Lecture Notes Law of Tort

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

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

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□ Unlucky firm pays for law firm by taking money out

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

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Intentional infliction of Emotional Distress

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

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

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Trespass to the Person

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

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

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

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

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

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- Don't confuse motives with intentions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Remedies
Compensatory damages for losses occurring from trespass

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

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Nuisance
- Show actual harm

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

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

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

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

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

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

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

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

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Reasonableness
Reasonableness of interference depends on 5 factors

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

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

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

 Flarinplace
□ Presence of sex shop could amount to nuisance

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

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

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

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

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

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Rylands v Fletcher
Strict Liabilit7y in one-off escapes

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

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

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

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

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

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Cannot be just pure economic loss

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

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

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

Necessity can be honest but must be reasonable

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

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

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

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

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

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

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

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

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- Dangers on land created by independent contractors

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

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premises, then duty arises)

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

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

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○ Volenti (voluntarily assume risk)

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

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

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Negligence: Introduction and Duty of Care

Intro
- Negligence=loose synonym for carelessness
○ Failure to take reasonable precautions against risks that one ought to have foreseen
○ Liability for foreseeable accidents A
- Not strict liability
○ Low threshold for fault however
- Huge range
○ Car accidents, injuries at work, negligent professionals
○ Many possible scenarios
 Bhamra v Dubb
□ Guests ate egg, had allergies
□ Caterer liable
 Scout Association v Barnes
 Yearwood v Bristol
□ Sperm donations not taken care of, storer negligent
○ However
 D v East Berkshire Community Health
□ Negligence doesn't cover everything
 e.g. cheating husband
 Where do we draw the line?
- Influence of insurance
○ Mandatory in law to have motor insurance these days
○ Present for negligent accidents
○ Is it moral?
 Responsibility jumps to non-liable company
 Impose liability based on D's ability to pay
□ Nettleship v Weston
 Learning driver negligent standard = all drivers because all drivers are insured
 Is this right?
- Compensation culture
○ Many many successful claims on very minor sufferings
 790,000 road accidents
 81,000 workplace (but small proportion of total accidents
○ Is this good?
 People getting compensated
 Owt of control, people need to take responsibility for own actions
○ Most cases are settled anyways
 Litigotiation
Downloaded by Rossz
Lecture Notes Fiú38(ifeelyou@seznam.cz)
Page
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Elements
1. D owed C a "duty of care"

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

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

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

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When does duty of care arise?

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

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

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

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

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Acts of 3rd Parties

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

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

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 Duty extended to foreseeable dangers should child "escape"

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

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

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

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

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

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○ C was teacher who was injured in Welly Wanging champions

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

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

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

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

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

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

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

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 Whether the dust from the swing grinders is a material contribution

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

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

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

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

○ A didn’t lose money as a result of breach, always going to do it.

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

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

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

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

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

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

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

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

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

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

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 Cannot recover for damages which is a consequence of your own

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

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Psychiatric Harm
- Court historically reluctant to recognize this injury

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

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

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

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

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

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

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

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

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□ Considered not 2ndary victim

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

- See Greatorix
Formula for 2ndary victims

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

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

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

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○ Witnesses by unencumbered sight/sound

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

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

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

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

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

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Pure Economic Loss

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

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

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

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

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

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 Paid too much for goods too little, PEL

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

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

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

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

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

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

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

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

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

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

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might kill him

○ Not sufficient
Sutradhar v National Research Council

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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 Utility of product are considerations

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

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 Contributory negligence may be partial defense

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

- Less onerous under CPA 2002
What can you claim for

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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(b) Qualified Privilege

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

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

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

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

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

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

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

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

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

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

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

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Remedies
Tuesday, 3 March 2015 15:06
Personal remedies
- Pain and Suffering/Loss of immunity
○
Exemplary damages
- Punitive damages-not corresponds to loss suffered
○ Can be awarded on top of actual loss because of very bad nature
- Brooks v Barnard
○ Can be provided in 3 situations L Devlin
 Statutory
 Unconscitutional action by action of governemnt
 D acted to get profit to himself that may outweigh harm suffered
- Cassell v Broome
○ Could only get exemplary damages if tort in which you were suing was one which could
sue for exemplary damages before 1964
- However, Kuddus v CC of Leicestershire
○ Was robbery-police who took the report decided not to do anything about it, and filled
out form withdrawing complaint
 Forged C's signature on the form
 C sued for misfeasance in public office
○ Lord Slynn
 Fell into 2nd category for exemplary damages (L Devlin)
 But prior to 1964 there were no exemplary damages (Cassell)
 Argues that Cassell test uncessary: as long as action falls into the categories
described by Devlin, Cassell's test uncessary
□ Irrational/unnecessary extra limitation on exemplary
- AT v Dulghieru
○ C were victims of D's sex trafficing conduct were forced to pay rent with sex
○ C's harm was only rent was calculated
 More exemplary damages
Nominal/Contemptuous damages
- Very little loss suffered, distinguished from exemplary
- Nominal
○ Small amount of money
 Nominal: token amount of damages awarded where C succeeded in establishing a
tort but may not have actually suffered any loss
□ Interest may have been infringed without loss
○ False imprisonment
 Lumba
□ C was convicted on series of assault-was going to be deported at end of
sentence
□ Home secretary had policy that said prisoners were going to be detained
until deportation after sentence ended
 However, HS had made a secret policy to always detain these people-
unlawful to apply secret policy
□ If they had applied policy, he would have been detained anyways by the
publicly stated policy
□ Majority: there was a case of false imprisonment
 But because he would have been imprisoned anyways, not entitled to
substantial compensation-nominal damages

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substantial compensation-nominal damages

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

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

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

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

lOMoARcPSD|4716012
Vicarious Liability
Monday, 9 March 2015 10:15
- Not a tort in itself, does not require a breach by employee
Must be an employer/employee relationship

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

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

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

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

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

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French Tort Law

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

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

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○ General strict liability for third persons

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

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Road Traffic Accidents

Road traffic accidents

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

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

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


Lecture Notes Law of Tort

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Lecture notes, Law of Tort

Law of Tort (King's College London)

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Why do we have it?

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□ Unlucky firm pays for law firm by taking money out

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Intentional infliction of Emotional Distress

Wilkinson v Downton [1897]

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Trespass to the Person

Intentional interference with the person

Trespass and harassment

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

Main differences between Trespass and Case

Trespass Negligence (Case)

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- Don't confuse motives with intentions

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Should we skip directness requirement?

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Imminent threat of battery

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Detention: actual restraint required

No requirement for you to be aware of your false imprisonment

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Vincent v Lake Erie Transportation Co

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

JA Pye Ltd v Graham

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

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Compensatory damages for losses occurring from trespass

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- Show actual harm

Often called "environmental tort"

Public/Private law controls

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Where something has emanated onto the claimant's land

Reduction of amenity value

Physical Damage to land

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Reasonableness of interference depends on 5 factors

 C suffered loss due to D's fumes

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

□ Presence of brothel could amount to nuisance

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

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

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Strict Liabilit7y in one-off escapes

How should it be viewed today?

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1. D must be owner or occupier of the land

5. Some form of escape