance into ones own thing
Remedies
- Abatement (self help), court doesn't really like this
- Damages
One-off, or if nuisance has finished
Cost of repairs reflect diminution of property
- Injunction
Ongoing nuisance
Best remedy sought
Shelfer Crieteria for refusal of injunction
Shwo legal rights of D small
Can be estimated by money
Adequately compensated by money
Oppressive to D if injunction
Harrier jets
Where nuisance is a public interest
Coventry v Lawrence
Reinstates injunction as prima facie remedy
Damages are in discretion of judge
Shelfer criteria useful, but not absolute
Much more flexibility for judges to choose remedy
Where planning permission has been granted, very likely damages in lieu of
injunction

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Rylands v Fletcher
Strict Liabilit7y in one-off escapes

Cambridge Water
- Lord Goff
Reasonable user consideration not present
Rylands v Fletcher
- Facts
D built reservoir on land built by 3rd party
Water poured into C's land and caused damage
Can't find 3rd party
D was not negligent in selecting 3rd parties
- Not classical nuisance
L Blackburn
If one creates a dangerous situation on your land, you should be strictly liable for
any harm done that occurs
But for his act, no mischief would have occurred, basically by creating the risk he
takes on liability
Ross v Fedden
Rule has been present for 300 years, but not quite true
How should it be viewed today?

- Many cases didn't really have same magnitude
- Courts have become much more conservative in application
Incorporate into general nuisance?
Both cambridge water and Transco failed in R v F approach
Why retain R v F
- R v F not end of story: usually supplemented with other suits of negligence, etc.
- R v F merged in other jurisdictions such as australia
Transco
Standard of care varies with situation
Bingham gave 4 reasons for etaining R v F
Just to impose consequences in absence of fault
Existing rules presupposed R v F stays, so some unexpected consequences
R v F only reaffirmed decade earlier
Other legal systems have similar rules, so R v F has role in modern law

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Elements
1. D must be owner or occupier of the land

a. Different from nuisance, that require's C's occupation of the land
2. D must bring/keep on land an exceptionally dangerous and michievous tjhing
a. Accumulation
i. Must be on part of the defendant
ii. If instead of reservoir was lake, then rylands not liable
b. Dangerousness
i. Doesn't need to be inherently dangerous, must be dangerous if escapes
ii. Standard v Gore
1) Tires stored on D's premises catch on fire, roll onto C and causes damage
2) Because tires not inherently dangerous, not liable
3. Foreseeability
a. According to standards appropriate at relevant time, if there is an exceptional level of
harm if escaped
i. Chance of escape present, not likely
b. Cambridge water
i. D's chemicals thought were harmless according to science at the time
ii. Could not foresee damage, no liability
4. Need for non-natural use of land
a. Formulated in Transco
b. Rickards v Lothian
i. Must be special use that brings increased danger to the land
ii. Not ordinary use of land
1) Building roads, houses, even factories are natural uses
iii. Criticized in Camrbidge Water for lacking precision
c. Transco
i. Bingham thought should use words such as "ordinary" instead of "natural"
ii. High watermark of what is ordinary: pipes run under neighbour's land was
ordinary use of land because it was just so common
d. Cambridge water
i. Storing chemicals extraordinary use
e. Read v Lyons
i. Exploding munitions factory causes damage to C during WWII
1) Given context, munitions were a common/ordinary use of land at the time
5. Some form of escape

a. Danger must escape D's land onto C's land
i. Lyons
1) Munitions escaped? Caused harm but didn't leave premises
ii. Stannard
1) Tires didnt escape, only fire
a) What escaped was not accumulated
b) Inconsistency of subject, no liability
iii. Transco
1) Water escapes and flows across D's land, causes damage to C's property
b. Strict interpretation
6. Escape must cause damage to C relevant to claimant's land
a. Injury to person not recoverable
b. Injury to chattels not recoverable
7. Legal property interest in Claimant's land
Cannot be just pure economic loss

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Cannot be just pure economic loss

- No damage to thing thing, only loss of money
If property wasn't directly harmed but customers lost due to bad smell not under R vF
- Consequential loss is only good
If damage to land becomes economic loss
Defences

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Defences
Act of God
- Freak weather event
- Courts increasingly conservative
Nichols v Morseland 19th century
Lack overflowed due to heavy rain
Considered act of god
Greenock Corp v Caledonian
If harm reasonably foreseeable, negligent for not foreseeing
Acts of 3rd parties

- Rickards v Lothian
Unknown 3rd party blocked toilets, no strict liability because act of 3rd party unforeseen
- Smith
- Northwestern Utilities v London Guarantee
Same as greenock
Negligent to foreseeability
Consent to dangerous accumulation
Common benefit
- If C claims common benefit, no R v F claim
- If D has reservoir, C gets water as well
Statutory authority
Ashley v Sussex police

Necessity can be honest but must be reasonable

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Occupier's Liability
Responsibilities that come with owning/possessing/occupying land

- Unlike other torts, which are about personal rights
- Dangers on land
Landowner must act reasonably to prevent dangers
Statutory negligence-historically occupier's liability is negligence

1957- Governs lawful visitors
1984- governs trespassers
Policy issues
- Encourage restrictive approach to management of public land
- How far should local authorities go to protect people who hurt themselves?
Relationship to common law negligence

- Negligence 4 stages
Duty of care
Breach
Damage
Causation
The Acts
1957-automatica assumption of duty
- Liable for person/property damage
1984-tests to establish duty, only liable for property damage
- Statute exists in place of common law
S.1
Don't apply common law negligence
If standards in the statute are met, no need for case law
- Acts essentially replaces common law
Common Law
- 3 types of lawful visitors
Contractors
Hotel/guest
Duty is an implied term that the place is fit for purpose of stay
Invitee
Permission of occupier and mutuality of business interest
Duty is occupier must take reasonable care against unusual dangers
Licensee
Friend who is invited
Duty is to inform of concealed traps to licensee
- Trespassers have no duty of care at all
- Seen as inadequate
Too complex
Unnecessary distinctions
Donohue v stevenson: universal duty?
Activit7y duty
Artificial constructs of tort
- Changed in 1954

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OLA 1957
S.1(1)
- Dangers due to state of premises or to things done or omitted to be done on them
Activity duty?
Revill v Newbury
D: action had nothing to do wiuth D's actual activity on premise
- To whom does the act apply?
Occupiers: Common law
Occupation=control
Occupier has sufficient control over premises
Weat v E Lacon
- Owened bar, manager was lacon
To access staircase in pub
External+internal access to guest rooms
Person slips on stairs and dies
- Was brewery occupier?
Service agreement doesn't diverst control over to management
Court said brewery can be occupier
No need for exclusive occupation
Can have 2 occupiers of a single premise
Alexander v Freshwater
- Landlord and manager both liable
Common duty of care
S.2.1.
Owe to all visitors, regardless of former 3 distinctions
S.2.2.
Duty=take care that occupier
Reasonable to see that the visitor will be reasonably safe
- Very fact specific
- Weather, conversation, purpose of visit, etc.
S.2.3
Circumstances relevant include degree of care, want of care,
Visitors
S2: Common law principles
People who enter premises under right conveyed by law
Police, ambulance
S.5-contractors
- S.1.4 excludes persons exercising public right of way
Premises
- Not defined by act
Obviously covers land, dwellings, commercial/industrial property
Donohue v Follestone
- S.1.3.a
Extends definition to any fixed/moveable structure
Vehicles
Reasonableness
Purpose of claimant's visit
- Geary v J.D Weatherspoon
When you invite someone to use stairs, you do not invite them to slide down the
bannisters

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bannisters
- Tomlinson v Congleton
Person breaks neck before junping into lake
Would have been trespass
Duty of care scope

- Depends on circumstances
- Reasonable forseeability of harm
Not mere possibility
West Sussex v Pierce
- Visitor needs to exercise reasonable care for own safety
Facagni v Penwith District Council
Lady falls down on road
- Very drunk, D not liable
- Not living up to "ordinary produce"
- Staples V. West Dorset
Does not extend to protecting visitors against obvious dangers
No breach of care when danger is obvious
Dive headfirst into shallow pool
Responsibilities of visitor
- Be aware of curiosities of children
- Jolley v Sutton
Occuperis must be aware of curiosities of children
Children ingenuity
- Philipps v Rechoester
Child with automatic license falls into ditch, can he recover?
Court
- Person who opens land to public must be aware of children on their
land
- Butduty given to guardian who will protect child
- Simkiss v Rhonda
Child goes for picnic on mountainspot, gets hurt
Natural hazard, borough council not responsible
Parents negligent to danger
More obvious, less occupir liability
- Glasgow
Lures are not good!
Candy shop, etc.
Professionals S.2.3.
- Occupier assume that professional aware of any dangers associated with profession
- Role v Nathan
Chimney sweeps died from CO poisoning
Occupiers not liable
If general risk, maybe was breach
In this case occupier entitled to believe that chimney sweeps knew what
they were doing as CO is common occupational hazard
Discharging duty of care

- Warning S.2.4
- Only good if it was enough o actually make person reasonably safe
- Mere statement of danger insufficient
Roles v Nathan
"This bridge is dangerous" not enough
"this bridge is dangerous, there is a better one upstream
- Gives alternative route, discharges duty
- S.2.4.b
- Dangers on land created by independent contractors

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- Dangers on land created by independent contractors

- Occupier can discharge duty
Reasonableness standard, Occupier must act reasonably to discharge duty
- Haroldine v Daw
Hired lift engineers, done negligently by contractors
Court
Discharged duty because firm was reputable, occupier had no reason to
doubt their competence
Very specialized area
In circumstances occupier discharged task by merely giving job to
contractors
- Woodward
Cleaning lady screws up and children slips
Possible for occupiers to check so duty is still theirs
- Alexander v Freshwater
Occupant knew of hazard created by independent contract, duty not discharged
- Relevance of liability insurance?
- Guillian v West Herts MTS Trust
Check if contractor is insured, see if customer could sue 3rd party
Discharged because checked
- Naylor v Payling
Thought checking was too narrow
However, was goopd indicator of 3rd party contractor quality
- Warning v Disclaimer
- Warning
Warns danger, tries to make you safer
- Disclaimer
May be dangers
Effort to try and exclude ilability under OLA
"if you come here and are injured, we dont accept liability"
Ashdown v Samuel Williams
- OK to exclude, as long as reasonable notice brought to attention of
- Large notices on front of property
UCTA 1971
Impossible to exclude personal injury/death due to negligence
Can exclude damage to property as long as it satisfies reasonableness test
S.1.3
- Only applies to business liability
- Done to people on course of business
- Occupation of premises used for business purposes of occupier
Person liability : UTCCR
- Defences
- S.2.5
No liability for risks voluntarily assumed
Contributory negligence
- Recoverable types of damage
- Person injury/property damage
Can claim for property legally belonging to someone else but in possession of me
- Duties to tresspass at common law
- Not covered by OLA
Addie v Dumbreck
No duty of care owed to trespassers
Even against known hazards
Harsh, so courts try to develop exceptions
- Implied license
- Allurement doctrine (something that attracts children to your
premises, then duty arises)

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premises, then duty arises)

Cooke v Midland Railway
- British Railway v Herrington
Duty of common humanity
Even though C is trespasser, certain circumstances can arise where C can sue
- Very obvious dangers/hazards that arise

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OLA 1984
November-01-14 2:38 PM
Clarified stance in British Railway v Herrington
Tomlinson v Congleton
- Main difference between 1984 and 1957 acts
Duty now doesn't always arise, used to be presumed
Scope is the same
Definition of occupier, visitor, premises the same
- Trespasser def
Anyone not a visitor, some exclusions (police)
Duty of care
- S.1.3-depends on whether occupier is aware or has reasonable grounds to believe that it
exists
No longer the status of visitor, but awareness of owner
Certain circumstances
Risk posed by state of premises
Does duty of care arise?
Keown
10 year old climbed on fire escape in NHS, fell and was injured
Nothing to do with actual nature of premises
Failed 1st hurdle (state of premises)
3 cumulative criterial to satisfy duty of care requirement
Occupier of premises aware/has reasonable grounds to believe danger
O has reasonable grounds to believe C would come to danger
Awareness of danger
Awareness of the potential presence of trespasser
Donoghue v Folkstone properties
Risk is one the occupier should have "reasonably expected"
D reasonably expected to offer some protection
Tomlinson
Lord Hoffman
Talks about non-financial considerations
Law not there to save C from himself
Bad for society if making occupiers take drastic preventative
actions
If risks perfectly obvious, then no need for signs
- S.1.4
Occupier owes duty to another to not suffer injury on premises by the danger
- S.1.5
Can discharge duty by warning
Make aware/discourage from taking further action
Lower threshold than previous act
Exclusion of liability
Matters of dispute under new act
Duty itself is evolved from common humanity-minimal and intrinsically
undeniable
Undesireable asymmetry with 1957
If exclusable, maybe only in business context
Defences
- S.1.6
Volenti (voluntarily assume risk)

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Volenti (voluntarily assume risk)

Types of damage
- Only personal injury
- No property damage
Common humanity? Maybe
1984 OLA v 1954 OLA

- Disclaimers not allowed
Trespassers cannot be disclaimed
Visitors subject to disclaimers
More liable?
Warning standard lower for trespassers
Higher standard of care owed to children

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Negligence: Introduction and Duty of Care

Intro
- Negligence=loose synonym for carelessness
Failure to take reasonable precautions against risks that one ought to have foreseen
Liability for foreseeable accidents A
- Not strict liability
Low threshold for fault however
- Huge range
Car accidents, injuries at work, negligent professionals
Many possible scenarios
Bhamra v Dubb
Guests ate egg, had allergies
Caterer liable
Scout Association v Barnes
Yearwood v Bristol
Sperm donations not taken care of, storer negligent
However
D v East Berkshire Community Health
Negligence doesn't cover everything
e.g. cheating husband
Where do we draw the line?
- Influence of insurance
Mandatory in law to have motor insurance these days
Present for negligent accidents
Is it moral?
Responsibility jumps to non-liable company
Impose liability based on D's ability to pay
Nettleship v Weston
Learning driver negligent standard = all drivers because all drivers are insured
Is this right?
- Compensation culture
Many many successful claims on very minor sufferings
790,000 road accidents
81,000 workplace (but small proportion of total accidents
Is this good?
People getting compensated
Owt of control, people need to take responsibility for own actions
Most cases are settled anyways
Litigotiation
Distributing prohibitedLecture
| Downloaded by Bernhard
Notes Page 38 Osmann (osmann88@byom.de)
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Elements
1. D owed C a "duty of care"

2. D breached duty of care
a. Duty fo care standard
b. Did D fall below it by acting unreasonably?
i. Risk to C
ii. Likelihood of occurrence
iii. Cost of prevention
iv. Social utility of D's conduct
3. Did the breach cause C's loss or damage?
4. C suffered recoverable damage
a. Legal and factual causation
b. Easier to separate in theory than in practice
i. Foreseeable?
1) Smith v littlewood
a) Different approaches to same case
2) Vellino
a) Burglar jumps out window to escape police is injured

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Duty of Care
Caparo test
-
Establishing a Legal Duty of Care
- Concerned with whether tort of negligence applyt o Ds and Cs relationship between them and
the harm it caused
- Just demarcates a range of people/interests
- Duty specific to common law jurisdictions
French=strict liability: no need of duty fo care, negligent conduct=damage
Not inevitable under negligence claims
Unnecessary 5th wheel on coahch?
D v East Berkshire Community NHS Trust
Use in strike-out actions
Procedural economy, if no duty of care we can all go home
Hill v CC of West Yorkshire
General points on duty of care

- Relevance of type of harm
Relevant in establishing duty of care
Not just there art end to assess damages
Pure economic loss or physica/psychiatric injury
- Importance of policy considerations
Impose duty of care based on policy considerations
- Does no duty=immunity in tort law?
Osman v UK
Duty for police to be more investigative not existent
Police immune, no duty
Z v UK
Local authority social workers nowed no duty of care
Still triable
Duty enquiry arises in 2 situations
DoC arise in this situation?
DoC arise in particular case based on facts
Academic views
- Idealist: many duties of care--> Mcbride
Created by bilateral relations between D and C
D has proactive duty to cause particular harms to C
Positive duty not to infringe rights
- Ultra-idealist
1 overrarching duty everyone owes to everyone else
D Howarth
Not duties doesn't exist in some cases-only that D is allowed to be negligent
due to policy reasons
- Cynic
No positive duties, merely an obligation to compensate if one carelessly causes them
harm D. Pritt
- D Noal: abandon "duty" approach and focus on other aspects
L Bingham
D v East Berkshire
Too much focus on duty, not enough on breach

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When does duty of care arise?

- Precedent of previous duties
Motor accidents
Prior to Donoghue v Stevenson, no overarching principles
Heaven v Pender
Master of Rolls: implied there should be an overarching principle, when he
creates danger, did not use ordinary skill/care to prevent harm
Prescient
- Donoghue v Stevenson
Snail-ginger beer
"must take reasonable care to avoid acts or omissions which you can reasonably foresee
and injure your neighbour
Neighborhood principle
Maufactueres owe consumers a duty of care
L. Atkin
Broad overarching principle with regards to duty of care?
Neighbour principle
Take reasonable care to take precautions against reasonable dangers that
could harm you neighbour
Neighbour scope
Proximity element
Attempts at creating structured neighbourhood test
- Annes v London Borough Council
D has responsibility to perform planning authoroity duty, which caused damage to flats
L Wilberforce
To establish when duty of care arises
2 stages
A sufficient relationship that carelessness on the D would cause
foreseeable losses to C, and such loss within contemplation of D
Any policy factors that negate duty
Considered 2 broad, rejected outright
Lack important proximity/criterion said by lord Atkin
- Yuen Kun Yeu v AG of Hong Kong
Criticized Anns
Registrar of companies v People who lsot money
Not close enough, proximity lacking in test
- Caparo
Good law
Influenced by Yuen kun Yeu
D was accountant company, published report that said company was good
C buys stock, company bad, sues
D owes duty of care to anyone who invested in companies that they have
reported?
L Bridge
Ann test bad
3 stage test
Foreseeability
Proximity
Fair, just, reasonable to impose duty
Emphasizes sometimes DoC is much more nuanced
- Incrementation
Sutherland Shire Council v Heyman
Brenna J
Maybe should revert back to adding new areas of negligence?
DoC subject to 3 stage test, but not always

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Caparo test
- Proximity
L Oliver and Jauncy in Caparo
Sufficient/direct relationship
Not very defined rules, reflects a court's discretion based on facts
- Fair/Just/Reasonable
Distinction between acts/omissions
Courts much more willing to impose duties on D to not harm, no duty to positively
act to protect
Seriousness of harm
Greater ham=greater duty
But..Hill v CC of West Yorkshire
Opening floodgates
Fear of unlimited future suits
Fear of liability resulting in defensive practices
Hill-police fail to catch murderer, mother of victim sued
Court said no liabnility, don't want police to focus on avoiding a lawsuit
Avoiding conflicts of interest
D v East Berkshire NHS
Doctors thought parents abusing children, children instead just sick
Parents suffered, but court said doctors have primary interest towards
children
Imposing duty of care towards parents=conflicting pressures
Distributive Justice
- White v CC of South Yorkshire Police
- Police who served at Hillsborough disaster sued for psychiatric harm
No duty of care to protect relatives, could not retrieve psych harm
If relatives don't get duty of care, police don't either of course
Caparo only for novel duty situations
- Previous case precedent duties apply first
Situations when DoC may arise
Physical harm to the person

- If it is reasonably foreseeable that D's actions would pyhsically harm C, then DoC exists
- What is physical harm?
- Rothwell v Chemical Insulating Co
Only injuries that cause harm, negligible harm not relevant
C exposed to Asbesthos, no real harm
Plural plaques case
- Woodward v Leeds NHS
Girl got gigantatism due to hospital negligence, considered actual physical harm
- Smith v Ministry of Defence
Negligent training before battle, duty exists
- Mulcahy v MoD
Friendy fire artillery, no DoC where person injured in theatre of war
- Donoghue v Stevenson
- Dixon v Bell
A gives B loaded gun to give to C, gun goes off and hits his son
- Ogwo v Taylor
Man removes paint with blowtorch and sets house on fire
Firefighters hurt
Foreseeable that Firefighters would come, duty of care owed
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Foreseeable that Firefighters would come, duty of care owed

- Mere fact of physical injury not enough
Maitland v Raisneek
No negligence, no recovery
Barrett v Mod
Barret on Norway base, drinks to death
MoD puts lots of alcohol, responsible for Barett?
Adult should exercise own control, cannot blame one adult for another's
faults
- Smith v MoD
Negligent training before battle, duty exists
- Mulcahy v MoD
Friendly fire, no DoC in theater of war
Harm to property
- Reasonably foreseeable that the class fo property will be damaged
Yearwood v Bristol
Semen samples held I D's lab
Merc Rich (the Nicholas H)
Foreseeable and proximity satisfied
Court says no duty due to policy reasons
Damage didn't happen directly
Classification society says ship OK, ship not OK and property damage
Foreseeability, proximate, real property damage
No -duty of care-policy reason for securing non-profit organizations from
suits

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Acts of 3rd Parties

Tuesday, November 25, 2014 3:32 PM
Mitchell
- Lord Scott
Law does not impose duty to prevent a person from being harmed by criminal act of a
3rd party based simply on foreseeability
Topp v London Country Bus

- Left key in ignition for 8 hours, an unknown 3rd party takes bus for a ride and kills Topp
No duty of care owed by bus company to prevent 3rd party from stealing their vehicles
Only duty to prevent own bus drivers
Smith v Littlewood
- Children was playing with fire in Smith's house
- Majority of court said was duty of care to neighbour, but did not arise because harm not
forseeable
Smith acted reasonably in circumstances because they did not know about this problem
of trespassers
- Lord Goff
Unknown to littlewoods that 3rd parties were tampering with property-so no duty arose
at all!
Later cases show that this is the correct approach
No duty of care because not aware
- Geordan House v Mennow
Pub keeps feeding person, person steps out and gets killed immediately.
Liable
- Stewart v Petty
Distinction between social/business
Social: house party, no liability. If pub (business), liability
Exceptional circumstances
- Home Office v Dorset Yacht
Delinquent boys put onto island to work, they try to escape and damages boat
Is home office liable? Officers taking care of kids had a duty of care?
Court
Generally no duty of care for acts of 3rd parties unless there were special
relationship between either
Ds with Cs
Or Ds with 3rd parties
On facts the officers had special relationship with 3rd parties (boys)
Foreseeable that they may try to escape (have tried before), and that there
would be property damage (needed boat to escape)
Not duty to prevent them from escaping
Duty owed to property owners who might foreseeably have their property
damaged if the boys escaped
Duty to control action of 3rd parties-prisoners special relationship
- Carmarthenshire v Lewis
School allowed 4 year old to leave premises during school hours
Like barns, but child isn't endangered, but driver swerved, hits lampost and dies
Does school authority owe duty to prevent 3rd party from running across road and
creating danger?
HL said yes
School had responsibility for the child
Was obliged to keep child/maintain him during school hours
Duty extended to foreseeable dangers should child "escape"

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Duty extended to foreseeable dangers should child "escape"

- Stansbie v Troman
Ongoing contractual relationship generating duty
Decorator decorating claimant's house, claimant leaves house to get wallpaper, doesnt
lock door
Thieves break in to steal clothes and jewelry
Court said liable
Decorateor owed C a duty to keep such harm from arising
- Haynes v Harwood
Dangerous situation creating duty to foreseeable rescuer
Small child throws stone at horses
D who is the driver argues that the child did it
Court said create dangerous situation that could invites malicious 3rd parties
Therefore DoC owed encompassed this case
Horse policeman
- Baker v T.E. Hopkins
Courts very generous to rescuers
Even though rescuer did so voluntarily and deliberately, D still owed duty of care

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Breach of Duty
Monday, 12 January 2015 10:07
What is it: origin

Blyth v Birmingham Waterworks Co
- Omission to do something which a reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something which a
prudent and reasonable man would not do
- Basically what a reasonable man would do if there was a DoC
Objective Standard
- Healthcare at Home v The Common Services
Legal fiction
Standard defined by made-up person
Application
- Nettleship v Weston
Woman wanted to drive and asked friend to instruct her
Friend first insured she had insurance
She crashed, he was injured
He sued her
She said she tried as hard as she could, she was just not good at driving
Denning
If we accept her argument, it would be subjective standard
Requires standard of care is same standard of care of any other driver
- Context relevant
Philips v William Whiteley
Woman goes to jeweler to get ears pierced
Woman suffered an infection despite attempt to sterilization
Here it was held that he took reasonable care
Age is relevant: reasonable person of this age
Mullin v Richards
Ruler fight between teenage girls, girl got hurt
What would ordinary teenage girl OF THIS AGE would have done?
Orchard v Lee
Boys fighting, one collided into a teaching assistant who suffered injury
Breach:
What would the reasonable 13 year old boy do?
Could he have anticipated that some significant injury could
have resulted from playing tag
Disability is sometimes relevant
Manfield v Weetabix
Weetabix truck crashed into Manfield shop-driver had a hypogycemic attack
and passed out at the wheel
Is this failure to take reasonable care?
Driver didn't know he was hypoglycemic-not at fault in this
aspect
Standard here not ordinary driver-take into account context
Standard of care: driver unaware of his condition that may
affect his driving
Tort and Crime not the same standard
Roberts v Ramsbottom
Driver in this case did feel a little ill before driving
- Other relevant factors
Timing
Utility of conduct

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Utility of conduct
Probability of harm
Gravity of harm
Cost of precautions
Context
Timing
- Roe v Minister of Health
Must remember the benefit of hindsight
Cases appear before court at times different from when the facts occurred
Facts
Method used to anesthetize had a small risk but was best choice at time, C
suffered
Court of 1st instance say they wouldn't do it this way now and prevent suffering
Denning said they must not look at 1947 facts with 1954 spectacles
Utility of conduct: Compensation Act 2006

- Social Action, Responsibility, and Heroism Bill 2014
Concern people are being prevented from being heroic because of the law
Courts MUST have regard to:
Social action
Did breach happen when person was acting for benefit of society or any of its
members?
Responsibility
Did person who breach demonstrate generally responsibility approach towards
protecting safety or interests of others
Heroism
Did person who breach do so while acting heroically by intervening in an
emergency to assist an individual in danger
- S.1 Compensation Act
Court must consider whether imposing liability would impede socially useful activity
Probability of Harm
- Bolton v Stone
Woman hit on a head by cricket ball when she's walking across the road
Furthest the ball has ever gone
Woman sued cricket club
Should have taken precautions to prevent this
HL:
Cricket club was not liable because risk was unforeseeable
Mere possibility of result not enough
Actual event must be reasonably foreseeable, not the events that led up to the
event
- Wagon Mound
Facts
Ship was being repaired at dockyard
Due to negligence of D's engineers, oil spilled out onto harbour
Massive blaze and damage to dockyard
Defendants said this was very unlikely
PC
Test is not that if it was very unlikely, then not liable
Must also take into account the degree of potential harm
Lord Reid
Not that it's always to neglect the risk
- Blair Ford v CRS Adventures Ltd
School trip to adventure park
C was teacher who was injured in Welly Wanging champions

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C was teacher who was injured in Welly Wanging champions

Had to throw it in a weird way, injured himself
Sued company for forcing him to throw it in such a way
Court
Not breached a DoC
Did take reasonable care
Risk of injury was not such that it was foreseeable
Gravity of Harm
- Depend on particular claimant and defendant relationship
Paris v Stepney
C worked in garage and only had one eye, and no goggles. Shard fell off and hit his
one good eye
Does the fact that it would have been worse to lose the one good eye than one of
two good eyes?
HL
That he will suffer a graver injury than others must be taken into
consideration
Even if company didn't need to make everyone wear goggles, C's special
circumstance is an exception
Cost of Precautions
- Latimer
Lord Tucker
Flooding at factory, employees did their best to mop everything up
Worker still slips and injures himself, should they have kept the factory closed
until absolutely dry?
HL: No
As long as they did their best
Only thing they could have done was to not open factory at all and all
the costs that would have led
Test:
Did you take reasonable steps as a prudent employer would do
NOT prevent everything
Context
- Sport and games
Wooldridge v Sumner
Horse veered towards the crowd in race, C jumped out of the way and injured
himself
Court:
Must take into context
Spectator of a somewhat dangerous sport takes on risk of injury associated
with this event
Blake v Galloway
Bark-throwing game and claimant was hit
CoA
In sport, as the rules that are understood among the participants, is what
happened reasonable within this?
If so, accident
If not, then breach
Everett v Comojo
One customer attacked another and the injured customer said waitress should
have intervened
HL: no
Take into account context of young female waitress vs 2 burly men
Scout Association v Barns
Playing musical chair in the dark
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Playing musical chair in the dark

C suffered injury
Was it negligent to hold it in the dark?
HL
Was a breach to hold the game in the dark
Game would have been as much fun in the light, would not lose value
of scouting if this was held in the light
Professionals
- Different standard of care, but still objective standard of specific profession
Bolam Test
C suffered fracture to pelvis during electroshock therapy at mental institution
Wasn't given muscle relaxant that would have reduced risk
Said doctor was negligent in not administrating
Court
Not negligent if doctor acted in accordance with a practice accepted as
proper by a responsible body of medical men
As long as it's in line with responsible line of medical opinion, it's OK
Some criticism
Doesn't give judges enough work to do
Reasonableness can be assessed in court as well
Bolitho
HL endorsed Bolam test as general principle
C suffered injuries from respiratory arrest
Doctor argued that even if he had arrived earlier, he still wouldn't have used
the incubator
Court
Not negligent in failing to incubate claimant (was supported by respected
medical line of reasoning)
Might be modification to Bolam test
If in rare case it can be demonstrated that the medical opinion is not
logical, the judge is not required to consider that body of opinion as
reasonable
Body of opinion not 100% good
Very rare
Baker
Doctors at the time thought that the noise level given to patients was OK
Over time it was realized that the threshold was actually lower
Lord Dyson
Code of practice will often relevant to establishing general opinion of
professional body
Not always however
On facts, employers not negligent because they complied with Code of
practice
Emerging evidence did not change Code of practice
Common law vs statute

- Common law better because start with facts rather than law, common law people assess on
facts is more appropriate rather than assessing based on parliament's intentions
London Passenger Transport v Upson

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Causation
Tuesday, 13 January 2015 15:21
Durham v BAI Ltd

- Lord Mance: Should reflect "common sense"
Type of injury that can suffer-affects causation analysis

- Divisible
Injury that gets proportionately worse
"A responsible for 35% of injury, B responsible for 65%"
E.g. noxious gas exposure
- Indivisible
All or nothing injury
E.g. cancer
The but for test

- Would C still suffered had it not been D's act?
- General rule
Cannot be causation if answer is positive
- Barnett v Chelsea Hospital
Tea was laced with arsenic by unknown murderer
Doctor refused to see them and sent them away
C died from poisoning, alleged hospital was negligent
Claim failed
Nield J
By the time C had went to hospital, it was too late for the antidote to be
administered
But for test failed, not negligent
- Wright v Cambridge Medical Group
Hospital would have treated C negligently even if D had sent them there earlier
Liability was established however
CoA
Was possible to say that the failure to initially treat was a cause for harm
later suffered
Difficulties in Causations
- 2 hunters
2 hunters shoot at what they think is deer, man is shot
2 problems
Multiple causation
Both bullets hit A in the head
Both would have been enough to kill him
Both fail the but for test!
Evidentiary causation
Only one bullet hit and don't know who hit
Only know it's one or the other
But for test-can't answer
- Multiple causation
Burrington Castings Ltd v Wardlaw
Worker exposed to dust whenever using pneumatic machine but also from swing
grinders
Sued employer
Some dust was a breach of duty and some wasn't
Lord Reid
Where there is multiple sources, the question is
Whether the dust from the swing grinders is a material contribution

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Whether the dust from the swing grinders is a material contribution

Question of degree
More than minimal=material
Holtby
Applied Burrington test
Exposed to noxious mineral that gave disease
Many employers contributed to his suffering
Able to attribute percentage blame to D-proportion liability to
proportion of exposure, because it's divisible injury
Bailey v MoD
C suffered brain damage b/c too weak to vomit, hospital was negligent in treating
her
Also had infection that was not hospital's responsibility that contributed to
her brain damage
Infection and hospital both caused weakness
One step removed: hospital caused weakness, weakness caused
failure to vomit
Still apply the Burrington test
Even though there was extra layer of complexity
LJ Wallace
Cumulative causes-one was cumulative, one was not
Were liable for brain damage as long as materially
contributed to harm she suffered
- Evidentiary gaps (uncertainty)
Test: material contribution to the RISK of harm
Balance of probabilities C cannot prove which defendant shot him
Summer v Tice
Can sue either defendant
They sort out the cost among themselves
Mcghee v National Coal Board
C worked exposed to brick dust that led to him developing dermatitis
Was going to be exposed to brick dust anyways
But employer liable for not providing showering facility
Should have provided opportunity to get rid of dust
Some exposure tortious, some not
Lord Salmon
Enough to show that there was some exposure, because had they provided
shower
Fairchild v Glenhaven Funeral Services (2002) (test)
Modern law
Facts
Asbestos gives rise to mesothelioma-increased quantity of exposed asbestos
does not increase risk.
A worked at 4 different companies, only one was sued, all had asbesthos
CoA: failed at but for test because it's medically impossible to see
which asbethos caused the disease to A
HL
Bingham: whether in special circumstances in a case like this, should
claimants establish causation?
HL unanimously agreed that the evidentiary gap could be jumped
Each time exposed to asbesthos risk is increased, so company liable
Rule
Where injury is such that we don't know which D caused it, causation can be
established where D materially contributed to the risk
Barker v Corus (old common law damages)
Barker also exposed to asbesthos during times of self employment along with
asbesthos in employers, other facts like fairchild
Fairchild exception did apply even though some exposure was self-induced
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Fairchild exception did apply even though some exposure was self-induced
Damages
Assessed to share of risk attributed to each D's breach of duty
Increase in risk 33%, then liable for 33%
Smooth the roughness of justice in giving a special way to establish
causation for claimant
L Hoffman
Not that we establish causation: justifiable in may be contributed to
the harm
L Roger
Thought the other HL were misinterpreting Fairchild
Fairchild the D was found to actually causing mesothelioma, not
that he increased risk b/c damage is mesothelioma, not the risk
of it
C will only end up with a small percentage of damages where
Fairchild the C got 100%
Compensation Act 2006 (new statutory damages)
S.3.1
Reversed Barker's damages approach on cases of asbestos related
mesothelioma
Where victim contracted mesothelioma as a result of exposure to asbestos
D can get full damages, jointly and severally with other responsible
person
Sienkiewicz
C's mother died after contracting mesothelioma
Exposed to asbestos during employment and in environment
SC confirmed S.3
L Phillips
Fairchild rule applies to more than just a Barker situation
S.3 does not preclude courts from using conventional approach to
causation if ending evidentiary gap is medically possible
L Roger
Trigger Litigation: Insurance
Lord Mance
Don't deem the C suffered until actual disease
Exposure during relevant period can trigger employer insurance
Otherwise if it begins at time of actual disease, D may not be insured
anymore.
Limits to Fairchild
Wilsher
Baby that developed a degenerative eye condition
Hospital argued to be negligent when undergoing surgery, but at least
4 other things that could have caused this condition that was not
negligent
HL held no liability
Can't say but for D's negligence
Fairchild only available where the agent for injury is the same
In fairchild, it was all asbesthos
Here, however, ways of causing condition very different-oxygen,
light, etc.
Grieves v FT Everard
D exposed to asbestos and got plural plaques
Plural plaque indicates exposure to asbestos, but not linked to
mesothelioma
Argued that this should be actionable harm
HL
Asymptomatic things, risk of developing something in the future, and
anxienty not actionable in tort
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anxienty not actionable in tort

if risk not actionable, fairchild principle?
AB v Ministry of Defense
Servicemen who worked in nuclear tests claim diseases that was caused by
the tests
- Further cases
International Energy Group Ltd v Zurich Insurance
Heneghan v Manchester Dry Docks
Adenocarcinoma of the lung
Exact same as Fairchild, but different type of disease
1st instane
Jay J
Statute doesn't apply here b/c not mesothelioma, so Barker applies
Exception 3?
- Loss of chance of more favourable outcome actionable?
Balance of probabilities test
Hotson v East Berkshire (balance of probabilities test)
C climbs a tree, falls and severely damaged his leg
Negligently diagnosed and was not treated properly, went on to develop a worse
disease (necrosis)
J f 1st instance
There was already a 75% chance he would've gotten necrosis anyways
HL
Could not recover for chance-necrosis caused by his own falling, not the loss
of chance
If more than 50% probable that he would still get necrosis, then D not liable
If less than 50% probable, then D liable
Gregg v Scott
Doctor failed to diagnose A with cancer, and was only diagnosed later
If initially diagnosed he would have 40% chance, but later he only had 20%
at the 2nd correct diagnosis
Did not die, but sued the first doctor for chance of survival in future
HL
Cannot sue for mere loss of chance in personal injury cases
Fairchild
Adjusting rules of causation to correct injustice to C
L Hoffman: this would be anarchy in causation
L nichols: disagreed
Above 50% chance then liable
McBride and Bagshaw
Balance of probability issues: once dice is rolled the outcome is certain, balance of
probabilities no longer relevant to damages and so decision not right: should be all
or nothing, not percentage
Pure Economic Loss
Allied Maples v Simmons and Simmons
Lawyers messed up and C didn't get amenities they may have gotten
Court said can be claim
Stuart Smith LJ
C must prove a substantial chance of avoiding PEL
Assess damages based on chance lost

Legal causation
- Supervening causes
Baker v Willoughby
C suffered as D's breach of duty -leg hurt
Subsequently had another accident to the same leg, now no leg
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Subsequently had another accident to the same leg, now no leg

HL
Subsequent tort made his condition worse, but his condition in the
beginning was still 100% fault of D
Liable for good leg becoming no leg
Looks like tort law exists for compensation because court refused to allow
defence of intervening 3rd party, when obviously there is
Jobling v Associated Dairies
HL Confined Baker
C suffered an injury to his back, later suffered a degenerative condition not
resulting from this tort
This condition overtakes the original tort, could D still be held liable?
Confined Baker to one tort followed by another tort
L Keith
Gray v Thames Trains
C injured in rail crash by negligent thames trains and also developed PTSD
Few years later a drunk pedestrian stepped in front and he killed the drunk
pedestrian after an argument
Convicted of manslaughter as a result of PTSD
Sued Thames Trains for not just injuries, but also consequences of PTSD-
killing a man, loss of freedom
HL
Lord Rodger
Court can't shut off its eyes that he couldn't work because he was in
prison, not only because of PTSD
Can take further events to question
Not liable
- Novus Acts Intervenus
So significant as to break chain of causation
Empress Car Co v National Rivers Authorities
Company held diesle in land which spilled because a mischievor unscrewed an
unlocked land
L Hoffman
Was this intervening act abnormal and extraordinary? If yes, then it is an
intervening act.
On the facts the new act was not so abnormal, D still liable
- Intervention of Nature
Carslogie Steamship
Collided with another vessel, which was at fault
Got repaired and considered seaworthy, but then entered a storm that severely
injured the ship
Ship had to repaired over 30 days for the storm damage, 10 days to repair
the original collision
Ship was out of service for 30 days anyways, 10 days for original collision during 30
days
Sued for loss of profits from those 10 days
HL
No-needed repairs for 30 days anyways
Nature was responsible
Rubenstein v HSBC
Wanted to invest money he got from selling house, wanted as high return as
possible without reduction of capital
HSBC advised them to invest in fund where there was risk thus in breach of duty
Rubenstein lost money due to global financial crisis
CFI
Global financial crisis was an intervening act
CoA
Reversed CFI because the duty of HSBC was to prevent this very thing that
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Reversed CFI because the duty of HSBC was to prevent this very thing that
Rubenstein wanted to be protected against
Rix LJ
Bank not liable for financial crisis, but the duty covered this and so
bank was liable
- Intervention of 3rd party
Lamb v Camden
Waterpipe exploded, caused damage, negligently maintained
Squatters moved in that cause even more damage
L Denning
Council not liable for squatters-intervention of 3rd party enough to remove
causation
Oliver LJ
People are stupid, but this case it was too outrageous to be foreseeable
Knightly v Johns
Accident in tunnel, tunnel had to be closed
Police inspector asked an officer to drive into face of oncoming traffic to close
other end of tunnel and is severly injured.
CoA
Stephenson LJ
Inspector's decision was too great a negligent decision to allow claim
to succeed against original defendant. New cause, intervening act.
Usually we have to account for human capriciousness, but on facts it
was too great an intervention.
Wright v Cambridge Medical Group
- Intervention of Claimant
McKew v Holland
C was injured and had a very weak leg from an original tort.
Walked down the stairs, when felt his leg from giving away jumped and broke his
ankle.
HL: C acted unreasonably in choosing to descend only holding his daughter's
hand knowing his legs might give away. Broke the chain of causation
Wieland v Cyril Lord Carpets
C suffered injury on bus and had to wear a neck collar, limited field of vision and
suffered accident falling down stairs because unable to wear her glasses.
She descended stairs with adult son for support
However, this did not break chain of causation
C acted reasonably here on the facts, original D was still liable
Eveleigh j
Distinguishes from McKew b/c didn't act unreasonably
Reeves v Commissioner of Police
Police knew victim was suicide risk b/c tried before
Police failed to take sufficient measures to prevent his suicide
D said claimant's own act broke causation
HL Jauncey
Very duty was to prevent suicide of D
Intervening act must be out the scope of the contemplated scope of events
to which duty was directed
Corr v IBC Vehicles
C suffered accident that made him disfigured and clinically depressed. Killed
himself.
Estate sued for original company that caused the tort
D argued C's decision to kill himself broke chain of causation
Unlike Reeves, no duty to prevent his suicide. However!
HL
Held it was possible to establish causation because depression that led to
suicide was caused by the original accident
Spencer v Wincanton Holdings
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Spencer v Wincanton Holdings

D suffered injury and needed crutches
Needed to amputate leg because it was painful,fitted with prostheic
and he couldn't drive.
At petrol station he wanted to fill himself rather than wait for
attendant, tripped and became permanently wheelchair confined
Sedley LJ
Attributing legal liability becomes unfair as time goes on
On facts C could still claim
Dalling v Heale & Co
Suffering injury made him drink more, suffers head injury as a consequence of
drinking
CoA
Propensity to drink more was because of original injury, so D was
liable
Remoteness
- Too far removed from original injury
- Test of reasonable foreseeability
Wagon Mound
Was the subsequent damage reasonably foreseeable?
Viscount Simonds
Natural/necessary/probably consequence
Would the reasonable man have foreseen the damage here?
Rejected early CoA where it was suggested that the test was directness
Hughs v Lord Advocate
D held liable
Foreseeable consequence-can only escape liability if damage was different
in kind
On facts foreseeable that child would suffer. Difference in belief of degree of
harm and actual degree of harm doesnt matter, unless type of harm
different D liable
Jolley v Sutton
Look in facts of case to apply reasonable foreseeability harm
Thin Skull Rule
- Same as in criminal law
Smith v Leech Brain
Negligence caused cancer, activated a propensity for cancer in C
D must find C as he is. Liability is established, even if C was more susceptible.
If injury occurred at all only because of his propensity, then perhaps D is not liable,
but as long as maybe liable
Policy Limitations
- SAAMCO
Lord Hoffman
Negligent valuation of properties on behalf of companies
Dramatic fall in property prices, breach of duty
Negligent surveyors liable for all losses suffered by companies?
Scope of duty in question not liable for all consequences of wrongful
conduct
On facts
Responsible only for consequences for wrong information: house was
worth less, they were liable for difference between actual value and
negligent value
Not liable for all decisions that entered into housing market
Contrast between Rubenstein and Reeves-no duty to prevent this loss
- Clavert v William Hill
A wanted gambling company to ban him, they didn't. court said he would have gone to
other gambling companies.
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other gambling companies.

A didnt lose money as a result of breach, always going to do it.

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Defenses
Monday, 23 February 2015 10:06
Assumption of risk
- Express/Implied
- Came forward during industrial revolution for workplace
- Complete defense
Elements
- Knowledge of risk
C must have actually known of risk-not reasonable person
Must have known general nature of risk, AS WELL AS
Must have known of a possible negligent conduct of defendant
Manner in which injury came about
Certain causal story of injury brought by particular negligence of D
- Voluntariness
- Assumption
Something in actions that demonstrates you waive your cause of action
Prior agreement between the parties-element of duty of care needed
D must show that claimaint acted in a way that was reckless in relation to their own
safety
Negligence in your own safety not enough
Morris v mUrray
Murray has a lot to drink and crashes his airplane with Morris after they both
drink. Airplane crashes, Morris injured and sues
Clearly Murray was negligent
Court said morris accepted risk
Capacity?
Too much to drink may have rendered capacity impossible, but
on facts defense unavailable
Knowledge of risk
Could have know that murray's negligence could have caused
the plane to crash
Specific to murray crashing plane due to drunkeness
Voluntariy
Got into plane voluntarily, was not forced, not an issue
Assume risk?
Acting in a way that was grossly irresponsible to his own safety
Aware of how drunk murray is, fuel the airplane
Court said yes
Extent of danger?
Sometimes happens
Danger assumed must be severe
Assumption of risk not available for drunk drivers etc.
Now replaced by statute that says no voluntary
assumption of risk for drunk driving
- Extent of danger
Wooldridge v Sumner (1963)

- Photographer in sport hurt by horses
By undertaking activity, you voluntarily assume risks associated with this activity
- No negligence by D, but even if there
Simply being spectator would not assume risk of negligent horseriding
B/c C only assumes risks inherent to sport-not negligence

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B/c C only assumes risks inherent to sport-not negligence
Commissioner of Police for Metropolis v Reeves

- Police knew C may commit suicide
Police were negligent in ensuring that C couldn't hang himself
- Police argued that by hanging himself he assumed risk of dying
If police has a defense in this case then DoC would be vitiated for people in police
custody
Can't be right
- If duty of care is to prevent exactly that action that would be an assumption of risk, then
cannot be assumption of risk
Imperial Chemcial Industries v Shatwell [1965]

- 2 brothers had to test whether detonators were functioning before detonation
Employer says they must test in shelter
Shelter too far away they detonated outside, one was injured
- Brothers sued employee
Did C assume a risk?
Court says yes-there is a defense
Risk not caused by employer-caused by employees
Claimant could not recover at all
Contributory Negligence
C's own negligence caused his own injury
- 2 wrongdoer parties
- Historically a complete defence
But this comes under criticism
Defendant also wrongdoer-why are they let off completely?
Deterrence not fully effective
Inefficient: may make people more defensive cause they know they'll be held
100% liable
- Law Reform Act 1945
Where any person suffers damage as a the result partly of his own fault and partly at
fault of other persons, claim will not be defeated
D will still be liable in regard to their share in damage
2 elements of contributory negligence

- Fault on part of claimant (S.4 LRA 1945)
Negligence
Breach of duty
Act/omission
Essentially-must look like a tort
Not always a reasonable standard
Tailored towards particular person (age, responsibility, etc)
Claimant injury was party the result of claimant's fault
In light of causal contribution, reduction of damages is just and equitable
Intentional torts
No defense for intentional torts
Standard Chartered Bank v Pakistan Shipping
D frauded the bank
D argued that bank was contributorily negligent for not preventing
their defense
Morally offputting to give an intentional tortious person a
defense
Reason behind LRA
Changes allocation: less crude version, from 100% liability to

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Changes allocation: less crude version, from 100% liability to

calculated
What about when claimants intentionally cause themselves harm
Corr v IBC
Workplace injury-one employee on another employee
Victim suffers injury/post traumatic stress, then commits suicide
Defence is available if intention is on part of claimant
Reeves
Police managed to established contributory negligence b/c C
intentionally harmed himself
Capacity
Gough v Thorne
Children can be responsible/at fault
Test will not be objective standard-reasonable child of same age would have
done so in circumstances
- Causation
Factual causation: but for test
Legal causation
Jones v Livox
D gets a ride to lunch that belonged to their employer-stands on back of
vehicle but doesnt sit in it
Employer must pay compensation due to negligent driver
Fault on part of D as well as claimant
1st element of CN proved-fault on claimant
2nd element: causal connection
But for test satisfied
Proximate causation: foreseeable enough? C argued it was not
foreseeable that this would cause danger. Danger falling off
back of car, not that someone else would ram into car
Court rules differently: this was foreseeable
Distinction from being thrown from car vs crashing was
too fine a distinction
St George v Home Office
Lifestyle choices of claimant?
C has seizures, in jail, falls down and gets brain damage
Claims home office was negligent for putting him on top bunk which
made his fall
Government argues contributory negligence
Cause own illness by lifestyle of drug/alcohol abuse
Court:
Lifestyle not sufficiently mixed about with actions of D
Cannot satisfy causation
Froom v Butcher
C failed to wear seatbelt, car crashed, was injured
He would not been injured as much otherwise
Claimant counters the defense
Even though no seat belt, he didn't contribute to accident
No causal causation
What must fault of claimant cause?
Accident or injury?
Fault must cause injury
Cause of accident one thing-cause of damage another-CD concerned
with cause of damage
L Denning
Assessment of blame
Combination of contribution to own injury and D's contribution
Soft concept
Judge must apply what is jst and equitable-really is no clear rule
lOMoARcPSD|1290679
Judge must apply what is jst and equitable-really is no clear rule

Rules of thumb in Froom (Denning)
Find similar cases
- Just and equitable to allow defense
Difference between assumption of risk/ CN

- One complete defense
- CN is much broader
There is overlap-AR can be included in CN
CN sometimes better because it can provide rough justice
- Arguments for separation
Maybe narrowness of assumption of risk can take on defense
If they wanted to assume risk-courts do not want to be paternalistic
If risk assumed is serious risk
Deterrence-people who take on large risks will get nothing, so deterred from this
Illegality
- C guilty of some kind of illegality related to damages they suffer
No cause of action can be founded on an unlawful act (maxim)
Ashton v turner
C running away from scene of crime gets hit by negligent driver
C's illegality in running away should not allow them to recover
- Illegality
Define: crimes/quasi crimes
Not tort-has to be criminall
Les Laboratories
Defense designed for public interest
Because of this, only turns on public wrongs (crimes), not private wrongs
(tort)
Dissapointing: formalistic distinction
Pubic interest is implicated by tort law at may times (public authorities
etc)
Seriousness
Crime must be serious
Tax law/planning law/rules of road doesn't count
- Modern statement of doctrine
Gray
PTSD triggered by train event
PTSD person kills another after argument (manslaughter due to diminished
capacity)
Goes to prison
Sues train company negligent to cause his PTSD
Does train company have illegality defense? C murdered someone!
Illegality defense available
2 versions of defense
Narrow rule
Applied to this case
Cannot recover for damage that is the consequence of a criminal
sentence
Tort law can't give back what criminal law takes away: can't sue for
money because you were put into prison so you specifically can't
make money!
If it does apply, complete defense
Wider Rule
Cannot recover for damages which is a consequence of your own

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Cannot recover for damages which is a consequence of your own

criminal act
Basically acting for compensation for the consequences of your
criminal act
Offesnive to public notions of fair distribution of resources that
a claimant should be compensated for criminal conduct
May raise issues of causation (hoffman)
Unlawful act must be central to causing injury
Vellino
Injury caused by police negligence in attempting to evade lawful
custody
Say police should have taken precautions to prevent him
from jumping out windows because he was known to do
so
Illegality was very central to the tort
If this was allowed, then would be incentive for people to act
illegally because they know they will be compensated
Revill v Newbury
In process of committing crime, lower courts said CN applies but
not illegality
CA said defense does not apply-upholds CN
Degree of serious illegality and actions of defendant
relation is element of defense c
- Contract, notice
It's ok
- UCTA must comply
- White v Blackmore 1972
Junk car races
"warning to public, liability of personal injury not available etc"
C dies because of negligence on D, D argues exclusion of liability
Argued defenses
Assumption of risk
Knowledge was not specific that he assumed nature of this particular risk
Applied-no recovery, C loses
Would it have satisfied UCTA?
Reasonable?
Personal injury/death cannot be excluded-so if this happened 5 years
later, court would not applied defense
C stood at place where he wasn't supposed to stand
Available-only get 2/3rd of injury

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Psychiatric Harm
- Court historically reluctant to recognize this injury

Opens up can of worms
Crash can be witnessed by hundreds
People upset-may develop injury, but should person who crashed be liable to all
witnesses? No
Very subjective/remote, law not wanting to impose DoC
Nervous Shock
- Page v Smith
Reaction to immediate horrifying impact
Recognisable psychiatric illness
Serious mental disturbance beyond normal grief, fear, anxiety
- Recognizable illness
White v CC of South Yorkshire
WHO guidelines
E.g. depression, PTSD, pathological grief disorder
History of Psychiatric Shock

- Victorian Railway v Coultas
No recovery
- Dulie v White
First recognition of Psychiatric injury
D drew van into pub, barmaid gets into premature labour
Is actionable, even though harm was caused by mental trauma
- Hambrook v Brooks
Secondary victims can also recover
Mother dropped kids in school, D let motor lorry travel down road negligently without
driver
Mother told that a kid died
Thought that it was her kid hit by the car, dies herself
Recoverable
- Bourhill v Young
Not forseeable that victim C would hear the accident
Nonetheless court recognizes that nervous shock is recoverable harm, just not on the
facts
Why the reulctance?

- Lord Steyn
Stereotypical view
Duty to avoid injuring strangers rather than to avoid upsetting them
Even if harm, always less than physical
4 more measured approaches
Diagnostic uncertainty in assessment of psychiatric injury compared to physical
injury. Broken leg more easily assessed than depression
Potential negative impact
C may try to extend injury (less inclined to heal yourself to get more
recovery), easeier to pretend depression than broken leg
Floodgates
Other areas
Broaden scope of liability
Proportionality between liability and injury may be not good
- Baroness Hale

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- Baroness Hale
Diagnostic uncertainty
Is harm due to act of D, or his own previous dispositions, hard to assess actual causation
Compensation difficult because treatment not straightforward
Primary v Secondary Victims

- Participant-claimant (primary)
Participated in shocking event
- Secondary victims
Witnesses not directly involved in event
- Page v Smith
Primary/secondary distinction
Relevant for proximity that needs to exist between D and C
Secondary victim hard to establish proximity

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Primary Victims
Foreseeability
- Page v Smith
Whether D could foresee risk of personal injury
Can foresee physical harm but also liable for psychiatric harm
Car accident very minor, but caused resurface of M.E (psych harm) by D on C
C compensated with income for rest of life
Court sayd this is fine as long as some harm to person was forseeable
- Grieves v FT
Asbestos causes depression in fear of getting physical harm
Court says no harm
Roswell: Psychiatric harm can't compensated if physical harm doesn't get
compensation
Contrasted with Page v Smith
Directness: in PS direct result of crash
G v FT directness: damage caused not by asbestos, because of own thinking
afterwards
Eggshell personalities
- Assume people to be able to withstand ordinary pressures
Not a requirement for primary victims
Page v Smith
Thin skull rule applies in primary victims
L. Goff and L. Hoffman skeptical about this in White and Grieves, respectively
a. Part of inquiry as to foreseeability?
Extension of primary victim categorization?

- Organ Retention Group
Hospital stole dead childrens' organs, parents suffered psychiatric harm
Considered primary victims
Attended hospital for pre-natal care, etc.
Considered primary for relatively remonte reasons
- Buchard v Home Office
Nervous prisoner with past psychiatric issues
Prison authorities put him in cell with people who committed suicide
Considered primary victim due to potential negligence of police
- W v Essex County Council
Foster parents explicitly said no sexually abused children
Violated, foster child rapes biological child, parents suffer psych damage
Parents considered primary
Parents not present when sexually abuse happened
Could still claim
Unwilling participant in negligence of another (employer)

- Dooley v Cammell Laird
Crane load dropped while C operating negligently maintained crane (employee)
Employer was negligent, not C in maintainence
Considered primary victim
- Courts more reluctant to make these claims recently
Hunter v British Coal Corporation
Employee caused flood, negligent employer
Flood killed co-worker, C was not there at moment of flood
Considered not 2ndary victim

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Considered not 2ndary victim

Monk
C's belief that C had caused the damage must be reasonable
- Nature of work relevant?
Hutton
The bad thing will be brought to the employee's attention
Areas not governd by contract should be governed by tort-ratio
But employees usually have few incentives to go up to employers and complain 3
months before breakdown
May affect jobs
Page v Smith
How to classify? Primary or secondary victims?
Delivery of news
- AB v Thameside
Patients exposed to risks of HIV, local authorities send them a letter-insensitive?
Claim doesn't succeed for public policy reasons, not because insensitivity is not enough
- Incorrect news
Allen v City Hackney Health Authority
Told child during childbirth, was actually alive
Claim succeeds
Can secondary victim sue primary victim?

- See Greatorix
Formula for 2ndary victims

- Close tie- love and affection
Alcock
- Rescuers
White
- Involuntary participation
Dooley
- Mere bystanders excluded
McFarlane

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Secondary Victims
- Witnesses to accidents/negligent events that harm others
Courts very reluctant

- Series of control mechanisms to limit class who can recover under heading
Mere foreseeability insufficient
- Mclaughlin v O'Brian
Family involved in car crash
Mother hears family was in crash, taken to hospital
Witnesses children dying
Acquires psychiatric injury
HL agrees she can get damages
Events were shocking
Present for immediate aftermath
Injury was to spouse/children
Recognized psychiatric illness
L. Wilberforce
1) 4 elements that must be satisfied for a claim to succeed
2) Consider the
a) Class of persons whose claims should be recognized
b) Proximity of such persons to accident
c) Means by which shock is felt
- Alcock
Families who witnessed their relatives die on TV wanted to sue police, Hillsborough
disaster
Most claimants watched on TV, others were there at time but on different side of
the stadium
Most got PTSD
HL
No one can recover
McLaughlin criteria rigid
No one could satisfy all 4 criteria
Immediate aftermath-9 hours later not immediate enough
The 4 criteria
- Customary phlegm (average fortitude and robustness of mind)
- Sufficiently close ties of affection between C and primary victim
Child, spouse, fiance
All others e.g. brotherly love not presumed
ON facts, only 2 were parent/spouse relationships
Maybe if degree of intensity of event was stronger, the relationship requirement could
be less stringent
Caledonia v McFarlane
100s of people burn to death due to petrol explosion
Court still said no
Remains possibility, but threshold very high
- Proximity in time and space of accident
Witness accident or immediate aftermath
Few Cs at stadium (different part)
Court said very far away, skeptical if proximity requirement was met
Family members who travelled to see bodies after 5 hours were too far removed
- Means by which shock is caused
Witnesses by unencumbered sight/sound

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Witnesses by unencumbered sight/sound

TV is out
Attia
- Witnessing property damage less strict?
Watch house burn down 4 hours, allowed claim
Was decided before Alcock, maybe changed
Defendant hurting themselves

- Greatorex v Greatorex
Dad sues son for crashing own car
Wants to claim insurance money
Dad fulfills criteria of McLaughlin
Court say no, policy reasons for no recovery
Incompatible with D's right to self-autonomy
But primary victim not trying to kill himself
Adverse effects on family life
Was trying to get insurance money
Rescuers
- Forseeable rescuers very generous (foreseeable that there will be rescuers, therefore duty of
care from negligent party to Rescuer)
Haynes v Harwood
Police prevented rash, rescued but hurt, could recover
Chadwic v BRB
Status as rescuer gives him damages
Are always primary victimes
- Problems
White v Frost
Police who suffered PTSD at hillsborough disaster
Helped to remove people from grounds as rescuers
Relied on Chadwick as primary victims
HL said no
Public policy
Rescuers can only recover if they themselves were in physical danger
Reasonably believed themselves to be in danger-ruled out, now must
be actually in danger
Not there in white
Occupational Stress
- Primary and secondary victim categories not relevant here
- Recent development
Stress at work
Slow psychiatric injury at work, early retirement due to inability to work, employee sues
employer
Covered by general employer liability to make sure work is safer
Origin not primary/secondary victim
- Different context from primary/secondary psychiatric injury
- Employers have general care, but specific care to prevent stress?

Sutherland v Hatton
Baroness Hale
16 principles
"did employer owe this particular employee a duty of care to not suffer
psych stress"?
Forseeability, causation, resources of employer, employer counselling
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Forseeability, causation, resources of employer, employer counselling

scheme, etc.
- Reform of nervous shock?
Law commission made recommendations, parliament ignored
Jane apleton
Public policy too distortive, no claim should exist at all
Markensinis v Deakins
Loosen 1/2 criteria of Mclaughlin
Proximity requirement too restrictive
Primary victims v secondary victims?
Close tie of love and effection (mother child, husband wife)

Rescuers criteria
Must have been in physical danger or reasonably believed to be
Involuntary participants
- Dooley
Proximity requirement
- Third party communication (learn of something from something else)
Must be misleading or insensitive
- TV
Pictures aren't detailed enough to see actually your wife being gored
But if pictures were actually shown, probably proximity met
Policy considerations
-

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Pure Economic Loss

Definition
- C becomes poorer/fails to be richer as a result of D's actions
No link to physical injury/property damage
Generally no duty fo care to protect C from PEL
- Hard to understand difference between damages and this
Not quite the same-direct loss of money rather than money as substitute for some other
loss
Spartan steel v Martin

- D did roadwork-> cut power to C for 14 hours
3 separate heads of loss
Value of metal destroyed by O2 pumped as emergency measure
Loss of profit due to loss of steel ingots
Lost profit because furnace failed to produce more steel which would have sold
1 and 2 can be claimed, but 3rd was PEL
Not a direct consequence of property damage or personal injury
Hedley Byrne v Heller

- Ad company taking new client
- Check to see if client was credit worthy
Seeks client reference from bank, bank says client is good
Client defaults, company sues bank for negligent assessment
PEL-no property/personal injury
Only incurred debt
White v Jones
- Failing to realize a benefit that wouled have accrued to C had testator's will been changed
before death
- PEL
Muirhead v Industrial Tank

- Lobster raising pumps faulty-many dead lobsters
Claimable
Value of dead lobsters
Ordinary profit cost of stock
Not claimable (no sufficient link to damaged property)
Profits he would have made
Value of faulty pumps
- Pump did not become damaged
Just worth less than paid for
Important for defensive property
Why general rule against PEL?

- Floodgates objection (much more difficult to contain than property/personal injury)
Fear for D --> hinder too much, force unnecessary measures to avoid liability
- PEL
Much better governed by contract law-sue for breach
Leigh and Sullivan v Aliakmon
C had very complicated contract with seller
As soon as steel is in ship, risk passes to C
Paid too much for goods too little, PEL

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Paid too much for goods too little, PEL

Can protect C through contract
- Protestant work ethic L Denning
D should just suck it up
Lesser harm-most people willing to take on risk, they will work harder instead of
running to solicitor
Defective real property

- PEL or property damage?
Donoghue
Did not sue because wasted good money on beer, but because personal injury
Dangerously built house
Dulton v bognor regis
House builds on dump, needs repair
CA says property damage, D owed duty, can recover
Anns
2 stage test
DoC on part of local authority, surveying building plans
Doesn't really deal with PEL at all because only regarded as preliminary
question
Junior books v Veitch
Floor negligently installed in factory, cost C 200,000
Defective, not dangerous
C can still recover because DoC owed
Ketih
Development of Ann and Dulton
Example of Hedley Byrn exception
- Defective real property can claim?
D and F estates
HL questioned
Plaster done negligently, C had to spend 10,000, sues builder
Considered pure economic los
No property damage
L Bridge: Latent v Patent damage
Latent
Hidden, so C unaware. If causes subsequent personal/property damage, then
there is DoC on part of builter
Did not overturn Anns directly
- Murphy 1
Overules Dulton and Ann
L wilberforce approach wrong
PEL-Dulton and Ann are PEL
Defective premise act
Statutory right of action for Cs against builders in domestic houses
Limit of 5 years, murphy 15 years later discovered
Complex structure theory

D and F tried to distinguish anns
Speaparate parts of the house to classify as property damage
Rejected by murphy
Personal injury and real property

- Murphy
Duty on c to avoid harm if not latent
Could claim if latent
- Targett
Injured when falling defective stairs
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Injured when falling defective stairs

Patent danger
Murphy=PEL , nothing definitive of personal injury
Principles
- Hedley Byrne
- Caparo
- Customes & Excise v Barclays Bank
Can use either Hedley Byrne or Caparo test to determine whether PEL

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Omissions
Monday, November 24, 2014 10:07 AM
Generally no duty to take positive action to help others

- Doing vs non-doing
-
Stovin v Wise
- Local authority under Highways act 1980 has statutory power to maintain highway and
remove obstructions on adjacent land
Very difficult turn, view of drivers obscured by mound of earth
County council had power to remove this but nothing actually happened yet
Known as dangerous situation but nothing done
Did council owe a duty of care?
HL
Nicholls and Hoffman
Reiterate no general duty to pure omissions
Split on whether the statutory power was the basis for a duty of care
Only if non-exercise was irrational. Not here
Nicholls example of pure omissions
Adult watching a child drown
A bystander watching a man walk into oncoming traffic
Hoffman
Irony of atkin when establishing neighbour principle based on Good Samaritan
rule-but no samaritan requirement ion law
Distinction between statutory duty/statutory power
If statute imposes power, 2 conditions to overcome before establishing duty
Irrational not to exercise power
Exceptional grounds for compensating individual
Prevents courts from going to an area where parliament didn't want the
courts to intervene in
Parliament intentions!
Gorringe v Calderdale [2004] HL

- Local authority failed to exercise powers to maintain highway
Slow sign worn, driver didn't see and crashes, sues local authority
HL follows Stovin, no duty of care to exercise powers under highway act
Yetkin v Mahmood CoA-contrast

- Local authority had engaged in highway maintenance already here
- Hedge that is too high blocks sight, driver runs into the road
Court
Council in this instance owes a DoC
No duty of care in a failure to exercise this statutory power
Once a council has decided to exercise their power, then duty of care can arise
Mitchell and Glasgow CC

- Mr. Mitchells neighbour was prone with violence
Mr mitchell compained to CC, who then told his psychopathic neighbour he was being
evicted
The neighbour goes and beats Mitchell to death
- Court said there was a DoC b/c there was a landlord-tenant relationship
No DoC doesn't extend to positive duty to warn Mr. Mitchell about his neighbour he
might kill him

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might kill him

Not sufficient
Sutradhar v National Research Council

- Bangledeshi council forgot to check for arsenic
Not liable to claimant who suffered
Bad because floodgates: everyone would be able to sue
Why does the court make this distinction?
- L Nicholls
Diff between requiring a person to not embark on a course of conduct which may harm
others and requiring one who is doing nothing to take positive action
Compulsory altruisim needs more justification than an obligation not to create dangers
to others
Creation of risk important factor in imposing liability
- L hoffman objections Stovin v Wise
Political
Less burdensome to require one to not act a certain way
Forcing one to save a drowning child puts rescuer in dangerous situation too
Would be too much incursion into D's personal freedom
Moral
Moral value of act: if not imposing duty, then moral value would be more
Why should one be held liable rather than the other?
Many potential rescuers, who to sue
Child drowning on beach, everyone omits to do something-why pick on me?
Compensation
Morally culpable, but not necessarily means you have to pay
Economic
Activity should bear its own costs. Otherwise market is distorted
b/c activity appears cheaper than it really is
Cheaper to protect life by forbidding to do harm than by requiring people to help
others
Links to floodgate: if everyone sues, then company would lose
Line between acts and omissions

- May depend on how broad one looks at the issue that is part of larger activity taken by
claimant
Failure to apply handbreak, omission is element which makes activity negligent
- The Ogopogo
Could be liablity on what on facts seemed to be omissions
generating risk may generate positive duty to rescue
Exceptions-5 types: special exceptions, assumed responsibility, creation of risk, contractual

relationship parent child relationship, act and omission (hit passerby with car, but does not call
hosiptal)
- Must be something exceptional about facts
Ogopogo
Where the D has actually created the risk to begin with
Link consequent harm to original activity
Yetkin-original act to build the bad roundabout. Negligent in failure to
amend own mistake.
- special relationships
Barns v Hampshire CC
Young girl released early from school
School released early 5 minutes, mother did not arrive yet
Girl ran over by car
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Girl ran over by car

Relationship of dependence and control, so liable for omission to maintain her in
school
Reeves
Vulnerable prisoner who on remand (awaiting trial), very vulnerable to suicide
Police knew he was particularly vulnerable to suicide, had tried to kill himself
before (the very same morning)
Put him on cell on suicide watch
Door was defective and allowed to hang himself
Police argued that his deliberate killing of himself broke chain of causation
HL says this does not absolve police because they had special relationship
Self contradictory to allow suicide to break chain of causation
Police was positively required to stop him from doing so specifically
Chandler v Cape
Positive steps to protect employees health
Duty could extend to parent company that may assume responsibility to subsidiary
company
Asbestos in walls
Cs had to sue parent company because bankrupt subsidiayetry
Arden LJ
Assumption need not be voluntary, can be assumed
Attachment better word
Stansby v Tromlin
Person decorating other's home, leaves door unlocked, house stolen
Contract between decorator and owner
Owed duty of care
- assumed responsibility
Barrett v Ministry of Defence [1995]
No duty of care to prevent C from drinking himself to death in Norway
Law doesn't require people to take reasonably care to prevent others from
harming themselves
This is the case even though employer
If Ds had actually voluntarily assumed responsibility, then was actionable b/c
under duty of care and negligent
E.g. take him to his room, lay him on his side, etc.
Contrast with Reeves
Barret tells us there is generally no duty to prevent us from harming
ourselves, but if you assume duty then yes or if there is a special
relationship
Professional rescuers
Depends on nature of rescuer (fire service, ambulance)
Easier to establish ambulance than fire brigate owed DoC
Capital and Counties v Hampshire
Starts by saying fire brigade had no duty under tort law to rescue you (but
yes in public law)
Would conflict: what if you had to burn down several properties to
save rest of community
Fact that fire brigades takes on a fire they cannot be liable under tort
law
Who would this duty be owed to? (they dont fight fire for benefit of
property owner,they think about the community interest)
Doctor who walks past by dying person not liable
However, if they make situations worse, then they owe duty of care
Turns of sprinklers, fire becomes worse-owed DoC
Kent v Griffiths
Ambulance takes 40 minutes to turn up, girl suffers damage to lungs for
asthma attack
Doctor said if he knew it would be 40 minutes, he would have made
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Doctor said if he knew it would be 40 minutes, he would have made

girl's husband to drive her to hospital
Contrasts from Capital b/c ambulance works in service of the individual,
reasoning that fire brigades work for community doesn't apply
Also, C gave up other option (relied on the ambulance)
Reasonable for general public to have DoC in this instance
Paramedics in less danger.
Can reconcile with fire service
Standard of care higher for ambulance
Make sense for difference between fire and ambulance services?
Easy duty to rescue?
Law doesn't impose, but should
Law more generous for good samaritans, but not good for bad samaritans
Haynes v Harwood
Carriage rescued by police, police got hurt, court said forseeable rescuers
and owed duty to potential rescuers
Ogwo v Taylor
Forseeable need for intervention by firefighters
Fireman's rule doesn't apply in English law
Harrison v British Railways Board
D creates a forseeable risk, owed duty of care even if foreseeable risk was to
himself
Contrast between Greatorex (harrison principle doesn't apply to psych
harm"
Occupation of Land
- Goldman v Hargrave 1967
Measured duty of care by occupiers to remove reduce hazards to neighbours
L Nichols in Stovin v Wise
Resources of D is very important because it's a lot more burdensome
- Leakey v national trust
- Holbek Hotel case
Reasonable threshold for positive acts to remove hazards depends on circumstances and
occupier's resources
- Negligent standard
-
Liability for acts of third parties

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Public Authorities
Monday, December 1, 2014 10:02 AM
Lots of litigation in past 20 years

Public authorities encompass broad range
- NHS, government departments, local authorities, police, etc
Public authorities generally act under statutory duties
- Should a common law duty of care interfere?
- Should the public law and tort law run simultaneously
Public authorities as ordinary defendants and claimants

- Claimants
Islington v UCL hospital
Customs and Excise v Barclays
- Defendants
Reeves v Commissioner of Police
Tomlinson v Congleson
Why are public authorities special?

- Cost of actions may come from public purse
Many claims are claimed by insurance company on basis of subrogation
- Floodgates
Fear of inundation of frivolous/less meritorious claims
Since state is pervasive many possibilities of claims
Public authorities don't go bankrupt, so attractive defendants
- Relevance of policy to activities of public authorities
- Outside jurisdiction of court-courts don't want to judicate claims with significant amount
of policy issues
- X v Bedfordshire CC
- Possibility of wasteful or defensive practices
- Hill v CC of West Yorkshire
- Overlap with other areas of legal liability
- Tort: Breach of statutory duty, misfeasance in public office
- Public law
- Human Rights Act 1998
- Sueing for damages here covers much of same ground in tort
That public authorities act pursuant to powers is not automatic immunity

- Geddis v Bann Reservoir Proprietors
- Statutory power to maintain water source, in order to do so built artificial channel to
divert water to reservoir
- Failed to maintain this channel, leaked and damaged land
- L Blackburn
If exercising statutory powers reasonably, not actionable
If exercising statutory powers negligently, actionable
- East Suffolk Rivers Catchment Board v Kent
- Mere exercise of power did not generate affirmative duty of care
- Must establish duty of care for public bodies in order to sue
- 14 day repair taken 140 days
Common law DoC distinct from Tort of Statutory Duty

- If parliament targets a group of individuals with legislation, C within class of persons for whose
protection the statute was enacted, suffers relevant loss, establish causation

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protection the statute was enacted, suffers relevant loss, establish causation
- X v Bedfordshire
Formula
1st.
- Is subject matter justiciable?
- Should the matter be adjucated by trial judge in civil action?
- Or is it so closely related to public policy issues that it shouldnt be?
- 2 questions
Did D act within their discretion
Dichotomy between operational./policy issues
- Discretion
Dorset Yacht
Statute may grant public authority a discretion within which the public
authority can make choices compatible with nature of discretion
Choices not under scrutiny of tort of negligence-errors may be made
However, if public authorities act outside discretion then actions may be
opened up to scrutiny under tort law
On facts no discretion to begin with
Basically must show that actions of public authorities fell outside their discretion
- Operational v policy decisions
Anns v Merton
Certain activities of public bodies involve strong policy reasons, and often
linked to discretion
Operational decisions involve less policy choices
Implementing policy choices that have already been made
The clearer it is, the more amenable the power-more likely a duty of
care
X v Bedfordshire
Education
Policy issues: where to open a school, and what sort of school it
would be
Operational issues: day-to-day decisions to run the school.
Timetable, menu in canteen, etc. much less political and so
much more liable in tort
However, Hoffman in Stovin v Wise
This is not very good distinction-operational and policy decisions often not
always distinct
2nd
- Does duty of care arise?
- If 1st limb met, then normal test for duty of care-Caparo
Forseeable
Fair, just reasonable
Proximity
Earlier restrictive approach

- Anns
- Too expansive
- Hill v CC of West Yorkshire
- Is there actualy DoC?
HL-police owed no duty of care to Hill with respect to conduct of police
Absence of proximity
Imposing duty of care may create detrimentally defensive frame of mind
Resources spent to fight torts, not crime
- X v Bedfordshire

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- X v Bedfordshire
- Should local authorities should have taken children into care faster
- Policy reasons why DoC wouldn't apply here
Lots of public law considerations
Weighing parents and childrens and society's rights
Fear of excess caution on public bodies
- Abuse cases=not fair, just and reasonable
- High watermark of very deferential to public authorities
- Stovin v Wise
- Highways Act 1980
- Highway authority alleged to be negligent in not removing highway obstruction
Court
Distinction between failure to exercise and negligent exercise
Usually only second category DoC arises
- Gorringe v Calderdale
- Failure to paint slow-down sign
- HL follows stovin v wise, omission no DoC, only negligent exercise
- Yetkin v London Borough of Newham
- Negligent exercise of power
- DoC exists
More expansive recent cases-less deferential

- Barrett v Enfield London Borough Council
- Child taken into care when only a few months old
- Number of different social workers
- Allegation that Enfield London BC negligent to child's care
Child has self-harming issues, etc.
- Looks like situation in X
Court said previously that they cannot impose DoC above statutory obligations of
local authority
However, this case
HL
Lord Slynn
Distinction between X and this case
In X, whether local authority should exercise powers to take
child into care
Barett case circumstances different-local authority already took
child in, question as to whether DoC happened here
Possible that there could be a DoC on facts
- Comes after Osman case, where EU said English courts were too deferential to PAs
- Phelps v Hillingdon London BC
- Whether educational authorities owe DoC to pupils
Students had very bad reading age when left school
- HL much more receptive to possibility of DoC
Arguable that local authority employers may be vicariously liable for alleged
negligence of employed teachers
- Carty v Croydon
- Applies Phelps
- Duty of education officers to produce reports
- HL
Probably no breach on facts
- Connor v Surrey CC
- Local authority failed to prevent her from bullying
- People said C was islamaphobic, she wasnt she claims
Got 400,000 for stress at work
- Allegation for failure to exercisfme discretionary statutory power
Authorites failed to step in to prevent series of unpleasant events at school
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Authorites failed to step in to prevent series of unpleasant events at school

management level
Very contrary to Stovin!
- Smith v MOD
- Combat immunity not outright bar to claims against MoD for negligently preparing
soldier for war
- Bad IED detectors, improper training led to friendly fire
HL by 4-3
Notion of immunity during war shouldn't extend to preparation for war
Contrast with MoD
Concept of combat immunity does not extend to training
More recent restrictive holdings (but reflect less restrictive approach)
- D v East Berkshire NHS
- Wrongly thought children were being abused by parents due to syndrome
- Was DoC owed to parents who were falsely accused?
HL said no, hospital owes duty to children, not parents
Can't be conflict of duties for hospital
- Jain v Trent Health Authority
- Health authority had without notice to C withdrawn their license to operate nursing
home
- Not right revocation-HL says there is problem
- HL said it was negligent for HA to do so
But no DoC
Said should fix procedures to grant/withdraw notices, tort not appropriate remedy
Classic case where human rights act should be applied
Negligence and police

- Historically very deferential (Hill, Smith)
- Smith
Person is being threatened, tells police, police didn't really respond to clear and
obvious step
Smith seriously injured by threatening party, sues police
Court says not fair just reasonable to have DoC here
Strong restatement of Hill principle
- Doesnt mean police doesn't have complete immunity
- Reeves (vulnerable depressed prisoner)
Police had duty once they knew he was suicidal
- Swinney
Anonymous informer's name was revealed, suffers psychiatric harm from threats
DoC owed, could recover
- Michael v CC South Wales police
Police called 4 times to warn abusive partner
Abusive partner caused physical harm to C, takes C's new partner and says they
will kill him
C calls police
Police gets redirected-operator passes it on to the correct police force.
Forgets to mention that the partner was going to kill her-downgraded to
minor emergency
Police arrive too late and stab C to death
SC must judge whether there are DoC on these facts
CA said bound by Hill and Smith
SC must determine
Human rights
- Osman v UK
- Schoolboy stalked by teacher who becomes infatuated
- Teacher begins to attack child's house, and shoots child's father and child

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- Teacher begins to attack child's house, and shoots child's father and child
- Negligence action to CA
No DoC owed by police despite numerous phone calls
- EUHR court says must assess more facts, no de facto immunity
Breach of right to fair trial
- Z v UK
- Strasbourg rolls back in emphatic approach in Osman
- Finds no breach or Art. 6- right to fair trial
- Strike out actions arent de-facto, assessment still reasonable in light of domestic tort law
- However said no effective remedy, strasbourg court says no
- Basically overturns Osman, agrees that UK court got it right in Hill
- AD v UK
Human Rights Act 1998

- S.7
- Right to damages when public authority has breached obligations in the act
- Courts initially reluctant here where it would circumvent finding that no DoC occurred in
tort
Van Colle v CC Herfordshire
Witness in police was intimidated and attacked by suspect
Alleged police failed to protect him
HL said no violation
Skeptical on use of HRA
NBV v Commissoner of Police for Metropolis
- Black cab rapist
- High court
Met doesn't recognize pattern until later
Police owed duty to women who are attacked
Will be appealed

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Product Liability
Monday, 26 January 2015 10:07
No fault element in product liability

Product Liability Directive 1985
- EEC
- Focuses on lack of safety in a product rather than fault of producer in making it
Consumer Protection Act 1987 s.2
- Applies where any damage is caused wholly/partly by a defect in a product, the relevant
defendant will be liable
S.2.2. Relevant people?
Producer of product
Any person who puts his name on the product (George Foreman)
Liability may extend to supplier
Producer:
Person who manufactured the product
If product is more abstract, then person who abstracted it
Product:
Injury S.45
Disease and any other impairment of a person's physical/mental condition
Supply S.46
European commission v UK
- EC said the CPA didn't protect consumer sufficiently
- CJEU confirmed that he CPA was sufficient to protect persons harmed by products
However, confirmed that if there is any doubt about national legislation, need CJEU to
rule
Defect
- S.3
- Defect in a product if safety of product is not such as persons generally entitled to expect
- Draw upon
How product is marketed
How it's used
What it's used for
- Objective inquiry: "entitled" to expect
- Cases
A v National Blood authority 1988
Transfused blood was infected with Hepatitis C
No suggestion as to fault on part of hospitals
At this time, they couldn't even detect Hep. C
How is the public "entitled" to expect something they don't even
know about?
Entitled to believe that the blood was safe-not that it wasn't
infected by some specific disease
Regardless of no fault on NBA, Cs won
Burton J
Blood was non-standard product, and were unsafe by virtue of its harmful
characteristics
Standard v non-standard products (1st step of PQ) (nature of defect-not nature of
product)
Standard product=the way producer expect it to behave
Policy/economic considerations (cost of mcdonalds to make it cooler,
etc.)
Utility of product are considerations

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Utility of product are considerations

Non-standard product=producers do not expect this to behave
Policy considerations do not feature
Richardson v LRC Products
Woman sued condom because condom broke, so she got pregnant
Ian Kennedy J
Held no defect in product on these facts
"generally entitled to expect"
User will expect it to not fail, but no one has every said that it was
100% effective
Entitled to expect 99% success rate, if 1% happens it's not a defect
Abuaid v Mothercare
C helped mother fix a cosytoe to a buggy
A leather rubber strap hit him in the eye as they were typing the buggy
Claimed a defective product because it sprang back
CoA
Was a defective case, liability established
No instructions to say "be careful it might rebound"
Vulnerability of the eye and serious consequences which may
follow
D fell short-no need to precisely determine what more should
have been done, only that more could
Pill LJ
Knowledge of previous accidents not necessary for finding a
defect (no need for company to be warned of this defect)
Reasonably foreseeability not ingredient
Bogle v McDonalds Restaurants
Coffee was served at too high a temperature, and lid was defective
Field J
Persons generally expect tea/coffee to be hot
Not enough to show that there was injury after someone has bought a
product
Only does it fall short of general expectations
Pollard v Tesco Stores
Mother used dishwasher powder, little boy ate the powder and got sick
Claimed that the bottle was defective and that a small boy could open it
The cap did have a child safety cap
Is safety not that which people are generally entitled to expect?
Laws LJ
Entitled to expect it to be harder to open than a general
screwtop
Not that children would never be able to open it
Defenses
- Burden of proof on defendant to prove defenses
- S.4 CPA 1987
1.e.
Scientific knowledge at the time was not available for manufacturer to find the
defect on time
EC v UK
Burden of proof on defendant
Abouzaid v Mothercare
Chadwick
These considerations aren't relevant to whether product is defective
Only comes into play during defenses
S.6(4)
Contributory negligence may be partial defense

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Contributory negligence may be partial defense

Negligent in using hot coffee, etc.
S.7
Liability cannot be excluded in contract
Complex structures are excluded
If car tires defective and car defective, C cannot sue car makers
P.389 Mcbride/Bagshaw
- Warnings
Change what the customers are legitimately entitled to expect, so changes s.3
S.3.a
- There is difference between commercial context
Academics
- Fletcher
Reciprocity of harm: customer takes risk of harm, then manufacturer should take risk ask
well
- Keating
They make profit off you, so they should be liable for risk
Flawed argument
Acts v activities
- Epstein
- Mcbride and Bagshaw
Moving away from tort law in this area-not focusing on legal wrongs
Can claim under CPA 2002 and negligence

- Less onerous under CPA 2002
What can you claim for

- Personal injury S.5
- Loss/damage to property

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Defamation
Tuesday, 27 January 2015 15:03
Protecting reputation
- Freedom of expression vs reputation
Cannot defame the dead

- Broom v J Ritchie
Cannot sue someone who is ead
LJ Clerk
No one else can claim bc cannot sue on behalf of someone else
- Smith v Dha
Even if action had already started
S.12 HRA 1998

- Court must pay particular attention if freedom of expression is affected
- Where it appears that it affects journalists, literary or artistic material the court must pay
particular attention
- Art 10
Everyone has right to freedom of expression
However, exercise of freedoms may be subject formalities, conditions, restrictions in
interest of
National security,
Etc.
Reputation.
Chilling effect
Inhibit people from speaking at all if you charge them with defamation
Why do we care about reputation?

- Reynolds
Prime minister of ireland sued times newspaper
L Nichols
In political context one's reputation is an important interest
Even in normal contexts it's important
Defamation Act 2013
- Growing concern of chilling effect
- Designed to make it harder to claim for defamation
- S.11 Removed trial by jury
Unless court orders otherwise
Used to be that defendants can elect to be judged by jury
- Spiller v Joseph
L Phillips
Said juries are not good in defamantion
Public Authorities?
- Derbyshire v Times Newspapers
Lord Keith
Public authorities themselves may not sue for defamation
Contrary to public interest
It would be designing a fetter on free speech
Shouldn't be able to stop journalists from suing in context of defamation
Does not include corporations
Patfield and Howarth
Defamatory statements have different impacts for private companies rather than
public bodies

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public bodies
- Lots more challenges
Malice
- Malice not relevant to liability
- Motive of D not relevant
- May be relevant in defeating certain defenses
Actually divided into 2 separate torts

- Libel and Slander
Libel is permanent statement
Slander=transient/non permanent
- Key consequential difference
Jones v Jones
- Libel=actionable per se
- Slander=proof of special damage required
Legislative changes
- Broadcasting act 1990
Publication of words in any program will be treated as permanent (libel)
- Theaters act 1968
Words/actions in performance of play will treated as permanent (libel)
- Where slander needs no proof of damage
Suggesting a criminal offense
- Repealed exceptions to requirement of proof for slander
Slander of women act
Allegation that person has infectious disease
Elements
- Defamatory statement
- Reference to the claimant
- Publication
- No defences
Defamatory Statement
- No need to prove what D said was false
Law presumes that the statement was false
- S.1 da 13 "serious harm"
Statement not defamatory unless its publication has caused/likely to cause serious harm
to reputation of claimant (Statutory)
Harm to reputation of body that trades for profit is not serious harm unless likely to
cause the body serious financial harm
- Cooke v MGN
MGN made documentary about people living on this street
Referred to dodgy landlords who were claimed to be charging very
extortionate prices
C claimed that the story who placed her with those dodgy people
suggested she was also extorting her customers
Newspaper published a newspaper
Where this article would cost serious harm
Bean J
Said this did not cause serious harm
Fact that newspaper apologized reduced harm
Sometimes there needs to be evidence, but other times there
isn't
Party magnitude of allegation: worse allegation, probably
worse harm
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worse harm
- Sin v Stretch
Maid resumed service with former employer
Temporary employer took offense at note
L Atkin
Would words lower the plaintiff in the estimation of right-thinking
members of society generally?
- Gillick v BBC
C challenged earlier when can doctors help teenage girls plan families
without consent of parents
Participants on BBC accused C of causing the death of these 2
pregnant teenage girls
In morally controversial issues, right-thinking members may be both
ways?
Nieil LJ
Hypothetical reader should not select one bad meaning where other
non-defamatory meanings are available
- Byrne v Dean
Golf club-illegal gambling machine on premises and someone tipped off
police that took them away
Someone wrote a piece suggesting C tipped the police off
C took offense at being accused of being a snitch
Slesser LJ
Not defamatory to suggest that he was the one to reported it
"saying someone has legally talked to police would not be defamed in
right minded public mind."
- Innuendo
"read between the lines"
"false" innuendo - implication of the words
"true " innuendo - meaning if you know additional facts
Lewis v Dailuy Telegraph
- "Inquiry on firm by city police"
- "Fraud squad probe firm"
- Firm sued that the innuendo is that they actually did it
L Reid: ordinary man not inhibited by rules of construction-can read
between the lines
Tolley v Fry
- D used an amateurish golfer's likeness on an advert without his permission
- Implication that he endorsed them
Suggested that he was sponsored-which bad for his amateur status
Inference is that his consent was given
- On facts the poem/facts was that the use was enough to be defamatory
Part of the whole?
- C has to show that if the rest of the article counters the disreputable thing
- Chalmers v Payne
Alderson B
Look around the defamatory article
- Charleston v News Group Newspapers
Headline in newspaper-someone put faces of Cs onto porn
However, NGN wrote article that explained the headline. D would be liable if
headline was isolated
- Lord McAlpine v Bercow
L McAlpine was wrongly implicated in newsline about child
Wrongly accused but not specifically named
"why is lord Mcalpine trending"-tweeted by other woman
Judge
Readers would reasonably infer that the D was calling out C as the
unnamed person
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unnamed person
Bercow lost
Ridicule?
- Bercoff v Burchill
Journalist wrote several articles on film directors
Called Berkoff "hideous"
Said Frankenstein looks a little better than Berkoff
Berkoff sued this
Court held in favour of Berkoff
LJ Neil
Burchill gave indication that he's not just unattractive, but
repulsive
As an actor his image is important
Words may be defamatory even if they don't impute disgraceful
conduct or lack of efficiency
Holding him up to contempt scorn or ridicule that tend to
excuse him from society
Exact border hard to define
Millet LJ
Dissents
One thing to ridicule a man, another to expose him to
ridicule
- Elton John v Guardian News & Media
Elton john holds a ball every year
Journalist made fun of him by pretending to be him and writing a diary
Elton John sued
Judge
Statements in this case not defamatory
Article was clearly ironic-irony is clearly not defamantory
This is false: but no reasonable reader would ever think it was actually
written by Elton John
- Fine line between Elton John and Berkoff
Is it merely poking fun or is it more dangerous?
Can corporations sue for defamation?

- Steel and Morris v UK
C complained at Strasburg against UK for a previous suit by McDonalds
- Jameel
Saudi businessman and his company
- Wallstreet journal ran an article saying C were being investigated for links to
terrorism
- Should newspaper should have defence
D argued that company should not sue unless they can show loss
Majority upheld that companies can sue for defamation
- Having to show financial loss isn't only
- People will not want to deal with a defamed company-this is proper damage as
well
L hoffman dissenting
- Defamation=harm to reputation, and must have a soul to sue for defamation
- However commercial reputation has no soul-it's merely a financial asset
- S1 DA 13 "serious harm"
Subsection 2: Mere harm to reputation of company not actionable unless can be shown
of actual financial loss
Legislation changes the law
Reference to the claimant

- C needs to show the statement referred to them
Newstead v London Express
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C needs to show the statement referred to them

Newstead v London Express
- Newspaper reported that a man was on trial for bigamy
- 2 newsteads: one was an actual bigamist, another was a barber
- The barber said this was defamatory to him
- Court
C needs to show that the statement refers to them
No need to show, however that it was directed at them
Hulton v Jones
- Spoof diary in magazine wrote in a made-up name, Artemus Jones in which he
confessed his adultery
Real artemus jones read it and sued
- Court followed Newstead
Cassidy v Daily Mirror
- Newspaper published a photo of a couple announcing their engagement
However, woman presented them as already married-therefore not
engaged, already married
- Scrutton
Can an inference be drawn with reference to this claimant?
Knupffer v London Express
- Article about young russia party
Alleged they have fascist sympathies
- Claimant sued-he was associated with this group
People read article and thought it referred to him
- Court
Claim failed
Not enough to show you're part of a large group of people
L Atkin
Hard to conclude claimant was included in the defamatory statement
Has to prove the statement referred directly to them
Riches v Newsgroup
- 10 people could bring claim for defamation
Specific to them
- Smaller group-must be more specific
General vs specific nature of statement
Smaller number of defamed people
Publication
- Statement not defamatory in law unless published-brought to knowledge of 3rd parties
Hard of proof
Point of defamation is prevent lowering of society's view of you
- Doesnt happen if not published
- Huth v Huth
Butler opened a letter not intended for him
- Wife wrote letter to husband saying they were getting divorced
- Is this publication?
Court said (L Reading)
- Impossible to prevent
- Even though 3rd person did read it, it was meant for private eyes only-therefore
no claim in defamation
Hinges on private/public intention
- How many other people?
Jameel
- 5 people read the publication, only 2 are not
- Each publication a separate tort
For limitation purposes
- S.8 DA 13
Limit period affects only allows first time to be sued
- Who publishes?
Tamiz v Google
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Tamiz v Google
- Blog/links hosted by google make statement, would google be liable?
- Comments were very rude towards C
- Google didn't published it
Were not held to secondarily liable unless they had "adopted" to keep it
when they were notified and decided not to take it down
- S.10 DA
Court has no jurisidiction to hear action for defamation against person who
was not author of statement unless
The Act
- S.1
Serious harm=defamatory statement
- S.2 Defense of Truth
Truth
- S.3 Defence of honest opinion
Must be grounded in some element of fact
- Kensley v Foot
- S.3.4.a
Malice defeats the defense
- S.4 Defense of public interest
Removed reynolds defense
- 10 principles to satisfy defense
- Jamille
Need to move from reynolds defense to public interest defense
Joseph v Miller
- General nature of facts must lead Ds to reach conclusion that they had
- Has to have basis for statement
Defense must relate to "the sting"
- Turcu v Newsgroup
- The crux of the harming statement
- S.8 (single publication rule)
Decreases number of claims-can only claim once
- Except Flood cases
Critiqued by Butkin
- S.5
Specific defense for hosting a site for hosting blogsite
- Will only be liable if they adopt opinions of others
Problems
- Doesn't say how host should deal with complaint
- Doesn't give time limitations
- S.11
Abolishes jury
Where does the balance now lie in relation to freedom of expression?
- Harder for claimant
Easier defences and more limitations for claimant
- Stronger approach to s.5-websites
- Costs/remedies
Bringing a claim is complex/expensive, quite archaic
- Corporations could have gone one step further
Stages of problem question

- Defamatory statement?
Sin v Stretch
S.1 para 13 DA 2013

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S.1 para 13 DA 2013
4. Defences
A. Truth
Formerly known as Justification
s.2, DA13:
(1) It is a defence to an action for defamation for the defendant to show that the
imputation conveyed by the statement complained of is substantially true.
(2) Subsection (3) applies in an action for defamation if the statement complained of
conveys two or more distinct imputations.
(3) If one or more of the imputations is not shown to be substantially true, the
defence under this section does not fail if, having regard to the imputations which are
shown to be substantially true, the imputations which are not shown to be
substantially true do not seriously harm the claimant's reputation.
(4) The common law defence of justification is abolished and, accordingly, section 5
of the Defamation Act 1952 (justification) is repealed.
Lucas-Box v News Group Newspapers [1986] 1 WLR 147.
B. Honest Opinion
Formerly known as Fair/Honest Comment
Telnikoff v Matesuvitch [1992] 2 AC 343, Lord Templeman at 356:

It was argued that a newspaper could only protect itself against an action for
defamation by confining criticism to passages actually set out in the criticism. I
do not agree. Any critic, whether private or public, whether individual or press,
must simply make clear that he is not quoting the plaintiff but is commenting
on words which the plaintiff has uttered
British Chiropractic Association v Singh [2010] EWCA Civ 350,

Lord Judge CJ:
[23] the material words, however one represents or paraphrases their meaning,
are in our judgment expressions of opinion. The opinion may be mistaken, but
to allow the party which has been denounced on the basis of it to compel its
author to prove in court what he has asserted by way of argument is to invite the
court to become an Orwellian ministry of truth.
[36] Fair comment may have come to decay with imprecision. Honest
opinion better reflects the realities.
Joseph v Spiller [2010] UKSC 53, Lord Phillips of Worth Matravers:

[104] The comment must identify at least in general terms what it is that has led
the commentator to make the comment, so that the reader can understand what the
comment is about and the commentator can, if challenged, explain by giving
particulars of the subject matter of his comment why he expressed the views that he
did. A fair balance must be struck between allowing a critic the freedom to express
himself as he will and requiring him to identify to his readers why it is that he is
making the criticism.
[117] There is only one reform that I would seek to make by this judgmentit is one

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[117] There is only one reform that I would seek to make by this judgmentit is one
that has already received judicial approval The defence of fair comment should be
renamed honest comment.
s.3, DA13: New Conditions (NB not direct quotes)

1) The statement was a statement of opinion.
2) The statement indicated, whether in general or specific terms, the basis of the
opinion.
3) An honest person could have held the opinion on the basis of (a) any fact which
existed at the time the statement complained of was published;
(b) anything asserted to be a fact in a privileged statement published before the
statement complained of.
4) the defendant must have held the opinion.
5) If anothers opinion, the defendant must not have known or ought to have known
that the author did not hold the opinion.
C. Publication on matter of public interest

Formerly known as Reynolds Privilege/Defence
(Responsible Journalism)
Reynolds, Lord Nicholls at 205:
Depending on the circumstances, the matters to be taken into account include
the following. The comments are illustrative only. 1. The seriousness of the
allegation. The more serious the charge, the more the public is misinformed and
the individual harmed, if the allegation is not true. 2. The nature of the
information, and the extent to which the subject matter is a matter of public
concern. 3. The source of the information. Some informants have no direct
knowledge of the events. Some have their own axes to grind, or are being paid
for their stories. 4. The steps taken to verify the information. 5. The status of the
information. The allegation may have already been the subject of an
investigation which commands respect 6. The urgency of the matter. News is
often a perishable commodity. 7. Whether comment was sought from the
plaintiff. He may have information others do not possess or have not disclosed.
An approach to the plaintiff will not always be necessary. 8. Whether the article
contained the gist of the plaintiff's side of the story. 9. The tone of the article. A
newspaper can raise queries or call for an investigation. It need not adopt
allegations as statements of fact. 10. The circumstances of the publication,
including the timing.
This list is not exhaustive. The weight to be given to these and any other relevant
factors will vary from case to case.
Jameel, Lord Hoffmann:

[56] In Reynolds, Lord Nicholls gave his well-known non-exhaustive list of ten
matters which should in suitable cases be taken into account. They are not tests
which the publication has to pass. In the hands of a judge hostile to the spirit of
Reynolds, they can become ten hurdles at any of which the defence may fail.
Flood v Times Newspapers [2012] UKSC 11, Lord Phillips:

[35] There is a danger in putting reportage in a special box of its own. It is an
example of circumstances in which the public interest justifies publication of
facts that carry defamatory inferences without imposing on the journalist any
obligation to attempt to verify the truth of those inferences. Those
circumstances may include the fact that the police are investigating the conduct
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circumstances may include the fact that the police are investigating the conduct
of an individual, or that he has been arrested, or that he has been charged with
an offence.
Lord Mance:
[137] The courts therefore give weight to the judgment of journalists and
editors not merely as to the nature and degree of the steps to be taken before
publishing material, but also as to the content of the material to be published in
the public interest. The courts must have the last word in setting the boundaries
of what can properly be regarded as acceptable journalism, but within those
boundaries the judgment of responsible journalists and editors merits respect.
This is, in my view, of importance in the present case.
See Flood v Times Newspapers [2013] EWHC 2182
s.4, DA13: New Conditions (NB not direct quotes)

1) the statement (of fact or opinion) complained of was, or formed part of, a
statement on a matter of public interest;
2) the defendant reasonably believed that publishing the statement complained of
was in the public interest.
3) The court must in determining whether it was reasonable for the defendant to
believe that publishing the statement was in the public interest disregard any
omission of the defendant to take steps to verify the truth of the imputation conveyed
by it.
4) the court must make such allowance for editorial judgement as it considers
appropriate.
5) the court must have regard to all the circumstances of the case.
D. Privilege
Reynolds, Lord Nicholls at 194:
Sometimes the need for uninhibited expression is of such a high order that the
occasion attracts absolute privilege, as with statements made by judges or
advocates or witnesses in the course of judicial proceedings. More usually, the
privilege is qualified in that it can be defeated if the plaintiff proves the
defendant was actuated by malice.
(a) Absolute Privilege
Statements in Parliament
Statements in Judicial Proceedings
Extensions in s 7, DA13
Article 9, Bill of Rights 1689
The freedome of speech and debates or proceedings in Parlyament ought not to be

impeached or questioned in a court or place out of Parlyament.
A v UK (2003) 36 EHRR 51
(b) Qualified Privilege

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(b) Qualified Privilege

References
Reports to the police
Peer-reviewed statement in scientific or academic journal (S 6, DA13)
Adam v Ward [1917] AC 309, Lord Atkinson 334:

a privileged occasion is ... an occasion where the person who makes a
communication has an interest or a duty, legal, social, or moral, to make it to
the person to whom it is made, and the person to whom it is so made has a
corresponding interest or duty to receive it. This reciprocity is essential.
Watt v Longsdon [1930] 1 KB 130, Scrutton LJ 142:

communications made on these occasions may lose their privilege: (1.) they may
exceed the privilege of the occasion by going beyond the limits of the duty or interest,
or (2.) they may be published with express malice, so that the occasion is not being
legitimately used, but abused.
Horrocks v Lowe [1975] AC 135
Clift v Slough Borough Council [2011] 1 WLR 1774, Ward LJ:

[31] The private interest in one's reputation is to be preferred to the public
convenience of unfettered communication where there is no duty to
communicate at all.
E. Operators of websites
S 5, DA13
(1) This section applies where an action for defamation is brought against the
operator of a website in respect of a statement posted on the website.
(2) It is a defence for the operator to show that it was not the operator who posted
the statement on the website.
(3) The defence is defeated if the claimant shows that(a) it was not possible for the
claimant to identify the person who posted the statement,
(b) the claimant gave the operator a notice of complaint in relation to the statement,
and
(c) the operator failed to respond to the notice of complaint in accordance with any
provision contained in regulations.
5. Remedies
John v Mirror Group Newspapers [1996] 2 All ER 35, Sir Thomas

Bingham MR at 47:
it is the award of damages, not the grant of an injunction (in lieu of an
undertaking), which is the primary remedy which the law provides on proof of
this tort, both because, save in exceptional cases, the grant of an injunction in
practice follows and is dependent on success in recovering damages, and also
because an injunction, while giving the plaintiff protection against repetition in
future, gives him no redress for what has happened in the past. It is to an award
of damages that a plaintiff must look for redress.
Bonnard v Perryman [1891] 2 Ch 269, Lord Coleridge at 284:

Until it is clear that an alleged libel is untrue, it is not clear that any right at all
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Until it is clear that an alleged libel is untrue, it is not clear that any right at all
has been infringed; and the importance of leaving free speech unfettered is a
strong reason in cases of libel for dealing most cautiously and warily with the
granting of interim injunctions.
A. Remoteness?
Slipper v BBC [1991] 1 QB 283, Stocker LJ at 296:
the law relating to republication in defamation cases is but an example of the rules of
novus actus in all cases of tort In a defamation case where there has been
republication the question whether or not there has been a breach in the chain of
causation inevitably arises but such cases are not in a special category related to
defamation actions but are examples of the problem and will fall to be decided on
general principles and in the light of their own facts as established. They are not
specific or special rules peculiar to defamation actions.
McManus v Beckham [2002] 4 All ER 497, Waller LJ:

[34] What the law is striving to achieve in this area is a just and reasonable
result by reference to the position of a reasonable person in the position of the
defendant. If a defendant is actually aware (1) that what she says or does is
likely to be reported, and (2) that if she slanders someone that slander is likely
to be repeated in whole or in part, there is no injustice in her being held
responsible for the damage that the slander causes via that publication
B. Size of Awards?
Rantzen v Mirror Group Newspapers [1994] QB 670, 692:
The question becomes: "Could a reasonable jury have thought that this award was
necessary to compensate the plaintiff and to re-establish his reputation?
Grobbelaar v News Group Newspapers [2002] 4 All ER 732,

Lord Bingham:
[24] The tort of defamation protects those whose reputations have been unlawfully
injured. It affords little or no protection to those who have, or deserve to have, no
reputation deserving of legal protection. It would be an affront to justice if a court
of law were to award substantial damages to a man shown to have acted in such
flagrant breach of his legal and moral obligations.

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Privacy
Monday, 9 February 2015 10:06
Different from defamation

- Privacy=truth, defamation=false
New idea that there should be a new tort that protects privacy
Protected Interest
- Warren and Brandis
World has changed: right to be left alone
People have more need to become private/retreat from the world if they wish
Simultaneously the world has provided more ways to invade one's privacy
So US has protection
English Law
- Protection for privacy
No specific tort for privacy, but can sue under other arms
Kay v Robertson
Well know that in English law there is no right to privacy
No specific privacy protection, but there are other torts that could cover privacy
interests
Courts unhappy that there is no common law for tort
Human Rights Act 1998
Art. 8
Right to respect for private and family life
Art.10
Freedom of expression
Conflicts with privacy right
Implication of these new rights?
Wainwright v Home Office 2004
No need for specific tort for privacy in order to give effect to human
right convention
- Tort of Wrongful Disclosure
Campbell v MGN 2005
Extension/evolution of breach of confidence
Where a confidant has released information
Requirement that there is a relationship of confidence
L Hoffman
Duty moves from duty of good faith applicable to confidential personal
information
To focus on protection of human autonomy
Cause of action now exists even if no relationship of confidence exists
Different from other torts: must be balance of two rights (expression v privacy)
Facts:
Newspaper and celebrity
Newspaper reveals naomi campbell's drug problems, etc.
There was a picture that came out of a clinic and treatment she was
undertaking
Her drug problem not considered private: she had talked about
it before in public
House agreed that there is now a tort of wrongful disclosure
Disagreed on whether on facts tort was allowed
Established the new tort
Elements
Disclosure of

lOMoARcPSD|1290679
Disclosure of
Private information
Reasonable expectation of privacy test (Campbell)
Objective standard
Aspirational standard
Public domain (KGM v News Group)
Must be in public domain
KGM v News Group
C had a 2nd family, 1st family does not know about
2nd family
Newspaper was interested in this
Father-in-law of Gordon Ramsey
D argued this is not private-it's public knowledge.
Public record, anyone can see this
Court held this was not
Just because some information is available to
public does not make it automatically public
Real question: has it really made an act to
public domain?
Not whether if it was available
Depends on a lot of circumstances
HRH v AN
Nature of info, form in which information was
kept/conveyed, if person disclosing was in a confidential
relationship, likely outcome of disclosure
Experience of people whose information was released
Knows/ought to know (private information)
Balancing b/w privacy interests and free speech interests
Types of information deemed private
Intimate information acquired through close friendship: McKennit v Ash
Travel diaries
Sexual conduct
Privacy in pubic places
Photographed in public Campbell
Hale in Campbell
Activity must be private
Hoffmann in Campbell
Photo must be humiliating to protect privacy in public places
Pec (pre-campbell)
Guy tries to kill himself and does it publicly
Media picks it up and broadcasts it
Would satisfy campbell test for privacy in public
Had private element
Was humiliating
Hannover v Germany (2005 ECtHR)
People took photo of princess of Monaco doing everyday things, usually this
is fine
However it's difficult for Princess Caroline
For famous people who are constantly harassed by pubic have rights
not to be photographed
Not about information that was made public
Fact that she is being filmed in public
Destroys her anonymity
Allow celebrity to lead relatively normal lives
OBG v Allen
No complaint over simply being photographed
Must be something more
E.g be celebrity
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E.g be celebrity
Murray v Express Newspapers
People takes a photo of JK rowling's baby
JK rowling sues-court says it's fine
Depends on circumstances whether routine public acts could
attract reasonable expectation of privacy
Nature of activity-jk rowing takes a casual stroll, kim takes
twitter pics of child
Hannover v Germany No. 2
Princess of caroline sued for another photo taken during ski vacation
Court
No protection of privacy in this case
Ski vacation different from riding a bike?
This case: photo was attached to article and talks about how
family is dealing with sickness,
Court says there is a privacy interest that people do not have
their pictures constantly taken
However, there is public interest in the current case in
that information
Freedom of speech outweighed privacy interest
OPO v MLA (CoA)
Father wants to publish life story, mother files for injunction against this
because kid as asbergers and may be effected
Case where injunction was granted (unusual)
Reasoned upon wilkinson v downton, which is not very relied upon
Court did not go into detail about other perhaps more pressing issues
Hughs: social theories of privacy

lOMoARcPSD|1290679
Remedies
Tuesday, 3 March 2015 15:06
Personal remedies
- Pain and Suffering/Loss of immunity

Exemplary damages
- Punitive damages-not corresponds to loss suffered
Can be awarded on top of actual loss because of very bad nature
- Brooks v Barnard
Can be provided in 3 situations L Devlin
Statutory
Unconscitutional action by action of governemnt
D acted to get profit to himself that may outweigh harm suffered
- Cassell v Broome
Could only get exemplary damages if tort in which you were suing was one which could
sue for exemplary damages before 1964
- However, Kuddus v CC of Leicestershire
Was robbery-police who took the report decided not to do anything about it, and filled
out form withdrawing complaint
Forged C's signature on the form
C sued for misfeasance in public office
Lord Slynn
Fell into 2nd category for exemplary damages (L Devlin)
But prior to 1964 there were no exemplary damages (Cassell)
Argues that Cassell test uncessary: as long as action falls into the categories
described by Devlin, Cassell's test uncessary
Irrational/unnecessary extra limitation on exemplary
- AT v Dulghieru
C were victims of D's sex trafficing conduct were forced to pay rent with sex
C's harm was only rent was calculated
More exemplary damages
Nominal/Contemptuous damages
- Very little loss suffered, distinguished from exemplary
- Nominal
Small amount of money
Nominal: token amount of damages awarded where C succeeded in establishing a
tort but may not have actually suffered any loss
Interest may have been infringed without loss
False imprisonment
Lumba
C was convicted on series of assault-was going to be deported at end of
sentence
Home secretary had policy that said prisoners were going to be detained
until deportation after sentence ended
However, HS had made a secret policy to always detain these people-
unlawful to apply secret policy
If they had applied policy, he would have been detained anyways by the
publicly stated policy
Majority: there was a case of false imprisonment
But because he would have been imprisoned anyways, not entitled to
substantial compensation-nominal damages

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substantial compensation-nominal damages

- Contemptuous
Also small money-technicality
Bruce Grobbelaar v News Group Newspapers
Grobbelaar sued NGN for saying he accepted bribes to throw matches
NGM lost on technicality.
Behaviour showed that his image wasn't really harmed because he
was already bad anyways
Small damages to show court's contempt
Death and Damages

- Law Reform MP Act 1934 S.1
All causase of action subsisting against or vested in the deceased shall survive against, or
for the benefit of his estate
Hicks v South Yorkshire
Knowing one will die will not be a compensatory source of harm
Death is-fear of impending death
Act in defamation does not survive on behalf of claimant
- Fatal Accidents Act 1976
S. 1 Dependents of deceased person can make claim
S.1.3
List of people who count
Parent/ascendant
Created by the deceased as his parent
Child
- Reform?
Expand those with standing who are wholly or partly maintained by defendant
Should not have fixed list
- Bereavement
S.1.a. of FAA
Damages representing losts you suffered as relative
Grief/sadness not compensatable
Fixed at 12980 pounds
Injunctions
- Equitable remedy
- Stop D from doing something before/after trial
- Discretionary remedy
Jaggard v Sawyer
Discretionary
Private road cul-de-sac
D bought house and bit of adjoining land subject to restrictive covenant
D built expansion of driveway
C objected because this would interfere with their enjoyment, sought
injunction
Only very small interference
Court
Bingham
C must overcome all other equitable remedies (leches) first
But court still could withold grant
On facts, because it was trivial interference, gave them damages
rather than injunction
Spycatcher
Equity will not act in vain
AG sought damages for leacking confidential information: wanted injunction to
stop everyone from publishing it in UK
Although it was already published against the world
Court
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Court
Said no injunction despite spycatcher supplied worldwide publication and
available to everyone in UK who wants to read it
AG still wants to repress media even though people can read it anyway
If such was the law, then it would be stupid
Measures Bros v Measures
Clean Hands
C agreed to work for 7 years, and not work for anyone else if terminated for 7
years after termination by D
D went bankrupt after 2 years, but still wanted injunction to prevent him
from working for anyone else
But since was not for 7 years, unconscionable to enforce 2nd clause
Public interest
Miller v Jackson
Cricket field may have hurt family
Damages rather than injunction to stop cricket
Kenneway v Thompson
People living new motorboat ground lake
C sought injunction, was granted-some noise was unjustified
Dennis v Ministry of Defense
Countryside where RAF trained figherjets-lots of disruption to house
No injunction, RAF must fly somewhere, so damages
- Interim injunctions
Inbetween trial-continue to suffer harm if no
Test for interim injunction
American Cyanmid
Balance of convenience
Bonnard v Perryman
L Colridge
In defamation this must be cautions
Presumption against balance of convenience in interim injunctions
S.12 Human Rights Act
If relief may interfere with freedom of expression, court must pay particular
attention to impact
Damages in Lieu of injunction

- Particular in nuisance
C would prefer injunction over damages
- Shelfer v City of London Electric
Damage to claimant's properties
Sought injunction to stop this from happening
Can award damages over injunctions is potentially dangerous if you have rich
defendant
Lindley
Court must protect C's rights
LJ Al Smith-grant damages if
If injury of plaintiff's legal right is small
One which can be adequately compensated by small money payment
Oppressive to grant injunction
- Conventry v Lawrence No.1
Stadium used for noisy motorsports, C lived in bungalow near sight-sought injunction to
prevent noise
Decided by SC that it was considered nuisance
Even though planning permission was granted
But what type of damages?
Neuberger
Court reluctant to lie down prescriptive guidance as to how to use discretion
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Court reluctant to lie down prescriptive guidance as to how to use discretion

to give injunction
Says factors taken into account
Prema facie position in nuisance is that there should be
injunction-up to D to show why it should not be injunction
Shelfer still relevant
Should not be exercised mechanically
Normally right to refuse injunction if 3 requirements
satisfied
Fact that those 4 tests not all satisfied is not automatic bar
to injunction
Granting of planning permission relevant to take into account
public interest
Comes into play during damages
Sumption (Obiter)
Criticizes Shelfer
Suggests that damages are ordinarily an adequate remedy for nuisance
Always about tension between parties' interests, damages are
compromise
- Conventry v Lawrence No2
Injunction should not continue as long as property in question is not occupied
Discharged injunction

lOMoARcPSD|1290679
Vicarious Liability
Monday, 9 March 2015 10:15
- Not a tort in itself, does not require a breach by employee
Must be an employer/employee relationship

- Independent contractor v employees
- Question of control
Could employer control the manner in which employer worked
If employer dictated what was to be done, but not the manner, the individual was an independent
contractor
Moved away from thos
Especially for skilled workers-surgeons employers, but does not satisfy test b/c hospital
doesn't tell him how to work
Market Investigations v Social Security Minister
Woman employed on part-time, given some instructions to conduct interviews
Cooke J
Test: is person who has engaged hmself to perform these services performing them as
a person in business on his own account?
If yes, then independent
If no, then employment
Factors taken into account
Control no longer sole factr
Non exhaustive list
Degree of financial risk (insurance)
Responsibility
Opportunity to profit from sound management
Equipment provision
Hall v Lorimer
Short term contract person
Nolan lJ
Not an employee b/c he worked for 20 or more production company, most of them
lasted only a day
Lack of loyalty
- Borrowed employees?
Company A lends company B an employee
Mersey Docks and Harbour Board v Coggins
Crane operator lent out firm, permanent employer was still liable for tort
Viasystems v Thermal Transfer
Dual vicarious liability? When two employers at the same time?
Facts
Viasystems asked thermal transfer to work for them
Thermal transfer subcontracted to 2nd defendant
2nd defendant subcontracted again to a 3rd defendant
Chain of contracts
Contract said therman transfer was liable
Chain of contracts all must contribute?
Court
May LJ
Can be dual vicarious liability
When can this happen?
When reasonable
Rix LJ
Function of doctrine of vicarious liability
Both companies have general responsibility to select employees with care
Dual vicarious liability reasonable
Various Claimants v Catholic Child Welfare Society
School operated by management, but had long relationship with the Institute
(Brothers of Christian Schools)
Institute supplied teachers, headmaster of school selected by institute
Governance of school had relationship of institute, but institute does not
operate school itself
Boys in school got sexual assault by headmaster
At this time, were both layteachers/christian teachers
Could institute also be vicariously liable?
Could it say the institute employed the priests?
Distributing prohibited
Lecture| Downloaded by Bernhard Osmann (osmann88@byom.de)
Notes Page 103
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Could it say the institute employed the priests?

Court: l Philips
Why do we impose this liability?
Employer more likely to have means-deep pockets
Insurance-more likely that employers have insurance
Employee's activity likely to be part of the business activity of the
employer
By putting employee in that position, employer created the risk for the
tort
But then fault element doesnt exist here-you liable for being
"negligent" in selecting these people, but no fault element?
Control argument
Endorses the principle of dual liability in Viasystems
Prefers L Rix's speech
Held that institute was liable m
Suggests that the closeness of the relationship between tortfeasor and
defendant would make vicariously liable
Even if no employer/employee relationship!
"close connection test"
JGE v Trustees of Portsmouth Roman Catholic Diocesan Trust
Parish priest commits tort-can church be liable?
Technically not an employee b/c priest contracts with god, etc.
As well, the priest when commititng sexual abuse outside the scope of his
employment relationship
3rd argument in catholic child not applicable
L Phillips: employer's activity does not have to be making money, as long
as they are trying to service the goal of the organization
Court:
Closeness test as in Catholic Child
Relaionship between the defendant and the tortfeasor should be so close
to a relationship of employer/employee that it can be fairly said that they
are akin to employment
Essencial elements of relationship
Insitute was subdivided into hierarchical structure
Teaching activity was undertaken because provincial instructed
them to do so
Teaching was to further objective of institute
Manner of teaching was directed by institute
Endorsed by L Philips
- Sort of but not really employment?
Morgans v Launcbury
Husband and wife used a car, legal title in wife's name
Husband went to get drinks after work
Promised wife that if he drinks after work, he'll ask for someone to drive him home
He asked a friend to drive him home instead
Friend crashed car due to negligence, husband/friend died
Tried to sue wife for being vicariously liable
If A lends B their car, are you vicariously liable for their negligence
HL
May be able to hold owner of car liable for negligence of lent driver
However, on facts:
Accident occurred when driver chose to do exactly what he was instructed
not to do
Mere permission to drive is not enough to create vicarious responsibility
Driver must have been driving it for the owner's purposes
Cox v Ministry of Justice
C supervise catering in prison
Prisoners supervised to transport rice to kitchen, a prisoner spilt bag on floor and she
told others to stop, another prisoner drops more bag on her back
C sues MoJ for being vicariously liable for prisoners
CoA:
Yes they were liable
Work of prison was clearly on D's behalf and for its benefit
Relationship was akin to employment-prisoner was acting for the benefit of the prison
- Must be course of employment-close connection test
Salmond Test
A wrongful act authorized by master
Wrongful and unauthorized mode of doing some act authorised by the master
It act was so unauthorized as to be an independent act, master is not responsible
Notes Page 104
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It act was so unauthorized as to be an independent act, master is not responsible

Joel v Morrison
Master only liable when employee acting in course of employment
A frolic of his own the master will not be liable
Rose v Plenty
D produced milk-had milkmen
Milkmen prohibited from paying kids to deliver milk
C fell off milk van and hurt himself
Sued the company
Were the Milkmen's actions in course of employment?
Majority: was vicariously liable-employee furthering aim of master-distribute milk,
collect money
Dissenting: but it was expressly prohibited?
Even positively unauthorized activity does not exempt vicarious liability
Lister v Hesley Hall-Lister test
Warden sexually abused boys
Boys sued employer in respect of warden's wrongs
Establish authoritively
No difference in vicarious liability of intentional criminal conduct-must look at
situation in the whole
Can be vicarious liability for criminal conduct
Argument for D
Claims that warden was tasked with taking care of boys
But he was doing the complete opposite-can't say that the original tortfeasor was
acting in the order of the D
But context here
Warden's acts were so close to his employers that it would be fair and just
Sexual abuse was interwoven with warden's duty at school
Dubai Aluminium v Salaam
Sham contracts-firm liable for his employer had been done?
Court made clear that lister was not special test for sexual abuse cases
Wrongful conduct must be very closely connected
Mattis v Pollock
Employer owend night club, employed bouncer
Bouncer got into altercation with C's friends
Bouncer chased off by friend
Bouncer went back to flat who was nearby and returned afterwards with a knife,
attacked C and friends for revenge
C slashed his back and severed his spinal cord, leaving him paralyzed
Could nightclub owner be held liable despite severity of attack?
Also not in his capacity of a bouncer-he cleared off and then came back for an act of
revenge! Can he still be acting in course of employment?
Court:
Bouncer employed to keep security at nightclub
Encouraged to intimidate and rough up customers
Reality: nightclub owner should not have employed him in the first place b/c of
his history
Context of employment-still vicarious liability
Still look for some wrong of the D
But what we see from Lister/Mattis is questioning whether owner should have
been employing him?
Seems to take fault on D into account
Purpose of bouncer not far removed from his tort-both to fight, etc. contrast
from Morris, where tort very different from employee relationship
Majrowski v Gu's and St Thomas NHS Trust
Vicarious liability also for statutory wrongs
Maga v Archdiocese
Employment relationship conceded
C was not catholic and not involved at all with church, but encountered abusive priest
through youth work
Two claims
Vicarious liability for sexual abuse
Negligence for failing to act upon previous report of abuse
Argued that sexual abuse was not in course of employment
Vicarious succeeded
Ability of priest to do rape only possible because of status
LJ Smith: always fact sensitive
Church gave priests authority for legitimate purposes, but if abuse for
illegitmate purposes church can be vicariously liable
Notes Page 105
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illegitmate purposes church can be vicariously liable

Mohamud v Morrisons
C asked to print documents from USB stick, and tortfeasor strongly took against the claimant
Employee swore a lot and chased after C using racist language/very abusive, and
assaulted him
C sued Morrisons who sued Khan
Was employee acting outside employment?
Was instructed to communicate with
Here was outside of course of employment of tortfeasor
Still apply the close connection test
But look at it in the round
Mere fact that the employment provided setting/time/place not
necessarily indicative. Headmaster in school may be on facts be allow
vicarious liability, but on facts not close enough
Factors?
Granting of authority
Must look to facts of case
Assualt should never have happened, but employer not vicariously liable for it
Graham v Commercial Bodyworks Ltd
Tortfeasor sprayed flammable liquid on friend and played with cigarette lighter
Both sued employer
Was playing with cigarette lighter within course of employment?
CoA
No-wrongful act did not further employer's aims
Real cause was the frolicsome but reckless conduct of Cs
Fact that they have access to liquids does not make employer vicariously liable
Approach
- Tort by D1
- Relationship between D1/D2
Generally employment-or akin to employment
- Tort committed in course of employment
Masterclass
- Non-delegable duty vs vicarious liability
VC: arises b/c relationship between employer/employee
No prior relationship between D and C
JD east berkshire
NDD
Arises from pre-existing relationship between C/D
Because of this pre-relationship, D owes C a duty, duty cannot be delegated
Performance can be delegated, but not liability
- VC before negligen
Masters/servants relationship
50 years ago when phillips first started
D1 is employer of D2
Chauffer vs taxi driver or independent contractor
Difference: where employer has control over the MANNER in which employee
exercised his duties (diff. between taxi and chauffer)
Entitled to direct=greater responsibility for actions
D2 committed tort
Tort committed in course of employment
Wrongful act authorized by master vs frolic of his own
Coachman
Drives master to races, runs over someone
Coachman drives coach in
- Moving on
Employer/employee relationship relaxed
Exeption: employer lends employee to 3rd party
If 3rd party has necessary control as original owner, he will be VC
Where crane and operator are both hired out to 3rd party common example
Griffiths
Original employer was liable, even though he had no control due to contractual
provision
Emphasis was on control
But this is out of date
Notes Page 106
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But this is out of date

But why this? Shouldn't original contractual relationship be basis for
vicarious liability
Fleming: joint liability, same in US
Viasystems
Person employed by sub-contractors and head contractor
HL: could have joint liability for both
LJ May
Test of vicarious liability depended on who had the right control
On facts, head contractors and sub-contractors shared control, so both
should be liable
LJ Rix
Those who profit from employees should compensate those who suffer
damages due to negligence
Denied the control test-employee that borrowed liable b/c he is engaged
in original employer's activities
Designed for sake of claimant
Employee is so engaged in activities of both parties that they will
both be liable
Course of employment relaxed
Brothers of Christian Schools
Chief mandate is to teach children principles to a good christian life
Abuse committed by brothers working in a delinquent boys' home
Claim against institute failed
b/c institute not employer of brothers, managers sued that institute should be
jointly liable
Institute was held vicariously liable even though not employer
Relationship was even closer than that of employer/employee!
Institute was as a corporate body
Senior members of institute directed brothers to undertake activity
Activities undertaken was for furthering the goals of institute
How brothers conducted their activities directed by institute
A master is bound by acts that he hasn't authorized if such acts are so closely connected to
the furtherance of his goals
If wrongful act is an incidence of authorized act, VC
Milkman injured young boy, VC even though directly forbidden by employer to
do so
Wrongful act occurred during authorized activities, so justified
But Christian Brothers?
Sexual abuse something done in course of employment?
Salmond's test departed from
(whether wrongful act was closely connected to goals of employer)
rejected
Was there a sufficient connection between abuse and the work which he
was authorized to do?
Lister
CB
VC is imposed where the D2 was put in a position to further D1's goals and increased
the risk that D2 would commit abuse
Closeness of relationship between D2 and D1 expanded
Significantly extended VC
Non-delegative duty?
- Origin from nuisance
Non-delegatable duty (Rylands v Fletcher)
To exercise reasonable care
L Blackburn
Duty should not go so far as to make him ensure that no damage came to his neighbour's
land
Only should be to take reasonable care
- Andrew william/Fleming
Disguised form of VC
Wilson v English
Agent must perform it on owner's behalf
Owner remains vicariously responsible for the damage the agent caused, cannot escape
liability by proving he appointed incompetent agent
- Skills professionals could not be treated as employee of hospital b/c
No control in manner
Gold v Essex
Notes Page 107
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Gold v Essex
Hospital was liable however
Used VC principles
MR used language of NDD, however
Cassidy v MoH
Was ministry liable for negligence of doctor?
Court
Found VC
Doctor was employee of hospital
LJ Denning
Where a person is himself under care, he can't delegate this to anyone else, whether
that be a servant or independent director
Seems to indicate NDD
Lister: non-delegablerer4erer4 duty?
Employer has assumed relationship to plaintiff, which gives specific duties on employer, and
cannot be delegated to servants
Employer assuming relationship to plaintiff would not discharge duty by giving it to
employee
Very large expansion in this area
- Woodland v Essex CC
L Sumption
Young girl fell into water and suffered serious brain damage, lifeguard negligent
Lifeguard was independent contractor, so no VC
Cs wanted to go non-delegated duty
Requirements for DCC
C is especially vulnerable, dependent on care of D to not suffer
There is an antecedent relationship between C and D
C in care of D
Where it is possible to impute a positive duty on D to prevent harm on C
D has element of control over C
C has no control over how D performs his obligations (through employees/3rd
parties)
D delegated to 3rd party an integral part of his duty towards C
3rd party is negligent in the performance of the very duty that was delegated to
him by D
Significant expansion of VC will be imposed
Qualifying sumptions criteria?
Notes Page 108
lOMoARcPSD|1290679
Comparative Law
Comparative law
Old aims
- Acquiring knowledge
- Mapping/classifying the laws of the world
- Learning from other systems
- World peace
Modern aims
- Legislators (national and EU)-make laws attractive for businesses
- Courts
- Practitioners-family law, advise clients for best jurisdiction to divide assets
- Lobbyists (level playing field)
- Harmonisation?
Not so much now
Complicating factors
- Languages
Common law=common language (British Empire)
Translation: negligence, faute, Fahrlasigkeit
Things get loss in translations, creates misunderstanding
- Legal systems
Codification vs case law
Precedents vs statuts
Courts vs civil code
Judiciary and procedure
Continental courts give one decision, no different opinions
Need to know context to have full understanding
Influences
French influences
Western/southern Europe, south America, Africa
Germany/Austria
Central, eastern, northern Europe, Japan, South Korea, Greece
England
India, US, Canada, Hong Kong, Singapore
Legal culture
- Link between legal system/legal culture
Culture differences influence legal systems
- Fault liability/Strict liability
Strict liability much more common in civil jurisdictions: rule in France, not exception
Fair just and reasonable: very embedded in culture

lOMoARcPSD|1290679
French Tort Law

Civil code-all the law of France
Features
- Code Civil 1804
Napoleon
- Principle-based
Unlike english law, where statutes are very specific for parliamentary sovereighnty
- Liberte egalite fraternnite
- Strict liability dominant
- Cour de cassation
Brief apodictic style of judgements - sometimes only 1 page
Main tort law provision

- Art 1382 Code civil
Any act whatever of man, which causes damage to another, obliges the one by whose
"faute" it occurred, to compensate it.
Damage
Causation
Faute
Not exactly "fault"
France don't look at duty-only see if duty is breached
Rochman v Durand
- Art 1384 S1
Person liable not only for damage he causes by his own act, but also for that which is
caused by acts of persons for whom he is responsible, or by things which are in his
custody
Court turned this into a strict liability rule
One is strictly liable if his "thing" causes harm
Court can sometimes make laws-dialogue between judiciary/legislator
Gabillet v Noye 1984
3 year old boy with stick in hand sits on a see-saw
See saw breaks, puts stick in eye of little boy, causes damage, parents sued
Requirements
Thing: stick that ended up in boy's eye
Fact of the thing: connection between thing/accident
Custodian of the thing is liable if he has ___ of the thing
use
Control
Direction
Defenses
External cause that is unforseeable/unavoidable
Liability of 3 year old boy estabished
Kind of harsh
Tort law is instrument for creating liability
To compensate for
Function in france
- Different than in UK
- To create liability
UK, personal responsibility of victims are usually stronger
- Blieck
General strict liability for third persons

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General strict liability for third persons

14 year old boy in mental asylum was allowed certain times to leave institution, set roof
on fire-owner sued
No rules in france for institution to be responsible for their persons
Court of cessation
Created parallel tort with strict liability forthings and for persons
Use/organise,direct, control
Victim protection

lOMoARcPSD|1290679
Road Traffic Accidents

Road traffic accidents

- 30,000 fatalities
- 120,000 permanently disabled
- 240,000 serious injuries
- 1,500,000 minor injuries
- Overview
England Germany France
Legal basis Tort of negligence S.7road traffic act Loi badinter
Liability type Fault Strict Absolute
Protected road N/A Pedestrians, cyclists, Pedestrians, cyclists,
users passengers, drivers passengers
Burden of Victim must prove Liability unless D Liability unless defendant
proof negligent conduct proves external cause proves inexcusable fault
Contributory No exceptions- Not against child <10 No defense
negligence contributory negligence yo
allowed
- General remarks
Motor vehicles compulsorily insured against liability
EU only regulates compulsory liability insurance, not substantive law
No harmonisation expected
Road traffic accident rules reflect most fundamental thoughts about liability in legal
systems
- France
Art.1384(1) will be engaged
Victim only needs to prove the event happened (thing-car caused you damage,
and the keeper of the thing (custodian) caused it to do so)
Liability in principle, unless defences
External cause
Acts of 3rd parties/victim himself that were unforseeable
Very rarely accepted
contributory negligence
More easily accepted
Reforming liability in France, but legislators too slow
Desmares case 1982
Court de Cecassion stepped in
Abolished defence of contributory negligence
External force is the only defense left
Loi Badinter 1985
All or nothing system
C gets 100% or nothing, most of time get 100%
1987: end of Desmares case law
New requirements
Implication
Motor vehicle must be implicated in accident
Defences
Inexcusable fault
Inexcusable fault of victim
If pedestrain crosses a highway without taking
pedestrians-still not inexcusable fault
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pedestrians-still not inexcusable fault

If drunk, no fault
Guy on top of bus, when bus drives off he dies
Inexcusable fault established
But inexcusable fault must be sole cause of accident
No-driver of bus knew there were person on
the roof
Driver's driving off also cause of accident
Interestingly, easier to establish inexcusable fault if sober
Easier to establish that one is aware of danger ]
Cannot be invoked against
<16 years
>70 years
>80% disabled
For these, only intentional conduct can be
inexcusable fault
Voluntary fault of exceptional gravity exposing the victim to a
danger he should have been aware of
Car driver almost always liable for damage he caused
Absolute liability
- Germany
StVG Road Traffic Act s.7
Keeper of motor vehicle liable for personal injury and property loss casued by
operational risk of the motor vehicle
Defences
Force majeur
External cause
Power beyond one's control
Looks like french?
Fairly balanced system
No urge for change
- England
Tort of negligence
Duty of care
William v Holland
Breach
Nettleship v weston
Whether they drove reasonably
Is not involved in french/german system
Mansfield v weetabix
Medical condition?
Cannot breach duty if one is not aware of his medical condition
This would amount to strict liability
If in france/germany, person's health is irrelevant
Defences
Children under age of 10 will not contributory negligence
Germany/England
Can balance negligence of liability
Contributory negligence available
France
All or nothing approach: no contributory negligence
Huppert Proposal
- No legal status
- But recommends reform
Proportionate liability
Basically strict iability
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Basically strict iability

More dangerous vehicle presumed to be more liable, but has several defences
Pedestrian-cyclist
Cyclist liable unless he can prove non-negligence
Car-lorry
Cyclist-motor vehicle
No liability if victim travels at night with no lights on, jumped red lights or was
speeding
Conclusions
- Victim protection is key
But different jurisdictions mean different things
- Compulsory liability insurance
England: thinks that making strict liability would be bad because people can't pay
But in france-compulsory liability, works!
- Differences
Strict liability: France and germany v England
Burden of proof in strict liability beneficial for victim
Constitutional difference:
Supreme court can overule parliament


Lecture Notes Law of Tort

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Lecture Notes Law of Tort

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Lecture notes, Law of Tort

Law Of Tort (King's College London)

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Why do we have it?

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Unlucky firm pays for law firm by taking money out

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Intentional infliction of Emotional Distress

Wilkinson v Downton [1897]

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Trespass to the Person

Intentional interference with the person

Trespass and harassment

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Writ of trespass (protected personal interests, land, goods)

Main differences between Trespass and Case

Trespass Negligence (Case)

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- Don't confuse motives with intentions

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Should we skip directness requirement?

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Imminent threat of battery

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Detention: actual restraint required

No requirement for you to be aware of your false imprisonment

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Vincent v Lake Erie Transportation Co

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C can sue if he was in possession of land at time of alleged trespass

JA Pye Ltd v Graham

Owner of land is in possession of land unless evidence to the contrary

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Compensatory damages for losses occurring from trespass

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- Show actual harm

Often called "environmental tort"

Public/Private law controls

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Where something has emanated onto the claimant's land

Reduction of amenity value

Physical Damage to land

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Reasonableness of interference depends on 5 factors

C suffered loss due to D's fumes

Only may be relevant in remedies (E.G no injunction, only damages)

Presence of brothel could amount to nuisance

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- Natural forces on D's property cause damage to C's property

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If nuisance is a certainty in following with the statutory authority then it is OK. On

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Strict Liabilit7y in one-off escapes

How should it be viewed today?

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1. D must be owner or occupier of the land

5. Some form of escape