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An Introduction to English Tort Law

’Gbenga Bamodu

Professor of Common Law


British University in Egypt

Dar Al Nahda Al Arabia


32 Abdel-Khalek Tharwat Street
Cairo

© ’Gbenga Bamodu 2018


About the author
’Gbenga Bamodu is Professor of Common Law at the British
University. He has taught law previously at the University of Wales,
Aberystwyth (UK) and the University of Essex, Colchester (UK); he has
also been a visiting lecturer or academic at other institutions including
the University of Paris X, Nanterre (France), the University of Tampere
(Finland) and the Nigerian Institute of Advanced Legal Studies
(Nigeria). He has acted in the past as external examiner of dissertations
for King’s College University of London and the University of East
London (UK).

’Gbenga’s research interest is primarily in the field of international trade


law and commercial law including international commercial litigation
and dispute resolution. He has an internationally recognised track
record as a researcher with extensive publications in scholarly works
and international journals. He has produced pioneering work on
harmonisation of law in Africa and on electronic commerce law in
Nigeria and his papers are frequently cited by scholars from all parts of
the world. International recognition of his work include: citation of his
article before the Supreme Court of the United States in the case of
Kiobel v Royal Dutch Co; use of his work by the United Nations
Commission on Trade and Development (UNCTAD) in training
materials for government officials and policy makers; citation of his
work in a Research Document produced for the European Union;
referencing of his work by organisations including the United Nations
Commission on International Trade Law (UNCITRAL) and the
International Monetary Fund.

’Gbenga has acted as a consultant for both private organisations and


state entities including the African Export-Import Bank (Cairo), the
Government of the Lagos State of Nigeria, the National Information &
Technology Development Agency (Nigeria), and as consultant for
counsel in litigation on issues of major commercial and constitutional
significance. He is a consultant for Phillipsons Consultancy and has
extensive experience on structured/trade finance and has worked on
several multimillion dollar transactions including PPP finance projects,
syndicated term loan facilities and other secured credit facilities. He
also has arbitration experience and successfully represented a client in
a London Maritime Arbitrators Association (LMAA) arbitration.

i
Preface

This book is inspired by my experience of teaching the classes


on the Law of Tort to students on the joint Egyptian and English
law degrees at the British University in Egypt. One of the
challenges faced whilst teaching English law at a university in
Egypt is the difficulty of procuring English textbooks. One way of
combatting this particular challenge was to provide extensive
lecture notes to the students and this book is based on an
adaptation of those lecture notes. Effort has been made to write
the book in language generally accessible to students studying
English law whilst their own first language is not English. There
is also the added consideration that the studies are in a legal
system, the common law, with significant differences in both
substantive law and judicial approaches from the civil law system
which is predominant in Egyptian private law. Students interested
in further deepening their knowledge and understanding are
encouraged to further consult standard English textbooks and
classic reference works on English Tort law.

ii
To

Ademide Olumayowa Ayodola Akanni


Bamodu

iii
Contents
Table of Cases
Legislation and Legislative Instruments

Chapter One: ............................................................................ 1


Fundamentals of English Tort Law ............................................ 1
1.1 General Introduction .................................................... 2
1.2 Tort Law and the Law of Obligations............................ 2
1.3 Tort: ‘Right’ or ‘Wrong’ ................................................. 3
1.4 Terminology ................................................................. 4
1.5 Policy Considerations .................................................. 6
1.6 The Role of Insurance .................................................. 8
1.7 Classification ................................................................ 8
Chapter Two: .......................................................................... 10
Trespass to the Person ........................................................... 10
2.1 General Introduction .................................................. 10
2.1.1 ‘Actionable per se’ ............................................... 12
2.1.2 The role of intention ............................................. 12
2.2 Assault ....................................................................... 14
2.2.1 ‘Apprehend’ … unlawful force.............................. 14
2.2.2 Intention............................................................... 17
2.3 Battery ....................................................................... 17
2.3.1 Direct application/infliction ................................... 17
2.3.2 Force ................................................................... 18
2.3.3 Intention............................................................... 19
2.4 Defences to Assault and Battery ................................ 20
2.4.1 Consent ............................................................... 20
2.4.2 Necessity ............................................................. 21

iv
2.4.3 Self-defence ........................................................ 21
2.5 False Imprisonment ................................................... 21
2.6 Defences to False Imprisonment ............................... 27
2.7 Intentional Infliction of Distress .................................. 28
2.7.1 The tort (or rule) in Wilkinson v Downton............. 28
Chapter Three: ........................................................................ 31
Trespass to Land .................................................................... 31
3.1 Introduction ................................................................ 32
3.2 Elements of Trespass to Land ................................... 33
3.2.1 Direct interference ............................................... 33
3.2.2 Intention............................................................... 38
3.2.3 Trespass to land is a tort actionable per se ......... 40
3.2.4 Unjustifiable interference ..................................... 40
3.3 Defences to an Action for Trespass to Land .............. 40
3.4 Remedies for an Action for Trespass to Land ............ 41
Chapter Four: .......................................................................... 43
Trespass to ‘Personal Property’ and Conversion .................... 43
4.1 Introduction ................................................................ 44
4.2 Interference with Another Person’s Goods ................ 46
4.3 Trespass to Goods..................................................... 46
4.3.1 Actionable per se................................................. 47
4.3.2 Direct interference ................................................... 48
4.3.3 Intention .................................................................. 48
4.3.4 Remedy ............................................................... 49
4.4 Conversion ................................................................. 50
4.4.1 Examples............................................................. 51
4.4.2 Remedies ............................................................ 54

v
Chapter Five: .......................................................................... 55
Negligence: Duty of Care ........................................................ 55
5.1 Introduction ................................................................ 56
5.2 The Basic Elements of the Tort of Negligence ........... 56
5.3 Historical Development of Negligence and the Concept of
Duty of Care ................................................................. 57
5.3.1 Interesting historical titbits ................................... 62
5.4 Establishing the Duty of Care..................................... 66
5.4.1 Determining whether a duty of care exists or not 69
5.4.2 Operation of the tests for imposing a duty of care –
examples from case law .................................... 77
Chapter Six: ............................................................................ 87
Negligence: Breach of Duty .................................................... 87
6.1 Introduction ................................................................ 88
6.2 The Standard of Care ................................................ 89
6.3 Breach of Duty of Care: Some Parameters from Case
Law .................................................................................. 95
6.3.1 Reasonable care NOT perfect care ..................... 96
6.3.2 Standard of care: an objective standard .............. 97
6.3.3 Foreseeability of harm ....................................... 100
6.3.4 Magnitude of risk ............................................... 101
6.3.5 Practicality of taking measures to prevent the harm
101
6.3.6 Public utility or good .......................................... 101
6.3.7 Legislative intervention ...................................... 102
Chapter Seven: ..................................................................... 103
Negligence: Causation and Remoteness of Damage ........... 103
7.1 Introduction .............................................................. 104
7.2 ‘Factual’ Causation and ‘Legal’ Causation ............... 104

vi
7.3 Factual Causation - The ‘But For’ Test .................... 105
7.4 Legal Causation - ‘Remoteness of Damage’ ............ 111
7.4.1 Remoteness of damage .................................... 112
Chapter Eight: ....................................................................... 117
Negligence: Psychiatric Damage .......................................... 117
8.1 Introduction .............................................................. 117
8.2 What is Psychiatric Damage or Harm? .................... 119
8.3 Types of Claimant: ‘Primary Victim’ and ‘Secondary
Victim’ ............................................................................ 120
8.3.1 Primary victims .................................................. 121
8.3.2 Secondary victims ............................................. 122
Chapter Nine: ........................................................................ 126
Negligence and Product Liability ........................................... 126
9.1 Introduction .............................................................. 127
9.2 Claims for Product Liability in Contract .................... 128
9.3 Claims for Product Liability in Tort ........................... 131
Chapter Ten: ......................................................................... 136
Nuisance and the Rule in Rylands v Fletcher ....................... 136
10.1 Introduction ........................................................... 137
10.2 Private Nuisance................................................... 138
10.2.1 Interference with land – who can sue? ........... 139
10.2.2 Unreasonable interference ............................. 141
10.2.3 Remedies and defences in an action for nuisance
....................................................................................... 144
10.3 The Rule in Rylands v Fletcher ............................. 146

vii
Chapter Eleven: .................................................................... 150
Defamation............................................................................ 150
11.1 Introduction ........................................................... 151
11.2 Defamation: ‘Libel’ or ‘Slander’ ............................. 152
11.3 Elements of Defamation ....................................... 153
11.3.1 Whether the defendant’s statement is defamatory
153
11.3.2 Whether the statement refers to the claimant 157
11.3.3 Whether the statement has been published i.e.
communicated to a third party ........................................ 164
11.4 Defences to an Action for Defamation ....................... 167
11.4.1 Truth............................................................... 167
11.4.2 Honest opinion ............................................... 168
11.4.3 Privilege ......................................................... 168
11.4.4 Publication in a matter of public interest......... 170
11.4.5 Persons not responsible for publication ......... 170
11.4.6 Operators of websites .................................... 171
11.5 Offer to Make Amends .......................................... 172
Glossary of Terms ............................................................. 173
Index.................................................................................. 178

viii
Table of Cases

Alcock v Chief Constable of South Yorkshire [1991] UKHL 5,


[1992] 1 AC 310 …………………………..117, 121, 122, 124, 125
Ames v The Spamhaus Project Ltd & Anor [2015] WLR (D) 511
………………………………………………………………….… 156
Anchor Brewhouse Developments Ltd and Others v Berkley
House (Docklands Developments) Ltd (1987) 38 Building Law
Reports 82 ………………………………………………………... 37
Anns v Merton London Borough Council [1977] UKHL 4, [1978]
AC 728 ………………………………………………….…….. 73, 74
Arab News Network v Jihad Al Khazen [2001] EWCA Civ 118
………………………………………………………………….... 157
Arcos v EA Ronaasen & Son [1933] UKHL 1, [1933] AC 470 129
Armory v Delamirie [1722] EWHC J94] ………………………... 51
Arthur v Anker [1997] QB 564 …………………………………... 51
Aspro Travel Ltd & Ors v Owners Abroad Group plc [1996] 1 WLR
132 … …………………………………………………………..…163
Attia v British Gas Corporation [1987] EWCA Civ 8, [1988] QB
304 …………………………………………………………. 118, 119
Austin & Anor v Commissioner of Police of the Metropolis [2009]
UKHL 5 …………………………………………………… 22, 26, 27

Baker v Willoughby [1969] UKHL 8, [1970] AC 467 ….. 103, 106


Barker v Corus (UK) Plc [2006] UKHL 20, [2006] 2 AC 572 .. 111
Barnett v Chelsea & Kensington Hospital Management
Committee (1969) 1 QB 428, [1968] 2 WLR 422 ………..…… 106
Basely v Clarkson (1681) 3 Lev 37 ……………………………... 39
Bici v Ministry of Defence [2004] EWHC 786 (QB) ………….... 19
Birch v Paulson [2012] EWCA Civ 487 ………………….… 87, 96
Bird v Jones [1845] EWHC QB J64 ………………………..…… 23
Blake v Barnard (1840) 9 C&P 626 ………………………..……. 15
Blyth v The Company of Proprietors of the Birmingham
Waterworks (1856) 11 Exch 781 ……………………………...… 90
Bolam v Friern Hospital Management Committee [1957] 1 WLR
582 …………………………………………………………... 99, 100

ix
Bolitho v City and Hackney Health Authority [1997] UKHL 46;
[1998] AC 232 …………………………………………………... 100
Bolton v Stone [1951] UKHL 2, [1951] AC 850 … ……… 100, 101
Bonnington Castings Ltd v Wardlaw [1956] UKHL 1, [1956] AC
613 ……………………………………………………………….. 109
Bourhill v Young [1942] UKHL 5, [1943] AC 92 95, 142, 145, 148
Bowes v Shand [1877] 2 AC 433 …………………………….... 129

Cairns v Modi [2012] EWCA Civ 1382 ………………………... 156


Cambridge Water Co Ltd v Eastern Counties Leather plc [1994]
2 AC 264 …………………………………………………... 147, 149
Candler v Crane, Christmas & Co [1951] 2 KB 164 ……...…… 83
Caparo Industries plc v Dickman [1990] UKHL 2, [1990] 2 AC 605
………………………………………. 75, 77, 78, 79, 80, 82, 86, 118
Cassidy v Daily Mirror Newspapers [1929] 2 KB 331 ……...… 161
Chester v Afshar [2004] UKHL 41, [2005] 1 AC 134 ……... 94,106
Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4
…………………………………………………………………. 36, 40
Christie v Davey [1893] 1 Ch 316 ……………………………... 144
Cinnamond v British Airports Authority [1980] 1 WLR 582 …... 35
Clough v First Choice Holidays and Flights Ltd [2006] EWCA Civ
15 ……………………………………………………………….... 108
Collins v Wilcock [1984] 1 WLR 1172 …………….. 14, 17, 19, 22
Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831 (QB) ... 155
Cope v Sharp [1912] 1 KB 496 ………………………….……… 41
Council of the Shire of Sutherland v Heyman (1985) 157 CLR
424, (1985) 60 ALR 1 …………………………………………….. 74

D & F Estates Ltd v Church Commissioners for England [1989]


AC 177 …………………………………………………………….. 74
Davis Contractors v Fareham Urban DC [1956] UKHL 3, [1956]
AC 696 ………………………………………………………... 93, 95
Director of Public Prosecutions v Jones [1999] UKHL 5 ……... 34
Director of Public Prosecutions v K (A Minor) [1990] 1 WLR 106
……………………………………………………………………... 18
Donoghue v Stevenson [1932] UKHL 100; [1932] AC 562 … 57,
60, 62, 66, 70, 73, 76, 78, 79, 81, 82, 89, 95, 98, 118, 127, 131,
132, 138

x
Doughty v Turner Manufacturing Company Ltd [1963] EWCA Civ
3, [1964] QB 518 ………………………………………………... 113

E Hulton Co v Jones [1910] AC 20 …………………….… 151, 162


Eastwood v Holmes [1858] 1 F & F at 347 ………….………... 163
Elias v Pasmore [1934] 2 KB 164 …………………….…….. 36, 40
Entick v Carrington [1765] EWHC KB J98 ……………………... 34

Fagan v Metropolitan Police Commissioner [1969] 1 QB 439 19


Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL
22, [2003] 1 AC 32, [2002] 3 WLR 89 ……….. 107, 108, 110, 111
Flint v Tittensor & MIB [2015] EWHC 466 (QB) …………... 20, 21
Fouldes v Willoughby (1841) 8 M&W 540 …………….. 48, 50, 53
Fowler v Lanning [1959] 1 QB 426 ……………………………... 13
Francis v Cockrell (1870) LR 5 QB 501 ………………………... 66

George v Skivington (1869) LR 5 Ex 1 ………….… 57, 60, 63, 66


Gilbert v Stone 82 ER 539 & 902 (1647) ………………………. 39
Gillingham Borough Council v Medway (Chatham) Dock Co Ltd
[1993] QB 343 ……………………………………………….….. 143

Hall v Brooklands Auto Racing Club [1933] 1 KB 205 …… 91, 96


Halsey v Esso Petroleum [1961] 2 All ER 145 …………….…. 144
Hartley v Moxham (1842) 3 QB 701 …………………………… 48
Hawkins v Coulsdon & Purley UDC [1954] 1 QB 319, 341 …... 91
Hazell v British Transport Commission [1958] 1 WLR 169 …... 90
Healthcare at Home Ltd v The Common Services Agency [2014]
UKSC 49, [2014] WLR(D) 351 …………………………….... 92, 95
Heaven v Pender, Trading as West India Graving Dock Company
(1883) 11 QBD 503 ………………………………..… 58, 60, 61, 62
Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4,
[1964] AC 465 ……………………………………………..... 83, 118
Herd v Weardale Steel, Coal & Coke Co [1915] AC 67 ……… 27
Hicks v Young [2015] EWHC 1144 (QB) ……………………… 23
Hill v Chief Constable of West Yorkshire [1987] UKHL 12; [1988]
2 WLR 1049 ………………………………………………….…… 79
Hollins & others v Fowler & others (1875) LR 7 HL 757 …. 51, 52
Hollywood Silver Fox Farm v Emmett [1936] 2 KB 468 ……. 144

xi
Holmes v Mather (1875) 133 LT 361 …………………………... 49
Holmes v Wilson (1839) 10 A & E 503 ……………………. 34, 35
Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC
1004 …………………………………………………………. 80, 116
Hotson v East Berkshire Area Health Authority [1988] UKHL 1,
[1987] AC 750 …………………………………………………... 109
Hughes v Lord Advocate [1963] UKHL 1, 1963 AC 837 …… 114
Hunter v Canary Wharf Ltd [1997] UKHL 14, [1997] AC 655 140,
141, 142
Hutchins v Maughan [1947] VLR 131 ………………………..…. 48
Huth v Huth [1915] 3 KB 32 ……………………………………. 165

Iqbal v Prison Officers Association [2009] EWCA Civ 1312 13, 14

Janvier v Sweeney [1919] 2 KB 316 …………………………… 29


Jeynes v News Magazines Ltd [2008] EWCA Civ 130 ………. 157
Johnson v Diprose [1893] 1 QB 512 …………………………… 47

Kelsen v Imperial Tobacco Co [1957] 2 QB 334 ………………. 37


Kennaway v Thompson [1981] QB 88 …………………….….. 145
Khatun v UK (1998) 26 EHRR CD 212 ………………………. 140
Khorasandjian v Bush [1993] 3 WLR 476 ………………….… 140
Kirk v Gregory (1876) 1 Ex D 55 ………………………….…….. 47
Knightley v Johns & Ors [1981] EWCA Civ 6, [1982] 1 WLR 349
….…..……………………………………………………………. 116
Knupffer v London Express Newspaper Ltd [1944] AC 116 ... 163

Laiqat v Majid & Ors [2005] EWHC 1305 (QB) ………………. 37


Lamb v London Borough of Camden & Anor [1981] EWCA Civ 7;
[1981] QB 625 … ………………………………………….... 56, 116
Langley v Dray [1998] PIQR. 314 ………………………………. 78
Langridge v Levy (1837) 2 M & W 519; 4 M & W 337 ……….. 57
Le Lievre v Gould [1893] 1 QB 491 …………………………….. 62
League Against Cruel Sports v Scott [1986] QB 240 ………… 34
Letang v Cooper [1965] 1 QB 232 ……………………………… 13
Longmeid v Holliday (1851) 6 Ex 761 ……………………... 57, 64
Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB 479
…………………………………………………………….…… 32, 38

xii
Lumba (WL) v Secretary of State for the Home Department
[2011] UKSC 12 ………………………………………………….. 25

McGhee v National Coal Board [1972] UKHL 7, [1973] 1 WLR 1


..…………………………………………………………...……… 110
McHale v Watson [1966] 115 C.L.R. 199 ……………………... 98
McKenna and Others v British Aluminium Ltd (2002) [2002] Env
LR 30 (Ch D) ………………………………………………….… 141
McLoughlin v O'Brian [1982] UKHL 3, [1983] 1 AC 410 ….… 117,
120, 124, 150
Macfarlane and Another v Tayside Health Board (Scotland)
[1999] UKHL 50; [2000] 2 AC 59 …………………………... 81, 91
Malone v Laskey [1907] 2 KB 141 ………………………. 139, 140
Mansfield v Weetabix Ltd [1998] 1 WLR 1263 … …………… 118
Meering v Grahame-White Aviation Co Ltd (1920) 122 LT 44 24
Miles v Forest Granite Co (Leicestershire) Ltd (1918) 34 TLR 500
(CA) ……………………………………………………………… 147
Monroe v Hopkins [2017] EWHC 433 (QB) ……………. 156, 157
Moorgate Mercantile Co v Finch [1962] 1 QB 701 ……………. 51
Morgan v Odham Press Ltd [1971] 1 WLR 1239 ……………. 158
Mullin v Richards & Anor [1997] EWCA Civ 2662, [1998] 1 WLR
1304 …………………………………………………………... 98, 99
Murphy v Brentwood District Council [1991] UKHL 2, [1991] AC
398 ……………………………………………………………….... 74
Murray v Ministry of Defence (Northern Ireland) [1988] UKHL 13
…………………………………………………………...………... 24

National Coal Board v J E Evans & Co (Cardiff) Ltd [1951] 2 KB


861 ……………………………………………………………….... 49
Nettleship v Weston [1971] 3 WLR 370 ……………………..… 97
Nevill v Fine Arts and General Insurance Company [1897] AC 68
…..………………………………………………………………. 154
Newstead v London Express Newspaper Limited [1940] 1 KB 377
……………………………………………………………... 160-161
Nyang v G4S Care & Justice Services Ltd & Ors [2013] EWHC
3946 ……………………………………………………………... 106

O'Shea v MGN Ltd and others [2001] EWHC QB 425 ……… 161

xiii
Orchard v Lee [2009] EWCA 295, [2009] PIQR P16 …………. 99
Orme v Associated Newspapers Ltd (‘The Moonies case’) (1981)
The Times February 4 ……………………………………….…. 162
Oropesa, The [1943] P 32 ……………………………….…….. 116
Overseas Tankship (UK) Ltd v Morts Dock & Engineering
Company Ltd (The Wagon Mound No 1) [1961] UKPC 2, [1961]
AC 388 ……………………………………………………... 113, 114

Page v Smith [1995] UKHL 7, [1996] 1 AC 155 ……… 119, 122,


123
Palsgraf v Long Island Railroad Co, 248 NY 339, 162 NE 99
(1928) ………………………………………………………….….. 79
Paris v Stepney BC [1950] UKHL 3, [1951] AC 367 … ………101
Parker v British Airways Board [1982] 1 QB 1004 ……………. 50
Pelman v McDonald's Corp (McFat Litigation I) 237 F Supp 2d
512 (SDNY Jan 22, 2003) ………………………………………. 70

R v Costanza [1997] Crim LR 576 ……………………………… 16


R v Ireland [1998] AC 147 ………………………………………. 16
R v Meade & Belt (1823) 1 Lew CC 184 ………………………. 16
R v St George (1840) 9 C&P 483 ………………………………. 15
R v Wilson [1955] 1 WLR 493 …………………………………... 16
Re Moore & Co Ltd and Landauer & Co [1921] 2 KB 519 …. 129
Re Polemis & Furness, Withy & Co Ltd [1921] 3 KB 560 112, 113
Read v J Lyons & Co Ltd [1947] AC 156 (HL) ….….….. 147, 148
Rhodes v OPO & Anor [2015] UKSC 32 ………………….. 29, 30
Riches & Ors v News Group Newspapers Ltd [1985] EWCA Civ
20 ……………………………………………………………….... 164
Rickards v Lothian [1913] AC 263 (PC) ……………………… 148
Roberts v Ramsbottom [1980] 1 WLR 823 ………………….... 97
Robinson v Balmain New Ferry Co Ltd [1910] AC 295 … ..26, 27
Robinson v Kilvert (1889) 41 Ch D 88 ………………………... 144
Roda Sam (previously known as Rawdah Al-Sam) v Pascale
Atkins [2005] EWCA Civ 1452 …...………………….… 55, 69, 87
Roe v Minister of Health [1954] EWCA Civ 7 ……………….. 100
Rouse v Squires [1973] EWCA Civ 9, [1973] QB 889 ………. 116
Rylands v Fletcher [1868] UKHL 1, (1868) LR 3 HL 330 and
(1865) 3 H&C 774 ………………………. 137, 146, 147, 148, 149

xiv
Scott v Shepherd [1773] 2 Wm Bl 892 …………………………. 18
Sedleigh-Denfield v O’Callaghan [1940] AC 880 ……………. 141
Sienkiewicz (etc) v Greif (UK) Ltd; Knowsley MBC v Willmore
[2011] UKSC 10 ………………………………………………… 111
Six Carpenters Case (1610) 8 Co Rep 146a ………………….. 35
Smith v Leech Brain & Co [1962] 2 QB 405 ………………….. 115
Smith v Littlewoods, [1987] UKHL 18, [1987] 2 AC 241 ……... 74
Smith v Stone 82 ER 533 (1647) ………………………………. 39
Sobrinho v Impresa Publishing SA [2016] EWHC 66 ……….. 156
St Helen's Smelting Co v Tipping [1865] 11 HL Cas 642 ….. 141
Stanley v Powell [1891] 1 QB 86 ……………………………….. 12
Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010] UKSC
35 ………………………………………………………..… 31, 36, 42
Stennett v Hancock & Peters [1939] 2 All ER 578 …………... 132
Stephens v Myers (1830) 4 C&P 349 ………………………….. 16
Sturges v Bridgman (1879) LR 11 Ch D 852 ………….. 143, 146

Tear v Freebody (1858) 4 CB (NS) 228 ……………………….. 53


Theaker v Richardson [1962] 1 WLR 151 ……………………. 165
Thomas v National Union of Mineworkers [1986] Ch 20 …….. 16
Transco plc v Stockport Metropolitan Borough Council [2003]
UKHL 61 …………………………………………………….…… 148
Tremain v Pike [1969] 1 WLR 1556 ……………………….….. 114
Tuberville v Savage (1669) 1 Mod Rep 3 ……………….…….. 16

Ultramares Corporation v Touche (1931) 174 N.E. 441 ……. 103

Vacwell Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB


88 …………………………………………………………….…... 114

Wagon Mound No 1, The; see Overseas Tankship (UK) Ltd v


Morts Dock & Engineering Company Ltd
Wainwright & Anor v Home Office [2003] UKHL 53 ….…... 19, 30
Walker v The Commissioner of the Police of the Metropolis (Rev
1) [2014] EWCA Civ 897 ………………………………………… 24
Watson v British Boxing Board of Control Ltd & Anor [2000]
EWCA Civ 2116, [2001] QB 1134, [2001] 2 WLR 1256 ……... 80

xv
Watt v Hertfordshire County Council [1954] EWCA Civ 6, [1954]
1 WLR 835 …………………………………………………….… 102
Weld-Blundell v Stephens [1920] AC 956 ……………………. 116
Wennhak v Morgan (1888) 20 QBD 635 …………………….. 164
Wheeler v JJ Saunders Ltd [1994] EWCA Civ 32 …………… 143
White and Others v Chief Constable of South Yorkshire and
Others [1998] UKHL 45, [1999] 2 AC 455 ……….. 117, 119, 122
Wilkinson v Downton [1897] EWHC 1 (QB) ………….. 28, 29, 30
William Leitch & Co Ltd v Leydon [1931] AC 90 ……………… 47
Wilsher v Essex Area Health Authority [1987] UKHL 11, [1988] 1
AC 1074 …………………………………………………………. 109
Wilson v Pringle [1987] QB 237 ………………………………… 18

Yuen Kun-yeu v Attorney-General of Hong Kong [1988] AC 175


……………………………………………………………………... 74

xvi
Legislation & Legislative Instruments
United Kingdom Legislation

Broadcasting Act 1990 …………………………………………. 152


Compensation Act 2006 ……………………………………..… 102
Consumer Protection Act 1987 ……………………………...… 135
Consumer Rights Act 2015 …. ………………………………... 130
Contracts (Rights of Third Parties) Act 1999 …………………. 131
Defamation Act 1996 …………………..... 162, 164, 170, 172, 175
Defamation Act 2013 ...……... 151, 152, 153, 155, 156, 165, 167,
168, 169, 170, 171
Human Rights Act 1998 …………………..……………… 151, 161
Mental Capacity Act 2005 …………………………..…………… 21
Protection from Harassment Act 1997 ………………..………... 30
Sale of Goods Act 1979 …………………..………………... 46, 130
Social Action, Responsibility and Heroism Act 2015 ………... 102
Theatres Act 1968 …………………………………………..….. 152
Torts (Interference with Goods) Act 1977 …………….. 46, 49, 54

International Instruments

Directive 85/374/EEC of 25 July 1985 on the approximation of


the laws, regulations and administrative provisions of the
Member States concerning liability for defective products
…………………………………………………………..………... 135

Convention for the Protection of Human Rights and Fundamental


Freedoms ETS No.005, Rome, 04/11/1950; better known as the
European Convention on Human Rights …
………………………………………………………….140, 151, 161

xvii
Chapter One:

Fundamentals of English Tort Law

Think About!

1. What is a tort?

2. On what basis does or should the law classify an action or omission as a tort?

3. What is the basis of a duty to act or not to act in a certain way?

4. What kind of remedies are or should be available for a tort?

5. Should tort remedies be different from remedies available for


breach of contract or for the commission of a crime?

6. Can the same action or omission amount to both a tort and a


crime? If so, how should the action or omission be remedied?

7. Should the remedies for tort or the remedies for crime prevail where the same action or
omission amounts to both a tort and a crime?

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1.1 General Introduction

English tort law is concerned with an action or omission by one


party which affects a right or interest of another party and which,
if unjustified, may lead to the award of a civil remedy to the person
whose right or interest is affected. In this sense, tort law protects
certain rights and interests of persons in the society.

The aim of the law of tort is to provide compensation (or other


remedy in some circumstances, e.g. injunction) to the party
whose interest or right is deemed to be unjustly affected by the
action or omission of another. The aim is not so much to punish
the infringing party but more to compensate the aggrieved party.

An important element to note quite early on is that the protection


of a party’s interest or right is not dependent on the existence of
any agreement between that party and the other party who might
have infringed that right or interest.

1.2 Tort Law and the Law of Obligations

The law of tort is one element of a wider area of law referred to


as the law of obligations. The other elements of the law of
obligations are the law of contract and the law relating to unjust
enrichment and restitution.

The law of obligations relates to rights and responsibilities arising


in a civil or private context. It relates to responsibilities for the
breach of which only civil remedies are available generally to
compensate the party whose right or interest has been affected.
The party whose interest the law of obligations seeks to protect
is normally a private party such as an individual or natural person
or a private legal entity such as a company.

As such, the law of obligations is distinguished from criminal law


which is regarded as concerned with actions (and omissions)

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regarded as done against the state and which are generally
punished by penal or criminal sanctions! Unlike the law of tort,
the aim of criminal law is generally to punish an offender.

As an element of the law of obligations, the law of contract is


relatively easy to conceptualise: it is based on the idea that a
legal agreement which is entered into voluntarily should be
observed and, thus, the law is ready to assist in enforcing such
an agreement or providing a remedy when it is breached.
According to a well-known Latin maxim: pacta sunt servanda i.e.
‘agreements must be kept’.

The law of restitution is predicated on the idea that one person


should not enjoy unjust enrichment at the expense of another.
The aim is to prevent one party from retaining a gain or benefit
that he has received unjustly at the expense of another: thus,
under restitution the first party can be required to restore or return
the gain or benefit to the disadvantaged party.

In view of the variety of the actions and omissions that have been
held by the courts to be torts and the different circumstances
relating to them, it is not so straightforward to establish the
conceptual basis for tort completely and conclusively.

1.3 Tort: ‘Right’ or ‘Wrong’

An important question which arises in the law of tort is: what is


the justification for classifying an act or omission as a tort? It is
sometimes said that a tort is a ‘legal wrong’ for which the law
provides a remedy. That raises the question of what makes the
action or omission a ‘legal wrong’.

One way of approaching the issue is to say that the action or


omission is classified as a legal wrong because it affects a legal
right or interest of another person without justification. That in turn
raises the questions: which rights or interests of other persons

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are protected by tort; why should those right or interests be
protected; and, why should the law provide a remedy if those
rights or interests are affected by the action or omission of
another person?

The situation is further complicated by the fact that actions and


omissions that have been held to amount to a tort are very wide
ranging.

Despite the concerns that exist about the difficulty of finding


sufficiently common features and principles underlying the wide
variety of actions and omissions that have been held to be torts,
it is nevertheless fair to make some general observations.

In general, the law of tort protects an interest through the creation


or recognition of a right vested in one party and the creation or
recognition of a duty or responsibility on the part of another party
or other parties. Also, in general, the law of tort supports the
created or recognised right by awarding compensation against
the party who infringed the right in favour of the party whose right
is infringed or by making an order (injunction) that one party
should not infringe another party’s right or should not continue to
infringe another party’s right.

1.4 Terminology

To start with, the law of tort seeks to protect the right or interest
of a person on an underlying assumption that the person has
suffered a ‘loss’ or ‘harm’ or ‘damage’, as a result of another
person’s action or omission affecting that right or interest.

In some cases, it is easy to identify the loss or harm or damage


that the ‘victim’ of a tort has suffered or is likely to suffer. Note
that when the victim makes a claim for a remedy, he is called a
‘claimant’, while the person against whom the claim is made is
called a ‘defendant’.

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Examples of clear loss or harm or damage arising from a tort
include:

 Physical injury (or even death) e.g. a driver crashes into a


cyclist and the cyclist breaks his leg (or even dies)
 Psychiatric damage or injury: e.g. a person becomes
depressed after being exposed to emotional trauma
 Financial loss e.g. after a good reference about a borrower
from a bank, a person lends money to the borrower who
turns out to be a fraud and who does not repay the loan
 Damage to ‘personal property’: one student picks up
another’s phone and accidentally damages it by dropping
it
 Damage to ‘real property’ (land): water leaks from one
property and floods another person’s property
 Damage to reputation: one person spreads false rumours
that a law student is a thief

On the other hand, it is not so clear to identify the loss, harm or


damage arising from some actions or omissions that have been
classified to be torts. For example, merely walking across another
person’s land without permission is classified as a tort even
though no damage is done to the land.

A tort which can be established or committed without proving


actual loss, harm or damage is said to be ‘actionable per se’ i.e.
merely doing the action that the law protects against is itself
enough to entitle the claimant to a remedy – without having to
prove actual loss. The question of how much compensation might
be due is a separate, albeit related, question.

Next, care should be taken about the use of the word ‘wrong’ in
the law of tort. In general, what is meant is a ‘legal wrong’, that
is, an action or omission that the law classifies as a wrong in law.
It is to be distinguished for example from a ‘moral wrong’. For
example, a person who sees another drowning and does nothing
to assist may have committed a ‘moral wrong’ yet they may not

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be regarded as having committed a ‘legal wrong’! A well-
publicised recent example of this is the viral video of a group who
watched and encourage another man drowning without doing
anything at all to help him:

http://edition.cnn.com/2017/07/20/us/florida-teens-drowning-
man/index.html

One more word which we should also be mindful about is the


word ‘damage’ (singular, though it can be pluralised). It should
be distinguished from the technical legal word ‘damages’ (always
plural)!

The word ‘damage’ (singular, though possibly plural on occasion)


is used to refer to the ‘injury’ or loss or harm that a victim of tort
suffers. On the other hand, in common law systems, the word
‘damages’ (always plural) is used to refer to money
compensation awarded by a court to a person who wins in a
lawsuit; the lawsuit may not even be for tort but, for example, for
a breach of contract.

1.5 Policy Considerations

Generally, determining whether one party is liable to another in


tort primarily involves examining legal rules. Nevertheless, there
are usually elements of policy considerations underlying the legal
rules. Policy considerations affect the determination of the kind
of interests protected by the law of tort, e.g.

 personal security and safety


 interests in personal and real property
 economic interests
 reputation and privacy

Policy considerations also affect the determination of whether


liability for a particular tort should be based on ‘fault’ or on ‘strict

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liability’. For most torts, the defendant will normally only be held
liable if he was in some way ‘at fault’. This means that the
defendant must have deliberately acted (or failed to act) in a
wrongful manner or that the defendant did not behave in a
manner that was to be reasonably expected to prevent the
damage that occurred.

In the case of a few exceptional torts, and usually for policy


reasons, the defendant is held liable as long as the damage
which the law protects against occurred – even if the defendant
had done all that they could to prevent it. Such torts are called
‘strict liability’ torts.

Policy considerations may also affect the approach that the


courts and the law maker (‘legislature’) may take in respect of tort
claims made against public bodies. In general, public bodies exist
for purposes of the public good and may provide services to the
public at subsidised rates.

On the other hand, public bodies should not necessarily be


exempted from a requirement to observe a reasonable standard
of performance when carrying out their functions. Nevertheless,
when damages are awarded against a public body for failure to
keep to the expected standard of performance, the result is that
there will likely be less money for the public body to carry out its
functions.

It is thus understandable that both the legislature particularly and,


possibly to a lesser extent, the courts might bear in mind the
balancing of these considerations in the approaches to setting
the liability of (and damages due from) public bodies in cases
where they do not meet the expected standard of performance.

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1.6 The Role of Insurance

In many tort cases, compensation payment awarded against a


defendant will actually be paid by their insurance company (or
‘insurers’). Generally, the fact that there may be an insurance
company behind either or both of the claimant and the defendant
is to be ignored by the courts when determining tort liability (or
amount of compensation). Yet, the fact that, in some cases, the
compensation due from the liable defendant will often be paid by
an insurance company may affect where the courts will set the
standard of care; it has the potential to encourage the courts to
set the relevant standard of care at a high level.

In tort cases arising from circumstances where the defendant is


compulsorily required to have insurance it raises the question
whether the basis of liability should be on ‘fault’ or ‘strict liability’;
consider for example where a car driver has caused personal
injury to another road user.

1.7 Classification

One way of classifying different types of tort is tied to the mindset


that is required of the defendant before he can be held liable.
Some torts require that the defendant must have intended some
consequences from his action; others do not necessarily require
that the defendant intends a consequence but are based on the
consideration that the defendant is required to meet a certain
expected standard of behaviour; a few torts are based on the idea
that a defendant must be held liable for a particular result or
eventuality – no matter that the defendant did not intend the result
or eventuality and no matter that the defendant did his best to
prevent the eventuality.

1. Intentional Torts: this type of tort requires that the defendant


must have intended to do the action which the law protects
against; in many cases, the defendant does not even need to

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intend the consequence/s of the action, as what is required is the
intent to carry out the act. On the other hand, there are
circumstances when whether the defendant intends a particular
consequence is relevant; this is sometimes referred to as
‘subjective recklessness’. We shall be exploring these issues
further when we deal with specific examples of intentional torts.

2. Negligence: the tort of negligence is based on the idea that in


particular circumstances, especially where one person’s action
may have an effect on another, the person is expected to meet a
certain standard of action or behaviour. It is the failure to meet
the required standard, rather than an intention to cause a
particular result, that forms the basis of the tort of negligence.

3. Strict Liability Torts: with this type of tort, the defendant can be
held liable for the occurrence of a particular event or
consequence – no matter that (a) he did not intend the event or
consequence and/or (b) that he did his best to prevent the event
or consequence from occurring. There are only a few examples
of strict liability torts and, evidently, there will usually be
significant policy considerations behind the treatment of a tort as
being of strict liability.

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Chapter Two:

Trespass to the Person

Think About!

1. What is meant by trespass to the person?


2. What are the distinctions between an ‘assault’ and a ‘battery’?
3. A footballer scores a goal in an important football match; some spectators
run onto the field; some hug him, some pat him on the back; some carry him
and throw him up in the air. Could the actions of any of the spectators’
amount to trespass to the person?
4. After a football match, as the spectators are leaving the stadium, people
were pushing and jostling each other as they tried to exit the gates. Could a
spectator who was pushed and jostled have a claim for trespass?
5. A lecture was scheduled to hold from 12 noon to 2PM; during the lecture,
the lecturer was not happy that students were not answering questions;
when the lecture finished at 2PM, the lecturer said no one would be allowed
to leave the lecture hall until 2.10PM.
6. John goes into a supermarket; after looking around for ten minutes, he
decided to leave; a shop detective suspected that John had stolen some items
from the supermarket; the detective prevented John from leaving; in fact,
John had not stolen anything; after detaining John for three minutes and
realising that he had not stolen anything, the detective allowed him to leave.

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2.1 General Introduction

The tort of trespass to the person falls into the category of


intentional torts; more specifically, it falls into the category of
intentional torts against persons. The tort is generally concerned
with the protection of a person’s right to ‘personal integrity’ or with
the protection of their personal space.

It is important to note that in many instances the action that


amounts to trespass to the person will also amount to a crime; as
such, there is some overlap between some criminal cases and
trespass to the person. Indeed, in some instances a victim of the
unwanted action of another may prefer that the matter is dealt
with by the criminal law rather than getting involved in fruitlessly
expensive litigation.

The tort of trespass to the person is an old tort which had greater
importance before the English courts recognised the tort of
negligence. In modern times, some actions that might have been
brought in the past in trespass are brought in the tort of
negligence. This is particularly true of claimants seeking
compensation for personal injury.

Nevertheless, the tort of trespass to the person continues to be


relevant and is particularly still useful in the context of civil
liberties, for example, where an individual alleges infringement of
their rights when being arrested or detained by authorities,
including the Police. It may also be relevant in medical cases,
where a patient alleges that a doctor or medical professional had
performed a procedure or course of treatment on the patient
without the patient’s consent.

Traditionally, there are three different torts falling under the


umbrella of trespass to the person: assault, battery and false
imprisonment. These three torts relate to situations where the
defendant causes the claimant to suffer or to fear suffering
physical harm or infringement of personal integrity directly. They
do not cover circumstances where ‘harm’ or ‘distress’ is caused

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to the claimant by an indirect action or indirect cause attributable
to the defendant. For this reason, our discussion of trespass to
the person will also include a consideration of intentional infliction
of distress.

2.1.1 ‘Actionable per se’

The tort of trespass to the person is a tort that is ‘actionable per


se’ i.e. actionable ‘of itself’. What this means is that a person may
be able to sue for trespass to the person even if they have not
actually suffered any harm or injury.

It is sufficient simply that the defendant did the action or made


the omission that amounted to a violation of the victim’s personal
integrity that the law does not allow. Examples include: an
unwanted pat on the back, an unwelcome kiss, an undesired hug
and, of course, a punch or a kick and similar actions.

An underlying reason for the tort of trespass being treated as


actionable per se lies in the importance that is attached to an
individual’s personal integrity or space. An individual’s personal
integrity should simply not be interfered with unjustly
notwithstanding that the individual might not actually suffer injury
as a result of the interference.

2.1.2 The role of intention

Another important issue in the consideration of the tort of


trespass to the person is to pay careful attention to the role of
intention in establishing whether one or more of the torts under
the umbrella of trespass to the person has been committed.

First, it is to be noted that trespass to the person is not a ‘strict


liability’ tort – a point reflected in the nineteenth century case of
Stanley v Powell [1891] 1 QB 86. Trespass to the person is a

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fault-based tort and it is necessary to prove intention to do an
action or omission by the defendant or at least a form of
recklessness about the action or omission.

Second, it is now accepted that an action for trespass is distinct


from an action for negligence; if the complaint relates to an
intentional violation of the claimant’s personal integrity, the
correct action is for trespass; on the other hand, if the complaint
relates to a negligent (in effect, ‘careless’ but unintentional)
violation, then the correct action is for negligence. This point is
established or reflected in a number of cases including Iqbal v
Prison Officers Association [2009] EWCA Civ 1312; Letang v
Cooper [1965] 1 QB 232; cf. Fowler v Lanning [1959] 1 QB 426.

Generally, the intention that is required for the tort to be regarded


as committed is the intention to do the action or make the
omission that the law protects against; in other words, it means
voluntary conduct. Compare and think about which of the
examples below is a voluntary conduct by John:

(a) John raises his hand and touches Peter’s arm;

(b) James picks up John’s hand and uses it to touch


Peter’s arm;

(c) John is about to fall over; he uses his hand to grab


Peter’s arm to steady himself

In trespass to the person, it is not generally a requirement that


there should be an intention to cause actual harm or injury.
However, as we shall see in the tort of assault, intention to bring
about a particular consequence (causing apprehension of
unlawful force in the case of assault) can be relevant.

Another important point in relation to intention in trespass to the


person is that the courts have decided that intention includes
‘subjective recklessness’. This refers to a situation where the
defendant may not directly will a particular result but foresees that

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their action will have a particular consequence – yet goes ahead
with the action; Iqbal v Prison Officers Association [2009].

Example: if a person throws a stone into a crowd and it hits


someone; even if the person did not mentally intend to hit
someone, they will still be taken to have such intention by
way of ‘subjective recklessness’ i.e. foreseeing they could
hit someone, yet still throwing the stone.

2.2 Assault

At the outset, it is important to distinguish between the common


everyday use of the word ‘assault’, especially as used by many
lay people, and the technical use of the word assault in tort law.

In everyday use, assault is often taken to involve the application


of force or physical violence e.g. hitting someone or kicking
someone. On the other hand, in tort law assault does not actually
require the application of force; rather, assault in tort law is
merely causing someone to ‘apprehend’ (i.e. to perceive or fear)
that unlawful force or harm is about to be inflicted on them!

One judicial definition of the word ‘assault’ in tort that is frequently


referred to is that given by Goff LJ in Collins v Wilcock [1984] 1
WLR 1172, 1177:

‘an act which causes another person to apprehend the


infliction of immediate, unlawful force on his person.’

2.2.1 ‘Apprehend’ … unlawful force

We can see from Goff LJ’s definition that in essence, assault in


tort involves simply causing another person to perceive or fear
(‘apprehend’) that unlawful force is about to be inflicted on them.

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Assault does not require actual physical violence or even
physical contact.

When physical contact or violence is involved, then the related


tort of ‘battery’ may also have been committed in addition to
assault. Indeed, although assault and battery are separate torts
they frequently occur together in the same scenario.

If Colin raises his hand threatening to punch Alan and Alan is


made to fear being hit, Colin is likely to have committed an
assault. If Colin controls himself in time and does not hit Alan,
then he would not have committed battery. On the other hand, if
Colin goes ahead and indeed punches Alan, he is likely to have
committed both assault and battery.

In respect of assault, the crucial thing is that the claimant is made


to apprehend violence – even in cases where violence may not
really follow the threat. For example, if Donald points a gun at
John, and John becomes afraid of being shot, Donald would most
likely have committed assault even if it turns out that the gun was
not loaded - as long as John did not know that; this position is
reflected in R v St George (1840) 9 C&P 483 although a different
stance was expressed in side comments (dicta) in Blake v
Barnard (1840) 9 C&P 626.

If the claimant knew that there was no real threat of unlawful force
to him, or if the claimant was not even aware of the threat of
unlawful force to him, then there is not likely to be assault. For
example, if John knew that the gun was not loaded, then Donald
pointing the gun at him is not likely to be assault. Similarly, if John
was walking towards the door and did not see John point a gun
at him from the back, there would not be assault – even if the gun
was indeed loaded.

Reasonable apprehension: for there to be assault, the claimant


must ‘reasonably’ fear that unlawful force is about to be applied
to him. This means that the test is an ‘objective’ test whether it
was reasonable to apprehend unlawful force in the

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circumstances. It does not matter that a very brave or foolhardy
person would not have apprehended fear; neither does it matter
that a particularly timid or cowardly person would have been
afraid; this point is acknowledged in the case of Stephens v
Myers (1830) 4 C&P 349.

Immediate unlawful force: as one of the requirements to establish


assault is that the claimant is made to apprehend unlawful force,
it follows that assault may not be established if the claimant knew
that there was no prospect of the threat of unlawful force being
carried out. For example, in Thomas v National Union of
Mineworkers [1986] Ch 20, some miners who were on strike
shouted and made violent gestures at others who did not join the
strike, including the claimant, as they were being driven to work
in a bus; there were Police around between the striking miners
and the bus; it was held that the claimant could not succeed in
an action for assault.

Can words alone amount to assault? First, it is established that


the defendant can avoid being liable for assault if he says words
which indicate that he did not aim for unlawful force to be inflicted
on the claimant. In the well-known old case of Tuberville v
Savage (1669) 1Mod Rep 3, the statement ‘If it were not assize-
time, I would not take such language from you’ was regarded as
not enough to make the person to whom it was made apprehend
an immediate attack or violence.

The old case of R v Meade & Belt (1823) 1 Lew CC 184


suggested that assault cannot result from threatening words only:
‘No words or singing are equivalent to assault’. However, modern
attitude (reflected mostly in criminal law cases) is different and
the courts have indicated, in cases including R v Wilson [1955]
1 WLR 493 and R v Costanza [1997] Crim LR 576, that they are
likely to accept that threatening words can amount to assault.
Indeed, the courts have suggested, in R v Ireland [1998] AC 147
for example, that even silent threatening phone calls may amount
to assault.

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2.2.2 Intention

Assault is an intentional tort; as such, it needs to be established


that the defendant had the relevant intention before he can be
found liable for assault.

The required intention in the tort of assault is either: (a) that the
defendant intended to cause the claimant to apprehend unlawful
force; or (b) was reckless about the possibility that their action
would cause the claimant to apprehend unlawful force.

2.3 Battery

Whereas assault merely involves making the claimant to


apprehend unlawful force, battery actually involves the
application of force. In Collins v Wilcock (1984) 1 WLR 1172,
1177, Goff LJ said: “a battery is the actual infliction of unlawful
force on another person”. Battery is traditionally understood as
the intentional and direct application of force to another person
without that person’s consent.

2.3.1 Direct application/infliction

Normally, the force must be directly applied by the defendant on


the claimant. If it is indirect, it might not be battery;

 If the defendant places a large stone on the floor and the


claimant stumbles on it, that is not direct and it is not
battery
 If the defendant throws a stone which hits the claimant,
that is direct and it is battery

However, in some situations it is not easy to separate between


what is direct and what is indirect application of force.

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 If John raises David’s hand and uses it to hit Thomas,
John’s action is likely to be treated as direct force

 Scott v Shepherd [1773] 2 Wm Bl 892 {‘famous squib


case’}:
Shepherd, the defendant threw a lit firework (‘squib’) into
a market place; two other persons, who were afraid,
quickly picked up the firework and threw it further on; the
firework hit Scott, the claimant, as it exploded; held
(majority 2 to 1): that Shepherd is liable in battery; one
judge said that the defendant can be liable even if he does
not directly touch the claimant; another judge said that ‘the
injury is the direct and immediate act of the defendant’; the
third judge who disagreed said that the injury was
‘consequential’, not direct, and that the claimant should be
suing for negligence and not for trespass.

 DPP v K (A Minor) [1990] 1 WLR 1067


15 years old schoolboy poured acid into an electronic
hand-dryer; the acid was later blown into the face of
another pupil; the schoolboy was found guilty of actual
bodily harm.

2.3.2 Force

Force does not have to be heavy contact; any physical contact


with another person can amount to battery: an unwanted kiss,
holding someone’s hand, patting someone’s back can all
potentially amount to battery.

It was suggested in one case that the force or touching has to be


with ‘hostile intent’; see Wilson v Pringle [1987] QB 237. The
underlying reason for this is a recognition that there are physical
contacts between persons in everyday life and it will not be
reasonable to regard every contact as battery.

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It is now generally accepted that the correct legal position is that
the force or touching does not have to be with ‘hostile intent’. In
Collins v Wilcock [1984], Goff LJ adopted the approach that for
force to amount to battery, the touching should be more than the
type of physical contact that is ‘generally acceptable in the
ordinary conduct of daily life.’ This approach was also supported
in Wainwright v Home Office [2003] UKHL 53.

Question: what type of touching is acceptable in normal daily


life?

Note: merely obstructing someone, without touching them, is not


battery; we will consider this further under ‘false imprisonment’.

2.3.3 Intention

Battery is an intentional tort; thus, the application of force must


be intentional; if the application of force was not intentional it is
not battery; but if the initially unintentional application of force
continues intentionally, then it becomes battery.

Fagan v Metropolitan Police Commissioner [1969] 1 QB


439
F accidentally, i.e. unintentionally, drove his car on to a
policeman’s foot; the policeman asked F to get off his foot;
F initially refused and said the policeman could wait; he then
switched off the car’s engine; he later slowly turned the
engine back on and drove off the policeman’s foot; held:
when F initial drove onto the policeman’s foot accidentally,
that was not battery; but when F refused to get off the
policeman’s foot that was (criminal) battery.

On a different note, it is not fully clear whether where the


defendant intends to hit one person (A), but hits another person
(B) instead, that would be sufficient to amount to battery against
B. One case, Bici v Ministry of Defence [2004] EWHC 786
suggests it might be so but the authority of the case is limited.

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2.4 Defences to Assault and Battery

A person who has done the action or omission that ordinarily


amounts to assault or battery may be able to escape being liable
if he can show that he has a lawful excuse. Lawful justifications
that may be raised as a defence to assault and battery include
the following examples.

2.4.1 Consent

If the claimant consents to physical contact in a particular context,


s/he will not be able to claim for battery arising from the contact
in that context as reflected in the interesting case of Flint v
Tittensor & MIB [2015] EWHC 466 (QB).

Footballers will for example have physical contact in the course


of a game; what matters is that the contact that occurs is within
the rules of the game. The same is true of boxing for example;
however, a blow struck or contact made outside the rules may
potentially lead to being liable for trespass.

One important area where the issue of consent can be very


serious is when a doctor performs an operation or procedure on
a patient. Generally, some operations or procedures can only be
performed on a patient if the patient consents. If the operation is
performed without the patient’s consent, the doctor may
potentially be liable for trespass to the person.

If the patient’s consent is given expressly the doctor should not


normally be liable; however, one issue could be whether the
patient was fully informed; another could be whether the
operation or procedure was proper.

Consider: what if the patient is not capable of giving consent or


what if the patient refuses to give consent?

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2.4.2 Necessity

This defence is again more relevant in medical cases where a


doctor performs an operation or procedure without the patient’s
consent. It is now provided for in statutory law in the Mental
Capacity Act 2005.

Generally, a doctor can avoid liability for trespass in treating a


patient without consent if they take reasonable steps to ensure
that the patient lacks capacity to consent and that the treatment
is in the best interest of the patient.

2.4.3 Self-defence

A defendant may be able to raise the defence of self-defence to


resist a claim for trespass if s/he has an honest and reasonable
belief that s/he was under threat and only used reasonable or
proportionate force. This is reflected in the case of Flint v
Tittensor & MIB [2015] referred to earlier.

2.5 False Imprisonment

The tort of false imprisonment is the third of the torts under the
umbrella of trespass to the person. It is also a tort that is
‘actionable per se’, that is, actionable ‘of itself’. This means that
a person may be able to sue for false imprisonment even if they
have not actually suffered any harm or injury.

‘False imprisonment’ does not refer to putting a person in prison


or jail - although doing so unlawfully may indeed amount to false
imprisonment. False imprisonment refers to unlawful interference
with a person’s freedom of movement – and this could even be
in an open space; for example, preventing a person from leaving
a particular area - without lawful justification.

21
Austin & Anor v Commissioner of Police of the
Metropolis [2009] UKHL 5
During a demonstration in central London, the Police
established a cordon and prevented the claimants from
leaving the Oxford circus area; it was held that this would
amount to false imprisonment - except that the Police were
acting lawfully because they thought it necessary to
prevent people from leaving the area.

In Collins v Wilcock [1984] 1 WLR 1172, 1177 Goff LJ described


false imprisonment as ‘unlawful imposition of constraint on
another’s freedom of movement from a particular place.’ From
the decisions of the courts, the requirements for the tort of false
imprisonment to occur include:

(a) total restraint or restriction of the claimant’s freedom of


movement;

(b) the defendant must intend to restrict the claimant’s freedom


of movement; or he must be reckless about restricting the
defendant’s freedom of movement;

(c) the restriction must be unlawful, i.e. there must be no lawful


excuse or justification for restricting the defendant’s freedom of
movement.

Total restriction of the claimant’s freedom of movement: the


restraint or restriction must be complete; that is, if the claimant
has an alternative route for leaving or avoiding the restriction,
there will probably be no false imprisonment.

22
Bird v Jones [1845] EWHC QB J64
The defendant fenced off part of a footpath on a bridge so
that he could charge people to watch a boat race; the
claimant normally walked along that footpath at other
times; the defendant tried to walk on the footpath on the
day; he was being prevented from doing so but managed
to climb over the rope fence; police officers that the
defendant had employed prevented the claimant from
passing through the footpath; they said he could go back
the way he came in and take another route; held (QB, by
3-1 majority): there was no false imprisonment since the
claimant had an alternative route open to him; partial
obstruction and disturbance should not be confounded
with total obstruction and detention.

Compare

Hicks v Young [2015] EWHC 1144 (QB)


The defendant, a taxi driver, had picked up the claimant
and his friend; the defendant mistakenly thought that the
couple did not want to pay the taxi fare; after the claimant’s
friend first got off the car and the claimant too was about
to get off, the defendant drove away with the claimant still
in the taxi; while the taxi was driving at 20 miles per hour,
the claimant jumped out of the taxi; he suffered severe
brain injury; held: the defendant was liable for false
imprisonment; however, because of the claimant’s action
of jumping off, the damages awarded was only £250.
Note: the claimant was awarded damages separately for
negligence - but only at 50% because of the claimant’s
own ‘contributory negligence’.

In summary, if the claimant has no means of escape there will


probably be false imprisonment; if the only means of escape is
dangerous or unreasonable, there will probably be false
imprisonment; if there is an alternative route or reasonable
means of escape that the claimant can take, there will probably
not be false imprisonment; if the claimant takes unreasonable

23
measures to escape, even if there is false imprisonment, it may
affect the amount of damages that the court will award.

Note that there may be false imprisonment even if the total


restriction is very brief or momentary.

Walker v The Commissioner of the Police of the


Metropolis (Rev 1) [2014] EWCA Civ 897
The claimant and his girlfriend were having an argument
at home; the Police attended the incident; a policeman
blocked the claimant’s movements in a doorway for a few
seconds, without intending or trying to arrest him; that was
unlawful detention; held: the Police was liable for false
imprisonment even though the restriction was only for a
few seconds; however, the claimant was awarded only £5.

Note: a person may also be able to sue for false imprisonment


even if they did not know at the relevant time that their movement
was being restricted; although this may affect the amount of
damages that the court will award.

Meering v Grahame-White Aviation Co Ltd (1920) 122


LT 44
The claimant was suspected of theft at work; he was
asked to go into an office by two work policemen; he said
he would leave if they did not tell him why; when they told
him he was suspected of theft, he agreed to stay; the
officers stood outside the door when he was being
questioned; held: the claimant could claim for false
imprisonment.

The decision in Meering was approved in Murray v Ministry of


Defence (Northern Ireland) [1988] UKHL 13.

24
Intention to restrict the claimant’s freedom of movement: false
imprisonment is an intentional tort, so there is a requirement that
the wrongful action of the defendant must have been done
intentionally or with recklessness.

It is important to pay attention to the intention that is required for


the claimant to be liable in false imprisonment. The intention that
is required is an intention to restrict the claimant’s freedom of
movement; or knowing that the claimant might be restricted but
going ahead to do what led to the claimant being restricted.

If the defendant does an act which results in the claimant being


restricted but the defendant did not intend to restrict the claimant,
or did not know that the claimant would be restricted and was not
reckless, the defendant will probably not be liable for false
imprisonment.

For example, if a security officer locks up the library at closing


time but did not know that a student was in the toilet, the officer
(or his employers) will probably not be liable for false
imprisonment.

Unlawful restriction: For there to be false imprisonment, the


restriction of the claimant’s freedom of movement must be
unlawful.

Often, claims of false imprisonment involve the actions of legal


authorities and, if they are found to have acted unlawfully in
detaining or restricting the freedom of movement of the claimant,
an action for false imprisonment may succeed.

Lumba (WL) v Secretary of State for the Home


Department [2011] UKSC 12
A foreigner imprisoned in the UK was informed that he
would be deported at the end of his prison term; his prison
term ended in 2006; but he was detained till 2011 pending
deportation; in fact, he left voluntarily in the end; the

25
government had a published policy that foreign prisoners
only awaiting deportation are ordinarily to be released
pending deportation; but the government was operating
an unpublished policy that foreign prisoners awaiting
deportation are ordinarily to be detained pending
deportation; held: the detention of the prisoner beyond the
prison term pending deportation was unlawful as it was
contrary to the published policy; the prisoner could sue for
false imprisonment.

As we saw earlier in the case of Austin & Anor v Commissioner


of Police of the Metropolis [2009], if the restriction of the
claimant’s freedom of movement is lawful, s/he will not be able to
claim for false imprisonment.

Even in cases involving entirely private persons, i.e. where the


defendant is not a government body, the restriction of the
movement of the claimant by the defendant may be lawful.

This would be so, for example, if the defendant imposes


conditions on the freedom of movement of the claimant which the
courts consider to be reasonable. Interestingly, this may also
overlap with the issue of whether the restriction of the claimant’s
freedom of movement was a total restriction.

Robinson v Balmain New Ferry Co Ltd [1910] AC 295


The claimant paid one penny to enter a wharf so that he
could take the ferry; he changed his mind and wanted to
leave the wharf; the defendant said he had to pay another
penny to leave the wharf; the penny charge at both ends
was because there were different landowners at the two
ends; the claimant was forcibly prevented from leaving for
a time; held: there was no false imprisonment; the
claimant knew about the charges and the charges were
reasonable.

26
Herd v Weardale Steel, Coal & Coke Co [1915] AC 67
Claimant agreed to work in a mine from 9.30AM to 4PM;
he refused to do the work that he was required to do; at
11AM, he requested to be taken back to the surface; a lift
became available at 1.10PM but his employers did not let
him take the lift until 1.30PM; he sued for false
imprisonment; held: there was no false imprisonment; the
claimant had consented to be in the mine until 4PM.

2.6 Defences to False Imprisonment

Lawful excuse or justification: if the defendant had a lawful


reason for restricting the claimant’s freedom of movement, an
action for false imprisonment will not succeed; see e.g. Austin &
Anor v Commissioner of Police of the Metropolis (above);
Robinson v Balmain New Ferry Co Ltd (above).

Consent: if the claimant consented to what amounted to the


restriction of his freedom of movement, then an action for false
imprisonment is not likely to succeed; see Herd v Weardale
Steel, Coal & Coke Co (above).

Necessity: if the defendant’s action in restraining the claimant


was out of lawful necessity, then an action for false imprisonment
is not likely to succeed; see Austin & Anor v Commissioner of
Police of the Metropolis (above).

27
2.7 Intentional Infliction of Distress

The torts of trespass to the person that we have examined so far


– assault, battery and false imprisonment – involve directly
causing or threatening physical infringements against the
claimant’s person.

On the other hand, even where a defendant’s action does not


directly cause or threaten physical infringement it may indirectly
cause physical, emotional or psychological injury to the claimant.
That type of indirectly caused harm or injury is not likely to be
caught by the torts that are comprised in trespass to the person.
The law now protects or provides remedies for claimants who
suffer physical, emotional or psychological harm indirectly from
wrongful conduct of the claimant.

2.7.1 The tort (or rule) in Wilkinson v Downton

The tort or rule in Wilkinson v Downton comes from the case


after which it is named.

Wilkinson v Downton [1897] EWHC 1 (QB)


By way of a practical joke, the defendant told the claimant
that her husband had been in an accident and broken both
his legs; as a result of the ‘news’ the claimant suffered a
violent shock to her nervous system and serious physical
and psychological consequences; held: that the defendant
was liable in damages to the claimant.

‘The defendant has, … wilfully done an act calculated to


cause physical harm to the plaintiff — that is to say, to
infringe her legal right to personal safety, and has in fact
thereby caused physical harm to her. That proposition
without more appears to me to state a good cause of
action, there being no justification alleged for the act.’ per
Wright J.

28
The case of Wilkinson v Downton was followed in a later case:

Janvier v Sweeney [1919] 2 KB 316


The defendants told the claimant that they will tell the
authorities that her German fiancé was a spy, unless she
stole a particular letter for them; the claimant suffered a
nervous illness as a result of the threat; held: the
defendants were liable in damages.

For a long time, however, cases were not being brought under
the rule in Wilkinson v Downton – especially because of the
development of the law on nervous shock in the tort of
negligence.

In Rhodes v OPO & Anor [2015] UKSC 32, the UK Supreme


Court said that Wright J in Wilkinson v Downton recognised that
wilful infringement of the right to personal safety was a tort. The
Supreme Court pointed to three elements identified by Wright J
as necessary to establish liability for the tort:

(a) ‘the conduct element’: this requires words or conduct directed


towards the claimant for which there is no justification or
reasonable excuse;
(b) ‘the mental element’: this means intention to cause physical
harm or severe mental or emotional distress; the intention can be
inferred as a matter of fact but not imputed as a matter of law;
‘recklessness’ is not enough;

(c) ‘the consequence element’: this means physical harm or


recognised psychiatric illness [suffered by the claimant]

29
Note:

(a) Unlike trespass to the person, the tort in Wilkinson v


Downton is not actionable per se; the claimant must actually
suffer harm.

(b) The action or conduct of the defendant must be directed at


the claimant.

(c) In Wainwright & Anor v Home Office [2003] UKHL 53, the
House of Lords was not willing to extend the rule beyond physical
harm or recognised psychiatric illness to include intentional
infliction of distress

(d) In Rhodes v OPO & Anor (above), the court did not settle
whether intentionally causing significant distress, on its own, can
give rise to a cause of action though Lord Neuberger seemed to
be of the opinion that it should be possible.

(e) In England, another source of protection against or remedy


for a defendant’s action that does not directly cause or threaten
physical harm, e.g. stalking, is to be found in the statutory
provisions of the Protection from Harassment Act 1997.

30
Chapter Three:

Trespass to Land

Think About!

Through his company, Bocardo, Mr Mohammed Al Fayed was the owner of an estate
in Oxted, Surrey UK. A company called Star Energy (etc) was drilling for oil; without
informing Mr Al Fayed, Star Energy constructed three wells beneath his estate at a
depth of at least 800 feet. For 17 years - between 1990 and 2006 - Star Energy pumped
oil from the oil fields and Mr Al Fayed did not know about this; although he had some
suspicions about the drilling activities in 1992, it was only in 2006 that he found out
through official records that pipelines were under his land.
Mr Fayed sued for trespass to land. Should he be entitled to succeed in an action for
trespass to land?
If he succeeds in an action for trespass, what remedy should he be entitled to?
Should he be entitled to an injunction to prevent Star Energy from continuing to drill
for oil using pipelines under his land? Or should the court not grant an injunction but
award a different kind of remedy e.g. damages?
If the court decides to award damages, how much damages should he be entitled to?
Should he be entitled to a share of the proceeds of the drilling up to the time of the case
– which could be up to £7,000,000? Or should he only be awarded a small amount e.g.
£1,000 due to the fact that he did not really suffer any harm as such as a result of the
presence of the wells under his land?

31
3.1 Introduction

The tort of ‘trespass to land’ relates to intentional and direct


interference with a claimant’s right(s) in relation to property.

The tort is principally concerned to protect, especially, the rights


of the claimant to ‘possession’ of property.

To some extent, the tort also protects the rights of the claimant
arising from ownership of property; but this is indirect - as an
owner would still have to show a right to possession. One
principle allowing for this is called ‘trespass by relation’; this
allows a person who is not in possession, but is entitled to it, the
right to sue right from the time he became entitled to the right of
possession - even though he actually enters into possession at a
later point.

In the sense in which we are using the word presently, ‘property’


refers to interests in land and the related enjoyment of that land.
Thus, in this sense, ‘property’ includes physical land and a
construction or dwelling on the land.

Interestingly, the rights protected also include those concerning


the subsoil of the land and the airspace above the land. An old
Latin maxim goes: Cujus est solum ejus est usque ad coelum et
ad inferos (whose is the soil his is also that which is above and
below it); see e.g. Lord Bernstein of Leigh v Skyviews &
General Ltd [1978] QB 479.

As we will see, however, the application of the Latin maxim in this


context has limitations.

On a general level, trespass to land may be described as: a


direct, intentional and unjustified interference with another
person’s right in relation to possession of property.

32
3.2 Elements of Trespass to Land

3.2.1 Direct interference

This really means that for the tort to be committed the defendant
must have done something that affects the claimant’s property
and his right to possession. Indirect interference usually refers to
a situation where the defendant does not do anything directly to
the claimant’s property but allows something to happen to it; this
will not normally be covered by trespass to land but may be dealt
with by another tort called nuisance.

To distinguish between direct and indirect interference a common


example is:

 defendant throws a fruit onto claimant’s land; that is direct


interference and it amounts to trespass to land;
 defendant lets a tree on his own land grow so much that
some of the branches overhang onto the claimant’s
property, that is indirect and will not be trespass to land; it
may however be nuisance.

Question: what if some fruits fall from the overhanging


branches onto claimant’s land?

The ways in which interference may occur include:

 entry onto another person’s property: e.g. walking onto a


land; entering someone’s house; putting a hand through a
window;
 remaining on another person’s property beyond
permission: e.g. staying on the property after being asked
to leave;
 going beyond area or extent permitted: e.g. going into ‘No
Entry’ section; or if allowed in the living room, going into
the bedroom without permission;

33
 putting an object or something on someone’s property:
e.g. throwing something onto another person’s land;
placing something on another person’s property; this
could even be ‘continuing’ trespass if the object is not
removed; Holmes v Wilson (1839) 10 A & E 503.

Examples:

* Trespass by entry onto another person’s property

Entick v Carrington [1765] EWHC KB J98


Some officers broke into the claimant’s house and seized
documents; they claimed they were authorised under a warrant
issued by the Secretary of State; held: the Secretary of State did
not have authority to issue such a warrant; the officers were liable
in trespass.

Director of Public Prosecutions v Jones [1999] UKHL 5


The defendants were on a public highway making a protest at
Stonehenge; when police officers asked them to move, they
refused; they were arrested for taking part in a ‘trespassory
assembly’; held: provided that activities are reasonable, do not
involve committing a nuisance and are not an unreasonable
obstruction of the highway, the activities should not amount to
trespass.

* Trespass by putting or placing an object on another person’s


property

League Against Cruel Sports v Scott [1986] QB 240


The defendant (master of a hunt) allowed hunting dogs to stray
onto the property of the claimants which had been bought to
provide a sanctuary for wild deer; held: this amounted to
trespass.

Note: if the object is not removed and remains on the property,


the claimant may be able to bring a number or series of actions
for trespass as long as the item remains on the property; this is

34
known as continuing trespass! In Holmes v Wilson (1839) 10 A
& E 503 The highways authorities erected buttresses to support
a road that was sinking; the buttresses trespassed on the
claimant’s land; the claimant sued for trespass and won; the
buttresses were not removed; so, the claimant sued again and
won again.

* Trespass ab initio – {‘ab initio’ means from the beginning}

Note: this applies in a situation where the defendant had entered


onto property initially by permission under statute or the common
law – but not simply by the permission of the claimant; if, after the
initial lawful entry, the defendant does something that is not
permitted, then his entry is deemed to have been unlawful and a
trespass from the beginning.

Six Carpenters Case (1610) 8 Co Rep 146a


Six carpenters entered a tavern; they had a lawful right to enter;
they were served with wine and they paid; they ordered bread
and more wine but refused to pay for these; held: the only reason
that they were not to be regarded as trespassers ab initio was
that they had not committed an act but rather an omission by
refusing to pay.

Cinnamond v British Airports Authority [1980] 1 WLR 582


The defendant taxi drivers lawfully drove to the airport to drop off
passengers; they however also waited to tout for passengers to
drive away from the airport; the airport authorities had an official
taxi rank for other taxis; the defendant taxi drivers therefore
deprived the official taxis of business; they also charged
exorbitant prices and sometimes treated passengers badly; the
airport authorities sued them for trespass; held: the defendant
taxi drivers were liable for trespass ab initio.

Note: trespass ab initio is now more relevant in relation to the


conduct of Police and similar authorities after entering a property
lawfully; but the English courts seem to be hesitant about holding

35
the Police liable for trespass ab initio after they had entered a
property by lawful authority.

Elias v Pasmore [1934] 2 KB 164


Police officers lawfully entered the property of H; whilst there they
lawfully seized some documents that were used in the trials of H
and E; they also seized some other documents unlawfully; held:
the police officers were not trespassers ab initio in respect of the
property despite the unlawful seizure of documents; they only
committed trespass to goods in relation to the documents seized
unlawfully.

Chic Fashions (West Wales) Ltd v Jones [1967] EWCA Civ 4


Police officers entered the property of the claimant with a search
warrant to search for particular stolen clothes; they did not find
the clothes mentioned in the warrant but they found and seized
other clothes that they believed to be stolen though they returned
them after an explanation by the claimant; claimant sued for
trespass; held: the officers were not liable for trespass ab initio.

“when a constable enters a house by virtue of a search


warrant for stolen goods, he may seize not only the goods
which he reasonably believes to be covered by the warrant,
but also any other goods which he believes on reasonable
grounds to have been stolen and to be material evidence on
a charge of stealing or receiving, against the person in
possession of then or anyone associated with him.” (Lord
Denning MR)

* Trespass to the ground beneath another person’s property

Star Energy Weald Basin Ltd & Anor v Bocardo SA [2010]


UKSC 35
When drilling for oil, the defendants sank wells which entered the
substrata below the claimant’s property; they did not obtain the
claimant’s permission; the claimant sued for trespass; held:
though there must be some point below the surface at which the

36
concept of the strata belonging to anybody would be an
absurdity, that was not so on the facts of this case and the
claimant was entitled to succeed for trespass to land.

* Trespass to the space above a person’s land

Kelsen v Imperial Tobacco Co [1957] 2 QB 334


An advertisement sign put up by the defendant projected about 8
inches out into an area that was above the claimant’s property –
a one-storey shop; held: this amounted to trespass.

Laiqat v Majid & Ors [2005] EWHC 1305 (QB)


The defendants installed an extractor fan on their own property;
it protruded through the side of the wall separating the claimant's
property from the defendants' property; it was partially above the
rear yard of the claimant's property; it projected over the
claimant’s property by about 75 centimetres at a height of 4.5
metres; held (Silber J): the defendants were liable in trespass; “if
a defendant interferes with a claimant's airspace, this amounts to
trespass except that this conduct would not constitute trespass if
the interference were at such great height - such as by high flying
aircraft- that it does not interfere with the claimant's airspace.”

Anchor Brewhouse Developments Ltd and Others v Berkley


House (Docklands Developments) Ltd (1987) 38 Building Law
Reports 82
The defendants left tall cranes on a building site; when the cranes
were not in use, their booms were left to swing with the wind to
prevent the cranes from falling over; but they swung over the
space above the adjoining property of the claimant; held: this
amounted to trespass.

Compare with:

37
Lord Bernstein of Leigh v Skyviews & General Ltd [1978] QB
479
The defendant flew aircraft over the claimant’s property and took
photos of the property among others; the defendant then offered
to sell the photos to the claimant; the claimant sued for trespass;
held: the defendant was not liable for trespass; flying over the
claimant’s property in the circumstances of the case did not
infringe the claimant’s right to airspace; Griffiths J said that the
best way to balance the rights of a landowner to enjoy the use of
his land against the rights of the general public to take advantage
of all that science now offered in the use of airspace is

“to restrict the rights of an owner in the airspace above his


land to such height as was necessary for the ordinary use
and enjoyment of his land and the structures upon it, and to
declare that above that height he had no greater rights in
the airspace than any other member of the public.”

3.2.2 Intention

Trespass to land is an intentional tort. This means that, normally,


the defendant must intend to do the action that affects the
claimant’s right(s). It does not necessarily mean, as such, that
the defendant actually intended to trespass but that the
defendant intended to do the action which amounts to trespass
technically.

For example, if the defendant walks across a land which he thinks


is public land but in fact belongs to Farmer Jack, although the
defendant did not intend to trespass on Farmer Jack’s land, he
intended to walk on the land – and that is enough to fulfil the
intention element required for trespass to land; examined from
that basis alone, Farmer Jack will be able to maintain an action
against the defendant for trespass to land.

On the other hand, if the defendant is pushed onto Farmer Jack’s


land by another person, the defendant would not have intended

38
to be on the land and the intention element of the tort of trespass
to land would not be present.

Compare:

Smith v Stone 82 ER 533 (1647)


The defendant was forcibly carried by other people onto the
claimant’s property; held: the trespass is not the trespass of the
defendant but that of the people who carried him onto the land.

and

Gilbert v Stone 82 ER 539 & 902 (1647) {Style and Aleyn reports
respectively*}
The defendant was sued for going onto the claimant’s land and
stealing a horse; he claimed that he was forced by 12 men, who
threatened to kill him, to enter the land and steal the horse; held:
that the claim of the defendant was not a defence to the
claimant’s action.
{*There are some questions about the relative accuracies of the
two reports of the case.}

and

Basely v Clarkson (1681) 3 Lev 37


The defendant was mowing his lawn which was next to the
claimant’s lawn; he mistook the boundary and mowed grass
which was on the claimant’s lawn; held: the defendant was liable
in trespass even though he thought he was mowing his own
grass; the claimant was awarded 2 shillings.

Note: although trespass to land is an intentional tort, a case like


Basely v Clarkson suggests that it can be committed
accidentally or carelessly (even innocently); this raises the
suggestion that trespass to land may even be possibly committed
negligently in effect.

39
3.2.3 Trespass to land is a tort actionable per se

Like trespass to the person, trespass to land is a tort that is


‘actionable per se’; this means that the fact that the action of the
defendant amounts to trespass is enough to entitle the claimant
to sue; the claimant does not have to prove actual harm or loss.
In this respect, it is significant to note that often the claimant will
be seeking an injunction rather than damages and if s/he has an
action in trespass that will often mean that s/he is entitled to an
injunction.

3.2.4 Unjustifiable interference

This means that there is no lawful excuse or justification for the


interference with the claimant’s right by the defendant. We will
look at some aspects of this further in relation to defences against
an action for trespass to land.

3.3 Defences to an Action for Trespass to Land

Permission or Licence: if the defendant can show that he has the


permission of the claimant or a licence from the claimant to enter
or remain on the land, he may be able to successfully defend an
action for trespass to land.

Lawful Justification: this is more relevant in circumstances where


action is commenced against Police and similar authorities for
trespass to land; if the authorities can show that the entry onto
the property is under lawful authority e.g. a warrant, then they
may be able to successfully defend an action for trespass to land;
remember Elias v Pasmore [1934] and Chic Fashions (West
Wales) Ltd v Jones [1967].

Necessity: if the defendant can show that entry onto or


interference with the claimant’s property was necessary e.g. for

40
reasons of public or private safety and without negligence on the
part of the defendant, the defendant may be able to successfully
defend an action for trespass to land; as reflected for example in
Cope v Sharp [1912] 1 KB 496.

Jus Tertii (‘rights of a third party’): if the defendant can show that
the person in possession claiming trespass is not entitled to
possession and that the right actually belongs to a third party,
then s/he may be able to successfully defend an action for
trespass to land.

3.4 Remedies for an Action for Trespass to Land

Re-entry: this is essentially a self-help remedy; a person who is


entitled to possession may re-enter the property; but this risks
confrontation or even violence potentially and is a remedy to be
invoked with caution.

Action for recovery of property or ‘ejectment’: a person entitled to


immediate possession may bring a court action to eject a
trespasser.

Mesne profits: this is an action for the claimant to reclaim any


profit that a trespasser might have made from the property during
the period of the trespass.

Distress damage feasant: this can be used in a situation where


an object that has been placed unlawfully on the claimant’s
property has caused damage; the claimant may be able to retain
the object until the damage is paid for.

Injunction: this may be available and may be the most effective


remedy to stop the interference with the claimant’s rights if the
interference is of a continuing nature.

41
Damages: damages may be awarded to compensate the
claimant for actual loss suffered or nominally in a token sum to
denote that trespass has been committed even though no real
harm has been done; it is helpful to remember that trespass to
land is actionable per se; remember also the case of Star Energy
etc v Bocardo.

Question: How useful or relevant is the tort of trespass to land


overall – especially when we consider the cases where no real
harm is done but an action can lie for trespass merely because
trespass is actionable per se?

42
Chapter Four:

Trespass to ‘Personal Property’ and


Conversion

Think About!

1. Ahmed left his phone on the table while he stepped outside to have a chat with Nadine. John
picked up Ahmed’s phone and begins playing a game on it.
2. Leslie Ltd of the UK ordered 100 bales of cotton from Nourhan Co of Egypt; Leslie Ltd asked
Nourhan Co to ship the cotton to Leslie Ltd’s customer Putinovich in Russia; this was because
Leslie Ltd had made a contract to re-sell the cotton to Putinovich. Leslie Ltd had not paid yet
and did not get to inspect the cotton before it was shipped to Russia. When the cotton arrived
in Russia, Putinovich rejected them because they were badly stained and damaged.
3. The professor lent his tort law book to one of his law students for one week; after the one
week had passed, the student refused to return the book!

43
4.1 Introduction

Generally, the word property correlates with ownership. On one


hand, it refers to the rights and interests that a person has in
something, including ownership and, generally, the right to deal
with the thing as the owner likes.

In a related sense, the word property also refers to a thing that


can be owned. Things that can be owned include: (a) immovable
things such as land and things attached to land e.g. houses and
buildings; (b) rights in respect of immovable things – which may
be short of full ownership, e.g. a lease; (c) tangible movable
things, such as goods and other movable physical items; and (d)
intangible things but which can give a person some legal rights
such as shares, bonds, debts etc.

In English law, the expression ‘personal property’ is generally


used to refer to movable things that can be owned by a person
but also includes intangible things. This is in distinction to
immovable things such as land and things that are attached to
land, which are called – ‘real property’.

Accordingly, while property can be categorised in various ways


in English law, a basic categorisation is to distinguish between:
(a) ‘real property’ – which refers to land and things attached to
land; and (b) ‘chattels’ – which refers generally to things that can
be owned but other than land.

Chattels are then sub-divided into: (a) ‘chattels real’ – which


refers to an interest or right in land but which is not ownership of
the land and, specifically, a lease; and, (b) ‘chattels personal’ –
which refers to things that can be owned but are other than land
or an interest in land.

Chattels personal are then further divided into (a) tangible things
(‘choses in possession’) – physical items as mentioned earlier;
and intangible things (‘choses in action’), things like debts, bonds
and shares also as mentioned earlier.

44
Question: how would you classify software?

In this chapter, we shall be focusing on how English law protects


or provides remedies for a person in respect of interference with
the person’s movable tangible things by another person. Our
focus shall be interference with another person’s goods; goods
of course are a form of personal property or chattels personal.

Property Classification Chart

Property

'Real' Property e.g.


'Personal' Property
Land and things
or 'Chattels'
attached to land

Chattels Personal -
Chattels Real i.e. things not
leases connected to land;
generally 'movable'

Tangible things Intangible things


('choses in ('choses in action')
possession') e.g. e.g. shares, bonds,
goods debts etc

45
4.2 Interference with Another Person’s Goods

The word ‘goods’ is defined in section 14(1) of the Torts


(Interference with Goods) Act 1977 which provides that: ‘“goods”
includes all chattels personal other than things in action and
money’; see also section 61(1) of the Sale of Goods Act 1979.

Historically, the common law deals with a person’s claim for


interference with his or her goods by another person through a
range of torts that include trespass to goods, conversion and
detinue.

In England, amendments were made in relation to protection


against and remedies for interference with goods by the Torts
(Interference with Goods) Act 1977.

The 1977 statute made some modifications in respect of the


remedies available for interference with goods and, very
significantly, abolished the tort of detinue in English common law;
instead, the Act extended the tort of conversion to cover
circumstances that used to fall within detinue. Some other
common law countries still have detinue as a separate tort from
conversion.

4.3 Trespass to Goods

The tort of ‘trespass to goods’ relates to intentional and direct


interference with a claimant’s right(s) in relation to goods.

The tort is principally concerned to protect, especially, the rights


of the claimant to ‘possession’ of goods. The person entitled to
sue is the person with actual possession or who is entitled to
immediate possession of the goods in question. The person
might not even be the owner of the goods.

46
‘the plaintiff in an action of trespass must at the time of the
trespass have the present possession of the goods either
actual or constructive, or a legal right to the immediate
possession.’ Johnson v Diprose [1893] 1 QB 512, 515
(Lord Esher)

4.3.1 Actionable per se

The tort of trespass is another tort that is actionable ‘per se’ –


which means that the claimant does not need to prove actual loss
or damage.

While there have been some suggestions that the defendant


should also have dispossessed the claimant of the goods, some
cases suggest that even merely touching another person’s goods
can amount to trespass – granted that the remedy may be merely
nominal damages.

Kirk v Gregory (1876) 1 Ex D 55


The defendant moved some rings from the room in which
a man had died to another room; the rings became lost
and the executors sued for trespass; held: the defendant
was liable in trespass even though there had merely been
‘asportation’ of the rings (moving something from one
place to another) but not dispossession of the owner.

William Leitch & Co Ltd v Leydon [1931] AC 90, 106 per


Lord Blanesburgh ‘[T]he wrong to the appellants in relation
to [the] trespass is constituted whether or not actual
damage has resulted therefrom.’

Strictly speaking, if trespass to goods is actionable per se then


merely touching another person’s goods can amount to trespass;
but there is still some debate on the point about mere touching.

47
Examples of actions that can amount to trespass include: moving
another person’s thing from one place to another i.e. asportation;
taking something away from the possession of the person entitled
to possession; directing a missile at another person’s goods;
destroying another person’s goods; making contact with another
person’s goods; and, using another person’s goods without
permission.

4.3.2 Direct interference

The defendant’s interference with the claimant’s goods must be


direct {e.g. scratching the panel of a coach, Fouldes v
Willoughby (1841) 8 M&W 540}; otherwise the action would not
amount to trespass.

Hartley v Moxham (1842) 3 QB 701


The claimant had been staying at the defendant’s inn;
following a dispute over payment, the defendant locked
the door to the claimant’s room – denying him access to
his goods; the defendant did not touch the claimant’s
goods, however; held: there was no trespass.

Hutchins v Maughan [1947] VLR 131


The defendant warned the claimant that he had laid poison
bait on land near where the claimant was driving sheep;
the claimant did not believe him and let his sheep and
sheep dogs keep going; two sheep dogs ate the bait and
died; held: there was no trespass to the sheep dogs.

4.3.3 Intention

The key point here is that the defendant’s action must have been
directed at the claimant’s goods voluntarily; in that event, what
matters is that the defendant intended to do the action in relation
to the goods which the claimant complains about; the defendant

48
would still be liable even if he did not know that he was
trespassing or even if he thought that the goods belonged to him;
Holmes v Mather (1875) 133 LT 361.

On the other hand, if the action of the defendant was


unintentional or simply negligent, there would not be an action in
trespass; National Coal Board v J E Evans & Co (Cardiff) Ltd
[1951] 2 KB 861 – defendant who was excavating a land did not
know that an electrical cable had been laid underground and
accidentally damaged the cable; held: there was no trespass.

4.3.4 Remedy

The Torts (Interference with Goods) Act 1977 provides that relief
in proceedings for wrongful interference, so far as appropriate,
may be in the form of an order for delivery of the goods and
payment of consequential damages; or, an order for delivery of
the goods but giving the defendant an alternative of paying
damages by reference to the value of the goods, together in
either alternative with payment of any consequential damages;
or damages.

Generally, the remedy for trespass to goods is an action for


damages; damages may be nominal in cases of simple
interference with goods without real harm or damage; but
damages could be significant, for example if the item interfered
with is valuable and its value is significantly diminished or the
item becomes lost as a result of the interference.

49
4.4 Conversion

While the tort of trespass to goods concerns interference with


another person’s goods simply, the tort of conversion goes
beyond that in that it relates to types of interference that may
have a serious effect on the right of the person in possession or
entitled to possession of the goods.

The tort of conversion used to be known by the old name of


‘trover’, and in Fouldes v Willoughby (1841) 8 M&W 540, 550
Rolfe B said: ‘In every case of trover there must be a taking with
the intent of exercising over the chattel an ownership inconsistent
with the real owner's right of possession.’

Although in speaking about conversion, the word ‘owner’ is often


used, any person who has possession or who is entitled to
immediate possession of goods can sue for conversion if the right
to possession is seriously threatened or affected by interference
with the goods.

In fact, even a finder of something may be the person with the


right to possession and may thus be able to sue for conversion.

Parker v British Airways Board [1982] 1 QB 1004


P found a gold bracelet on the floor of the executive lounge
at Heathrow Airport; he handed it over to BAB who owned
the airport so that they might find the owner; he said that
if they could not find the owner they should return the
bracelet to him; instead BAB sold the bracelet; P sued
them in conversion; held: BAB was liable to P for
conversion; although they owned the land, the item was
found lying loose (not attached to the land) and BAB had
not shown an intention to exercise control over lost
property; they did not have a better entitlement to the
bracelet than P had.

50
{Side Note: a finder has a better title to the item that he or she
found than anyone else except the true owner of the item;
Armory v Delamirie [1722] EWHC J94}

The essence of the tort of conversion is that it consists in doing


to goods an act that is inconsistent with the right of the ‘owner’ or
person in possession or entitled to immediate possession.
Interferences with goods that can amount to conversion are of a
wide variety. Further, in practice, conversion is a more likely
cause of action than trespass to goods because conversion often
occurs in the context of commercial transactions or relationships
as well as in the context of exercise of authority to seize a
person’s goods.

4.4.1 Examples

Examples of actions that can amount to conversion include:


 selling the claimant’s goods without his permission,
Hollins v Fowler (1875) LR 7 HL 757;
 detaining the claimant’s goods and refusing to release
them without lawful authority when he demands them;
 seizing of goods by Police without or beyond their lawful
authority;
 clamping the wheels of a person’s vehicle unless it is with
reasonable warning, information on securing release and
reasonable release fee, Arthur v Anker [1997] QB 564;
 destroying a person’s goods wilfully;
 deliberately doing something that can lead to the goods
being confiscated, Moorgate Mercantile Co v Finch
[1962] 1 QB 701;
 delivering the claimant’s goods to another person, e.g.
when a delivery courier mistakenly delivers goods meant
for the professor to one of his students instead.

51
Intention: the defendant must have intended to do the action
which amounted to the interference with the claimant’s goods.
The defendant does not have to have intended to deny the right
of the person who has or who is entitled to possession. In fact,
the defendant may have been acting under a mistaken belief, but
as long as s/he intended to do the action that interferes with the
right of possession s/he can be liable for conversion.

Hollins and others v Fowler and others (1875) LR 7 HL


757
F delivered 13 bales of cotton to B (a broker who they
wrongly thought was acting for a buyer called S); in fact,
B was a fraud; B instead sold the cotton to H; H were
acting as agents for M and transferred the cotton to M who
turned it into yarn; held: although H had acted in good faith
and without negligence, they were still liable for
conversion.

‘… if there has been what amounts in law to a conversion


of the Plaintiffs' goods, by any one, however innocent, that
person must pay the value of the goods to the real owners
….’ per Blackburn J

{Side Note: a reminder that sometimes the outcome of


applying the law to the facts is not always clear or
straightforward!

‘… in all cases where we have to apply legal principles to


facts, there are found many cases about which there can
be no doubt, some being clear for the Plaintiff and some
clear for the Defendant, and that the difficulties arise in
doubtful cases on the border line between the two.’ per
Blackburn J}

Note: if the defendant interferes with the claimant’s goods but in


a manner that shows that the defendant is not denying the
claimant’s right to possession, the defendant may not be liable in
conversion but only in trespass.

52
Fouldes v Willoughby (1841) 8 M&W 540
The claimant, with his two horses, went on the defendant’s
ferryboat and paid for their carriage; on a suggestion that
the claimant had behaved improperly, the defendant
refused to carry the horses; the claimant refused to take
the horses off the boat; the defendant put the horses on
shore; the claimant still refused to get off and travelled on
with the boat; the horses were taken to the defendant’s
brother’s hotel; when the claimant asked for them the next
day, he was asked to pay for their keep or they would be
sold; he did not pay, they were sold; held: the defendant
could not be liable for conversion but only for trespass.

‘… a simple asportation of a chattel, without any intention


of making any further use of it, although it may be a
sufficient foundation for an action of trespass, is not
sufficient to establish a conversion.

… it has never yet been held that the single act of removal
of a chattel, independent of any claim over it, either in
favour of the party himself or any one else, amounts to a
conversion of the chattel.’ per Lord Abinger CB

Compare with

Tear v Freebody (1858) 4 CB (NS) 228


The defendant pulled down the claimant’s building that
had been erected in a manner contrary to a law; the
defendant also took away some of the claimant’s goods
and detained them as a security and pledge for the costs
of taking down the building; but no demand had been
made to the claimant for the alleged costs; held: the
defendant was liable for conversion of the goods.

53
4.4.2 Remedies

The Torts (Interference with Goods) Act 1977 provides that relief
in proceedings for wrongful interference, so far as appropriate,
may be in the form of an order for delivery of the goods and
payment of consequential damages; or, an order for delivery of
the goods but giving the defendant an alternative of paying
damages by reference to the value of the goods, together in
either alternative with payment of any consequential damages;
or damages.

54
Chapter Five:

Negligence: Duty of Care

Think About!

1. What is meant by a ‘duty of care’?


2. Why should the law be concerned to impose a duty of care on people?
3. If a person has a duty of care in particular circumstances, how is it to be measured whether
the person meets the duty of care?
4. In other words, what is the standard of care required for determining whether or not a
person meets a duty of care?
5. Johnson went into Kextra Pharmacy and bought a hair shampoo. The shampoo was
manufactured by Shampex Ltd. When Johnson got home, his wife Aaliyah used the shampoo;
the shampoo caused damage to her scalp and she lost most of her hair. Aaliyah had just been
offered a modelling contract by Moda Ltd; Moda Ltd has withdrawn the offer because of the
hair loss.
6. Yotam works for Alexis Garage as an apprentice mechanic. Alexis Garage had recently had a
hydraulic car lift supplied and fitted by Gormless Machines Ltd. One day, when Yotam was using
the machine to lift a car, it broke and fell and caused severe injuries to Yotam.
7. Read: Roda Sam (previously known as Rawdah Al-Sam) v Pascale Atkins [2005]
EWCA Civ 1452
8. In the case above (Sam v Atkins), on what basis was it held that the defendant was not liable?
(a) Was it because the defendant did not have a duty of care?
(b) Was it because the defendant did not breach a duty of care?
(c) Was it because, even if the defendant did have and breach a duty of care, the injury suffered
by the claimant was not due to the defendant’s breach of duty?

55
5.1 Introduction

The tort of negligence is the most important tort in modern


common law. This is so for a number of reasons. First, the tort of
negligence can be invoked in a wide range of situations and in
relation to a wide range of activities, actions or omissions. The
result is that negligence is generally the tort most invoked before
the courts when a person who feels they have been the victim of
a civil wrong seeks a remedy. Second, since its advent and as a
result of frequent litigation predicated on negligence,
developments in the law relating to negligence have affected
other subjects in the law of tort and even wider in the common
law.

5.2 The Basic Elements of the Tort of Negligence

The tort of negligence involves the establishment of a number of


important elements. In summary the tort of negligence requires
that:

(a) the defendant must have had a duty of care;


(b) the defendant has breached that duty of care;
(c) the claimant has suffered injury, loss or damage; and
(d) the claimant’s injury, loss or damage was caused by
the defendant’s breach of the duty of care.

These four elements constitute the tort of negligence and are


necessarily inter-related; as noted by Lord Denning MR in Lamb
v London Borough of Camden & Anor [1981] EWCA Civ 7;
[1981] QB 625, ‘duty, causation and remoteness - run continually
into one another’. We shall be examining these elements in detail
later in this chapter.

56
5.3 Historical Development of Negligence and the
Concept of Duty of Care

In its modern form, negligence as a tort really developed in the


20th century – unlike trespass, for example, which has existed for
hundreds of years. The landmark case for the development and
recognition of negligence as a tort in its own right is the decision
of the House of Lords in Donoghue v Stevenson [1932] UKHL
100; [1932] AC 562.

Prior to Donoghue v Stevenson, a breach of a duty of care was


not usually treated as something that was actionable in its own
right. It was more likely to be treated as part of the element for
establishing that another tort or actionable wrong had been
committed. Even in cases where the breach of the duty was due
to a failure to observe the duty because of carelessness - which
in effect is negligence and was sometimes described as such in
the cases - the courts tended to make their finding of liability on
the part of the defendant tied to the particular circumstances or
based on a conclusion that the defendant’s action or omission
amounted to ‘fraud’; examples include Langridge v Levy (1837)
2 M & W 519; 4 M & W 337; Longmeid v Holliday (1851) 6 Ex
761; George v Skivington (1869) LR 5 Ex 1.

Also, in Donoghue v Stevenson Lord Atkin noted:

‘It is remarkable how difficult it is to find in the English


authorities statements of general application defining the
relations between parties that give rise to the duty. The
Courts are concerned with the particular relations which
come before them in actual litigation, and it is sufficient to
say whether the duty exists in those circumstances. The
result is that the Courts have been engaged upon an
elaborate classification of duties as they exist in respect of
property, whether real or personal, with further divisions as
to ownership, occupation or control, and distinctions based
on the particular relations of the one side or the other,

57
whether manufacturer, salesman or landlord, customer,
tenant, stranger, and so on.

In this way it can be ascertained at any time whether the


law recognizes a duty, but only where the case can be
referred to some particular species which has been
examined and classified.’

In Heaven v Pender, Trading as West India Graving Dock


Company (1883) 11 QBD 503, the majority of the Court of
Appeal in effect refused to recognise a general tort of negligence
but the dicta in the minority judgment of Brett MR foreshadowed
what was to be recognised much later indeed as the tort of
negligence.

In Heaven v Pender, the defendant was the owner of a drydock


who supplied a stage to a shipowner for use alongside a ship
while it was in dock; the stage was supported by ropes but the
ropes had been scorched by fire before the stage was supplied;
a painter using the stage while painting the ship fell and sustained
injuries when one of the ropes gave way; held: that in the
circumstances of the case the defendant was under a duty to the
claimant, as a person that had been invited to the premises, to
use ordinary care and skill to supply a safe staging.

Nevertheless, the majority in Heaven v Pender (Cotton and


Bowen LJJ) did not accept that there was a wider principle that
liability should arise generally when a person whose conduct
could be seen to pose a danger to the person or property of
another person did not use ordinary care and skill in his conduct.

In a minority judgment, Brett MR (later Lord Esher) sought to


advance that wider principle, stating:

‘whenever one person is by circumstances placed in such


a position with regard to another that every one of ordinary
sense who did think would at once recognize that if he did
not use ordinary care and skill in his own conduct with

58
regard to those circumstances he would cause danger of
injury to the person or property of the other, a duty arises to
use ordinary care and skill to avoid such danger ……

The proposition will stand thus: whenever one person


supplies goods, or machinery or the like, for the purpose of
their being used by another person under such
circumstances that everyone of ordinary sense would, if he
thought, recognize at once that unless he used ordinary
care and skill with regard to the condition of the thing
supplied or the mode of supplying it, there will be danger of
injury to the person or property of him for whose use the
thing is supplied, and who is to use it, a duty arises to use
ordinary care and skill as to the condition or manner of
supplying such thing. And for a neglect of such ordinary
care or skill whereby injury happens a legal liability arises
to be enforced by an action for negligence.’

Although the majority of the court did not accept Brett MR’s
proposition, there seemed at least to be a willingness to accept
that a person who fails to exercise due care with resulting injury
or harm to another person should be held responsible for their
negligent act.

For example, Cotton LJ said:

‘In declining to concur in laying down the principle


enunciated by the Master of the Rolls, I in no way intimate
any doubt as to the principle that anyone who leaves a
dangerous instrument, as a gun, in such a way as to cause
danger, or who without due warning supplies to others for
use an instrument or thing which to his knowledge, from its
construction or otherwise, is in such a condition as to cause
danger, not necessarily incident to the use of such an
instrument, or thing, is liable for injury caused to others by
reason of his negligent act.’

59
Several years later, the English courts eventually established
negligence as a tort in its own right, based on the breach of a
duty of care owed by one person to another which caused harm
or injury to the other. This came by way of a bare 3-2 majority
decision in the important case of Donoghue v Stevenson.

In Donoghue v Stevenson, a friend of the claimant bought a


bottle of ginger beer from a retailer and gave it to the claimant;
the bottle was opaque and its content could not be seen clearly;
the claimant drank the ginger beer and realised that the bottle
also contained the decomposed remains of a snail! The appellant
suffered nervous shock and gastro-enteritis; she sued the
manufacturer of the ginger beer.

In the House of Lords, two of the law lords (Lords Buckmaster


and Tomlin) held that the claimant did not have a case, as English
law did not recognise a general principle of negligence beyond
specific situations usually related to contract or fraud. They
refused to accept Brett MR’s proposition in Heaven v Pender,
with Lord Buckmaster going as far as saying that the case of
George v. Skivington and Brett MR’s dicta in Heaven v Pender
‘should be buried so securely that their perturbed spirits shall no
longer vex the law.’

Part of the argument of the two law lords in the minority relates
to what might be termed as the ‘floodgates’ argument that a wider
principle would mean for example that any manufacturer of
anything would be potentially liable to anyone who may
legitimately use the thing at some point; it can be seen from the
following statement of Lord Tomlin:

‘… if the appellant is to succeed it must be upon the


proposition that every manufacturer or repairer of any article
is under a duty to everyone who may thereafter legitimately
use the article to exercise due care in the manufacture or
repair. It is logically impossible to stop short of this point.
There can be no distinction between food and any other
article.’

60
On the other hand, the other three law lords (Lords Atkin,
Thankerton & Macmillan) held that the claimant could be entitled
to succeed. Lord Atkin gave the famous judgment that formed the
basis of the recognition of negligence as a tort. First, Lord Atkin
accepted that a general principle should not be framed too widely
and must be subject to limits: ‘To seek a complete logical
definition of the general principle is probably to go beyond the
function of the judge, for the more general the definition the more
likely it is to omit essentials or to introduce non-essentials.’

Lord Atkin said that while the definition as framed by Brett MR in


Heaven v Pender was too wide, if properly limited it is ‘capable
of affording a valuable practical guide’. He then went on to make
the famous foundational statement on the law of negligence:

‘… in English law there must be, and is, some general


conception of relations giving rise to a duty of care, of which
the particular cases found in the books are but instances.
The liability for negligence, whether you style it such or treat
it as in other systems as a species of “culpa,” is no doubt
based upon a general public sentiment of moral wrongdoing
for which the offender must pay. But acts or omissions
which any moral code would censure cannot in a practical
world be treated so as to give a right to every person injured
by them to demand relief. In this way rules of law arise
which limit the range of complainants and the extent of their
remedy. The rule that you are to love your neighbour
becomes in law, you must not injure your neighbour; and
the lawyer's question, Who is my neighbour? receives a
restricted reply. You must take reasonable care to avoid
acts or omissions which you can reasonably foresee would
be likely to injure your neighbour. Who, then, in law is my
neighbour? The answer seems to be — persons who are
so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so
affected when I am directing my mind to the acts or
omissions which are called in question.’

61
Finally, Lord Atkin interpreted Heaven v Pender as having
established the same principles ‘when it is limited by the notion
of proximity introduced by Lord Esher himself and A. L. Smith L.J.
in Le Lievre v Gould [1893] 1 QB 491, 497, 504.’

In Le Lievre v Gould, Lord Esher said that Heaven v Pender


‘established that, under certain circumstances, one man may
owe a duty to another, even though there is no contract between
them. If one man is near to another, or is near to the property of
another, a duty lies upon him not to do that which may cause a
personal injury to that other, or may injure his property.’

In the same case, Smith LJ said: ‘The decision of Heaven v.


Pender 11 QB D 503, 509 was founded upon the principle, that a
duty to take due care did arise when the person or property of
one was in such proximity to the person or property of another
that, if due care was not taken, damage might be done by the one
to the other.’

5.3.1 Interesting historical titbits

In the interest of historical appreciation and an amount of


indulgence, some interesting quotations taken from some of the
historical cases on the tort of negligence are provided below.

Lord Macmillan commenting on Donoghue’s journey in the


courts before the House of Lords and on the principle in issue:

‘The Lord Ordinary repelled the respondent's plea to the


relevancy and allowed the parties a proof of their averments, but
on a reclaiming note their Lordships of the Second Division (Lord
Hunter dissenting, or, perhaps more accurately, protesting)
dismissed the action, and in doing so followed their decision in
the previous cases of Mullen v. Barr & Co. and M'Gowan v. Barr
& Co. 1929 SC 461 The only difference in fact between those
cases and the present case is that it was a mouse and not a snail
which was found in the ginger-beer. The present appeal is

62
consequently in effect against the decision in these previous
cases, which I now proceed to examine.’

‘The truth, as I hope to show, is that there is in the English reports


no such “unbroken and consistent current of decisions” as would
justify the aspersion that the law of England has committed itself
irrevocably to what is neither reasonable nor equitable, or require
a Scottish judge in following them to do violence to his
conscience. “In my opinion,” said Lord Esher, in Emmens v.
Pottle (1885) 16 QB D 354, 357, 358, “any proposition the result
of which would be to show that the common law of England is
wholly unreasonable and unjust, cannot be part of the common
law of England.”’

‘It humbly appears to me that the diversity of view which is


exhibited in such cases as George v. Skivington LR 5 Ex 1 on the
one hand and Blacker v. Lake & Elliot, Ld. 106 LT 533, on the
other hand — to take two extreme instances — is explained by
the fact that in the discussion of the topic which now engages
your Lordships' attention two rival principles of the law find a
meeting place where each has contended for supremacy. On the
one hand, there is the well established principle that no one other
than a party to a contract can complain of a breach of that
contract. On the other hand, there is the equally well established
doctrine that negligence apart from contract gives a right of action
to the party injured by that negligence — and here I use the term
negligence, of course, in its technical legal sense, implying a duty
owed and neglected. The fact that there is a contractual
relationship between the parties which may give rise to an action
for breach of contract, does not exclude the co-existence of a
right of action founded on negligence as between the same
parties, independently of the contract, though arising out of the
relationship in fact brought about by the contract.’

Quoting F Pollock
‘“It appears,” says Sir Frederick Pollock, Law of Torts, 13th ed.,
p. 570, “that there has been (though perhaps there is no longer)
a certain tendency to hold that facts which constitute a contract

63
cannot have any other legal effect. The authorities formerly relied
on for this proposition really proved something different and much
more rational, namely, that if A. breaks his contract with B. (which
may happen without any personal default in A. or A.'s servants),
that is not of itself sufficient to make A. liable to C., a stranger to
the contract, for consequential damage. This, and only this, is the
substance of the perfectly correct decisions of the Court of
Exchequer in Winterbottom v. Wright 10 M & W 109 and
Longmeid v. Holliday. 6 Ex 761 In each case the defendant
delivered, under a contract of sale or hiring, a chattel which was
in fact unsafe to use, but in the one case it was not alleged, in the
other was alleged but not proved, to have been so to his
knowledge. In each case a stranger to the contract, using the
chattel — a coach in the one case, a lamp in the other — in the
ordinary way, came to harm through its dangerous condition, and
was held not to have any cause of action against the purveyor.
Not in contract, for there was no contract between these parties;
not in tort, for no bad faith or negligence on the defendant's part
was proved.”’

‘If, on the other hand, you disregard the fact that the
circumstances of the case at one stage include the existence of
a contract of sale between the manufacturer and the retailer, and
approach the question by asking whether there is evidence of
carelessness on the part of the manufacturer, and whether he
owed a duty to be careful in a question with the party who has
been injured in consequence of his want of care, the
circumstance that the injured party was not a party to the
incidental contract of sale becomes irrelevant, and his title to sue
the manufacturer is unaffected by that circumstance.’

‘The exceptional case of things dangerous in themselves, or


known to be in a dangerous condition, has been regarded as
constituting a peculiar category outside the ordinary law both of
contract and of tort. I may observe that it seems to me inaccurate
to describe the case of dangerous things as an exception to the
principle that no one but a party to a contract can sue on that
contract. I rather regard this type of case as a special instance of

64
negligence where the law exacts a degree of diligence so
stringent as to amount practically to a guarantee of safety.’

‘The passages I have quoted, like all attempts to formulate


principles of law compendiously and exhaustively, may be open
to some criticism, and their universality may require some
qualification, but as enunciations of general legal doctrine I am
prepared, like Lord Hunter, to accept them as sound guides.’

‘The law takes no cognizance of carelessness in the abstract. It


concerns itself with carelessness only where there is a duty to
take care and where failure in that duty has caused damage. In
such circumstances carelessness assumes the legal quality of
negligence and entails the consequences in law of negligence.
What, then, are the circumstances which give rise to this duty to
take care? In the daily contacts of social and business life human
beings are thrown into, or place themselves in, an infinite variety
of relations with their fellows; and the law can refer only to the
standards of the reasonable man in order to determine whether
any particular relation gives rise to a duty to take care as between
those who stand in that relation to each other. The grounds of
action may be as various and manifold as human errancy; and
the conception of legal responsibility may develop in adaptation
to altering social conditions and standards. The criterion of
judgment must adjust and adapt itself to the changing
circumstances of life. The categories of negligence are never
closed. The cardinal principle of liability is that the party
complained of should owe to the party complaining a duty to take
care, and that the party complaining should be able to prove that
he has suffered damage in consequence of a breach of that duty.
Where there is room for diversity of view, it is in determining what
circumstances will establish such a relationship between the
parties as to give rise, on the one side, to a duty to take care, and
on the other side to a right to have care taken.’

65
Finally, Cleasby B noted as follows in Francis v Cockrell

‘ … in the case of George v Skivington (1869), LR 5 Exch 1,


where there was an injury to one person, the wife, and a contract
of sale with another person, the husband. The wife was
considered to have a good cause of action, and I would adopt the
view which the Lord Chief Baron took in that case. He said there
was a duty in the vendor to use ordinary care in compounding the
article sold, and that this extended to the person for whose use
he knew it was purchased, and this duty having been violated,
and he having failed to use reasonable care, was liable in an
action at the suit of the third person.’

Continuing the speech with nineteenth century innocence, the


noble baron noted ‘Here the erection was negligently done. I do
not think that there is anything in the authorities at variance with
that.’

5.4 Establishing the Duty of Care

We noted earlier that the tort of negligence has a number of


elements that must be established before a claimant can succeed
in an action for negligence:

(a) that the defendant owed a duty of care to the claimant;


(b) that the defendant breached that duty;
(c) that the claimant suffered damage, injury or loss; and
(d) that the damage, injury or loss suffered by the claimant
was caused by the defendant’s breach of the duty of care.

We have also seen that the duty of care was treated in


Donoghue v Stevenson as a duty to take reasonable care to
avoid acts or omissions which one can reasonably foresee would
be likely to injure one’s neighbour. In this section, we consider
the ways in which the courts decide that a duty of care exists; in

66
other words, how the courts decide that a defendant owes the
claimant a duty of care.

Generally, individual torts in tort law protect specific interests. For


example, we have already learned that the tort of trespass to
person protects a claimant’s interest in their personal space and
bodily integrity, that the tort of trespass to land protects a
claimant’s interest in their land, that the tort of trespass to goods
protects a claimant’s interest in their goods, and we will learn that
the tort of defamation protects a claimant’s interest in their
reputation.

The tort of negligence on the other hand covers a vast array of


situations such that the interests it protects are usually more
generalised than tied to something very specific. This reflects the
nature of the tort itself in that it is concerned with the breach of a
duty of care whereas the circumstances in which one person
owes a duty of care to another vary quite widely.

The one factor common to all claims of negligence is that the


defendant is alleged to have breached a duty of care.
Considering the various circumstances in which such a breach
may occur, a conventional approach - which takes account of the
different circumstances in which the existence of a duty of care
has been recognised - is to say that the tort of negligence
protects interests in the following respects:

(a) personal injury;


(b) damage to property;
(c) economic loss.

The important question remains, nevertheless: when does a duty


to care exist? In other words: in what circumstances does A owe
B a duty of care?

Fortunately, the courts have already recognised a number of


situations in which one party is taken to have a duty of care to
another or to others. The clearest example perhaps is that a road

67
user (especially a motorist) owes a duty of care to other road
users. There are other recognised situations and we shall be
examining some of them in due course. On the other hand, a
fundamental question remains: what are the underlying reasons
for holding that one person owes another a duty of care in any
particular situation? In other words, what is the conceptual basis
for imposing a duty of care?

A history of the cases shows that the courts have not always
found it easy to set out clearly the underlying basis for imposing
a duty of care on a person – outside the scope of contractual
obligations. Historically, one person’s duty towards another was
in law tied to the existence of a contract between them – i.e.
obligations are assumed voluntarily by agreement in return for a
consideration. The problem with this approach is that a person
who suffered an injury or loss because of the carelessness of
another person would not be able to sue the careless person –
unless they had a contract between them.

Although the effect of the doctrine is now moderated by more


modern exceptions, the doctrine of privity of contract means that
a person who is not a party to a contract (a ‘stranger to the
contract’) cannot sue a party to the contract who fails to fulfil an
obligation under the contract. Similarly, with most contracts, a
person who has not given consideration in relation to a contract
cannot sue to enforce the contract.

Under this approach, without the intervention of a tort like


negligence, in our ‘Think About’ no 5 above when Aaliyah
(Johnson’s wife) suffers injury from a shampoo that Johnson
bought from Kextra Pharmacy, she could not ordinarily sue
Kextra Pharmacy as she is not a party to the contract between
the pharmacy and her husband. She could not also sue the
manufacturers, Shampex Ltd, as she is not in any contract with
them either.

The additional problem in the example above, under the same


old approach, is that Johnson may not be able to sue Kextra

68
Pharmacy – because he was not the one who suffered the injury;
he could not sue Shampex Ltd either – because he was not in a
contract with them.

The tort of negligence makes available the possibility that in a


situation like the above, Aaliyah may have the possibility to sue
either Kextra Pharmacy or Shampex Ltd – even though she is not
in any contract with either of them – if she can establish that either
of them owed her a duty of care which the party owing the duty
has breached.

Did either Kextra Pharmacy or Shampex Ltd have a duty of care


to Aaliyah? This brings us squarely to the fundamental question
of how to determine when a duty of care exists!

5.4.1 Determining whether a duty of care exists or not

The first thing to remember is that if the defendant does not owe
the claimant a duty of care the claimant will not be able to sue the
defendant. In other words, ‘no duty of care = no liability’.

Generally, a person who does not do anything at all to cause a


harm or injury suffered by another person is not liable to the other
person. Also, apart from particular circumstances, a person does
not generally have a duty to help to prevent another person
suffering an injury or loss.

 Remember the example in the video of people just


watching as another person drowned and not helping!
 Remember also the somewhat questionable decision of
the Court of Appeal in Sam v Atkins [2005].
 What do you think of a claim that: McDonalds should be
liable in negligence ‘in selling food products that are high
in cholesterol, fat, salt and sugar when studies show that
such foods cause obesity and detrimental health effects.’?

69
o See: Pelman v McDonald's Corp (McFat
Litigation I) 237 F.Supp.2d 512 (S.D.N.Y. Jan 22,
2003)
https://biotech.law.lsu.edu/cases/food/pelman01.h
tm

The point being discussed in the last two paragraphs raises


another general issue that we will consider further later on – that
is whether a person can be liable in negligence for failure to do
something (sometimes called ‘non-feasance’) as opposed to
doing something wrong (‘misfeasance’).

When A’s conduct has affected B and resulted in harm or injury


to B, for us to learn how to determine whether A owed B a duty
of care we should start by understanding some of the
fundamental principles established by the case of Donoghue v
Stevenson.

First, Donoghue v Stevenson establishes that a manufacturer


of a product that he intends to reach an ultimate consumer owes
a duty of care to the consumer. This is known as the ‘narrow’
principle of the case and was stated by Lord Atkin thus:

‘a manufacturer of products, which he sells in such a form


as to show that he intends them to reach the ultimate
consumer in the form in which they left him with no
reasonable possibility of intermediate examination, and with
the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an
injury to the consumer's life or property, owes a duty to the
consumer to take that reasonable care.’

On the other hand, Donoghue v Stevenson is more famous for


some of the side comments (obiter dicta) made in the case; and
it is from these side comments that courts in subsequent cases
have been developing rules and guidelines for establishing
whether one party owes another a duty of care.

70
One of the most famous and most important side comments is
that of Lord Atkin in which he elaborated the famous ‘neighbour’
test or principle; the extract below is part of his side comment:

‘You must take reasonable care to avoid acts or omissions


which you can reasonably foresee would be likely to injure
your neighbour. Who, then, in law is my neighbour? The
answer seems to be — persons who are so closely and
directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called
in question.’

In Lord Atkin’s comment we can see some concepts which are


supposed to help to determine whether A should owe a duty of
care to B.

 Reasonable Foreseeability: when A can reasonably


foresee that his act or omission could cause injury to a
‘neighbour’; and
 Proximity (‘closeness’): A’s ‘neighbour’ is a person closely
and directly affected by A’s act/omission

Crucially, while the neighbour test indicates that a person should


take reasonable care when s/he can foresee that their action
could affect a neighbour, it does not itself stipulate that a legal
duty of care must be imposed in all such cases.

In addition to Lord Atkin’s dicta, Lord MacMillan also noted that:


‘The categories of negligence are never closed.’ This was already
an indication that courts may have to face deciding whether there
should be a duty of care and potential liability for negligence in
other types of situations.

What has emerged is that policy considerations have played a


role in the courts’ decisions as to whether a duty of care exists in
particular circumstances. The courts then use the neighbour
principle to justify the decision to impose a duty of care. On the

71
other hand, the approach involving the relationship of the
neighbour test and policy considerations has not been
straightforward for the courts in many instances or even
generally.

In cases where it is widely accepted and where it may even be


self-evident that order and propriety require that a duty of care
should exist or be imposed, matters have been largely
straightforward. Thus, for example, it is not controversial that it
should be established that a motorist owes a duty of care to other
road users. The courts soon established this; subsequent cases
involving a motorist and other road users would generally not
involve having to decide if the motorist owed a duty of care as
those cases will just follow the ‘precedent’ of the earlier cases
that had established the existence of the duty.

In other areas where the necessity for imposing a duty of care is


not so self-evident or clear cut, the courts have struggled
between two approaches that may be summarised in the
following manner:

(a) that a duty of care should be recognised unless there is


good policy reason not to;
or
(b) that a duty of care should be recognised where there is
good policy reason to do so;

The difference between these two approaches, though


apparently subtle, can be quite significant. The first approach is
likely to result in several more cases being brought before the
courts as it seems to encourage finding that a duty of care exists
more readily. The second approach on the other hand is at least
slightly less likely to result in finding that a duty of care exists in
situations where one had not been identified previously.

We see the struggle between these approaches in the history of


the cases. It seems that the second approach is what the courts
initially followed. At first the courts would consider if the

72
relationship between the claimant and the defendant falls within
the neighbour test of Lord Atkin in Donoghue; then the courts
would determine whether the circumstances are such that they
consider that wider considerations of policy justify holding that a
duty of care should be imposed on the defendant.

Later on, an important decision in Anns v Merton London


Borough Council [1977] UKHL 4, [1978] AC 728 instigated a
shift in the courts’ attitude towards finding whether a duty of care
exists. In effect, the first approach identified earlier was adopted;
that is, the courts began to follow the approach that once the
neighbour test was satisfied, the courts should find that a duty of
care exists – unless there is good policy reason not to do so.

The case of Anns v Merton LBC established what is known as


the ‘two-stage’ test, that is: (a) to establish first whether the
relationship between the parties is such that the defendant
should have reasonably foreseen that their careless action may
be likely to cause injury to the claimant; then, (b) if the first point
is established, to check if there is any reason why the defendant
should not be held liable for the action.

The approach was set out by Lord Wilberforce thus:

‘… the question has to be approached in two stages. First


one has to ask whether, as between the alleged wrongdoer
and the person who has suffered damage there is a
sufficient relationship of proximity or neighbourhood such
that, in the reasonable contemplation of the former,
carelessness on his part may be likely to cause damage to
the latter—in which case a prima facie duty of care arises.
Secondly, if the first question is answered affirmatively, it is
necessary to consider whether there are any considerations
which ought to negative, or to reduce or limit the scope of
the duty or the class of person to whom it is owed or the
damages to which a breach of it may give rise….’

73
In essence, this approach means that as long as harm was
reasonably foreseeable and there was the required proximity
between the parties, the defendant would be held to have a duty
of care – unless there was policy reason not to do so; (see for
example Lord Goff’s observation in Smith v Littlewoods [1987]
UKHL 18, [1987] 2 AC 241, 280).

The result of adopting this approach was that there was an


expansion in the number and type of claims for negligence. Over
time, this expansion itself became unpopular and the courts
started to express doubts about the approach and the ‘two-stage’
test.

A notable development is that the approach was rejected in the


Australian case of Council of the Shire of Sutherland v
Heyman (1985) 157 CLR 424, (1985) 60 ALR 1 (Brennan J).
English courts too began to express doubts about the two-stage
test and in Yuen Kun-yeu v Attorney-General of Hong Kong
[1988] AC 175 Lord Keith said that the two-stage test had been
‘elevated to a degree of importance greater than it merits ….’;
see also Lords Bridge and Oliver in D & F Estates Ltd v Church
Commissioners for England [1989] AC 177.

Eventually, in Murphy v Brentwood District Council [1991]


UKHL 2, [1991] AC 398, the House of Lords overruled Anns v
Merton LBC and the courts returned to an approach, after
reasonable foreseeability and proximity have been established,
of whether policy considerations support holding that a duty of
care exists or, in other words, imposing a duty of care. In the lead
judgment Lord Keith (with agreement of the other law lords) said
that the approach taken by Brennan J in Shire of Sutherland
should be preferred to the two-stage test of Anns v Merton LBC.

In Shire of Sutherland, Brennan J said:

‘It is preferable, in my view, that the law should develop


novel categories of negligence incrementally and by
analogy with established categories, rather than by a

74
massive extension of a prima facie duty of care restrained
only by indefinable “considerations which ought to negative,
or to reduce or limit the scope of the duty or the class of
person to whom it is owed.”’

In Caparo Industries plc v Dickman [1990] UKHL 2, [1990] 2


AC 605, Lord Bridge said that decisions since Anns v Merton
LBC ‘have emphasised the inability of any single general
principle to provide a practical test which can be applied to every
situation to determine whether a duty of care is owed and, if so,
what is its scope.’ He then observed:

What emerges is that, in addition to the foreseeability of


damage, necessary ingredients in any situation giving rise
to a duty of care are that there should exist between the
party owing the duty and the party to whom it is owed a
relationship characterised by the law as one of “proximity”
or “neighbourhood” and that the situation should be one in
which the court considers it fair, just and reasonable that
the law should impose a duty of a given scope upon the one
party for the benefit of the other. But it is implicit in the
passages referred to that the concepts of proximity and
fairness embodied in these additional ingredients are not
susceptible of any such precise definition as would be
necessary to give them utility as practical tests, but amount
in effect to little more than convenient labels to attach to the
features of different specific situations which, on a detailed
examination of all the circumstances, the law recognises
pragmatically as giving rise to a duty of care of a given
scope. Whilst recognising, of course, the importance of the
underlying general principles common to the whole field of
negligence, I think the law has now moved in the direction
of attaching greater significance to the more traditional
categorisation of distinct and recognisable situations as
guides to the existence, the scope and the limits of the
varied duties of care which the law imposes.

75
The resulting effect of the developments is that first, the courts
prefer that the recognition of a duty of care in new circumstances
should occur by ‘analogy’ (i.e. by comparison to existing
recognised situations) and incrementally (i.e. recognition of a
duty of care in new circumstances should proceed somewhat
cautiously). A three-stage test also emerges for establishing if a
duty of care exists, which can be expressed in the following
manner:

(a) Foreseeability of Damage: whether the defendant could


reasonably foresee that his careless conduct could result
in harm to the claimant;

(b) Proximity: whether there exists between the claimant and


the defendant a type of relationship which supports
imposing a duty on the claimant; (this is supposedly more
than the proximity tied to foreseeability in Donoghue; but
how clear is this?);

(c) Fair, just and reasonable situation: whether the courts


consider that in the particular situation, it is fair just and
reasonable to impose a duty of care on the defendant.

In addition to this approach which applies generally, the courts


have also indicated in other particular instances that different or
additional considerations may be involved in determining
whether to impose a duty of care. Two exampIes are psychiatric
injury and economic loss cases. In particular, in claims for
negligence in which the harm or injury suffered by the claimant is
‘pure economic loss’ a further consideration or test that the courts
have applied is that of assumption of responsibility. In other
words, in cases involving economic loss, the courts consider
whether the defendant had assumed responsibility to the
claimant. We will consider some of these issues further in our
consideration of psychiatric damage and economic loss.

76
5.4.2 Operation of the tests for imposing a duty of care –
examples from case law

The three-stage test of Caparo v Dickman sets down guidelines


for deciding whether to declare that a duty of care exists (that is,
to impose a duty of care) in novel circumstances. Note that while
the Caparo approach is widely referred to as ‘the three-stage’
test, some prefer to see them as guidelines – particularly as
members of the court themselves expressed doubts as to
whether one single ‘test’ can capture all the various
circumstances in which it may have to be decided whether a duty
of care exists. As noted by Lord Roskill:

‘I agree with your Lordships that it has now to be accepted


that there is no simple formula or touchstone to which
recourse can be had in order to provide in every case a
ready answer to the questions whether, given certain facts,
the law will or will not impose liability for negligence or in
cases where such liability can be shown to exist, determine
the extent of that liability. Phrases such as “foreseeability,”
“proximity,” “neighbourhood,” “just and reasonable,”
“fairness,” “voluntary acceptance of risk,” or “voluntary
assumption of responsibility” will be found used from time
to time in the different cases. But, as your Lordships have
said, such phrases are not precise definitions. At best they
are but labels or phrases descriptive of the very different
factual situations which can exist in particular cases and
which must be carefully examined in each case before it can
be pragmatically determined whether a duty of care exists
and, if so, what is the scope and extent of that duty. If this
conclusion involves a return to the traditional categorisation
of cases as pointing to the existence and scope of any duty
of care, as my noble and learned friend Lord Bridge of
Harwich, suggests, I think this is infinitely preferable to
recourse to somewhat wide generalisations which leave
their practical application matters of difficulty and
uncertainty.’

77
Under the Caparo approach, greater significance is to be
attached to the ‘traditional categorisation of distinct and
recognisable situations as guides to the existence, the scope and
the limits of the varied duties of care which the law imposes.’
(Lord Bridge)

We now consider the elements of ‘the three-stage’ test with


examples from case law.

Foreseeability of Damage

In Donoghue v Stevenson Lord Atkin said that a defendant must


avoid conduct which they can reasonably foresee would injure
their neighbour and that the neighbour is any person who is
closely and directly affected by the defendant’s conduct that the
defendant should have them in contemplation. This still leaves
the question of where to draw the limits on who is ‘closely and
directly affected’.

Langley v Dray [1998] PIQR 314

The claimant was a policeman driving a police car pursuing the


defendant who was driving a stolen car; the claimant was injured
in a crash during the chase; held (CA): that the defendant should
have known that by causing risk of injury through his reckless
driving, he would cause the claimant to do the same; that the
defendant had a duty not to cause such risk and was in breach
of that duty.

Bourhill v Young [1942] UKHL 5, [1943] AC 92

Y rode a motorcycle negligently; he was involved in a crash with


a car and was killed; the claimant who was 8 months pregnant
was getting off a tram at the time; she did not see the crash but
heard it; she walked past the scene of the accident; by this time
Y’s body had been removed but there was a lot of blood; the
claimant’s baby born later was stillborn and the claimant claimed
she had suffered shock; she sued Y’s estate; held (HL): Y did not
owe the claimant a duty of care as injury to her from his action in
the circumstances was not reasonably foreseeable.

78
Compare also the American case of Palsgraf v Long Island
Railroad Co 248 NY 339, 162 NE 99 (1928)

P was waiting at a train station; a man being helped by a railway


employee dropped a package which exploded; this caused some
scales which were some feet away to be knocked over; P was
injured by the falling scales; she sued the railway company; held
(NYCA 4-3): the company was not negligent because when their
employee was helping the passenger on board, it was not
foreseeable that injury to P would occur.

Proximity

In Lord Atkin’s formulation in Donoghue, proximity and


‘reasonable foreseeability’ were integrated as to be one element.
Caparo v Dickman, on the other hand, treats proximity as a
separate element distinct from foreseeability of damage. It is not
however made exactly clear how the proximity is to be
established.

Ordinarily, ‘proximity’ (originating in Latin) means ‘closeness’. For


the tort of negligence, the closeness does not necessarily only
have to be physical closeness. It may indeed mean physical
closeness; but it may also be due to a relationship not only of
geography but of time or even of cause and effect.

Hill v Chief Constable of West Yorkshire [1987] UKHL 12;


[1988] 2 WLR 1049

The claimant was the mother of one of the last victims of a serial
rapist and killer known as the Yorkshire ripper; the killer had
committed 13 murders and 8 attempted murders in the area
concerned over a period of five years; the claimant claimed that
the Police’s negligence in the investigation and failure to catch
the murderer resulted in the death of her daughter; held (HL):
although there was foreseeability of harm, as the identity of the
killer was not known and as the class of potential victims was
large, the circumstances were not enough to establish a duty of
care by the Police to the deceased victim.

79
Watson v British Boxing Board of Control Ltd & Anor [2000]
EWCA Civ 2116, [2001] QB 1134, [2001] 2 WLR 1256

The claimant suffered brain damage in a boxing match which was


licensed and sponsored by the defendants; he sued the 1 st
defendant Board for negligence in that if they had made medical
facilities available at ringside his injuries would not have been so
serious; held (CA): that there was proximity between the claimant
and the Board; that ‘the injuries which are sustained by
professional boxers are the foreseeable, indeed inevitable,
consequence of an activity which the Board sponsors,
encourages and controls.’

Compare also Home Office v Dorset Yacht Co Ltd [1970]


UKHL 2, [1970] AC 1004

Fair, just and reasonable

Quare: is this really a separate requirement from the others?

The statements in Caparo v Dickman do suggest that it is


distinct. Yet, the judges themselves sometimes make comments
that the elements may overlap! In Watson, Lord Phillips MR said:
‘Many of the matters considered under the heading of proximity
are also relevant to the question of whether it is fair, just and
reasonable to impose a duty of care in this case.’ Also, in Caparo
v Dickman, Lord Oliver said:

‘The postulate of a simple duty to avoid any harm that is,


with hindsight, reasonably capable of being foreseen
becomes untenable without the imposition of some
intelligible limits to keep the law of negligence within the
bounds of common sense and practicality. Those limits
have been found by the requirement of what has been
called a "relationship of proximity" between plaintiff and
defendant and by the imposition of a further requirements
that the attachment of liability for harm which has occurred
be "just and reasonable". But although the cases in which
the courts have imposed or withheld liability are capable of
an approximate categorisation, one looks in vain for some
common denominator by which the existence of the

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essential relationship can be tested. Indeed it is difficult to
resist a conclusion that what have been treated as three
separate requirements are, at least in most cases, in fact
merely facets of the same thing, for in some cases the
degree of foreseeability is such that it is from that alone that
the requisite proximity can be deduced, whilst in others the
absence of that essential relationship can most rationally be
attributed simply to the court's view that it would not be fair
and reasonable to hold the defendant responsible.
"Proximity" is, no doubt, a convenient expression as long as
it is realised that it is no more than a label which embraces
not a definable concept but merely a description of
circumstances from which pragmatically, the courts
conclude that a duty of care exists.’

Macfarlane and Another v Tayside Health Board (Scotland)


[1999] UKHL 50; [2000] 2 AC 59

Mr M underwent a vasectomy by a surgeon for whom the


defendant was responsible; the surgeon wrote to Mr M that his
sperm count was now negative and he was now infertile; he
resumed relations with Mrs M without contraception; Mrs M
became pregnant and had their 5th child; The Ms sued for
negligence (a) for pain and inconvenience caused by the
pregnancy to Mrs M and (b) for the cost of bringing up the child;
held (HL): the claim for pain and inconvenience would be
allowed; but the claim for bringing up the child would not be
allowed.

Additional considerations in cases such as economic loss:

(a) Negligent Statement contra Negligent Conduct


(b) Assumption of Responsibility

The modern tort of negligence originated in Donoghue v


Stevenson in the context of personal injury caused by a
manufacturer. Remember however that it was said in that case
that ‘the categories of negligence are never closed’. Accordingly,
claims for negligence have been made in contexts that do not
involve manufactured products or personal injury.

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It is also to be borne in mind that Donoghue v Stevenson related
to negligent conduct of the defendant. On the other hand, the tort
of negligence has also extended to the realm of negligent
statements by a defendant.

Damage or injury resulting from a negligent statement is not likely


to be in the nature of personal injury but more in the nature of
‘economic loss’. As noted by Lord Bridge in Caparo v Dickman:

‘The damage which may be caused by the negligently


spoken or written word will normally be confined to
economic loss sustained by those who rely on the accuracy
of the information or advice they receive as a basis for
action.’

A significant and related aspect of the development of the tort of


negligence, accordingly, relates to claims for economic loss
which a claimant claims to have suffered as a result of the
negligent conduct or statement of the defendant.

It may be questioned whether the courts are ready to protect a


claimant against, or to compensate a claimant for economic loss
as much as they are willing to do the same in relation to personal
injury. In Caparo v Dickman, Lord Bridge said:

‘One of the most important distinctions always to be


observed lies in the law's essentially different approach to
the different kinds of damage which one party may have
suffered in consequence of the acts or omissions of
another. It is one thing to owe a duty of care to avoid
causing injury to the person or property of others. It is quite
another to avoid causing others to suffer purely economic
loss.’

Lord Bridge’s statement indicates that the law may be inclined to


give different treatment to cases of ‘purely economic loss’ as to
those of personal injury. We will still consider negligence in the
context of pure economic loss further later on. For now, it is
helpful to use the example of ‘negligent misstatements’ or
‘negligent misrepresentation’ at common law and some of the
relevant case law in our consideration of the element of
‘assumption of responsibility’ on the question whether a duty of

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care exists i.e. on whether to impose a duty of care.

In the past, it was held to be English law that a claimant could


only claim against a defendant for a negligent statement if there
was a contract between the parties or what is known as a
‘fiduciary relationship’, which is a relationship of high trust that
exists in some technical circumstances, e.g. solicitor-client.

This was the position held by the courts in cases before and up
to Candler v Crane, Christmas & Co [1951] 2 KB 164 which
confirmed the same position. In that case, however, Denning LJ
(as he then was) gave a very powerful dissenting judgment which
seriously queried whether the position then held by the courts to
be the law was correct.

Many years later, in the case of Hedley Byrne & Co Ltd v Heller
& Partners Ltd [1963] UKHL 4, [1964] AC 465, the English
courts accepted and established the principle that a defendant
can be liable to a claimant for making a negligent statement in
some circumstances - even if there is no contract or fiduciary
relationship between the parties.

Hedley Byrne & Co Ltd v Heller & Partners Ltd

HB was an advertising agent; they placed some advertisements


on behalf of EP with television companies (etc.) but would
themselves be liable if EP did not pay; they wanted some
assurance about EP’s creditworthiness; they asked their bank to
enquire from H&P about EP’s creditworthiness since H&P were
bankers of EP; H&P gave positive references about EP but
without due care; however, in giving the references (one orally
and one in writing), H&P stated on both occasions that the
references were given ‘without responsibility’; held (HL): H&P
would have been liable for making a negligent statement if not for
the fact that they had given the references without responsibility.

The case therefore establishes that a defendant can be liable for


negligence in respect of a statement - and not only conduct or
action. Very importantly, the case also establishes that a
defendant can be liable for a negligent statement even if there is
no contract or fiduciary relationship between the defendant and
the claimant. On the other hand, the case also establishes that

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for a defendant to be liable to a claimant for negligent statement,
there still needs to be some form of ‘special relationship’ between
them.

The speeches of the law lords gave various grounds for possibly
finding that the relationship between the parties is of such a
nature that a duty of care should be imposed on the party making
the negligent statement.

Lord Reid said ‘other special relationships’ (apart from fiduciary


duties) would include:

‘all those relationships where it is plain that the party


seeking information or advice was trusting the other to
exercise such a degree of care as the circumstances
required, where it was reasonable for him to do that, and
where the other gave the information or advice when he
knew or ought to have known that the enquirer was relying
on him.’

He also said:

‘A reasonable man, knowing that he was being trusted or


that his skill and judgment were being relied on, would, I
think, have three courses open to him. He could keep silent
or decline to give the information or advice sought: or he
could give an answer with a clear qualification that he
accepted no responsibility for it or that it was given without
that reflection or enquiry which a careful answer would
require: or he could simply answer without any such
qualification. If he chooses to adopt the last course he must,
I think, be held to have accepted some responsibility for his
answer being given carefully, or to have accepted a
relationship with the enquirer which requires him to exercise
such care as the circumstances require.’

So we see from Lord Reid’s speech that a special relationship


could arise because the maker of a statement knew that the
‘enquirer’ was relying on him and that the maker of the statement
‘accepted some responsibility’.

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Lord Morris of Borth-y-Gest said: ‘if A assumes a responsibility to
B to tender him deliberate advice there could be a liability if the
advice is negligently given.’

He also said:

‘In the absence of any direct dealings between one person


and another, there are many and varied situations in which
a duty is owed by one person to another.’

and

‘… there may be many situations in which one person


voluntarily or gratuitously undertakes to do something for
another person and becomes under a duty to exercise
reasonable care.’

and

‘… it follows and that it should now be regarded as settled


that if someone possessed of a special skill undertakes,
quite irrespective of contract, to apply that skill for the
assistance of another person who relies upon such skill, a
duty of care will arise. The fact that the service is to be given
by means of or by the instrumentality of words can make no
difference. Furthermore, if in a sphere in which a person is
so placed that others could reasonably rely upon his
judgment or his skill or upon his ability to make careful
inquiry, a person takes it upon himself to give information or
advice to, or allows his information or advice to be passed
on to, another person who, as he knows or should know,
will place reliance upon it, then a duty of care will arise.’

Lord Hodson said:

‘… if in a sphere where a person is so placed that others


could reasonably rely upon his judgment or his skill or upon
his ability to make careful enquiry such person takes it upon
himself to give information or advice to, or allows his
information or advice to be passed on to, another person
who, as he knows, or shall know, will place reliance upon it,
then a duty of care will arise.’

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Lord Devlin said:

‘there is ample authority to justify … saying now that the


categories of special relationships which may give rise to a
duty to take care in word as well as in deed are not limited
to contractual relationships or to relationships of fiduciary
duty, but include also relationships which in the words of
Lord Shaw in Nocton v Ashburton … are " equivalent to
contract" that is, where there is an assumption of
responsibility in circumstances in which, but for the absence
of consideration, there would be a contract.’

In conclusion, a defendant may be liable to a claimant for a


negligent misstatement if there is a close enough (‘sufficiently
proximate’) relationship between them. This may be because the
defendant allowed his skill to be relied upon and accepted
(‘assumed’) responsibility for his statement. On the other hand,
the case of Caparo v Dickman gives us an example of where
the courts draw the limits on what is a close enough relationship;
we will study that case further in the specific context of economic
loss.

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Chapter Six:

Negligence: Breach of Duty

Think About!

1. Read: Birch v Paulson [2012] EWCA Civ 487


2. Compare it to: Roda Sam (previously known as Rawdah Al-Sam) v Pascale Atkins
[2005] EWCA Civ 1452.
3. Can you spot any differences between the approaches of the Court of Appeal in the
two cases?
4. Identify the key element of the tort of negligence that the court was dealing with in
Birch v Paulson.
5. Identify the key element of the tort of negligence that the court was dealing with in
Roda Sam (previously known as Rawdah Al-Sam) v Pascale Atkins.

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6.1 Introduction

In this chapter, we are turning our attention to the issue of when


a duty of care is to be regarded as having been broken.
Remember that the breach of a duty of care is one of the
elements needed to establish that the tort of negligence has been
committed. As a further reminder, in the previous chapter we
have traced the history of the development of the tort of
negligence and learned that the modern tort of negligence
comprises as elements: (a) the existence of a duty of care; (b)
breach of the duty; (c) loss, damage or injury to the claimant; and,
(d) causation between the breach of duty and the claimant’s loss.

In our discussion of whether a duty of care exists we saw that this


is a matter of law and we saw how the courts have tried to
develop tests for determining whether a defendant owes the
claimant a duty of care in given circumstances.

The question of whether a recognised duty of care has been


broken is, however, a matter of fact. In other words, whether
there has been a breach of a duty of care is a matter of fact –
unlike the question of whether a duty of care exists at all, which
is a matter of law.

The issue of determining whether there has been a breach of a


duty of care is said to be a matter of fact because it depends on
the factual matters of what the defendant has done or failed to
do. In other words, the question of whether the defendant has
breached a duty of care turns on the defendant’s behaviour or
conduct. On the other hand, what the defendant did or failed to
do can only amount to a breach of duty if it falls short of (that is,
it does not meet) a level or standard of behaviour that is expected
in the circumstances.

For reiteration and emphasis, the point being made in the last
paragraph is that the defendant’s conduct or behaviour can only
be a breach of duty if the conduct or behaviour is not up to the
standard of behaviour that was expected of the defendant. But

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the question immediately arises, how do we determine the
standard of behaviour that the defendant is expected to meet?
This raises for us one of those significant fine distinctions that we
often have to make when studying law in the common law
system.

The standard of behaviour that a defendant is expected to meet


is actually set by law. Thus, while the question whether the
defendant has breached a duty of care is a matter of fact, the
question of the standard of behaviour that the defendant is
expected to meet is a matter of law. It is when the defendant fails
in fact to meet a standard of behaviour set in or by law that the
defendant is said to be in breach of a duty of care.

As the issue of whether the defendant’s conduct or behaviour


fails to meet the duty of care in particular circumstances is a
matter of fact dependent on what happened exactly, the more
technical issues of legal discussion will tend to focus on where
and how the law sets the standard of care.

6.2 The Standard of Care

As a start, it is useful to remind ourselves of the ‘neighbour


principle as formulated in Donoghue v Stevenson [1932].

‘You must take reasonable care to avoid acts or omissions


which you can reasonably foresee would be likely to injure
your neighbour. Who, then, in law is my neighbour? The
answer seems to be — persons who are so closely and
directly affected by my act that I ought reasonably to have
them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called
in question.’ (Lord Atkin)

We can immediately notice the prominence of the words


‘reasonable’ and ‘reasonably’:

89
 ‘take reasonable care’
 ‘acts or omissions which you can reasonably foresee’
 ‘I ought reasonably to have them in contemplation’

This helps us to put in context what is to come – that is, that the
setting of the standard of behaviour expected of the defendant is
tied to the concept of ‘reasonableness’. But, in what way is the
conduct expected of the defendant tied to ‘reasonableness’? The
answer is that the standard of conduct expected of the defendant
is that which is expected of a ‘reasonable person.’

Although the last paragraph referred to ‘reasonable person’,


historically, the courts themselves tended to tie the standard of
care to what was expected of ‘the reasonable man’!

‘Negligence is the omission to do something which a


reasonable man, guided upon those considerations which
ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man
would not do. The defendants might have been liable for
negligence, if, unintentionally, they omitted to do that which
a reasonable person would have done, or did that which a
person taking reasonable precautions would not have
done.’ Blyth v The Company of Proprietors of the
Birmingham Waterworks (1856) 11 Exch 781, per Alderson,
B.

‘the basic rule is that negligence consists in doing


something which a reasonable man would not have done in
that situation or omitting to do something which a
reasonable man would have done in that situation …’ Hazell
v British Transport Commission [1958] 1 WLR 169 at 171,
per Pearson J

90
Who is this ‘reasonable man’?

One old formulation referred to the reasonable man as ‘the man


on the Clapham omnibus’. For example, in Hall v Brooklands
Auto-Racing Club [1933] 1 KB 205, Greer LJ said:

‘The person concerned is sometimes described as “the man


on the street”, or as the “man on the Clapham Omnibus”,
or, as I recently read in an American author, the “man who
takes the magazines at home and in the evening pushes
the lawnmower in his shirt sleeves”.’

In a more contemporary equivalence, Lord Steyn used the


expression ‘traveller on the [London] Underground’ in
Macfarlane and Another v Tayside Health Board (Scotland)
[1999] UKHL 50; [2000] 2 AC 59.

Limitations of the ‘reasonable man’?

The courts themselves seem to recognise that the ‘reasonable


man’ is a depiction of average rather than a representation of
perfection. One judge observed that the reasonable man does
not have the courage of Achilles, the wisdom of Ulysses nor the
strength of Hercules, nor has he ‘the prophetic vision of a
clairvoyant’; Hawkins v Coulsdon & Purley UDC [1954] 1 QB
319, 341; Romer LJ.

‘Reasonable Man’ or ‘Reasonable Woman’ or ‘Reasonable


Person’?

The idea that determining objective conduct should be based on


the concept of the reasonable man has not been without
question. In the first place, there are reasonable concerns that
focusing on ‘man’ is exclusionary in seeming to ignore that
humankind does not consist of only one gender. It is thus, not
surprising to sometimes come across a shift in language from

91
‘reasonable man’ to ‘reasonable person’. Secondly, the question
of whether it is truly possible to identify a reasonable man or
person is inescapable.

The reasonable man or person: how realistic?

While the concept of the reasonable man or person can indeed


be helpful in seeking to determine what is to be regarded as
reasonable conduct, the concept is not beyond questioning.
Indeed, statements of the English judges in a number of cases
reflect the question whether it is truly possible to aggregate a
reasonable person from the diversity of humankind and variety
of the people who make up a particular population or society.
The same concern is also seen in the context of other
aggregating concepts, or ‘legal fictions’, often used by the
courts - such as an ‘officious by-stander’ or a ‘right-thinking
member of society’ or even ‘common sense’.

It is interesting to observe an amount of healthy scepticism in


some of the judicial statements about how realistic the concept
of the reasonable person truly is for establishing objective
standards of conduct. A few examples of such statements,
sometimes quoted extensively, are provided below.

Lord Reed in Healthcare at Home Ltd v The Common


Services Agency [2014] UKSC 49, [2014] WLR(D) 351
(emphases added):

‘The Clapham omnibus has many passengers. The most


venerable is the reasonable man, who was born during the
reign of Victoria but remains in vigorous health. Amongst
the other passengers are the right-thinking member of
society, familiar from the law of defamation, the officious
bystander, the reasonable parent, the reasonable landlord,
and the fair-minded and informed observer, all of whom
have had season tickets for many years.

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The horse-drawn bus between Knightsbridge and Clapham,
which Lord Bowen is thought to have had in mind, was real
enough. But its most famous passenger, and the others I
have mentioned, are legal fictions. They belong to an
intellectual tradition of defining a legal standard by
reference to a hypothetical person, which stretches back to
the creation by Roman jurists of the figure of the bonus
paterfamilias. As Lord Radcliffe observed in Davis
Contractors Ltd v Fareham Urban District Council [1956] AC
696, 728:

"The spokesman of the fair and reasonable man, who


represents after all no more than the anthropomorphic
conception of justice, is and must be the court itself."

It follows from the nature of the reasonable man, as a


means of describing a standard applied by the court, that it
would misconceived (sic) for a party to seek to lead
evidence from actual passengers on the Clapham omnibus
as to how they would have acted in a given situation or what
they would have foreseen, in order to establish how the
reasonable man would have acted or what he would have
foreseen. Even if the party offered to prove that his
witnesses were reasonable men, the evidence would be
beside the point. The behaviour of the reasonable man is
not established by the evidence of witnesses, but by the
application of a legal standard by the court. The court may
require to be informed by evidence of circumstances which
bear on its application of the standard of the reasonable
man in any particular case; but it is then for the court to
determine the outcome, in those circumstances, of applying
that impersonal standard.’

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Lord Hope of Craighead in Chester v Afshar [2004] UKHL 41,
[2005] 1 AC 134:

‘An appeal to common sense when determining issues of


causation is valuable in the right context. But out of its
proper context, and without more, it may pull in two or more
directions. This can be seen in Chappel v Hart where,
following the guidance of Mason CJ in March, common
sense was referred to and relied upon by justices on either
side of the argument: Gaudron J at para 6; McHugh J, paras
23, 24; Kirby J, para 93; Hayne J, para 148. On its own
common sense, and without more guidance, is no more
reliable as a guide to the right answer in this case than an
appeal to the views of the traveller on the London
Underground. As I survey my fellow passengers on my
twice weekly journeys to and from Heathrow Airport on the
Piccadilly Line - such a variety in age, race, nationality and
languages - I find it increasingly hard to persuade myself
that any one view on anything other than the most basic
issues can be said to be typical of all of them.’

Reality?

It is difficult to deny that that reality informs that invoking the


concept of the reasonable man or person ultimately results in
injecting the courts’ perception of where reasonable conduct
ought to be set. A very good summary of the issues raised by the
use of the concept of the reasonable man or person is well
outlined in the following quoted paragraph:

‘Is the reasonable person black, coloured or white? Male or


female? Young, middle-aged or old? Christian, Muslim or of
some other, or no, religion? Rich, poor or averagely
affluent? Perhaps none of these differences between
people is relevant, for instance, to questions about how a
reasonable person would drive a car, but some or all of
them may be relevant in some contexts. … In fact, the

94
reasonable person is merely an abstraction whose
characteristics are invented by the judges who are called
upon to decide whether defendants have been negligent or
not.’ P Cane, Atiyah’s Accidents, Compensation and the
Law (7th ed., CUP 2006) 37-38.

Even the courts have sometimes acknowledged the fictional and


artificial nature of the concept of the reasonable man and that it
is essentially the courts who set the standard.

Lord Reed in Healthcare at Home Ltd v The Common


Services Agency:

‘The behaviour of the reasonable man is not established by


the evidence of witnesses, but by the application of a legal
standard by the court.’

Lord Radcliffe in Davis Contractors v Fareham Urban DC


[1956] UKHL 3, [1956] AC 696:

‘… the spokesman of the fair and reasonable man, who


represents after all no more than the anthropomorphic
conception of justice, is and must be the Court itself.’

6.3 Breach of Duty of Care: Some Parameters from


Case Law

As we have learned, although the standard of care expected in


particular circumstances is one set by law, whether the standard
has been met or, conversely, whether there has been a breach
of duty of care, is a question of fact.

This means that each case of alleged breach of duty ultimately


turns on the facts of the case and only general parameters can
be drawn from the decisions of the courts as to how to determine
if a breach of duty will occur in different circumstances.

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Some of the factors that are likely to affect the decision of the
courts on whether there is a breach of duty in particular
circumstances include:

 Foreseeability: the extent to which the result of the


defendant’s conduct was foreseeable;
 Magnitude of the risk: the extent to which there was
likelihood of harm and how potentially serious the harm
could be;
 Practicality of preventive measures or whether ‘accident’
was inevitable: the extent to which anything could have
been done practically/realistically to prevent what
happened;
 Public utility or good: whether the defendant was engaged
in an act or conduct for (with potential for) public good;
 Common practice: whether the defendant’s conduct was
in line with standard practice in the field of endeavour or
profession.

6.3.1 Reasonable care NOT perfect care

The standard of care is based on what a reasonable person


would or would not do; not on what is the ideal course of action
or conduct in a particular situation. In Birch v Paulson [2012]
EWCA Civ 487, Davis LJ said that ‘… the legal test is not a
question of the counsel of perfection using hindsight. Of course
it is not, and drivers are not required to give absolute guarantees
of safety towards pedestrians. The yardstick is by reference to
reasonable care.’

In Hall v Brooklands Auto Racing Club [1933] 1 KB 205, two


racing cars collided during a race at a racing circuit which
belonged to the defendants. One of the cars was flung into the
air and over railings supposed to protect spectators. Two
spectators were killed and others were injured; the claimant was
an injured spectator. It was held that the defendants had a duty

96
to see that the track was as free from danger as reasonable care
and skill could make it; but they did not have a duty to guard
against risks that were not reasonably foreseeable, or which were
inherent to the type of activity involved as spectators could
reasonably foresee before choosing to take the risk.

6.3.2 Standard of care: an objective standard

The standard of care is based on what is expected of a


‘reasonable man’ or ‘reasonable person’. This means that
generally factors peculiar to the defendant are ordinarily not to be
taken into account.

In Nettleship v Weston [1971] 3 WLR 370, after checking that


his friend Mrs W had adequate insurance, N agreed to give her a
driving lesson; during the lesson Mrs W lost control of the car and
hit a lamp post; N fractured his knee and sued for damages. The
Court of Appeal held by 2-1 majority that the standard of care in
driving expected of Mrs W was the same as that expected of a
reasonable qualified competent driver; Mrs W was liable to N for
damages though this was reduced by 50% for N’s own
contributory negligence; the defence of volenti non fit injuria was
not available because, in checking that Mrs W had insurance, N
was indicating that he did not wish to give up his legal rights.

Perhaps the case of Nettleship v Weston is better explained as


a policy decision which took into account that the party ultimately
responsible for paying the damages would be Mrs W’s insurance
company; the case does not have universal support and the
dissenting judgment of Salmon LJ is significant.

It should also be noted that if a person is affected by an


impairment like a medical problem, and they were aware of it, but
carried on an activity which resulted in injury, the person may yet
be held to the standard of an ordinary person; Roberts v
Ramsbottom [1980] 1 WLR 823. However, if the person did not

97
know that they were so impaired by a medical condition they may
escape liability; Mansfield v Weetabix Ltd [1998] 1 WLR 1263.

Although the standard of care is as a general rule an objective


standard, the courts often find it appropriate to relate this to
particular circumstances which may include the circumstances of
the defendant. The result is that subjective considerations may,
at least to some extent, be relevant.

One example is the case of the liability of children; generally, the


test for the standard of care is still an objective one but it takes
account of the fact that the defendant is a child. Thus, the test is
based on what can be objectively expected of a child of the
particular age.

In Mullin v Richards & Anor [1997] EWCA Civ 2662, [1998] 1


WLR 1304, M & R were two 15 year old girls and friends; they
were playing with their rulers as in a play sword fight; one of the
rulers snapped and a plastic fragment went in M’s eye, causing
her to lose all useful sight in that eye; M sued R in negligence.
The Court of Appeal held that R was not liable; that the argument
centres on foreseeability; that ‘the test of foreseeability is an
objective one; but the fact that the first defendant was at the time
a 15 year old schoolgirl is not irrelevant’; the test ‘is whether an
ordinarily prudent and reasonable 15 year old schoolgirl in the
defendant's situation would have realised’ that their action gave
rise to a risk of injury.

It is worth noting that Hutchison LJ, with whom the other


members agreed, relied on the Australian case of McHale v
Watson [1966] 115 CLR 199. That case focused on standard of
care and concluded that a defendant can ‘rely in his defence
upon a limitation upon the capacity for foresight or prudence, not
as being personal to himself, but as being characteristic of
humanity at his stage of development and in that sense normal.
By doing so he appeals to a standard of ordinariness, to an
objective and not a subjective standard.’

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In Orchard v Lee [2009] EWCA 295, [2009] PIQR P16, L, a 13
year old boy, was playing the game of tag with another 13 year
old boy in a school playground; whilst running backwards L
collided with the claimant who was a lunchtime assistant
supervisor at the school; L’s head collided with the claimant’s
cheek and it became a serious injury; the claimant sued L in
negligence and the issue was whether L had breached his duty
of care; The Court of Appeal held that L had not breached his
duty of care and was not liable; that the primary question should
be whether the conduct of the child falls below the standard that
should objectively be expected of a child of that age; L was not
running about and playing tag in a way which was to a significant
degree outside the norm for 13 year olds.

Waller LJ observed that Hutchinson LJ in Mullin v Richards


addressed ‘primarily the foreseeability of injury’; Waller LJ noted,
however, that ‘the primary question should be whether the
conduct of the child is culpable, i.e. whether it has fallen below
the standard that should objectively be expected of a child of that
age.’

Another situation where the circumstances of the defendant may


be relevant even though the standard of care is an objective
standard concerns people acting in some professional
capacities. If a person claims to have a particular skill, especially
in a professional field, the person will be expected to show the
level of skill normally possessed by a person in that field. In
Bolam v Friern Hospital Management Committee [1957] 1
WLR 582,586 McNair J said:

‘…where you get the situation which involves the use of


some special skill or competence, then the test as to
whether there has been negligence or not is not the test of
the man on the top of the Clapham omnibus, because he
has not got this special skill. The test is the standard of the
ordinary skilled man exercising and professing to have that
special skill. A man need not possess the highest expert
skill; it is well established law that it is sufficient if he

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exercises the ordinary skill of an ordinary competent man
exercising that particular art.’

An important issue arises in the context of professional fields in


relation to the fact that opinions may differ among the
professionals or people in a particular field about what is the right
way to deal with a particular situation.

As a starting point, if a professional has acted in a way or followed


a practice that is normal for the profession they are not likely to
be held liable if injury results from the approach they have
followed. Even where there is a difference of opinion within the
profession, the professional is not likely to be liable if the practice
that he or she followed is held by a responsible body of opinion
in the profession. On the other hand, the courts still have the
ability to decide whether the practice or course of action followed
by the professional was reasonable – even if it is a common
practice in the profession. See Bolam v Friern Hospital
Management Committee (above) and compare with Bolitho v
City and Hackney Health Authority [1997] UKHL 46; [1998] AC
232.

6.3.3 Foreseeability of harm

This is another of the factors taken into account in determining


whether a defendant has fallen short of the expected standard of
care. In particular, if the conduct of the defendant at the particular
time was not such as was widely regarded to be particularly likely
to cause harm, the defendant may be held not to have fallen short
of the standard of care; Roe v Minister of Health [1954] EWCA
Civ 7; Bolton v Stone [1951] UKHL 2, [1951] AC 850.

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6.3.4 Magnitude of risk

Related to foreseeability of harm is the issue whether the risk of


harm is relatively minor or whether the harm that could result from
the defendant’s conduct would be of a serious magnitude. If the
risk of harm is very negligible and the possible harm that would
result is not very serious, the defendant is less likely to be held
to have fallen short of the standard of care required; Bolton v
Stone (above). On the other hand, if the harm likely to result from
the defendant’s conduct would be very serious even if the risk
itself is relatively minor, the defendant is more likely to be
regarded as having fallen short of the standard of care; Paris v
Stepney BC [1950] UKHL 3, [1951] AC 367.

6.3.5 Practicality of taking measures to prevent the


harm

Another factor that the court considers is to what extent it is


practical to take measures to prevent the harm that has occurred
in light of both the foreseeability of the harm and the magnitude
of the risk. In particular if the risk of harm is relatively little and the
cost of taking preventive measures is disproportionate, the courts
are less likely to hold that the defendant has fallen short of the
standard of care; Bolton v Stone (above).

6.3.6 Public utility or good

The court can also consider if the defendant was engaged in


conduct or action for public good when he or she caused harm or
injury to the claimant. This may be particularly important in cases
of emergencies when a defendant may have to resort to a
measure or conduct that could foreseeably result in harm to
others. If the public utility element of the defendant’s conduct is
regarded by the courts as important, they may be reluctant to
hold that the defendant’s conduct falls short of the standard of

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care; Watt v Hertfordshire County Council [1954] EWCA Civ
6, [1954] 1 WLR 835.

6.3.7 Legislative intervention

Finally, it is worth noting that legislation in England now reflects


some of the matters that the courts have had to address in
developing the principles concerning whether to hold a defendant
in breach of duty of care; see e.g. Compensation Act 2006 and
Social Action, Responsibility and Heroism Act 2015.

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Chapter Seven:

Negligence: Causation and Remoteness of


Damage

Think About!

1. In September 1964, C was knocked down by D’s car which had collided with him; C
suffered severe injury to his left leg and ankle; the injury restricted his use of the left leg and
left him restricted in the types of job that he could do for a living. Later, in November 1967,
C was attacked by armed robbers; the robbers shot C in the same left leg, which was further
injured and had to be amputated; the robbers escaped and could not be traced.
C sued D for negligence in knocking C down with the car. C claims for loss of the use of his leg
and loss of earning capacity both up to the time when he was shot by the robbers and for
after that time. D argued that he should only be liable up till the time that the robbers shot C
in the same leg and not for D’s loss of amenity or loss of earning capacity after that.
2. Read: Baker v Willoughby [1969] UKHL 8, [1970] AC 467
3. Note Cardozo CJ’s warning about negligence potentially causing exposure to liability ‘in
an indeterminate amount for an indeterminate time to an indeterminate class.’ Ultramares
Corporation v Touche (1931) 174 N.E. 441, 444

103
7.1 Introduction

In this chapter we focus on ‘causation’ as an element of the tort


of negligence and on circumstances where the loss suffered by
a claimant may be considered too remote from the negligent
conduct of the defendant.

Remember that we have learned that the modern tort of


negligence comprises as elements: (a) the existence of a duty of
care; (b) breach of the duty; (c) loss, damage or injury to the
claimant; and, (d) causation between the breach of duty and the
claimant’s loss. Remember also that we noted very early on that,
unlike the tort of trespass for example, the tort of negligence is
not actionable per se. This means that the claimant must show
that s/he has suffered some injury, harm or loss.

Importantly, the claimant not only has to show that s/he suffered
some injury or loss, s/he must also show that there is a causal
link between the loss and the breach of duty by the defendant. In
other words, for a claimant to succeed in negligence, s/he must
show that the injury or loss s/he suffered was caused by the
defendant’s breach of duty. We now turn to the rules that the
courts apply in relation to the issue of causation.

7.2 ‘Factual’ Causation and ‘Legal’ Causation

Causation is an important element in a claim for negligence by a


claimant. It is an essential ingredient because, in the first place,
negligence is not actionable per se and, secondly, there is need
for a link between the defendant’s conduct (or breach of duty)
and the harm or loss suffered by the claimant; causation is what
provides that link.

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In English law, there are two aspects to causation in the tort of
negligence:

(a) Did the defendant’s breach of duty ‘cause’ the claimant’s


loss/injury?
and
(b) Was the loss/injury suffered by the claimant (not) too
remote from the defendant’s breach of duty of care?

The first question is sometimes (somewhat confusingly) referred


to as ‘causation in fact’, i.e. factual causation. The second
question which is the issue of ‘remoteness of damage’ is
sometimes (somewhat confusingly) referred to as ‘causation in
law’, i.e. ‘legal causation’.

7.3 Factual Causation - The ‘But For’ Test

In relation to ‘factual causation’ in the tort of negligence, the key


point to bear in mind is that the question really is: whether the
defendant’s duty is a cause of the injury or loss suffered by the
claimant. This is to be determined on ‘a balance of probabilities’
which means that the claimant must prove that there is more than
a 50 per cent chance that the defendant’s breach of duty caused
the loss. We should bear in mind that the balance of probabilities
test is the test used in civil cases – as opposed to ‘proof beyond
reasonable doubt’ which is the test that is used in criminal cases.

The issue of determining whether the defendant’s breach of duty


of care is a cause of the defendant’s loss or injury is generally
addressed by what is widely referred to as the ‘but for’ test. This
test appears to be based on the idea whether the defendant’s
loss or injury would have occurred ‘but for’ (if not for) the
defendant’s breach of duty.

We must be quite careful, however, to understand the so-called


‘but for’ test properly. The ‘but-for’ test does not mean that the

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defendant’s breach of duty should have been the only cause of
the defendant’s loss or injury. Indeed, there may be several
causes for the defendant’s loss or injury; and the defendant’s
breach of duty may be just one of such causes. Ultimately, the
‘but for’ test is really a test to determine whether the defendant’s
breach of duty is a sufficient cause to make him or her liable for
the injury or loss suffered by the claimant.

In simple cases, the ‘but for’ test can be relatively straightforward


to apply and to understand. This could be so, for example, if the
claimant’s loss or injury would have happened anyway even
despite the defendant’s breach of duty. In Barnett v Chelsea &
Kensington Hospital Management Committee (1969) 1 QB
428, [1968] 2 WLR 422, the claimant’s husband, B, (and two
other men) went to a hospital between 8.05 and 8.10 one
morning complaining of vomiting after drinking tea at work. The
nurse on duty telephoned the medical casualty officer; the
casualty officer did not see the men or admit them but said they
should go home and call their own doctors; the men had suffered
arsenic poisoning and B died later around 1.30PM; on the
evidence, it would not have been possible to admit B until 11AM
and it would not have been possible to give him the only antidote
for arsenic poisoning till about 12 noon – which would have been
too late. It was held (Nield J) that B’s death would have happened
in spite of the doctor’s negligence in not examining and admitting
him; the claimant had not established that the doctor’s negligence
caused B’s death.

See also: Nyang v G4S Care & Justice Services Ltd & Ors
[2013] EWHC 3946; Chester v Afshar [2004] UKHL 41, [2005]
AC 134; compare: Baker v Willoughby [1969] UKHL 8, [1970]
AC 467.

In situations where several causes, including the defendant’s


breach of duty, contributed to the loss or injury suffered by the
claimant, the application of the ‘but for’ test may not be
straightforward. This also raises the question whether the judges
will in some cases not strictly follow the ‘but for’ test; it does

106
appear that the judges will make exceptions in some
circumstances. A statement on this point by one senior judge is
particularly worthy of extensive quotation.

Lord Nicholls in Fairchild v Glenhaven Funeral Services Ltd &


Ors [2002] UKHL 22, [2003] 1 AC 32

‘In the normal way, in order to recover damages for


negligence, a plaintiff must prove that but for the
defendant's wrongful conduct he would not have sustained
the harm or loss in question. He must establish at least this
degree of causal connection between his damage and the
defendant's conduct before the defendant will be held
responsible for the damage.

Exceptionally this is not so. In some circumstances a lesser


degree of causal connection may suffice. This sometimes
occurs where the damage flowed from one or other of two
alternative causes. Take the well-known example where
two hunters, acting independently of each other, fire their
guns carelessly in a wood, and a pellet from one of the guns
injures an innocent passer-by. No one knows, and the
plaintiff is unable to prove, from which gun the pellet came.
Should the law of negligence leave the plaintiff remediless,
and allow both hunters to go away scot-free, even though
one of them must have fired the injurious pellet?

Not surprisingly, the courts have declined to reach such an


unjust decision: see Summers v Tice (1948) 199 P 2d 1 …

The law habitually limits the extent of the damage for which
a defendant is held responsible, even when the damage
passes the threshold 'but for' test. The converse is also true.
On occasions the threshold 'but for' test of causal
connection may be over-exclusionary. Where justice so
requires, the threshold itself may be lowered. In this way the
scope of a defendant's liability may be extended. The
circumstances where this is appropriate will be exceptional,

107
because of the adverse consequences which the lowering
of the threshold will have for a defendant. He will be held
responsible for a loss the plaintiff might have suffered even
if the defendant had not been involved at all. To impose
liability on a defendant in such circumstances normally runs
counter to ordinary perceptions of responsibility. Normally
this is unacceptable. But there are circumstances, of which
the two hunters' case is an example, where this
unattractiveness is outweighed by leaving the plaintiff
without a remedy.’

In shorter and simpler terms another judge said: ‘the "but for" test,
applied in its full rigour, should no longer be treated as a single,
invariable test applicable to causation issues, in whatever
circumstances they may arise.’ The President of the Queen’s
Bench Division in Clough v First Choice Holidays and Flights
Ltd [2006] EWCA Civ 15.

There are situations involving multiple causes where the


application of the ‘but for’ test could be difficult. In some of the
difficult cases the courts have not always taken a strict ‘but for’
approach.

One type of situation is where several factors, including the


defendant’s breach of duty, contributed to causing the claimant’s
loss or injury – but it is impossible to prove whether or not the
loss or injury would have occurred even without the defendant’s
breach of duty. In other words, it cannot be established on a
balance of probabilities (i.e. not more than 50%) that the
defendant’s breach of duty, among several potential factors,
caused the loss or injury that the claimant suffered.

A second type of situation is where the defendant’s negligence


can be identified as one of several causes but less than 50%
likely to be the cause - yet it seems unfair in the circumstances
that the claimant should have no remedy; compare for instance
the two hunters example cited by Lord Nicholls in Fairchild v
Glenhaven Funeral Services Ltd & Ors.

108
In cases where several factors, including the defendant’s breach
of duty, are potentially the cause of the claimant’s loss or injury
the courts tend to frame the question as to: whether the
defendant’s breach of duty caused or materially contributed to
the claimant’s loss or injury.

In Wilsher v Essex Area Health Authority [1987] UKHL 11,


[1988] 1 AC 1074, W was born prematurely and was being
treated at the hospital; he received generally good treatment that
despite his premature birth, he did not suffer brain damage;
however, W suffered a condition called RLF (retrolental
fibroplasia) which caused him to be completely blind in one eye
and to lose most of the vision in the other; during W’s treatment
the hospital had committed a breach of duty in that they had given
W excess oxygen; this was due to the fact that the catheter
recording the oxygen level gave a wrong reading because
doctors had inserted it into a vein instead of an artery; it was
accepted that excess oxygen could cause RLF; however, excess
oxygen was only one of the possible causes of W’s RLF; at least
four other factors associated with his being born premature could
have been the cause of the RLF; it was not established which of
the possible factors was responsible for W’s RLF. The House of
Lords held in those circumstances that it could not be decided
whether the hospital’s negligence caused W’s RLF; the matter
had to be sent for retrial to determine whether the hospital’s
negligence caused or materially contributed to the claimant’s
RLF.

See also: Hotson v East Berkshire Area Health Authority


[1988] UKHL 1, [1987] AC 750; Bonnington Castings Ltd v
Wardlaw [1956] UKHL 1, [1956] AC 613.

The courts also tend to follow alternative approaches where it is


considered that the application of the ‘but for’ test will lead to an
unjust result. One approach that the courts have used in some
circumstances is to ask whether the defendant’s conduct had
materially increased the risk of harm toward the claimant.

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This approach has been particularly relevant in a number of
cases involving claimants who had contracted cancer because
they had been exposed to asbestos as a result of the breach of
duty of their employers. The case of Fairchild v Glenhaven
Funeral Services Ltd involved claims by three employees
(including the deceased F) against several employers each of
which had exposed the employees to contact with asbestos.

The employees contracted mesothelioma (a fatal type of lung


cancer) as a result of contact with asbestos; mesothelioma could
be caused by a single fibre of asbestos with the fatal
consequences; the claimants could not show which exposure
with which employer caused the mesothelioma; they could not
meet the balance of probabilities test; they could not establish
that ‘but for’ the negligence of a particular employer, the
mesothelioma would not have occurred.

The Court of Appeal held that as the claimants had not been able
to establish causation, the defendants were not liable; on further
appeal the House of Lords held that it is true that normally the
claimant has to prove that but for the defendant’s breach of duty
s/he would not have suffered the injury which occurred; however,
in special circumstances there should be a variation or relaxation
of that rule; that though in this situation it may be unjust to impose
liability on an employer whose breach of duty may not have been
the cause of the claimant’s loss, it is more unjust to leave the
claimant without compensation simply because it could not be
scientifically proven which of the employer’s breach of duty did
cause the loss; that the effect of the earlier case of McGhee v
National Coal Board is that where an employer’s breach of duty
materially increased the risk of the claimant’s injury, it is to be
treated as if it had materially contributed to the injury; that the
claimant is entitled to recover against each of the employers
involved for full compensation (i.e. the employers are liable jointly
and severally).

See also: McGhee v National Coal Board [1972] UKHL 7,


[1973] 1 WLR 1.

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In Barker v Corus (UK) Plc [2006] UKHL 20, [2006] 2 AC 572,
there was an element different from the facts in Fairchild v
Glenhaven etc. In Barker, some of the employers concerned
had become insolvent; the House of Lords held that the solvent
employers should not have to pay for the portion of liability of the
insolvent employers; instead of the ‘joint and several liability’
approach used in Fairchild v Glenhaven etc, the court
employed an approach of ‘proportionate liability’.

The courts have also extended the ‘Fairchild exception’ to the


‘but-for’ test to a situation where only one defendant is involved
but the issue was the impossibility of determining between that
defendant’s breach of duty and other factors such as
environmental factors, which may not be torts, what caused the
claimant’s injury; Sienkiewicz (etc) v Greif (UK) Ltd; Knowsley
MBC v Willmore [2011] UKSC 10.

7.4 Legal Causation - ‘Remoteness of Damage’

Although the issue of ‘remoteness of damage’ is often referred to


as ‘legal causation’, the use of the word ‘causation’ in this respect
can be confusing. This is because the real question being
addressed under this issue is not so much whether the
defendant’s conduct caused the loss suffered by the claimant but,
rather, where to place a limit on the defendant’s liability for the
loss(es) which result to the claimant after the defendant’s
conduct.

Broadly speaking, the issue here is a matter of policy: should the


defendant be responsible for all the loss which result to the
claimant following the defendant’s negligent conduct? For
example, should the defendant be liable for all the losses which
are a direct result of his negligent conduct? Or should the extent
of the defendant’s liability for the claimant’s loss be limited in
some way? Should the defendant be liable for only the losses
that are reasonably foreseeable consequences of his negligent

111
conduct? What if another act or event, for example, the action of
a third party (or even of the claimant), subsequent to the
defendant’s negligent conduct, contributes to the claimant’s loss?
In essence, the question under ‘remoteness of damage’ can be
stated as follows: even if the defendant’s negligent conduct is a
factual cause of the claimant’s loss, is the claimant’s loss too
remote from the defendant’s conduct to allow the claimant to
recover damages for the defendant’s negligence?

In the first place, it may be that the loss that resulted to the
claimant was not such as was likely to result from the defendant’s
conduct; negligent conduct remote to the damage or loss. On the
other hand, another event might have also intervened after the
defendant’s conduct and contributed to the loss that occurred;
this is called novus actus interveniens (‘new intervening act’).

7.4.1 Remoteness of damage

In the past, the courts approached the issue of remoteness of


damage in tort through a ‘direct consequence’ test. This old and
now obsolete test was to the effect that a defendant was liable
for all direct physical consequences of his/her negligent act. This
test was established in the case of Re Polemis & Furness,
Withy & Co Ltd [1921] 3 KB 560.

In Re Polemis, a chartered ship docked at Casablanca; it had


been loaded with petrol which had leaked and caused large
amounts of petrol vapour; people working for the charterers
negligently dropped a plank of wood; the plank of wood struck
something and this caused a spark; the spark was ignited by the
petrol vapours and the ship was completely burnt; the shipowners
sued the charterers in negligence. The Court of Appeal held that
the charterers were liable; the damage caused was not too
remote from the charterer’s negligence; it did not matter that the
fire was not foreseeable; the defendant was liable for all direct
physical consequences of his negligent conduct – whether
reasonably foreseeable or not.

112
The ‘direct consequence’ test was not popular and became
discredited. It was overturned and jettisoned in a later case:
Overseas Tankship (UK) Ltd v Morts Dock & Engineering
Company Ltd, also known as The Wagon Mound No 1 [1961]
UKPC 2, [1961] AC 388.

In The Wagon Mound No 1, the defendants, OT, was the


charterer of the vessel The Wagon Mound; the vessel was
moored in the Port of Sydney near a wharf belonging to the
claimant, MD; while the vessel was taking in bunker (furnace) oil,
the defendants negligently allowed oil to escape from the vessel
into the waters; the vessel unberthed and sailed off; the oil floated
on the water and drifted to the claimant’s wharf; sparks from
welding at the wharf and some cotton debris caused the oil to
ignite; this started a fire which caused extensive damage to the
wharf, equipment, machinery and a ship on it; the trial court found
that although the defendants knew that furnace oil was
flammable, they could not be reasonably expected to know (and
did not know) that it could be set afire on water. The Judicial
Committee of the Privy Council held that the action for damages
for negligence should be dismissed; that just as the test for
determining liability for a consequence in the first place is based
on reasonable foreseeability, the test for placing limitation upon
the consequences for which a person is responsible should also
be based on reasonable foreseeability; that foreseeability is the
effective test; that ‘the essential factor in determining liability is
whether the damage is of such a kind as the reasonable man
would have foreseen’; that the case of Re Polemis should no
longer be regarded as good law.

In essence The Wagon Mound No 1 decides that it is the


foreseeability of the kind of damage which occurred that matters.
In Doughty v Turner Manufacturing Company Ltd [1963]
EWCA Civ 3, [1964] QB 518 a factory employee suffered serious
burns injury after an asbestos cover was dropped into a vat of hot
liquid. The asbestos reacted with the liquid and caused an
eruption which resulted in the employee (claimant) being burned;
the chemical reaction was not foreseeable; the claimant argued

113
that it was foreseeable that the lid falling in would cause liquid to
splash out and result in burns to him; held (CA): the damage to
the claimant was too remote; damage from an eruption was not
reasonably foreseeable; and, it was different from being splashed
by liquid;

A decision along similar lines is that in Tremain v Pike [1969] 1


WLR 1556 where P employed T as a herdsman on P’s farm; the
farm was infested by rats; T contracted a disease (‘Weil’s
disease’ or leptosporosis) from rats on the farm; it was held that
the damage suffered by the claimant was too remote; that while
injury from being bitten by rats was foreseeable, Weil’s disease
was not.

It appears that the courts are willing to be flexible in their


approach in some circumstances. Thus, the decisions
considered so far may be contrasted with that in Hughes v Lord
Advocate [1963] UKHL 1, 1963 AC 837. In the latter case, the
defendants’ employees created a manhole in a street; while they
went for a break, they placed a tent on the manhole; they also
put some paraffin lamps outside the manhole for warning to
traffic; two boys (nephew/uncle, aged 8 & 10) came about the
manhole and went exploring it; they took a lamp into the manhole
and came out; but a lamp fell into the manhole causing an
explosion; one of the boys fell into the manhole and was severely
burnt; the defendants argued that even if they could have
foreseen that somebody might be burnt, they could not have
foreseen that there would be an explosion and that the damage
was therefore too remote’. The House of Lords held that the
damage was not too remote; that the type of damage, burns, was
reasonably foreseeable; that the exact way that the burns
occurred did not matter.

Another consequence of the decision in The Wagon Mound No


1 is that if the kind of damage that occurred was foreseeable,
then the defendant will be liable for the full extent of the damage
– even if the extent of damage was not foreseeable. In Vacwell
Engineering Co Ltd v BDH Chemicals Ltd [1971] 1 QB 88,

114
BDH supplied V with chemicals in glass ampoules with labels
stating ‘harmful vapour’. While a scientist was washing off the
labels, one of the glass shattered and this caused a violent
explosion; this was due to the fact that the chemical came into
contact with water; the explosion led to severe damage, blew up
the roof of the laboratory, and a scientist died; it was held that the
defendant would be liable for all the damage; at least damage
from a small chemical explosion was foreseeable; it did not
matter that what happened was a large explosion; the kind of
harm was foreseeable.

Related to the last point are situations or cases falling within the
ambit of what is often referred to as the ‘egg-shell skull rule’. In
essence, the point here is that a defendant must take the
victim/claimant as the defendant finds the latter. The defendant
will not escape liability for his/her negligent conduct merely
because the loss or injury suffered by the victim is made worse
by a factor peculiar to the victim.

In Smith v Leech Brain & Co [1962] 2 QB 405, the defendant


employed the deceased husband of S as a galvaniser; during that
employment, an object spattered out of a tank of molten metal
and burned S’s husband on the lip; the tissue on S’s husband’s
lip was already in a stage before cancer; the burn triggered
cancer and S’s husband died; held: the defendants were liable;
the defendants had to take the victim as they found him; the
question was whether the defendants could have foreseen a
burn, not whether they could have foreseen cancer.

New Intervening Act (Novus Actus Interveniens)

Sometimes, while a defendant’s negligent conduct starts a chain


of events that would eventually result in injury to the claimant, it
occasionally happens that another event also occurs along the
line or chain that might be the ‘real cause’ of the claimant’s loss
or injury. This latter event is referred to as a new intervening act
(novus actus interveniens).

115
The question here is to determine whether the intervening act
broke the chain of causation that started with the defendant’s
negligent conduct so that the defendant might possibly not be
held liable for the claimant’s loss. It is generally accepted that
later deliberate wrongful acts like crimes are likely to be regarded
as breaking the chain of causation; see e.g. Weld-Blundell v
Stephens [1920] AC 956 {libellous statement broke chain of
causation started by leaking of a document}.

Generally, new intervening acts that may possibly break the


chain of causation could potentially arise due to a natural event,
an act of a third party, or even an act of the claimant. See further:
Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC
1004; Lamb v London Borough of Camden & Anor [1981]
EWCA Civ 7, [1981] QB 625; The Oropesa [1943] P 32;
Knightley v Johns & Ors [1981] EWCA Civ 6, [1982] 1 WLR
349; Rouse v Squires [1973] EWCA Civ 9, [1973] QB 889.

116
Chapter Eight:

Negligence: Psychiatric Damage

Think About!

1. Y rode a motorcycle negligently; he was involved in a crash with a car and was killed; the
claimant who was 8 months pregnant was getting off a tram at the time; she did not see the
crash but heard it; she walked past the scene of the accident; by this time Y’s body had been
removed but there was a lot of blood; the claimant’s baby born later was stillborn and the
claimant claimed she had suffered nervous shock. Recall Bourhill v Young [1942] UKHL 5.
2. M’s husband and three children were involved in a car accident caused by the negligence of
the (first) defendant; she was at home at the time of the accident and did not witness it; a
witness came to inform her about an hour later and drove her to the hospital; there she learned
that one of her children had died after the accident; she saw her other children with injuries
and her husband in shock – all covered with dirt and oil; she sued the defendant (and others
involved in the accident) claiming damages for conditions she said she had suffered: severe
shock, organic depression and a change of personality. Read: McLoughlin v O'Brian [1982]
UKHL 3
3. During a football match, the Police were responsible for crowd control; the Police were
negligent in directing too many people to one end of the stadium; this led to a disaster as a
crush resulted and 95 people died, with another 400 injured; people at the other end of the
stadium could see what was going on; the match was also televised live on television and many
people were watching at home; the events were also replayed on news stories; 16 relatives or
persons connected to people in the area of the crush brought an action against the Police for
nervous shock leading to psychiatric injury; some were in the stadium; some were watching
at home; some also identified a relative’s body at the mortuary. Apart from the relatives, some
Police officers who were involved in rescue operations also claimed for psychiatric injury.
4. Read: Alcock v Chief Constable of South Yorkshire [1991] UKHL 5 and White and Others v Chief
Constable of South Yorkshire and Others [1998] UKHL 45.
5. Watch the video in this link: https://www.youtube.com/watch?v=J6kAtdwNJ5s

117
8.1 Introduction

As we have already learned, while the tort of negligence


developed originally in the context of claims for physical injury,
the tort has since extended to claims for other types of harm,
damage or loss.

We have seen for example how the tort of negligence extended


to negligent statements in Hedley Byrne & Co Ltd v Heller &
Partners Ltd [1963] UKHL 4, [1964] AC 465. We learned that the
courts’ attitude to negligence claims may be different where the
claim is for a ‘pure economic loss’ as opposed to personal injury.
For example, as we saw before, in Caparo v Dickman, Lord
Bridge said:

‘One of the most important distinctions always to be


observed lies in the law's essentially different approach to
the different kinds of damage which one party may have
suffered in consequence of the acts or omissions of
another. It is one thing to owe a duty of care to avoid
causing injury to the person or property of others. It is quite
another to avoid causing others to suffer purely economic
loss.’

We also came across the case of Bourhill v Young [1942] UKHL


5, [1943] AC 92 where the claimant claimed to have suffered a
stillbirth because of shock resulting from witnessing the scene of
an accident. Even in Donoghue v Stevenson [1932] UKHL 100,
[1932] AC 562 itself the claimant alleged to have suffered gastro-
enteritis and nervous shock.

This chapter provides an overview of the law in relation to


negligence actions in which the claimant is suing to recover
damages for psychiatric damage or harm – as opposed to a
physical injury or economic loss. In the past, this used to be
referred to as ‘nervous shock’ - described as ‘psychiatric illness
occasioned by shock’ by Dillon LJ in Attia v British Gas
Corporation [1987] EWCA Civ 8, [1988] QB 304.

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We should note early on that English law is not concerned with
providing damages (compensation) for the shock itself resulting
from a traumatic event; rather it is concerned with damages for
the effects of the trauma in terms of a recognised psychiatric
illness.

Presently, what used to be referred to as ‘nervous shock’ tends


to be referred to as ‘psychiatric harm’ or ‘psychiatric damage’.
This chapter will generally use the expression ‘psychiatric
damage’ following the approach of Bingham LJ in Attia v British
Gas Corporation, intending psychiatric damage as
comprehending ‘all relevant forms of mental illness, neurosis and
personality change.’

Psychiatric damage refers to an injury that is alleged to affect the


claimant’s mind rather than their body. However, it can also refer
to a physical injury that is caused by an effect on the mind (for
example, Bourhill v Young, miscarriage caused by nervous
shock; Page v Smith [1995] UKHL 7, [1996] 1 AC 155,
recurrence of ME after accident).

As we will see, a claim for psychiatric damage as opposed to only


physical injury raises fresh issues – and this has affected the
approaches of the courts to psychiatric damage cases.

8.2 What is Psychiatric Damage or Harm?

While psychiatric damage is a form of personal injury, it is treated


differently from physical injury by the courts. The courts now tend
to treat psychiatric damage as a type of harm - rather than as a
cause of harm as they did at some point in the past.

For the purpose of establishing liability in negligence for


psychiatric damage, mere grief, anxiety or distress is not
sufficient; see e.g. per Lord Steyn in White and Others v Chief
Constable of South Yorkshire and Others [1998] UKHL 45,

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[1999] 2 AC 455: ‘the law cannot compensate for all emotional
suffering even if it is acute and truly debilitating.’

An alleged psychiatric damage has to be a recognised form of


psychiatric illness; see e.g. per Lord Bridge in McLoughlin v
O'Brian. Examples include: depression, post-traumatic stress
disorder, personality changes etc. Generally, medical evidence
will be required.

Quare: is it always easy to distinguish recognised medical


conditions from general feelings of distress or anxiety?

8.3 Types of Claimant: ‘Primary Victim’ and


‘Secondary Victim’

Consider:

 Following the negligence of the defendant, the claimant


suffers not only physical injury but also psychiatric
damage;
 Following the negligence of the defendant, the claimant
does not suffer physical injury but only develops
psychiatric damage
 Following the negligence of the defendant a claimant, who
only witnessed a resulting traumatic event, suffers
psychiatric damage due to being concerned about the
safety of another person caught up in the event

In dealing with claims for psychiatric damage the courts have


tended to categorise claimants as either ‘primary victims’ or
‘secondary victims’. Although this is now more often associated
with later cases, the distinction was also alluded to in the early
nervous shock case of Bourhill v Young; see especially per
Lords Russell and Keith.

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Generally, a person who is both physically injured and also
suffers psychiatric damage as a result of the defendant’s
negligence is regarded as a primary victim; the first example
above. Similarly, a person who is exposed to but does not suffer
physical injury as a result of the defendant’s negligence but who
suffers psychiatric damage is also regarded as a primary victim;
the second example above. On the other hand, a person who is
not himself put in fear of physical injury but who suffers
psychiatric damage, as a result of witnessing a traumatic event
involving others following the defendant’s negligence, is
regarded as a secondary victim; the third example above.

In Alcock v Chief Constable of South Yorkshire [1991] UKHL


5, [1992] 1 AC 310, Lord Oliver made a distinction ‘broadly’
between cases involving primary and secondary victims in the
following manner: ‘those cases in which the injured plaintiff was
involved, either mediately or immediately, as a participant, and
those in which the plaintiff was no more than the passive and
unwilling witness of injury caused to others.’

8.3.1 Primary victims

In Alcock v Chief Constable of South Yorkshire, Lord Oliver


goes on to give examples of primary victims as including: persons
who were put in fear for their own safety; rescuers; and, an
involuntary (‘unwilling’) participant in the event caused by the
defendant’s negligent conduct; for example, where the claimant
had been put in the position of thinking that he himself was (or
was going to be) the cause of another person’s death.

In the examples regarded by Lord Oliver as primary victim cases,


he considered that proximity would be established because they
illustrate ‘a directness of relationship (and thus a duty) which is
almost self-evident from a mere recital of the facts.’

In two subsequent cases, the courts are considered by many as


seeming to take a narrower approach in relation to persons falling

121
within the ‘primary victims’ category. In Page v Smith, Lord Lloyd
(giving the lead majority judgment) said that in primary victim
cases, the test ‘ought to be whether the defendant can
reasonably foresee that his conduct will expose the plaintiff to risk
of personal injury. If so, then he comes under a duty of care to
that plaintiff.’ He also said that hindsight ‘has no part to play
where the plaintiff is the primary victim.’ It can be argued,
however, that these statements were not intended to limit the
class of primary victims as such.

In White and Others v Chief Constable of South Yorkshire


and Others (above), the majority of the court also followed the
approach that a primary victim had to have come within the range
of foreseeable physical danger. In relation to the position of
ordinary rescuers as opposed to rescuers acting as part of their
job duties, compare Chadwick v British Railways Board [1967]
1 WLR 912, [1967] 2 All ER 945.

8.3.2 Secondary victims

In Alcock v Chief Constable of South Yorkshire, Lord Oliver


referred to secondary victim cases as cases in which ‘the injury
complained of is attributable to the grief and distress of
witnessing the misfortune of another person in an event by which
the plaintiff is not personally threatened or in which he is not
directly involved as an actor.’

Lord Oliver also observed that the analysis of the issue of


proximity in secondary victim cases is more complex. Similarly,
in Page v Smith, Lord Lloyd said: ‘Though the distinction
between primary and secondary victims is a factual one, it has,
as will be seen, important legal consequences.’ Lord Lloyd also
said that in secondary victim claims, ‘the law insists on certain
control mechanisms, in order as a matter of policy to limit the
number of potential claimants.’

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Evidently, therefore, as the courts clearly aim to limit the number
of potential claimants in secondary victim cases through the use
of ‘controls’ a claim for psychiatric damage as a secondary victim
is less likely to succeed than a claim as a primary victim.
Naturally, wherever possible, a claimant would want to present
themselves as a primary victim.

The controls that are used by the courts as a matter of policy to


limit the number of potential claimants in secondary victim cases
include:

1. Reasonable foreseeability of psychiatric injury

This was referred to by Lord Lloyd in Page v Smith when he said


‘the defendant will not be liable unless psychiatric injury is
foreseeable in a person of normal fortitude.’

Remember Bourhill v Young?

‘The driver of a car or vehicle even though careless is


entitled to assume that the ordinary frequenter of the streets
has sufficient fortitude to endure such incidents as may from
time to time be expected to occur in them, including the
noise of a collision and the sight of injury to others, and is
not to be considered negligent towards one who does not
possess the customary phlegm.’ (Lord Porter)

It is also necessary to point out that the courts take account of


the egg-shell skull rule when applying the test of foreseeability;
that is, the defendant must take the claimant as he finds him; see
e.g. Page v Smith.

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2. Sufficiently close relationship with the immediate victim

There must be a close relationship or tie of love and affection


between the secondary victim and the main victim of the
accident/event caused by the defendant’s negligence; compare
for example McLoughlin v O'Brian.

3. Proximity to the accident or its immediate aftermath

Proximity to the accident or its immediate aftermath must be


sufficiently close in both time and space. In McLoughlin v
O'Brian, Lord Wilberforce said:

‘As regards proximity to the accident, it is obvious that this


must be close in both time and space. It is, after all, the fact
and consequence of the defendant's negligence that must
be proved to have caused the "nervous shock."’

Lord Oliver said in Alcock v Chief Constable of South


Yorkshire:

‘The necessary element of proximity between plaintiff and


defendant is furnished, at least in part, by both physical and
temporal propinquity and also by the sudden and direct
visual impression on the plaintiff's mind of actually
witnessing the event or its immediate aftermath.’

4. Cause of claimant’s shock – ‘proximity of perception’

In McLoughlin v O'Brian, Lord Wilberforce said: ‘The shock


must come through sight or hearing of the event or of its
immediate aftermath.’ For example, a person who was only told
about an accident but did not witness it or was not close to it is
less likely to succeed in a claim for psychiatric damage. Lord
Wilberforce said about the claimant’s claim in the case:

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‘To allow her claim may be, I think it is, upon the margin of
what the process of logical progression would allow. But
where the facts are strong and exceptional, and, as I think,
fairly analogous, her case ought, prima facie, to be
assimilated to those which have passed the test.’

The comment above was also noted by Lord Ackner in Alcock v


Chief Constable of South Yorkshire.

125
Chapter Nine:

Negligence and Product Liability

Think About!

1. Yasmine needed to submit her coursework on Tuesday 10 April 2018; Monday 09 April 2018
was a holiday in her university. At 1PM she bought a laptop from Komputall Ltd to use for
typing up her coursework. By about 11PM she had finished the coursework; but before she
could print it or upload it to her university’s submission system, the computer suddenly died
and stopped working altogether. It turned out that the computer had a defective processor
which stopped working.
2. Ali needed to submit his coursework on Tuesday 10 April 2018; on Monday 09 April 2018,
he bought a laptop from Chipfales Ltd to use for typing up his coursework. On the morning of
Tuesday 10 April 2018, Ali had the laptop on his laps while he worked on his coursework in
bed. Suddenly the laptop blew up and Ali suffered some burns on his laps. It turns out that the
computer had a defective cooling system.
3. Farouk went into Tarkwa Pharmacy and bought a body cream; the body cream was
manufactured by Skinchumps Ltd. When he got home, his wife Martha tried the body cream;
her sister Sofiya who was visiting them also tried the cream. They both contracted a very
infectious skin disease. When Sofiya returned to her home, which was 20 kilometres away, her
daughter Amira was infected by the skin disease.

126
9.1 Introduction

We have already learned that the case of Donoghue v


Stevenson [1932] UKHL 100; [1932] AC 562 is a landmark case
in English law as it led to the recognition of negligence as a tort.

Reminder: In Donoghue v Stevenson, a friend of the claimant


bought a bottle of ginger beer from a retailer and gave it to the
claimant; the bottle was opaque and its content could not be seen
clearly; the claimant drank the ginger beer and realised that the
bottle also contained the decomposed remains of a snail! The
appellant suffered nervous shock and gastro-enteritis; she sued
the manufacturer of the ginger beer.

Donoghue v Stevenson is well known for allowing a person who


was not in a contract with either the seller or the manufacturer to
sue the manufacturer. But ask the question for a minute:
manufacturer of what? Our instinct might be to say, manufacturer
of ginger beer. We will not be wrong of course. But if we broaden
our consideration a bit, our answer might be ‘manufacturer of a
product.’

Do you notice that even Donoghue v Stevenson was a case


about product liability? It was a case about the liability of the
manufacturer of a product for injury caused by the product. In
fact, this aspect of the case is what is often referred to when
mention is made of the narrow principle of Donoghue v
Stevenson – as you might remember.

If the action in Donoghue v Stevenson had been brought by the


person who actually bought the ginger beer, (the claimant’s
friend), who else could they have sued apart from the
manufacturer? Well, the other party involved in the situation that
we should immediately recall is the seller of the product.

Assuming Donoghue’s friend was going to sue the seller, what


would s/he be suing the seller for? After all, the product (ginger
beer) was not manufactured by the seller. We should be able to

127
readily identify that one option for the actual buyer of the ginger
beer would be to sue for breach of contract.

We can immediately distil some salient points about legal actions


regarding product liability from this brief introductory discussion.

The Parties who might be able to sue:


 The buyer of a product
 The end-user of a product

Question: are there any other parties who may possibly be able
to sue?

The Parties who may possibly be sued:


 The seller of a product
 The manufacturer of a product

Question: are there any other parties who may possibly be sued?

The branches of law that may be involved:


 The law of contract
 The law of negligence

Question: is there any other branch or aspect of the law that may
be involved?

9.2 Claims for Product Liability in Contract

Although this book is about tort law, it is necessary in a


discussion of product liability to touch on some aspects of
contract law.

First, it was a doctrine in contract law that for a long time


prevented a person who was not in contract with the seller or
manufacturer of a product to bring an action against either of
them. That is referring of course to the doctrine of privity of

128
contract. Second, it is also good to have at hand and in mind
some of the contractual rules relating to product liability for the
sake of both comparison and completeness.

A person who has a contract with the manufacturer of a defective


product may be able to sue the manufacturer under the law of
contract. In practice, a consumer is not likely to have a contract
with the manufacturer. The party most likely to be in a contract
with a manufacturer in this respect would be a wholesaler or
another type of party who buys from the manufacturer for the
purpose of reselling.

Similarly, a person who buys a defective product from the seller


of the product may be able to bring an action in contract against
the seller. In this case, the buyer could very well be a consumer
though it could also possibly be a reseller.
The parties to a contract could of course themselves expressly
stipulate certain features that the product must have. In addition,
in a sale of goods contract, English law implies some provisions
and includes them in the contract. If the product supplied by a
seller does not have the features agreed by the parties (or
resulting from the terms implied into the contract), the buyer could
seek a remedy in contract law for breach of contract. Let us take
a couple of somewhat ‘interesting’ examples:

In Bowes v Shand [1877] 2 AC 433 a commercial contract for


the sale of rice provided that they were to be shipped during the
months of March and or April; most of the rice was shipped in
February and the rest in March; it was held that the buyer could
reject the entire rice.

In Re Moore & Co Ltd and Landauer & Co [1921] 2 KB 519, the


seller contracted to supply 3000 tins of fruit; the fruits were meant
to be packed 30 to a crate; when they were delivered they were
packed 24 to a crate; this did not affect the market value and
there were 3000 tins in total; it was held that the buyer was
entitled to reject the fruits and to terminate the contract. {See also
Arcos v EA Ronaasen & Son [1933] UKHL 1, [1933] AC 470.}

129
The reason that the buyer was able to reject the fruit in Re Moore
and Landauer was that the fruits did not meet contractual
obligations regarding the description of what was being sold - in
view of section 13 of the English statute known as the Sale of
Goods Act 1979 which provides that goods sold by description
should match the description.

In essence, a claim for ‘product liability’ in contract law is a claim


about failure to meet contractual obligations. It does not
necessarily have to be a claim relating to a dangerous product; it
may not even be a claim that the product is defective – just that
it does not meet contractual requirements or obligations.

Apart from express provisions, important rules of law affecting


the characteristics of a product to be supplied under a sale
contract are implied under statutory provisions.

The provisions typically implied include the following:


 that in a sale of goods by description, the goods will
correspond with the description
 that goods supplied under a sale contract will be of
satisfactory quality
 that if the buyer makes known to the seller the purpose for
which he requires the goods, the seller must supply goods
fit for the purpose made known to him
 that goods sold by sample must match the sample

Provisions to these effects can be found in:


 sections 13 to 15 of the Sale of Goods Act 1979 – now
mostly in respect of commercial sale of goods contracts;
 sections 9 to 14 of the Consumer Rights Act 2015 – sale
of goods to consumers;
 sections 34 to 36 Consumer Rights Act – sale of digital
content to consumers;

In a sense, the opportunities available in contract law for redress


in ‘product liability’ are very powerful. Although they do not focus

130
directly on whether a product is dangerous or defective, the
interpretation and understanding of some of those terms implied
under statutory provisions mean that they can be applied in such
cases. For example, one aspect of whether an item is of
‘satisfactory quality’ is safety; thus, a product which is unsafe may
give rise to liability in contract on that basis.

On the other hand, the opportunities in contract for redress in


product liability have their limitations. The major one of course is
that, due to the doctrine of privity of contract, many people who
will be affected by the effects of defect in a product would not be
able to sue in contract if they have no contract with either the
seller or manufacturer of the product.

Although, the law on privity of contract was reformed in England


some years ago (relatively recently) through the Contracts
(Rights of Third Parties) Act 1999, there are still instances where
a person affected by the effects of a defect in a product would not
be able to sue just because they do not have a contract.

This is where the tort of negligence has been extremely important


for seeking redress for product liability.

9.3 Claims for Product Liability in Tort

Ordinarily, a claim in tort for remedy because of a defect in a


product is basically a claim for negligence. Once again, we may
refer to Donoghue v Stevenson itself as a classic example.
Remember again the words of Lord Atkin:

‘a manufacturer of products, which he sells in such a form


as to show that he intends them to reach the ultimate
consumer in the form in which they left him with no
reasonable possibility of intermediate examination, and with
the knowledge that the absence of reasonable care in the
preparation or putting up of the products will result in an

131
injury to the consumer's life or property, owes a duty to the
consumer to take that reasonable care.’

Once again, the most important element introduced by the case


of Donoghue v Stevenson is that since the decision – a person
may be able to sue the manufacturer of a defective product even
though the person (claimant) does not have any contractual
relationship with the manufacturer.

In addition, the tort of negligence is based fundamentally on the


idea that one person owes another a duty of care in some
circumstances. As it was also said in Donoghue v Stevenson
that ‘the categories of negligence’ are never closed, the tort of
negligence has widened (and can still widen) to recognise many
more instances in which one person will be said to owe another
a duty of care. It is for example also possible that a supplier (and
not just the manufacturer) may be liable in tort if they supply,
without warning, an item that they know to be dangerous. The
supplier is of course already potentially liable in contract to the
buyer.

It is also possible that the courts will widen the categories of


persons that they will treat as ‘manufacturers’ so as to make them
liable for putting a defective item into circulation. Consider the
example of the case of Stennett v Hancock & Peters [1939] 2
All ER 578: a flange, which is part of the wheel, came off a lorry
and the owner took the wheel to P for repairs; when the lorry was
being driven on the road again after the repair, the flange came
off again and injured the claimant who was a pedestrian; held: P
was liable to the claimant.

Question: do you think P was a ‘manufacturer’?

In Donoghue v Stevenson the ‘product’ was a drink, so it was


an item for consumption; in Stennett v Hancock the ‘product’
was part of the wheel of a lorry. In fact, it is now basically possible
to sue in negligence in respect of a defect in any manufactured
product.

132
As a claim in tort for defective products is generally a claim in
negligence, we must remind ourselves of the requisite elements
of the tort of negligence and pay attention to how they may apply
in particular cases. As you will still remember, hopefully, the
elements of the tort of negligence are:

 duty of care
 breach of the duty of care
 loss or injury to the claimant
 causation – of the loss or injury by the breach of duty

Accordingly, the lessons that we have learned on these elements


still apply to claims in relation to product liability in negligence.

Although the tort of negligence widens the opportunities for


redress in relation to defective products, it also has its limitations.
We may point to two significant examples:

 So far, we have been discussing in the context of


negligence ‘manufacture’ of a product; but how well does
the tort address negligent design of a product?
 So far, we have identified that the buyer or end-user of a
product may be able to sue the manufacturer; but what
about when a person affected by a fault in the product is
neither a buyer nor an end-user as such?

Consider the following example:

Mrs Anton was pregnant; she bought and used a medicine


designed and manufactured by Finmedocs Ltd; the medicine
itself was not defective in its manufacture because it was
produced in the way that it was meant to be; but the medicine
contained an ingredient that was dangerous to babies in the
womb; nobody knew this at the time; the baby was born with
deformed limbs because of the effect that the medicine that her
mother took had on her when she was in the womb.

133
 Can Mrs Anton sue Finmedocs Ltd?
 Can an action be brought by (or on behalf of) the baby
against Finmedocs Ltd?
 Was the baby a buyer or an end-user of the product at the
time it affected her?
 Can the baby be regarded as an-end user of the medicine
at any time?

This example reflects the situation concerning the drug


thalidomide that was prescribed to pregnant women in the 1950s
and 1960s; a useful account can be found at the web page in the
following link:

http://eureka.criver.com/the-tragedy-of-thalidomide/

The potential problems that might arise in tort in a case like that
in the example include the following:

 Whether a duty of care can be owed to a foetus?


 As there was no defect in the manufacture of the product,
can a negligence action be brought for negligent design of
the product?
 Can it be established that the design of the product was
negligent when nobody at the time knew that the
ingredient was dangerous?

Consider the various circumstances that we learned about and


addressed the issue of ‘reasonable foreseeability’. It is of course
possible that the producers of a product that nobody knew could
be dangerous might be held not liable in negligence due to the
absence of reasonable foreseeability.

Should a ‘strict liability’ obligation be placed on manufacturers


instead in some cases?

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Indeed, the then European Community introduced a strict liability
regime through its Directive 85/374/EEC of 25 July 1985 on the
approximation of the laws, regulations and administrative
provisions of the Member States concerning liability for defective
products. This Directive has been implemented in the United
Kingdom through the Consumer Protection Act 1987.

The essence of the strict liability regime implemented by the


Consumer Protection Act is that any supplier of a defective
product is strictly liable within the realm of the law of tort if the
product causes damage – including death, personal injury or loss
or damage to property. From a consumer’s perspective, one of
the most beneficial elements is that the consumer does not have
to prove that the defendant (producer or importer to the European
Union or supplier) is at fault or has been negligent.

135
Chapter Ten:

Nuisance and the Rule in Rylands v


Fletcher

Think About!

1. James lives with his parents in their property in Rehab Estate; he does not pay any rent
but has lived in the property for 18 years. Twitters Estates Ltd has recently built a tower
block in Rehab Estate; the tower block is now blocking out the television reception in the
property in which James lives as well as the nice view that James had previously enjoyed
from his bedroom window. What are the legal options open to James?
2. Khaled bought some fireworks and kept them in the garden of his home in anticipation
of using them to celebrate an upcoming festival with his family. Four days before the
festival, some children who had come to visit Khaled’s children set fire to the fireworks
and one of the fireworks flew out, into and through the window of Khaled’s neighbour’s
property. This caused a fire and extensive damage to the property of the neighbour. What
legal remedies are open to Khaled’s neighbour?

136
10.1 Introduction

The tort of nuisance and the rule in Rylands v Fletcher are two
of the ways by which English tort law addresses interference with
a person’s use or enjoyment of their land. They are both
concerned with some civil disputes between owners of lands that
are close enough such that activities or events on one may affect
the other.

In English law, there are three forms of nuisance which are


statutory nuisance, public nuisance and private nuisance. Public
nuisance is in fact an aspect of English criminal law whereby it is
addressed as a crime. Similarly, statutory nuisance concerns
some offences that are created under legislation intended to
address public health matters and environmental concerns.

The focus in this chapter in relation to nuisance will be on the tort


of private nuisance, although it is to be noted that the same action
can give rise both to private nuisance and potential action in
public or statutory nuisance.

The rule in (or tort which arose from) Rylands v Fletcher is


concerned with damage caused to a person’s land by something
that had been brought to another person’s land and had
‘escaped’ from there resulting in the damage. The tort developed
in the wake of the Industrial Revolution in England when activity
of factories and plants that were springing up resulted in damage
to neighbouring land. The tort operates on a strict liability basis
and is seen, in some senses, as an extension of the tort of
nuisance; it has not always enjoyed unqualified judicial support.

137
10.2 Private Nuisance

The tort of private nuisance relates to unlawful interference by


one party (the defendant) with the use or enjoyment by another
party (the claimant) of the latter’s land. The tort mostly arises in
the context of use and enjoyment of land between neighbours (in
the ordinary sense rather than in the technical sense of
Donoghue v Stevenson) or nearby properties.

The tort of nuisance is usually described as unlawful interference


with a person’s use of land or enjoyment of the land or with some
right over or in connection with the land; see e.g. Winfield,
‘Nuisance as a Tort’ [1931] CLJ 189,190. As nuisance relates to
interference with the use and enjoyment of land and obvious
question that arises is how is it different from the tort of trespass
to land?

Nuisance is different from trespass to land in a number of ways.


First, nuisance relates to the fact that the claimant suffers some
harm in the interference with his enjoyment of his property.
Trespass to land on the other hand is primarily concerned with
prohibiting one party from interfering with another party’s
ownership or possession of land. Hence, from a technical
perspective trespass to land is actionable per se, that is, the
claimant does not even have to prove any harm or loss to be able
to sue for trespass. In contrast, nuisance is not actionable per se
and the claimant must prove damage or harm in order to succeed
in an action.

Another way in which trespass to land differs from nuisance is


that trespass to land relates to direct interference with land,
especially in the sense that it usually involves physical
interference such as physical entry onto land or placing physical
things on land. Nuisance on the other hand mainly relates to
indirect interference and may result not only from the emanation
of physical things such as water flooding but also intangible
objects such as noise, smell, fumes, smoke, and similar things

138
which, when reaching the claimant’s land, cause interference
with the claimant’s use or enjoyment.

The main elements of private nuisance, that is the things that


must be established before a successful action for private
nuisance, are that there has been an indirect interference with
the claimant’s use or enjoyment of land, that the interference was
unreasonable and that the claimant has suffered damage or harm
as a result of the interference.

10.2.1 Interference with land – who can sue?

Nuisance is concerned with interference with use or enjoyment


of land. Land in this case of course may include a residential
dwelling and such dwelling may have several occupants.
Evidently, not all the occupants will be the owner with right of
ownership or even with an entitlement to possession. Some may
be family members and they may even be children; yet each may
be affected by the interference with the property.

Traditionally, the attitude of the courts has been that a person


who wishes to sue for private nuisance must have an interest in
the land which could be in the form of ownership, proprietary
interest or right to possession. For example, in the old case of
Malone v Laskey [1907] 2 KB 141 the claimant lived in a house
where her husband was a tenant and as such was a licensee;
she was injured when a cistern in the lavatory was dislodged by
vibrations caused by an engine on the defendant’s premises;
when she sued for nuisance it was held that a person who ‘has
no interest in property, no right of occupation in the proper sense
of the term’ (Sir Gorell Barnes P) could not maintain an action for
nuisance; and that ‘a person who is merely present in the house
cannot complain of a nuisance’, that is, private nuisance (Fletcher
Moulton LJ).

Another case, but with a different outcome, which demonstrates


the difficulties posed by the requirement to have an interest in

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land before being able to sue for private nuisance is
Khorasandjian v Bush [1993] 3 WLR 476. In that case, an 18
year old woman was subjected to pestering and abusive
telephone calls at her parents’ and grandparents’ house by the
defendant. She obtained an injunction which the defendant
challenged on appeal; part of the defendant’s argument was that
as the woman did not have an interest in the house, she could
not sue successfully for nuisance. The Court of Appeal rejected
the defendant’s argument and allowed the claim in nuisance.
Dillon LJ said: ‘it is ridiculous if in this present age the law is that
the making of deliberately harassing and pestering telephone
calls to a person is only actionable in the civil courts if the
recipient of the calls happens to have the freehold or a leasehold
proprietary interest in the premises in which he or she has
received the calls.’

The progress that was made in Khorasandjian v Bush in


challenging the ‘interest in land’ obstacle to suing for private
nuisance successfully was however later undone by the decision
of the House of Lords in Hunter v Canary Wharf Ltd [1997]
UKHL 14, [1997] AC 655. Several local residents, including
owners of property and non-owners such as licensees, brought
an action in nuisance against developers who had constructed a
tower building; they claimed that the building interfered with
television reception. One of the two main points in issue was
whether the residents who were not owners could bring an action
in nuisance. The House of Lords rejected the approach in
Khorasandjian v Bush and reverted to that in Malone v Laskey
instead. It ruled that nuisance is a tort to land and not to the
person - ‘a tort directed against the plaintiff’s enjoyment of his
rights over land’ - and that persons who did not have an interest
in land could not sue for nuisance.

It should be noted that the approach of depriving people without


an interest in land of the ability to sue for private nuisance may
be open to challenge under Article 8 of the European Convention
on Human Rights; see e.g. Khatun v UK (1998) 26 EHRR CD

140
212; McKenna and Others v British Aluminium Ltd [2002] Env
LR 30 (Ch D).

10.2.2 Unreasonable interference

The question of whether the harm or damage that the claimant


has suffered amounts to unreasonable interference is an issue
for the courts. Obviously, the starting point is that the harm or
damage results from the defendant’s use of his land which
caused interference with the claimant’s use or enjoyment of his.
On analysis, it can be said that the issue is not so much
necessarily whether the defendant acted reasonably or had even
taken measures to prevent the interference but, rather, whether
the interference that did occur was such that the claimant was
not to be reasonably expected to just bear it. In Sedleigh-
Denfield v O’Callaghan [1940] AC 880 Lord Wright said that ‘a
balance has to be maintained between the right of the occupier
to do which he likes with his own, and the right of his neighbour
not to be interfered with.’

In the first place, where the interference causes physical or


material damage to the claimant’s land, he will normally be able
to sue the defendant successfully in nuisance. In the old case of
St Helen's Smelting Co v Tipping [1865] 11 HL Cas 642, fumes
and noxious gases from the defendants’ copper smelting factory
damaged trees and crops on land which the claimant had bought;
the defendants’ argument, that as the whole ‘locality’ was
engaged in copper smelting there could not be an action for
nuisance, was rejected partly on the basis that actual material
damage had occurred to the claimant’s land.

The ‘locality’ argument alluded to in St Helen's Smelting Co v


Tipping reflects what is now a distinction between cases where
the claim for nuisance relates to physical or material damage and
those where the claim is for interference that results in what Lord
Hoffman in Hunter v Canary Wharf Ltd referred to as ‘sensible
personal discomfort’ or in loss of amenity. The latter type of case

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tends to require the courts to do a balancing act between the right
of the defendant to use his land as he wishes ordinarily and the
right of the claimant not to have his own use or enjoyment of his
land interfered with. In doing this balancing act, the courts tend
to take a range of factors, including the locality, into account in
determining whether the defendant should be held liable for
nuisance.

In general, where one party’s use of their land causes


interference with the use or enjoyment of another person’s land
resulting in personal discomfort or loss of amenity, the courts
essentially apply a test of reasonableness. It is to be noted that
in Hunter v Canary Wharf Ltd the House of Lords took the line
that even situations of interference causing personal discomfort
are to be regarded more fundamentally in terms of injury to land
and not so much of the discomfort or even personal injury. Lord
Hoffman said that even in the case of nuisance that causes
sensible personal discomfort, ‘the action is not for causing
discomfort to the person but … for causing injury to the land.’ He
said further that while it is true that the land has not suffered
‘sensible’ injury, ‘its utility has been diminished by the existence
of the nuisance.’

The test of reasonableness that the courts apply involves


considering a range of factors which may include, as already
mentioned, the locality of the lands involved and where the
alleged nuisance took place, the intensity and duration of the
interference as well as possibly the intentions of the defendant
especially. These factors may be relevant individually or in
combination.

Arguably, the most controversial of the factors taken into account


as to whether there is actionable nuisance in personal discomfort
cases is that of locality. In basic terms the rule is that interference
of a type that the courts might treat as nuisance in a particular
locality (or neighbourhood) may not be similarly treated as
nuisance if it happens in a different locality. The rule could be
understandable if it is viewed in terms of an attempt to distinguish

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between what might not be regarded as nuisance in an industrial
area but which would be nuisance in a residential area. The
danger, however, is that the rule might be applied in a manner
that means that what is nuisance in an affluent neighbourhood
might not necessarily be treated as such in a poorer
neighbourhood.

In Sturges v Bridgman (1879) LR 11 Ch D 852 the defendant


was a confectioner who used pestles and mortar whilst making
sweets in his kitchen; the claimant, a doctor, built an extension
for a consultation room in the garden of his neighbouring property
near the defendant’s property; the noise from pestle and mortar
in the defendant’s kitchen could be heard in the consultation
room and the claimant sued for an injunction. The Court of
Appeal held that it did not matter that the doctor ‘came to the
nuisance’ and in awarding the injunction the court took into
account the character of the neighbourhood. Thesiger LJ said, in
a statement that is quoted often, that:

‘whether anything is a nuisance or not is a question to be


determined, not merely by an abstract consideration of the
thing itself, but in reference to its circumstances; what would
be a nuisance in Belgrave Square would not necessarily be
so in Bermondsey.’

It should be noted that the courts may also conclude in some


cases that the nature of a locality has changed, for example, from
a residential area to a commercial area. In such a case, what
might have been seen as amounting to a nuisance in a previous
time may no longer be so after a change in the nature of the
locality; see for example Gillingham Borough Council v
Medway (Chatham) Dock Co Ltd [1993] QB 343; compare with
Lawrence v Fen Tigers [2014] UKSC 13 and Wheeler v JJ
Saunders Ltd [1994] EWCA Civ 32.

Apart from the issue of locality, the courts may also take into
account the intensity or severity, the timing and the duration of
the interference; for example, playing loud music on a one-off

143
occasion may not be treated in the same way as doing so for
extended periods of days, weeks or months. In Halsey v Esso
Petroleum [1961] 2 All ER 145 it was held that noise coming from
an oil factory was not private nuisance when it occurred in
morning daytime but was nuisance when it occurred at night.

The courts may also take into account the intention of the
defendant in causing the interference, particularly whether he
acted with bad motive or malice. In Hollywood Silver Fox Farm
v Emmett [1936] 2 KB 468, the defendant farmer arranged the
firing of a gun on his own land to disrupt the breeding of silver
foxes on neighbouring land, it was held that an injunction would
be granted even though it was not ordinarily unreasonable for a
farmer to fire a gun on his land. Similarly, in Christie v Davey
[1893] 1 Ch 316 the action of the defendant in banging trays on
a wall and shouting in order to disrupt music lessons being given
on a neighbouring property was held to amount to nuisance.

Finally, a particular sensitivity or peculiarity of the claimant may


also be relevant in the courts’ consideration of whether the
defendant’s action is to be regarded as nuisance. In essence,
where an ordinary person would not be affected by the
defendant’s conduct, and the discomfiture of the claimant is due
to his own particular sensitivity or peculiarity, the courts are less
likely to conclude that the defendant’s action amounted to
nuisance; see for example Robinson v Kilvert (1889) 41 Ch D
88.

10.2.3 Remedies and defences in an action for nuisance

The main remedies available to a claimant in an action for private


nuisance are damages and/or an injunction. Damages may be
awarded to compensate the claimant for physical or material
damage to his property arising from the defendant’s nuisance.
Damages may also be awarded for sensible personal discomfort
and inconvenience. It is worth bearing in mind that nuisance is

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not actionable per se and generally the claimant must show proof
of the harm or loss that was suffered.

An injunction may be granted to restrain the defendant from


carrying out the activity that amounts to nuisance. Such an
injunction may even be limited to restricting the defendant from
carrying out the activity during particular periods. In Kennaway v
Thompson [1981] QB 88, the Court of Appeal held that an
injunction should be granted to restrain the defendant from
holding power-boat racing but only during particular periods. It
should also be noted that an injunction will usually be granted if
the courts take the view that remedy in the form of damages
would not be adequate.

Apart from remedies in the form of damages or an injunction, a


person affected by a nuisance may also be able to resort to a
self-help remedy in the form of abatement. This is where the
‘victim’ takes it upon themselves to remove the nuisance or to
prevent it from continuing. This may involve entry onto the
perpetrator’s land and, unless in the case of an emergency, it is
better for the victim to seek permission or give notification of such
entry to avoid the potential of being liable for trespass to land.

A defendant to an action for nuisance may raise a number of


defences. If the defendant has been engaged in the activity that
is alleged to be nuisance for 20 years, he may be able to rely on
the defence of prescription to claim that he now has a right to
engage in the activity. Another defence that may be open to a
defendant is that of statutory authority if the defendant can rely
on a statute that authorises the carrying on of the relevant
activity. Other defences that a defendant may raise such as
public utility or that the defendant was not the only one engaged
in the conduct amounting to nuisance tend to be ineffective.
Similarly, a defence that the claimant ‘came to the nuisance’ in
that the defendant had been carrying out the interfering activity
before the claimant moved into his property also tends to be
ineffective; see e.g. Sturges v Bridgman (1879) LR 11 Ch D
852.

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10.3 The Rule in Rylands v Fletcher

The rule in Rylands v Fletcher deals with circumstances where


an item on one person’s land escapes from there and causes
damage on another person’s land. The rule arose from the old
case of the same name but actions based on the rule are
generally rare. This section provides an overview of the rule and
its elements.

In Rylands v Fletcher [1868] UKHL 1, (1868) LR 3 HL 330 and


(1865) 3 H&C 774, the defendant engaged independent
contractors to build a reservoir on his own land to provide water
for his mill; the contractors built the reservoir over a disused mine
shaft; when the reservoir was filled, water burst through the old
shafts and flooded the claimant’s neighbouring mine. Although
the defendant had not been negligent, and an action could not be
maintained in nuisance in the circumstances, the defendant was
held liable on what amounts to a strict liability basis.

In the Court of Exchequer Chamber, Blackburn J laid down the


rule in the following terms:

‘the true rule of law is, that the person who for his own
purposes brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it at
his peril, and, if he does not do so, is prima facie answerable
for all the damage which is the natural consequence of its
escape.…

… and it seems but reasonable and just that the neighbour


who has brought something on his own property (which was
not naturally there), harmless to others so long as it is
confined to his own property, but which he knows will be
mischievous if it gets on his neighbour's, should be obliged
to make good the damage which ensues if he does not
succeed in confining it to his own property.’

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The House of Lords agreed with Blackburn J’s judgment but in
respect of Blackburn J’s allusion to something on the defendant’s
property ‘which was not naturally there’, Lord Cairns treated this
as a ‘non-natural use’ when he said, inter alia, ‘… the
Defendants, not stopping at the natural use of their close, had
desired to use it for any purpose which I may term a non-natural
use, for the purpose of introducing into the close that which in its
natural condition was not in or upon it ….’

In light of the highlighted judgments in Rylands v Fletcher, it is


traditional to refer to the elements of the rule introduced by the
case in terms similar to the following:

 the defendant brings on to his own land


 in what is a non-natural use of the land
 something which is likely to cause mischief if it escapes
 which escapes and causes harm

In addition to these, consideration must also be given to the effect


of the decision in the important case of Cambridge Water Co
Ltd v Eastern Counties Leather plc [1994] 2 AC 264 which
introduces an element of foreseeability of damage or harm.

Bringing on to his own land: generally, the defendant must bring


the thing onto the land and not just that the thing was there
naturally; the land onto which the thing is brought must belong to
or be in the control of the defendant; the thing that is brought on
to the land might itself be the thing that escapes or it might cause
or trigger another thing to escape, see e.g. Miles v Forest
Granite Co (Leicestershire) Ltd (1918) 34 TLR 500 (CA).

Non-natural use of land: in Read v J Lyons & Co Ltd [1947] AC


156 (HL), Lord Porter observed that ‘what may be regarded as
dangerous or non-natural will vary according to the
circumstances’ in light of the ‘circumstance of the time and
practice of mankind.’ In Rickards v Lothian [1913] AC 263 (PC),
Lord Moulton described non-natural use of land as ‘some special
use bringing with it increased danger to others and must not

147
merely be the ordinary use of the land ….’ In the relatively recent
case of Transco plc v Stockport Metropolitan Borough
Council [2003] UKHL 61, water escaped from a pipe owned by
the defendant and caused an embankment to collapse and in turn
causing the claimants’ nearby gas main to be exposed and
needing emerging support work; the claimant’s claim for the cost
of carrying out the repairs failed. Lord Bingham considered the
element of non-natural use of land and preferred that it is seen in
terms of ‘ordinary user’ rather than ‘natural user’. He said:

‘I think it clear that ordinary user is a preferable test to


natural user, making it clear that the rule in Rylands v
Fletcher is engaged only where the defendant's use is
shown to be extraordinary and unusual. This is not a test to
be inflexibly applied: a use may be extraordinary and
unusual at one time or in one place but not so at another
time or in another place ….’

Escapes and causes harm: a claim under the rule in Rylands v


Fletcher is not actionable per se and the claimant must show
proof of harm or loss; the thing likely to cause mischief must
escape from the defendant’s land, causing the mischief
elsewhere; if it remains on the defendant’s land and the mischief
is caused there, liability will not be established. In Read v J
Lyons & Co Ltd, a factory inspector was injured when a shell
exploded at the factory where she was working; an action under
the rule in Rylands v Fletcher could not succeed since there had
been no escape outside an area that was occupied and
controlled by the defendant.

Foreseeability of damage or harm: while the rule in Rylands v


Fletcher is traditionally considered to operate on a strict liability
basis, the case of Cambridge Water Co Ltd v Eastern
Counties Leather plc has instructed that a defendant may not
be liable under the rule if the damage or harm that occurred was
not foreseeable or was too remote from the defendant’s activity.

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In concluding this overview of the rule in Rylands v Fletcher, it
is to be pointed out that a number of defences may be available
to a defendant if the claimant establishes the elements of the tort
under the rule. Potential defences to an action under the rule
include:

 statutory authority - if the defendant can show that his


action is authorised by a statute;
 consent - if the claimant had consented to the presence of
the thing that escaped;
 contributory negligence - if the claimant was partly at fault,
this may cause a reduction in an award of damages;
 act of God - unforeseen natural phenomena resulting in
the escape;
 act of a third party or stranger – if the escape was caused
by the action of a third party.

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Chapter Eleven:

Defamation

Think About!

1. “… there is a great deal of the law of defamation which makes no sense” (Prosser)
2. What kind of communication can amount to ‘defamation’?
3. What is the difference between ‘libel’ and ‘slander’?
4. What is the effect of the ability to sue for defamation on the idea of freedom of speech?
5. Amr Dabilo is a very famous Egyptian musician who is well-known in Egypt both for his music
and for his public commitment to his family and faithful living. He visited London (UK) in July and
returned to Egypt in August. Last September, the Mediterranean Trumpet, which is a news
magazine based and published in London for the Arab community, printed a story that Amr
Dabilo was seen in a night club drunk from drinking beer and whisky and that he was seen flirting
with two prostitutes.
The Mediterranean Trumpet also has a website which carried the story about Amr Dabilo; the
website can be accessed in several countries and in cities including, Dubai, Abu Dhabi, Mecca and
Tunis in each of which Amr Dabilo has large fan bases.
The story published by the magazine is in fact entirely false!
6. Read: Steel & Morris v The United Kingdom [2005] ECHR 103 {Application no 68416/01}
7. Read: ‘McLibel: Longest case in English history {BBC News Report}
http://news.bbc.co.uk/2/hi/uk_news/4266741.stm

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11.1 Introduction

‘Defamation’ is a tort which aims to protect people against


damage to their reputation. In broad terms, the tort is concerned
with the publication of statements that can make other people
have a poor or low impression about the claimant; in other words,
defamation is concerned with statements that can make other
people think less, or to think poorly, about the claimant.

Right to Reputation versus Right to Freedom of Expression

We can spot that while the tort of defamation seeks to protect the
claimant’s right to protection of his reputation, the tort can also
clash with the defendant’s own right to freedom of expression.

In the United Kingdom, freedom of expression is protected under


the Human Rights Act 1998 and the European Convention on
Human Rights. However, there are limits to the rights of freedom
of speech; and, a case for defamation can still be brought in
appropriate cases.

The Defamation Act 2013 and the Common Law

The English law on defamation originally developed in the


common law; in recent times, the Defamation Act 2013 has
sought to pass into written law, some of the common law
principles on defamation and to introduce some reform.

Some of the cases that were decided by the courts before the
Defamation Act 2013 was enacted still continue to be relevant.

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11.2 Defamation: ‘Libel’ or ‘Slander’

‘Libel’ normally refers to a defamatory statement that is made in


some permanent form. Exceptionally, statutory provisions may
treat a non-permanent defamatory statement as ‘libel’: e.g. radio
broadcasts, section 166 of the Broadcasting Act 1990; theatre
performances to an audience, section 4 of the Theatres Act 1968.

The classic example of a defamatory statement that is regarded


as in permanent form is a defamatory statement that is made in
writing or published in print. Question: what about a statement
made on a website that is immediately deleted or if the site itself
is immediately taken down?

Slander, on the other hand, normally relates to defamatory


statements made in a form that is not permanent, i.e., in a form
that is temporary or transitory. This would include for example, a
defamatory statement made by speech or gestures. Question:
what about a song that is recorded onto a disc? Or the written
down lyrics of a song?

At common law, the reason that the difference between libel and
slander matters is that libel is ‘actionable per se’. This means that
a person only has to show proof that a libel was made about them
to win in an action for libel; they don’t even have to prove that
they suffered actual damage or loss.

On the other hand, slander is not actionable ‘per se’. This means
that the claimant would have to prove the damage or loss that
they suffered – before they can win in an action for slander.

In England, section 1(1) of the Defamation Act 2013 now states


that a ‘statement is not defamatory unless its publication has
caused or is likely to cause serious harm to the reputation of the
claimant.’

152
In the case of ‘a body that trades for profit’, harm to the reputation
is not ‘serious harm’ unless it causes or is likely to cause serious
financial loss.

The result is that section 1 of the Defamation Act 2013 now


requires proof of ‘serious harm’ for an action in defamation to
succeed. This really means that, in England at least, the
distinction between libel and slander is now not as significant as
before.

11.3 Elements of Defamation

For a claimant to be able to sue for defamation successfully, a


number of elements would have to be established. These
include:

 whether the statement made by the defendant is


defamatory
 whether the statement refers to the claimant
 whether the statement has been ‘published’, i.e.,
communicated to a third party

We should also bear in mind that now in England, a statement is


not defamatory unless its publication causes serious harm. It is
also to be borne in mind that a number of defences are available
that a defendant to an action for defamation may raise.

11.3.1 Whether the defendant’s statement is


defamatory

Traditionally, defamation has been defined in English law in a


manner similar to the formulation below:

‘Defamation is the publication of a statement which tends to


lower a person in the estimation of right-thinking members

153
of society generally; or which tends to make them shun or
avoid that person.’ {Professor Winfield}

For example, it was stated in one old case:

“A statement is said to be defamatory when it has a


tendency to injure the reputation of the person to whom it
refers. Such a statement is one which exposes him to
hatred, ridicule or contempt or which cause him to be
shamed / shunned or avoided or which has a tendency to
injure him in his office, profession or calling.” Nevill v Fine
Arts and General Insurance Company [1897] AC 68,72.

Considering case decisions and statutory provisions, we can


summarise what amounts to a defamatory statement or
defamation in the following manner:

 a statement whose publication caused or is likely to cause


serious harm to the reputation of another person {‘the
claimant’}; and
 which could affect the claimant negatively in his job or
profession; or
 which could make ordinarily reasonable persons to
o think less well about the claimant as a person; or
o show hatred, ridicule or contempt for the claimant;
or
o shun or avoid the claimant.

It is important to note that a statement is not defamatory simply


because it makes the claimant feel bad; rather a statement can
be defamatory because it makes or can make other people think
less well about the claimant.

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Serious Harm:

This is a requirement introduced by section 1 of the Defamation


Act 2013. By that provision, a statement is not even defamatory
unless its publication caused or is likely to cause serious harm to
the reputation of the claimant. If the claimant is a for-profit trading
body, harm to its reputation is not ‘serious harm’ unless it causes
or is likely to cause serious financial loss.

Cooke & Anor v MGN Ltd & Anor [2014] EWHC 2831
MGN published an article that a millionaire landlord was
improperly making money from tenants who were
dependent on social security benefits; the article also
mentioned the claimants, a housing association and its
chief executive, as also renting out property in the same
area; MGN published an apology to the claimants in the
next edition of its newspaper; held (Bean J): ‘the date from
which one looks backwards (to see whether substantial
harm has been caused) or forwards (to see whether
substantial harm is likely to be caused) is the date on
which the claim is issued’; ‘"serious harm" involves a
higher threshold than "substantial harm" would have done;
and … it "raises the bar" over which a claimant must jump’;
the court does not accept that ‘in every case evidence will
be required to satisfy the serious harm test’; ‘the apology
was sufficient to eradicate or at least minimise any
unfavourable impression created by the original article in
the mind of the hypothetical reasonable reader who read
both’; considering that there is a residual class of readers
of the original article who did not read the apology …. ‘it is
important to note that the apology is now far more
accessible on internet searches than the original Article’;
claimants ‘accept that there is no specific evidence that
the Article has caused serious harm to their reputations so
far; and I consider that such serious harm cannot be
inferred. In my judgment they have also failed to show that
it is more likely than not to cause serious harm to their
reputations in the future.’

155
Monroe v Hopkins [2017] EWHC 433 (QB)
Two tweets suggested that the claimant ‘condoned and
approved of scrawling on war memorials, vandalising
monuments commemorating those who fought for her
freedom’. The court held: that the tweets can cause harm
to the claimant's reputation in the eyes of third parties, of
a kind that would be serious.

The courts have said that an injury to feelings alone, no matter


how serious, will not be sufficient; unless serious harm to
reputation can be established. The courts have also said that
serious harm can be inferred from a particular situation. In
another example, a court said that if publication of the statement
is by mass media, there may not be need to show evidence of
serious harm; but that serious harm to a reputation can even be
caused by publishing a defamatory statement to just one person;
Sobrinho v Impresa Publishing SA [2016] EWHC 66.

Compare a case decided on the law before the


Defamation Act 2013 where a single tweet, agreed by
consent as published to 65 persons, led to a finding of
defamation and award of damages; Cairns v Modi [2012]
EWCA Civ 1382.

Defamatory Statement

Irrespective of the relatively new statutory requirement of serious


harm, the common law has considered what amounts to a
defamatory statement in various circumstances. In other words,
the courts have considered when a statement is defamatory or
carries a defamatory meaning.

In Ames v The Spamhaus Project Ltd & Anor [2015] WLR (D)
511, Warby J said that a ‘defamatory meaning is one that
substantially affects in an adverse manner the attitude of other
people towards the claimant, or has a tendency to do so.’

156
Generally, what is considered defamatory is looked at from the
eye of a reasonable person or reasonable reader of the
statement claimed to be defamatory; that reasonable reader is
considered to be a person who is neither naïve nor unduly
suspicious; see Jeynes v News Magazines Ltd [2008] EWCA
Civ 130.

Some have argued that a statement may be defamatory even if


it does not make people in the society generally think less well
about the claimant – but it makes people in a particular section
of society think less well about him: Arab News Network v Jihad
Al Khazen [2001] EWCA Civ 118.

Also, whether a statement carries a defamatory meaning may


also depend on the surrounding context. In some cases, a
statement which does not appear to be defamatory on its face
may in fact be so if it is combined with other information known
or available to the reader; this is referred to as innuendo.

Monroe v Hopkins [2017]


Two tweets were held to be defamatory for suggesting that
the claimant ‘condoned and approved of scrawling on war
memorials, vandalising monuments commemorating
those who fought for her freedom’.

11.3.2 Whether the statement refers to the claimant

A claimant who is suing for defamation has to show that the


defamatory statement refers to them.

Generally, the question is whether a reasonable person would


understand the statement to refer to the claimant.

Sometimes the situation is straightforward; this is the case for


example where the statement refers to the claimant by name and
also the claimant is the only person that the statement can refer

157
to. It would also be the case where the statement includes a
picture of the claimant.

The statement can yet be understood to refer to the claimant


alone even if it uses a nickname or job title.

If the defamatory statement does not refer to the claimant by


name, nickname or title, but there is information which would
identify the claimant, then the claimant may also be able to sue.

Also, even if the statement does not explicitly identify the claimant
but additional background could show that it was indeed the
claimant that it was referring to, the claimant might still be able to
sue – if s/he can show that the statement was published to people
who know the additional information.

A person may yet be able to succeed in defamation even if the


defamatory statement does not mention them by name.

Morgan v Odham Press Ltd [1971] 1 WLR 1239

The Sun newspaper published an article that a young


woman was kidnapped by a dog-doping gang and kept at
a house in Finchley; the article did not mention anyone’s
name apart from the girl. The claimant sued for defamation
and said that because the girl had been staying with him,
some people thought the article referred to him; held (HL):
even though the article did not refer to the claimant by
name, there could be defamation if extrinsic evidence
shows that the article referred to the claimant.

The more difficult cases are the situations where the defendant
did not intend to refer to the claimant at all. It is important to
remember that under the English common law, the key question
is whether a reasonable person would understand the statement
to be referring to the claimant. The result is that, in effect, a strict
liability approach applies in relation to unintentional defamation;
the intention of the defendant is irrelevant.

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If the defamatory statement was meant to refer to a non-existing
person or fictional character but there is a real person with the
same name that the defendant gave to the non-existing person
or character, that real person may be able to sue for defamation.

E Hulton Co v Jones [1910] AC 20


Defendants, owners/publishers of a paper called the
Sunday Chronicle, published a story that a fictional person
called Artemus Jones had been seen at an event in
France with a woman who was not his wife. This fictional
‘Artemus Jones’ was supposed to be a church-warden
who lived in Peckham. The claimant was a real-life
Thomas Artemus Jones who was not a church warden and
who lived in North Wales; however, he had in fact worked
and written stories for the Sunday Chronicle before. The
court believed the defendants that they did not know the
real Thomas {‘Artemus’} Jones; but the claimant was able
to produce witnesses who said they believed that the
article was about him; held: the defendants were liable for
defamation.

‘A person charged with libel cannot defend himself by


showng that he intends in his own breast not to defame,
or that he intended not to defame the plaintiff, if in fact he
did both. He has none the less imputed something
disgraceful and has none the less injured the plaintiff. ……

[The defendant] cannot show that the libel was not of and
concerning the plaintiff by proving that he never heard of
the plaintiff.’ per Lord Loreburn LC

From the head note to the case: ‘In an action for libel it is
no defence to shew that the defendant did not intend to
defame the plaintiff, if reasonable people would think the
language to be defamatory of the plaintiff.’

If the claimant intended to refer to one person called David


Johnson but there is another person also called David Johnson,

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the second David Johnson will be able to sue the claimant – as
long as a reasonable person who knows him would understand
the statement to be referring to him.

Newstead v London Express Newspaper Limited


[1940] 1 KB 377
The Daily Express published a story about a man who was
tried and jailed for bigamy; the man was referred to
correctly as "Harold Newstead, thirty-year-old Camberwell
man." The claimant was another person who was Harold
Newstead, aged about thirty and who assisted in a
hairdressing business in Camberwell. The jury were
unable to agree on the question: ‘Would reasonable
persons understand the words complained of to refer to
the plaintiff?’ but they nonetheless assessed the
claimant’s damages as - one farthing; held (trial judge and
affirmed by the CA): as the jury had not reached a finding
on liability, no judgment would be entered and the jury’s
assessment of damages does not stand; that on the
evidence a finding could be made that reasonable persons
would understand that the words refer to the claimant; that
if the words were found to be defamatory, it would no
defence for the defendant to claim that he intended to refer
to another person.

“If there is a risk of coincidence it ought, I think, in reason


to be borne not by the innocent party to whom the words
are held to refer, but by the party who puts them into
circulation. In matters of fiction, there is no doubt more
room for hardship. Even in the case of matters of fact it is
no doubt possible to construct imaginary facts which
would lead to hardship. There may also be hardship if
words, not on their faces defamatory, are true of A, but are
reasonably understood by some as referring to B and, as
applied to B, are defamatory. But such cases must be rare.
The law as I understand it is well settled, and can only be
altered by legislation.” per Greene MR

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“The plaintiff is known as a hairdressers' assistant to a
comparatively wide circle of customers and other
acquaintances in Camberwell, where he has acquired a
modest fame. A reasonable man who had some
acquaintance with him might have been prudent enough,
on reading the alleged libel, to say: "This may refer to
some other Harold Newstead": but I am not satisfied that
every reasonable man would necessarily have been so
cautious. The man who believes no ill of his neighbour
until the accusation is proved beyond doubt against him is
without question a reasonable man; but it would be
fallacious to argue that every reasonable man attains to
that high standard of judicial fairness.” Du Parcq LJ

"… liability for libel does not depend on the intention of the
defamer; but on the fact of defamation" Russell LJ in
Cassidy v Daily Mirror Newspapers [1929] 2 KB 331.

In modern times, there are questions whether a claimant should


be allowed to sue when the defendant does not intend to refer to
the claimant. In the United Kingdom, part of the issue is about
whether to allow the claimant to sue in such a case will violate
the defendant’s right to free speech.

This is a relevant matter because section 12 of the Human Rights


Act 1998 provides that the court is to have regard to the right to
freedom of expression provided for in Article10 of the European
Convention on Human Rights*.

{*The Convention for the Protection of Human Rights and


Fundamental Freedoms, agreed by the Council of Europe at
Rome on 4th November 1950.}

O'Shea v MGN Ltd and others [2001] EWHC QB 425


At the request of the 2nd defendant, MGN published
adverts for an adult site which had photos of a certain lady
promoting the adult site. The claimant claimed that the
lady in the photos of the adverts promoting the adult site

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was a ‘look alike’ or ‘spit and image’ of herself; she sued
for defamation claiming that reasonable people who knew
her would have thought she was the one in the photos;
held (Morland J): that the common law strict liability
principle of Hulton v Jones applies notwithstanding the
novelty of facts in this case; despite the ‘offer of amends’
procedure of the Defamation Act 1996, the strict liability
principle remains an interference with the freedom of
speech; the advert in this case is not unlawful and is a form
of expression protected by Article 10 ECHR; in light of Art
10(2) ECHR, in this instance of a look-alike case, the strict
liability principle is not a restriction on freedom of
expression that is necessary in a democratic society for
the protection of the reputation of others.

A final consideration on the question of whether the defamatory


statement refers to the claimant is in the context of a defamatory
statement that refers to a group or class of people:

e.g. “all law students are arrogant fools”.

Normally, people who generally fall within the class or group of


people referred to will not be able to sue for defamation. This is
especially so if the class or group consists of a large number of
persons. In the case of Orme v Associated Newspapers Ltd
(‘The Moonies case’) (1981) The Times February 4, the Court of
Appeal indicated a disapproval of class defamation.

On the other hand, if the class or group of persons is quite small,


it may be possible for a claimant to succeed in a case, for
defamation. For example, compare the following statement with
the earlier version above:

e.g. “all BUE Year One law students are arrogant fools”.

It is not clear how small a class or group has to be for a member


of the group to be able to sue in respect of a defamatory
statement made about the group.

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Nevertheless, the key issue remains whether a reasonable
person would believe the statement to refer to the claimant
him/herself.

"if a man wrote that all lawyers were thieves, no particular lawyer
could sue him unless there is something to point to the particular
individual". per Willes J., in Eastwood v Holmes [1858] I F & F
at p. 349

Knupffer v London Express Newspaper Ltd [1944] AC 116


The claimant was the British head of a group called ‘Young
Russia’ which had about 2000 members but only 24 in Britain.
The defendant published an article which mentioned that the
group was established in France and the US and had fascist
associations; held: the article could not be held to be a
defamation of the claimant.

‘Where the Plaintiff is not named, the test which decides


whether the words used refer to him is the question whether
the words are such as would reasonably lead persons
acquainted with the Plaintiff to believe that he was the
person referred to.’ Viscount Simon LC

Compare

Aspro Travel Ltd & Ors v Owners Abroad Group plc [1996] 1
WLR 132
The defendants made statements to others that two companies
were ‘going bust’ or ‘would be bankrupt in a few days’. The two
companies were family businesses of the individual claimants
and in which they were directors; they were business rivals of the
defendants; held: the statements were capable of being
defamatory of the individual claimants as well as their companies
who were also claimants in the case.

and

163
Riches & Ors v News Group Newspapers Ltd [1985] EWCA
Civ 20
The News of the World published a letter in which a man made
serious allegations against Banbury CID; there were 12 members
of Banbury CID; 10 out of the 12 sued for defamation successfully
and obtained damages, {retrial ordered on exemplary damages}.

11.3.3 Whether the statement has been published


i.e. communicated to a third party

The first thing to note is that ‘publication’ of a defamatory


statement simply means that the statement has been
communicated to a third party. In other words, to say that a
defamatory statement has been published simply means that the
statement has been published to another person that is not the
claimant. In addition, a communication between the defendant
and his/her wife or husband is not considered a publication
because of the idea of privilege; Wennhak v Morgan (1888) 20
QBD 635, 637-9. On the other hand, a statement made by the
defendant to the claimant’s wife or husband is a publication and
can amount to defamation.

The defendant may be responsible for a publication either


because they published the information by themselves or asked
somebody else to do it. Publication may also be by failing to
remove defamatory material placed by someone else on a space
or forum owned or controlled by the defendant.

Section 1 of the Defamation Act 1996, which aims to provide


possible defences against an action for defamation, indirectly
identifies the types of people that may be responsible for a
defamatory statement or publication. They include, as defined,
an ‘author’, ‘editor’ and ‘publisher’ of the statement or publication.

Traditionally, publication of defamatory material to only one


person could be sufficient to enable a person to sue for

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defamation; however, one should now bear in mind that section
1 of the Defamation Act 2013 now says that a statement is
defamatory only if it has caused or is likely to cause ‘serious
harm’.

Where the defendant communicated the statement or information


to a third party and did intend to communicate the statement or
information, the issue of publication is likely to be straightforward.

On the other hand, where the defendant did not intend to


communicate the statement to a third party but communication
occurred anyway, whether the defendant would be taken to have
published the statement would depend on the circumstances.

Huth v Huth [1915] 3 KB 32


A man posted a letter (in an unsealed envelope) to his
wife; the letter contained defamatory material about the
wife and their children; the butler opened the letter and
read it; the children sued the man for defamation; held: the
butler was not entitled to open the envelope and his action
did not make the defendant liable for the publication of the
material to him.

Compare with:

Theaker v Richardson [1962] 1 WLR 151


The defendant wrote a type-written letter in which he
described the claimant as a ‘lying low down brothel-
keeping whore and thief’; he addressed the letter to the
claimant as ‘Coun. Mrs D Theaker’; he put the letter in a
normal business envelope, sealed it by gumming it down
and further with a bit of Sellotape; he wanted to deliver the
letter to the claimant personally but eventually put it
through her letter-box; the claimant’s husband picked up
the letter and opened it; held (2 to 1): there was publication
because the jury were entitled to find (a) that the
defendant anticipated that someone other than the
claimant would open and read the letter; and (b) that it was

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a natural and probable consequence of the defendant’s
action that the claimant’s husband would open and read
the letter.

Question: what if defamatory information is included in a


posted postcard?

Repeated Publication: Technically, every time a defamatory


statement is repeated or communicated afresh, this amounts to
a publication.

Ordinarily each publication creates its own ‘fresh’ cause of action;


ordinarily, that means:

(a) the claimant can sue each person who ‘repeats’ the
publication – this is why it is possible to sue each of the author,
publisher, printer, editor etc; and

(b) historically at common law, each time the statement is


published again gives the claimant a new right to sue, i.e. each
repeated publication creates a fresh cause of action.

Both of these situations are now affected by statutory


developments and we shall be considering them further in the
context of Defences to an action for defamation.

Defamation and the Internet: the advent of the Internet creates


new issues and some matters of complexity relevant in relation
to the law of defamation. These issues include:

(a) that a defamatory matter published on an Internet site in one


country can potentially be seen in every other country; this affects
whether the article has been ‘published’ in each of those
countries and where the claimant can bring an action;

(b) other actors in the chain of operating Internet sites may be


potentially liable as ‘editors’ or ‘publishers’ of information on a site

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which they have some amount of control over ---- even if they are
not the ones who put the information there;

(c) Internet and social media have the effect that defamatory
matter may be disseminated very quickly and much more widely
than was in the contemplation of the defendant;

(d) there is greater likelihood of ‘repeated’ possible even


perpetual publication, e.g. caches and general Internet records
etc.

All these and other factors raise issues that are interesting to
explore and we will explore some of them in the context of
Defences to an action for defamation.

11.4 Defences to an Action for Defamation

A defendant in an action for defamation may raise a number of


defences. It is also open to the defendant to make an ‘offer of
amends’. Some of the possible defences to a defamation action
and the option of an offer of amends are discussed below.

11.4.1 Truth

Section 2 of the Defamation Act 2013 provides that it is a defence


to show that the imputation of a statement is true. The defence
can also avail if a statement has two imputations and one is
substantially true but, because of the part which is substantially
true, the part not true does not harm the claimant’s reputation.

The effect of section 2 of the Defamation Act 2013 is to replace


a defence known at common law as ‘justification’ though there is
similarity between the two. Under the defence of ‘Truth’, as with
‘justification’ previously, not everything said in the statement has
to be true; the statement only has to be ‘substantially true’. In

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Alexander v North Eastern Railway Co [1865] 6 B & S 340,
(1865) 34 LJ QB 152, the statement was effectively that the
claimant was sentenced to prison for three weeks; but the
claimant had only been sentenced for two weeks; it was held
there was no defamation.

11.4.2 Honest opinion

Section 3 of the Defamation Act 2013 provides that it is a defence


to show that the statement complained of was a statement of
opinion, and the statement indicated the basis of the opinion in
general or specific terms, and that an honest person could have
held the opinion on the basis of either existing fact(s), or
something claimed to be a fact in a privileged statement. If the
claimant shows that the defendant did not hold the opinion, or
that the defendant published the statement of another person
(the author) and knew that the author did not hold the opinion
then the defence is defeated. The section abolishes the common
law defence of ‘fair comment’.

11.4.3 Privilege

There are some situations when it is more important that people


are allowed to speak freely than to protect one person’s
reputation. In such situations, ‘freedom of expression’ is
considered more important. Therefore, the law provides a
defence called ‘Privilege’ to allow people to speak freely in such
situations, and thus protects them against a claim for defamation.
There are two types of the defence of ‘Privilege’ against
defamation - Absolute Privilege and Qualified Privilege.

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Absolute Privilege

This defence tends to apply in relation to statements made in


connection with some government or official public duty roles,
e.g. statements made in Parliament, statements made in court
reports of court proceedings. This defence means, for example,
that members of Parliament cannot be sued for something that
they say in Parliament; however, they can choose to sue or allow
themselves to be sued even if the action will involve discussing
something said in Parliament - meaning that they ‘waive’ their
right to privilege.

Qualified Privilege

This defence applies in instances where the person making the


statement has an interest or duty to make it, and the recipient of
the statement has an interest or duty to receive it - assuming the
statement to be true. The defence is capable of applying in a wide
variety of situations, e.g. a reference provided by an employer of
the claimant to another potential employer and the report of the
proceedings of a meeting. By section 6 of the Defamation Act
2013, the defence now also extends to peer-review statements
in scientific or academic journals.

Qualified privilege was historically often used by media entities


sued for defamation. A defendant relying on qualified privilege as
a defence must have acted without malice. In England, the
defence is now less important because of the ‘public interest’
defence provisions of section 4 of the Defamation Act 2013.

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11.4.4 Publication in a matter of public interest

This is a new defence in the English law of defamation introduced


by section 4 of the Defamation Act 2013. The defence applies
where the statement in question is (or forms part of) a statement
on a matter of public interest, and the defendant reasonably
believed that publishing the statement was in the public interest.
It does not matter whether the statement is one of fact or opinion.

Section 4 of the Defamation Act 2013 abolishes the former


defence known as the ‘Reynolds defence’ named following the
case of Reynolds v Times Newspapers [2001] where in an
action for defamation by a former Irish Prime Minister, the court
rejected a claimed defence of qualified privilege for ‘political
information’. The court noted that showing that a publication is ‘in
the public interest’ is not the same as showing that it is ‘of public
interest’ and that existing defences of privilege and honest
comment were enough to protect defendants.

11.4.5 Persons not responsible for publication

Section 1 of the Defamation Act 1996 provides a defence for a


person who is not the author, editor or publisher of a statement,
if the person took reasonable care in relation to its publication,
and did not know and had no reason to believe that s/he
contributed to the distribution of a defamatory statement.

A person is not to be considered as author, editor or publisher, if


only involved in, for example, printing, producing distributing or
selling printed material processing, copying, distributing or selling
a film or sound recording processing, copying, distributing or
selling electronic medium.

To determine whether a person took reasonable care, regard is


to be had to, for example, the extent of the defendant’s
responsibility for the content or decision to publish it, the nature

170
or circumstances of the publication, and previous conduct or
character of the author, editor or publisher.

11.4.6 Operators of websites

Section 5 of the Defamation Act 2013 provides a defence for an


operator of a website on which a statement is posted if s/he
shows that s/he was not the one who posted the statement. The
defence can also be available even though the operator
moderates statements on the website. It is not available,
however, if the claimant shows that the operator of the website
has acted with malice. The defence is also not available, if it was
not possible for the claimant to identify who posted the statement
or the claimant gave the operator a notice of complaint, and the
operator failed to respond to the notice, in accordance with the
provisions of The Defamation (Operators of Websites)
Regulations 2013.

The requirements under the provisions of The Defamation


(Operators of Websites) Regulations 2013 are that: the operator
of the website must notify the poster within 48 hours of receiving
a complaint; the poster is to indicate if s/he agrees that the
information be removed, or to provide his/her contact details; if
there is no response from the poster within the 48 hours, the
operator must remove the statement and notify the complainant
in writing. If the operator has no means of contacting the poster
in the first place, s/he must remove the statement within 48 hours
of receiving a complaint.

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11.5 Offer to Make Amends

Strictly, this is not a defence against an action for defamation.


The idea of an offer of amends was introduced by the Defamation
Act 1996; see especially section 2 of the 1996 Act. The Act
provides that a defendant may offer to make amends about a
statement alleged to be defamatory. The offer may be in relation
to the statement generally; or it may be in relation to a specific
defamatory meaning of the statement, this is called ‘a qualified
offer’. The offer must be in writing and must be to make a suitable
correction and sufficient apology, to publish the correction and
apology and to pay compensation (and possibly costs) to the
complaining party. The offer of amends may not be made after
serving a defence in defamation proceedings. The offer may be
withdrawn before it is accepted but it can also be renewed, which
would amount to a new offer.

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Glossary of Terms

Absolute this refers to a defence available against an action for


privilege defamation; it means that a person cannot normally
be sued in relation to statements made in connection
with some government or official public duty roles
Actionable something that can lead to legal action; something
that can give another person a right to sue in court
Actual having actual physical custody of a thing (or access,
possession use and control e.g. as to a house or flat)
Apprehend to have a particular understanding of something; in
the tort of trespass to the person, it relates to the
victim understanding that something (harm) is about
to happen to them
Assault in tort law, this means unlawfully making someone to
‘apprehend’ that harm is about to happen to them
Battery in tort law, this means unlawfully applying physical
force to the body of another person
Chattels things that can be owned but other than land
Chattels things that can be owned but are other than land
personal
Chattels real interests or rights in land but which are not ownership
of the land and, specifically, a lease
Claimant a person who is making a claim; a person who is suing
another person in court
Constraint similar to restraint; a limit placed on what a person can
do; or a limit placed on the amount of space in which
a person can move around
Constructive having control or custody (in a technical/legal sense)
possession by having an instrument that allows access, use and

173
control of the thing; e.g. a person who has the keys to
a car parked in a car park; or a person who has the
legal documents to a house or to shares in a company
Conversion doing an act to goods in a way which is inconsistent
with the right of the ‘owner’ or person in possession or
entitled to immediate possession
‘Damage’ the ‘injury’ or loss or harm that a victim of tort suffers;
(mostly singular) it is also used in other aspects of private law including
contracts
‘Damages’ money compensation awarded by a court to a person
(always plural) who wins in a lawsuit; the lawsuit may not even be for
tort but, for example, for a breach of contract
Defamation generally means to make a false statement about a
person - which damages the person’s reputation; in
English law, it means a tort which aims to protect
people against damage to their reputation
Defamatory means a statement which ‘has a tendency to injure the
statement reputation of the person to whom it refers’
Defendant a person who is defending something; a person who
has been sued and who is defending a legal action
False this is a technical expression that refers to a particular
imprisonment tort; it means an unlawful restriction of another
person’s freedom of movement
Inflict to do something (unpleasant or painful) to another
person
Infringe to violate; to interfere with; in tort law, it usually relates
to violation of another person’s right or interest
recognised by law
Infringement a breaking of the rules; an interference; in tort law, it
generally means an interference with another
person’s legal right

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Intangible things things that do not have a physical existence but can
or yet be owned e.g. shares, bonds, debts, debentures
(‘choses in
action’)
Jus Tertii a type of defence that a defendant to an action for
trespass to land (or to goods) may try to use; the
defendant would try to argue that another person (a
third party) has a better right to the land (or to the
goods) than the claimant
Justification the reason why somebody feels they are entitled to do
something; it can be excuse that is allowed in law for
doing an action that could be otherwise unlawful
Libel normally refers to a defamatory statement that is
made in some permanent form, e.g. in writing or print
Nervous shock similar to psychological injury; it refers to the effect
suffered by a person who has witnessed or been
exposed to an action or event of a traumatic nature
Offer to make this is a remedy in an action (or potential action) for
amends defamation introduced by the Defamation Act 1996; it
allows a (potential) defendant to offer to make a
retraction, an apology and an offer of compensation
rather than face having to pay full damages for making
a defamatory statement
Ownership generally means to have the highest level or amount
of legal rights over a thing that can be owned
Pacta sunt Latin maxim meaning ‘agreements must be kept’
servanda
Per se ‘in itself’ or ‘by itself’ or ‘of itself’
Personal in the sense in which this is used in relation to the tort
integrity of trespass, this means a sense of personal safety
and privacy; similar to ‘personal space’; in ordinary

175
English, ‘integrity’ relates to a person’s sense of good
and honest behaviour
Possession the situation of having physical custody or right to
physical custody or control of a thing
Property (1) another word for ‘ownership’; or, (2) legal rights
that a person can have over a thing; it may be ‘full’
rights e.g. ownership as with somebody who owns a
house; it may be less than full rights e.g. as with
someone who only has a lease on a house (or
someone who has a ‘security’ over a borrower’s thing
e.g. house or car); or, (3) an item or a thing that
someone can own
Proposition a statement or suggestion that expresses an idea or
concept; it may be correct or not correct
Psychiatric in tort, this means a mental health problem that a
damage or injury victim suffers due to the action of the defendant
Publication in tort law, this means the communication of a
statement by one person to another person (who is
not the communicator’s spouse and who is not the
claimant)
Real property land and things attached to land
Remedy to correct something that is wrong; in tort law, to give
compensation to a victim of tort, or to assist a person
to prevent a tort being committed against them
Repeated every time a defamatory statement is repeated or
publication communicated afresh, this amounts to a publication
Restitution to restore something to its proper owner or to the
person entitled to it
Restraint similar to constraint; the limit placed on what a person
can do; the limit placed on the amount of space in
which a person can move around

176
Restrict to limit what a person can do; to limit the amount of
space in which a person can move around
Right to the right of a person who may or may not be in actual
possession possession but who has the legal entitlement to actual
or constructive possession
Slander normally relates to defamatory statements made in a
form that is not permanent, i.e., in a form that is
temporary or transitory, e.g. by speech or gestures
Subjective this is used in the law of tort in relation to the mindset
recklessness or ‘intention’ of the defendant; it refers to a situation
where the defendant knew what would likely happen
but still went ahead and did something to cause it to
happen
Tangible things physical items
or
‘choses in
possession’
Tort ‘actionable a tort for which the claimant can sue simply because
per se’ it happened; the claimant does not have to prove that
s/he suffered any injury or loss
Trespass ab doing an act that is not permitted on or in relation to
initio another person’s land after having initially entered the
land by permission under statute or the common law
Trespass to intentionally and directly interfering with another
property person’s land (or goods) without lawful excuse

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Index

Note: words in bold are included in the Glossary.

Assault ………………………………………..……… 11, 14-17, 28


Assumption of responsibility …………………… 76, 77, 81, 82, 86
Battery …………………………………………... 11, 15, 17-21, 28
Breach of duty of care (Negligence) ………………………. 87-102
Causation (Negligence) ………………………………..…. 103-112
balance of probabilities …………………...… 105, 108, 110
‘but for test’ …………………………………………. 105-110
chain of …………………………………………..… 115, 116
factual causation ……………………………..……. 105-111
legal causation ………………………….…… 105, 111-116
remoteness of damage …………………..…. 105, 111-116
Chattels …………………………………………………..…….… 44
chattels personal …………………………………… 44-46
chattels real ..……………………………………............ 44
choses in action ……………………………………..…. 44
choses in possession ................................................ 44
Clapham omnibus ………………………..…………. 91, 92, 93, 99
Compensation ………………........ 2, 4, 5, 6, 8, 11, 110, 119, 172
Consent:
trespass to the person ………………….. 11, 17, 20, 21, 27
the rule in Rylands v Fletcher ………………………….. 149
Conversion …..………………………………......……… 46, 50-54
asportation ……………………………………….. 47, 48, 53
detinue …………………………………..………………… 46
trover ………………………………………………………. 50
Damage … 4-7, 41, 47, 49, 55, 56, 62, 64, 65, 66, 67, 73, 75, 76,
104, 107, 112
defamation ……………………………………..….. 151, 152
economic loss …………………..……... 76, 81, 82, 86, 118
harm …………………………………….………………... 4-6
injury …………………………………………….………... 4-6
loss ……………………………………………………..… 4-6
nuisance ……………….….…. 137-139, 141, 144, 146-148
psychiatric damage …………….….……….. 5, 76, 117-125

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Rylands v Fletcher ………………………………… 147-149
Damages ………...……………………………………..…... 6, 7, 23
injunction and ……………………………..………… 41, 144
negligence and contributory negligence ………..... 23, 149
nominal ………………………………………….... 42,47, 49
public bodies ……………………………………………..… 7
psychiatric harm ………………………………………... 119
trespass to goods …………........................................... 49
trespass to land ………………………………………. 40, 42
Defamation:
author …………………...………… 164, 166, 168, 170, 171
defamatory statement ……… 152, 154, 156-164, 166, 170
editor ……………………………………. 164, 166, 170, 171
libel …………………………………….. 152, 153, 159, 161
printer ……………………………………………………. 166
publication ………………… 151-156, 165, 166, 170, 171
publisher ……………………………… 164, 166, 170, 171
repeated publication ………………………………….. 166
serious harm ……………………………...….. 152-156, 165
slander ……………………………………………. 152, 153
Defences:
assault and battery ………………………..…………. 20-21
defamation ……………………………………….... 167-171
false imprisonment ………………………….…………... 27
nuisance …………………………………………………. 145
Rylands v Fletcher ……………………………………... 149
trespass to land ……………………………………..... 40-41
Distress:
distress damage feasant ………………………………… 41
intentional infliction of ………………………………... 28-30
psychiatric damage and ………………… 29, 30, 119, 122
Duty of care:
see also Breach of duty of care
foreseeability ……………………………….… 66, 71, 73-81
historical development in negligence ………………. 57-62
negligence and ……………………………………..… 55-86
neighbour test or principle 61, 66, 71-72, 73, 75, 77-78, 89
proximity …………………………...…. 62, 71, 75-77, 79-81

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reasonable care …………………………. 61, 66, 70, 71, 85
standard of care ……………….…………………. 8, 89-102
Economic loss …………………………...… 67, 76, 81, 82, 86, 118
Ejectment …………………………………………………………. 41
False Imprisonment …...………………………………..….. 21-27
Fiduciary duty/relationship ……………………………… 83, 84, 86
Foreseeability:
see also Duty of Care
egg-shell skull rule ……………………………..……….. 123
psychiatric damage …………………..…………… 123-125
remoteness of damage …………………..…. 111, 113-115
standard of care …………………………………….. 89-102
subjective recklessness ……………………………..…... 14
Freedom of expression ……………….……… 151, 161, 162, 168
Goods ………………………………...…… 44-54, 59, 67, 129, 130
Harm, see Damage
Honest opinion ………………………………………………….. 168
Injury, see Damage
Insurance …………………………………………………….… 8, 97
Intention (role of) ……………………………………………... 12-14
assault ………………………………………………… 13, 17
battery …………………………………………………..… 19
false imprisonment ………………………………………. 25
intentional tort ……………...…. 8, 9, 11, 17, 19, 25, 38, 39
Internet (Defamation and) ……………………………………… 166
Jus tertii …………..…………………………………………….... 41
Libel see Defamation
Loss see Damage
Manufacturer ………….. 58, 60, 68, 70, 81, 98, 127-129, 131-134
Misfeasance …………………………………………………….... 70
Negligence:
see also Duty of care
contributory negligence ….……………………. 23, 97, 149
negligent conduct …….… 81, 82, 104, 111, 115, 116, 121
negligent misrepresentation …………………………….. 82
negligent misstatement ……………………………… 82, 86
negligent statement ………………………………..… 81-86
Nervous Shock …………….…… 29, 60, 118, 119, 120, 124, 127

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New intervening act/novus actus interveniens ………… 112, 115
Non-feasance …………………………………………………..… 70
Nuisance
abatement …………………………………..…………… 145
locality …………………………………………….... 141-143
private nuisance …………………………………… 137-145
public nuisance …………………………………………. 137
statutory nuisance …………………………………….... 137
Obligations:
law of …………………………………………..…………. 2,3
contractual ………………………………………..… 68, 130
Offer to make amends ….………………………………….… 172
Ownership …..…...…………………..…. 32, 44, 50, 57, 138, 139
Personal injury ….. 8, 11, 62, 67, 81, 82, 118, 119, 122, 135, 142

Possession
actual possession ………………………………………... 46
constructive possession ……………………………..… 173
right of/to ……………………………..… 32, 33, 50, 22, 139
trespass by relation …………………………………….... 32
Privilege ……………………………………………… 164, 170, 174
absolute …………………………………………............ 169
qualified ………………………………………………….. 169
Privity of contract ……………………………………... 68, 128, 139
Product liability …………………………………………….. 126-135
defective product ……………………… 129, 132, 133, 135
liability in contract ………………………………….. 128-131
liability in tort ……………………………………….. 131-133
strict liability ………………………………………... 133-135
Proof:
beyond reasonable doubt ……………………………… 105
balance of probabilities …………….…….…. 105, 108, 110
of harm or loss …………………………………….. 145, 148
of libel ……………………………………………............ 152
of serious harm …………………………………………. 153
Property:
interest in land ………………….……………………….... 32
nuisance and …………………………… 138-140, 143-145

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personal property …………………………............ 5, 44, 45
real property …………………………………………. 5, 6,44
the rule in Rylands v Fletcher and …….………… 146, 147
trespass to land and …………………………..……… 32-42
trespass to goods and ……………………………….. 44-49
Proximity see Duty of care
Psychiatric damage or injury …………………………... 117-125
Public interest ……………………………………………... 169, 170
Public utility ……………………………………………. 96, 101, 145
Reasonable man …………………..… 65, 84, 90-95, 97, 113, 161
Reasonable person ……………… 90-97, 154, 157, 158, 160, 163
Remedies:
civil remedies ……………………………………..………... 2
nuisance ……………………………………………. 144-145
psychiatric harm/damage …………………….. 28,118-120
trespass to goods and interference ……………. 45, 46, 49
trespass to land ………………………………………. 41, 42
Rylands v Fletcher (the rule in):
escape ………………………………………... 137, 146-149
foreseeability of damage or harm ……………….. 148, 149
non-natural use (or user) of land ………………… 147, 148
Standard of care see Duty of care
Strict liability …………. 6-9, 12, 134, 135, 137, 146, 148, 158, 162
Subjective recklessness ……………………………….. 9, 13, 14
Trespass:
trespass ab initio ……………………………………... 35, 36
trespass to goods …………………………………….. 46-49
trespass to land ………………………………............ 31-42
trespass to the person ……………………………….. 10-27
Unjust enrichment …………………………………………........ 2, 3
Volenti non fit injuria …………………………………….............. 97

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To God be the glory

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